Seanad debates

Tuesday, 24 March 2015

Children and Family Relationships Bill 2015: Second Stage


12:00 pm

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

Gabhaim buíochas leis an Aire faoin am atá sí ag tabhairt dúinn inniu. Tá mé ag éisteacht go cúramach le gach rud atá le rá aici. Tá Sinn Féin ag tacú leis an mBille seo inniu mar go bhfeicfimid go bhfuil sé thar am go dtabharfar aitheantas mar is cuí do na leaganacha éagsúla clainne atá sa Stát seo.

Sinn Féin will support the Bill, and we commend the Minister on getting it this far. I challenge the attempts by some to label the Bill as the "gay adoption Bill". This does a mischievous disservice to what is a pretty comprehensive overhaul of family law. The Children and Family Relationships Bill simply ensures that in the case of same-sex relationships, both parents of the child have guardianship rights.

I am pleased that the Bill recognises the reality of the diverse family types we have in Ireland today. Through the Bill we need to ensure that a child's right to family life is protected. As has been stated, Bunreacht na hÉireann places great importance on the family, defining it in Article 41 as "the natural primary and fundamental unit group of Society". However, the courts have interpreted the constitutional family as referring only to marital families. Irish law currently does not provide adequate legal structures protecting the right to family life for the significant number of children in non-marital families, and this is simply not acceptable.Thankfully, this Bill means children living in non-marital and non-traditional families will now be in a position to enjoy a legal relationship with the person who provides them with day-to-day parental care, whoever that may be. Sinn Féin is also pleased the Bill contains a comprehensive definition of the best interests principle in line with Article 3 of the United Nations Charter on the Rights of the Child. This is most welcome in terms of providing guidance for the Judiciary and promotes consistency in application. I also welcome that the Bill will ensure a child's voice is heard and considered when important life-changing decisions are made in guardianship, custody and access.

I am, however, disappointed that several measures do not feature in the Bill. Sinn Féin would like to see the establishment of a central register for statutory declarations for joint guardianship. We also support the establishment of a comprehensive court welfare service to support the roll-out of this legislation. I have a concern regarding the cohabitation section where a father living with the child's mother for 12 consecutive months, including at least three months with the mother and the child following the child's birth, will automatically become a guardian. As the Minister knows, in some cases this is simply not possible. Sometimes mothers are still living with their parents. It is not always appropriate or indeed possible for the father to live there also. This is often the case with teenage or unplanned pregnancies. It does not always mean the father is in any way shirking his responsibilities or not stepping up. The circumstances are just not in his favour. There is nothing in the Bill for unmarried fathers aside from this cohabiting for the requisite amount of time.

Will the courts be sufficiently equipped and supported to hear very complex family law cases? How will low-income families, who do not qualify for legal aid, be able to use the courts? I have some real concerns about how aspects of the Bill can really be implemented given the serious resource restrictions that exist, as well as the lack of consistency and specialist knowledge that can characterise some family law proceedings and the requirement to hear children's voices. I am generally concerned about the way family law is being dealt with by the current court system, a system in serious need of overhaul. The days of children and parents huddled into packed court waiting rooms, along with other citizens there for civil cases, have to end. We need a dedicated and fully resourced family law court system backed up by a comprehensive court welfare service.

The long awaited publication of the mediation Bill and progression through these Houses would be of immense value to families enduring separation and divorce, not just in terms of legal costs. The ability to resolve the issues in dispute in a non-adversarial environment rather than the blunt instrument of an adversarial court room has to be encouraged and facilitated better than currently allowed for. While mediation is available, too few families are availing of this option. I believe two persons separating should be required to attend an information session on the mediation process before their case can be accepted by a registrar or heard by a court.

I also have concerns about the public's perceptions of rights in this area. In our experience many parents mistakenly believe having a father's name on a birth certificate gives him guardianship rights. This misinformation has major adverse consequences for children. Will the Minister allocate resources to ensure more people are made aware of their guardianship rights? We need to make this information as accessible and widely available as possible.

Sections 21 and 22 outline the procedures that will apply where a second parent must be able to demonstrate that she or he knew of the donor-assisted human reproduction, DAHR, procedure and he or she must also be able to demonstrate that he or she undertook to care for and to exercise responsibilities towards any child born as a result of the procedure as though he or she were a parent of the child. The Minister stated the donor must be unknown to the birth mother and the intending parents and must not, for instance, be a friend of the intending parents. Will the Minister outline the legal thinking behind this? I have a case that pertains to this where the father was infertile and the couple took a sperm donation outside of a clinical situation from a friend who fully consented to this happening. They have a beautiful baby now and are very concerned that his rights will not be recognised under this legislation. Will the Minister clarify if such cases will be covered by the legislation? Ag an bpointe seo, ba mhaith liom a rá go bhfuilimid ag tacú leis an reachtaíocht seo. Fáiltímid go mór roimhe go bhfuil sé ag tabhairt aitheantais faoi dheireadh don iliomad cineál clann atá in Éirinn i láthair na huaire agus na riachtanais éagsúla atá inár sochaí. Mar athair a bhfuil iníon agam ó caidreamh den chineál sin sular phós mé, cuirim fáilte roimh an reachtaíocht seo, a thugann soiléireacht i bhfad níos fearr do na cásanna éagsúla.


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