Gerald Nash (Louth, Labour)
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Question 381: To ask the Minister for Justice and Equality his plans to introduce legislation regarding the guardianship of children that will aim to enhance the rights of non-marital fathers; and if he will make a statement on the matter. [28751/11]

Alan Shatter (Dublin South, Fine Gael)
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The Programme for Government contains a commitment to reform and modernise aspects of family law. In this context, the detailed recommendations in the Law Reform Commission's Report on the Legal Aspects of Family Relationships on the rights and duties of unmarried fathers in relation to their children are under consideration in my Department.

Under the law as it stands, where a child is born outside marriage the mother is the sole automatic guardian. Where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act 1964, as inserted by section 4 of the Children Act 1997, appointing the father as a guardian of his child. In the absence of agreement, a non-marital father may apply to the court to be appointed a guardian of his child.

Section 11 of the Guardianship of Infants Act provides that the guardian of a child or the unmarried father of a child, even if he is not a guardian, may apply to the court for its direction on any question affecting the welfare of the child, including orders on custody and access. In making such orders, and in determining whether an unmarried father should be appointed guardian, the court has to regard the welfare of the child as the first and paramount consideration. It is worth noting that the vast majority of applications for guardianship which proceed before the court are successful.

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 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 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.