Joe Costello (Dublin Central, Labour)
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Question 36: To ask the Minister for Justice, Equality and Law Reform his plans to update the laws on guardianship in view of the changes in society in view of the fact that the principal legislation governing this area was enacted in 1964 and further in view of the findings of a judgment given in the High Court on 28 April 2010; and if he will make a statement on the matter. [28358/10]

Dermot Ahern (Louth, Fianna Fail)
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The provisions of the Guardianship of Children Act 1964 in relation to guardianship, custody of and access to children have been the subject of significant updating, both in 1987 and 1997. Under section 6 of the 1964 Act both the mother and father of children born within marriage are the joint guardians of their children. In relation to children born outside marriage, the mother is the sole guardian. Under section 6A of the 1964 Act, as inserted by section 12 of the Status of Children Act 1987, a non-marital 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 1964 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 directions as to custody and access. In addition, the section provides that the unmarried father of a child, even if he is not a guardian, may apply to the court for orders on custody and access. Section 3 of the Act provides that, in deciding on an application relating to the custody, guardianship or upbringing of a child, the court shall regard the welfare of the child as the first and paramount consideration.

Where appropriate and practicable, the court will also take into account the child's wishes in the matter having regard to the age and understanding of the child. In addition, the law now places an emphasis in terms of recognising the rights of the child to the society of both his or her father and mother: Section 11D of the 1964 Act (inserted by the Children Act 1997) obliges the court in proceedings relating to the welfare of a child to consider 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.

These legislative provisions, contained in the Guardianship of Children Acts 1964 to 1997, are comprehensive. 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.

In the High Court case concerning the abduction of children referred to by the Deputy (J. McB. v L.E. 2010 IEHC 123) it is of some significance that the Judge indicated that had the applicant made an application to our courts for guardianship or custody orders the outcome of the case could well have been radically different.

As part of its Third Programme of Law Reform 2008-2014, the Law Reform Commission published a consultation paper 'Legal Aspects of Family Relationships', in September 2009. In the consultation paper, the Commission makes provisional recommendations on the rights and duties of fathers in relation to guardianship, custody of and access to their children and on the rights and duties of extended family members including grandparents and step-parents. The Commission has invited submissions on these issues as part of its consultation process. In particular, the Commission has invited submissions as to whether it would be appropriate to introduce automatic guardianship / parental responsibility for all fathers in Ireland. The Commission's final report and recommendations, expected to be published later this year, will help to inform debate on the issues in advance of the formulation of any proposals for reform of the law in this area.