Averil Power (Fianna Fail) | Oireachtas source

I move amendment No. 68:

In page 40, to delete lines 8 and 9 and substitute the following:“(e) the father is a guardian of the child by virtue of section 6D, or

(f) the circumstances set out in subsection (4B) of this section apply;”,”.

These amendments are designed to improve the position of the unmarried father. I discussed my concerns on Second Stage and on Committee Stage. The amendments would provide a rebuttable presumption of guardianship for all unmarried fathers. As I said previously in the debate, we should be trying to do everything possible to encourage all fathers to be as involved as possible in their children's lives, provided that this is in the best interests of the child concerned. This country has a terrible history of excluding unmarried fathers. They have no constitutional rights and they have had little or no legal rights to date. I appreciate that the Bill improves on that situation somewhat by providing for guardianship rights for unmarried fathers where they have been cohabiting with the child's mother for 12 months, including for three months after the birth of the child. I appreciate that this is a significant step, but I do not think it is far enough. I am concerned in particular that the focus in those provisions is on the father's relationship with the child's mother and not on the relationship between father and child, which, in my view, should be the key consideration. If a father is prepared to be involved in his child's life, to accept both the rights and the responsibilities that come with fatherhood, then we should facilitate and encourage that, regardless of whether his relationship with the child's mother is good or not. All parents should work together in the interests of their children. However, I accept that concerns have been raised with me by some groups around giving guardianship rights to all fathers because, in a minority of cases, there may be an issue if the child was conceived through rape or if there are concerns about the safety of the child or the mother. In those situations it would not be right for the father to have automatic guardianship. However, these comprise a very small minority of cases and there are ways of dealing with them. Rather than having a blanket exclusion of all unmarried fathers - unless they are cohabiting with the mothers and thereby fit the criterion in this Bill - I think there are more appropriate ways of providing rebuttable presumption of guardianship rights to all unmarried fathers, with provisions to deal with circumstances of rape and safety issues.

My amendments would introduce a rebuttable presumption that all unmarried fathers are entitled to guardianship rights. However, those rights would not kick in until 60 days after the birth of the child. During that 60-day period the mother would have an opportunity to lodge an objection to the District Court outlining her objections to the father being given guardianship rights, either on the basis that the child was conceived through rape or that a serious safety issue arises. If the mother makes such an objection then the process would stop and the father would not then have automatic guardianship rights in respect of that child. If the father wishes to challenge that ruling he would then have to challenge that ruling in court, issue a defence against those charges and prove that it is in the child's best interests that he be given guardianship. A small number of cases would have to go to court, but this would be a significant improvement on the current situation whereby, if the mother does not provide the father with a statutory declaration of guardianship or if it is not provided by the court, or if she does not provide a statutory declaration, then the father has to go to court to achieve his guardianship rights. This Bill only provides that those fathers who have been living with the mother have rights. My amendments would provide significant safeguards and reassurances in the minority of cases where it is not in the child's best interests for the father to be involved.

I have put a lot of thought and consideration into this issue, which I first raised in the House two years ago. I have been consulting with groups such as Treoir, other lone parent groups and other interest groups in an effort to present a position that is reasonable. I have examined the situation in other countries such as in the UK. I have read the recommendations of the Law Reform Commission, which included an automatic presumption of guardianship for all unmarried fathers. The wording of the amendment was carefully drafted by a family law expert with a view to making sure that it provides all the adequate safeguards and it is robustly worded. I would appreciate the Minister's comments on the amendment before I decide whether to press the amendment.