Tuesday, 24 March 2015
Children and Family Relationships Bill 2015: Second Stage
I welcome the opportunity to speak on this important legislation. There is no doubt that Irish family law is totally out of date and does not reflect the diversity of modern families. It is focused generally, as the Minister has said, on marital families and does not provide adequate protection or support for those living in other forms of loving family environments. That is a huge gap given that one in four children live in a non-marital family, 215,000 families are headed by single parents, 49,000 families are headed by cohabiting parents, 230 families, which is a relatively small number, are headed by same-sex parents, and many other families are headed by grandparents, foster parents and others who have taken the place of the child's biological parents. For too long, Irish family law has treated non-marital families as invisible and, as a result, has denied children the legal protection and support they deserve.
The fact that many people parent without guardianship rights causes a wide range of problems. At the most basic level, it means non-guardians cannot make simple day-to-day decisions such as signing a letter to give permission for a child to go on a school trip. They cannot consent to medical treatment. In the event of a biological parent dying, the child has no legal relationship with their other parent. This means, for example, that someone who has been a parent to the child on a full-time basis for 15 to 17 years of that child's life is deemed not to be their parent in the eyes of the law. This is also the case in family breakdown situations and is extremely distressing for all concerned. The legislation is welcome in this regard. As the Minister has said, the Bill alters substantially the existing guardianship arrangements to address those issues.
The legislation clarifies the parentage of children born through assisted human reproduction which is long overdue. It also provides for a range of other improvements in family law, including provisions for easier access for grandparents, which is important. When a relationship breaks down, it is important for a child to have as much stability as possible in his or her life and to maintain relationships with all of those in his or her wider family circle, which is in the best interests of the child, regardless of how the two adults want to fight it out.
The legislation will affect a wide range of families and, therefore, it is important the legislation is given proper scrutiny both inside and outside of this House. I am somewhat concerned about the media coverage given to the legislation. Due to it progressing at a similar time to the marriage equality referendum, some groups have deliberately misrepresented the Bill. In fact, having listening to some of the debates one would think we were debating a same-sex adoption Bill.The reality is that same-sex families make up a minuscule proportion of the families that will be affected by this legislation. In fact, assisted human reproduction is mostly availed of by heterosexual couples, while the vast majority of adoptions involve step parents or other relatives. Moreover, the adoption rate in Ireland is very low. Of the 70,000 children born here last year, only 122 were adopted domestically, most of them, as I indicated, by step parents or other relatives.
In all cases, the determining factor under Irish law, before and after this Bill is enacted, is the best interests of the child. I have a huge personal interest in this area, as have others in this House, and it is important to reiterate that the best interests of the child is the paramount consideration. No adult, gay or straight, has a right to adopt; all they have is an opportunity to be considered. The courts will always consider what is best for the child and that will continue to be the case after this Bill passes. It is unfortunate that some people have deliberately sought to portray the legislation as something it is not, which has distracted from a broader consideration of the overall impact of the provisions. That is a shame because it is important that all those affected by it understand how the Bill will affect their lives, be they single parents, step parents, grandparents, foster parents or others affected by the various issues involved.
Overall, the Bill is a very progressive provision that will be of huge benefit to a wide range of families. It is a welcome and important step forward. I take this opportunity to record my appreciation of the Minister's willingness to meet with Senators in recent weeks to deliver a face-to-face briefing and tease out the issues with us. I have written to her on several occasions regarding specific provisions and she has responded to all my queries. I was not necessarily happy with all the answers but I appreciate her making herself available in that way. She has taken an open approach to her brief since taking over as Minister for Justice and Equality. It is a good way of doing business.
Although I welcome the Bill on the whole, I do have some concerns about certain provisions. At present, unmarried fathers have no automatic right to guardianship regardless of the closeness of their relationship with their child. They can only acquire that right if the child's mother agrees to sign a voluntary statutory declaration or by going to court. Many fathers do not realise this is the case until there is a problem such as a relationship breakdown and they are left in a very precarious position when difficulties do arise. That is very unfair not just to the men involved, but also to their children. Moreover, the current arrangements are totally out of step with best practice internationally, which aims to have both parents as involved as possible with their children, even where there may be a difficulty in the relationship between the two adults.
We should always encourage both parents to strive to have the best possible relationship with their child. I appreciate that the Bill improves on the current situation by providing guardianship rights to one set of unmarried fathers, namely, those who have been cohabiting with their child's mother for 12 months, including for three months after the birth. However, this does not go far enough and is problematic for several reasons. First, the criteria set out in the Bill focus on the relationship between the father and mother even though the provisions in the rest of the legislation are very strong on the best interests of the child. Second, the cohabitation requirement is problematic. As Dr. Geoffrey Shannon, Special Rapporteur on Child Protection, has pointed out, it could throw up strange situations where the parents are in an intimate relationship but the father is living away, perhaps because he is in the Army and has been posted abroad for a period. Another example of an anomaly that might arise is where parents are living apart while one is looking after a sick relative. Third, I am concerned that cohabitation is not defined in the Bill as it is in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act. In short, the criteria are simply not clear enough for such an important issue.
I would favour a system of presumptive guardianship such as that which operates in the United Kingdom, with appropriate safeguards to deal with the minority of situations where a child or mother might be at risk as a consequence of the father's involvement. We should be legislating on the presumption that children benefit from having both parents involved. We are doing it backwards, however, which is to the disadvantage not only of fathers, but also of children. I appreciate the Minister's positive response to the proposal tabled by my Dáil colleagues about encouraging mothers to sign the statutory declaration earlier and making fathers aware of their rights at the very start. That is a positive step and will help to alleviate some of the difficulties. However, I urge her to look again at the overall position on fathers' rights. Penalising all fathers because of a minority, and thereby penalising their children in turn, is wrong.
Will the Minister re-examine the proposals for a register of guardianship agreements? She has indicated her intention to consider initiating a pilot scheme, which is welcome. I note her concern about the red tape that might be involved in a compulsory national system, but I do not expect it would be overly cumbersome. It is important that there be as much clarity as possible in family law and that we keep these issues out of the courts. There will be saving in terms of court time if we can ensure documents are properly recorded on a national register in the first instance.
In regard to assisted human reproduction, I welcome the increased clarity in respect of parentage for children born after the Bill comes into effect. It is unfortunate that so many children have been born in the past ten years in the absence of our dealing with this issue. What is contained in the Bill is a positive step forward. I also welcome the decision to outlaw anonymous sperm donations. It is extremely important that all children have their right to their identity vindicated. We have had difficulties in this regard, as discussed here previously. Senator Jillian van Turnhout and I are trying to address those issues as they relate to adopted persons in legislation we will bring forward. It is vital that we do not inflict the same hardship and pain on children born through assisted human reproduction. Some of the clinics have claimed the restrictions will lead to a decrease in donations. My response to that is, "So what?". The primary interest here must be the rights of the child, and children are entitled to know the identity of their biological parents. If it is the case that people seek to circumvent the restrictions by travelling to other European countries, then we need to address the issue at a European level. I would like to see all the countries that have signed the European Convention on Human Rights honouring the protection it provides for family life, in Article 8, by agreeing collectively to outlaw anonymous donation. This should be dealt with as a human rights issue.
The assisted human reproduction provisions do not go far enough in providing protection for children conceived in this way. I understand that under the first draft of the Bill, as brought forward by the former Minister, Deputy Alan Shatter, all donor-conceived children would automatically have had their intentional parents recognised as their legal parents. Under the current provisions, children conceived in Irish fertility clinics with the assistance of donor sperm will automatically have their intentional parents legally recognised. Those conceived in foreign fertility clinics or in Irish clinics prior to the enactment of the Bill with the assistance of donor sperm will have the opportunity for a court to set out the situation, but only if the identity of the donor is unknown to the intentional parents. Children conceived with known donor sperm, whether in a clinic or outside a clinic, are completely excluded from any opportunity to have their intentional parents legally recognised. That is problematic. All children should have a right to their identity and I urge the Minister to reconsider the matter.
I also have concerns regarding the adequacy of the information that is being collected about donors. I would like to see more information included on the register, including the type of medical information that is extremely important to the individual. People conceived through assisted human reproduction should have more access to non-identifying information about the donor, which could be helpful to them as they grow up. As I said, the lack of retrospective rights for those born before the legislation comes into effect is a cause for concern. The Minister indicated that in some circumstances, a Minister may refuse to release information about the donor to his or her son or daughter. The courts can look at this, we are told, but I am strongly of the view that the Bill should set out the criteria that will be considered. There is reference to well-being as a standard but it is not clear what exactly that means. It is a very important right to know one's identity and we should be clear on these matters.
Another cause for concern is the lack of provision for step parent adoption. The Minister indicated that the Minister for Health will look at that issue in due course, but it is something we expected to be addressed in this Bill. While I understand why the surrogacy provisions were taken out of the legislation, I am concerned the issue might not be dealt with in the lifetime of the Government. We have children who do not know where they stand because they were born through surrogacy. That issue has been considered in the courts but, as it stands, it is all up in the air.
Finally, if this legislation is to be as child centred and positive as intended, there is an urgent need to reform the family law courts. As Dr. Geoffrey Shannon said at the conference the Minister and I recently attended, there is no point in having Rolls Royce legislation if we do not have the machinery to enforce it. I urge the Minister to make that a priority.