Dáil Éireann debate -
Tuesday, 7 Oct 2014

Vol. 853 No. 1

Civil Registration (Amendment) Bill 2014 [Seanad]: Second Stage

Minister of State at the Department of Social Protection (Deputy Kevin Humphreys)

I move: "That the Bill be now read a Second Time."

I am pleased to bring this very important and progressive legislation to the House. The Civil Registration Act 2004 represented a significant development in the provisions governing civil registration in Ireland. It was a major overhaul of legislation dating back to 1844. However, the decade since 2004 has seen extensive changes in Irish society. The civil registration service deals with life events, such as births, marriages, civil partnerships and deaths, which affect us all. It is crucial that the system be responsive and evolve to address the wide variety of situations that can arise.

The aim of the Bill is to drive further modernisation of the civil registration service so that it can best reflect the needs of society now and into the future. It was at an advanced stage of drafting when the current rules regarding pre-legislative scrutiny of legislation by the relevant Oireachtas committee were introduced. For that reason, it has not been through the process.

While there are many amendments contained in the Bill, I will focus in my introduction on only a few. First, the Bill provides for the compulsory registration of the father's name on a birth certificate. This is the first time that principle has been brought into legislation and is a very significant new policy provision. The Bill does provide for some exceptional circumstances where it may not be feasible to register the father's name.

According to the annual report of the General Register Office, 69,209 births were registered in Ireland in 2013. Of these, 2,675 were non-marital births where no father's name was registered. Where the parents of a child are not married to each other, the current legislation does not require the mother or the father to provide the father's details when registering the birth. The amendment addresses the current unsatisfactory position by making the provision of such information compulsory, other than in exceptional circumstances. This will underpin the rights of the child under EU legislation to have access to the details of his or her identity. Put simply, it will ensure children know who their parents are. This is a step towards ensuring full and accurate particulars are registered at the time of birth, which will be of significant benefit both to the child and future generations.

The issue of marriages of convenience is complex. The right to marry is a basic right, and marriage, as an institution, has particular protection under our Constitution. Our duty is to protect the institution of marriage in legislation. We are aiming to strengthen it by introducing provisions in this Bill which make it more difficult to broker a marriage of convenience in the State. EU citizens and their families have the right to move and reside freely within the territories of the member states. These rights also apply to non-EU national spouses of EU nationals. However, these rights are being abused by unscrupulous individuals who are using marriage laws in Ireland to gain an automatic right of residency in Europe.

The Bill provides that where a registrar forms a view that an intended marriage is a marriage of convenience based on a list of criteria set out in this Bill, he or she may refer the matter to a superintendent registrar. If the latter agrees with this opinion based on evidence, then no marriage registration form will be issued and the Department of Justice and Equality will be notified. The Bill contains similar provisions addressing civil partnerships of convenience.

The legislation will also introduce records of the deaths of Irish people normally resident in the State who die while on short-term absences abroad. Many public representatives have raised this issue in recent years. The death of a loved one while abroad is always a particularly tragic and difficult event. The new legislation will allow families to record the deaths of their loved ones in Ireland and thereby have some degree of comfort and closure. I take this opportunity to thank Deputy Seán Kyne for his work on a Private Members' Bill on the domestic registration of death records, which helped in the drafting of this provision. I also thank Senator Fidelma Healy Eames, who has campaigned for this issue to be addressed in legislation.

Irish society has been enriched by the choices made by people from other countries and cultures to live, work and raise families here. In certain instances, couples got married or entered a civil partnership in their country's embassy in Ireland. Unfortunately, these marriages and civil partnerships are not valid, as they were not carried out in accordance with Irish marriage law or civil partnership law. This Bill will, on a once-off basis, validate those marriages and civil partnerships that have already taken place in Ireland and which are still in existence. There will also be an opt-out for instances where both parties agree they do not want the marriage or civil partnership to be validated.

The Bill includes provisions which define "a place that is open to the public" in respect of the conducting of marriages and civil partnerships in a public place. In order to protect both parties to the marriage or civil partnership, the provision requires that the outdoor venue must be readily accessible to the public. The reasons are to avoid the possibility of coercion, fraud or lack of capacity on the part of the persons involved, prevent marriages or civil partnerships taking place in secret, and provide an opportunity for objections.

I will now summarise the main provisions of the Bill. Section 1 establishes the Short Title and collective citation of the Act. It further stipulates that the Act may come into force on such day or days as the Minister for Social Protection, by commencement order, may determine. Section 2 provides for the definition of the term "Principal Act" used throughout the Bill as the Civil Registration Act 2004.

Section 3 provides for the amendment of section 2 of the principal Act by inserting new definitions that are required for this amending legislation. This section also amends section 2 of the principal Act to make a marriage of convenience and civil partnership of convenience an impediment to marriage and civil partnership, respectively.

Section 4 provides for the amendment of section 17 of the principal Act to include that a superintendent registrar may designate a registrar to perform his or her functions where an absence such as extended leave or long-term illness occurs.

Section 5 amends section 19 of the principal Act and provides that a person who is a qualified informant must produce to the registrar any evidence, including documentary evidence, relating to a birth as requested by the registrar. The section further provides that a superintendent registrar may complete the registration of a birth where in exceptional circumstances a qualified informant has not signed the register to allow completion of the registration. In addition, the section provides that a child who has attained the age of 18 years may be considered as a qualified informant in respect of the registration or re-registration of his or her birth entry.

Section 6 amends section 22 of the principal Act and contains a number of amendments relating to the registration of the father's name where the parents are not married.

Section 7 provides for the re-registration of a birth and contains a number of amendments to section 23 of the principal Act.

Section 8 provides for the amendment of the principal Act by the insertion of a new section 23A which will provide for the re-registration of a birth of a child where the parents were not married on the date of the birth, on foot of a court order. The section provides that a mother, father or the adult child may apply to re-register a birth on foot of a court order granted under section 35 or section 45 of the Status of Children Act 1987.

Section 9 provides for the amendment of the principal Act by insertion of a new section 25A which provides that where the parents of the child cannot agree on a surname, the registrar may complete the registration by leaving the surname blank or, in cases where a surname is already registered, the existing surname shall remain.

Section 10 provides for the amendment of section 28 of the principal Act to allow for a stillbirth to be registered later than 12 months after its occurrence.

Section 11 provides that the definition of a qualified informant of a death is extended to include a cohabitant, next of kin, personal representative or religious superior of the deceased so that such person may register the death within three months.

Section 12 provides for the amendment of the principal Act by the insertion of a new section 42A which provides that early neonatal deaths be notified to the superintendent registrar of the area where the death occurred.

Section 13 provides for the amendment of the principal Act by the insertion of a new Part 5A which provides for a record of deaths of Irish citizens who die abroad and who were ordinarily resident within the State within five years prior to their death.

Section 14 amends section 45 of the principal Act to define "a place that is open to the public" in respect of outdoor venues for marriage.

Section 15 amends section 46 of the principal Act and provides that couples who produce a court order exempting them from giving three months' notice of intention to marry will be required to pay the prescribed fee as set out in regulations. This section also provides that, where one or both of the people giving notice of intent to marry is a foreign national, they must provide to a registrar information and documentary evidence regarding their immigration status.

Section 16 amends section 51 of the principal Act to provide further clarity on the meaning of "place that is open to the public'" for outdoor marriage venues.

Section 17 amends section 52 of the principal Act to provide that "place" in the context of where a marriage is conducted means a "place that is open to the public".

Section 18 amends section 58 of the principal Act and provides for new procedures regarding potential marriages of convenience.

Section 19 amends the principal Act by the insertion of a new section 58A which provides for the validation of certain marriages carried out at a foreign embassy or diplomatic mission in the State.

Section 20 amends section 59A of the principal Act to define "a place that is open to the public" in respect of outdoor venues for civil partnerships.

Section 21 amends section 59B of the principal Act and provides that couples who produce a court order exempting them from giving three months' notice of their intention to enter into a civil partnership will be required to pay the prescribed fee as set out in regulations. Section 21 also provides that where one or both of the people making a notification of their intention to enter into a civil partnership is a foreign national, they must provide documentation and information regarding their immigration status.

Section 22 provides for the amendment of section 59C of the principal Act by amending the validation period of a civil partnership registration form to six months from the date of the intended ceremony specified in the form.

Section 23 amends section 59D of the principal Act to provide further clarity on the meaning of "place that is open to the public" for outdoor civil partnership venues. This section also provides that the registrar is no longer required to issue a copy of the civil partnership registration form.

Section 24 amends section 59E of the principal Act to provide that "place" in the context of where a marriage is conducted means a "place that is open to the public".

Section 25 amends section 59F of the principal Act and provides for new procedures regarding potential civil partnerships of convenience.

Section 26 amends the principal Act by the insertion of a new section 59I which provides for the validation of certain civil partnerships carried out at foreign embassies or diplomatic missions in the State.

Section 27 amends section 61 of the principal Act and provides that where a person is required to provide proof of identity to a Government body in the form of a life event certificate, the Minister may prescribe a reduced cost certificate for these purposes. This section also provides that the Minister for Arts, Heritage and the Gaeltacht, on application to him or her and on payment to him or her of any prescribed fee, shall allow a person to search certain historical registers online.

Section 28 amends section 64 of the principal Act and provides that where an entry in the register of births, stillbirths or deaths is based on false and misleading information, the Registrar General may direct a registrar to cancel the entry and, if required, register the details under a new entry. The section further provides that where a court order of nullity is provided for reasons other than an impediment, the entry may be cancelled in the register of marriages or civil partnerships as required.

Section 29 amends section 66 of the principal Act and provides for sharing of information with Departments and agencies under the relevant Acts for specific purposes so that the information may be used for policy and planning initiatives. Section 29 also provides for technical amendments following amendment of the Social Welfare (Consolidation) Act 2005 and the transfer of responsibilities from the Minister for Health to the Minister for Social Protection.

Section 30 amends section 67 of the principal Act and provides that the Minister for Social Protection may set the fee for certificates at a lesser amount if the certificates are required for official purposes by another Department to prove age, civil status or death. This section also provides that a fee, if any, shall be payable to the Minister for Arts, Heritage and the Gaeltacht in respect of the performance by that Minister of his or her functions under the principal Act.

Section 31 amends section 68 of the principal Act and provides that where the Registrar General has directed that an entry be registered or re-registered without the register being signed by a qualified informant, the details of that entry shall be deemed to be valid.

Section 32 amends section 69 of the principal Act by the insertion of a new subsection (5A) which provides that a person shall be guilty of an offence if they fail to furnish evidence, including documentary evidence, where it is in their power to do so, when requested by a registrar.

Section 33 provides that a person guilty of an offence under new subsection 69(5A), referred to in section 32, shall be liable as laid out in section 70(2) of the principal Act.

Section 34 amends the First Schedule to the principal Act and provides for the deletion of the "age next birthday" of a deceased person in the register of deaths so that more accurate statistical information can be gathered based on the deceased person's actual date of birth.

Section 35 amends the Immigration Act 2003 to include the Civil Registration Act 2004 in section 8 of that Act to allow the Minister for Social Protection to request information from certain information holders, as defined under that Act, for the purposes of the Civil Registration Act 2004.

Section 36 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to provide that legal relationships which took place in foreign embassies or diplomatic missions are deemed to have been entered into under the laws of that state. The section further provides that a legal relationship which took place in an embassy or diplomatic mission on or after 1 January 2011 is not included as these legal relationships are dealt with under section 26 of this Bill and recognised as civil partnerships under Irish law.

This Bill provides for a wide range of significant changes and improvements to the Civil Registration Act 2004. The registers of life events are very important public records; they have a serious impact on the lives of citizens and they must be robust and accurate. They record the most important events in our lives and they are the basis on which we validate our status in our interactions with the public and other agencies. They are also primary source documents for citizens and scholars.

In this Bill, I am introducing changes which enhance the civil registration process. Some of them involve major policy matters, as I have outlined, while others are technical but are designed to streamline the service or reduce complexity where feasible. My intention is that the civil registration service will continue to serve society and the public to a high standard and will be equipped to respond to our rapidly changing society. I look forward to an informed debate and to hearing Deputies' views on the measures contained in the Bill.

Deputy Willie O'Dea

It is true to say that occasionally every Government does something good on which we can all agree - something which is intrinsically correct, very necessary and, if anything, overdue. This Bill, in principle, falls into that category and, therefore, we will not oppose it. The Civil Registration Act 2004 can be described as landmark legislation but despite that, it did not deal with a number of issues.

A number of issues came to light as a result of the operation of the 2004 Act and, as the Minister of State noted in his opening statement, significant changes have occurred in Irish society over the past ten years. I understand the Bill is designed to meet those changes. I pay tribute to the various groups which campaigned for change and congratulate those Members who have pursued legislative initiatives in this area which have been taken on board by the Government. I also thank the General Register Office for its helpful suggestions, many of which are incorporated in the legislation before us.

The principal change introduced by the Bill is compulsory registration of the father's name on a birth certificate when a child is born out of wedlock. Every citizen is entitled to the fullest information about his or her identity. It is a fundamental human right. It is extraordinary that we are only providing for that in 2014, although I admit that previous Administrations did not cover themselves in glory in this regard. This Administration is now three and a half years down the road but, late though it may be, we welcome this overdue change. There are many reasons for making the change, not least of which are medical reasons. As the House will be aware, many conditions are genetic. I have no doubt that many people over the years have received incorrect medical treatment, and may even have died, as a result of the lack of knowledge about their fathers' genetic histories. There are also practical reasons for the change. If the father of a child born out of wedlock seeks to claim official recognition where the mother is unwilling to accede to the request, he has to fight the matter through the courts. Nobody deserves to be made to enter that casino. It can be a traumatic and time-consuming, not to mention expensive, experience to establish something that both father and mother know to be a fact.

The Minister of State indicated that the requirement can be waived in what he referred to as exceptional circumstances, which I understand is the phrase used in the Bill. I will now examine those exceptional circumstances to see how exceptional they are. It appears to me from my reading of the relevant section - I hope I am incorrect - that it will suffice for a woman simply to sign a statutory declaration prepared by a solicitor on her behalf to the effect that she does not know the identity of the father, and no further evidence will be required. This is a necessary and fundamental reform but if my interpretation of the section is correct, it offers an easy way out. Gone are the days when people in this country took oaths and statutory declarations very seriously. Many people are prepared to sign or swear statutory declarations at the drop of a hat. I cannot find anything in the section that compels or requires a woman in that situation to do other than make a statutory declaration that she does not know the identity of the father. She could also deny that she knows the whereabouts of the father. That is even easier. The man may have gone to England, Dublin or somewhere down the country and she no longer knows his location.

I do not regard that as sufficient reason not to register the name of the father and his last known address. He must have had an address at some stage. He would have had an address during the relationship and the mother would probably have known it. Why, therefore, is any reference to the father excluded in a situation in which the woman simply claims she does not know his whereabouts?

Nobody could argue with the validity of provision on situations in which the interests of the child are threatened or there is a danger to his or her safety. The registrar can make a value judgment in this situation. However, we should be seeking to make this legislation as watertight as possible because we certainly will not be returning to this subject during the lifetime of this Dáil. This is a necessary reform which has been sought widely and is supported by all sides of the House. We want to ensure it has some reality in practice.

In regard to the ongoing question of the right of adoptees to their birth certificates and the fullest of information about their birth, all the arguments in favour of the reforms that the Government has introduced with this Bill apply with equal force to adoptees. Availability to the parents' birth certificates in the case of adoptees has been a feature of the law of the United Kingdom for 40 years, and the sky has not fallen. The Government has indicated that certain constitutional issues arise in Ireland but the weight of opinion suggests there would not be a constitutional barrier to effecting this change. I ask the Minister of State to give the matter serious consideration and to outline the Government's intentions in this regard when he replies.

The Bill also deals with the problem of marriages and civil partnerships of convenience. A civil partnership or marriage of convenience can be called a scam or an artifice aimed at gaining immigrant status. Speakers in the other House referred to the controversy that surrounded non-nationals coming into the country to give birth to children who automatically became Irish citizens. That is a separate matter, however, and it has been addressed by a decision of the Supreme Court which the previous Government followed up with legislation. This is a different matter. One or two cases have been brought to my attention involving allegations of marriages of convenience, as defined in the legislation, but I question the extent of the problem in practice. All the evidence appears to be anecdotal. Perhaps by definition there are no official figures for the number of people involved but it does not appear to be a widespread problem.

We have to be careful because this is a sensitive area. A civil servant will be deciding in the first and, indeed, the second instance whether a marriage between an Irish person and a non-national is a marriage of convenience. We have to guard against overzealous civil servants erring on the side of caution. People will be aware that the issue of racial profiling raised its head not long ago. It was ugly and it did not do the reputation of the country any good. If that was to creep into this area, or even a suspicion of it, the reputational consequences for the country could be catastrophic. It also has the capacity to cause grave injustice. I wonder whether this section should be written more carefully so we can spell out exactly what we mean.

What is the appeal system to the courts in a case like that, where the registrar decides that it is a marriage of convenience? Will legal aid be available to a person taking an appeal in that situation?

A welcome provision is the right of the family of someone, normally a resident in Ireland, who goes abroad for a short period of time and dies there, to have the fact of the person’s death abroad recorded here. I applaud that provision because if I may cite a personal case, a close member of my family died in very tragic circumstances abroad some years ago. The family got a foreign death certificate and at the time they wanted to have the death recorded here but that facility was not available. This is a very welcome initiative for which I sincerely thank the Government.

Another major change in this Bill is the right of foreigners who get married in their own embassies here to have that marriage validated. At the moment such marriages are not recognised in Irish law. I take it these marriages will be automatically validated and if people want to opt out, they must go through the procedure of opting out. That applies to marriages still in existence, not those which have ended in divorce and a remarriage to somebody else. The section states categorically that the marriage is deemed always to have been valid not just from the commencement order of the legislation, but from the date of solemnisation. It seems somewhat contradictory in that case that matters such as intestacy, rights under wills and various other legal rights will not come into effect or be recognised until the section commences, although the marriage is backdated to the moment of solemnisation. Is there a reason for it?

Section 16(1)(6) contains something I have never seen in any legislation:

If subsections (1) to (5) would, but for this subsection, conflict with a constitutional right of any person, the operation of those subsections shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect.

I am sure this is meant in very good faith but it is an extraordinary departure. The system is that when the Government brings forward legislation it secures the advice of the Attorney General who advises that the legislation is constitutional. It either is or is not. The Attorney General does not always get this right but he or she gets it right 99% of the time. This provision seems to say, “We think this legislation is constitutional but it might not be and if not, it has to be operated only to the extent that it is constitutional”. That opens an extraordinary legal minefield. I do not think one can write law to say that if legislation is unconstitutional, it is valid in so far as it can be operated constitutionally. That is quite bizarre. A section could be thrown into any legislation to spare the Attorney General’s blushes and say if this proves not to be constitutional, we operate the part that is constitutional. I would be very reluctant and I think the Government should be reluctant to bring in legislation containing such a provision.

Section 17(b) is an amendment to section 59B of the principal Act and states:

Where one or each of the persons notifying the registrar under this section is a foreign national, the notification or copy of the court order shall be accompanied by such documents and information as may be specified by an tArd-Chláraitheoir regarding the immigration status of the foreign national concerned or any other matter . . .

Many of the foreign nationals in this country are fleeing persecution. Somebody genuinely fleeing persecution might not be granted asylum status because there may not be sufficient proof. Many left their home countries in a hurry with nothing other than the clothes on their backs. They might find it very difficult to have or produce all the information that the superintendent registrar will deem necessary.

My colleague, Senator Jim Walsh, asked me to refer to an amendment which he put down in the Seanad, which may be more appropriate to Committee Stage. It involves the recording of the death of an unborn child. He cited a case where an unborn child was killed as a result of a road accident in which, I think, the mother committed suicide. The Minister of State said that time was short but that he would consider the situation to see if he could bring forward an appropriate amendment in the Dáil to meet the point, which is a very valid one.

Deputy Kevin Humphreys

I will bring it forward on Committee Stage.

Deputy Willie O'Dea

I thank the Minister of State for confirming that.

Deputy Kevin Humphreys

If it is appropriate.

Deputy Willie O'Dea

There are matters of detail that we can deal with on Committee Stage but the legislation is by and large overdue, welcome and we will facilitate its speedy passage.

Deputy Aengus Ó Snodaigh

This is a wide-ranging Bill that, like Deputy O’Dea, I do not oppose. It deals with some oddities of the Irish registration system. One of these is that we are forever being told that very few laws can be retrospectively applied, yet in this Bill embassy marriages are retrospectively validated. That is a good thing but it proves that where there are sometimes intractable problems it can be done and is an admission that there was a fault in our law. We are plugging that gap to ensure that the over 3,000 marriages or civil partnerships that occurred in embassies between 2007 and 2010 are now recognised in law. That was a problem. Some people may have decided to have their marriages recognised by having a second marriage ceremony or solemnising the partnership originally performed in an embassy.

I read this Bill when it was published. It is one of those difficult Bills for which one needs the principal Act and has to bounce back and forth between the two. I understood the basis for some of it and decided to wait to listen to and read the Seanad debate on other parts, which helped to clear up some of my questions.

Obviously, the intention is to ensure fathers are registered on birth certificates. That is the primary element of this Bill. This is a good thing because it addresses the requirements faced by this country under Article 7 of the UN Convention on the Rights of the Child, which provides that "the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents". Article 8 of the convention provides that "States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference". As I have said, it is a good thing that we are ensuring the problems and issues that were identified with the registration process in the past will be addressed. I will focus on particular peculiar elements of this legislation on Committee Stage. I will try to enhance the Bill to ensure any difficulties are addressed.

In essence, the child has a right to his or her identity, including knowledge of who his or her parents are. Under the current provisions, if the parents are unmarried there is no requirement to name the father on the birth certificate. This has caused problems for many fathers. Perhaps it explains why the mother's name only is registered in 20% of non-marital births. As I came into the Chamber, I think I heard the Minister of State say that in 2008, just 5.4% of births were registered without the father's name. That is a large number in some ways. I would like to know whether the number of unregistered fathers - a figure of 4,000 has been mentioned - remains the same. I know of instances in which the mother registered the name of the father at a later stage. While it might seem like many fathers are not registered at the time of birth, I suggest that the number of such cases reduces in the weeks and months following the birth. I do not know whether this Bill will make it more difficult to registered the father's name after a period of time. If it will make it easier, that is a good thing in some ways. Later in my contribution, I will mention a peculiar case I came across in the course of my work as a Deputy. I think we manage to deal with every type of case under the sun in here. If there is an exception to the rule, somebody in this House will have come across it.

The Law Reform Commission has surmised that the reason for the non-inclusion of the father's name on some birth certificates is the complexity of the current arrangements for registering the birth of a child of non-marital parents. This hiccup probably dates from a period when everybody was expected to be married and some of the institutions here nearly encouraged those who were not married to say nothing and hope it - the child, not the problem - would disappear. One of the legacies of that period with which we are dealing is the movement of very young children out of this country for the purposes of adoption on foreign shores. As much of that continues to emerge, I hope people will be able to access information on where exactly they came from. In my own family, one of my cousins was skirted away to England after her birth records were falsified by the nuns in charge of the institution in which she was born. I hope that legacy is being addressed. We must ensure something like that can never happen again. In the old days, the registration was done in the hospital, whereas now it is done by the registrar. That can cause its own difficulties. I welcome the Bill's attempts to deal with some of these problems.

For practical and profound reasons, people need to know where they came from as children. It is a small world, and Ireland is even smaller. Information on our genetic backgrounds is vital, especially in this day and age when medical science enables us to identify and address at an early stage medical issues that can cause greater problems if they are not dealt with as children grow into adulthood. Some of these issues can lead to early death if the genetic make-up of the child is not recognised and problems are subsequently not identified. If the names of the child's mother and father are on his or her birth certificate, and if the name of the father is correct, some of these difficulties can be easily identified as a first step. One of the problems with this legislation is that in the absence of DNA testing, there is no guarantee that the person named as the father on the birth certificate is in fact the father of the child in question. I should mention that a mother who gives a wrong statutory declaration is committing a crime. This is something that happens. Our society is not that pure. Many children have been reared by men who wrongly thought they were rearing their sons and daughters. It is something we cannot legislate for. I would never ask for the introduction of a system that would require every child, mother and father to be DNA tested. We have to take people on trust. This is one of the complexities we have to deal with when births are being registered.

I learned something about the registration of births when I dealt with a case that I will highlight as an example. The case in question ended up in the media eventually, so I will not use the mother's name. When she was in hospital after giving birth, she refused to name the father of her child on the birth certificate. She decided to register his name two weeks later when she accepted that the father was entitled to be named. When she went in, she found that someone had been registered as the father. It was a scam. Another woman on the ward registered a foreign national as the father so he would have the status of the father of an Irish-born child. That was not the problem. The Garda admitted it was a scam. The Office of the Registrar General accepted the mother's bona fides. It was hugely complicated to change the birth certificate at that stage. The woman had to get a solicitor, but she did not have any money. She was put in a dangerous predicament. All of a sudden, the real father was saying "why did you put this on that?". It took months, if not years, to get to the end of it. The woman in question could not travel abroad with her child because she could not get a passport in the absence of a signature from the man registered as the father. He would not sign it. She did not know who he was, although she had an address for him somewhere in Lucan. The procedures in the Office of the Registrar General were tightened significantly on foot of this case. It shows that people will go to huge lengths for the purposes of identity theft. Somebody's identity can be very valuable in this day and age. The case I have mentioned is an example of that. It is important in any of this legislation to appreciate that what we put down on birth certificates will stand the test of time, particularly for the child but also for the rest of the family.

I welcome section 6 of this Bill, which proposes the inclusion of a new section 22(1D)(c) in the Civil Registration Act 2004. This provision will allow a mother who "believes that providing the information is not in the best interests of the safety of the child" to opt out of her duty to name the father of the child. There are instances in which this is appropriate. The father might be abusive. It could be an incest or rape case. I hope this recognition of those realities will be able to stand the test. It might not be in the best interests of the child to learn in the initial years of his or her life that he or she is the product of rape or incest. I think every child should be entitled to find out when he or she is old enough. That would be between the child and his or her mother, or even the father of the family, as opposed to the father of the child.

It is an ethical dilemma. Does one force a mother to declare someone a rapist? In many instances, the case may not even have been concluded in court yet, so there could be implications. I welcome the fact that there is a facility whereby women in vulnerable and stressful situations are not forced to name the fathers. It may be necessary to ensure that the registrars are upskilled and trained to understand the peculiar situations that gave rise to this legal provision.

The Minister of State might address another matter when he is concluding, although I might not be present, as I must go canvassing. It might also be addressed on Committee Stage, namely, a teenage mother who declares an older father where the girl is 15 years old and the boy is 16 or 17 years old. By declaring him the father, she could open up a situation in which he could face prosecution. This is not the case in reverse. In light of the law on legal responsibility that was passed in recent years, a boy of 16 or 17 years can be criminalised. I might have the exact age wrong, but it leads to a peculiar circumstance. It is now compulsory to report any instance of child sex abuse, which is what the case in question would be under the legal definition. As such, by adding the father's name to a birth certificate, the registrar would be obliged to inform the Garda. We should be aware that this situation needs to be considered. If the case involves a 15 year old and a 20 year old, I have no problem with the obligation, but we need to be careful about dragging young teenagers into the criminal system because of mistakes or experimentation. It is not my area of expertise but, in some ways, this is the nature of kids being kids.

Thankfully, being named on a birth certificate does not automatically translate into having rights. Mothers might be concerned about naming fathers because, for example, they have left abusive relationships. There can be a range of reasons. Understanding that naming the father does not automatically grant him access, custody or the like will form part of the education on this matter. It should be stated clearly when a mother who is seeking to register a birth asks for a packet. This legislation does not bestow further rights on unmarried fathers. On the other side, unmarried fathers deserve additional rights, but this is not the legislation in which to grant them. They should not have to fight for their rights, which is what they have been doing for many years, continuously chipping away in an attempt to get more hours of access to their own children here or there and all that flows from that.

The issue of marriages of convenience forms the other part of this Bill. It is complicated because, in some ways, every marriage is a marriage of convenience. Thankfully, most of us who are married are still in love and have everything that goes with that, for example, children. That said, how many marriages in Ireland and abroad were for the sake of convenience to remove the shame of having children out of wedlock? Are these not marriages of convenience?

In this case, however, marriages of convenience are those used to get citizenship or access to services within the State. At times, the tabloid media has made great play of it, but I do not know whether it is that large an issue. In Ireland, the number of marriages between EU and non-EU citizens has reduced recently. This could be a consequence of the downturn. We need to be careful not to stigmatise all of these marriages so that people do not presume they are scams. A witch hunt should not result from us setting the bar higher for couples who are genuinely in love and want to get married and settle down to spend the rest of their lives together. Just because one person is not an EU citizen does not mean a couple should be treated differently. We should examine whether this provision is reflected in other jurisdictions like France and Germany. Perhaps it has been applied across the board in a bid to protect the EU from the hordes of non-EU men coming to take EU women or vice versa.

The criteria such couples must satisfy, for example, the length of time they have known each other and the number and frequency of meetings prior to their marriage, are bureaucratic. I do not know how the Catholic Church will react to the question of whether people have lived together. It might not like us going down the road of telling people "fair dues" if they have been living together for a number of years and want to get a marriage licence. I do not have a problem with that, but questions like this often emerge when marriages of convenience, inconvenience or so on are being examined.

I compliment the Minister of State on his comments. I was going to raise an issue during this debate that I raised previously and to which I received a letter in response. The issue can be addressed without interfering with the sanctity, as it were, of existing registers. We can register children who have died in the womb but would have survived otherwise, bar a tragic accident, as in the case raised by Deputy O'Dea and, in the Seanad, Senator Walsh. It shows that we are a caring society when we can change our laws to take account of exceptional circumstances. Hopefully, not many cases will be captured by such a change. The nature of democracy is that a citizen can raise a point and we can change the law in response. There is no cost involved in this instance and, as far as State policy is concerned, it is the recognition of a child who, bar unforeseen circumstances, would still have been alive and well.

Acting Chairman (Deputy Olivia Mitchell)

I understand that Deputy Catherine Murphy is taking 20 minutes.

Deputy Catherine Murphy

Some 25 minutes, while sharing five minutes with Deputy Wallace.

Acting Chairman (Deputy Olivia Mitchell)

Perfect.

Deputy Catherine Murphy

I welcome this legislation.

While I wish to pay particular attention to one or two provisions, I also wish to reiterate or expand a little on some points made by other speakers. Obviously, this legislation involves a considerable amount of necessary tidying up. Society changes and legislation obviously should change to reflect this. Most people would accept that knowing the identity of one's parents is important and this is part of what is required in respect of the right to know. While clearly this would also be addressed under adoption legislation, this would be absolutely essential to it. A balance of rights exists in respect of having, for example, the name of the biological father on the birth certificate, which I welcome. However, the key issue is always the right of the child and whereas adults can worry about current issues, the key issue here concerns future events and it is absolutely correct that this should be part of this legislation. I welcome a number of other provisions and as for mandatory registration, there are all sorts of issues in addition to the right to know. I believe there are custody issues that become important later on and it is better to have the facts regarding a child's heritage set out at the earliest possible stage and obviously, this is the first item of public information that is available to do this.

Other speakers have noted there are some rare situations that are highly sensitive and which must be dealt with accordingly. As Deputy Ó Snodaigh noted, for example, the scenario in which both parents happen to be under age must be thought out. Members are dealing with scenarios affecting people in the future, not about events that have happened and, consequently, people could find themselves in a situation in which a criminal prosecution almost would be mandatory, once a name went onto a birth certificate, particularly with a baby being born to an under-age mother where the father also is under age. It is important to flag such scenarios and to make the point that they must be thought out, rather than waiting until a set of circumstances arises and then attempting to deal with it retrospectively, which always is the most unsatisfactory situation.

As for marriages and civil partnerships in the context of marriages of convenience, given the matchmaking that went on in 19th-century Ireland and given that civil registration was part of the landscape from 1864 onwards with regard to most life events, it is ironic that Members in the 21st century are considering this as an issue, because marriages of conveniences certainly were routine in the 19th century. This provision is bringing matters into line with other countries and I can understand why it is included in this legislation. However, Members would not be doing their job unless they made the point that there is a possibility of mistakes or of heavy-handedness, as already has been alluded to by Deputy O'Dea, and unless they were to ask for this provision to be fleshed out to a greater extent. For example, if this will involve an appeal to the courts, one must ask about a person's ability to fund such an appeal, because this will be a civil case rather than a criminal case. Timelines and such things would become quite an issue if it was going to be a protracted process. Consequently, Members must be extremely careful in this regard. It is absolutely correct that this provision be included but it is a question of how it will be handled. Those cases that are genuine but which could perhaps be misinterpreted by an individual are the ones that will cause problems. I am referring to cases on the fringes rather than it being a central issue. There sometimes is a disproportionate relationship within marriages of convenience and as one also can find a vulnerable person within such a relationship, there can be other social consequences.

On the transfer of data, a provision in the legislation allows the Minister to reduce the cost of certificates if the transfer is between Departments. However, I met a group of people last week who were involved in the mother and baby homes and they made the point that were a number of them to carry out research, it would be really important for them to have the scope to so do and for the cost not to be prohibitive. It can be extremely expensive to conduct such research and I believe situations will arise outside the work of Departments that must be considered from the perspective of providing relief. For example, I understand the research carried by Catherine Corless cost approximately €3,000. She was obliged to research each birth in the institution concerned and did the State a great deal of service. Others should not be prohibited and a mechanism should be put in place whereby provision could be made for situations with a social dividend, even if it was a retrospective provision. It will be important to give consideration to such a measure.

The main aspect of this legislation with which I wish to deal probably is the one to which no one has alluded. It is in section 27 of the Bill and is in respect of the transfer of data in the case of electronic records that people will be able to search online. There has been something of a debacle in this area. My primary interest is in genealogical research and given that the census records for the 19th century have not survived, census substitutes become all the more important. Consequently, resources such as the General Register Office, GRO, records are extremely important and we should not fall out of line with Northern Ireland, which has placed its indices online and one can apply for them. One can cut down the cost by narrowing down one's search and it is extremely important to have good indices online. Not long ago, the Minister for Social Protection helped to launch the publication of the indices to the GRO online on the irishgenealogy.ie website, which is housed within the Department of Arts, Heritage and the Gaeltacht. However, an issue then arose with the Data Protection Commissioner, who insisted that the records be taken down. They have not yet been put back up and I understand some dialogue is under way between the Departments. It may well be dependent on this legislation but I am unsure about that. However, the point is the aforementioned records actually are online, up to 1958, on the website of the Church of Jesus Christ of Latter-day Saints. In an amazing irony, one can go outside the country to do the research and I am unsure whether people always understand this. It is possible to narrow down one's search. If, for example, one is researching a very popular name such as Patrick Murphy, 100 Patrick Murphys may have been born in 1901 and if one pays €4 for each record, it becomes a very expensive proposition. However, this can be narrowed down by having good indices in which, for example, the mother's name is included. While they were not included until the 1920s, if the maiden name of the mother is included, it can narrow down one's search considerably. The legislation has not specified precisely what is meant by the indices. Will they be limited to the quarter or will the date of birth be provided? Will the mother's name be given? Such details are quite important if people are to be encouraged to research their family history. It is a highly topical pastime at present and I do not believe it will subside.

There is quite a difference in the records one can search online. This legislation seems to create a difference between the records one can search online and those one can get on walking into that awful building in Werburgh Street that I am embarrassed to call our research facility. On picking up one of the large ledgers, getting the index and finding the date one wants, one can research a record right up to last year but if one searches the records electronically, a restriction applies in respect of records that are registered more than 100 years, 75 years and 50 years in the case of a birth, a marriage and death, respectively. We must recognise that in the future most people will get their information online rather than by way of a hard copy. We will have to return to that aspect in respect of this legislation.

The General Register Office, GRO, must recognise that part of its function is to assist in research or to provide for research in a more meaningful way. One is only allowed to get three or four records per day in the research facility in Werburgh Street. It is extraordinary that there is such a limit on the number of records one can get. It is related to the allocation of scare resources in terms of the number people who are available and working in that office.

During the debate on the freedom of information legislation, I raised a number of issues, including the issue of whether these are public or private records. I believe these to be public records. There is a good reason they should be public records. There were public records from 1864 onwards.

In the case of marriages, such registrations were to protect against people committing bigamy. In the case of births, people have researched where they have been in a mother and baby home, an industrial school or an orphanage. The period of 100 years applying to those records is way too long in such cases. In the case of a death, it may be important to research what ailments presented in a particular family. There can be various reasons to support that these need to be public records. I withdrew an amendment I have had tabled to the Freedom of Information Bill having been given an assurance in this respect, and I understand the GRO got legal advice to be sure that this was the case. I was told that the general records of the GRO, that is the register of births and so forth, are public documents, which are subject to freedom of information legislation and readily accessible, and that one can check these documents without recourse to legislation. I want that confirmed in regard to this legislation. I want the Minister of State when he concluding the debate to confirm that these are public records.

The difficulty in terms of records being available online under a different regime compared to the records that are available on walking into the records office is an important paradox. It may be possible to produce those records if some safeguards were put in place. I understand the need for safeguards in terms of people's personal information. I have raised similar issues in a different context in recent weeks. A distinction could be made between providing a certified copy and a research copy to ensure that the document could not be used as an official document and that distinction would allow for research to be done. There are ways of dealing with this and allowing for what has become not only an important pastime but an important industry. An international company located on the quays currently employs 80 people. Having regard to the size of the Irish diaspora, there is a prospect of many people being employed in both the public and private sector in the genealogy area.

It is important that Northern Ireland and the Republic operate pretty much around the same regime. If one goes onto the website of the General Register Office Northern Ireland, GRONI, one can get indexes online. One pays for the record in the same way as one pays for the record here and it is posted to the person. I acknowledge a limit applies in respect of the Northern Ireland website in the same way as has been provided for in this legislation. The Minister of State might address the reason the electronic format and the hard-copy format are treated differently. I can understand if that is a holding situation where something needs to be thought through because different arrangements apply in different countries.

I spoke about the awful office in Werburgh Street, which was a former labour exchange. I gather it was renovated during the Irish Presidency of the EU, but the facility is not an acceptable. A campaign was launched when the research room was located in Lombard Street. The facility there was tiny and it was difficult to do research in it. Some of the ledgers were bigger than the space available to go through them. The process is that one looks through the ledger and then requests the record. The facility moved to the Irish Life Mall and the space there was satisfactory. It was to be fitted out with an online facility but it then became too expensive and turned out to be a victim of the cutbacks. The only place that could then be found for the facility was the awful building in Werbugh Street. Visitors come to this country to research their family history and that is one of the places we expect them to go. It is badly signposted. There are only one or two sockets available in the room and one cannot even recharge a laptop. The toilet facilities are inadequate. It is not good enough. The fact that there is a limit on the number of certificates one can get in a day limits even professionals who are researching on behalf of others. Something needs to be done about that. We are limiting rather than allowing the research to happen.

A radical programme was initiated in 2000 and a great deal of money was invested in setting up the system online. The online system is available for current records but the historical records are not available to the public. Some of the records are available online and I do not understand why people cannot work with the records that are available and work on those records to be done incrementally. It would be valuable to have the records in a digitised format available for research, even if they are the records to which access is restricted in terms of 50 years, 75 years and 100 years. A sizeable number of those documents are online.

People of Irish heritage have a great affinity with this country. We should foster and encourage that. The way to do it is to permit people to dip their toe in the water and find some connection to Ireland. For many people, the GRO records are that connection but we must make the process easier, bearing in mind that a small fortune has been spent on the online system, involving a great deal of work. Some 27 million index records were transferred from a manual system to a comprehensive database of index records and 5 million register pages were scanned. That process is not complete in respect of all the records but a large amount of the work is complete. Many people feel a degree of frustration about the GRO having a digitised copy and that digitised copy not being available to the general public and to professional researchers.

This area probably has not been the main area on which people have wanted to focus. It is an area of particular interest to me. I was made special rapporteur on a committee on which both the Minister of State and I served.

I am special rapporteur of the committee on which the Minister of State served. We held hearings last year and at the beginning of this year and I am working on finalising the report. There are great opportunities in the area, but our legislation must be capable of delivering an easier, simplified means of searching. People will no longer trawl through piles of paper if they can get something online. We must get our heads right regarding where we are going with this. Could the Minister of State address why there is a difference between what one can get electronically and by visiting the office? I welcome many of the provisions in the legislation. There will be the possibility of amendments, and I am considering some. There is a sensitivity about the handling of particular elements, some of which I have drawn attention to. In general, the legislation is welcome.

Deputy Mick Wallace

On the compulsory registration of fathers' names on birth certificates, Article 8 of the UN Convention on the Rights of the Child states that state parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. The Bill is in line with the rights of the child in the sense of allowing a child to know the identity of both parents. The inclusion of the name of an unmarried father on a birth certificate accords him no additional rights regarding his child. Unmarried fathers have no automatic legal rights in respect of their children. This is despite the fact that in 2012, 35% of births in Ireland occurred outside marriage. It is outrageous that such a large proportion of fathers are in such a precarious legal situation regarding their children. This disparity between the rights of men and women to their children - the fact that an unmarried father’s only means to obtain guardianship rights to his child is either through a joint agreement with the mother, which can be problematic, or through the courts system – unfairly discriminates against fathers. The law should not have such a negative and distrustful attitude towards unmarried fathers. Our legislation needs to be more supportive of the principle of co-parenting, where it is possible. Our legislation is out of date and out of touch. Has the Government any plans to improve fathers’ rights?

The question of amending the 2010 Adoption Act was raised in the Seanad, where there was a call for birth certificates of adopted people to include the names of their biological parents, although this is not part of the Bill. Why should adopted children not have the same right to know their biological parents? This is very important for the identity of the adopted person and for the purposes of obtaining a medical history. As Senator van Turnhout stated, we need to be more proactive in reducing the stigma that has existed in Ireland regarding adoption. The Bill will amend the existing Civil Registration Act to extend the time limits for the registration of still births. While this is a welcome change, amendments were tabled in the Seanad relating to where a pregnant woman died and it was proposed that the unborn child who died along with her be entitled to a birth certificate. The eighth amendment to the Constitution, which acknowledges the right to life of the unborn, has caused enough problems and puts women’s lives at risk. Enacting legislation on foot of a flawed constitutional provision which most people think should be repealed, as borne out by recent opinion polls, would be a retrograde step.

The amendments relating to marriages of convenience raise concerns, mainly through the extension of the role of the registrar and superintendent registrar. Under the new Bill, they will be mandated with forming opinions based on value judgments about whether a union between two people is genuine. Not only could couples in genuine, loving relationships be subjected to unnecessary intrusions into their private lives, but the superintendent registrar will be allowed to refer cases deemed suspicious to the immigration authorities. These new powers will have the potential to change lives significantly and will be in the hands of a small number of people. How will these people be recruited, will they be trained or qualified in anti-discrimination law and standards, and will they be equipped to recognise the cultural context in which a marriage takes place? If the service is not adequately regulated, given that the issue will arise involving non-Europeans, there is a significant danger of racial profiling, stoking prejudices and the further stigmatisation of migrants. We have seen only too well in Ireland how law enforcement services, if not adequately policed, can become abusive and corrupt.

Deputy Seán Kyne

The Bill contains an array of changes to the Civil Registration Act 2004 which better reflect society. Among the changes are the validation of marriages and civil partnerships carried out in foreign embassies in the State, new provisions to deal with marriages or civil partnerships of convenience, the conferring of a duty on both parents of a child to comply with the registration of the birth of the child, and the conferring of a new duty that the father’s name and contact details be provided on the birth certificate, which is important as everyone has a right to know their parents and the father of a child has a right to be involved in his child’s upbringing. There are circumstances in which a mother can refuse to provide such information, namely, where she does not know the identity or whereabouts of the father or she believes that providing the information is not in the best interests of the safety of the child. In this case, the statutory declaration shall contain and, as necessary, exhibit information, particulars and evidence relating to that belief.

I presume regarding not knowing the whereabouts of the father of the child, the issue is whether the father must concur that he is the father. Perhaps there should be some clarification of it. If the father is in England but the mother is confident that he is the father of the child, what must she prove? Why does she not have to disclose the name of the father if she does not know his whereabouts? I note the different treatment of civil partnership and marriage and the confirmation that marriage enjoys greater protection under law than civil partnerships. This is yet another reason we need to implement marriage equality, access to equal civil marriage to all regardless of sexual orientation, and I look forward to the referendum campaign in 2015.

Another change concerns an issue on which I have been working since my election to the House in 2011. In 2012 I introduced a new Bill, as the Minister alluded to, the Civil Registration (Amendment) (Domestic Registration of Death Records) Bill. I did so due to legal shortcomings concerning the registration of the deaths of Irish people while abroad. These shortcomings were acutely experienced by a number of Irish families who had experienced the trauma of a relative dying abroad. The law does not permit the registration of such deaths, with the result that no record of the deceased person exists on an Irish register and no Irish death certificate or equivalent can be issued. I am delighted the legal obstacles which impeded the introduction of these important measures have been overcome, enabling the Tánaiste and Minister for Social Protection, Deputy Burton, and the Minister of State, Deputy Kevin Humphreys, to proceed with this comprehensive Bill in a way which alleviates the burden for those who lose a loved one abroad. It has been a while coming and the delay in introducing this common-sense change to the law has, understandably, been of concern to parents who have suffered such grievance.

Some Members may remember the “help bring them home” campaign in Galway, which was established following one family’s experience of losing a son while on holiday in the US following a swimming accident. In 2010, Galway city councillor, Padraig Conneely, led a delegation which appeared before an Oireachtas committee on this issue. The Civil Registration (Amendment) Bill 2014, which was published in July and which has completed its passage through the Seanad, will finally address this sensitive issue. I am delighted the legal obstacles which impeded the introduction of these important measures have been overcome, enabling the Ministers to proceed with this comprehensive Bill to amend the Civil Registration Act 2004 in such a way as to ease the burden for those whose loved ones die abroad.

Debate adjourned.