Seanad debates

Tuesday, 24 March 2015

Children and Family Relationships Bill 2015: Second Stage


12:00 pm

Photo of Marie MoloneyMarie Moloney (Labour) | Oireachtas source

I commend the Minister on bringing forward this long-awaited, groundbreaking and progressive reform of family law legislation. I believe this Bill will ensure the safety and security of children and it is a huge step forward. I thank the Minister's officials for meeting us in advance of this Bill. The legislation is very detailed and comprehensive and I note how many other pieces of legislation it impacts upon, such as the Succession Act, the Family Law (Maintenance of Spouses and Children) Act, the Status of Children Act, the Family Law Act, the Civil Registration Act, the Passports Act and the Adoption Act. One can imagine the amount of work and time the Minister and her officials have put into this. Once again I congratulate the Minister on bringing the Bill forward.

There are some very welcome measures in the legislation, such as the provision for cohabiting couples to be able to adopt jointly, the provision for same-sex couples to be able to adopt, and the provision to appoint as a guardian a relative or a grandparent in the case of illness or serious injury. I discussed this last point with the Minister's officials at one stage. For example, if, God forbid, both parents were killed in a car crash, there would be a need to appoint a guardian. If both sets of grandparents come forward and wish to file for guardianship, I guess the matter would have to end up in the courts. I believe many things will end up in the courts with regard to guardianship under this legislation.

I particularly welcome the provision for the child's voice to be heard, which is very important. There are very important issues affecting the child's life but the child might not have a say in regard to guardianship, custody or access. This is a very important point for children who are of age. Obviously, if the child is too young and cannot make that decision, it would be different. As children get older, however, they are well able to make the decision as to who they would like to live with, who has had the most impact on their lives and who has been involved in their lives as they have been growing up.In Ireland the unspoken gender roles in child rearing and the unspoken thought that children are always better off with mothers have a bearing on present family law. It is a right of children to be looked after by their parents. Legal parenthood lies in the idea that genetic parents are the parents of the child. In the past there has been a change in the concept of a family. Our views of the nuclear family are no longer the only socially accepted structure. Families have been reconstituted where single parenthood, having unmarried parents and growing up with parents of the same sex has become more common. If we ask ourselves who are the parents of a child, the quickest response will always be that he or she is the child of Mrs. so and so. Automatically we think that the birth mother is the mother of the child. Parentry on the other hand is viewed as intent, based on marriage. We are bound to the idea of marriage as proof of parentry where there is an assumption that the man to whom the woman is married is the biological father of her children. Our traditional view of parentry is that this situation is easier to establish.

A section in Part 4 of the Bill provides that an unmarried father can automatically be the child's legal parent provided he is cohabiting with the mother of the child for 12 consecutive months. Under the Icelandic children's legislation, a man who is a registered cohabitee with the woman who gave birth is automatically considered as the father. I have grave concerns about unmarried fathers and non-cohabiting fathers who play an important role in the child's life and want to become a legal guardian. Often the courts come down very hard on fathers, a separated father or an unmarried father. Many unmarried or separated fathers find it very difficult in the courts to get access to their children. The judge always seems to be intent on making sure they pay maintenance but when it comes to custody of or access to the children, they come down very hard on the father. I have had many cases where a father came to me saying he did not get a chance to speak in the court as the judge did not seem to want to listen. He is willing and able to help rear his child even though he is not in a relationship with the child's mother. There is many a good father out there. We all know about those who are reckless and feckless, for want of a better word, where after the birth of the child they do not pay maintenance and do not want to have anything to do with the child. While there are many of those there are also the good fathers who seem to be overlooked. I have a concern about those people.

In her contribution the Minister outlined a provision whereby a biological father when he is being registered as the father can become a guardian. The provision also provides for a step-parent who has been cohabiting for not less than three years to be given the right to become a guardian also. Who will have most rights? Will it be the biological father or the step-father when it comes to the court? We need to focus in on that issue? Are we going back to a situation where the child, if old enough, will have a say and determine with whom he or she would like to live?

The other issue I wish to raise concerns donors. I have met two people who have become donors. One is a family member who has given her eggs to her sister who has given birth to a beautiful baby girl. The reason the donors approached me was that they wanted to know what legal safeguards are in place for them. Does the child conceived by the donor egg have rights to inheritance? Is the issue open to legal challenge? Will the child, as an adult, take a case to say he or she is the genetic child of a particular person? I agree that they should be registered in the donor conceived person register because everybody has a right to their medical history. Given that Ireland is a very small place, people can meet up and marry and may find out that there is a relationship between them if they do not know their identity. In the debate on the adoption Bill we discussed the right to medical records of the family. I agree with the proposal to have a register.

While we have not dealt with the issue of surrogacy, there should be a clear delineation of responsibilities for the parents and the surrogate. The behaviour of a mother is a biological and instinctual process. What happens if the surrogate mother is driven by the biological process associated with the pregnancy to care and support for her child and is emotionally unable to give the child up? It is important to recognise that these impulses are an inherent part of the mothering process and the ability to meet the contractual obligation may not be accepted in a rational matter.

There is much more I could say. There are many positive aspects to this Bill which I welcome and I will support it through the different Stages. I congratulate the Minister on bringing it forward and I hope it will pass easily.


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