Paul Kehoe (Wexford, Fine Gael)
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Question 244: To ask the Minister for Justice, Equality and Law Reform the rights which fathers have in seeking sole custody or full time care of a child who has been physically and emotionally abused by their mother; if he plans to make changes to family law to ensure equal rights in terms of caring for children in the case of fathers; and if he will make a statement on the matter. [15672/05]

Michael McDowell (Dublin South East, Progressive Democrats)
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In a case of alleged physical and emotional abuse by the mother of a child, it is open to the father to apply to the court for custody of the child. It is also open to a father to apply to the court, under the Domestic Violence Act 1996 as amended by the Domestic Violence (Amendment) Act 2002, for a barring order or a protection order against the mother.

Married parents living together are joint guardians and custodians of their child. If they separate, the custody is normally with the parent with whom the child primarily resides but the other parent still remains a guardian. Under section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, an unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act, as inserted by section 4 of the Children Act 1997, conferring on the father the status of guardian. Under section 11 of the 1964 Act, a guardian may apply to the court for its direction on any question affecting the welfare of the child —"welfare" in relation to a child is defined in section 2 of the Act of 1964, by way of amendment in the Act of 1997, and comprises the religious, moral, intellectual, physical and social welfare of the child. Examples of such proceedings are applications for custody and access orders. In making such orders and in determining, say, whether an unmarried father should be appointed guardian, the court has to regard the welfare of the child as the first and paramount consideration. Where appropriate and practicable, the court in making any order takes into account the child's wishes in the matter having regard to the age and understanding of the child. In considering whether to make an order under section 6A or 11 the court is directed — under provision in the Act of 1997 — to have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.

The Act of 1964, by way of amendment in the Act of 1997, encourages parties to a dispute in relation to a child to agree on the custody or guardianship of or access to a child. Prior to institution of proceedings the legal representatives of the parties must discuss with them the possibility of agreement. The court may adjourn any proceedings to assist agreement between the parties.

These legislative provisions are extensive. They permit the court in cases of disagreement to decide on arrangements for the child's care and upbringing having regard to the child's best interests. I am aware of the concerns of non-custodial parents regarding custody and access rights and the issue of enforcement. Operation of the law in this whole area is being kept under review in my Department.