Paul Kehoe (Wexford, Fine Gael)
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Question 200: To ask the Minister for Justice, Equality and Law Reform the reason sole custody is awarded; if the current law discriminates against men; and if he will make a statement on the matter. [17649/05]

Michael McDowell (Dublin South East, Progressive Democrats)
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When the father and mother of a child cannot agree on custody issues, it becomes a matter for the court to decide. Married parents living together are joint guardians and custodians of their child. If they separate, 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, including the question of custody. In making such orders and in determining, for example, whether an unmarried father should be appointed guardian, the court must consider 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 relating 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. The legislative provisions are extensive and 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 fathers about custody rights and the operation of the law in this area is being kept under review in my Department.