Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I am honoured to have the opportunity to introduce the Bill, which provides comprehensive reform of family law to bring it up to date with the realities of family life in Ireland. It is a child-centred Bill aimed at addressing the legal situation of children living in diverse families, which delivers on the programme for Government commitment to "modernise and reform outdated elements of family law".

Intensive work has been undertaken on the Bill since the general scheme was published for consultation in January 2014. The general scheme was referred to the Oireachtas Joint Committee on Justice, Defence and Equality and I thank the committee for the valuable work undertaken as part of its pre-legislative scrutiny of the Bill and for organising a public consultation process, which received approximately 38 submissions. The general scheme was revised in light of the recommendations made by the joint committee and the Bill before the House is based on the revised general scheme published on 23 September 2014. Since the Bill's publication on 19 February, I have organised a series of briefings for the political parties and Independent Members to inform them of its provisions. I have also held specific briefings for Senators. I would like, in this regard, to thank Senators for their constructive engagement with the Bill.

The starting point in this legislation is the best interests of children. This is the golden thread running through it. The legislation sets out new and updated provisions on guardianship, custody and access for children living with their married parents, their unmarried parents, with a parent and the parent's partner or with a grandparent or other relative. It also sets out the rules under which parentage of a child born through donor-assisted human reproduction may be established. The Bill does not alter in any way the parentage of children conceived naturally or through fertility treatment which does not involve the use of donor gametes. The parents of these children, who comprise the vast majority of children in Ireland, will continue to be their birth mother and their biological father.

However, the technology of assisted human reproduction, AHR, has created a new reality. Children are currently being born in Ireland to parents who have used donor gametes to enable them to have a child. Ten years ago, the Commission on Assisted Human Reproduction alerted us to the need for action on this issue. It noted in 2005 that, "The issue of legal parentage in Ireland of children born through donor programmes is complicated by the absence of legislation". Under the law as it stands, the birth mother of a donor-conceived child has certainty as to her situation. Case law confirms that she is the mother of the child, regardless of whether she is genetically linked to that child. Under the provisions of the Bill, she will continue to be the mother of her child. The Bill will not change existing provisions regarding the rights of a birth mother, including of a donor-conceived child. She will continue to be regarded as the child's mother. She will be recorded as the child's mother on that child's birth certificate.

The Bill seeks to address the situation of the intending second parent of a donor-conceived child. Under existing law, the situation of a second parent of a donor-conceived child is much more uncertain. The law currently applies a presumption of paternity in favour of a married father. This allows the married father of a donor-conceived child to be presumed to be the child's father, even if he is not biologically linked to the child. However, if that presumption is tested such as in the event of a dispute between both parents and that man is found not to be the biological parent of that child, then he loses the right to be the child's parent. At the moment, the only route by which that man can regain parentage of the child is through adoption, which also requires the birth mother to adopt the child. This would not be possible if there is a dispute between the parents or if the child has attained the age of 18. This example underscores the importance of making new provisions that can secure the legal relationship of that father with his child. The situation even of a married man's fatherhood of a donor-conceived child is vulnerable to being overturned. It is even more difficult for the second member of a female same-sex couple. She has no means at present of being recognised as the parent of a child who she may be jointly raising with her partner.

The Government has given certainty in the legislation to donor-conceived children regarding their parentage. It will enable those who have brought a child into being in mutual love and commitment to each other and to the child to be recognised as the child's parents. The Bill addresses the current anomalous situation whereby the second person, who may have shared in all of the joys and fears of pregnancy and birth, is recognised as a stranger in law to a child. It rectifies this situation and provides a pathway to parentage for the second parent. Provisions which recognise two people as the child's legal parents, with full responsibility for caring for and raising the child, are directly beneficial to a child.

At the same time, the Bill recognises the importance of ensuring a donor-conceived child can know his or her genetic identity. The Oireachtas joint committee strongly recommended that provisions be included in the Bill to safeguard the child's right to know her or his identity. This was also a priority for the Ombudsman for Children in a submission she made at the time. Accordingly, provision has been made for the establishment of a national donor-conceived person register, which will be the mechanism through which a donor-conceived child can trace her or his genetic identity. Equally, anonymous donation of gametes is being prohibited, except for limited exceptions, which I will explain, to ensure that donor-conceived children will have the possibility of tracing their identity.

I wish to clarify, however, that this Bill is strictly about the parentage issues that arise. The broader regulation of assisted human reproduction will be undertaken by the Minister for Health in separate legislation, the draft general scheme of which is currently being developed. It became clear, when developing this Bill, as was also indicated by the Oireachtas joint committee, that we could not safely include parentage provisions in respect of donor-conceived children without underpinning them with provisions on identity and consent and without addressing the issue of anonymous donations. We have dealt with those issue but I emphasise that the Department of Health will deal with the broad issues that arise in respect of AHR and DAHR.

I have had discussions with representatives of various clinics and the Institute of Obstetrics and Gynaecology about issues of concern to them. There has been commentary in favour of continuing to use anonymous donations. The argument has been made that prohibiting anonymous donations cuts across parental autonomy. However, our experience, for example, on adoption has shown that it is important for a person to have the means of knowing the truth as to their origins. Equally, there is a growing consensus internationally that it is best practice for states to ban anonymous donation and to provide mechanisms for a donor-conceived child to trace his or her genetic origins. A number of jurisdictions have prohibited anonymous gamete donation, including Austria, Finland, the Netherlands, New Zealand, Norway, Sweden, Switzerland and the UK. Banning anonymous donations to safeguard the child's right to identity is part of the child-centred ethos of this Bill.

Adoption is another critical child-centred issue addressed in the Bill. As I have indicated previously, adoption law has never contained a restriction based on the sexual orientation of an adopter. The important question is whether the proposed adoption is in the best interests of the child concerned. The provisions in the Bill will, for the first time, enable civil partnered or cohabiting couples to adopt jointly. Many people did not realise that cohabiting couples currently cannot apply to adopt jointly. However, this can only happen following a full assessment while all the usual measures relating to adoption must be followed to ensure the proposed adoption is in the best interests of that child. Adoption is a child welfare measure. The suitability criteria in place will continue to apply. Under these provisions, each couple will be assessed on whether they are suitable to raise the child and to fulfil all parental duties towards that child. A single person will continue to be assessed on that basis. No fundamental changes are proposed to adoption procedures, under which a child's birth mother has an extensive input into who may adopt her child and is involved throughout the process in outlining what she considers to be in the best interests of her child.However, many of the likely adoptions will be in-family adoptions in which the child's parent and the parent's partner jointly adopt the child.

The provisions on guardianship are likely to have the widest application as they will benefit children living in a wide range of family situations. The Bill makes provision for a step-parent, a civil partner or a parent's cohabitant of not less than three years' duration to apply to the court to become a guardian where he or she has co-parented the child for two years. These guardians will generally have restricted powers limited to decisions on day-to-day matters, which we know often arise and cause great difficulty because the powers now being provided do not exist, other than where it is in the child's best interests for the guardian to have full guardianship powers. As such, they strike a careful balance between the responsibilities of parents and the need for the person caring for a child on a daily basis to be able to take day-to-day decisions on behalf of that child.

During debate on the Bill in the Dáil, the guardianship rights of non-marital fathers more generally were raised by a number of Deputies. As Senators will be aware, the Bill provides for a non-marital father to be automatic guardian of his child if he has lived with the child's mother for 12 months, including at least three months with mother and child following the child's birth. A change was made in this area following committee discussion on this issue. The period of cohabitation can of course take place at any time before the child turns 18. This provision creates a new automatic mechanism under which non-marital fathers can become guardians of their children, in addition to the existing mechanisms, which will remain in place. As Senators will be aware, these include the making of a statutory declaration, through which a non-marital father can easily acquire guardianship once the declaration has been signed by the father and mother, duly witnessed. The other option is to apply to the court for guardianship. As emerged during the Dáil debate on this issue, with which I am sure Senators are familiar, many fathers are not aware of the statutory declaration option. As a result of that debate I have taken a number of initiatives to try to deal with some of the issues arising in that regard.

I am conscious of the need to make it easier for non-marital fathers to acquire guardianship. This is the intention underpinning the cohabitation provision. It is quite a radical change in terms of the rights of non-marital fathers. I have devised a new scheme whereby it will be possible for non-marital parents to sign the statutory declaration when registering or re-registering their child's birth. Many non-marital fathers believe that if their name is on the birth certificate this gives them guardianship rights. However, that is not the case. They must also have signed a statutory declaration. I felt that by bringing the two together it would be likely that more non-marital fathers would assert their rights at the point of registration. I have arranged with the Minister for Social Protection that, at the point of registration of the child's birth, the parents will be informed that the inclusion of the father's name on the birth certificate does not in itself confer guardianship. This is to dispel the mistaken impression of many non-marital fathers that their being named on the child's birth certificate is enough to acquire guardianship. The couple will be given a copy of the statutory declaration. It will be possible for them to sign the declaration in the presence of a registrar, at no charge, either at that time or within a fortnight. Obviously, they can still make the declaration at any later time, but when doing so at the same time as birth registration, the timeframe allowed is a fortnight.

With the agreement of the Minister for Social Protection, I have included in this Bill legislative changes to the Civil Registration Act 2004 which will give registrars the authority to witness statutory declarations for guardianship. I have also removed the requirement in section 2(4)(d) of the Guardianship of Infants Act 1964 which required the parents to have made arrangements in relation to custody of and access to the child prior to signing the statutory declaration. Again, this is an attempt to remove barriers. I am confident that these changes will make it much easier for non-marital fathers to avail of the statutory declaration mechanism to acquire guardianship. I have also given a commitment that the Department will review these provisions within two years to ensure they are working effectively. My objective is to facilitate as many non-marital fathers as possible to become guardians. At the same time, it is important to ensure that a child's best interests are safeguarded and that neither the child nor the mother should be put at risk as a result of these provisions. A number of Deputies who contributed to the debate on the Bill in the Dáil spoke about non-marital fathers acquiring rights but at the same time said there should be exceptions, such as in rape or domestic violence cases. However, when it comes to defining what the exceptions should be the task becomes quite difficult. Others argued that one should not make assumptions about all fathers because some fathers would be in those situations, which is also an important point.

Some organisations have raised the issue of a central register for statutory declarations. The establishment of such a register requires advance planning so that adequate systems can be devised with regard to data accuracy, updating of information and data protection. I want to prevent the register from becoming an additional element of red tape for a non-marital father, whereby a declaration would have to be registered for it to be valid. It is preferable to have a repository in which non-marital parents could deposit a statutory declaration so they have security in terms of seeking additional copies of the declaration if the original copy were lost or destroyed. It is interesting to note that we have not up to now had in place a mechanism to guard these documents. Currently, people keep these documents themselves, which is in line with the arrangements for many other legal documents. However, some people would argue that a central register is so basic that we should have had one in place. It will be difficult to establish a register immediately, but I have announced my intention to develop a pilot project to establish a voluntary repository into which non-marital parents can deposit copies of statutory declarations. The lessons from the pilot project will inform us on whether to proceed with the establishment of a national repository. I have made some inquiries into the type of work that would need to be done, and it is quite substantial.

I will now turn to the description of the Bill. Part 1 sets out standard clauses in terms of collective citation, interpretation and expenses. On the issue of commencement, I have taken into account the concerns raised with me that couples currently undergoing fertility treatments might have their treatment suspended because of the move from anonymous to non-anonymous procedures. Accordingly, I have agreed with the Minister for Health that the provisions relating to donor-assisted human reproduction will not be commenced for a minimum period of one year post-enactment. This is to allow for couples currently going through fertility treatments in Irish clinics to complete those treatments. Putting in place a transitional period of a minimum of one year will allow for an orderly transition to the new arrangements. The Minister for Health, in advance of the establishment of an authority, will have responsibility in this area and for commencing these provisions, as the unit tasked with setting up the national donor-conceived person register will be under his or her auspices on an interim basis. Similarly, the Minister will have responsibility for preparing the regulations that will underpin these provisions.

Part 2 deals with parentage in cases of donor-assisted human reproduction. A number of important key conditions must be fulfilled if parentage is being assigned. The donor-assisted human reproduction will have to take place in a clinical setting; the birth mother and the intending second parent must give consent in advance that they will both be the parents of any child born through donor-assisted human reproduction, and the donor will also have to state in advance of the procedure that he or she is a donor and does not intend to be a parent of the child. If these conditions are fulfilled, the intending parent will be recognised as a second parent under section 5. Detailed work needs to be done in terms of the consent forms and regulations, which work will be undertaken after the enactment of this Bill. It will be for the Department of Health to work out the details in that regard. Also, to ensure clinics can work with their international partners in this area, they will need advance notice regarding what will be involved in terms of consent forms and regulations.

The Bill makes provision for retrospective recognition of the parentage of certain donor-conceived children.Where a child is born in the State as a result of donor-assisted human reproduction treatment carried out before the commencement of the Bill, sections 20 to 22 outline the procedure that will apply. These are very detailed procedures. There has been a lot of contact from parents who are in this situation. I am sure many Senators have received letters from individuals who are in this situation. Having considered the matter, we felt we should include the following mechanism. If certain conditions are fulfilled, the couple can apply to the District Court or the Circuit Court for a declaration of parentage and the court can issue the declaration if it considers it to be in the child's best interests. Each of these cases will be dealt with individually according to the provisions of this Bill and in a court setting provided certain conditions are met.

Part 3, which I will not go into detail about, sets out the obligations that will apply to donor-assisted human reproduction facilities. They will be prohibited from using anonymous gametes other than in two exceptions.

Part 3 also sets out the procedure that will apply in terms of accessing information from the national donor-conceived person register. A donor-conceived child, once over 18 years, will be able to seek, from the register, all the information held on the donor. I amended these provisions on Report Stage in the Dáil to ensure they fully reflected the objective of enabling the child to trace his or her genetic identity. I was not given legal advice but I had to allow for an exception. For example, there could be an exception if providing the information totally compromised the safety of the child or the donor. I would consider that to be truly exceptional if that situation were to arise. Of course, if it were refused, the case could still be appealed in court. That means there would still be the possibility for the person who had that information refused to go to court.

Part 4 sets out the provisions that will apply with regard to guardianship. In addition to the provisions already mentioned, a guardian parent will be able to appoint a temporary guardian, where the parent is suffering from serious illness or injury which prevents him or her from exercising his or her guardianship responsibilities in respect of the child. This is a practical arrangement that would help families where this situation arose. The appointment can only be activated through a court-based process to ensure the best interests of the child are properly considered.

Part 4 also enables a relative to apply for custody of a child. A parent's spouse or civil partner, or a parent's cohabitant of not less than three years' duration, can apply for custody where she or he shared parenting of the child for two years. A person can apply for custody if she or he has parented the child for a year and if there is no parent or guardian willing or able to exercise the powers and responsibilities of guardianship. That means we are allowing for the range of different situations that can arise in families and where issues of custody and guardianship emerge.

Important provisions have also been included to enable grandparents or other relatives to have access more easily to a child in the context of relationship breakdown. That means we have simplified the process for a grandparent to seek access or custody. Obviously the process would still be done in a court setting but is now a single procedure. Before this it was a two-step process which put a lot of grandparents off even thinking about doing so.

The Bill requires the child's best interests to be the paramount consideration in any of these decisions on guardianship, custody and access. For the first time in legislation we have outlined a series of contexts and criteria for making a decision on a child's best interests. We have also gone into details about the range of issues a court should consider in making a determination, for example, the quality of the relationships with those involved and whether there is any question of household violence, which is very important because of the potential impact on the child's safety and well-being. Provision is also made for the child's views to be heard either directly in the court or by using an expert to speak to the child. For the first time in legislation there is a set of enforcement procedures on custody and access.

Part 5 makes technical amendments. Part 6 amends the Family Law (Maintenance of Spouses and Children) Act. There are also some changes to the Status of Children Act as well. Part 8 amends family law to enable the court to order maintenance payments by the cohabiting partner of a child's parent for the benefit of the dependent child and to make associated provisions. I have already spoken about the changes to the Civil Registration Act which provides for registration. Section 93 inserts a new section in the Civil Registration Act which I mentioned.

Section 95 deals with the situation of donor-conceived children who are born through a donor-assisted human reproduction procedure that has taken place before the Act is commenced. If the parents have secured a court order under section 21 or 22 declaring them to be the parents of the child, they can have the child's birth re-registered. This provision will enable the second parent to be registered as the child's parent on the child's birth certificate.

Part 10 amends the Passports Act. It enables the Minister for Foreign Affairs and Trade in certain circumstances to issue a passport to a child living outside the State and without the consent of a guardian. Part 11 amends the Adoption Act. I have already spoken about the changes in this section.

Part 12 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to extend the protections of that Act to dependent children of one or both civil partners. These protections relate to maintenance and the protection of the family home. They provide for a civil partner to have a potential maintenance liability in respect of a dependent child of the civil partners.

Part 13 makes a number of changes to other Acts stemming from the provisions of this Bill, for example, legislation on adoptive leave and maternity protection which are a consequence of the changes in the Bill. We are amending the Bill in order that various people will be entitled to apply for leave.

The Children and Family Relationships Bill is a child-centred and family-centred Bill which will benefit hundreds of thousands of children. It will give stability and certainty to the children of atypical families in terms of their parentage and guardianship. It will place, as I hope I have illustrated, a child's best interests at the heart of key decisions concerning a child's life. It will give the child a voice in the process. I am proud and pleased to be associated with a Bill which sets a child-focused blueprint for family law. I commend this Bill to the House.