I will pursue certain aspects of this matter with the Minister of State. We agree the main principle must be the welfare of children. The most important principle is that decisions made in this area regard as paramount the welfare of the children concerned. However, the State has an interest, in the context of children's welfare, in encouraging both parents of a child born outside marriage to maintain a full relationship with the child.
I sympathise with Deputy McGahon's view although I probably would not express myself in such flowery terms. Too many children are born in this State whose fathers regard themselves as having no responsibility to pay child support. In most cases the mother is left to bring up the baby with no help from the father and certainly with no financial assistance. We still have not solved the problem of what should be done to ensure that fathers of children born outside marriage meet their financial responsibilities to their children and to the mothers of their children. I doubt that we will ever find the perfect solution to that problem.
We do not always differentiate sufficiently between fathers in different circumstances and that will eventually get us into trouble with the European Court. At present, if a child or children are born to a couple who are cohabiting and have been in a regular relationship for a period of time, the father of such children is not automatically the guardian of the children. I welcome the reform in the Bill which provides for a guardianship arrangement to be established without recourse to a court order. I have been suggesting such a reform for a long time. People do not conduct their family relationships by going to solicitors' offices, getting legal advice and completing legal documentation but the format proposed in the Bill envisages the necessity for such formal action. It has merit in so far as when people enter into arrangements they will, presumably, get proper legal advice on such arrangements. However, it could create difficulties which I will draw to the attention of the Minister for State.
If a mother completes a declaration and a joint guardianship arrangement is put in place by agreement, it is important the mother understands the legal consequences so that if the relationship between her and the father runs into difficulties, there will not be a series of court cases in the future in which the mother will allege she did not obtain independent legal advice or that she did not understand the consequences of what she was doing and the joint guardianship agreement should be set aside. I am not sure to what extent the Bill addresses that problem.
I favour the availability of joint guardianship, without the necessity for court proceedings, for couples who have children outside marriage. However, if the legislation provides for a procedure in that context which requires the signing of formal legal documentation, we must ensure a mother does not, under pressure and in circumstances which are contrary to the welfare of the child, enter into such a statutory declaration. If at a later stage the mother alleges she did not agree to the joint guardianship, how is the court to deal with the issue?
People live in violent relationships both inside and outside marriage and most often the woman is the victim of the violence. Often a woman can be forced to do things under threat which she would not otherwise do. I do not disagree with the principle of the proposal but on Report Stage we must examine how it will work in practice. The documentation that is envisaged will require legal advice. Does the law ensure that before a joint declaration is put in place the mother is given independent legal advice so she will understand the consequences of what she is doing?
I raise this issue because of the many problems which have arisen over the years in the context of adoption legislation as a result of mothers signing agreements to place children for adoption and then changing their minds. There has been a litany of such court cases. That is one problem this legislation does not clearly address. If a dispute ever arises about the validity of a declaration of joint guardianship, the legislation should confer express jurisdiction on the District Court to resolve that dispute. Otherwise people might find themselves in the High Court and put to great expense to sort it out.
There is another relevant issue. In the context of the welfare of children the agreement proposed in the legislation might be concluded between people who have never cohabited, have no intention of cohabiting but who wish to co-operate in the interests of their child. The other side of the coin is that children are born to many couples who are cohabiting but who do not marry. Like marriage relationships, relationships between cohabitees break up. As in the case of marriage, when one is cohabiting and the relationship is fine one does not conduct one's relationship by concluding legal agreements and seeking the advice of lawyers. The last thing a couple want to do, often quite rightly, is approach a lawyer. They are better off getting on with their relationships.
Leaving aside the argument as to whether fathers should have an automatic joint guardianship right, we do not differentiate between children born to families in stable cohabiting relationships outside marriage and children born as a result of perhaps a single night relationship between mother and father. The Domestic Violence Act, 1996, includes a provision which, although I believe it has a number of defects, recognises the cohabitation relationship and provides certain protections for a cohabitee who is the victim of violence. That victim can get barring orders or protection orders which would not apply to people who have not cohabited. There should be a presumption of guardianship for some fathers of children born outside marriage which is in the interests of the welfare of children and should not require the signing of declarations and agreements or court orders. For example, if a couple have been living together for four or five years, have one or two children and at the end of five or six years their relationship breaks up, the children have a good relationship with both parents. Should there not be a presumption that the father of those children is their joint guardian? That should not require the initiation of court proceedings.
Under the Domestic Violence Act, if a couple have been cohabiting for 12 months, in certain circumstances a cohabitee who is the victim of violence can obtain a barring order. It would seem that our legislation needs to recognise what I would describe as the realities of family life which include an increasing number of cohabitees in stable relationships.
If we leave fathers of children born outside marriage in a different position, in relation to guardianship issues, from fathers of children born within marriage we need to have a separate category for children born of stable relationships where the mother and father have been cohabiting for a specified period of time. In those circumstances there should be a presumption of joint guardianship. If we do not do that we will at some future stage be found to have been in violation of European law. Under Article VIII of the European Convention on Human Rights and Fundamental Freedoms, the State has an obligation to provide respect for family life.
In the Keegan case relating to the adoption area we were found not to afford respect for family life because we did not recognise properly within our legal system the rights of a father of a child born to a stable relationship in circumstances where the mother placed the child for adoption after the relationship broke up.
If our legislation does not confer some presumption or automatic right of guardianship on fathers of children born to people who are cohabiting in a family relationship the European Court will force us, ultimately, to address that particular issue. We might address it in this legislation.
We should look more positively towards the concept of a presumption of joint guardianship where children are born outside marriage. I take the point that in reality few fathers annually seek orders of guardianship, even with agreement. It is quite extraordinary if one talks about providing parental equality in the context of the current legal position. I did a quick calculation based on the statistics the Minster of State gave me. She is welcome to correct me if I have got it wrong, but it seems that no more than one out of every 20 — perhaps the correct figure is 22 — fathers of children born outside marriage annually seek guardianship orders. One would have expected more to do so. I suspect more do not because they are concerned that if they did they would be forced to provide support for their children.
Though I start from a biased position where I would like to see a presumption of joint guardianship in the context of children's welfare, I cannot take seriously demands that all fathers be given automatic joint guardianship of children born outside marriage if the vast majority of fathers of such children are so little concerned with their children's welfare that they do not provide any contributions that we are aware of by way of support payments.
From my own knowledge, some fathers certainly voluntarily provide support without going to court. While we do not know how many fathers provide support towards the upkeep of children born to unmarried mothers, we know that a large number of unmarried mothers currently receive social welfare by way of a one parent family payment. I am not critical of that. The State must make that provision and it is right to do so, but the State should do some research. We cannot assume that mothers in receipt of one parent family payments never get any money by way of support from the fathers of their children. That issue has not been adequately researched and it is something that needs to be looked at in greater detail.
We also need to see what we should do as a society to encourage and ensure that fathers of children born outside marriage contribute towards the support of their children.
As we are finally addressing this issue in the legislation, we must distinguish between children who have formed a secure and ongoing relationship with their fathers in a family setting where the father and mother have been cohabiting for a period of time. In those circumstances there is no answer to the case that there should be an automatic presumption of joint guardianship. However, providing joint guardianship en bloc in all circumstances is an issue of great difficulty and debate based on our current knowledge and what appears to be the limited number of fathers of children born outside marriage who involve themselves in the lives of their children.
Up to the mid-1960s and early 1970s the law in relation to child custody issues often seemed father centred, particularly in the marriage area but less so in relation to children born outside marriage. There is a growing concern on the part of fathers of children born outside marriage, who want to be involved with their children's lives, that the law has now become mother centred. Rather than being based on the welfare of the child it is on occasion based more on the mother's perspective.
A balance is required here and I say that as someone who has worked in the area of family law and is conscious of the fact that in the context of the vast majority of one parent families of children born outside marriage it is the mother who carries the day to day burden of caring for her child. In far too many instances the father has no interest in involving himself in a relationship with his child. That does not apply where a child is born to people who have cohabited.