Wednesday, 17 September 2014
Civil Registration (Amendment) Bill 2014: Committee Stage
I wish him well in his new-found position and hope he will succeed in the short time he has left. It is to be hoped he will be one of the Ministers who come to the House who are very receptive to amendments and will use a degree of political discretion and independence in making decisions with regard to some issues.
I welcome the provision that a mother, when she attends alone, must provide information as to the name and contact details of the father, and that that must be included in the birth certificate. There is a provision for exceptional circumstances where this will not apply. I would be interested in hearing some examples from the Minister of State of the type of exceptions he envisages where an application would not include information on the father.
I also note that where the mother furnishes evidence in a statutory declaration that the father is not the father of the child, the registrar is then obliged to contact the father of the child. I come from a disposition where I feel every child has the right to know who his or her mother and father are. It is often the case that only later in life it will become a very important issue for people, and many television programmes now specialise in tracing the parents of children who were adopted or whatever else and did not know who their parents were. It is a step in the right direction.
I can understand why a mother may not wish to have the name of the father on a birth certificate. The mother may have rights but we have to balance them with the rights of the child. Precedence should be given to the rights of the child because, unless the State defends and protects him or her, he or she is not in a position to do it. Is there any provision where a conflict arises as to the rights of a child for DNA evidence to be provided? The Minister of State might comment on that.
I wish to raise an important issue. We now have a lot of debate about surrogacy and similar matters. There has been a practice over quite a number of years in other jurisdictions whereby people, women in particular, have availed of sperm donors. A well-known activist - I understand her name is Joanna Rose - gave talks here and in Britain and has campaigned strenuously for the rights of children conceived through sperm donation to be able to access the names and health records of those who donated sperm in order that they could be born. Her story is illustrative. She spent a considerable number of years trying to track down the sperm donor involved in her conception. Eventually, after great difficulty, she discovered who her father was. It transpired that he was a student who was obviously paid to donate his sperm and to her alarm she discovered she had approximately 300 brothers and sisters. The consequences of this from a societal point of view are considerable. I do not know if the new provision in the registration of births will capture that kind of scenario. I would like to think that it would because it is a major issue.
There was a case in Britain in the past 12 to 18 months where a couple who married subsequently discovered they were brother and sister. Now is the time for us to consider these types of eventualities. I do not know if this Bill has considered encompassing the scope of the issues I have raised, but if it has not, some effort should be made to do so. I am interested in hearing the response of the Minister of State.
I echo the warm welcome offered by Senator Walsh to the Minister of State. I wish him well and congratulate him on his term in office.
I am particularly pleased that Senator Walsh has raised this issue because it led to considerable debate with the Tánaiste on Second Stage. I was not at all happy with one of the exemptions which relates to the proposed amendment to section 22 which states that:
(1D) A mother may furnish to a registrar a statutory declaration made by her and relied on by her to satisfy the registrar that one or more than one of the following compelling reasons exists so as to exempt her from her duty to furnish to the registrar required particulars in so far as they relate to the father of the child:I can understand circumstances in which that may be the case. However, there seems to be no onus whatsoever on the State to assist in any way in establishing the identity of the father. Senator Walsh referred to DNA. There could be a range of possibilities which the mother could consider. A mother may not be absolutely sure which individual is the father of her child but modern technology and DNA could narrow the search.
(a) she does not know the identity of the father of the child;
Of much more relevance is another exemption where the mother does not know the whereabouts of the father of the child.
This seems suspicious as it leaves open a situation where a child will have no rights or recourse, to paraphrase Senator Walsh's concerns. Had they such rights they could apply them in later life. On page 10, in section 6(1)(c)(iii), the principal Act is amended to include the following paragraph:
Correct me if I am wrong but it seems to me that this means when a child has reached 18 years of age he or she may have discovered new information leading to the identity of the father.
if the mother, person, or the child to whom the registration relates, if he or she has attained the age of 18 years and so requests the registrar in writing and produces to him or her a document purporting to be a declaration made under section 35 of the Status of Children Act 1987 or an order made by a court in proceedings referred to in section 45 of that Act and to be certified by or on behalf of the court to be a true copy of the declaration or order that the person is the father of the child.
I appreciate that many fail-safe issues are built into this section - for example, if the registrar is not satisfied, having considered the statutory declaration furnished by the mother, the mother has a right of appeal to the superintendent registrar. I appreciate the building blocks that have been inserted and give the impression that every effort has been made to ensure the identity of the father is on the birth certificate. I am concerned about the issue of not knowing the whereabouts of the father of the child. Why has the onus been left on the mother? Surely the State, in framing the legislation, has some responsibility to help. After all, legal aid is provided to those who cannot afford legal representation. I am not suggesting this area can be revisited and the Act changed but I am interested in hearing the comments of the Minister of State on this aspect of the exemptions.
General concerns relating to the looseness of the exemptions were raised on Second Stage. This does not relate to mothers as a mother could say she knows who the father is but does not know where he is. Imagine a child became aware that this was the reason his or her mother made a statutory declaration and was exempt from including the father's name on the birth certificate. This could be a matter of some distress to the child, adolescent or adult, given that in such a scenario the mother knows who the father is. The child might know the name of his or her father but it would not be on the birth certificate. This is abstract and I do not expect the Minister of State to do anything about it but I am interested in his observations on the context in which these subsections were framed.
The points raised by Senator Walsh on reproduction are not framed in this Bill because this is the Civil Registration (Amendment) Bill and those points fall under the remit of the Department of Justice and Equality and relate to the setting of policy. They are interesting points and I thank the Senator for raising them - they could be raised when policy is being developed.
I thank Senator Mooney for his good wishes as we have known each other for some time - I was a good friend of his brother.
There are exceptional circumstances and these are framed in the legislation with the protection of the child in mind. Some of the examples are abstract, such as assisting in tracking down a father when a mother cannot give sufficient details. I will consider the Senator's points and return to him in the next week with a detailed answer. I am not trying to avoid the questions.
Section 9 refers to the failure to agree a surname and the subsequent registration of a surname. It is welcome that this section is in the Bill but, having read the Bill and discussed it with some groups, I feel time limits might apply to registering a child's surname. I am raising this point now in case I table an amendment on Report Stage. A child could be registered with one name at a football club and at a school with another. This could lead to confusion, particularly for the child involved, in terms of names and identity. Could the State consider a protocol on double-barrel surnames, as other states have? Where both parents' surnames are taken will the maternal or paternal name come first? I raise this today so the State might consider it - as a keen genealogist I would welcome such a measure. When tracing family lines it is very helpful when there are clear rules on such matters. I am raising this on Committee Stage in case I table an amendment on Report Stage.
I welcome the Minister of State, Deputy Kevin Humphreys, to the House and I know he is off to a running start. Over the summer he visited Intreo offices all over the country and came to grips with his brief at the Department of Social and Family Affairs. I never understood why there was previously no Minister of State at that Department, given the workload. I agree with Senator van Turnhout on section 9. I know of many cases where couples registered the name of a child's father as the child's surname but later split up. In such circumstances, if the father leaves, the mother's child will have a different surname from her and any children she has subsequently. Often mothers in such circumstances change the name of the child unofficially to the mother's maiden name. A passport will have the child's official name but schools and GAA clubs may have a different one. This can lead to great confusion and the issue should be clarified so that a child has one surname only, be it the mother's or father's.
I thank Senator Moloney for the warning. Only when discussing this today did I remember that I knew my childhood next-door neighbour as Mr. O'Toole but, on his death, learned his name was actually John McCormack. In case people are concerned, I have not used real names. Everyone knew him by his wife's name. When I ran for election in 1999 I introduced myself as Humphreys but everyone thought I was a Davis as I am Kathleen Davis's son.
There has always been confusion on surnames and the section aims to deal with this. I accept the comments made and it can be a complicated area but we must lay down a mechanism to deal with surnames.
I move amendment No. 2:
An addition to that amendment would be that the Bill would abolish the definition of stillbirth and replace it with a definition of unborn children to include stillbirths, to allow for registration in the register of deaths.
In page 21, between lines 29 and 30, to insert the following:“(3) Where the pregnant mother of an unborn child dies and that death results in the death of the unborn child, the Superintendent Registrar in whose registration area where the death occurred, must register the death of that unborn child.”.”.
The Minister of State will be familiar with the general issue, as are many here. There have been many instances when a pregnant woman has died or been tragically killed in an accident. In some instances the baby survives and in others it does not. In those sad circumstances where mother and baby expire, we want some way that the family can ensure the baby’s life is recognised on the death certificate. This has been discussed in the Lower House and there have been parliamentary questions on the issue. Last February the Tánaiste and Minister for Social Protection said in a reply:
While understanding that the loss this family suffered is a tragic one it would not be workable to establish and maintain a separate register of deaths in such cases. It is not intended, therefore, to amend the Civil Registration Act, 2004 to allow for the registration of deaths without a medical certificate or a coroner’s certificate stating the cause of death.Since February a specific case, which clearly highlights the need for this amendment, has been brought to the Minister’s attention and she has met the grandfather and other relatives of a child who died in such circumstances. I know she has seen a photograph of the child which the Minister of State also has seen. In this case a young mother was tragically killed in an accident and her daughter of seven months gestation was dead when taken from her mother’s body. The baby’s name was Molly Enright and the coroner issued a certificate of fact of death.
I and others in the Oireachtas have been particularly touched by this case and the need to have it addressed. The response I received from the Registrar General states that when a death occurs, it is registered on foot of a certificate of cause of death supplied by a medical practitioner. Where a death is referred to a coroner, the death is registered by a registrar on foot of a coroner’s certificate. He said that the coroner’s certificate, a copy of which we had sent to him, was an interim certificate of the fact of death. It is interesting that the certificate does not in any way mention that it is interim. It is also interesting that a certificate of cause of death supplied by a medical practitioner would be sufficient to have the death registered. The certificate of fact of death which the Registrar General describes as interim does give the cause of death. There may a technical impediment but not a substantive one to registering these births. The baby’s grandfather, David Walsh and her aunt, Hilary, are here and they are campaigning strongly. They feel this is an injustice to the memory of Molly who, unfortunately, was involved in this accident when she was in her mother’s womb.
Section 28 of the Civil Registration Act 2004, which we are amending here, provides for the registration of stillbirth and the Act states “ 'stillborn child' means a child who, at birth, weighs not less than 500 grammes or has a gestational age of not less than 24 weeks and shows no sign of life”. I am not sure about this baby’s weight but she meets the other criteria because she had reached a gestational age of 29 weeks or seven months. I appeal strongly to the Minister of State to consider these amendments. They are tabled for a good reason. I am open to the Minister of State’s views on the parameters around them. These very sad circumstances, particularly where there is evidence of the baby’s having been taken from the mother when she was dead, are akin to a stillbirth. It is hard to see a major difference other than the cause of death. That is why these two amendments have been tabled. I look forward to hearing the Minister of State’s response and I hope he can give them serious consideration.
Today the child’s grandfather and his daughter and sister-in-law, who are with him, spoke to the Tánaiste and Minister for Social Protection who was sympathetic and said she would take another look at this case. I encourage the Minister of State to make a positive response and I hope we can agree to include either the wording I have tabled or another wording that better fits the legal requirement. I urge the Minister of State and the other side of the House to subscribe to the principle behind the amendment.
I thank the Senator and I sympathise with the family involved. Deputy Ciara Conway also spoke to me today on this matter. The circumstances are very tragic. I do not want to say anything during this debate that would add to the family’s distress. The photograph the Senator showed me before I came into the House will stay with me for a long time. I can well understand the family’s distress. While they will never forget, I hope it gets a bit easier for them as the days go by.
I do not propose to accept the amendment. The procedure governing the registration of deaths is provided for under Part 5 of the Civil Registration Act 2004 and under section 41 where a death is referred to a coroner and the death is registered by a registrar on foot of a certificate provided by the coroner containing the required particulars of the death. The registrar is a lay person. I do not want to get too tied up in the wording.
My Department has also brought this case to the attention of the Department of Justice and Equality. Coroners are independent but the service comes under the remit of that Department. The Senator has written to the Department which will reply shortly.
I will not accept amendment No. 3. The registration of stillbirths was first provided for in the Stillbirths Registration Act 1994. The definition of a stillbirth contained in the Act was carried forward to the Civil Registration Act 2004 and the registration of stillbirths is provided for in section 28 of that Act. The Senator read out the definition and I do not propose to read it out again because I do not want to create any distress for anybody here today. I will meet the Senator and speak to him again but I am not proposing to accept the amendments.
I respect the tone of the Minister of State's response. I commend him for being sympathetic to the family and showing empathy with them. Everybody in the House would send their good wishes to anybody in these circumstances. We hope time will help the Enright and Walsh families to heal their sense of loss. Nothing would be of more help in that process than if they were to be able to register the death of this child.
I have heard what the Minister of State is saying, just as the family heard the Tánaiste's response today. I am happy to accept the Minister of State's invitation to sit down and speak with him. Would he be prepared to consider this matter in advance of Report Stage next Wednesday? If so, I will withdraw these amendments and reintroduce them at that Stage.
The Minister of State has relied considerably on the correspondence and on the current statutory position under Part V. Obviously, I accept that he has to deal with the legislation as it stands. On a practical basis, what is the difference between a death in this situation and a stillbirth? I cannot see any substantive difference. We should be given a reason for treating an unfortunate death of this nature differently when it happens within the parameters of what is set out to govern stillbirths.
I appreciate I had not raised this issue with the Minister of State before we discussed it in the lobby before the start of this debate. I would like an opportunity to continue that conversation. I hope we can have that discussion before next Wednesday. I hope the Minister of State will be in a receptive mood and prepared to accept these amendments when we come back next Wednesday. I cannot see any ramifications or implications within the amendments, other than that they will benefit this family and other families when similar situations occur in the future.
We are talking about cases in which there is a coroner's certificate that clearly sets out the cause of death and the fact of the death. That is more or less what is required to register deaths anyway, even if it is in a slightly different format. There is a compelling case to be made - that is all. Would the Minister of State be prepared to have that discussion between now and next Wednesday, when we will debate this again on Report Stage? I hope the Minister of State's view on these amendments might change in the meantime.
In case there is a sense that Senators on this side of the House are silent on the contribution made by my colleague, I would like to emphasise that we fully support this amendment. It seems to me from a reading of section 12 of the Bill that it would simply be a matter of a change of wording. Section 12 provides for cases in which "the death occurs during the first 7 days of life of a child born alive". All that is needed is a change in the wording. I fail to understand why there would be resistance to that, particularly in light of the information provided by Senator Walsh in this case, which sadly mirrors similar cases that will happen in the future. I hope there will not be many such cases.
I appreciate that the Minister of State is relatively new to this position. I understand from long experience in this House that new Ministers and Ministers of State tend to tread carefully when legislation is being processed in the Oireachtas. I do not mean to cast any reflection on the Minister of State when I say that. It is a natural reaction to ensure one does not make any mistakes or commit to something that is not feasible or legally possible. I would be exactly the same and I am sure everybody else would be.
I plead with the Minister of State to consider this. It seems that even though we are pushing against an open door on a personal basis, the Minister of State, wearing his ministerial hat, is somewhat resistant to Senator Walsh's argument. I feel there is merit in reflecting on the contribution he has made. Equally, there is merit in going back to the legal draftsman to look at the wording of this legislation. That would offer some crumb of comfort to the family that is immediately concerned about this, but also to other families involved as well. I do not wish to over-egg the pudding in this regard.
Cuirim fáilte roimh an Aire Stáit. Gabhaim comhghairdeas leis as a ardú céime. I do not wish to speak on the amendments per se. I simply want to say that Sinn Féin will be abstaining on them, while reserving the right to introduce amendments on Report Stage.
I thank both Senators for their good wishes. Go raibh míle maith agaibh. This is an important and detailed Bill. Of course I will tread carefully. There is a need to tread carefully. I want to be extremely sensitive to the family members who are here. I understand why Senator Walsh is probably being a little emotional. If one is a father, one cannot help being emotional when an amendment like this comes in. I would certainly be happy to sit down to examine the international comparisons. I do not want to give out a false ray of hope by suggesting I will change the position in response to the amendments that have been proposed. One of the international comparisons to which I refer is the WHO's recommendation about the way stillbirths should be defined. We can sit down and talk about that. I do not want to give Senator Walsh the impression that I will be amending the Bill in this respect. This is a very important Bill. We should be cautious. I accept that these amendments were not submitted until a relatively late stage. I discussed them briefly with the Senator. I will be quite happy to discuss them with him again over the coming week.
I recognise what the Minister of State is saying. His comments do not give me any comfort or confidence that he intends to accept these amendments. I ask him to approach this matter in an open-minded way, just as I will. I have not heard any valid reasons. We can discuss this privately between us. I am not looking for stillbirths to be redefined. That could be an issue with the WHO. I am looking specifically at the circumstances I have outlined, particularly in cases in which the coroner is able to issue a certificate. I accept that it will be an interim certificate. Such certificates are accepted in many other cases, including for social welfare purposes. I cannot see any compelling or reasonable argument explaining why this should not be done. I respect the Minister of State's position. I accept that these amendments were not submitted until Monday. I am happy to give some time. We might get together at a convenient time - perhaps next Tuesday, if that suits - to go through this issue. On that basis, I am happy to withdraw these amendments, with leave to re-enter them.
Government amendment No. 4: In page 23, between lines 29 and 30, to insert the following:“Amendment of section 45 of Principal Act14. Section 45 of the Principal Act is amended by the insertion of the following definition:“ 'place that is open to the public’ has the meaning given by section 51(2A);".".
Recently, there has been some uncertainty about the definition of a "place that is open to the public" with regard to where marriages and civil partnerships may take place. Legal advice has clarified that outdoor venues are not included under the current Act. The Department conducted a consultation process with the relevant stakeholders. The opinions put forward have been considered in the context of the drafting of these amendments, which provide a definition of a "place that is open to the public". They provide clarity about what constitutes a venue in which a marriage or civil partnership may take place. They provide for the following meaning of a "place that is open to the public", with regard to where a marriage ceremony or civil registration ceremony may take place:
In subsection (2) 'place that is open to the public' means—(a) a building that is open to the public, or
(b) a courtyard, garden, yard, field or piece of ground that is open to the public and lying near to and usually enjoyed with the building referred to in paragraph (a).
This technical amendment provides for section 66 to be amended so the reference to the “Minister for Health” is changed to the “Minister for Social Protection”.
Government amendment No. 23: In page 36, after line 14, to insert the following:“Amendment of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 31. Section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is amended by the insertion of the following subsections after subsection (1): “(1A) For the purposes of subsection (1), a legal relationship entered into in an embassy or diplomatic mission of a state under the laws of that state shall be deemed to have been entered into in that state. (1B) Subsection (1A) shall not apply to a legal relationship entered into in an embassy or diplomatic mission in the State on or after 1 January 2011.”.”.
I move amendment No. 24:
I thank the Minister’s officials for dealing with several issues I raised on Second Stage on this matter and for the comprehensive replies from them.
In page 36, after line 14, to insert the following:“Amendment of Adoption Act 2010
31. Section 89 of the Adoption Act 2010 is amended in subsection (2) to now read “A certificate referred to in subsection (1) must disclose that the person to whom the certificate relates is an adopted person.”.
This proposes an amendment to the Adoption Act 2010. I thank my colleagues, Senators Fiach Mac Conghail, Marie-Louise O'Donnell, Katherine Zappone and Mary Ann O'Brien, for supporting this amendment. I have been in contact with the Minister of State and his officials over the past several days on this matter. I thank them for their co-operation. I also want to thank Treoir which raised this issue with me, as well as other individuals.
Prior to the 2010 adoption legislation, an adopted person applying for a birth certificate would receive it from the adopted children’s register, clearly indicating he or she was adopted. In 2010, it was provided that the State may not disclose that somebody was adopted. While I accept we will discuss the right to identity when we debate the information and tracing legislation, the right to know one was adopted is absolutely core to the UN Convention on the Rights of the Child. Article 8 states:
States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.The time a child learns he or she is adopted should never be an issue; they should always know. It is a fact and they should grow up with knowing it, instead of adding any stigma to it. If the family of a 14 year old apply for his birth certificate for a passport application, for example, it will not appear on the certificate that he was adopted. What about the case of people who discover they were adopted through applying for their original birth certificate, however? It would be a failure on the part of the State that it covered up such a fact. There should be no stigma about adoption.
Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Why are we making it the case with this cover-up? We have a shameful enough past with adoption and we still have a long way to go in dealing with it. A child being adopted in Ireland today is still denied the right to his or her identity. We still have a closed adoption system. The situation for Philomena Lee is still in place and we still cover up. An adopted child has no right to ever know who his or her natural born parents are. We should, at the very least, give a signal from the civil registration legislation that an adopted child has the right to know his or her identity. There are many other reasons an adopted person needs to know his or her parents such as genetic medical conditions and so forth.
I have dealt with several cases since the 2010 Act came into place. It does not need to be in headlights. However, it is important the birth certificate lists that the parents listed are adopted parents in such cases. This anomaly must be addressed. I accept the original provision in the 2010 Act was introduced with good intentions but the unintended consequences were overlooked. It is important that adopted people know for sure if they were adopted. There must be some way to note it discreetly while asserting there is no stigma to being adopted.
I compliment Senator van Turnhout on the constructive manner in which she has dealt with this matter with my officials. While I do not propose to accept this amendment on this Stage, I will engage further with the Senator on it for Report Stage to ensure we do the right thing in this regard.