Vol. 482 No. 1
I wish to advise Members that a printing error has resulted in incorrect line references in pages 8, 9 and 10 of the Children Bill, 1997. This affects amendments Nos. 34 to 37, inclusive, in the name of Deputy Dan Neville. Members are requested to note that the line references referred to relate to the actual number of lines of text contained in the relevant pages of the Bill and not to the incorrect numbers printed in the Bill.
SECTION 1.
Amendments Nos. 18, 44 and 45 are consequential on amendment No. 1. Is it agreed that we take amendments Nos. 1, 18, 44 and 45 together? Agreed.
I move amendment No. 1:
In page 3, subsection (1), line 28, to delete "Children (No. 2) Act, 1997" and substitute "Children Act, 1997".
These technical amendments provide for a change in the Title of the Bill from the "Children (No. 2) Bill, 1997" to the "Children Bill, 1997". At present there are two Bills before the House, the Children Bill, 1996, which relates to juvenile justice matters, and this Bill. The change in Title is necessary as this Bill is being taken before the Children Bill, 1996.
The Children Bill, 1996, which deals with the juvenile justice area, is a very comprehensive measure. However, the Government has not yet brought it before the House. Is it intended to bring the Bill before the House with any degree of urgency?
There is a major problem with children who are unruly and beyond control and High Court proceedings are regularly brought to seek to require the authorities to provide proper facilities for them. The delay in bringing the Children Bill, 1996, before the House is delaying the putting in place of a proper legal structure to address this problem, apart from the fact that it is putting back the day when we replace the remains of the Children Act, 1908, with a modern statutory structure.
I understand the Deputy's concerns and will bring them to the attention of the Minister. It is intended to reintroduce the Bill to the Order Paper.
Does the Minister know what is happening in regard to this Bill? I expected her to be in a position to tell the House when the Bill will be restored to the Order Paper and whether it is being modified or amended by the Government. It took many years to produce this extremely important measure and it is extraordinary that the Government is delaying bringing it forward, particularly as it deals with juvenile justice matters. Is this yet another U-turn by the Government? There was much reference to zero tolerance but little reference to the core problems which lead to criminal offences, particularly by young children. I expected the Bill to be reintroduced with expedition and it is extraordinary that the Minister does not seem to know what the position is in regard to it.
There has been no U-turn or delay in this matter. The Bill is being amended by the Department and it is intended to reintroduce it to the Order Paper. The Deputy's concerns will be taken on board.
We now come to amendment No. 2. Amendments Nos. 4 and 6 are related, amendment No. 3 is an alternative to amendment No. 2 and amendment No. 5 is an alternative to amendment No. 4. Is it agreed that we take amendments Nos. 2 to 6, inclusive, together? Agreed.
I move amendment No. 2:
In page 3, subsection (2), line 29, to delete "(except section 11 and Part III)" and substitute ", except section 11 (in so far as it inserts sections 20, 21, 22, 23, 26, 28 and 29 into the Act of 1964) and Part III".
Under section 1 the Bill will come into operation one month after the date of its passing with the exception of section 11 and Part III which are subject to commencement provisions. The Minister indicated on Second Stage that commencement orders are required in respect of these provisions to ensure that the administrative arrangements necessary for their successful application are in place. The provisions of section 11 will have an impact on the work of the probation and welfare service, health boards and the Family Mediation Service. These organisations will have to be consulted about the manner in which new responsibilities under section 11 can be accommodated.
Part III may necessitate the installation in courthouses of additional facilities for evidence to be taken by live television link or by video recording. Section 11 inserts 12 new sections, sections 19 to 30, into the Guardianship of Infants Act, 1964. Deputies suggested on Second Stage that some of these new sections could come into operation without the need for a commencement order, and amendments Nos. 2 and 4 have been tabled in response to these suggestions. Under these amendments the new sections 19, 24, 25, 27 and 30 will not be the subject of a commencement order and will come into operation one month after the passing of the Bill.
The new sections deal with the following matters. Section 19 is a definition section, while section 24 will enable agreements relating to rights of custody and access to a child to be made a rule of court. Section 25 obliges the court to consider the wishes of a child having regard to his or her age and understanding. Section 27 makes it clear that a child in custody or access proceedings need not be brought before the court when the court so directs, while section 30 is a jurisdiction provision.
Deputy Moynihan-Cronin's amendment differs from the Minister's amendment in two respects. Her amendment would result in the provisions relating to mediation coming into effect one month after the passing of the Bill. She is also proposing that all of the provisions in section 11 and Part III be brought into effect not later than 18 months after the passing of the Bill. The provisions being introduced by section 11 which relate to mediation and counselling, social reports and guardian ad litem will require consultation with the probation and welfare service, health boards, the Family Mediation Service and the Departments of Social, Community and Family Affairs and Finance.
It is only following proper consultation that the provisions can be brought successfully into effect. Corresponding provisions in the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996, relating to social reports, mediation and counselling have placed a very heavy burden on the organisations concerned. The previous Government did not make the necessary resources available to enable those organisations to meet their statutory obligations. The Government is now dealing with this matter. The provisions of the Bill cannot operate without the necessary resources. Taking into consideration all that has happened in the various areas to which the Bill relates, it is reasonable to make the provisions subject to a commencement order which can be made when the necessary resources have been made available not only for the measures in this Bill but also for the 1995 and 1996 Acts. I commend amendments Nos. 2 and 4 to the House and ask Deputy Moynihan-Cronin to accept my explanation.
I am the first to admit that I am not very well up in terms of the law but I have discovered from research that some provisions of the Civil Liability Act, 1960, have still not been brought into force. The period of 18 months proposed in my amendment is sufficient and anything longer is ridiculous. I am prepared to press my amendment as the Minister must be tied to a timeframe and her amendment puts the matter on the long finger.
I am very concerned at what the Minister said, some of which is rather odd and indicates a lack of understanding of the provisions of the Bill. The Minister wants to postpone bringing into force what will effectively be section 20 of the 1954 Guardianship of Infants Act. That section places an obligation on solicitors, in proceedings under the Guardianship of Infants Act, to advise a mother or father of the alternative options available to them. One of those options is that they seek counselling to try to resolve their difficulties. When marriages break down District Court proceedings are brought to deal with disputes about custody of children, and counselling in that context is usually given by a marriage counsellor. There is a large number of agencies providing marriage counselling on a voluntary basis and private counsellors providing counselling on a professional basis, and that will not change with the passage of this Bill.
A second option is mediation. The Irish Life Centre Mediation Service, which is paid for by the Government, and the mediation service in Limerick deal with disputes not only in judicial separation and divorce proceedings taken in the Circuit Court and High Court but under the Guardianship of Infants Act where parents disagree on custody, upbringing or access issues. The other alternative of which a solicitor must advise people before they go to court is that their differences may be resolved by agreement. The Bill refers to effecting a deed or agreement in writing executed or made by the applicant and the respondent providing for the custody of the child, right of access and so on. That has nothing to do with the Probation and Welfare Service. It relates to private marriage counsellors, voluntary agencies that provide marriage counselling, public and private mediation services and the work of solicitors.
This section may have been devised by a previous Administration, but much of it is window dressing and nonsense. A Private Members' Bill which I introduced in 1989 and which was passed through the House requires that where people are contemplating separation proceedings, solicitors have an obligation to explain the options of counselling, mediation and resolving difficulties by agreement. The wording in its present form will not change the world, it will simply mean that at District Court level a solicitor must certify that he advised of the alternative options, but most good solicitors dealing with family law automatically give such advice.
It is odd to insert this provision — I would have made the same criticism of the previous Minister for Equality and Law Reform — in the context of District Court proceedings solely brought under the Guardianship of Infants Act, 1964. In cases of marriage breakdown the District Court deals with maintenance cases, applications for barring and protection orders and custody disputes. It also has limited powers under the Family Home Protection Act. It would make sense to insert a provision in a courts Bill to the effect that prior to instituting court proceedings on behalf of a party in the District Court in a family law matter, the lawyer should advise the person of these options. There is no reason that should be an obligation in custody proceedings but not in maintenance and barring proceedings. The lawyer is simply advising of options, which may be rejected by the recipient of the information for a variety of reasons.
For example, a battered wife who wants custody of her children will not take the time to go to a mediator because she feels vulnerable and needs protection. In so far as this provision has limited use, it should apply generally to District Court family proceedings, be they between married or unmarried parents. It makes no sense to postpone bringing into force the proposed new section 20 of the 1964 Act and the proposed new section 21, which imposes similar obligations on a lawyer for the recipient of court proceedings.
The Minister referred to the Probation and Welfare Service. For many years the Probation and Welfare Service has been seriously under-staffed and overburdened. That is not the fault of the last Government but of a series of Governments. When custody cases come before the District Court, the judge often requests an assessment from the welfare officer attached to the court and seeks a report on what orders should be made in the interests of the welfare of the child about whom there is a dispute. Regardless of whether this provision is inserted, that will remain the position.
The Probation and Welfare Service needs to be reorganised and given adequate staff to deal with family problems. Appropriate noises were made to that effect during the general election. Will the Minister clarify the Government's policy on that? There is a need to provide specialist family courts with back-up services. Since the Minister is tinkering around with the District Court, will she outline the Government's policy on implementing the Law Reform Commission's report on the establishment of family courts?
Will the Minister address the open-ended nature of her proposal? Deputy Moynihan-Cronin proposes that a limit of 18 months should be set for the implementation of certain subsections of this section. I ask the Minister to accept that amendment. Everybody is concerned about Bills brought through the House that are so open-ended they do not produce the results intended. There must be a timeframe to ensure resources are put in place. I accept there may be need for consultation, but if a timeframe is not set, resources will not be made available to ensure a commencement order is implemented. If 18 months is not the correct period, perhaps the Minister will suggest some other timeframe. We have all seen Bills pass through this House which state they will be implemented on such day or days as may be fixed, but they are weasel words. They do not set out the intention or how that intention will be delivered. The Minister should respond positively to this case.
I accept Deputy Moynihan-Cronin's point about the Civil Liability Act, 1960. Her concerns on this matter are genuine, as are the points made by other Deputies. The options available to people in such situations, through marriage counselling and mediation services all cost money. The Family Law Act, 1995, and the Family Law (Divorce) Act, 1996, had a huge impact in this area. In regard to mediation and counselling they placed a huge burden on these organisations, many of which are voluntary organisations and receive grant aid here and there.
In the context of this Bill it must be borne in mind the previous Government in passing the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996, did not provide the necessary resources to the organisations to meet their obligations. I accept what Deputy McManus is saying about pinning it down, but the only way to ensure services are available is to provide the necessary resources. Having passed a Bill, we can all walk out from here, and say it is wonderful and that various things will happen. The failure of the previous Government to provide the necessary resources for the two Acts mentioned has a significance here. We have to bear in mind that resources were not available even for the two previous Acts and that is an important aspect of what we are talking about.
What organisations is the Minister suggesting require additional resources to implement this provision? Is she saying people who are contemplating taking custody cases in the District Court should not be encouraged to go to mediation or counselling services and should not be encouraged to resolve their problems by agreement?
We are dealing with the Children Bill and I am not prepared to allow it remain open ended. It involves children from broken homes who are already in difficulty. If the Minister does not accept my amendment I will press it, if not now, on Report Stage. When dealing with children in difficult situations the Minister cannot say money is not available. Given that we hear about the Celtic tiger every day, this is one area for which the Government should provide resources. Children in difficulty are at stake here. By saying no money is available the Minister is attempting to put the matter on the long finger. In this day and age when plenty of money is available this is one matter the Government should make a priority.
If it is the case that essential parts of the Bill cannot be implemented because of a lack of resources, I suggest the Government's approach should be not to introduce a Bill until that problem has been sorted out. I am conscious that in areas relating to divorce there are strains on the system. The free legal aid centre in Wicklow has waiting lists for up to ten or 11 months and certainly in the area of mediation none of us could be satisfied with the provision. If that is the reason we are being offered an open-ended arrangement, which makes a nonsense of what we are doing today, I suggest the Government adopt an approach which will tackle the issue before a Bill is presented for amendment and debate. I ask the Minister to comment on that.
What are we doing introducing a Bill, the important parts of which cannot be implemented within 18 months? Eighteen months is a reasonable time in which to provide the resources necessary for mediation and other services referred to in the Bill. It makes a nonsense of the work being done here. A question was asked in the Dáil some years ago about outstanding sections of Bills that had not been implemented by previous Ministers and because of the volume of noise in the Chamber it could not be answered. If the important details of this Bill cannot be implemented and the mediation service cannot be provided within 18 months we should abandon the Bill.
Deputy Moynihan-Cronin said money should be provided in this important area which deals with children. In regard to the general point made by the Deputy, Deputy McManus and Deputy Neville that the Government should not introduce the Bill until money is provided for the various services, it is a pity the previous Government did not adopt that approach. Had that approach been adopted in the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996, we would not be in the position today where people have to wait. That point could be made about earlier legislation.
There are many other important provisions. To suggest it should not be introduced because sufficient mediation staff are not available or because of lack of funding is a nonsense. We are facing the reality following the passage of the 1995 and 1996 Acts and now the passing of this Bill. I am not saying this Bill will never come into operation, but that on its passing we can address the issues not only in my Department but in consultation with the Department of Finance. Deputies may not be aware the Family Mediation Service has moved from my Department to the Department of Social, Community and Family Affairs. It is important that Department would be aware of its commitments following the passing of this Bill. It is important to proceed with the Bill and to address the important issues before us. In reply to Deputy Shatter who asked what organisations are involved, the Probation and Welfare Service, the health boards, the Family Mediation Service and the relevant Departments all have an involvement. Perhaps that impact was not taken into consideration with the passing of the 1995 and 1996 Acts but we are taking it into consideration with the passing of this Bill.
I find the Minister's presentation quite appalling. I do not want to take issue with the new Minister of State who is, for the first time, taking Committee Stage of a Bill but she is so ill-informed on what happens in practice. The difficulty is we will enact legislation in one day which will impact on the lives of many people. In other areas, I will raise issues that will create specific difficulties. The Minister's Department in dealing with areas of family law has always lacked insight and understanding of what is happening in the real world. The Government has compounded the problem and the Minister has exposed it by what she has just said. By taking what was an extremely good Department of Equality and Law Reform and thrusting half its functions into the Department of Justice and another portion to the Department of Health and Children, the right hand does not know what the left hand is doing, and I am concerned that the right hand does not seem to understand what the left hand is doing. Frankly, the Minister's level of understanding, considering her decision to take Committee Stage today, appalls me. I will ask the Minister a specific question to which I hope she will reply without a long waffle about resources. Is the Minister telling the House that if people consider taking custody cases at District Court level they should not be encouraged to either get help from a counsellor, go to mediation or to resolve their problems by agreement? Is the Minister saying that should not happen?
The Deputy is not the only one in this House who has an expert knowledge in this area. All of us have a role to play. All of us have an equal understanding of the facts before us. There is no point in one person setting himself up as an expert in this area. Whether the Deputy likes it or not, we are talking about responsible Government.
The Minister is avoiding this relevant question. She is suggesting that a section of the legislation should not be brought into force at this stage. That section places an obligation on solicitors to advise people that they can resolve their problems through counselling, mediation or by agreement through solicitors without taking the matter to court. Is the Minister of State claiming this is not happening or should not happen?
I am simply stating that resources must be provided for that type of facility. It is correct to say that option is available to solicitors and while it is wonderful in theory, it must be paid for. As a responsible Government, we must ensure the necessary resources are available.
As the Minister of State is unwilling to accept a timeframe of 18 months, does that mean it will take longer than 18 months?
We cannot put a timeframe on the implementation of this provision until the question of resources is clarified. It will depend on negotiations with the relevant Departments and sectors involved. The timeframe could be shorter or longer than 18 months.
The House is entitled to information on this matter. If this section is not brought into force we will be back here in 18 months or two years' time discussing the matter. Will the Minister of State clarify the counselling organisations she perceives require additional funding for this section to be brought into force? What additional funding does she propose to give to lawyers in private practice or in law centres to encourage people not to go to court to resolve their difficulties? What finance should be provided for the mediation services? The Minister of State claims she knows additional resources are necessary, but has the funding been quantified? What role, if any, have the health boards played in the resolution of custody disputes between parents at District Court level?
In terms of quantifying the amount of funding, that is what we are discussing. I presume the Deputy is aware that marriage counselling and mediation services are provided by a large range of people and organisations. This matter was dealt with by the former Department of Equality and Law Reform, but it now comes under the remit of the Department of Social, Community and Family Affairs. The necessary funding must be quantified by that Department. Following the enactment of the legislation we will contact the relevant organisations and we hope it will not take 18 months.
Before enacting the legislation, will the Minister of State name the marriage guidance counselling agencies which requested her not to bring this section into force at this stage? Has any State or private mediation agency requested her not to bring this provision into force? Did she receive correspondence from individual solicitors or the Incorporated Law Society stating that they should not be required to advise people about alternatives to going to court?
I am not aware of correspondence from solicitors or the Incorporated Law Society in that respect. However, we have a large file of correspondence from marriage counselling and other such organisations seeking additional funding.
I am talking about this section, not about additional funding. Every agency in the State would like more funding for a variety of reasons, but has the Minister of State received a letter from a marriage counselling agency requesting that this section should not be brought into force until it receives more funding?
I am conscious of the concerns of organisations regarding funding.
The Minister of State did not receive a request from any agency in that regard.
The Deputy is not willing to listen to my answer. The groups that would be concerned about this section have been writing to us since I took up office about the problem of funding, predominantly because of the l995 Act. We could paper walls with the amount of correspondence we have received from people with concerns about funding. We will ensure the necessary funding is in place before placing additional responsibility on those organisations. We have received a huge amount of correspondence, but not specifically in regard to this section.
Not about this Bill or about the l995 Act, which proposed nothing new in this area.
We would not act irresponsibly by introducing this provision without taking account of resources. That was the policy of the previous Government. We will deal with the matter at the appropriate time and I hope that will be sooner than 18 months.
That is nonsense.
The Minister said the mediation service has been transferred to the Department of Social, Community and Family Affairs? Is that correct?
Yes.
That is another argument for putting an 18 month timeframe on the implementation of this provision. While I accept the Minister of State is concerned about this matter, we depend on another Minister to make commitments about resources without having to adhere to a timeframe. Has the Minister of State received a commitment from the Minister for Social, Community and Family Affairs in that regard?
Because the Minister for Social, Community and Family Affairs has responsibility in this area we must discuss in detail the commitment of his Department. While I am sure the Deputy understands I cannot make a commitment today for another Minister or Department, it is our priority to enter into discussions with the relevant people once the legislation is passed. This is a small section of the legislation. We must proceed to enact the legislation and then ensure the necessary resources are provided for its implementation.
I despair of the Minister of State dealing with this matter in a sensible manner. We must send out a clear message about the Government. It is actively discouraging mothers and fathers from trying to resolve their problems through counselling, mediation or by agreement rather than in the District Court. It is opposed to the idea of a legal obligation being placed on lawyers to ensure people can explore those alternatives. It believes that all those issues should be dealt with in the under-staffed court structure. The Government is not providing additional welfare officers at District Court level. That is an extraordinary approach. By not maintaining the Department of Equality and Law Reform as a separate Department, the Government has fragmented the functions that were brought together under one umbrella in that Department and made it more difficult to provide a co-ordinated responsive family service for people with family difficulties. The Minister of State does not know what might be done with regard to providing additional funding to the mediation service and has no control over the issue.
I disagree with the Deputy about the Government's advice, discouragement or lawyers' obligations. A later section deals with improving the position to ensure people will not have to go to court. The Government is not actively discouraging people, but addressing the failure of the previous Government in this area.
The Government is simply not encouraging them.
The Department of Justice, Equality and Law Reform is dealing with the issue before us. The Department of Social, Community and Family Affairs is the appropriate one to deal with family issues and the Family Mediation Service has been properly placed in that regard.
Why is that Department not dealing with the Bill?
What we are dealing with here is addressing the failure of the previous Government in this area. At least we are willing to face up to it and the Deputy should do likewise.
I am disappointed the mediation service is under the responsibility of the Department of Social, Community and Family Affairs. Why is the Bill not being dealt with by that Department? The Government's decision to disband the previous Department of Equality and Law Reform was reckless because related issues came under one umbrella in that Department but they have now been fragmented. I am concerned about the 18 months' timeframe. I appreciate the Minister of State may not have expected to take the Bill at this time, but I will press my amendment on Report Stage.
Deputy Moynihan-Cronin is not pushing her amendment at this stage. This matter was raised on the Order of Business today. It is clear without proceeding further that areas of the Bill will need to be amended and, with no disrespect to the Minister of State, I suspect she will not be able to deal with them in the House. The worst of all worlds would be to pass all Stages today and put in place grossly ineffective law reform legislation. The party Whips may or may not be discussing this behind the scenes. Will the Minister of State agree to take Committee Stage today and Report Stage another day so that she and her officials can reflect on what might be said as we go through the Bill with regard to other sections that may require more detailed consideration?
I agree with that. That is why my party leader raised this matter this morning. This Bill is too important and technical and there is too much involved in the amendments to deal with Report Stage today. I ask the Minister to consider dealing with only Committee Stage today.
This is a detailed Bill and there are many amendments before us. In terms of being helpful, I have no problem about leaving the final Stages until another day and dealing with only Committee Stage today which would probably help the Deputies.
That is very helpful.
There is some difficulty in that regard. The Order of the House has dictated that we deal with all Stages today. We could send a message to the Whips——
I formally propose that we hereby amend the Order of the House today with regard to the reference contained in it to this Bill to the extent that the reference to completing Report Stage be deleted from it and that we complete Committee Stage today.
I am not sure if, procedurally, we can do that now, but I will ask the Whips to get together immediately to agree to amend the Order of the House, if need be, to facilitate what the Deputy said. I do not believe we can simply change the Order as suggested by the Deputy.
We can, Sir. With respect to the Chair, it is a function of the House to amend an Order of the House and if the Minister and the Deputies present agree I do not see the need for the Whips, who have not been party to these discussions, to be apprised of the exchanges that have taken place. It is my understanding that the House controls its business and if Members agree to amend the Order for the day, they can do so, if it is not a matter of contention on all sides.
Before we go through further parts of the Bill, it is in the interest of all Members to agree this. It may also reduce the level of discussion necessary because if we raise issues that the Minister will consider before Report Stage, we will not have to discuss them at as great a length as would be necessary if Report Stage were to be taken today. Perhaps the Minister of State could agree that by consensus we should amend the Order of the House. I do not believe any of her other colleagues would be too put out by her doing that.
This matter was raised on the Order of Business this morning. I discussed it at that time with the Government Whip and there is no problem from our point of view with regard to this matter.
Whatever the Chair considers is right should be done, but there is general agreement on this matter. On the Order of Business there was some concern to ensure that Report Stage was taken on a separate day.
I wish to clarify if it is proposed that Committee Stage should be open-ended and could resume, if need be, on another day or is it proposed it should be completed today?
It would be probably agreed that Committee Stage should be completed today provided we can deal with the amendments and that Report Stage should be taken on another day. We want to separate Committee Stage from Report Stage and there appears to be general agreement that Committee Stage should be completed today. There is plenty of time to do so and I do not see that being a difficulty.
I move amendment No. 4:
In page 3, subsection (3), line 31, to delete "Section 11 and Part III" and substitute "Section 11 (in so far as it inserts sections 20, 21, 22, 23, 26, 28 and 29 into the Act of 1964) and Part III".
Amendment No. 7 is in the name of the Minister, amendments Nos. 8, 11 and 50 are related and amendment No. 10 is consequential on amendment No. 7. It is proposed that amendments Nos. 7, 8, 10, 11 and 50 be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 3, subsection (3), line 32, to delete "the Minister for Equality and Law Reform" and substitute "the Minister".
Amendments Nos. 7, 8, 10 and 11 are technical. They reflect changes in titles and responsibilities of certain Departments in sections 1, 2 and 3 which have arisen since the publication of the Bill. Amendment No. 50 is also technical. There are references in the Child Abduction and Enforcement of Custody Orders Act, 1991, as amended by the Family Law Act, 1995, to the Minister for Equality and Law Reform and those references are updated in amendment No. 50.
I move amendment No. 8:
In page 3, lines 36 to 40, to delete subsection (4) and substitute the following:
"(4) An order under subsection (3) relating to section 11, in so far as that order relates to section 47(1)(b) of the Family Law Act, 1995, shall not be made without the consent of the Minister for Health and Children.".
Amendments Nos. 9 and 53 form a composite proposal and they may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 4, subsection (5), line 1, after "1964", to insert ", the Acts referred to in the Schedule (in so far as they relate to the guardianship of children),".
There are about nine Acts which amend the Guardianship of Infants Act, 1964, and I ask the Minister that they all be cited together. It should be tidied up.
There is too great a tendency to produce legislation which deals with piecemeal amendments to earlier legislation to the degree that Acts are becoming completely and utterly incomprehensible. This is not a personal criticism of the Minister; it is a criticism of successive Governments. It is impossible for a person or a Member who is not a lawyer, or even a number of members of the legal profession, to come to terms with the legal provisions which apply in the family law area by simply looking at the Acts of the Oireachtas. It is like putting a jigsaw puzzle together and trying to make sense of it.
This Bill was produced by the previous Government and the Minister is burdened with guiding it through the House. It is a jigsaw of interaction with a variety of other statutory measures. The Family Law Act, 1995 could be similarly criticised, as could the adoption legislation which is basically chaotic in the manner in which it is laid out.
As someone who has drafted legislation, I am well aware that when the official or law officer of the State comes to the drafting stages he or she must be intimately familiar with the legislation which he or she is amending. It would be much simpler if we changed the practices in this House and, instead of producing amending legislation such as this, Deputies were provided with a copy of the Guardianship of Infants Act, 1964, as it stands amended as a result of changes made in the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, the Courts (No. 2) Act, 1986, the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996. If we published legislation which contained all of the existing law together with what is to be the new law, that is, the amendments to it, in different print, Deputies when fulfilling a legislative function would see the law in one piece of legislation. That Bill when enacted would replace the 1964 Act and other relevant provisions in earlier legislation. We should be consolidating as we are reforming. What we are doing is creating a body of law which is virtually incomprehensible.
When it came to finding out the definition of dependent child for my recent family law book, which should have been relatively simple, I had to go through seven statutes because nobody had bothered replacing a definition from one statute with a full definition in another; they had messed around with bits and pieces of it.
Our legislation is becoming increasingly incomprehensible. When this Bill is passed, in so far as there is anything new in it — there are one or two new areas which are very important but much of it is window dressing — it will just add another layer of confusion. It is reaching the stage where practising lawyers who must advise people are confused as to law. It is impossible for the general public and social workers. It often creates confusion even within the Judiciary.
I appreciate that Deputy Moynihan-Cronin's amendment is designed at least to put together in a Schedule the relevant legislation. That is helpful to anybody looking at it, but we should no longer legislate in this way. Deputies have tolerated our legislating in this way for too long. I do not know the reason for this. It may be just a bad habit.
It also facilitates — this is not a criticism of officials in any Departments because that would not be fair — those few people in Departments who have an expert legislative knowledge of existing law in retaining control of information. I am sure the Minister has labyrinthine notes in front of her to deal with all sorts of queries which might arise about the interaction of this Bill with other Acts. For the Minister to deal with them herself she would have had to become an instant expert in a variety of legislation going back over 30 years. It would be much easier for the Minister dealing with it if she had one piece of legislation in front of her which highlighted where the changes occur. If this House is to do its business in future, I suggest — and I will ask my Fine Gael colleagues to propose this to the Committee on Procedure and Privileges — that, when a Bill of this nature is published, an updated version of the current law containing all the amendments should be circulated to Deputies so that they, who must undertake three weeks research just to work out how some section will interact with another at present, can prepare for Committee Stage. Such a basic information tool should be available to all Members who are taking Committee or Report Stage.
I have no objection to the amendment proposed by the Labour Party but it does not solve our problem. I have said to colleagues who were in Government and I am saying to the Minister that this would be helpful. There is a need to codify the law in this way, particularly in the area of family law where the statutory provisions are becoming completely incomprehensible.
In principle, everybody might agree with the points being made. Deputy Shatter's point with regard to raising the issue at the Committee on Procedure and Privileges is probably relevant.
The effect of the amendments before us is to provide for the collective citation of this Act except Part III and the 1964 Act with the Acts listed in the Schedule in so far as they relate to the guardianship of children. In addition, they provide that relevant sections of those Acts should be construed together as one Act.
The collective citation and construing together of statutes is a drafting device which requires each and every relevant part of the Acts to be construed as if they had been contained in one Act unless there is some manifest discrepancy making it necessary to hold that the latter Act has to some extent modified something found in the earlier Act.
The device is usually used in relation to Acts which relate to one particular topic. This is the point at issue here. These amendments as currently framed attempt to encompass a wide variety of Acts dealing with various topics which may affect the guardianship of children. Even at that, the amendments are obviously of concern because of the variety of topics. For example, they omit any reference to the Succession Act, 1965, section 8 of which repealed section 7(7) of the Guardianship of Infants Act, 1964. The amendments include the Family Law (Divorce) Act, 1996, which makes reference to various orders made under the 1964 Act, but exclude reference to the Child Abduction and Enforcement of Custody Orders Act, 1991, which contains similar provisions. That is the danger in attempting a wide-ranging provision of this nature.
It would seem that a purpose of the amendments also is to draw to the attention of practitioners a list of the Acts which are relevant to the Bill. However, as can be seen from page 2 of the Bill, under the heading "Acts Referred to", there is already such a list available.
The question of dealing further in the Bill with collective citations was considered in the course of drafting and it was found not to be feasible to go any further at that time. I understand the course of action Deputy Shatter has attempted to address. Everyone concurs with his point that life would be easier if the text of legislation was more readable. This is an important point to consider in light of the amendments under discussion because there are many issues which affect the guardianship of children. I cannot accept the amendments but Deputy Shatter's suggestion that the matter could be raised at the Committee on Procedure and Privileges is welcome.
I thank the Minister of State for her reply. If this amendment achieves nothing else, it raises the issue that the wording used in legislation, particularly in Bills relating to children and family law, is not user-friendly. Many people, including a number of solicitors, have problems in dealing with this document. One can only imagine the difficulties faced by parents reading the Bill to discover what it entails. We should attempt to be more user-friendly because the people who elected us want to know what is happening. I tabled an amendment, which will be dealt with later, that covers a similar aspect of this problem. I accept Deputy Shatter's proposal that this matter should be raised at the Committee on Procedure and Privileges.
I move amendment No. 10:
In page 4, lines 4 and 5, to delete subsection (1) and substitute the following:
"(1) In this Act—‘the Act of 1964' means the Guardianship of Infants Act, 1964; ‘The Minister' means the Minister for Justice, Equality and Law Reform.".
I move amendment No. 11:
In page 4, lines 17 and 18, to delete "the Minister for Justice, the Minister for Equality and Law Reform or the Minister for Health" and substitute "the Minister, the Minister for Health and Children or the Minister for Social, Community and Family Affairs".
Amendment No. 13 is an alternative to amendment No. 12. Amendments Nos. 13, 21, 33 to 38, inclusive, 47, 48 and 54 are cognate on amendment No. 12. Therefore, amendments Nos. 12, 13, 21, 33 to 38, inclusive, 47, 48 and 54 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 12:
In page 6, to delete lines 11 to 19, and substitute the following:
"(b) declare that they are the father and mother of the child concerned,
(c) agree to the appointment of the father as a guardian of the child,
(d) have entered into arrangements regarding the custody of and, as the case may be, access to the child, and
(e) have made a statutory declaration to that effect as may be prescribed by the Minister for Justice, Equality and Law Reform.".
This is a technical amendment. Section 4 allows a father who has not married the mother of his child to be appointed a guardian of the child by agreement with the mother without the need to go to court as at present. Subsection (4) sets out certain conditions and the effect of amendment No. 12 is to make it clear that one of those conditions must be that the parties involved must make a declaration that they are the father and mother of the child concerned.
The effect of Deputy Neville's amendments would be to substitute the word "care" for the word "custody" in this Bill, in parts of the 1964 Act and in the Judicial Separation and Family Law Reform Act, 1989. These amendments are not acceptable for the following reasons.
The amendments tabled by Deputy Neville substitute the word "care" for the word "custody" in some but not all sections of the 1964 Act. The word "custody" would continue to be used in those sections of the 1964 Act which are not being amended by the Bill which would create legal and technical difficulties. For example, section 11(2)(a) of the 1964 Act empowers the court to give directions regarding the custody of a child. New section 11A which is inserted by the Bill is intended to clarify section 11. However, section 11, a substantial section in the 1964 Act, contains different terminology. Similar problems would arise with the Judicial Separation and Family Law Reform Act, 1989, as a result of the Deputy's amendments.
The main difficulty with the amendments is that under the law as it stands the word "care" has a specific meaning in the Child Care Act, 1991. A care order as defined by section 18 of that Act has the effect of committing a child who has been ill-treated to the care of a health board, thus depriving the child's parents of custody. On the other hand, a custody order granted under the 1964 Act has the effect of granting custody of a child to one or both parents. It is clear that were the spirit of Deputy Neville's amendments to be followed, custody orders would also be known as care orders. The Deputy's amendments, which are well-intentioned, would serve only to confuse the issue.
I commend amendment No. 12 to the House. However, I am not in a position to accept Deputy Neville's amendments.
I tabled these amendments on the basis that language and perception are important when dealing with family law. The definition of the word "custody" lists the terms "confinement", "imprisonment", "restraint of liberty", "watch", "guardianship" and "care". The word "care" has connotations of parenting while the word "custody" has connotations of imprisonment. The purpose of the amendments was to change the language used in dealing with matters involving the custody, parenting, etc., of children.
It is significant that the Minister of State indicated that difficulties would arise if certain sections of the 1964 Act were not amended. This confirms the view expressed by Deputies Moynihan-Cronin and Shatter on consolidation and understanding, namely, that those of us who are not lawyers are inhibited by the approach taken to reforming legislation. I take the Minister of State's point but we should reconsider the language used in the areas of family law, children, separations, etc., because, as I understand it, the term "custody" refers to a person who is imprisoned. There is a contradiction in using this term to refer both to children and prisoners in jail.
This is an important issue. Deputy Neville is correct to state that the use of language in dealing with family disputes is extraordinarily important. There are those, particularly lawyers, who frequently use language insensitively and do not realise its impact on people. However, another part of the problem is that there is a widespread misunderstanding of how the law works. I warn the Minister of State that what I will say is relevant not only to this issue but also to other sections of the Bill and it is one of the reasons it was important not to deal with Report Stage today.
Whether one terms the arrangement put in place regarding the parent with whom a child will primarily reside as a "custody", "care" or "other form" of arrangement — my example applies to instances of marriage breakdown or the break-up of stable cohabiting relationships when there is concern about the upbringing of children — difficulties will arise about the fact that a battle for custody is seen as precisely that, and parents are perceived to be at war with each other. Award of custody is often taken to be some sort of note of parental approval and parents, married or unmarried, often do not understand that granting a court order of custody to one parent does not mean they are excluded from being involved in the lives of their children or making important decisions about their upbringing and welfare. The word "custody" has developed a bad name, particularly on the part of many fathers who do not succeed in having a custody order made in their favour in the courts.
This Bill seeks to address that by providing that the courts can make joint custody orders, but without analysing what that means. This creates a very real problem, and it is something the courts pragmatically try to work their way through. It was not dealt with in the Bill in its original format when published and it is not dealt with today in any of the Minister's amendments. Effectively custody means one thing only — the parent with whom a child primarily resides. Joint custody orders are fine in the context of resolving the psychological problems that arise when one parent is awarded custody and the other is not. However, the only circumstances in which the courts make orders is where people are at war with each other, where parents do not live with each other and decisions must be made about a child's upbringing. A joint custody order does not solve any problem because it does not specify with which parent a child will reside. In the case of warring parents whose marriage has broken down and who both want custody of their child, the judge, having listened to all sorts of evidence during the course of a two hour court hearing, may decide they are both reasonable parents and make an order of joint custody. Those two people may wonder what that means. They live in separate houses. They have just had a dispute as to who should have custody, and now they have joint custody. Are they to divide their child in half? Is the child to be subjected to living three and a half days with one parent and three and a half days with the other, or will the child end up spending alternate days with each parent? How would such a child put down roots and get on with its life of getting on with schoolwork, making friends and having normal social relationships? What adults want for children does not always work for children and is not always in the interests of their welfare.
The word "custody" about which Deputy Neville is rightly concerned is a problem for many people. That is why he suggested the concept of care. Joint custody poses even greater problems. People think it is a panacea to resolve the issue, but it is not, and there are things that need to be done with this Bill to resolve problems in this area. Everyone seems to have lost sight of the fact that if a marriage breaks down and there is a battle over children both parents remain joint guardians of the child, regardless of which parent gets custody of the child. The 1964 Act says that. The Supreme Court said that in 1951.
In practice when there is a battle for custody in the courts, the judge makes a decision and one parent gets custody and the other parent thinks he or she has lost out, but the judge rarely if ever delivers an address to the people before the court to the effect that they are both parents and that, regardless of the parent to whom custody is awarded, both remain and will continue to be joint guardians and must co-operate as joint guardians in the interests of their children. Just as we are imposing an obligation on solicitors to advise people that they can avail of mediation, counselling, etc., we should under section 11 of the Guardianship of Infants Act, 1964 impose an obligation on members of the Judiciary when determining a custody dispute to draw to the attention of the couple before the court the fact that they will continue to remain joint guardians of their child and must co-operate with each other as joint guardians. That is not just a formula. It should be said. It is very important that it is understood. In my experience people do not usually understand it. Often lawyers, mediators and social workers do not fully explain it either.
The courts cannot simply be granted power to make orders of joint custody because some judges who have difficulty in deciding family problems at some level will hear the dispute and make an order of joint custody, telling the parents that they have had their battle, that he did not like the way they battled, that they can have joint custody and that they can go off and sort out between themselves what that means. If that happens to a dysfunctional family it is disastrous for their children. It is exasperating that the people who draft legislation do not often check what happens in practice in the courts. They legislate in areas where they have no experience of what is happening on the ground. The result is that they produce daft solutions such as the joint custody solution in this Bill.
The courts can make general orders as to the welfare of children under section 11(1) of the Guardianship of Infants Act, 1964. Many judges, because they are aware that the word "custody" conjures up images that are unhelpful when there is a family dispute, make orders for joint custody but specify what the residential arrangements are to be, for example, that a child will reside with the mother for five days of the week and with the father every second weekend. This is spoken of as residential arrangements so that the sting in the tail of the word "custody" as it is publicly perceived does not apply.
In this House everyone thinks guardianship and custody orders are being made, and there are still plenty of formal custody orders being made, but very often it is residential orders that are being made, because judges have a general power to make any order they like in regard to the welfare of a child under section 11(1) of the Guardianship of Infants Act, 1964. It is time we gave statutory form to what is happening in practice.
It is not good enough to include in the Bill a general power to make joint custody orders without explaining that when making a joint custody order the judge has an obligation to set out with which parent the child is to primarily reside. There are excellent judges dealing with family problems at all levels of the courts who have tremendous insight and are aware of the difficulties the use of language causes. However, we still have some awful judges who make awful decisions and deal with people who have family problems in an appalling way. My law firm is aware of cases where, behind closed doors, people who have solved their family problems and who have gone to court looking for consent orders have found themselves subjected to verbal abuse from the judge who is asked to make the consent orders. I do not know why that happens.
I suppose that, just as not all Members of this House are perfect, neither are all members of the Judiciary. One can assume, when passing family law legislation, that there is a solid body of people who will apply it in a sensible and sane way. However, there are, unfortunately, some who will not. We need to resolve this problem particularly as it affects fathers, who feel particularly badly done by in custody disputes, and that they have lost out in regard to their children because it is more often the mother who is given custody. That is an issue I will come back to at a later stage in a different context.
Let us ensure that all parents who are married understand that they remain joint guardians when there is a dispute over custody. Let us ensure that if the courts make joint custody orders the judges not alone have express statutory powers to delineate the residential arrangements but an obligation to do so in the case of those judges who may decide not to do that simply because they have been irritated by listening to the couple in the witness box. Let us put in our legislation a definition of custody. One of the oddities of our family law legislation is that the word "custody" is used all over the place but there is no definition of what it means.
The definition I have given, that custody essentially means the parent with whom the child primarily resides, is the definition that as a family lawyer I take from the way the system works, that custody means the parent who has physical custody of the child for most of the time. Why do we not define what we mean by custody in our legislation? That would differentiate it from guardianship.
Deputy Neville has suggested that we replace the concept of custody with the concept of care. That is worthy of discussion here but it would not resolve all the difficulties I raise with the Minister. I hope she will look at what I am saying constructively. That is one of the reasons I did not want us to take Report Stage today. There are a number of amendments which would not be difficult to draft and which should be incorporated in the Bill. They would not alone solve legal problems but ensure the courts would address the totality of the impact of a custody order when there are warring couples before them. This is also relevant to unmarried parents in dispute where both parents are guardians. As they feed their way through the system they would in the resolution of family problems help the parent who loses out to understand that they still have a strong legal relationship with the child who lives for more of the time with the other parent.
I agree with the general thrust of the amendment. Amendment No. 43 in my name deals with a similar matter.
I hope Deputy Neville who has made his suggestion about the use of language with the best of intentions will accept the point I made about care and custody orders which are an important part of the Child Care Act.
Deputy Shatter made many interesting points which will be taken into consideration. He mentioned that the parent who loses out and is not granted custody should understand that they remain their child's guardian. This relates to people's understanding of the language used in judgments handed down in sensitive cases.
While I accept Deputy Neville's point I trust he understands I cannot accept the amendments for the reasons given. A difficulty arises in regard to the meaning of the word "care" in the Child Care Act as distinct from the word "custody". A further difficulty is that certain sections would be in conflict. This highlights the need for consolidation.
While I accept there is a need to avoid confusion with the Child Care Act, it is not beyond us to ensure the language used in family law legislation is conducive to the resolution of problems rather than the creation of divisions. On the basis that difficulties would arise in regard to the Child Care Act I have reservations about pressing the amendment. However, I note that the Minister of State accepts the points I made in regard to the use of language in family law legislation, in particular the word "custody" in the relationship between parents and children.
I draw the attention of the Minister of State to the new section 2 to be inserted in the 1964 Act. We define words in an odd way. It should be simple to know what the word "child" means in legislation relating to the guardianship and custody of children. It is defined as a person who has not attained full age. If one wants to know what "full age" means one has to look up the Age of Majority Act, 1985, which was subsequently amended. This nonsense is so mindboggling and awful that I do not know why we do it in legislation. Why can we not say that "child" means a person who has not attained 18 years, if that is what the Minister means? That would mean something to people. As we are all aware, the age of majority is 18. If it means something else that should be spelled out.
I do not want to be told that this is the formula used in other legislation. It is equally incomprehensible in other legislation to ordinary people. What does "full age" mean? When one is 13 one has reached the full age of 13 and when one is 40 one has reached the full age of 40. It used to be called the age of majority, I do not know from where the phrase "full age" came. I do not care if it is the formula used in other legislation, it should not be used. If we are talking about persons up to the age of 18, the Bill should state that "child" means a person who has not attained 18 years.
I wish to raise a matter that I raised with the Minister for Equality and Law Reform. My recollection is that not much was done about it. I will give the Minister of State a concrete example of what I am talking about. This section re-enacts provisions inserted in the 1964 Act by the Status of Children Act, 1987. I wish to refer to the position of parents when the courts grant decrees of annulment. If one is granted a High Court decree of annulment it effectively means that, although one has been through a ceremony of marriage, it is null and void. The father of children born to a couple whose marriage has been annulled is not placed in the same legal position as the father of children born to a couple who have not been through a marriage ceremony. There are special provisions, the effect of which is to preserve the guardianship rights of the father of children born to a couple whose marriage has been annulled. One can argue that it is highly illogical to treat the father of children born to a couple whose marriage has been annulled differently from the father of children born to a couple who are cohabiting and have not bothered to go through a ceremony — in that context one can make a sound argument to which we will come later — but in the context of nullity cases there is a particular problem which could be addressed simply by a two sentence addition to the Bill.
Each year 60 to 70 decrees of annulment are granted by the High Court. On occasion decisions are appealed to the Supreme Court. With the onset of divorce it is likely that the number of decrees of annulment being granted will reduce. However, a number will remain.
A couple go through a very expensive court process in getting a decree of annulment in the High Court which can become even more expensive if there has to be a Supreme Court appeal. When a decree of annulment is granted it involves a declaration that the marriage is at an end. The couple whose marriage is annulled are often living apart but may be still living under the one roof and they separate only when the decree of annulment is granted.
In the case of many decrees of annulment there have been one, two or three children born to the couple. The judge can decide to grant the decree of annulment but cannot, during the nullity hearing, hear evidence about the welfare of the children so as to facilitate the court also taking a decision as to with which parent the child or children should primarily reside — in other words, which parent should have custody.
I have talked about this for a long time because, unfortunately, all these cases are heard behind closed doors and Members will not be aware of them unless there has been some type of protest on the part of the individuals involved. As a lawyer I was involved in a nullity case which took 18 months to be heard in the High Court and another 12 months for the Supreme Court appeal to be heard. In the end the marriage was annulled. There were a number of children of the family and the parents could not agree on the custody issue. Because other matters were involved, the whole issue had to be referred back to the High Court to resolve the custody dispute. Because there were property issues to be resolved, everybody ended up in the High Court again. I thought it was utterly insane that the High Court, when hearing the original nullity case, could not have dealt with the simple issue of which parent should be the primary custodian. It was totally insane that they both had to incur the legal expense of going over it all again. The family history, in so far as it was relevant to the custody issue, had to be re-explained two years later to a new judge hearing the custody case.
A simple amendment should be tabled to the Bill to provide that, just as at the conclusion of judicial separation or divorce proceedings, the courts can determine custody disputes between parents at the conclusion of nullity proceedings. It will not cost anyone anything to do it. Curiously, it might even save the State legal aid system money because some of these cases are dealt with through the Government law centres.
It is a mystery to me why the Minister for Equality and Law Reform within the tenure of the last Government would not change the law, as is the fact that this issue is not addressed in this Bill. I hope this Government will address this very simple, straightforward issue because it makes a lot of sense that it be dealt with.
We can certainly discuss and carefully consider the last points made by Deputy Shatter.
With regard to a child who has not attained majority, an attempt is being made to ensure overall consistency because 18 is not necessarily the accepted age of a child in that, in the case of an individual under 18 who has already married, he or she is no longer regarded as a child. Neither is an individual over 18 in full-time education regarded as a child. It is generally accepted that "child" means a person who has not attained his or her majority.
As I understand it, the Guardianship of Infants Act applies, in the context of custody issues, only to individuals up to the age of 18. We now have a law in force which provides one cannot marry if under 18 years of age without a special court dispensation. The Minister might find out for Report Stage how the provisions of the Family Law Act, 1995 are working in practice. Its provisions have been in place for over a year which means that persons under 18 years of age cannot marry without exemption from the courts. Perhaps the Minister could ascertain how many have done so. Why can we not say a child for the purposes of this Bill means a person who has not attained 18 years of age and who is not married?
Perhaps this would be a reasonable amendment for Report Stage which might be considered by the Minister in the interim.
Amendment No. 14 in the name of Deputy Neville. Since amendment No. 15 is related and Nos. 16 and 17 are alternatives to No. 15, I suggest that amendments Nos. 14 to 17, inclusive, be taken together. Is that agreed? Agreed.
I move amendment No. 14:
In page 6, before section 5, to insert the following new section:
"5.—The Act of 1964 is hereby amended by the insertion of the following section:
‘2A. In relation to cases to which section 2(4) would have applied but for the fact that the mother has withheld her consent, the court may order her to do so if it decides it was unreasonably withheld.'.".
I welcome the requirement that fathers must go to court to become guardians of their child or children will no longer apply following the implementation of this Bill. However, the Bill falls short of what is required to address the position of single fathers who wish to fulfil their role, obligations and responsibilities as a parent. Single fathers, as of right, should have an entitlement to a relationship with their child or children.
To date the presumption in law has been that single fathers do not have such right and must seek and obtain agreement to that right. The requirement to have arrangements made with regard to access to the child or children as a precondition to availing of the best benefits of the section could give rise to a catch-22 position in the case of fathers in that their not having guardianship can be detrimental to their prospects of obtaining satisfactory custody and access rights. Yet a single father cannot obtain guardianship unless custody and access arrangements have been agreed. The changes outlined in the Bill do not render it any easier for a single father to establish guardianship or joint guardianship in that, in cases where the mother agrees, the courts would probably grant guardianship to the father anyway. Under the law as it stands children of single parents are discriminated against in comparison with those of a married couple in their relationship with their father, that relationship having an inferior status in the eyes of the law and of society in general.
My amendment stipulates that the fact that the mother has withheld her consent should not be decisive, that the court may order her to grant consent if it decides it was unreasonably withheld. In other words, the court would take that decision rather than have the withholding of the mother's consent upheld. We are progressing from the point at which it is the norm for fathers to be entitled to joint custody unless there is a strong reason for withholding such consent. In other words, we are progressing from the point at which the father must make a case or apply for and justify his position in order to obtain custody rights to his child or children.
I should like to comment on my amendment No. 15. This is a very important section. Deputy Shatter mentioned the overall issue of joint guardianship being central in parenting. As the Minister of State correctly pointed out, it applies as a principle only in the case of married parents; it is not an automatic principle in relation to unmarried parents.
This section seeks to modify the process whereby an unmarried father can become guardian of his child or children but does not grant it as an automatic right. I challenge the approach adopted in the Bill to this matter. While accepting that we have made progress generally in recognising children who are not born within a marriage and the abolition of the concept of illegitimacy, enshrined in a very progressive Act, nonetheless we must continue to recognise that families are now very different from what they were in the past, that if we continue to promote the principle that parentage is in effect solely tied up with marriage, particularly in the case of the father, we are not recognising the needs of the child or children, those of the parents or the manner in which society is reforming itself and being shaped.
A quarter of babies born in Holles Street hospital are born to mothers not in the traditional marriage relationship. When a Bill like this is put forward, it reflects the realities of life as opposed to what we would wish those realities to be. Traditionally fathers had enormous control in families and mothers were, in effect, dependent on fathers. I spent much of my political life fighting that principle, and I am glad we have achieved so much, but I am not happy that we have now turned that principle around to the point where, in certain circumstances, fathers are now dependent on mothers. That was not our aim when we fought for equality.
This is an important part of the Bill. It is not acceptable that it is solely within the gift of the mother to grant guardianship to the father of her child. I recognise, however, that there are problems associated with automatic guardianship. Problems exist even in cases where couples are married but what we are ultimately saying — I do not have a legal background but I can recognise what is being presented in the Bill — is that the right of the mother is absolute when it comes to the guardianship issue. She can agree to the unmarried father being a guardian to the child and, if she does so, the procedure is made much easier. That is welcome but if we are saying, as people continue to say publicly and privately, that the role of fathers is not sufficiently developed and recognised, we must reflect that view in the Bill. If we are saying that we are not happy with a society where so many women are rearing children on their own and where the fathers of those children are missing, either because they do not want to know their children or they have been prevented from knowing them, that issue must be addressed in the Bill.
It takes two people to make a baby and to rear a child. The responsibilities and rights of fatherhood are not being addressed in the Bill. We are not giving sufficient consideration to the fact that society has changed significantly and in ways that, at least in part, are cause for concern. We must include fathers in a way that they are established as having rights and that they are challenged to take responsibility. If we fail to do that, we are simply reinforcing a pattern that will not be good for society as a whole nor for the individuals who have the rights and responsibilities of parents, regardless of whether they are married.
This amendment states that the unmarried father should have automatic guardianship unless there are compelling reasons for not doing so affecting the child's best interests. That establishes a caveat to ensure that the child's best interests are always central to any decisions made in this regard, a view we all share, but surely it is in the child's best interests, unless there are compelling reasons otherwise, that the child should know and have a relationship with its father and that the father should recognise the relationship and be involved in parenting the child.
There are many reasons parents are not good parents in certain circumstances but that does not negate the fact that, if we do not amend this section, we are not fully recognising that fatherhood is of equal status, albeit different, to motherhood.
I wish to speak to my amendment No. 16. This is an important part of the Bill and I agree with previous speakers. There is a perception — which must be addressed in the Bill — that in some cases fathers do not care about their children. Language is important also because it is my understanding from discussions I have had with constituents over the years — and I do not have any legal training — that couples go to court because they are unable to reach agreement. It would be better if couples could sort out their difficulties because those difficulties become greater if they are forced to go to court.
My amendment, which replaces the word "may" with "shall", will give the natural father an entitlement to claim recognition for his equal parental status. The word "shall" is a direction to the court to favour joint guardianship. It is my understanding that in many court cases guardianship is awarded to the mother but both the father and the mother have equal responsibilities to the child. It is incumbent on the court, therefore, to award joint custody to both parents. This is a technical area because, as Deputy Shatter stated earlier, the practicalities involved are difficult but if guardianship is not awarded to both parents, fathers may feel they cannot have an input into the rearing of their children.
I agree with the comments made by previous speakers. The role of the father in the upbringing of a child is extremely important. As Deputy McManus said, the emphasis must be on the best interests of the child but we often lose sight of that. The overriding consideration in many marriage breakdowns seems to be the convenience of the parents rather than the best interests of the child. We cannot overestimate the importance of a father figure in a child's life. Deputy McManus gave the figure for the number of children born to single parents but I understand the most recent figure, for the first six months of this year, is approximately 28 per cent nationwide. That would indicate that the figure may be higher in city areas. That will have serious implications for those children in the long term if we do not give fathers a role in their upbringing.
There is a void in the lives of children who do not have a father figure. More than 80 per cent of primary school teachers are female which means that children being brought up by their mothers do not have an influential father figure in their lives. That will have consequences for them in later life. Others might disagree but I feel strongly that it is the case. We might not address it in this legislation but it is a matter that should be addressed. When considering the amendments we should take into account the importance of the father's role.
We come across the sad situations that can result from marriage breakdown. Making provisions in legislation might not provide the full solution. I recall a case in which a married couple with four children separated. The court agreement was that the father should leave the family home but that he should have access to the children, particularly the youngest child. However, the practicalities of organising the access meant that the mother had total control over the child and she did not facilitate the father in allowing access. In the periods when the child was to be with the father the mother made excuses or made the child unavailable. They went back to court several times to resolve the matter and in the end the judge told the father that the only option he had was to jail the mother because she was in breach of the court order on access. In fairness to the father he decided that it was not in the child's best interests to put the mother in jail. We must examine how we can deal with such situations.
It may be a matter outside the scope of this Bill but it is a consideration to be borne in mind when building a framework in legislation. We must consider the problems of fathers' access to their children. The father's role should not be underestimated. I support the amendments and I hope the Minister of State will take our points on board.
Deputy McGrath referred to the father's role. I criticise the State for allowing so many fathers to escape their responsibilities. The State has nurtured and developed the unfortunately high numbers of lone parents. I am not a paragon of virtue but I have not brought a child into the world that I could not support. I indict the thousands of flyaway, phantom fathers who bring children into the world and expect the State to pay for their fun. I object to that and so should every taxpayer. I do not deny the right of a lone parent to receive support from the State for one or two children. However, there are young people who have made an industry out of lone parenthood and I take exception to that.
In addressing matters the House attempts to be caring. However, I suggest that the pendulum has swung too far in that regard, to the point where we are underwriting promiscuity. Has the Minister of State any indication of the numbers of fathers who are paying maintenance for their offspring and how many walk away from their responsibilities?
Some years ago I addressed this matter in the House and I received varying reactions. Many lone parents felt that I had attacked them. However, that was not my intention. I am concerned about lone parents. There is nothing sadder than a young pregnant woman of 16 or 17 years of age who comes to a public representative's clinic. Some of them never see the fathers of their children again. It is tragic. The State provides a breeding ground for such activity. I do not refer to the matter in its moral aspects. I am talking about stopping the terrible extent of promiscuity. In a few years' time brothers will be marrying their sisters.
In America they say there is no such thing as a free lunch. There is virtually no social welfare in that country. It is a land of milk and honey for some but for the inadequate it is a dreadful place because of the lack of a caring society. In that country, if a girl becomes pregnant she has no recourse but to take a paternity suit against the man who made her pregnant. In this country the State stands idly by when it should pursue the unmarried fathers.
There are a few responsible fathers. The State should examine this matter seriously because we are creating a paradise for the irresponsible. This is a matter which should concern all parties in the House. A radical reappraisal of the situation is needed. There are very few responsible fathers and the legislators are making it easier for the many irresponsible fathers. If a man brings a child into the world he should be made to pay for the child until that child is able to look after itself. That should apply whether the man is a businessman or a labourer and if he is on the dole the maintenance should be taken from his social welfare payment. The State should not be made responsible for the children brought into the world.
On a point of information, my understanding about America is that it has a high level of lone parenthood, particularly among teenagers so I do not think we should look to America for guidance.
Who pays for it? The punter, not the state.
Just because it is in America does not mean it works.
On the issue of guardianship, if a situation arises where an unmarried father does not apply for guardianship or has been denied it and the mother dies, what is the father's status, given that he has not had guardianship, although he may be following Deputy McGahon's advice and looking after the children?
In that case the father would have to apply to the court for guardianship. Deputy McGahon's points were interesting. We have all had similar experiences in our clinics. This may not be the Bill in which to address the matter. The question which arises in this context is whether giving automatic guardianship to the phantom fathers, to whom Deputy McGahon refers, will encourage them to take their responsibilities more seriously. That is the question being posed.
Deputy McGrath's question about access after marriage breakdown is not what we are dealing with here — we are discussing guardianship in the context of unmarried parents, whereas a married father would be the guardian of that child in any case. If that couple went to court and one was granted custody of the child, both would have the same guardianship rights because they had been married. The Deputy made an important point about the child's best interests and we all bear that in mind in talking of these issues.
These amendments are broadly similar; their effect is to provide that where an unmarried father applies to the court for guardianship he shall be made a guardian of the child jointly with the mother unless there are compelling reasons why he should not be. Deputy Moynihan-Cronin's point related to the use of the word "shall". We have given these amendments much thought. Under the law as it stands in the Guardianship of Infants Act, 1964, the married parents of a child are the guardians jointly — that relates to the case mentioned by Deputy McGrath. In relation to unmarried parents the mother is the guardian of the child. If the child's father subsequently marries the mother he automatically becomes joint guardian. Where the father is not married to the mother he can apply to the courts under section 6A of the Act to become a joint guardian. In response to Deputy McManus's question, he can so apply whether or not the mother is alive at that time. Section 6A, as inserted by the Status of Children Act, 1987, provides that where the father and mother of an infant are not married to each other the court may, on application of the father, by order appoint him to be guardian of the infant. We are discussing the choice between "may" in this provision and "shall" in the amendments. In coming to all decisions on children the court must, under section 3 of the 1964 Act, regard the welfare of the child as paramount and all would support that.
On Second Stage the Minister outlined the background which informed our existing law but some of that background should be repeated for the purposes of this debate. In 1982 the Law Reform Commission's report on illegitimacy recommended a number of changes to the law, on foot of which the Government passed the Status of Children Act, 1987. The commission was of the view that the principle of equality required that no distinction should be made in the legal rights of guardianship on the basis of marital status. It recommended that both parents of a child should be joint guardians whether the child was born inside or outside marriage.
In considering the commission's recommendations in the context of preparing the legislation which led to the Status of Children Act, 1987, the then Government had regard to the fact that the extent and character of the relationship of the father of a child born outside marriage to both the mother and the child varies greatly — this was mentioned by Deputy McGahon. Cases vary from a child being conceived as a result of a casual relationship to a child being conceived in a stable relationship which has all the characteristics of a family. One concern of the then Government was that to accord the father of a child born outside marriage a defeasible right would result in greater recourse to the courts, because the number of cases in which mothers would have no option but to seek the withdrawal of the father's guardian status would far exceed the relatively low number of cases where fathers would seek appointment as guardian. The then Government considered it invidious to place the onus on the mother to have the father's guardianship rights terminated and decided that, rather than giving a father of a child born outside marriage an automatic right of guardianship, he should be given a right to apply to court to become guardian of the child jointly with the mother.
Much of the criticism of the position of unmarried fathers stems from the common belief that those who apply to the courts to be made joint guardians of their children are discriminated against and that if the mother opposes the application, the father has little chance — this is a concern of some Deputies. However, court statistics show this is not the case. In 1996 approximately 12,500 children were born to unmarried parents and some 700 applications for guardianship were made to the courts by unmarried fathers. In approximately 90 per cent of these cases, the court made the unmarried father a guardian of the child jointly with the mother. Of these 700 cases, 400 were made in agreement with the mother. My understanding from the courts is that they will refuse guardianship to a father only in cases where he is clearly unsuitable to be a guardian.
The report of the 1996 constitutional review group, in considering the position of unmarried fathers, pointed out that a natural father has no personal right to his child which the State is bound to protect under Article 43 of the Constitution, and that section 6A of the Guardianship of Infants Act, 1964, as inserted by the Status of Children Act, 1987, has been construed by the Supreme Court as giving an unmarried father a right to apply to the court to be appointed a guardian as distinct from giving to him a right to be a guardian which is capable of being annulled — that is, a defeasible right. The group states that any criticism of the fact that a natural father does not have a constitutionally protected, personal right in relation to his child can readily be understood as regards a natural father who lives in a stable relationship with the natural mother or who has established a relationship with that child. However, it argues that there does not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links; and that, were consideration to be given to any modification of Article 40.2.1 expressly to include unmarried parents, care would have to be taken with the drafting to avoid giving rights to natural fathers who have no relationship other than a biological bond with the child.
At present the courts must, in cases of dispute, decide the guardianship of the unmarried father on the basis of the best interests of the child. The father, being the applicant, must adduce evidence to support his case and refute any evidence to the contrary. The effect of these amendments would be to create a presumption in favour of the father in all cases, irrespective of the relationship, stable or otherwise, which exists between the parents. The mother would then have the onus of displacing or refuting that presumption. It is a matter for strong consideration, given the vulnerable position in which many unmarried mothers find themselves, particularly where they have taken on all responsibilities for their child, that they should be placed in that position. The Bill as framed does not provide for any fundamental change to the law in this area — rightly, in my view. It has been carefully measured and balanced and for that reason it is supported by the Government. It is precisely because the law currently operates without apparent difficulty that there is no need for the fundamental, unnecessary and contentious changes proposed in the amendment.
The reality which cannot be ignored is that 12,500 children are born to unmarried parents annually and only a small proportion of the fathers of those children are sufficiently concerned to apply to court for full rights of guardianship and, in effect, to mark themselves out as having full responsibility in all matters affecting their children. Were a presumption of rights of guardianship to be accorded it would place the onus on the mother, perhaps not in all cases but certainly in those where she would consider it necessary to displace that presumption. It is important to recognise that the Bill improves the existing position of unmarried fathers and mothers by allowing joint guardianship by agreement without the need to go to court as is the case at present. That should, on present figures, remove 400 non-contested cases per year out of the court system and better facilitate the position of unmarried fathers where guardianship is not in dispute. Our law on that basis would be broadly similar to that in the UK. Where the parents cannot agree on guardianship each case will be decided, as at present, on its merits by reference to what is in the best interests of the child.
Amendment No. 31, which is due to be discussed later, will have a bearing on the practice of the courts in those cases where the unmarried father seeks guardianship and the mother is in dispute. That amendment, which is inspired by the provision of the United Nations convention on the rights of the child, is to the effect that in considering an application for guardianship the court shall have regard to whether the child's best interests would be served by maintaining personal relationships and direct contact with both his or her father and mother on a regular basis.
Unfortunately, I cannot accept the amendments.
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.
I listened with interest to the reply of the Minister of State and I appreciate that this is a difficult area. The original point the Minister of State made was that the Law Reform Commission proposed there should not be any differentiation. The fear arose that if there was no differentiation between married and unmarried fathers as guardians it could lead to a growth in court actions. Can the Minister of State say what the evidence was when that decision was made?
We must be careful when we talk about numbers. It is extraordinary that 12,500 babies were born to unmarried couples, yet there were only 700 applications for guardianship. We will have to carry out research in this area to know what exactly is going on. I accept the point that many fathers fear being caught and thus being obliged to provide finance for their children, but there may be many fathers who do not even know they could apply for guardianship. There may also be others who are afraid to apply because the mother has clearly shown she does not want to have any involvement with the father, even through the child.
We should not presume to know why there is this huge disparity between the number of babies born and the number of fathers who seek guardianship. I know of examples where they can be cohabiting and are still not guardians. They may not feel the need to go to court in those circumstances because they are cohabiting and acting in a father's role.
I have a difficulty with the idea that a father of a child is not the guardian of that child. I have a problem with the fact that we now have a society which has not resolved the issue of fathers. In the old days there was a clear solution to all this; it was called the shotgun wedding. That was an answer and it meant that many children, who nowadays would be born outside marriage, were born within marriage. Whatever about the deficiencies of the system then, it is clearly not the solution now. This does not mean we can say that because most fathers do not care we do not have to reflect a connection between them and the child other than that channelled through the mother. Such an approach shows we do not acknowledge the role of the father and I do not agree with it. I do not underestimate the Minister's role in this area. She referred to the Constitution. Presumably the same arguments were raised during the debate on illegitimacy. We no longer discriminate between children born inside and outside marriage. Yet we continue to discriminate against fathers whose children are born outside marriage.
I ask the Minister to look again at this issue. We should not merely tinker with the system and accept the status quo where responsibility lies with the mother. If one starts from that premise then only a few of the 12,500 unmarried fathers will acknowledge their children. This may be because men do not care but it may also be because they are not allowed to care; in other words, they are excluded because the State supports are directed towards the mother. I have no problem in providing mothers with support to rear their children but I have a problem with the failure to recognise in legal and social terms that every child has a father who, unless there are compelling reasons to the contrary, is the natural guardian together with the mother. I do not know the proper formula or mechanism but the Department has not looked sufficiently at this matter. The old idea that marriage is good and that the birth of children outside marriage is bad still seems to exist. We seem to be trundling along in the desperate hope that marriage will somehow come back into fashion. However, this will not happen. Much as I dislike Deputy McGahon's language, I agree that it is not good for society to ignore the connection between a father and his child. I ask the Minister to look again at this point.
I fully support the points made by Deputy McManus. There seems to be an assumption under the law that fatherhood in an unmarried context is bad and one must prove to the courts that one is a proper guardian. This is a wrong assumption as a connection between a father and his child is good. If we do not provide for joint custody we will deprive a child of a connection with his father and his relations. Under the law we begin from the premise that a child should not have a connection with 50 per cent of his family. While there may be difficulties in doing so, we should start from the premise that a father has a positive contribution to make to the rearing of his child. We are discriminating against children by denying them access to their fathers and putting the onus on fathers to prove they can make a positive contribution to the rearing of their children in terms of morals, culture, values etc. My amendment No. 17 seeks to achieve this.
Section 9 states:
For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if it thinks it appropriate, grant custody of a child to the child's father and mother jointly.
This means the court must question the appropriateness of granting joint custody rather than assuming that both parents should have joint custody. There should be an obligation on a father to play a role in the rearing of his child. As Deputy McManus correctly stated, the number of unmarried parents will continue to increase. This year 28 per cent of children were born to unmarried mothers. Given the way society is developing we are in danger of excluding fathers from playing a role in the rearing of their children. The time has come to review the role of unmarried fathers and to challenge them about their obligations.
This debate is long overdue and I am delighted we are having it. I urge the Minister to try to ascertain why so many fathers do not apply for guardianship. This is not to say that fathers who do not apply for guardianship are flippant and do not care but we must make them accountable and responsible. Every father should support his child financially and otherwise.
It may not come within the Minister's remit but would it be possible to require mothers to include the father's name on the birth certificate? However, that may be another day's work. Society is changing and our laws must reflect this for the betterment of children.
I have taken careful note of the points made by Deputies. Under the Bill fathers in stable relationships will not have to go to court to seek guardianship. This is a positive development. There is no presumption in section 9 that a father is bad. The section is neutral. However, it is presumed in 90 per cent of cases that it is in the best interests of the child to make the father a guardian.
