Vol. 451 No. 8
21 Mr. Dempsey asked the Minister for Equality and Law Reform the plans, if any, he has to legislate to allow a natural father equal access and rights to his child in view of the case of a person (details supplied) in County Westmeath. [7156/95]
23 Ms O'Donnell asked the Minister for Equality and Law Reform if he will consider the equal rights of unmarried fathers in relation to custody applications and access rights to their children following the breakdown of non-marital relationships; and if he will make a statement on the matter. [7524/95]
I propose to take Questions Nos. 21 and 23 together.
While both these questions are concerned with the rights of unmarried fathers in relation to their children, it may be useful first to compare the law applicable where the parents in question are married to each other with the legal framework governing the rights of unmarried parents.
The principal difference is the fact that married parents are automatically joint guardians of their children and, as such, would usually enjoy the right to custody of their children, in the sense of the right to physical care and control of those children.
By contrast, in a case where the parents of a child are not married to each other, the general principle is that, during her lifetime, the mother is sole guardian of her child. However, the law in this area has now been modified by the Status of Children Act, 1987, so that a father who is not married to the mother of his child may apply to the court to be appointed a guardian of that child and, where both partners are agreeable to the father being appointed guardian, there is a very simple court procedure which can be availed of. If there is a dispute, the court will determine the matter having regard to the welfare of the child as the first and paramount consideration.
In the event of disputes arising between married parents, as when a marriage breaks down and the parents cannot agree on custody or access arrangements, the Guardianship of Infants Act, 1964, provides a mechanism whereby these disputes may be resolved. That mechanism is also available to an unmarried father who may be seeking custody of, or access to, his child. Whether the parents are married or unmarried, the courts, in making a decision as to the appropriate arrangements in any one case, will always have regard to the welfare of the child as the first and paramount consideration.
The Government is committed to updating the law in relation to the guardianship of children and the current regime governing custody and access will undoubtedly be reviewed in the context of drawing up the relevant legislative proposals. However, these are sensitive and delicate matters where precise regulation is not always possible or, indeed, desirable. Any legislation in this area can at best offer an improved framework within which the jurisdiction of the courts can be exercised in the interests of all parties and, most particularly, in the interests of the individual children whose welfare is at issue.
I agree with the principle outlined by the Minister that in cases such as this the approach should be child centred. We should try to avoid tying it up legally. I brought to the attention of the Minister the case of a father who was deeply involved with his son but was denied access to him for a number of years. There is no doubt about the father's commitment to his son's development. Under the law this natural father has no legal parental rights. The Minister has said there are court systems in place whereby a father can gain access. In this case the father had to make ten court appearances over a ten-month period. When he was given the right of access by the court it was appealed to the Circuit Court and he is still awaiting a decision which will allow him access to his son. Will the Minister agree that that is totally unacceptable and that the legislation to which he referred will have to be brought forward as a matter of urgency to deal with cases such as this?
I do not know why the case referred to by Deputy Dempsey required ten applications. That seems unusual. I cannot imagine why ten applications on a matter of that nature should be required. I am aware that the courts, generally speaking, welcome applications from fathers — married or unmarried — who are seeking access to and involvement with their children. It is regrettable that there are so many fathers who do not show that level of interest. It is certainly a matter of concern that in the case referred to by Deputy Dempsey where a father seeks access to and involvement with his son there should be delays and difficulties. Part of the difficulty may be as a result of pressure on court time. The Minister for Justice would have more detailed knowledge on the timing aspects. The position is and always has been that in making decisions on questions of custody and access there is one overall determining issue to which the courts always have regard, that is the interests of the child concerned. The issue of guardianship generally is at an early stage of examination in my Department. Certainly the points made by Deputy Dempsey will be taken into account as that examination proceeds.
I have met with the person in question and there is a point which should be borne in mind. As the years go by and the father does not gain access to his son, the child, who is growing and maturing, goes through a period of alienation from the father. This is very serious because the child is of an age when it would be natural and proper for both father and mother to have access to him. It is not good enough that there have been ten applications seeking access. The months and years are passing and access is not being granted. Will the Minister agree that regardless of the position in respect of older children, a young child needs to see both the mother and the father and to know that both are interested in his development? This is an urgent case and I ask the Minister, through his good offices, to institute a review of the matter with a view to ascertaining the cause of the delay and having the case explored further. A grave injustice is being done to the father.
I agree with Deputy O'Rourke that, all other things being equal, it is important for children of any age that access and involvement should be allowed to the father. As I understand the case referred to by Deputy Dempsey, an order for access was made by the District Court but a problem arose as a result of delays in getting a Circuit Court hearing for the appeal.
In four separate locations.
It is not a matter for me to give legal advice on the issue except to say that provisions are always available under which an application can be made to any court for a special urgent hearing, having regard to the particular circumstances involved. I do not know whether that was considered by the legal advisers of the person concerned. That provision is always available and any court would look sympathetically on an application, depending on the circumstances involved. It is difficult for me to intervene directly in a particular case when the matter is sub judice. The important thing is to get the appeal disposed of as quickly as possible. Perhaps the suggestion I have made could be looked at by the legal advisers concerned and I hope it will be of some help.
The Minister has given a lukewarm response on behalf of the Government towards recognising any degree of legitimacy for the rights of natural fathers, particularly in a long term relationship such as in this case where a strong emotional tie had been established. Will the Minister agree that in modern Ireland where many children are born as a result of extra marital or non-marital relationships it is becoming increasingly urgent that we develop a social policy response to the rights of natural fathers, given that many fathers are an important emotional part of their child or children's life? A non-marital relationship can break down. In that case it is important that we develop a legislative social policy response to protect the rights of natural fathers. This matter is becoming extremely urgent, given that many children are the issue of non-marital relationships. Has the Minister considered, with the Minister for Health, the implications of the Keegan case? This case decided at European level that our adoption laws are in breach of our commitment, to recognise the rights of natural fathers. This issue falls directly into the Minister's brief as well as that of the Minister for Health. Will the Minister accept — this may have a bearing on the Westmeath case — that in many cases where it may be necessary for many applications to be made the child is being used as part of the emotional warfare as between the parties? If the mother consistently opposes the application of the father for custody this, in some measure, is based on vindictiveness. This case needs to be looked at because I am sure there are many other cases where women, quite wrongly, use their children as emotional weapons in the tussle and the breakdown of a relationship.
I am sure there are cases where children are used as part and parcel of the differences that arise between spouses and so on. It is difficult to lay down specific social guidelines in legislation on issues such as this. That is why the Oireachtas on previous occasions when bringing in the two items of legislation to which I have referred by and large left these matters to the discretion of the courts, in the knowledge that the guiding principle for the courts is the overall welfare of the child. That is as it should be. We have looked at the Keegan case in the Department. It deals primarily with the question of adoption procedures which is a matter for the Minister for Health. I am sure my colleague has that aspect of the matter under review. We are not dealing primarily with the question of custody of children but rather with access to children. I am not lukewarm about that. I regard it as highly desirable that the fullest possible access and facility should be accorded to any parent of either sex whether married or unmarried who seeks access to his or her children. All other things being equal, that is also the policy of the courts.
One factor that concerns me about the case adduced by Deputy Dempsey relates to the apparent long delay in having the matter disposed of. It is important that such cases be disposed of within a reasonable time because the longer a child is out of touch with one of the parents, the more difficult it becomes to resume the relationship one would wish to see between the child and both of its parents. I have made a suggestion as to how the matter might be addressed. I suggest that Deputy Dempsey keep in touch with me as to the outcome and if there is any way I can be of help, within the usual guidelines, I will be more than happy to be so.
In the past it has been the custom for the legislators to decide in the best interests of the child based on all the circumstances. Will the Minister not accept that until recently precedents drawn up by the courts have been firmly based on the constitutional family based on marriage, and that it is time the courts were given legislative direction to take account of the changing society in which we live and the increasing tendency of people, given that we have no divorce, to have non-marital relationships so that there are hundreds and possibly thousands of children who can find themselves alienated from their natural fathers if such relationships break down? We want the Minister, as Minister for Equality and Law Reform, to address this issue by giving some direction to the Judiciary on this new aspect of Irish life which is very important.
The question of guardianship is under consideration in my Department and the point made by the Deputy will be taken into account. Perhaps Deputy O'Donnell is being a little unfair to our courts in suggesting that they deal less than sympathetically with applications for access to children by natural fathers. My view is quite different — I think they are quite sympathetic in their approach. Indeed, in the case mentioned by Deputy Dempsey, the application to the District Court by the father for access was granted in accordance with his wishes. Whether the freedom of the courts to exercise the fullest discretion in the particular circumstances of any individual case should or should not be controlled by Acts of the Oireachtas is a matter that would require careful examination, and that will be done in the course of the examination under way in my Department.
The father in question was successful in his application for guardianship of the child. That was then appealed to the courts and, on the occasion, the judge was so busy that he could not hear the case on 23 February. The injustice to this parent and, more important, his child, is in the fact that the next sitting of the family law court in the Circuit Court in Westmeath is not until next July. The judge refused to make an order to hear the case at any of three other venues, Roscommon, Longford or Portlaoise, where the case could properly be heard before then. Meanwhile, the natural mother and her partner are planning a marriage — one is happy for them in that respect — and are openly proposing to adopt the child within the marriage. I understand following the Keating case, that is not allowable. However, emotional warfare is being waged above the head of a small child, and it is unsuitable. The refusal of the judge to hear the case at the intervening venues of which I spoke is a matter for the Department of Justice, but surely this is a case in which the Minister for Equality and Law Reform should properly intervene.
I have every sympathy with the points made by Deputy O'Rourke but, whatever my title, under the Constitution the courts are independent in their operation and no Minister may or would wish to intervene in any way in their operations. However, in special circumstances, applications can be made at any time to any judge and, if he is so minded, there is nothing to stop him hearing a family law case even in the course of a list for the hearing of other types of court cases. That is a matter totally within the discretion of judges who exercise it in accordance with the requirements of justice in any particular case and in accordance with any particular circumstances.
I thank the Minister for his approach and his helpful suggestion. However, I feel there is something seriously wrong in regard to this case. It will not be taken until July despite the earlier sitting of courts in Roscommon, Longford and Portlaoise. The judge in question discharged the access order made on 8 December on the basis of a two minute meeting with the child early in February and listed the case for July. There is something seriously wrong about that. It is not the Minister's personal responsibility but this is not acceptable in this type of case.
