Amendments Nos. 2 and 3 are being taken together.
Status of Children Bill, 1986 [Seanad]: Committee Stage (Resumed).
We started debating these amendments in June last when we spent about an hour debating Committee Stage of the Bill. On that occasion we had what I would describe as a constructive debate to the extent that we discussed some of the issues involved in these amendments. Considering the time that has elapsed since we commenced this debate we should remind ourselves what the amendments relate to.
This Bill is designed to place all children in a position of legal equality. The intention of the Bill as I see it, and as I think it is understood on all sides of this House, is to ensure that existing discriminations that apply with regard to children born outside marriage are effectively abolished, and that all children, no matter what the circumstances of their birth, are placed in a position of legal equalityvis-à-vis their parental relationships.
Section 3 of the Bill, to which the proposed amendment relates, provides for the manner in which relationships are to be deduced between children and their parents. To paraphrase, the effect of the section is that in the event of a child being born, the question of whether the child is born to a couple who are married or who are not married to each other should not in a sense determine the relationships of that child for legal purposes betwixt and between its parents and other relations. Put simply, a child born outside marriage is put into a similar position to that of a child born in marriage for the purpose of deducing relationships. That section also seeks to provide for the adopted child to ensure that where a child is adopted by a couple he or she will for all purposes be deemed from the date of the adoption to be the child of the adopters.
Until recently in this country a couple who were unable of themselves to conceive a child could resort to adoption and adopt a child pursuant to our Adoption Acts by way of an adoption order made by the Adoption Board. In effect the children who were adopted were nearly always born outside marriage. Although the number of children born outside marriage has increased dramatically — they now constitute 10 per cent of the total number of children born in this country — the number of children available for adoption has reduced dramatically. The total adoption orders made in 1986 when compared to 1977 shows a reduction of 35 per cent. In 1977, 1,296 adoption orders were made and only 831 in 1986.
Until the start of the eighties practically all the adoption orders made were in respect of childless couples or couples who had a child or children and who were married and wished to have more children and could not do so. Therefore, it can be assumed that out of the 1,296 children adopted in 1977 in the region of 1,200 adoption orders were made in respect of childless married couples. In the statistics for 1986, whereas there was a 35 per cent drop in the total number of adoption orders, there was over a 50 per cent reduction in the number of adoption orders made in respect of married couples. In 1986 the total number of adoptions in respect of couples who were unrelated to the child was in the region of 600. The reason is that more mothers were retaining their children and about 200 adoption orders a year are now being made in favour of relatives of the child, a large proportion of those being adoption orders made where a mother has retained custody of her child, marries subsequently a person who is not the father of that child and both jointly adopt. In a nutshell, far fewer children are available nowadays for adoption to Irish couples who cannot have children of their own than in the past.
Experiences in Ireland in this area are mirrored by experiences in other countries. Medical techniques are now available which provide alternative means whereby couples who cannot have children through normal or ordinary sexual intercourse can conceive and have children born to them. Artificial insemination has been in use in this country for some time now and has been availed of by couples in circumstances in which the husband through the use of AI causes his wife to be pregnant. In those circumstances when a child is born as a result of the use of AI by a husband's semen to his wife a child born to a couple under the Status of Children Bill will be in the same legal relationship to his parents as any other child.
The amendment I have tabled is designed to deal with another area. In some circumstances the AID is being used where donor semen is used and where a husband is not the donor of the semen which ultimately results in his wife becoming pregnant and giving birth to a child. This technique is available in this country today to Irish couples who wish to have children and who have been unable to do so without the use of such a technique. It has been available here for some years now and can be availed of by married couples living in this country or outside Ireland if they do not want to avail of it within Ireland.
Not generally realised at the moment is the fact that if a couple have a child by the use of AID, even where the husband wishes such child to be born as happens in practice, co-operates fully and assists his wife and where it is a joint family decision that a child be conceived in this way, currently under our law that child is illegitimate and has not a legal relationship to the husband. Under our law currently that child in real terms does not have inheritance rights in the husband. That child suffers all the legal disabilities the child born outside marriage currently has and will have until the Status of Children Bill becomes law. A number of other countries have faced up to this issue. It involves this House in no question of any nature of moral issues. It does not mean that this House has to say that we either approve or disapprove of the use of AID as a technique. This House should acknowledge the social reality that AID is being used by childless couples in Ireland today.
When we are dealing with a measure of this nature we owe a duty to those couples to ensure that their child is in the same position of legal equality as any other child would be who was born to a married couple. It would be ironic if in this Bill we extended rights to children in adoption — as we should do — while depriving children born as a result of the use of AID of the same rights. That is an inexplicable approach. Such children are being born and the number of children being made available for adoption and being adopted is declining. I predict that when next year's report is published by the Adoption Board, from which I have quoted statistics, it is probable that less than 800 adoption orders will be made by that board.
As the numbers of children available for adoption decrease, the numbers of children that will be born as a result of artificial insemination, whether or not the husband is the donor, will increase. This Bill affords this House an opportunity to place children born as a result of the use of this technique in a position of legal equality. When speaking in this House on 25 June I said that the simple question that arises here is, if a couple themselves cannot conceive and if they can, as they are free to do within our law, resort to AID in order for the wife to conceive and give birth to a child, that both the husband and wife wish to have as part of their family, if there is any valid reason for suggesting that child should in some way be treated differently, should be kept legally apart from the family, should be the subject of a discrimination and placed in a sort of legal limbo, while we choose to ignore its existence. The Minister in his response referred to all the different complex issues that arise as to the various medical techniques that can be used for the conception of children and which have been developing in recent years. There are a number of techniques which can currently be used, some of which are very controversial. I am not dealing with some of these areas. I am dealing with a practical reality currently in Ireland. I am dealing with an issue to which this House should respond.
The Minister indicated that he would welcome discussion on the issue and suggested that it was very controversial. In making that comment, the Minister indicated that he would oppose this amendment. It should be brought to his attention that although he thinks this is a very controversial issue, in the context of this amendment to this Bill, it is not perceived as such outside this House. The debate we had on this issue on 25 June got considerable publicity as did the fact that the Labour Party, The Workers' Party and the Progressive Democrats all indicated their support for this proposal. Despite that publicity, there has been no row. I have not been inundated with correspondence indicating massive disagreement with this proposal. In fact I have not received a single letter about it from anyone opposing it. I urge the Minister to adopt a constructive approach. Perhaps during the summer months, the Minister has had an opportunity to get advice on this issue. I appreciate that before we adjourned for the summer the Minister did not have a great deal of time to consider this amendment but he should now adopt the same constructive approach to this Bill as was adopted when it was in the Seanad.
When this Bill was in the Seanad, extensive amendments were made to it. They were accepted by the Government of the day because this is a complicated technical measure and it is important to get it right. There was no loss of political face on the part of the former Minister in accepting amendments and in tabling her own amendments because of the debate in this House. The Minister should now agree that this is not a matter of major controversy, that it is not a matter of kicking the political football around. I am not making a party political point out of this issue. There is not one to be made out of it and there in no suggestion that any such issue could arise. Will the Minister accept the amendment as tabled? This amendment is designed to put the legislation on a par with similar legislation in other jurisdictions. All it will do is ensure that we will not leave a small minority of children for the foreseeable future in a legal limbo. These are the forgotten children of the Status of Children Bill, the children for whom we were unprepared to provide legal equality, the children who for some undefined political reason, we thought we had to ignore. Will the Minister accept this as a constructive amendment to improve a Bill that has been greatly improved during its passage through the House and which is a somewhat different Bill from that which originally came before the Seanad. This is to meet a very real problem which is not currently a very great problem although there will be an increasing number of children for whom this provision can promptly provide. I hope this amendment will have the Minister's support as I know it has the support of the other parties in the House.
I am glad of the opportunity to come in here because, regrettably Deputy Shatter did not consult with me in advance of his offering on the amendment. Our position is not as he represented it. Certainly, the issue of artificial insemination is one that this House will have to address in time but we should consider it in the light of all the facts and in the context of comprehensive legislation to address it.
This amendment does not realistically address any of the problems that might in time be presented and for that reason The Workers' Party will not support Deputy Shatter in this amendment. The Bill has had a long and tortuous passage through both Houses so far and it should not be delayed in its final Stages. I agree with Deputy Shatter that this Bill has been remarkably improved by both sides of the House. The Bill started out from Deputy Shatter's party. The issues of artificial insemination, third party donor and so on were as alive then as they are now but the proposers did not seek to deal with this issue on the inception of the Bill. It is now somewhat late for any member of Fine Gael to say that this is the time to address it.
I also query the proposition that the current state of the law is one in which a child born of a third party donor would be considered illegitimate by our courts. I am not convinced of that. There has not been a judicial pronouncement to that effect and it will ultimately be a matter for the courts. The issue will arise as to how for example a process that is surrounded by confidentiality can ever give rise to subsequent proof for litigation as to the source of the third party donation in the instance of artificial insemination. The position, as I understand it, is that issue borne of a valid marriage carries with it a very strong presumption of legitimacy and that is the first principle that we should always seek to safeguard. The amendment suggests the introduction of an area of litigation in family law based on the absence or otherwise of consent of the other party to the marriage. That opens up a minefield of litigation. We have seen that whole area very hurtfully and dangerously opened up in adoption and the process leading to adoption particularly in the context of single mothers and the issue of the absence or presence of consent at the relevant times and the very heart rending consequences for children having to be returned out of a very settled family situation to a parent who perhaps on second or third thoughts sought to recover the child.
I am not at all happy with the proposal as it stands. It is beginning to cloud many of the issues that the Bill is fundamentally designed to address. Clearly, in time, the House will have to address this whole issue of third party donation and artificial insemination generally. It should not be considered in the context of this amendment and for that reason we will not support the amendment.
A Cheann Comhairle, as I mentioned earlier in the debate before the Summer Recess, I am opposed to this amendment but this is not on a matter of principle but because it brings up the whole issue of human artificial fertilisation and this Bill is not the place to deal with that subject. This is a very complex matter which would require to be considered separately on its own merits.
Any legislation on this subject would involve recognition of the medical procedures involved and would, of necessity, have to deal with questions of regulating the agencies concerned and prescribing the circumstances and conditions under which the procedures could be carried out. In addition to artificial insemination by a donor which is the only procedure covered by the present amendment, it would be necessary to cater for other analogous procedures such as ovum donation and embryo transfer.
I am satisfied that such legislation would raise fundamental legal, medical, moral and ethical issues, and would also be a matter of conscience and deeply felt religious belief for a substantial proportion of the public at large. In these circumstances it would be essential that any proposals for legislation should be the subject of wide-ranging consultation with the Churches and other religious groups, and also with the legal and medical professions, interest groups concerned with family matters and the public generally.
There has, in fact, been no consultation on the subject of AID in the context of the Bill now before us. I referred in the earlier debate to the attitude of the previous Government who accepted that the question of AID children should be considered separately from this Bill. That was the attitude of the previous Government. This matter was, accordingly, not mentioned in the consultation document on the Bill published in May 1985. This approach was in line with the approach taken by the Law Reform Commission. In their report on illegitimacy at paragraph 387 the Commission concluded:
The subject of artificial insemination by a donor raises important moral and social issues that are more properly matters for determination by the legislature.
... The question of general social policy towards A.I.D. appears to us to be outside our remit.
The Commission went on to say at paragraph 389:
The Commission does not consider that that part of the subject of A.I.D. that is directly affected by the proposals concerning illegitimacy should be dealt with. The Commission could, for example, recommend that, where a husband consented to A.I.D., he should be regarded as the father of the child. But any such recommendation requires that all aspects of A.I.D. be examined, including such fundamental questions as the following: Should falsification of the register of births by persons resorting to A.I.D. cease to be criminal? Should A.I.D. when practised by a woman without her husband's consent be a ground for legal separation (divorcea mensa et thoro)? If so, does such conduct fall within the existing ground of adultery or cruelty, or should a new ground be created? If A.I.D. is performed on an unmarried woman, who should be regarded as having legal parental rights in respect of the child?
390. Some of the problems concerning A.I.D. especially where the woman is not married, raise questions concerning paternal relationship that are clearly related to those that arise where the mother is married. It can be argued that a man with whom the mother is cohabiting should not be denied the legal status of "father" merely because he is not married to the mother. To answer one or two questions without formulating a general policy on the subject of A.I.D. would, in the Commission's view, be likely in the long run to create further difficulties.
I would emphasise that the attitude of the present Government on this matter in no way differs from that of the previous administration. Furthermore, I am convinced that this is the proper and responsible way to deal with such a serious matter.
An undesirable aspect of the amendment is that it amounts to providing by statute for the falsification of the births register, since it would require a man other than the child's biological father to be registered as father.
Also, as presently drafted, the amendment could produce an undesirable result clearly not intended by the proposer. It could be read as meaning that where two couples had concluded a surrogacy agreement under which the wife of one couple underwent AID treatment, with the husband of the second couple as donor, the first husband would have full parental rights over the resulting child. This would be the direct opposite of the result intended by the surrogacy agreement.
There is certainly faulty drafting in the amendment and I mention these matters only to give an indication of the complexity of this whole question. I do not wish to be taken as being unsympathetic to the position of the children born in consequence of these relatively recent scientific developments. On the contrary, it is out of consideration for their difficult position that I feel very strongly that this whole matter calls for the most careful and sympathetic consideration. I would suggest, moreover, that there must be very few such children in this country at present and that the problem of their legal status is not of such pressing urgency that it requires to be dealt with in some way, however inadequate, in the present Bill. I need hardly remind the Deputy and the House that one solution to the problem lies in the couple concerned adopting the child, although I can understand that couples in that situation might be reluctant to undergo some of the procedures associated with adoption.
I am astonished at the attitude of Deputy McCartan. I do not know whether his approach results from a fear of the Government losing a vote on the issue and the implications of a political nature that could derive from that, because I was very careful to say, in my opening remarks, that the Labour Party and the Progressive Democrats and the Workers' Party supported this measure and not refer to any other Deputy who might be of an independent position who might also support it but who has not yet gone on the record of the House on that issue. The Workers' Party, the Labour Party and the Progressive Democrats, on the record of this House, supported this measure on 25 June last. Deputy McCartan may be unaware of the fact that his colleague, Deputy De Rossa, spoke on that occasion and I quote from column 3706 in the Committee Stage debate of the Dáil Report on 25 June: Deputy De Rossa said:
I, too, support the amendments ... and I am surprised and disappointed at the Minister's dismissal of them. He indicated that there are serious problems in relation to them but he has not outlined those problems. Amendment No. 3 very clearly states that where the husband was not a party to the agreement to have the insemination technique used, this would not apply where this is shown to be the case in court. There seems to be no valid objection to moving in the direction which is being proposed here.
I do not know if Deputy De Rossa and Deputy McCartan have talked to each other about what their party view is on this issue. I am very disappointed, first with the approach of The Workers' Party. It is a party that presents itself as being in the forefront, committed to issues of social reform. They are doing a spectacular U turn on what, in political terms is a minor issue but which is of great importance to a small number of children. It is very hard to understand how one Deputy in a party that has three Deputies could on 25 June express such enthusiastic support for a measure and have a colleague come in later to say that their party are opposing it. The Workers' Party will have to work that out for themselves.
Deputy McCartan is opposing this because he feels it is a new area and he does not think that what I am saying is necessarily correct. The current legal position is that if a child is born to a couple as a result of artificial insemination by donor the child is illegitimate. The presumption of legitimacy may apply and, currently, that presumption has to be dispelled beyond reasonable doubt but in so far as these presumptions have any relevance the difficulty in dispelling that presumption will be considerably reduced by the Bill. The way this can arise is where a couple who have given birth to a child subsequently have a child by artificial insemination by donor. Should the husband die a claim may follow about inheritance rights. If the first child knows that the second child was conceived in the way I have outlined the child's mother may be put in the witness box in court and asked how her second child was conceived. If she says, "actually, we used AID", the child conceived in that way, according to the Bill before us, will not have the same inheritance rights to the deceased husband as the first child. I accept, as the Minister has said, that the problem applies to a small number of children in Ireland although we do not know how many children have been conceived in those circumstances. The Minister was correct in stating that all the areas have complications but they have no relationship to this amendment. The amendment cannot have any impact other than one where a husband and wife agree to use AID for the conception of a child. The only effect of the amendment will be to ensure that the child has equal rights to the husband who subsequently acts as father, and to the wife. It can have no other implications of any nature.
The Minister quoted from the report of the Law Reform Commission, a group who avoided dealing with this issue because they put it in the context of a variety of other legal complications which have no relevance to the amendment. It is not of great relevance to the amendment whether a woman who uses AID without telling her husband can be alleged to have committed adultery. The amendment is not about the husband and the wife other than ensuring a procedure is used by agreement but it is about the child that is born as a result of the use of a technique. The Law Reform Commission stated at paragraph 383 that if the legal concept of illegitimacy were to be abolished this would have important implications in respect of artificial insemination. The commission went on to duck dealing with the issue.
If we do not deal with this issue at this stage within the narrow area I am suggesting the matter will not be dealt with here for decades. This is the first time since 1930 that we are dealing in a statutory way with the position of children born outside marriage. We have returned to it 57 years after the Illegitimate Children (Affiliation Orders) Act, 1930, was passed. The House will not confront for at least 20 years any of the complex medical issues that the Minister has referred to, issues that fall outside this one confined area I am dealing with. We are not very good here at facing up to issues of this nature. Clearly the Minister does not fully understand the reason and the rationale for tabling this amendment. He told us that this applies to a small number of children and I agree with him, but he went on to say that people do not have to use this technique, that they can adopt children. He accepted that they may not want to adopt. The point I was making earlier was that there are 50 per cent fewer adoption orders being made in 1987 than were being made in 1977 in respect of married couples. The Minister may not be aware that a large number of the adoption societies here have closed their doors to new applicants for adoption because they have got too many people whom they have assessed as suitable for adoption on their books and for whom there are no children available.
Adoption is ceasing to be an option and that option will continue to reduce in the coming years. While we have at present a small number of children who fall into this area in my view the numbers will increase. The amendment seeks to ensure that those children are treated in a position of equality. There is no point in abolishing the status of illegitimacy for one group of children and allowing a new group to retain that status and to be in a legally inferior position.
I do not understand why that is necessary. All the other issues that need to be confronted can be faced on another occasion although I anticipate it will not be in the lifetime of this or the next Dáil. There is no reason why we cannot, within the narrow confines of the amendment, confront the position of this small group of children who are involved. The amendment does not have anything to do with embryo transfer, that is another issue. The amendment does not have anything to do with surrogate motherhood. It does not seek to make any provision for or say anything about surrogate motherhood. Those issues may arise on another occasion. There is a need to see the amendment within the narrow context that it tries to provide for.
The Minister said that out of his consideration for children born as a result of new medical techniques he is opposing the amendment but I suggest that if the Minister wishes to consider children being born as a result of this technique the only logical thing to do is to support the amendment. If we do not support the amendment we are saying to these children that we do not recognise their existence, that we are going to regard them as legally inferior and that, because the number of related medical techniques are terribly complicated, we are not going to direct our minds to dealing with their problems.
The Minister made reference to falsification of the birth register but nobody has mentioned the falsification of registers. We are talking about the position of children born to a couple in circumstances where the couple are married, where the husband has consented to a new technique being used for conception and where the husband, and the wife, want to act as mother and father to the children born to them and do not wish their children to be in a position of legal inferiority. Are we going to create the absurd position that can pertain in certain circumstances at present in which a couple who use this technique to have a child can make application to the Adoption Board to get an adoption order in their favour in respect of a child born to them as a result of the AID technique?
If the Minister is saying that enacting this provision into our law will in some way disturb the legal framework in a way that will be detrimental to children, I must point out that there is nothing to stop any couple trying to regularise the legal position in that way. If a husband is concerned that he may not have a legal relationship with a child born as a result of AID the couple can apply to the Adoption Board for an adoption order. The couple will then be in a position of legal equality. At present our law is in that absurd position. One of the reasons for enacting the Status of Children Bill is to place children in a position of legal equality but another reason is to stop the situation where mothers felt they should apply to the Adoption Board to adopt their own children so that they would be in a position of legal equality with other children in their relationship with them. At present a number of unmarried mothers annually apply to the Adoption Board for adoption orders in respect of their own children.
The amendment is designed to put children born as a result of AID in a position of legal equality. It is designed to cut out the necessity for the sort of nonsensical approach that I can see being adopted in the future where children so born will find themselves the subject of adoption applications which will have to be processed by our Adoption Board. That is reducing the law to absurdity. It is another Irish solution to an Irish problem. We are unique in the way in which we find such solutions. The Minister is saying that because related areas are very complicated we should now pretend that this is not an area that should be confronted, that we should currently take the view that there are so few such children being born here that we should not deal at all with the matter and should consign these children to a future legal limbo. I am very disappointed that this is a matter upon which we shall have to call a division.
It is astonishing that Deputy McCartan should express the views that he has expressed, although I appreciate that he may not be all that expert in this area. I would have hoped, when his colleague, Deputy De Rossa, had indicated that his party were giving support to this measure, that Deputy McCartan would have given similar support. I would have hoped that instead of talking about divisions we would be doing what this House should be able to do, which is to constructively debate legislation and ultimately, across the floor of the House, agree amendments rather than try to find spurious reasons for opposing them. The Government always have to find a spurious reason for opposing Opposition amendments. All the objections made to this amendment by the Minister are spurious in the extreme. To reject this amendment is to reject the right of children born as a result of AID to be put in a position of legal equality with all other children conceived in the usual and natural way by married couples.
I do not want to get into a cross-fire with Deputy Shatter on his perception of our spurious reasons for not supporting him. It is no job for myself or The Workers' Party to help him to do the job that he should have done three years ago when his own Government introduced this legislation. They did not seek at that stage, despite the benefit of the Law Reform Commission on which the Deputy so heavily draws, to address this whole problem. My remarks have been distorted on this.
We are only now legislating. This is the legislative process.
Let the Deputy continue, please.
I am even more confirmed in my view that there is need for a much wider discussion and debate on the whole question and the ground rules that we as a Legislature should seek to lay in dealing with all the aspects of AID. Dealing with it in this piecemeal form at such a late stage is not at all an adequate response to the problems which Deputy Shatter so adequately and eloquently puts forward.
I am disappointed to learn that there has been a change of decision on this amendment on the part of The Workers' Party, which amendment the Labour Party had indicated on the last occasion before the summer recess that they would be supporting. Our opinion on it has not changed over the summer recess. We said then that we were supporting this reasonable, fair and proper amendment and we stand by that decision. We are not changing our position on this issue.
As has been said, the number of couples that would be involved is very, very small. It is sad when a young couple find when they want to have a child or children that they cannot do so. The opportunity presents itself on this occasion for helping such people. Deputy McCartan may hope that the opportunity may arise in some more detail at some future date, perhaps it will and perhaps not. It is here before us and we have to meet it. If we can help a family who find themselves in that unfortunate human situation we must help them, unless in doing so it would in some way harm or affect somebody else. If it were shown to me that the provisions of this amendment would cause harm or hurt to some other party or parties, then certainly my party would have to look at the matter again.
Here is a very human proposal. A family who want a child succeed in having one, with the consent of both spouses, by using the AID procedure, this child is wanted and happily accepted. Can somebody explain why we must put a legal bar in the way of that situation? Who will benefit, who is this designed to help? I presume that we come here to try to help the people who are affected by unfortunate situations. Can the Minister or Deputy McCartan or anybody else tell me who would be helped if we refuse to recognise the husband, wife and child as a family unit? Who would refuse that couple the right to call the child their own?
Who says that it is not?
The Minister says that it is not. The purport of the amendment is to make those three people into a family, to recognise them as a family unit without the necessity for an adoption procedure. That would cause joy and happiness to the very small number of families involved here. It would give them great satisfaction to know that the law recognises them as a family unit, the same as any other family unit. It is not really the business of anybody else and will not cause harm, hurt, or upset to anybody else. Why cannot we, for once, do that for them, giving them our imprimatur? Why do we have to devise spurious reasons for refusing? Why put that couple through adoption procedures, with consequent expense? We would put them through that trauma for what purpose? Here is a child who is cherished from the first months of its existence and we are enforcing adoption. I am astounded at this about-turn. I had hoped that this very human amendment would have been adopted by Dáil Éireann. I still hope it will be. I beseech Deputy McCartan to have a rethink. It is a very sensible and limited amendment.
This is not my decision.
The Deputy's support is needed and the support of his party was committed to this amendment on the last occasion, although I am not sure if the Deputy was then present. I have a distinct recollection that the approval of The Workers' Party was given on the last occasion. What has caused a change of mind on the matter escapes me. So far as the Labour Party are concerned, they will be voting for this amendment and I hope a vote is called.
I have to keep reminding myself that at long last we are on the Committee Stage of the Status of Children Bill. This Bill was treated with constructive compassion during its passage through the Seanad where amendments were accepted regardless of which party had introduced them. Despite the long delay in the passage of the Bill, a delay which we all deplore, the Bill continues to condemn and to exclude a certain group of children in our society. Now, on the Committee Stage we are inserting another exclusion order. We are now going to widen the list to include children whom we have up to now castigated, reduced to second class citizens and denied equal rights. By not accepting this amendment a number of children will continue to be excluded.
The Bill deals with the status of children, children born of woman and we would hope, as Deputy Taylor said, with love, and wanted. Enough children are born into this world without that advantage. It amazes me that we as legislators, can sit here this afternoon and bring up arguments as to why we should continue to exclude any children, but particularly those born disadvantaged. Who makes the law? It is our responsibility to do so. The Minister in reply to Deputy Shatter said he could not accept this amendment, an amendment which is logical and, above all else, just. The Minister cannot accept the amendment because he has not had consultations with the churches, the medical profession or the vox pop. We have a responsibility, which was carried out so well in the Seanad, to introduce the best possible legislation.
I am both amazed and disappointed that Deputy McCartan suggests that a future debate on the ethics of genetics which all of us in this House understand has to be debated carefully, cautiously and conscientiously, should prohibit us from inserting a just clause for all our children in this Bill. I would like to question both Deputy McCartan and the Minister as to whether they are serious in putting up the boundaries they have put up today. The first boundary, the one that Deputies Taylor and Shatter and myself have already spoken about, is in relation to excluding still further a group of children in our society. The other boundary I see appalls me. It would seem, and this has come through from Deputy McCartan's remarks, that because Fine Gael introduced a Bill three years ago which did not contain this amendment it is not acceptable now.
Sloppiness should never be accepted, Deputy Barnes.
A three month delay is not exactly efficiency.
I am sometimes weary of the length of time it takes to go through the various stages of a Bill but at least I recognise that what can emerge is a consensus and sometimes an amendment is accepted on Committee Stage which improves a Bill. I would ask Deputy McCartan to recognise that one of the reasons we have so many stages in our legislation and why we go through them so cautiously, and so slowly at times, can be seen clearly in this debate today. The Committee Stage of a Bill is the most important Stage as areas that may not have been drafted properly are open for debate and, one would hope for agreement.
There are two depressing aspects to this debate. The first relates to the treatment of our children and the second relates to the lack of agreement and constructiveness not alone in this debate but in so many other debates and particularly from a party from whom I would not expect it. Even at this late stage I ask Deputy McCartan to try to recognise what this amendment seeks to do and not to put off forever legislation just because consultations have not been held with everybody outside of this House. It is our responsibility to introduce the best legislation possible.
I will not delay the House because I made both my position and that of my party clear before the summer and, unlike others, I have not changed mine. I am surprised by the views expressed by Deputy McCartan. Perhaps, it has something to do with the personality of the person moving the amendment. The last time we introduced a Bill regarding children one of the Deputies of The Workers' Party was absent and, unfortunately, as a result we did not get that Bill through either. Deputy McCartan's comments were to the effect that we need more time to discuss this, that and the other. Such comments have been used in this House for years to delay progress on Bills, be they in relation to children, divorce or any other aspect of social policy. Bills have been delayed and put on the long finger both in this House and in the Seanad because politicians, particularly Ministers, always tell us that we need more time to consult with the churches, the medical profession and various other groups.
As Deputy Barnes has said, this Bill deals with the status of children. It is great that after a long time we have a Bill in this House which is capable of receiving support from all parties and which seems to remove the shameful tag of illegitimacy which has attached to so many children for far too long. I am delighted that the forces which tried to prevent progressive legislation in this area were no longer able to do so but it is disappointing that a category of children, albeit very few children, born as a result of artificial insemination by donor should be excluded and that we should leave any doubt as to our intentions in this House to treat all children equally and to give them equal legal status. We are missing a golden opportunity because there is a sufficient number of Deputies in this House who do not belong to the Government party and who can have this amendment passed if they all stay together just as they did before the summer recess.
We have now debated this amendment in so far as we can take it. There is no point in my reiterating my disappointment with the Minister. I would hope that whether this amendment is won or lost, the Minister would look in a constructive way at the amendments which have been tabled from all sides with regard to this Bill. I hope that the rather foolish attitude adopted by Deputy McCartan will not permeate the rest of this debate. It is part of the function of the Dáil, as a legislative assembly, to seek to improve measures and Bills as originally published by the Government of the day or, if it is a Private Members' Bill, as published by the Private Member.
I do not make any apologies for the fact that some of the amendments which have been tabled are amendments to a Bill which was originally tabled by my party, a party who, for some years, were committed to putting children in a position of equality. It was always recognised that this was a difficult and complicated area and as that Bill went through the Seanad my party had the maturity to accept amendments proposed by other people and to table some amendments themselves so as to improve the measure. That is what we are about in this House today. We are about ensuring that aspects relating to putting children in a position of equality, in so far as some aspects may have been overlooked at the drafting stage or in the teasing out of the Bill, are catered for.
I assume that Deputy McCartan is serious in some of the amendments he has proposed to this measure though it emerged in the debate in this Chamber on 25 June that The Workers' Party had effectively copied some of the amendments tabled on Committee Stage in the Seanad without realising that some of them had been accepted on Report Stage in the Seanad. If Deputy McCartan has any comment to make about sloppy thinking or preparations on the part of any party in this House in relation to this Bill he is on a very sticky wicket having regard to the rather peculiar approach of his party some months ago in tabling amendments, some of which had already been dealt with on Report Stage in the Seanad by cogging them from the Committee Stage proposals.
Squabbling between parties in this House as to who is more committed to given Bills has no real relevance as far as the general public are concerned. Deputy Barnes is right; this Bill is about children being put into a position of legal equality. I can see no rational reason for regarding some children as less equal than others. This amendment seeks to ensure that the intent of this Bill extends to some children, the forgotten children of this Bill when first published, but to whom my party, the Labour Party, the Progressive Democrats, and I believe some Independent Members of this House, would like to see the provisions of this Bill extend and wishes to see those children have the same legal equality in their relationship with and to the people who are their real parents, the husband and wife, who will be their father and mother. The position of the father should be recognised just as should be the legal entitlement of such children to be treated as equal to all other children.
I would still hope at this late stage that The Workers' Party would reconsider their attitude to this amendment as we go to vote on it. I do not expect the Minister will change his mind on it. Unfortunately, that is the type of politics with which we have to deal in this House. It is also the type of politics which results in so many people outside this House being so disillusioned with the way we perform our duties here.
Am I to take it that the Deputy does not intend withdrawing the amendment?
No, I wish the amendment put.
- Abbott, Henry.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Browne, John.
- Burke, Ray.
- Ellis, John.
- Fahey, Jackie.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghergan-Quinn, Máire.
- Haughery, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kitt, Michael P.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- MaCreevy, Charlie.
- MacSharry, Ray.
- Mooney Mary.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Walsh, Joe.
- Walsh, Sán.
- Wilson, John P.
- Woods, Michael.
- Wright, G.V.
- Barnes, Monica.
- Barry, Peter.
- Begley, Michael.
- Bell, Michael.
- Birmingham, George.
- Boylan, Andrew.
- Bruton, Richard.
- Carey, Donal.
- Clohessy, Peadar.
- Colley, Anne.
- Cosgrave, Michael Joe.
- Cullen, Martin.
- Deenihan, Jimmy.
- Desmond, Barry.
- Donnellan, John.
- Doyle, Avril.
- Dukes, Alan.
- Enright, Thomas.
- Farrelly, John V.
- FitzGerald, Garret.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Gibbons, Martin Patrick.
- Griffin, Brendan.
- Harney, Mary.
- Harte, Paddy.
- Hegarty, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Keating, Michael.
- Kelly, John.
- Kennedy, Geraldine.
- Kenny, Enda.
- Lowry, Michael.
- McDowell, Michael.
- McGinely, Dinny.
- Mitchell, Jim.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Shatter, Alan.
- Sheehan, P.J.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeline.
- Wyse, Pearse.
- Yates, Ivan.
Am I right in saying that as amendment No. 2 was not made amendment No. 3 automatically falls?
That is correct.
This section seeks to put children born to a person and children adopted by a couple in a position of legal equality. There is a provision which refers to a person being adopted outside the State whose adoption is recognised by virtue of the law for the time being in force in the State as set out in section 3 (2) (b). Could the Minister indicate what the law is in regard to recognition of adoption orders where such orders are made outside the State?
While it is likely that in the absence of this provision our courts would arrive at a similar result, it is considered better to put the matter on a clear statutory basis.
I did not hear the Minister's reply.
Subsection (2) (b) ensures that persons adopted abroad whose adoptions are recognised under domestic law are encompassed by the principle of the section. While it is likely in the absence of this provision that our courts will arrive at a similar conclusion, it is considered better to have the matter put on a clear statutory basis.
There are two possible situations. In Ireland a child is adopted by the Adoption Board making an adoption order. It is quite clear that a child in those circumstances is covered here. The second situation relates to a couple living in Ireland who adopt a child in a foreign country such as England, South America, the Philippines or India. The current position is that because so few children are available for adoption in Ireland, couples who do not resort to using new medical techniques for the purpose of having children adopt children outside Ireland. In this Bill it is stated that where a foreign adoption order is made, which is recognised by virtue of the law for the time being in force in this State, children so adopted will be in a position of equality. I am asking the Minister to clarify the current law in relation to the adoption of children outside Ireland. If a couple adopt a child in England, Peru, Chile, the Philippines or India, in what circumstances do we currently recognise such adoption orders? Without knowing that, the exact effect of this section is unclear.
It is unclear and it is a matter for the courts to decide on each case. There is no statutory provision. The position may not be clear in a particular case until it comes before the court.
I had a reason for asking the question and, in a sense, the Minister has given the reply I expected. Currently, there is no law in force in this country with regard to the recognition of foreign adoption orders. The position is that in the absence of any law, our courts can develop law at some stage when an issue arises. Different countries have different rules applying to the recognition of foreign adoption orders. In England and in different states of the United States they also developed particular rules. Courts uniquely developed rules relating to their own peculiar judicial perceptions but most countries take the view that legislation is needed to state the circumstances in which foreign adoption orders should be recognised.
A few moments ago we decided to leave a small group of children out of the provisions of this Bill. A large and increasing number of children will be adopted by Irish couples outside this country and a number of children who have been adopted in foreign countries by couples living in Ireland are already living here. The adoption of those children is not recognised in Ireland unless the parents go through another form of adoption process under Irish law and for some parents that is impossible because of the circumstances of the particular child's adoption.
There is no Deputy in this House in any party — I will extend it as far as the Attorney General's office — who could currently say in what circumstances our law recognises foreign adoption orders. The reality is we do not know what children will be affected by that provision. It is unsatisfactory that the position should remain that it is effectively left to the courts to decide the issue on the basis that no legal principles or guidelines are set by this House. I urge the Minister, in the context of Report Stage of this Bill, or his colleague, Deputy O'Hanlon, the Minister for Health, in the context of any adoption legislation he intends to bring before this House, to provide for a statutory system which lay down the basis upon which we recognise foreign adoption orders.
In order to ensure that we do recognise foreign adoption orders, I have tabled some amendments to the Bill in line with what the Minister is proposing here but all of these amendments have the impediment that nobody knows the circumstances under which a foreign adoption order will be recognised. If a couple in this country went abroad and adopted a child outside Ireland, nobody can tell that couple the circumstances under which that foreign adoption order will be recognised. This is becoming a very urgent problem at a time when there are not sufficient children available for adoption in Ireland to accommodate the numbers of couples who are seeking to adopt.
I ask the Minister to consider this issue in the context of Report Stage of this Bill. If it is not deemed that this is an issue that can be dealt with properly under the Status of Children Bill, it is certainly an issue that should be regarded with some considerable urgency by the Department of Health in the context of any adoption legislation they may bring forward.
I agree with Deputy Shatter that the position is not clear and the reason is that there are no cases on record and each case depends on its own facts as regards whether the procedures of the foreign adoption conform to the principles of common law as determined by the courts and applied to a particular case. I agree that statutory provision by way of an amendment would be desirable. Perhaps between now and Report Stage, I will see if it is appropriate to introduce such an amendment to this Bill or if it would be more appropriate to the adoption laws. I will consider the matter further before Report Stage.
Amendment No. 3 in the name of Deputy Alan Shatter falls in view of the decision in respect of amendment No. 2. Amendments Nos. 2 and 3 were taken together.
I move amendment No. 4:
In page 6, lines 33 and 34, to delete "Irish Nationality and Citizenship Act, 1956," and substitute "Irish Nationality and Citizenship Acts, 1956 and 1986.".
I wish to ask a question which could arise in the context of both section 6 and section 7. Can the Minister clarify the reason for preserving the legitimacy Act? I can see why it is amended but perhaps the Minister could explain the need for retaining it as opposed to simply repealing it.
The intention is to ensure that where a marriage is annulled in the circumstances set out in subsection (3), the father would be guardian to children of the union without having to apply to court under the proposed new section 6A of the Guardianship of Infants Acts. It is now agreed that the existing provision goes beyond what is required having regard to the debate in the Seanad
The Minister is dealing with the wrong section. I am not addressing an amendment. There is no amendment proposed to section 6 or section 7 of the Bill. I was just raising the purpose of retaining the legitimacy Act together with the amendment as made here as opposed to simply abolishing it. Perhaps the Minister could clarify the reason for that.
I was advised by the draftsman that we should retain this Act having regard to problems that existed with succession rights. For that reason it is necessary.
I move amendment No. 5:
In page 7, line 14, after "force" to insert the following:
"or an adoption order made outside the State, which order is recognised by virtue of the law for the time being in force in the State".
I was referring to this amendment a few minutes ago when I said I had tabled an amendment that relates to the problem we discussed with regard to adoption in the context of section 3. In section 9 there is a definition of an adoption order and it seems that there is no reason, provided some clear rules are made eventually as to the recognition of foreign adoption orders, for not incorporating this amendment also. It would in a sense co-ordinate this provision with an earlier section in the Bill and make it similar to the Guardianship of Infants Act. I do not see any reason for not doing that. It is a technical amendment which I hope the Minister might accept.
I accept the principle of the amendment which would create consistency between the Guardianship of Infants Act, 1964, and the approach to foreign adoptions taken in section 4 of the Bill. I would like an opportunity of discussing with the parliamentary draftsman the wording of the amendment as proposed by the Deputy and if the Deputy will be kind enough to withdraw it until Report Stage, we will try to deal with it then.
I will agree to that.
Amendments Nos. 6, 7, 8, 9, 11, 12, 13, 14 and 15 will be taken together by agreement.
I move amendment No. 6:
In page 7, lines 17 to 23, to delete the definition of "father" and substitute the following definition:
"`father' includes a male adopter under an adoption order, but, subject to section 11 (4) of this Act, does not include the father of an infant who has not married that infant's mother unless either—
(a) an order under section 6A (inserted by the Act of 1987) is in force in respect of that infant, or
(b) the circumstances set out in subsection (3) of this section apply;".
Amendments Nos. 6 and 8 are intended to deal with the point made in relation to subsection (3) of this section as discussed on Report Stage in the Seanad. It was suggested that the subsection as it stands at present could be interpreted as conferring on the child of an annulled marriage a position under the Constitution which would lead to unintended anomalies because under the existing provision the parents would be treated as if they had been married. The intention behind the section was to ensure that where a marriage was annulled in the circumstances set out in subsection (3) the father would be the guardian of the children of the union without having to apply to a court under the proposed new section 6A of the Guardianship of Infants Act, 1964. The matter has been examined since the debate in the Seanad and it is now agreed that the existing provision goes beyond what is required and the revised version set out in these amendments achieves the desired result and is confined to the guardianship issue. It provides that where a marriage has been annulled in the circumstances set out in subsection (3) the father will be the guardian of the children.
The justification for this provision in the Bill is that by making the father in a voidable marriage guardian after the marriage is annulled it continues the preexisting legal position, and in making the father in a void marriage guardian it will continue what will generally have been thede facto situation. The father will have been regarded as and will have been acting as the guardian. The provision applies in the case of void marriages only where the father believed that the marriage was a valid marriage.
I understand the reason for the Minister's amendments, but I suggest that what is wrong in the context of this is the legal scheme being adopted which creates rather strange anomalies.
My amendment No. 7 proposes that the definition of "father" as contained in the Bill as it has come to this House should be changed and that "father" should be held to include
a male adopter under an adoption order but subject to section 11 (4) of this Act, does not include the father of an infant who has not married that infant's mother unless—
(a) an order under section 6A (inserted by the Act of 1987) is in force in respect of that infant or
(b) the circumstances set out in section 6B (inserted by the Act of 1987) apply or
(c) the circumstances set out in subsection (3) of this section apply.".
In a moment I will explain the implications of this. My amendment No. 9 proposes:
In page 7, to delete lines 41 to 46, and in page 8, to delete lines 1 to 22 and substitute the following:
"(3) (a) The circumstances referred to in paragraph (c) of the definition of "father" in subsection (1) of this section are that the father and mother of the infant concerned have at some time gone through a ceremony of marriage, which ceremony was celebrated prior to or at some time during the period of 10 months before the birth of the infant and which ceremony resulted in a voidable marriage in respect of which a decree of nullity was granted after, or at some time during the period of 10 months before the birth of the infant.".
Then consequential amendments are proposed arising out of those amendments in the context of amendment No. 11 which proposes:
In page 8, to delete lines 50 to 52, and substitute the following:
"unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or unless the circumstances set out in section 6B (inserted by the Act of 1987) of this Act apply or a guardian has otherwise been appointed in accordance with this Act.".
Amendments Nos. 12, 13 and 14 to section 12 are then interrelated. They are:
In page 9, line 2, to delete "section" and substitute "sections".
In page 9, to delete lines 12 to 20 and substitute the following: "(3) Rules of Court shall provide for the procedure to be used in the making of an application under this section.".
In page 9, between lines 20 and 21, to insert the following:
"6B Where the father and the mother of an infant have not married each other and where the father is registered as the father of an infant in a register maintained under the Births and Deaths Registration Acts, 1863 to 1987 the father shall automatically be a guardian of the infant and no application by the father to be so appointed as provided for in section 6A of this Act shall be required.".
The final amendment arises after section 13 but before section 14. It would insert a new section and would amend the Guardianship of Infants Act by providing for a section 11A. That section would confer a jurisdiction on our courts which they have not got currently and the absence of which creates considerable difficulties, and the Minister's amendment does not deal with this at all. This proposed amendment is to allow the courts when nullity cases are heard to decide issues relating to the support payments and guardianship and custody of children. That new section 11A would provide:
(1) Where the High Court grants a decree of nullity in respect of a void or voidable marriage it may following the making of such decree upon the application of either party to the proceedings make a declaration of parentage with regard to any infant or infants born to the parties prior to the granting of such decree.
(2) Where a declaration is made by the High Court in accordance with subsection (1) herein the High Court may, upon application being made to it, exercise the jurisdiction conferred by section 6A (inserted by the Act of 1987) of this Act and by section 11 of this Act.
Let me explain in non-technical terms what this is designed to do and how it differs from the Minister's proposal. The Guardianship of Infants Act, 1964, currently sets down the circumstances in which a parent is automatically the guardian of a child, and describes the rules that apply when a custody dispute arises between parents. It also confers a jurisdiction on the courts where a couple are joint guardians of their child, where a married couple are still married to each other and no decree of annulment has been granted, to determine custody disputes and disputes relating to the guardianship of children and allows the courts to make maintenance orders for the support of children.
The Status of Children Bill in seeking to put children in a position of legal equality repeals the Illegitimate Children (Affiliation Orders) Act, 1930, and in subsequent sections allows the courts to make orders for the maintenance of a child, be it born inside or outside marriage under the Guardianship of Infants Act and under the Family Law (Maintenance of Spouses and Children) Act.
The simplest area to deal with first is the nullity area, although it is the last amendment to which it is relevant. At present if a decree of annulment is granted in our courts, be it of a void marriage or a voidable marriage, the children of the couple whose marriage has been annulled are automatically made illegitimate. The High Court order has that effect and the children are rendered illegitimate and at the end of the granting of the decree of annulment that is the end of the High Court's involvement in the matter. At present, having granted the decree of annulment a result of the decree is that the mother becomes the sole guardian of her child. The second result is that the father loses his guardianship rights and if the father wishes to have access to his child, or even if it is in the interests of the child that the father have custody, the father currently has to bring a separate set of court procedures in either the District Court or the Circuit Court to have custody orders made in his favour.
If the mother wants maintenance support for the child from the father she has to bring a new set of proceedings in the District Court or the Circuit Court at present to get what is known as an affiliation order. If the father simply wants access to the child he brings proceedings under the Guardianship of Infants Act in the District Court or Circuit Court. The Minister's amendments and the earlier amendments to which I refer seek to preserve what I would describe as the parental relationship between parents and their children in certain specified circumstances where decrees of nullity are granted, but none of the Minister's amendments deals with the issue that I raise in amendment No. 15 where I seek to insert an additional section into the Guardianship of Infants Act.
If we take my earlier amendments and the Minister's amendments in a simplistic way their general intent is, in certain circumstances where a decree of nullity has been granted, to preserve the parenting relationship between parents and their children. What the Minister's amendment does not do and what the Act does not cater for is what happens when the decree of annulment is granted and there is a dispute between the parents as to who shall have custody of the children, or about visitation or access rights for the other parent or about what support payments should be made for the support of children by the financially better off parent, to the parent who has custody.
The Minister's amendment would say in certain circumstances the husband and wife would remain joint guardians. Once the marriage is annulled, we get over the problem of the children being retrospectively bastardised, but the problem which has not been dealt with is that once the decree of nullity is granted, the father and mother cease to live together, and the children cease to have a relationship with their parents. As things stand, if this Bill is passed with some of the amendments the children will maintain a relationship with the parents but the High Court will still have no power by way of ancillary orders, having heard a nullity case, to make an order as to which parent should have custody of the children, as to access rights for either the mother or the father and as to what maintenance should be paid for the children in a case where the mother has custody and is dependent.
Even when this Bill is enacted it will be necessary, if the couple cannot reach agreement about those issues, for them to start off a new set of court proceedings in another court, which can only prolong the upset created by the family breakdown, add considerably to the legal costs and help to add to the couple's problem. Lawyers who specialise in family law have seen how appallingly distressing a nullity hearing is, particularly where there are young children but it is even worse to come out of it knowing that one may have got a decree of nullity but that one has to start all over again in another court. Amendment No. 15 seeks to insert section 11 (a) in the Bill and I hope the Minister will accept it. It would mean, having determined a nullity case, the High Court, if told that the couple did not agree as to which party should have custody, would be in a position on the basis of the welfare of the child to determine which parent should have custody, what the access arrangements should be and, where a payment should be ordered for child support, would be allowed to order that such payment be made.
In this context I draw the Minister's attention to the report on nullity of marriage prepared by the Law Reform Commission which said that when granting decrees of annulment the High Court should have power to make ancillary orders with regard to child custody, guardianship issues and child support. The report also said that the High Court should have power in certain instances to make other types of financial orders, but that relates to something other than children. What I propose accords with what the Law Reform Commission said should happen in the context of granting decrees of nullity. It also accords with what the Oireachtas Joint Committee on Marriage Breakdown recommended in their report when they said that when decrees of annulment were granted the High Court should possess the powers to determine disputes relating to guardianship, custody and maintenance of children.
One of the reasons I am dealing with this amendment first is that even if the Minister does not find my other amendments acceptable this amendment fits in with his amendments and with the amendments I have tabled, because there are two different schemes that could be accepted here. In the context of the amendment I have tabled, and in the context of the amendment the Minister has tabled, circumstances can arise in which decrees of annulment will be granted where there may be a dispute as to the parentage of a child. A dispute may arise as to whether the "husband" whose marriage was annulled is truly the father of the children born to the person who was his wife before the annulment was granted. This provision allows the High Court to determine the parentage issue without having to go through another court proceeding. As things stand the law does not deal with this. It was not perceived in the current Bill that this area is of relevance to the status of children, to the issue of illegitimacy and to the issue of custody of children who are currently regarded as illegitimate. Will the Minister accept amendment No. 15 as it would considerably improve the law and it would accord with recommendations of the Law Reform Commission and the Oireachtas Joint Committee on Marriage Breakdown?
I will refer to the other amendments and the reasons for the differences between what I have set out and what the Minister has set out. In section 9 there is a definition of "father". For the purpose of the Guardianship of Infants Act there is an attempt to determine in what circumstances someone would be regarded as the father of a child. There are certain circumstances in which there may be no dispute between a couple as to who is the father of the child. They may be living together permanently and know who the father is, but as the Bill is at present it appears to require that unless there is a marriage or a marriage that has been declared annulled, even where a couple agree if someone who is a father wishes to be made a guardian of his child it will require some type of court procedure. That is not necessary.
Where there is a dispute as to who is the father of the child, the court will have to resolve it and section 12 of the Bill which incorporates section 6 (a) provides a procedure where there is no agreement between a couple as to their being joint guardians of a child, for the court to determine whether someone should or should not be made a guardian. Section 6 (a) as it will be incorporated in the Guardianship of Infants Act, which is section 12 of this Bill, provides that where the father and mother of an infant have not married each other, the court may on the application of the father, by order, appoint him to be a guardian. Then it goes on to say in subsection (3) that rules of court shall provide a special procedure for determining an application where the mother consents in writing to the appointment of the father as guardian and the father is registered under the Births and Deaths Registration Act effectively as the father. What I am proposing in the context of the new section 6 (b) which we seek to provide is that, in circumstances where the father and mother acknowledge each other's relationship to their child and where the mother agrees that someone is the father of her child by virtue of them registering the birth of the child and the father being registered as the father, instead of it requiring a court application, the father automatically is a guardian. Where there was a contest between mother and father, the father could not be registered without court proceedings under this Bill in the context of the Registration of Births Act. But what this Bill creates is the following situation. To step outside the legalistic complications of this, let us assume a couple have lived together for 20 years and have had four children born to them. The father's name is included on a birth certificate. They have continued to live together. The father and mother regard themselves as joint guardians of their children. In order for the father to become a guardian under the Minister's proposal, court proceedings must be brought to have the father named as father. Under what I am proposing in those circumstances once the father is, under the Registration of Births Act, registered as the father, he automatically becomes the guardian and court proceedings are not necessary. Under this measure, if a couple's marriage is annulled, for example, by a Church tribunal, and one party to that marriage goes through another marriage which is invalid and they have children, in order for the new couple to have the father of the children held up as a guardian of his own children, court proceedings are necessary. In the context of the amendment that is proposed here, where there is agreement between father and mother about registration, court proceedings would not be necessary.
The Minister's proposal creates an anomaly which, by incorporating the measure I am proposing also in amendment No. 15, does not have to arise. The Minister's proposal seeks to provide that someone would be regarded as the father of the child even if there is a void marriage but if the father reasonably believed in certain circumstances that the void marriage was a valid marriage. If there is a void marriage there is no marriage at all. What we are doing here, to quote a constituency colleague of mine who uses the phrase regularly in this House, is slavishly following English law in using a formula that they have used in England which is just as confusing there as it will be here if we transplant it into this jurisdiction.
If a marriage which is voidable is subsequently annulled in circumstances in which a child was born either before the decree of annulment or within a few months of it, it makes a lot of sense that the husband to that marriage should still be regarded as the father of the child. But in circumstances where a couple went through a ceremony which was not merely voidable but which was void, had no legal impact at all, it makes absolutely no sense that the position be that if the father reasonably believed the marriage to be valid he is regarded as father but if he did not reasonably believe it to be valid he is not regarded as father. Are we going to ask the courts, for example, at the end of nullity proceedings to decide whether it was reasonable for a particular father to have regarded his marriage as valid or not? The validity of the marriage has no relationship, and should not have, to whether someone in that sense is held as a guardian or as a father or whatever. The amendment I have tabled seeks to deal with that issue.
The difficulty with all of this is that it is complex and involved. I appreciate that there are aspects of this that are extremely difficult to explain. Because we are dealing with a technical area of law it may be difficult to see the difference between what the Minister is proposing in the earlier amendments and the amendments I am proposing. The amendments I am proposing are merely designed to ensure that there is clarity as to the circumstances in which someone is held to be the father of the child and the circumstances in which he is not and ultimately, if a decree of annulment is granted, if there is a confusion as to whether someone having had his decree of annulment granted, first is the father, second is a guardian, third should have custody or access or fourth should contribute to the support of a child that everyone has always regarded as his, that ultimately the court can deal with that without either the mother or the father being forced as some later stage to commence a whole new set of court proceedings. In a sense this is designed to maximise the rights of children and clarify their position while minimising the necessity for people to have to run to the courts.
I understand we are taking a number of these amendments together. I want to address my remarks to one in particular that is proposed by Deputy Shatter, amendment No. 14. I rise to indicate my opposition to that proposal. In essence what is being requested there is that if at any stage after the birth of a child the name of the father appears on the register of births and deaths as the father he then becomes automatically the guardian. I do not believe that that is a desirable regime. I think that we should leave it to the whole regime as envisaged in the Act itself under section 6 (a), namely, that even in those circumstances though the father's name might appear on the register he should, nonetheless, if a dispute arises, be obliged to apply to the court for the right of guardianship. It is based on a practical appreciation of many of the instances where very often in the immediate aftermath of the birth of a child to an unmarried couple the mother, who often is considered and no doubt is in a vulnerable and sometimes emotionally weak position, might well agree to the insistence by the natural father of the inclusion of his name on the birth certificate. The inclusion in those circumstances of an automatic right to guardianship subsequently,ad infinitum, is an undesirable development and it would be far more realistic if the regime as envisaged would be applicable to those circumstances as well.
I am impressed with the arguments Deputy Shatter has advanced in respect of amendment No. 15 and I support him in that but I have reservations about amendment No. 14.
The alternative subsection (3) proposed by Deputy Shatter in amendment No. 9 is in my view not appropriate. My initial reaction was that amendment No. 15, to insert a new section, 11 (A), of the Guardianship Act dealing with the High Court's functions in nullity cases was not therefore required. Subsection (3) in the Deputy's amendment differs from the Government's proposals in two important respects. First, the alternative subsection (3) proposed makes no provision for the situation where the marriage ceremony is performed after the birth of the child to the couple. The effect of such a postnatal ceremony of marriage on the guardianship position is clear at present and will continue unchanged after this Bill is enacted. The father, by marrying the mother of his child, becomes the child's joint guardian. That being the case, I can see no good reason why there should be different treatment of the father who is regarded as guardian because he underwent a voidable marriage ceremony before the birth of his child as against one who is guardian because he underwent a voidable marriage ceremony after the birth.
The purpose of the Government amendment is to clarify and remove doubt as to the father's status as guardian in the wake of the annulment of a voidable marriage, but Deputy Shatter's amendment would, to my mind, leave the position inconsistent and uncertain. Leaving the question of guardianship following an annulment to be determined by the court granting the annulment has admittedly a certain attraction, but it ignores the fact that, in the case of a voidable marriage, the presumption that the marriage ceremony was valid means that, up until the annulment, the father has in fact been treated for all legal purposes, including those of the Guardianship Act, as being the mother's husband and guardian of his children. That proposal was accepted in principle by the previous Government, and is also accepted by my Government. It will, of course, be open to a court to circumscribe the father's position as guardian in appropriate cases in the wake of an annulment, if the children's mother applies under the Guardianship Act.
Secondly, no provision is made in Deputy Shatter's proposed subsection (3) at amendment No. 9 for the position of a father as guardian of children of a void marriage. This contrasts with the provision in Government amendment No. 8 which, in line with the provision in the Bill as it stands, makes certain the position of the father of children of a void marriage in circumstances where he reasonably believed at the appropriate time that the marriage ceremony was valid. Where this is the case, then the father will have been acting as guardian; the Government's proposal will ensure that he may continue to do so, thus guaranteeing minimum disruption to the children. It is important to remind ourselves that, while in the case of a voidable marriage the marriage is treated in all respects as valid until it is annulled by the court, a marriage which is voidab initio is just that: it was never a marriage from the start and does not need a court decree to make it void.
Take, for instance, the position of a man who goes through a ceremony of marriage with a woman whom he believes to be single or widowed, or to have been divorced by a decree obtained abroad, which he believes is recognised in this country. They live together and have children of whom he is to all intents and purposes guardian. If after some years he discovers that he has been duped by a bigamist, or if the woman's husband who was missing and presumed dead returns from abroad, or if he takes legal advice which shows that his earlier view of the validity of his wife's divorce was mistaken, what then? Is he to be compelled to go to the High Court in order to obtain a decree of nullity, and then to seek a declaration that he is parent of his own children and to be appointed guardian, as would be the case under Deputy Shatter's proposal at amendment No. 15? A decree of nullity is not necessary in such a case, since the marriage is clearly voidab initio and there is no need to go to the expense and trouble of High Court proceedings to get a judicial statement of the obvious. The proposal which the previous Government put forward, and which the Government amendments now before the House merely tidy up, appear to me to offer a much more satisfactory solution to this problem. In the case that I have outlined, the father will continue in his position as guardian, secure in the knowledge that it is for those who seek to deprive him of his role as guardian to show that he did not reasonably believe at the appropriate time that the marriage was genuine.
Deputy Shatter's amendment No. 14 would have the effect that, in the case of a child whose parents have not married each other, the father could become guardian of the child jointly with the mother by the simple expedient of having his name entered on the births register. This proposal is totally at variance with the basic policy of the guardianship provisions of this Bill. That policy is that, in the case of a child whose parents have not married each other, the father should not become joint guardian of the child unless that is in the child's interests. The purpose of this policy is to safeguard the interests of the child in each case, while at the same time giving the opportunity to fathers of children born outside marriage to share the responsibility of their children's upbringing if they are willing to assume it. Guardianship is not to be seen as some sort of reward for the father for acknowledging or being forced to acknowledge his paternity of the child. It is not something to be thrust willy-nilly on a man merely because the fact of his parentage has been recorded on official records. It is a complex set of responsibilities and rights in relation to a child, whose upbringing may be radically affected by it, and whose individual circumstances and interests must be taken into account, so as to ensure as far as that is possible that the effect of appointing his or her father as guardian will not affect the child's upbringing adversely.
The procedure for registering a person as father of a child whose parents have not married each other will be greatly simplified after this Bill is enacted. Section 52 of the Bill provides for the possibility of a parent presenting the Registrar of Births with a court judgment naming the father as father, on which the registrar will be obliged to act. The types of judgment which may be used for this purpose are set out in section 48 and include maintenance orders, including affiliation orders, granted before this Bill becomes law. The production of such an order scarcely ranks as a high recommendation that the father will be a suitable guardian, when one considers the difficulties that mothers usually have to surmount in order to obtain it. There is no doubt also that Deputy Shatter's proposal would act as a serious discouragement to unmarried mothers against identifying the father or pursuing them for maintenance. This cannot be in the interests of the children involved, since the benefits conferred by this Bill on children whose parents have not married each other will be largely illusory if such children are deprived of the possibility of knowing their fathers.
There were suggestions that the Government amendments, Nos. 6 and 8 will lead to uncertainty in the operation of the law on guardianship. A basic inconsistency lies at the heart of this set of amendments tabled by Deputy Shatter. On the one hand, at amendment No. 14, he would have registration of the father as such on the births register as the only qualification for the father to become guardian. On the other hand, he is proposing in the same set of amendments, an elaborate and complicated regime for fathers of children of void and voidable marriages. It is the usual position in the case of a void or voidable marriage that for some of the time, at least, the parties will have been under the impression that the ceremony was a valid one. They will accordingly have acted on that basis as regards any children of the supposed marriage, and the father's name will, as with all children of married couples, have been entered on the births register. There is a clear inconsistency, therefore, between amendment No. 14, which by the mere fact of entry of his name in the births register would make the father guardian of the child without further ado, and the other amendments which would in some cases require the same father to involve himself in additional costly High Court proceedings in order to secure his position as guardian.
That is one inconsistency. Another one — there may be more — is evident between amendment No. 9 and amendment No. 15. Amendment No. 9 provides apparent certainty for the father whose voidable marriage ceremony took place prior to the birth of the child. By the way, presumably this period is intended to encompass "the period of 10 months before" the birth, which gets special but superfluous mention in the amendment. We are, I suppose, meant to understand from this amendment that such a father is and always has been guardian of his child. Why is it then that this father is still exposed by the proposed amendment No. 15 to the possibility that he may be relieved of his role as guardian by the High Court in the wake of nullity proceedings? The Deputy's proposed section 11 A is clearly expressed to apply to all cases where a decree of nullity is pronounced, including those covered by his amendment No. 9. These inconsistencies demonstrate clearly that if the amendments proposed by Deputy Shatter were to reach the Statute Book they would result in uncertainty, legal expense and perhaps heartbreak for many unwitting fathers. I believe that the Government amendments, if adopted, would not do that.
As regards amendment No. 15, I started by giving my initial reaction to it, but in the light of the arguments put forward by Deputy Shatter in support of this amendment here today I am prepared to look at the principle of the amendment between now and Report Stage to see if it would be possible to go some of the way to meet him on it. I would do this on the understanding that amendments Nos. 6 and 8 are accepted today.
May I explain a difficulty which I have with the Minister's approach, in particular in the context of a situation in which there is not necessarily a contest between parents? The Minister has talked about unnecessary court proceedings. His approach as described in the Bill as it exists at present means, in effect, that if a mother and a father residing together who are not husband and wife agree that this is their child and the mother wants the father to have joint guardianship rights, there is no mechanism under which that can be done without a court application. This section, which is referred to in the Bill under the Guardianship of Infants Act as being the new section 6A but is section 12 of this measure, says that there will be special procedures or special rules of court.
In effect here is a couple who have had a child and may have lived together for one or 20 years, may wish to be married to each other but cannot because of the peculiarities of our legal system. Even if they agree between themselves that they are the mother and father of the child and should both be joint guardians of the child, under the law as it would be if this Bill were enacted without my proposed amendment they must get a court decree. It would seem that many people will be put to a great deal of unnecessary expense in bringing many unnecessary court proceedings. In most countries in the world there is a mechanism whereby a couple who are not in dispute with each other but have a child outside marriage can, by the signing of documents without any necessary court proceedings, simply create a legal position whereby they are the joint guardians of that child.
What does the Deputy's amendment say about the mother's consent being necessary?
The amendment about which I am talking is amendment No. 14 involving a mother and father who have not married each other and where the father is registered. The father will not be registered effectively without a legal process determining that he is the father or without the mother agreeing to his being so registered. That is the legal reality here. Where the mother does agree there is a necessity, via the mechanism that I am proposing, or another mechanism, for this Bill to allow a couple to be joint guardians of children born to them without their having to go to court. The court they would have to go to under this Bill would be either the District Court or the Circuit Court.
There will be a number of District Court and Circuit Court judges dealing with many applications relating to children born outside marriage that need never go near a court at all. The parents will be seeking advice, paying solicitors, going through the law centre system, or free legal aid if they cannot afford to pay a solicitor. They will possibly be instructing barristers and going into court to do something which, if they were able to, they could do by consent. There is something wrong with that system, where people have to go to court unnecessarily. I do not accept the Minister's technical objection to the amendment but I am concerned that because the issue is so complicated it may not be resolved in the context of calling a division here this evening. I am concerned that there be a procedure which has some common sense attached to it. To force people into court should not be necessary.
In New Zealand in similar legislation it has been possible to enact a provision where a couple, in effect, can become joint guardians of their children and have a parental relationship if a child is born to them in circumstances where they are living together. The mechanism I am proposing here with regard to registration of births is one similar to that adopted under the New Zealand Status of Children Act of 1969. It is not something that has not been thought out or tried. It would seem that what is described as the special procedure provision which will arise under the new section 6(3) basically states that the rules of court shall provide a special procedure where the mother consents in writing to the appointment of the father as guardian and the father is registered and such procedure shall be as informal as possible. I do not see why we could not have a procedure whereby if the mother consents in writing and the father is registered the father could not automatically assume guardianship rights. The mother's consent is, in the overwhelming majority of cases, going to be necessary under this measure for the father to be registered in the first place. That may not arise in certain instances — I accept that — but in the majority of instances in practice it probably will. It seems unnecessary in the context of subsection (3) to say to those people that they must go to court.
A comment was made that the mother might in a weak moment — I think Deputy McCartan said this — agree to somebody's name going down on the birth certificate. The Minister referred to whether it would be in the interest of the child's welfare that someone who is a father should be named as a guardian. Could I suggest with respect that we are looking at this not from the point of view of the child? When disputes arise between mothers and fathers in a marital situation, leaving aside an unmarital situation, they think they have possessory rights over their children. The child often becomes a pawn in the middle of a war between husband and wife. Many court cases are heard currently where a marriage has broken down and where not only does the mother wish to have custody of her child, which may very well be in the child's interest, but because there has been a marital row she does not want the child even to see the father or have contact with him. The courts have taken the view that children have a right to have contact with both their parents and that when a marriage breaks down children have a right to have contact with the non-custodial parent, who is usually the father.
Taking the Status of Children Bill and putting children in a position of legal equality, I would adopt the view that children born outside marriage or in circumstances where currently they are not in a position of equality have the right to have access to their father as well as contact with their mother. I am concerned particularly about section 6A if unamended being incapable of being operated at all in practice. We are saying to judges that if somebody wishes to be named as guardian and have an involvement in his child's upbringing and if that child is born outside marriage that someone should be named as a guardian only if it is in the interests of the child's welfare. On what basis are the courts going to determine the welfare issue? In the case of a mother who says that she does not wish this man to be involved in the upbringing of her child and the father says that he does wish, I do not know how a judge will decide when it is in the interests of the welfare of that child to give the father those rights. I can see extreme circumstances where it will not be, but in the majority of instances the situation will be very little different from that arising in the marital area. The difficulty with this measure is in the context of the first portion of section 6A that there are no guidelines at all as to how judges should deal with this issue.
I appreciate that this is an extremely complicated area but I do not accept many of the criticisms the Minister has made of the amendments I have tabled. I do not want to unnecessarily delay the House but some of the criticisms the Minister has made of one section could become praises of another section. The reality is that some of the things he has used to criticise some of the amendments are then turned on their heads in reference to other amendments. One thing I am clear about is that while the Minister may say that what I am doing would create a problem, which I do not believe is the case as it would resolve many of the problems, I have no doubt that the Minister's own approach would equally leave many problems. For example, it was stated that where marriages are void people do not need to get court decrees. The reality is that people normally only discover that they are void when they bring nullity proceedings and do get court decrees.
The Minister in his amendment is saying, in the context of amendment No. 15, which I have tabled, that where there is a void marriage it may mean people will have to go into court to have an order made. In fact, that would not be necessary. Where a marriage is void and this is where there is a thread running through all of the amendments the reality would have been that the couple before the marriage being declared void would have registered the birth of their child. That is part of the purpose of amendment No. 14. Accepting amendment No. 14 would mean in most cases that where a marriage has been declared null and void and where children have been born to a couple before nullity proceedings, no issue about paternity, maternity or parentage will arise because the child has been registered in the names of the father and the mother. The birth certificates will have conclusively dealt with that issue unless either side has very positive evidence they can raise.
In the context of nullity, be it void or voidable, section 14 says in effect that where a couple get a decree of annulment and if a child has been registered in the registry of births with the couple named as father and mother the father is joint guardian and a decree of annulment will not affect that. This means that there is no need for anyone to get involved in labyrinthine or complicated studies of whether the father reasonably believed that the marriage was valid or otherwise. On the basis of that proposal, in most instances where a void or voidable marriage is annulled the father and mother will remain joint guardians. There will be no dispute over parentage and the only area where a dispute might have to be resolved is in the area of custody and maintenance.
I appreciate that this is a complicated matter. In a sense, this Bill is not a party measure and people should not try to score party political points on it. Regardless of whether amendment No. 8 is adopted, the position will become a great deal more complicated if the Minister's approach is adopted. Under this amendment we are providing that if a marriage is declared void the father would retain guardianship rights if he reasonably believed the marraige was valid at the time it was celebrated. In doing so, we are not providing any jurisdiction for the courts to determine whether he had that reasonable belief.
If the Minister is not prepared to accept amendments Nos. 14 and 15, which have a direct relationship to the nullity position, and if amendment No. 8 is accepted in the context of a consideration of conferring on the High Court when it grants a decree of annulment, ancillary powers to make orders for custody, access and maintenance support, it is going to be necessary to confer powers on the High Court to determine a dispute between a couple where it is alleged that the father at the date of the marriage did not reasonably believe that it was a valid marriage.
That is an issue which could arise and it does arise under this amendment and in the Bill as currently drafted without making a provision for when a court is to decide that issue. The Minister may say that nobody may raise that issue but in a situation where marriage breaks down a wife who may have been very badly treated may want to cut off the father from contact with the children. One can argue that in most cases it is in the interest of the children they maintain contact with the father. Where a marriage has been annulled the wife may subsequently argue in court that the father of the children has no legal rights because he could not have reasonably believed that the marriage was valid. In so far as that is an issue which may remain part of this Bill and if my amendments are not accepted there is no mechanism for a court to decide that issue. They can obtain a nullity decree and later go back to the District or Circuit Courts and start all over again.
There is a very big problem with this issue. I have no theological attachment to the amendments. The amendments we have tabled are to tease out this problem, to see if we can confront it. I welcome the fact that the Minister is willing to see if an amendment can be made, which is acceptable to him, to confer powers on the High Court to make ancillary orders. I learned at a conference I attended over the weekend that representations have been made to the Minister's Department explaining the need for this. A group of family law solicitors made the representations in the context of a Nullity Bill but I do not think it was understood by them that the issue could be dealt with here. I welcome the fact that the Minister is willing to look at this issue but he may not be necessarily aware that there are a number of in-built complications in what he is proposing. What has been in the Bill to date, in fairness, will give rise to many unnecessary court applications in circumstances in which most other countries have found it unnecessary to provide for people to go to court.
It has to be said that, by and large, this is an excellent Bill, a Bill which many people have wanted for a long time. If it has one defect — this is exemplified in this group of amendments on the sections we are dealing with now — it is that it is making provision for too heavy a reliance on court proceedings. Too much is provided for by way of procedures and court applications to the District Court, Circuit Court, High Court, etc. That is something which should be avoided to the maximum possible extent. Of course, cases will always arise where court proceedings are unavoidable but we should cut down the necessity for court applications so as far as is reasonably possible, particularly when the civil legal aid provisions in this country are so sparse. Even the simplified and informal procedure which the new section 6 (a) refers to will still mean going to court or involving lawyers in some way.
There will be only two choices available to a man or women in these circumstances. They could consult private legal advice but the number of lawyers who specialise in this field is few and their services can be costly so many of those concerned will not be able to avail of that kind of procedure or even of the simplest court application or of an informal court application. People in that category, if they are to do anything at all, would have to fall back on the civil legal aid procedures which regrettably and to our shame are very sadly lacking. It takes months to get an appointment. The number of cases which they will take is strictly limited. We ought to bend over backwards to find a way of avoiding the necessity for court applications.
One of the situations with which we are dealing here is that referred to in section 12 (6) (a) and amendment No. 14. I am not happy with Deputy Shatter's amendment as it stands. Nonetheless it is on the right track. His amendment provides that there be this automatic guardianship of the father if the father's name appears on the birth crtificate. That is reasonable enough as one condition but should not be sufficient in itself. For example, one could visualise a situation in which the mother had agreed to have the father's name put on the birth certificate. Deputy Shatter is quite right, in virtually all cases the consent of the mother would have been necessary to have the father's name put on the birth certificate. At some period beforehand, at that time, all might have been well between that man and woman which resulted in her consenting to the father's name going on the birth certificate and the certificate being issued in that name. But some period afterwards the position between them might have altered or deteriorated very considerably, when she might have very strong objection to the father's name being put down as joint guardian along with her.
I would be happy with Deputy Shatter's amendment, No. 14, if it contained the additional provision that, at that time, the critical stage — not just at the time of issue of the birth certificate but at the later stage — she agreed, in writing, to the father being appointed as joint guardian with her. If that was done perhaps consideration should be given to avoiding the necessity of having a court application provided for in those circumstances. I should be interested to hear the Minister's view on that.
Of course everybody in the House would agree that the interests of the child should be paramount. What we are trying to do here is overcome a problem, and it is a problem, which is that hard cases make bad law.
I might attempt to deal with the points raised by Deputy Taylor. There are many forms of living together, some are temporary and some are for fairly long periods. The difficulty is that the law cannot make provision for the good cases without allowing in the bad ones as well. The mother, in agreeing to registration, does not necessarily want that to include guardianship; that is a fact. Are we creating a situation in which the mother might be forced into allowing the father to become guardian? That is something we must think about. Deputy Shatter's proposal is tantamount to making the father of a child who has not married the mother automatically the guardian in all cases. This is akin to proposals made by the Law Reform Commission in their report on legitimacy. Those proposals were not acceptable for a number of reasons. First, guardianship would be a completely unreal concept where the father was not known or did not himself know he was the father and, even in circumstances in which he could be identified, in many cases. Automatic guardianship of the father would not be in the interests of the child. Furthermore, the reality of many cases of birth outside wedlock is that the mother is left to bring up and provide as best she can for her child with no help or co-operation from the father. That is the reality of the position. To place a mother in those circumstances in the position in which she must consult with the father on matters concerning the upbringing of the child would impose an unnecessary burden on her. It is difficult to envisage circumstances in which it would not operate against the interests of the child. The alternative, that the mother should go to court in order to remove the father — that is assuming he could be found and identified — from guardianship is equally unacceptable in that an unmarried mother or mother-to-be has quite enough problems to face without the additional worry, expense and inconvenience of having to institute court proceedings in order to bring up her child on her own.
The approach adopted in sections 11 and 12 of the Bill is endorsed by the results of a survey carried out by the Federation of Services for Unmarried Parents and their Children. This organisation is an umbrella body encompassing most, if not all, of the bodies, both State and voluntary, which deal on a day-to-day basis with the problems faced by unmarried parents and their children. In the aftermath of the publication of the report of the Law Reform Commission the federation asked all its constituent member organisations for their views on the recommendations in the report. The results of that survey showed that the recommendations on guardianship were overwhelmingly rejected. Subsequent indications are that the proposals as enshrined in this Bill, are strongly supported by many of the federation's members. In particular, Cherish, the Association for Single-Parent Families, have been most vocal in their support for this approach. I believe that that approach was welcomed generally by all parties in the course of the debate on this Bill in the Seanad.
I am not entirely happy with the Minister's response on the net point I raised. Subsection (6) (a) itself also provides that if the mother consents in writing to the appointment of the father as guardian and the father is registered on the birth certificate rules of court shall provide a special procedure for determining an application. That recognises the validity of a situation in which a mother will consent in writing. It still obliges her to go through a court application, albeit an informal one. It is still a court application. She can be constrained to sign a form for a non-court application, or she can be constrained to sign it for a court application. The point is, if the father's name is on the certificate, and if she consents in writing then the difference between us and the Minister is slight. The Minister contends it still puts the mother through the necessity of the court application, informal, though it be whereas I am asking the Minister to consider in those circumstances letting the father be appointed as joint guardian without the necessity for that court application. The written signature of the mother is a factor already in subsection (6) (a). Why put her through the necessity of a court application? I really do not see the necessity for it in those circumstances.
I agree with Deputies Shatter and Taylor that there is no Member of this House who would attempt in any way to intimidate or render life more difficult for the mother, but, in the context of the provisions of this Bill, two factors arise. One of those Deputy Taylor has raised already, that of too numerous court cases and a lack of access to courts already experienced. None of us would want anybody to have to go through this process unnecessarily.
The other factor is one of a positive approach to encouraging guardianship. Here there is not much difference between the thinking of Members on all sides of the House. What all of us would be attempting to do on Report Stage would be to lessen the court procedures, formal procedures that could be costly and occasion long waiting lists. Above all we would not want in any way to prevent the guardianship of the father being encouraged or rendered more difficult or negative by having to go through the mechanics of a court procedure that is unnecessary if other safeguards are provided and written into the provisions with regard to the mother and child.