Seanad debates
Monday, 30 March 2015
Children and Family Relationships Bill 2015: Report and Final Stages
2:30 pm
Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source
Amendments Nos. 68 and 69 would set out a rebuttable presumption of guardianship in favour of a non-marital father. I thank Senator Averil Power for proposing these interesting and thought-provoking provisions. I fully understand her rationale for doing so and know that she is keen to provide an early legislative response to address the issues of non-marital fathers. Despite this, I am not in a position to accept the amendments because we need to consider the position further and carry out wider consultation with key organisations and professionals with expertise on this issue.
I have a great deal of sympathy for the position taken. Depending on the outcome of the planned review and discussions with other Departments, child care professionals and representative organisations, these proposals could well form part of a useful template for further legislation. However, even if the outcome of these further consultations and policy analysis, to which I have made a clear commitment, is strongly in favour of developing a presumption in favour of guardianship, the proposals will need some further development and refinement. For example, while the father's guardianship may be rebutted by means of a statutory declaration, it is not clear to whom the statutory declaration must be given in order to activate the rebuttal or what evidence must accompany it. Nor is it clear if a father who does not wish to be involved can himself repudiate guardianship. The current mechanisms for statutory declarations enable the father to acquire guardianship precisely because both parents consent. The initiative I brought forward on Report Stage in the Dáil will enable that process to be followed easily when the parents register the birth of the child.
I am also concerned that the proposal would put the onus on a mother, potentially in a vulnerable position, to go through the court system to prevent the presumption from taking effect. Pending the introduction of the family court, a 60 day time limit may be very short for a mother in which to rebut the presumption of the father's guardianship through the courts. Also, the proposal is not linked with the timeframe for birth registration of three months. Depending on the results of the review and subject to clarifying this issue further, the amendments could be a valuable model on which to base future legislation. I am aware of the time the Senator has spent on and her interest in this issue, but I am not in a position to accept the amendments at this time. However, I am committed to further developments in this area and a stakeholder meeting on the issues involved. I hope the Senator will get involved in this because there is work to be done. The presumption of guardianship could be developed, but there is significant work to be done on it. When I examined this area, it was clear that there were issues that needed to be resolved before I could proceed with this issue in the legislation.
Amendment No. 70 would set out a presumption that it was in the best interests of a child for his or her parents to be appointed as a guardian. I have some brief comments to make on that issue. First, there is a de factopresumption by the courts that a father applying for guardianship will be so appointed. The most recent figures available from the District Court, for example, indicate that it refused to appoint a father as a guardian in only approximately 3% of cases. That is a low figure. Second, the best interest principle which I am setting out for the first time in legislation for the courts to consider includes the benefits for the child in having a meaningful, ongoing relationship with each of his or her parents. This will, naturally, include the parents concerned having the rights and responsibilities to exercise their parental roles fully. However, it may be going too far to set out a rebuttable presumption that parent guardianship is in the child's best interests. Obviously, it could fetter the court's ability to impose a proper best interest test and restrict its capacity to take into account the views of the child in the matter. Again, I sympathise with the spirit of the Senator's proposal, but there is a risk of unintended consequences in the small minority of cases in which the court decides, presumably for good and cogent reasons, that guardianship is not in the child's best interests and, perhaps more importantly, for the court's ability to consider the child's own views in the matter.
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