Dáil Éireann debate -
Tuesday, 24 Feb 2015

Vol. 869 No. 1

Children and Family Relationships Bill 2015: Second Stage

Minister for Justice and Equality (Deputy Frances Fitzgerald)

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

Today, I am introducing the landmark Children and Family Relationships Bill 2015 to the House which, when enacted, will be a watershed in the development of family law. I thank the Joint Committee on Justice, Defence and Equality, its Chairman, Deputy David Stanton, and the members of the Opposition involved, for undertaking pre-legislative scrutiny of the Bill and for organising public hearings on it last April. I took account of many of the committee's recommendations when revising the general scheme on which the Bill is based.

I must also register today the pivotal contribution to the reform of family law in Ireland made by my predecessor, Deputy Alan Shatter, in this House and outside it. The Bill began on his watch, largely driven by his concern about the lack of action in this area, and I am privileged to continue the work, with the necessary changes and additions following the legal and other advices I have received.

As I stated, when enacted the Bill will be a watershed in the development of family law. It will align our family law with the realities of modern life and family life. It addresses a world where children are reared in married families, in lone parent households, in blended families, in households headed by same-sex couples or by grandparents and other relatives. It recognises that assisted human reproduction has created a new scientific reality where children are daily born to couples using donor gametes. It acknowledges that all of these children have in common the fundamental need for security and stability in their family situations. They are entitled to clarity in the rules on parentage, guardianship and access. They need to know that there is someone who has a legal duty to look after them. Where the relationship between the adults breaks down, a child must have fairness and as much stability as legally possible.

The Bill, in effect, modernises our law on a range of complex and sensitive areas, such as parentage, custody, access, maintenance and adoption. It adopts a child-centred approach, giving a child essential legal rights on matters that are fundamental to the child's identity and well-being. It takes account of the changing social demographic in Ireland over the past 51 years, since the Guardianship of Infants Act was enacted in 1964. Crucially, it equips us to support families now and in the future.

I will set out for Members the demographic context which is shaping this legislation. Most children live in marital families with their biological parents, and those families enjoy the unique protection of our Constitution with regard to marriage and the family. However, as Members of the House are also aware from their own life experience and in their day-to-day work with constituents, a significant minority of children live in other family types. The 2011 census indicated that for that year, 215,300 families were headed by lone parents with children, and 44% of these parents had never been married. There were 49,005 households of cohabiting couples with children under 15 recorded in the census. The number of children living in cohabiting households is rapidly increasing, rising by 41% between 2006 and 2011. These numbers indicate to us that a significant number of children live in households other than those headed by married parents.

In 2010, the Law Reform Commission, in its report on the legal aspects of family relationships, identified the need for a coherent and modern legislative framework which recognises the changing nature of families in Ireland. It recommended, for example, that provision should be made for parental responsibility to be extended to civil partners and step-parents. It also recommended that a child's relatives, persons in loco parentis or those with a bona fide interest in the child should be able to apply for custody. At the time in 2010, the commission also noted the limited legal recognition of the rights and responsibilities of families of donor-conceived children. The commission pointed to the issue as one which would need to be addressed by the Government. The issue has become even more pressing in the past five years.

Increasingly, it is evident that those who are unable to have children themselves use assisted human reproduction at home and abroad and in a wide diversity of situations, methods and circumstances. Children born into these situations do not have sufficient clarity on their parentage. The Commission on Assisted Human Reproduction recognised this problem in 2005, exactly ten years ago, when it produced a comprehensive report on the issue. No Government until now has taken action on it. The commission noted the "issue of legal parentage in Ireland of children born through donor programmes is complicated by the absence of legislation". It acknowledged that its recommendations would necessitate a change in the law relating to parentage. The commission also recognised that the application of the principle of intent of the parties, for instance the intent that a donor will not have a legal relationship with the resulting child, would necessitate the broadening of traditional family structures.

Put simply, the availability of assisted human reproduction arrangements has led to the birth of children who need legal certainty in terms of their parentage and guardianship. In the absence of comprehensive legislation, families have to go to the courts to secure the rights of the child. We cannot continue to let children be born into the unregulated environment I have described. We have a responsibility to these children that they should have certainty with regard to their parentage.

Legislation is also needed for children growing up in family types whose needs are not adequately addressed by current legislation, and the Government believes a legislative response is needed to give clarity to these children. This is why the Government made a commitment in the programme for Government to address the situation by "modernising and reforming outdated elements of family law".

The Children and Family Relationships Bill 2015 before the House today is proposed as the legislative response to many of the issues raised by the changing composition of families.

It is underpinned by two key principles. The best interests of the child must be central to legislation governing familial relationships, whether they be within the constitutional family based on marriage or in other family types. The effect of the provisions should be to promote the stability of such families and to ensure children are enabled to enjoy relationships of care and support with parents, guardians or those acting in loco parentis.

The Minister for Health, Deputy Varadkar, has already given a commitment to include surrogacy in the planned legislation to deal with the regulation of assisted human reproduction. The Government approved the proposals of the Minister on 17 February. The Department of Health is now proceeding to the drafting of the general scheme of a Bill and it will undertake consultation on what is a complex and sensitive area. There has been much discussion throughout Europe and internationally on this issue and the many difficult and complex matters that will need to be thought through carefully.

Let us be clear about the situation. The vast majority of children will continue to live with mothers or fathers who are biologically linked to them, except where they have been adopted. It is important to recognise that in the adoption area there is a move towards open adoption, whereby, increasingly, biological parents are kept informed about their child's progress on an ongoing basis. This is another element for us to consider in respect of the ongoing contact children have with their biological parents, even in the case of an adoption. We see this arising increasingly in practice.

The Bill will not change the rights of most children in terms of parentage. A child who is the natural child of a heterosexual couple will have exactly the same parentage rights as at present. That child will continue to be the child of his or her birth mother and natural father. However, two categories of child will get the chance to gain a parent or parents as a result of the Bill. Under this legislation, a donor-conceived child will get the right to gain a second parent. As it stands, if the child is born to a female same-sex couple, that child has only one legally recognised parent if the donor is unknown. Furthermore, the Bill will enable a child to be jointly adopted by couples who are civil partners or who have cohabited for at least three years. The provisions on adoption will give a child in need of parents access to a broader pool of potential parents ready to assume parental duties towards that child. There has been a dramatic change in adoption numbers in Ireland and the number of adoptions has fallen dramatically. In fact, the vast majority of adoptions in Ireland are now by step-parents or as a result of international adoption. Last year, approximately 120 adoption orders were made by the Adoption Authority of Ireland, many to step-parents.

We will hear a range of views in the coming weeks on what is best for children. We will hear people express the view that children have a right to a mother and a father and that it is always in their best interests to be brought up by their natural mother and father in a married family setting. We will hear the opposite view to the effect that it is in the best interests of children to be brought up by any parent or parents who love them and dedicate themselves to the children's welfare, regardless of the gender or sexual orientation of the parents. People will bring forward evidence supporting either point of view. Anyway, we know that many thousands of children in Ireland and many adults alive today are being or were brought up happily and successfully by lone parents, civil partners or cohabiting couples, and we know that the majority of children have been brought up happily and successfully in the marital family. Our challenge is to ensure the child's best interests are served regardless of the family type. I have always maintained that I regard the best interests of the child as the golden thread running through everything that we are doing in this Bill and with family law. As I have said already, that is the core governing principle of this Bill. The best interests of the child are key and this is the test that the courts will apply in decisions on guardianship, custody and access.

I am pleased that the Bill outlines a wide range of factors for the court's consideration when determining a child's best interests. These factors will include the benefit to the child of having ongoing meaningful relationships with each parent. It will also take account of the child's physical, psychological and emotional needs. Crucially, it will consider the capacity of the person seeking guardianship, custody or access to care for and meet the child's needs. The court will also be able to consider any history of family violence. This is important because of the potential impact on the child's safety and well-being and that of other family members. This is the first time in legislation that the principle of best interest has been outlined in such detail. The court can take many other factors into consideration. It is not an exhaustive list but it is indicative of the areas that need to be considered.

One issue that has generated some commentary and in respect of which there is a wide spectrum of views is the proposal to enable civil partners and cohabiting couples to adopt jointly. Under our adoption laws, since 1952 a single individual, regardless of sexual orientation, has been eligible to adopt. However, at present only married couples are eligible to adopt jointly. The Bill will extend eligibility to adopt jointly to civil partners and cohabiting couples who have lived together for three years.

There has been some commentary in the media to the effect that our provisions on adoption do not recognise a hierarchy of family types, under which a married family is considered the best family to adopt a child. I wish to be clear. My view, and the view underpinning this Bill, is that adoption is a child welfare mechanism. It is not about discriminating in favour of particular family types. It is not about the marital status of the adopters. It is about giving a child the chance to have a family. It is about matching the child to a family that best safeguards the child's welfare. Under these provisions, each couple will be assessed on whether they are suitable to raise the child and to fulfil all parental duties towards that child. A single person will continue to be assessed on the same basis. If the married couple is considered to be the most suitable couple to adopt the particular child, that couple will be selected. In other cases, the couple chosen will be a civil-partnered or cohabiting couple. However, many of the cases of children most likely to be adopted will involve in-family adoptions in which the child's parent and the parent's partner jointly adopt the child. These provisions will now enable more children to get the chance of gaining a second parent, who will have parental responsibilities and duties towards them.

This Bill is a good news story for many families. The most wide-ranging reforms in the Bill relate to guardianship. These reforms have the potential to benefit tens of thousands of families throughout Ireland. Many unmarried fathers will now automatically become guardians of their child if they cohabit with the mother for 12 months, including three months with mother and child following the child's birth. That cohabitation can happen anytime between the child's birth and when he or she reaches 18 years of age.

At the moment, guardianship is restricted to parents, except where a parent has appointed someone as a testamentary guardian in the event of the parent's death. If a parent is hospitalised, a step-parent may have to defer day-to-day decisions affecting the child because he or she is not the child's guardian. This Bill will provide solutions to these problems. It proposes that a step-parent, civil partner or cohabiting partner will be able to apply to court to become the child's guardian if they have undertaken day-to-day care of the child for over two years. The cohabiting partner must be living with the parent for three years to be eligible to apply. Any existing guardian will of course have the right to object to the appointment.

A person will also be able to apply to court to become a guardian if she or he has provided day-to-day care for a child and there is no parent or other guardian willing to take on these responsibilities. This provision will be of benefit in situations where a grandparent, aunt or uncle has stepped in because a parent is unable to care for the child. Becoming a guardian will enable that person to take key decisions on the child's behalf. These provisions offer good news for foster parents. It will enable them, if they so wish, to apply to become guardians of the child and to offer more stability in a child's life.

A court-appointed guardian will generally be given limited guardianship powers to enable him or her to take day-to-day decisions on the child's behalf, such as signing the school note. However, he or she will be unable to decide where the child lives or consent to a passport, for example. Similarly, he or she will be unable to place a child for adoption. However, the court will have the option of making the person a full guardian if it is satisfied that it is in the best interests of the child to do so.

What happens to a child if the person with sole custody experiences serious illness or injury? A child can fall into vulnerable situations in these circumstances. The Bill provides for a targeted solution to address such a crisis in a family's life.

In situations of serious illness or injury, a parent or guardian with sole custody can nominate a temporary guardian who will be appointed by the court to take on the role of guardian temporarily. The court must be satisfied that the temporary guardian is suitable for the role and that the appointment is in the child's best interests. There are safeguards. Tusla will be put on notice in case of any child welfare or protection issues, and the appointment is subject to any limitations imposed by the court.

Another welcome reform is that the Bill will enable grandparents and other relatives to have access more easily to children in the context of relationship breakdown. They will be able to apply directly to the court for access, rather than having to go through the existing two-stage process whereby they have to apply to the court for leave to make an application for access.

The Bill will enable a child's views to be ascertained in proceedings on guardianship, custody and access. These provisions comply with Article 12 of the UN Convention on the Rights of the Child, which require a child's opinion to be heard on matters affecting him or her. It is important that a child should have the opportunity to have a say on matters that are so fundamental to his or her well-being. The child will be able to give views directly, as appropriate. The court will also have the option to appoint an expert to ascertain whether the child is capable of forming views. If the child is sufficiently mature to form views on the matters that are the subject of the proceedings, the expert will have the duty to ascertain those views and to convey them to the court. This mechanism is designed for private law proceedings and, otherwise, we have the guardian ad litem.

There has been a lot of public reference to the assisted human reproduction, AHR, provisions in this Bill. My purpose is to ensure that there is certainty of parentage for donor-conceived children. The Bill provides for those who always intended to be those children's parents to become their parents in law. In this aspect, the Bill is essentially focused on parentage. I want to repeat that the complex and wider regulation of AHR will be addressed in separate legislation by the Minister for Health. I believe, and am sure Deputies will agree, that it is the appropriate Department to develop that legislation.

I am very pleased that I was able to accommodate the strong recommendation of the joint Oireachtas committee that provisions be included to enable a donor-conceived child to trace his or her genetic identity. As Deputies will see, Part 3 provides for a national donor-conceived person register to be established and operated in the first instance by the Minister for Health. As the AHR legislation progresses, I am sure there will be an independent authority that will deal with these issues. In the first instance, and as far as this Bill is concerned, it will be the Minister for Health.

I want to thank the Minister for Health, Deputy Leo Varadkar, who has worked closely with me on the provisions which set out the obligations on donor-assisted human reproduction facilities to record and transmit information to the register. I am conscious there has been some concern that anonymous donation will be prohibited, except for some small exceptions. I realise that these provisions will impose extra responsibilities on facilities and that donations may decrease in the short-term. However, international experience indicates that donations will increase after a short period. In any case, I believe that a child's right to identity outweighs potential commercial considerations. It reflects the priority that we attach in this Bill to children's rights.

Turning now to the description of the Bill, Part 2 deals with parentage in cases of donor-assisted human reproduction. There are two types of couple who will benefit from these provisions: heterosexual couples and female same-sex couples who have a child through donor-assisted human reproduction. A mother's spouse, civil partner or cohabiting partner will be able to become the second parent of a child born to both of them. There are three conditions that will have to be fulfilled: the donor-assisted human reproduction will have to take place in a clinical setting; the birth mother and the intending second parent will have to consent in advance that they will be the parents of any child born through donor-assisted human reproduction; and the donor will also have to consent in advance of the procedure that he or she is a donor and does not intend to be a parent of the child. If these conditions are fulfilled, the intending parent will be recognised as a second parent under section 5. We have had much discussion in regard to adoption and the child's right to information. Clearly, the same principles apply here to the child's right to this information.

Detailed provisions have been included on the consent required of the birth mother, second parent and donor, reflecting the importance of full and informed consent in the recognition of parentage. Provisions are also included which detail the information that must be given to the birth mother, intending second parent and donor which make clear to them the effect of their consent on the parentage of the child born as a result of the procedure. As I said, this is the first Government that has begun to deal with this complex issue, which affects many couples in Ireland today.

The Bill makes provision for retrospective recognition of the parentage of certain donor-conceived children, and there are detailed sections in this regard. Where a child is born in the State as a result of donor-assisted human reproduction treatment carried out before the commencement of the Bill, sections 18 to 20 outline the procedure that will apply. The couple can apply to the District Court or to the Circuit Court for a declaration of parentage given certain conditions.

Part 3 sets out the obligations that will apply to donor-assisted human reproduction facilities. They will be prohibited from using anonymous gametes other than in two cases. It will be possible for a couple who have already had a donor-conceived child to use an anonymous donation from the same donor within three years of the Act's commencement to enable the couple to have a full genetic sibling of their child. It will also be possible to use embryos formed pre-commencement, and there is no time limit on the use of those embryos in donor-assisted human reproduction treatment. Part 3 also sets all of the details in regard to accessing the national donor-conceived person register, the procedures that must apply and the information that must be given by the donor and which is available to the child.

I have already dealt with Part 4, which outlines the guardianship provisions. This Part also proposes a set of enforcement procedures in regard to custody and access. These provisions are intended to ensure that both parents can have a meaningful relationship with their child, even in the context of relationship breakdown. Measures will promote compliance with court orders on custody and access. These include allowing a court to require a parent who is persistently flouting a court order to attend a parenting programme or to give the other parent extra time with the child to help rebuild their relationship. We know this is a real issue in terms of access and custody where there is a conflict situation. These initiatives are in the Bill in order to help couples to continue parenting in a positive manner. If there is high conflict, there are initiatives in the Bill to help deal with that situation, which is an improvement on what is currently available in the courts.

Part 5 makes technical amendments to the Succession Act 1965 to address situations in which civil partners are both the legal parents of a donor-conceived child.

Part 6 deals with maintenance liabilities. Clearly, there are implications for maintenance as the guardianship requirements are changed. The amendment allows the court, in certain circumstances, to order payment of maintenance by the cohabitant of a child's parent for the support of the child.

Part 7 amends the Status of Children Act 1987 to allow for DNA testing as the means of establishing parentage. Part 8 amends the Family Law Act to enable the court to order maintenance payments by the cohabiting partner of a child's parent for the benefit of the dependent child and to make associated provisions.

Part 9 allows for the civil registration changes that are necessary, particularly section 88, which details the process of registration of the child's birth. I want to thank the Tánaiste and her Department for the work they have done in regard to the changes that are necessary for the civil registration Bill. Section 89 deals with a situation in which a child has been born through a donor-assisted human reproduction procedure that took place before the Act was commenced.

There have also been changes in the Passport Act. I thank the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, for the co-operation I have received from his Department.

Part 11 amends the Adoption Act, as I have outlined to the House. Part 12 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act to extend the protections of that Act to dependent children of one or both civil partners.

In 1987, the Status of Children Act, by abolishing the concept of illegitimacy, began the process of dismantling the family law architecture that treated children differently because of the families into which they had been born.

The Children and Family Relationships Bill is a major step forward in terms of equality for children. It protects the rights of children of married families. Equally, it gives new rights to children living in other family situations. I am confident that hundreds of thousands of children will benefit from its provisions. Thousands of families will gain a stability and security they have not had up to now, which is very important in terms of the best interests of children in this country.

The Bill is child-centred and family-centred. It is an ambitious Bill which sets a blueprint for family law for decades to come. Its reforms are long overdue. We owe it to the children of Ireland to give them the security and stability in their families that they deserve. I commend this Bill to the House.

Deputy Niall Collins

I am glad to have the opportunity to speak in favour of the Children and Family Relationships Bill 2015 on behalf of my party. Ireland has changed immeasurably in the past three decades. How we communicate, work and live are now unrecognisable compared to only a number of years ago. Our State has had to update its laws to reflect these changes and ensure that legislation reflects a modern Ireland. This is true, too, of our families. It is a simple fact that Irish families are far more complex today than our legislation recognises. Many of what we understand to be non-traditional loving family units are not protected or supported by our current laws, and this needs to change.

For this reason, we support the principle of the Children and Family Relationships Bill, which represents one of the most important reforms of child and family law since the Adoption Act was passed in 2010. This Bill will address serious deficiencies in how family law operates in Ireland and will ensure that the principle that actions and judgments made by our courts reflect the best interests of the child is upheld. This is a very welcome change and reflects the sentiment expressed by the Irish people when they voted to support the children’s rights referendum introduced by the current Minister for Justice and Equality in November 2012.

This is a complex and significant Bill. Its size and impact on how the State deals with the most fundamental unit of society will be immense. For that reason, we must be careful as this Bill makes its way through the Houses of the Oireachtas. There is no point in rushing the Bill through the House if we find that the law will need to be amended again in a year’s time or less.

I wish to put on record my concern at the Government’s delay in publishing the current Bill. The first general scheme of the Bill was published on 30 January 2014 by then Minister, Deputy Alan Shatter. We were still waiting on the final draft to be presented to the Dáil last week, despite commitments that the Bill would be passed well before the expected marriage referendum in May 2015.

On a point of principle, I do not believe that Bills of this importance should be available only days in advance of the taking of Second Stage in the House. It is difficult for all Members to go through the Bill, which stretches to hundreds of pages, in four days before the first debate commences. That is unhelpful and creates a lot of cynicism about how we do our business in Leinster House. Given the scale and impact this Bill will have, we could have done better in this regard.

It is also not helpful that the Bill and the referendum are being discussed in parallel, as it causes confusion. While I acknowledge that proceedings in the courts prevented certain aspects of the Bill from being introduced, the failure to act sooner in drafting and publishing the Bill may have a significant impact on the marriage equality referendum. We are already seeing the debate about the referendum being influenced by matters which have nothing to do with the equality referendum itself. An element contributing to that is the fact that the current Bill is only now going through the House and the Gender Recognition Bill is being discussed in the Seanad. Both of these Bills are important in their own right. The fact that they are now being mixed into one debate is unfortunate and does not help the focused understanding necessary for the marriage equality referendum.

I acknowledge the fact that the Department of Justice and Equality has faced serious and fundamental challenges since the original general scheme was published. We all acknowledge that those challenges of accountability and Garda reform should have been addressed more quickly, allowing the Department to get back to the work at hand. In any case, those responsible for failing in those challenges are elsewhere. It must be noted that the dysfunction we have witnessed in the Department of Justice and Equality over the past year or so seems to have had an impact on this Bill.

Nonetheless, we welcome the fact that the proposed legislation seeks to put children at the heart of family law, provide legal clarity with regard to various family types and address discrimination faced by children in non-marital families. It is our hope that the Bill will significantly reduce the number of cases going to the courts due to the current legal vacuum. The Irish Constitution places great importance on the family, defining it as "the natural primary and fundamental unit group of Society" in Article 41. However, the courts have narrowly interpreted the "constitutional family" as including only marital families. Cohabiting couples, civil partners, lone parents, unmarried fathers and grandparents are all excluded from this definition. There are an increasing number of children in Ireland who are being cared for in non-marital settings. Indeed, one in four children lives with a lone mother and almost one in ten lives with an unmarried cohabiting couple. Yet the law does not provide a mechanism whereby unmarried parents’ relationships with children are recognised. This can impact on their day-to-day parenting role, including consent to medical treatment or the granting of permission for school trips.

The lack of legal clarity can be particularly detrimental to a child in the context of family breakdown. In this regard, the Bill’s aim to provide greater legal certainty and recognition of the relationship between the child and the person or persons who are responsible for his or her everyday care and upbringing is a very welcome development.

We welcome the fact that the Bill is designed to take account of the growing complexity and diversity of modern families. We welcome the important changes to the laws on adoption, custody and assisted human reproduction. Whereas existing laws state that only married couples or sole applicants can seek to adopt a child, this Bill will extend the right to adopt to same-sex civil partners. It also allows cohabiting couples who have been living together for three years in a committed relationship to adopt children jointly. These are all welcome changes which I believe reflect modern Irish life and the diversity that is found in that life today.

The most important aspect of all of this is the principle that children will be the main consideration of the State and its courts whenever actions which concern them are being considered. This is something that has been sought for some time and will, I hope, result in a mindset change in how we deal with children in terms of our State agencies. While many State agencies have made a significant contribution to the well-being and development of our children, unfortunately there have been many instances in which legislation, constitutional law or other policy considerations have let down children in the most awful of ways.

This Bill will ensure that our courts make judgments with the best interests of the child at the core and examine the benefit to the child of having a relationship with both of his or her parents, assess the child’s physical, psychological and emotional needs, his or her religious, spiritual, cultural and linguistic upbringing and needs, the child’s views, having regard to his or her age and maturity, the history of the child’s upbringing and care, including the nature of his or her relationship with his or her parents, and any harm the child has been subjected to or is at risk of.

One area not included in the Bill is that of surrogacy. The issue was dealt with in the heads of the Bill published by the former Minister, Deputy Shatter. However, the Minister, Deputy Fitzgerald, has explained that she decided to remove it from the revised general scheme published last September, as a Supreme Court decision was pending at the time. We believe this was a sensible decision, but the surrogacy Bill should be brought forward as soon as possible.

Failure to legislate in this area has caused much uncertainty for families, which is unfair. I understand this is a very difficult area to legislate for and that there are ethical considerations in respect of commercial surrogacy, in particular, to be taken account of. Nonetheless, it is better to have proper regulations in this area instead of allowing for unregulated practices to develop.

One area in which we believe the Bill falls significantly short is the rights of unmarried fathers. Treoir has argued that there is nothing in the Bill for unmarried fathers, unless they have cohabited with the mother for the requisite time of 12 months, a minimum of three of which must be after the birth.

Therefore, unmarried fathers will continue to have to resort to the courts if the mother does not agree to sign a statutory declaration for joint guardianship witnessed by a peace commissioner or a commissioner for oaths. This seems like a lost opportunity, given the significance of the Children and Family Relationships Bill. Treoir has stated that this is a groundbreaking piece of legislation, but it is failing to address the current discriminatory position of unmarried fathers. Treoir has stated that we should pass legislation in line with other jurisdictions such as the UK, many European countries and Australia, where unmarried fathers are given automatic rights to their children when jointly registering the birth.

One of the interesting examples used by Treoir is the fact that the majority of parents and professionals mistakenly believe that having a father’s name on the birth certificate of a child gives him guardianship rights. It has stated that this misinformation has major adverse consequences for children, and the recommendations in this regard were that, at the very least, the Children and Family Relationships Bill should make mandatory the provision of information to all unmarried parents at the time of birth registration. Treoir has asked that the information provided should state the legal position of unmarried families and in particular the lack of rights for non-cohabiting unmarried fathers. It has suggested that the provision of mandatory information could be aligned with the current changes being brought about by the Civil Registration Amendment Act 2014.

Another issue raised by Treoir is a scenario where a statutory declaration for joint guardianship is signed and subsequently is mislaid or destroyed, resulting in no evidence of the fact that the father has guardianship rights to his child. This can have dire consequences, such as a father losing contact with his child, particularly where a mother changes country of residence, or not being able to consent to medical treatment for his child. Treoir has asked that the Bill make provision for the establishment of a central register for joint guardianship agreements to keep a record of statutory declarations agreeing guardianship rights. The Oireachtas Joint Committee on Justice, Defence and Equality and the Law Reform Commission have both recommended the initiation of a central register for joint guardianship agreements. I ask the Minister to address these issues as outlined by Treoir. It would certainly seem unfair that at a time of such fundamental change in family law across the board, the rights of unmarried fathers are still denied despite this significant opportunity. I would appreciate if the Minister could outline whether changes may be considered on Committee Stage of the Bill. Fianna Fáil will be seeking to table amendments that are reflective of Treoir's concerns.

This is probably one of the most significant pieces of family law legislation that will be passed by this House for decades to come. It is important in that sense that we should get the legislation right now rather than having to review it another time. The delay in publishing the Bill is very unfortunate, but I will not allow that to take away from the significant good that will come about if this legislation is passed. As such, my party and I look forward to supporting this legislation as it makes its way through the Houses of the Oireachtas.

An Leas-Cheann Comhairle

Deputies Mac Lochlainn and McLellan are sharing time.

Deputy Pádraig Mac Lochlainn

I am very happy to see the much anticipated and long-awaited Children and Family Relationships Bill reach the floor of the House today. I am only sorry it has taken so long to get here. As we all know, this Bill is the biggest change to family law in the State's history, finally taking account of the diversity of modern Irish families, and this can only be celebrated. The reality of an Irish family in 2015 is very different to what we traditionally viewed as a family, and it is time that we overhauled our family law to reflect this. Children should never be punished because of the circumstances of their birth or the marital status of their parents. Unfortunately, until the publication of this Bill, they have been. All children deserve to be fully valued and to have equal rights. Sinn Féin will be supporting this Bill and we commend the Minister on getting it here today. We will have some amendments on Committee Stage that we hope will strengthen what we see as some of the weaker areas of the Bill.

From the outset, I challenge the attempts by some to label this Bill as the "gay adoption Bill". This is a mischievous disservice to what is a pretty comprehensive overhaul of family law. Single persons who are gay or lesbian have been able to adopt children for many years now, and the Children and Family Relationship Bill just ensures that in the case of same-sex relationships, both parents of the child have guardianship rights and that the child has the same rights as any other. The failure to recognise the diversity of family life in Ireland has had a serious impact on the lives of children. In the Ireland of 2015, children are being increasingly cared for by unmarried parents, step-parents, civil partners and others acting in loco parentis, such as grandparents. As it stands, the law does not always provide a mechanism whereby such relationships with the child are recognised. The problems this can cause on a daily basis are significant and affect deeply the quality of care these children can be given. For example, step-parents living with the child cannot consent to medical treatment or grant permission for school trips, and the lack of legal clarity can be particularly detrimental to a child in the context of a family breakdown, where the child does not have any formal link or ties to the person considered to be the parent.

I am pleased to see that the Bill recognises the reality of diverse family types and forms in this State today. The impact that this will then have on the lives of thousands of children and their families is incredibly positive. With this Bill, we need to ensure that a child's right to family life is protected. Bunreacht Na hÉireann places a great importance on the family, defining it in Article 41 as "the natural primary and fundamental unit group of Society". However, the Courts have interpreted the "constitutional family" as only referring to marital families. Irish law currently does not provide anywhere near adequate legal structures for protecting the right to family life for the significant number of children in non-marital families. This is simply not acceptable and it is not fair. Where is the equality in that?

We are thankful that this Bill will mean that children living in non-marital and non-traditional families will be in a position to enjoy a legal relationship with the person who provides them with day-to-day parental care, whoever that may be. We are also pleased to see contained within the Bill a comprehensive definition of the "best interests" principle in line with Article 3 of the United Nations Charter on the Rights of the Child. This is most welcome in terms of providing guidance for the Judiciary, and it promotes consistency in application. We are also welcoming of the fact that the Bill will ensure that a child's voice is heard and considered when important or life-changing decisions are made with regard to guardianship, custody and access. Section 32 of Part V of the Bill empowers the court to appoint an expert to ascertain the child's views in proceedings on guardianship, custody and access where the child is not able to express his or her views directly. We believe in the importance of the participation of children in judicial decision-making and are very much in favour of the appointment of an expert to ensure this.

We are disappointed that a number of issues do not feature in the Bill. Sinn Féin would like to see the establishment of a central register for statutory declarations for joint guardianship to provide protection for the statutory declaration documents which grant guardianship rights to unmarried fathers in respect of their children. We also would support the establishment of a comprehensive court welfare service to support the roll-out of this legislation. This service would provide an appropriate mechanism to carry out assessments of the child's welfare and best interests and ascertain his or her views while also carrying out family risk assessments. It would also ensure, where appropriate, that supports and services would be available to the child and family, such as mediation services and child contact centres.

I have already expressed concern about some aspects of the Bill, and I would like to raise these again today. I have a worry regarding the cohabitation section, whereby a father living with the child's mother for 12 consecutive months, including at least three months with the mother and the child following the child's birth, will automatically become a guardian. As the Minister knows, in some cases this is simply not possible.

Sometimes mothers are still living with their parents, and it is not always appropriate or indeed possible for the father to live there also. This is often the case with teenage or unplanned pregnancies. It does not always mean that the father is shirking his responsibilities or not stepping up to the plate; the circumstances are just not in his favour. What about all the fathers who are working away from home, perhaps abroad, and who must do so simply to be in a financial position to support the child?

There is nothing substantial in the Bill for unmarried fathers aside from cohabiting for the requisite amount of time. Everybody else will continue to be obliged to resort to the courts if the mother does not agree to sign a statutory declaration for joint guardianship witnessed by a peace commissioner or a commissioner for oaths. I have read a number of articles on this in recent days, and there was an excellent article by the columnist Colette Browne in the Irish Independent in which she outlines the issue of the father's right to equality in parenthood with the mother from the start.

Sadly, there are men who do not step up to the plate. Of course, they will not seek a declaration of parenthood and guardianship, and hopefully they will be pursued for maintenance to meet their responsibilities. However, if a father steps up to the plate from the start, he is entitled to equality of parenthood from the start. If it transpires that he is not meeting his responsibilities - for example, if there is domestic abuse or he is not a fit father - that would matter. I firmly believe that the father and the mother should be given equal status in law as parents and equal guardianship from the beginning, and I will table amendments to achieve that. What is provided for in the Bill in terms of conditionality is not equality of parenthood. Perhaps the Minister would take the time to read the article I mentioned, although she might have already done so. It is a very good contribution to the debate and I hope she will consider it. In line with other jurisdictions such as Northern Ireland, Britain, many European countries and Australia, unmarried fathers should have automatic rights to their children when registering the birth. I will certainly seek to strengthen this area of the legislation.

There are questions about how the new laws will work in practice. Will the courts be sufficiently equipped and supported to hear very complex family law cases? How will low-income families who do not qualify for legal aid be able to use the courts? I have some concerns about how aspects of the Bill can be implemented given the serious resource restrictions that exist, the lack of consistency and specialist knowledge that can characterise some family law proceedings and the requirement to hear children's voices. I am generally concerned about the way family law is dealt with by the current court system, a system that is in serious need of overhaul. The days when children and parents are huddled into packed court waiting rooms along with other citizens who are there for civil cases must end. A dedicated and fully resourced family law court system, backed up by a comprehensive court welfare service, is required.

Of course, the long-awaited publication of the Mediation Bill and its progression through these Houses would be of immense value to families enduring separation and divorce, and not just in terms of legal costs. The ability to resolve the issues in dispute in a non-adversarial environment rather than using the blunt instrument of an adversarial courtroom must be encouraged and facilitated more than is the case at present. While mediation is currently available, too few families are availing of this option. The two persons separating should be required to attend an information session on the mediation process before their case can be accepted by a registrar or heard by a court.

I also have concerns about the public's perceptions of rights in this area. In the experience of my office, many parents mistakenly believe that having a father's name on a birth certificate gives him guardianship rights. This misinformation has major adverse consequences for children. Will the Minister consider rolling out a public information programme about guardianship? This is an area where there appears to be widespread confusion among many of our citizens. There is regularly communication with our office from people, particularly fathers, who are unsure as to what rights they have or where they should go to find information. I appeal to the Minister to allocate resources to ensure that more people are made aware of the rights they have in terms of guardianship, particularly as family life in Ireland is so different from how it once was. We must make this information as accessible and widely available as possible. Information should be provided to all unmarried fathers mandatorily at the time of birth registration. If this included the legal position of unmarried fathers and the lack of rights for non-cohabiting unmarried fathers, it would remove much of the confusion.

I commend the Minister and all those who worked with her on this Bill. These proposals, if enacted, will improve the lives of many people and, most importantly, the lives of many children. The Children and Family Relationships Bill is long overdue, but it will move us closer than ever towards protecting all children in Irish society as they should be protected. It is imperative that we get this legislation right. I and my party are happy to work with the Minister to ensure this. There are too many vulnerable children and families depending on this legislation to get it wrong.

Deputy Sandra McLellan

Like my colleague Deputy Mac Lochlainn, I welcome this Bill, which represents the most important reform of child and family law for a generation. It will have a real and positive impact for a large number of children on a daily basis.

The legislation seeks to put children at the heart of family law. This is right and long overdue. It will provide legal clarity for various family types and address the crucial issue of the discrimination faced by children in non-marital families. Every child deserves the same rights, status and protection, regardless of family background. No child should be penalised or treated differently in the eyes of the law due to varying family structures or circumstances. I am pleased that this Bill puts children firmly at the centre of its focus and finally recognises the diverse ways in which children are conceived and raised. It enshrines key principles of the children’s referendum into law.

Overall, the Bill provides legal clarity on parentage, guardianship, custody and access for all families in Ireland. As the Children's Rights Alliance has stated, it “represents an important milestone on the road to recognition of children as rights holders”. The Bill comprises more than 170 sections and seeks to extend guardianship, custody and adoption rights to different types of family. It will have wide-ranging effects. First, it will enable civil partners and cohabiting couples who have lived together for three years to apply jointly to adopt. Currently, they can only do this individually. One member of a same-sex couple will become eligible for adoptive leave. The choice will be left to the discretion of the couple. In respect of same-sex female partners, the rights currently held by fathers to parental leave will be extended to the second female partner, where applicable. If a spouse or partner has lived with the biological parent for three years and has looked after the child for two years, he or she will be able to apply for guardianship or custody.

In addition, the legislation will allow a child’s relative to apply for custody if that relative has looked after the child for 12 months. Guardianship, access, custody and maintenance rights and responsibilities will be extended to cohabiting, civil partner and extended family members in some instances so that children will be able to have a legal relationship with the people raising them, even though they are not their biological or adoptive parents. This includes grandparents, step-parents, informal foster parents and the second parent in a same-sex-headed family. With regard to unmarried fathers, the Bill will give automatic guardianship rights to the father if he has lived with their child’s mother continuously for a year, including three months after the birth.

Prior to this Bill, many unmarried fathers mistakenly believed that they held legal rights to their children as long as their names were on their birth certificates. However, those unmarried fathers had no legal rights at all. This Bill will now mean that a father will have automatic guardianship rights as long as he and the mother had cohabited for the requisite time. This means fathers will have to be consulted on all major matters concerning the children and their consent will be required in order for them to be relocated. Even in such an eventuality, children will be entitled to have a legal relationship with their father.

Although these steps are progressive and welcome, I would like to highlight an important concern which Deputy Mac Lochlainn raised previously on this point. It is not always possible for a father to live with the mother from the time of the birth of their child. The reality is that many couples who experience unplanned pregnancies are unable to live together for a myriad of reasons. It might be that they are very young and still living with their own parents. There may be difficult economic challenges or personal or health reasons. In these difficult economic times, many people find themselves unemployed or underemployed and many parents have no choice other than to travel abroad in search of work. Is it therefore fair to prescribe that a father must have lived with the mother of their child for the first three months, and preferably 12, at best, in order to be entitled to full parental rights to his child?

Taking all these points into account and acknowledging that there is not a one-size-fits-all method to developing a relationship, it is important for us to factor in diverse realities when developing the parameters to legal rights of fathers. All biological fathers, married or unmarried, deserve to have automatic rights to their children on the registration of their birth. This is a course of action recommended by the Law Reform Commission as far back as 1982 when it said that a non-marital father should automatically become a joint guardian. In 2010, the Law Reform Commission again recommended that automatic guardianship should be linked to compulsory joint registration of the birth of a child. There were two guiding principles, namely, the best interests of the child and the notion that all parents should be treated equally, regardless of gender or marital status.

The Minister has said that those fathers and men not covered by the new Bill will be able to apply for a statutory declaration. This would be a legal document signed in the presence of a peace commissioner and conferring guardianship rights. However, an unavoidable complication to such a procedure is that there is no central register for such documents. In other words, if that piece of documentation is misplaced or if either parent chooses to get rid of it, there is no evidence that it ever existed. Currently, as I understand it, there is no provision in the Bill to set up a register of such statutory declarations due to the resource implications such a provision would entail. Should there not exist a register of guardianship for all these children? This would be not only to the benefit of fathers but would also permit the State to maintain accurate records of parental responsibility.

Assisted human reproduction has become a growing factor in today’s society. In recognition of this fact, the new legislation will ban the use of anonymous genetic material and provide for the establishment of a donor conceived person’s register. This will protect the identity rights of children born through assisted human reproduction and enable these children to trace their donors. We have often heard about the pain caused to the many adopted people who cannot establish their genetic origins. This Bill will ensure that future generations will not be subjected to that same pain.

Speaking in support of the proposed legislation, the Minister for Justice and Equality, Deputy Frances Fitzgerald, said that the legislation “provides a legal bedrock upon which the diversity of families will be valued, recognised and protected in today’s Ireland”. I believe this to be true. The simple fact is that this Bill acknowledges just how much family life has changed in recent decades and it puts a firm and detailed protective framework around children. It articulates, for the first time, legal rights for grandparents and others whose relationship with a child is often sundered against their will and the child’s will due to a breakdown in family relations.

It is important to note that this Bill and the upcoming same-sex marriage referendum are separate issues. The referendum in May is a referendum on marriage equality and the only question people are being asked is whether gay and lesbian couples should be allowed to get married. The referendum in May does not in any way deal with the rights of the child and the two issues should not be confused.

The Children’s Rights Alliance has warmly welcomed the Cabinet’s approval of the Children and Family Relationships Bill and we in Sinn Féin support this recognition. The Bill will ensure that all children are cared for and protected in a range of family types into the future. It will give our courts much greater flexibility in granting guardianship in controversial situations. The fact that these decisions will be subject to judicial scrutiny will ensure that all our people’s rights are upheld and protected.

Although we in Sinn Féin broadly support the Children and Family Relationships Bill, we believe there are some areas in which the Bill can be improved. The best interests principle is really strong and has a clear definition, but the voice of the child in this principle is weaker. It is questionable whether it would stand up to a constitutional challenge in the event that the Supreme Court ratifies the referendum outcome, given that the option to obtain a written social report or appoint an expert to determine and convey the child's views is still discretionary. Barnardos has expressed concern around the appointment of such experts as there is no scope in their role to convey to the court what, in their professional opinion, is in the best interests of the child.

This dual function is already present in the guardian ad litem model operational in public law cases. The Bill should establish a court welfare service, which would include a number of aspects including mediation services and child contact centres. This court welfare service would then become a crucial link between the family and the courtroom and enable judges to make informed, holistic decisions based on the information presented to them. Such a service could also include the expert appointed to determine and convey the child's views.

Sinn Féin will strengthen the Bill in parts and will be submitting our own amendments, but we endorse the proposed Bill and commend the Minister for pressing it forward.

Deputy John Halligan

I welcome the publication of the Children and Family Relationships Bill 2015. The publication of this Bill is every bit as momentous, complex and society-altering as has been stated by the media and many Deputies. Its implications are profound for all families but most especially the range of non-traditional families in this country. I commend the Government for recognising the reality of this family life and for its attempts to modernise family law. I am especially relieved that guardianship rights have been extended to significant people in a child's life. I am aware of a number of cases in which grandparents are raising their grandchild because their own child is not in the picture, perhaps due to addiction issues. Many of these parents, as they have become, have had to jump through all kinds of hoops to gain legitimacy in what is a deeply complex situation.

The birth parent, as we know, is not always the best person to bring up a child. This legislation will, it is hoped, make things easier for other caregivers who have stepped into the parenting role when the birth parent could not.

Almost one in five children lives in a lone-parent household but the reality is that Ireland has always had diverse family structures. Many will be aware of the non-traditional families in our history. For example, a child might have been raised believing his mother was his sister. The rights of the child, never mind the rights of unmarried fathers, were an alien concept in the State for far too long. No child deserves to grow up with an X on his birth certificate where the name of the father should be. No father should be forced into absenteeism. What occurred was inhumane and, in spite of the thinking of many pillars of society and liberal, forward-thinking people, the practice of successive Governments was pretty poor. It is very disturbing in the sense that it has taken until 2015 for us even to consider some aspects of what many consider to be a human rights issue. For doing so, the Minister must be complimented. There is no doubt about that.

Awarding unmarried fathers the legal right to have a relationship with their child is a clear indication that the teachings of the Catholic Church have no place in legislation in this country. I only wish the Government could be as proactive in spurning the Church as the Minister is on abortion by addressing the travesty of exporting cases of fatal foetal abnormality. This is a major issue for me. I did not get an opportunity to say this in the debate last week, but am saying it now.

This Bill has been welcomed by front-line groups as a positive step towards equality for all children. There is no denying that it will have a positive impact. However, we cannot leave it unsaid that there will never be equality among all Irish children while so many are living in deprivation and poverty. It is horrific that the latest poverty figures have shown an increase in child poverty. There has been a continuous increase over recent years. As many of us know, the dire effects of poverty are always heaped more upon women and children than men, which is dreadful. It is a little ironic that a Government that seeks to afford children equal rights in legislation could simultaneously create policies that generate further inequality and undermine the well-being of so many parents and children. It is worth reminding people that the number of children experiencing consistent poverty has doubled since the beginning of the downturn in 2008. Extraordinarily and astoundingly, at the end of last year there were 880 homeless children.

Forcing lone parents with no child care provision to work when their child reaches the age of seven will not create an equal society. Those living in lone-parent households continue to experience the highest rates of poverty and deprivation. Almost 69% of individuals in such households experience one or more forms of deprivation. These figures are not mine but are produced by the CSO, Social Justice Ireland, the Society St. Vincent de Paul and other organisations. They are quite horrific. One might say this is not the time to raise them but it is relevant to remind ourselves that so many children are experiencing deprivation and poverty at a time when we are speaking about legislation on children and family relationships and civil and human rights for children.

I am a little disappointed that there is nothing in the Bill to improve the rights of unmarried fathers who do not live with the child's mother. This has been said. I refer to the provision that requires a father to have lived with the mother of the child for 12 months before he can apply for guardianship rights. This will certainly deny many fathers their rights. This really needs to be re-examined. As the Minister knows, relationships can be very complex. Their complexity sometimes leads to them breaking down. There are many reasons a relationship breaks down. A loving and devoted father who happens to be living apart from his children should not suffer as a consequence. This can apply to the mother at times.

It is possible when a relationship breaks down that the couple can disagree over the length of time for which they have been cohabiting. I am sure many Deputies and councillors have come across that. We are all aware of cases in which a relationship has turned sour. There is considerable variation in the information being relayed to family law courts by both mothers and fathers.

I am aware of a number of cases in which fathers had to fight tooth and nail to gain any kind of access to their children, never mind joint access. There is nothing more distressing and hurtful for a councillor, member of the Oireachtas or legal professional than to meet a parent who has no access whatsoever, or who has been denied access, to his children. Sometimes there is no question but that this is for very legitimate reasons but it is sometimes for very controversial reasons. Sometimes when allegations are made, the father may have no access to his child for six months to a year until those allegations can be investigated. This is very distressing and generates among some parents a considerable amount of illness, mental breakdown and suicidal tendencies.

We need more reform of family law and the family courts if we are to deliver the essential justice that the Minister intends to be delivered if the Bill is passed. Some have called for a central register to track guardianship agreements between unmarried parents. This is crucial and the Minister should really consider it. It would act as a safeguard against the very many disputes that take place and about which I have spoken. I do not know whether this proposal can be included in the Bill at this stage but it may be possible to address it independently of it. I am sure it can but I am not too sure that it requires legislation. Many countries have a central register that tracks the guardianship agreements and other arrangements. This has helped in respect of controversial relationships and where controversy arose over access to the child. If every agreement were registered, it could only benefit families in the longer term. Reading this Bill, I am at a loss to understand why my proposal was not included in it.

There are some amendments to the Bill that I will have to support but I certainly will not vote against it. Perhaps the Minister will consider my proposal on having a register. I am not saying it must be included in this Bill. Perhaps the Minister should examine the systems in France, Sweden and Germany, which have a central register that appears to work very well in disputes. I compliment the Minister. It is not always that the Opposition can compliment the Government on bringing forward good legislation. It has done so on occasion. I compliment the Minister on bringing forward the Bill, and I will be supporting it.

Deputy Catherine Murphy

I welcome the legislation and the opportunity to speak on it. Something was said on its timing. It has been too long in the making but I would not be overly critical of the current Government in this regard because previous Governments really should have taken some responsibility. We would not have a Bill that is so comprehensive had legislation been produced in a way that respected all the various factors in today's society.

I have been interested in family law and family rights, including children's rights, since I was a member of the Commission on the Family, which was established in the mid 1990s and reported in 1998. The Minister will be familiar with this given that her husband was also a member of that commission. So voluminous was the documentation that we all nearly went blind reading it.

Essentially, it was set up following the passing of the divorce referendum on the second occasion it was put to the people. The overall thrust of the commission's recommendations centred on the need for public policy to focus on preventive and supportive measures to strengthen families in carrying out their functions and to prevent difficulties arising. However, the Department of Social Welfare became the Department of Social and Family Affairs. Unfortunately, the family affairs aspect disappeared and that is part of the reason we now have a much more substantial item of legislation than would otherwise have been the case.

There was some discussion during those years about how we define a family, and the conclusion was that we should define a family by what it does in terms of its nurturing role rather than having a hierarchy of family types. That is the approach being taken today because families come in all shapes and sizes, so to speak. The Children's Rights Alliance gave us very interesting information on that. It said that there were 308,000 children living with 186,000 lone mothers; 104,000 children living with 60,000 unmarried cohabiting couples; 43,000 children living with 29,000 lone fathers; 230 same sex couples with children; and 42,000 people had divorced and remarried and so on. That gives us an indication of the diversity of family types today, and in many cases this Bill is recognising a reality.

I describe myself as a feminist and by that I mean I believe in equality. For many years I have had serious concerns about the treatment of unmarried fathers and their rights, and I know that concern is shared by many in this House. The legislation is an improvement in that respect but it is flawed. I take the point made strongly by Treoir and Ruth Barrington, who chairs that organisation, when it states:

Treoir favours automatic rights for unmarried fathers in line with practice in other jurisdictions such as Northern Ireland, Britain, many European countries, Australia etc. We regret that this Bill does not provide for automatic rights for those unmarried fathers who are not cohabiting and yet are in a committed and caring relationship with their child. We recommend that at a minimum the legislation makes it mandatory to provide unmarried parents with information at the point of birth registration on their legal position in relation to their children and on the options open to them.

I hope the Minister would at least take that point on board. Treoir is not on its own in saying that. The recommendation from the Law Reform Commission in 1982, and repeated in 2010, was that there should be automatic guardianship linked with compulsory joint registration on the birth of the child. It based that recommendation on the principle that all parents should be treated equally and also that it is in the best interests of the child.

With rights come responsibilities. If we consider how other jurisdictions apply some of the responsibilities, in Australia, for example, if someone has an automatic guardianship but they have not lived up to their obligations, it would be quite difficult to leave the country if they owed maintenance payments or whatever. There can be a change in behaviour when the balance of rights is changed, and equality should be afforded to both parents equally.

Colette Browne, to whom Deputy Mac Lochlainn referred, in a very good article in the Irish Independent, highlights some of the issues that can arise for a father who does not have guardian rights. For example, where a child falls ill he cannot authorise treatment. If a mother decides to move abroad, there is no means of preventing that, even where there is a solid relationship. That can be tragic for both the parent and the child in that case. She described the worst case scenario where a partner dies and the father, who is the natural father, is left alone to care for the child. He has to mount a court battle to press the right to care for his own child.

I accept the points - I had intended making some myself - about the anomalies that can be created in a relationship, particularly if it is a young couple. I have come across cases, and I am certain the Minister has also, where it was not possible for a young couple to cohabit because, for example, they could not afford the rent, and the Department of Social Protection would have a view on providing them with rent assistance. One arm of the State can cause a set of circumstances where another right is infringed by virtue of how policy has been determined. It is very important that the Minister examines that.

I accept this cannot have been an easy Bill to draft because the Minister is trying to balance rights. I accept there are situations where there is the most tenuous of connections between a father and a child, for example, where the pregnancy may have resulted from a fleeting holiday romance or the more sinister circumstances where the pregnancy occurred following rape and a baby is born. To give automatic guardian rights in those circumstances would be intolerable. I accept there is a balance to be struck.

It is important to construct legislation in a way that ensures there are not power imbalances that would put the child in a position where he or she could be used as a bargaining chip. We have all come across instances of that in disputes involving the two parents. It is critical to get that balance right. I would prefer if it was an automatic right with restrictions rather than simply restrictions in terms of the approach.

I very much welcome the extension of rights to grandparents. We have all had an involvement in the campaigns waged by grandparents. They feel a terrible sadness as a result of being completely cut off from children with whom they have developed a relationship. From the child's perspective, they have had a valued relationship with a grandparent that has been severed. It is important that the legislation respects and reflects the reality of life today.

The provision in respect of custody and the extension to include grandparents and other family members is welcome. The issue of custody often arises in tragic circumstances and in a crisis situation where there is an immediacy about it. I have helped a family through the mire when, say, a member of the family has abandoned the child or a parent has died. The grandparent or family member is often worried about whether they will get custody of the child, and sometimes they are not very open about the arrangement because of that concern. I have seen the panic that creates for people in those cases. It is important that clarity is provided on that. It is welcome that the child's views are not only listened to but are taken on board. The provision in the Bill for that is beyond timely, a point I have already made.

I wish to discuss the issue of assisted human reproduction. Usually when we debate big social issues, such as legislative changes on divorce or civil partnerships, we are affording new rights. Uniquely in this situation, however, we are restricting rights. Or we are restricting what has been allowed where there has not been legislation to control a situation that did require it.

The Minister has got the balance right in terms of there not being a commercial side, as well as where there is an ability to trace and a ban on anonymous donations. That kind of limitation is good. This is progressive legislation and, despite what might be discussed, one cannot deny technology. A few decades ago, it would have been impossible for some people to have a child, but technology has now permitted that to happen. Given the hoops that people must go through in order to have a child by those methods, one can be sure that they are absolutely committed to the notion of parenthood. The legislation is solid in laying down conditions before assisted human reproduction is permitted, as well as the issues of custody and adoption.

The Minister reminded us that the Status of Children Act 1987 abolished the concept of illegitimacy. People tend to harp back to the good old days, but there were some awful things about those times. This House has dealt with some of them, including the mother and baby homes, forced adoptions, illegitimacy and industrial schools, as well as the abuse children were subjected to in those institutions. When we are talking about the good old days and going back to values, we did not really value children then. We certainly did not value poor, vulnerable children.

This is a more enlightened era and many positive things in the legislation reflect the country's new reality whereby people live in very different arrangements compared to what was the case in years gone by. I will be supporting the legislation. I expect there will be amendments and I may well table a few myself. My big concern is about the balance of fathers' rights but other than that, there are many good initiatives in the Bill, which I warmly support.

Deputy David Stanton

As Chairman of the Joint Committee on Justice, Defence and Equality, I am delighted to take part in this debate. I am speaking because of changes to procedural reforms in the Oireachtas whereby Ministers are now required to provide committees with drafts of all legislation, or else give a good reason why they do not do so on Second Stage.

I acknowledge the presence of Deputy Mac Lochlainn, who is a colleague on the committee I chair. He works extraordinarily hard and has been challenged, as I have been, by much of the legislation coming through.

Mention has been made on and off about the delay in this Bill, but it is probably one of the most complex pieces of legislation I have seen in my time here. I wish to acknowledge and compliment the enormous work put into this complex and serious Bill by the former Minister, Deputy Shatter, as well as by his officials.

I note that surrogacy has been taken out of the legislation and even though my committee did some work on it, it has now moved to the health area. I am sure my colleagues there will examine the work we did at the time.

There have been 36 cases of pre-legislative scrutiny from March 2011 to October 2014, 11 of which were undertaken by the Joint Committee on Justice, Defence and Equality. They have all been quite complex and time consuming. The committee has held 102 meetings in that time and well over 400 people have given evidence there.

Pre-legislative scrutiny is a major reform but unfortunately it occurs down in the dungeons where no one hears us or sees us. Sometimes one might as well be on the far side of the moon for all people care. At the same time, however, the committees do produce important work. It gives an opportunity for the public who are experts and for members to make their views known. Because a Bill has not been formally drafted, it affords an opportunity to the Minister, officials and our colleagues to have a major input into draft legislation at that stage. It is the biggest reform I have ever seen, but it has gone unnoticed. People talk about Oireachtas reform, but pre-legislative scrutiny is the biggest one because it has a massive impact on the legislative process. That is our major function, so we can have a huge impact on legislation as it is being drafted and put together. When it comes before the Dáil it is richer for that process and a lot more information is available to Deputies if they wish to avail of it, as well as reading the expert reports.

The Bill before us was published on 30 January 2014 and was referred to the Joint Committee on Justice, Defence and Equality shortly thereafter. On 6 February 2014, we sought submissions and allowed people up to 28 February to send submissions to us. We received 38 quite detailed and lengthy submissions, many of them from experts in the field who were concerned and had an awful lot to say.

We had day-long public hearings on Wednesday, 9 April 2014. I thank all of those who made submissions and who subsequently engaged with the committee. Some 15 individuals and groups engaged with the committee that day, with 20 individuals speaking there. As Deputy Mac Lochlainn will recall, we were at it all day and it was quite complex.

The committee completed its report and laid it before the Houses on 29 May 2014. The report, and two others, were publicly launched on 10 July last year. A lot of work went into it. Our report made 11 strong recommendations and I am glad to note that most of those have been taken on board by the Minister and her Department. That proves the point that the committee's work is extremely useful and valuable.

Some of the recommendations have been moved to the Department of Health, including the one on surrogacy. The committee's report recommended that no sanction should be imposed for breach of provisions in the Bill on parents that would be against the interests of the child. In particular, children should not be denied a legal identity because of some breach of the relevant provisions relating to surrogacy arrangements.

As regards identity, the right to find out who one's genetic parents are has been taken on board. When a child reaches the age of 18, he or she can discover who their genetic parents are. That is very important. In all of this, and even in reports in recent days, I have been struck by how fast science is progressing and developing. Maybe some of it is not going the right way, but it is advancing. We have seen reports of three genetic parents being possible. We have also seen reports of the possibility of people being cloned from two people of the same sex, for instance. That is the most recent example I have seen. These areas are currently unregulated.

I am glad the surrogacy legislation is coming forward, which is not before time. That is extremely complicated, as is this legislation.

We commented on the child's right to identity in head 10 of the heads of the Bill and I am glad it is included in the Bill as published, especially the genetic identity.

There has been much mention tonight of guardians acting jointly on medical consent. Many colleagues are concerned about the rights of fathers. The heads of the Bill originally specified that parents should live together for 12 months. We actually recommended that it should be nine months and three months afterwards. I welcome that is now included in the Bill. We had representations on an issue that is happening more and more now where parents have a good relationship but do not live together. However, because they do not live together they miss out on this aspect. It is a difficult one. I know of parents who have a good relationship and because they cannot afford their own house at the moment they live with their parents. What does one do in those circumstances?

On the automatic guardianship, Deputy Catherine Murphy quite rightly pointed out that if there is automatic guardianship, what about the person who is a rapist or is in some other way undesirable? That is something we have to take into account. I am not sure if automatic guardianship is the way to go. If people live together for three months after a child is born and nine months before, the chances are that the man is the father and if they stay together for three months afterwards the chances are that they will have a commitment to each other which is in the best interests of the child.

The best interests of the child have been mentioned again and again. In head 7.9 of the heads of the Bill that we got, the views of the child were crucial. A number of witnesses before the committee asked for clarity on how and where the views of the child were to be ascertained? They also asked about the age and maturity of the child. It is very difficult to put that into legislation, but we need to bear it in mind. We also need to bear in mind that we are still awaiting the referendum to be decided in the courts as to where that is to go. However, we said that greater clarity was needed on the provisions in head 32 concerning the right of the child to be heard and that should be implemented in practice without imposing undue burden on the child, which is important.

We proposed that the Bill should be amended to allow for adoption by a single stepparent. I have read the Bill twice at this stage and there is a lot in it. As far as I can see, that provision is contained. So a birth parent does not have to relinquish rights where civil parents jointly adopt.

I mentioned the views and rights of the child to participate. That is amending the Guardians of Infants Act 1964. The Bill refers to 24 pieces of legislation. Most of them are very complex and most of them have been amended by the Bill.

It has been suggested that the terms used with respect to guardianship, custody and access should be changed. In 2005, the Law Reform Commission proposed replacing them with "parental responsibility, day-to-day care and contact." It maintained that the terms "guardianship, custody and access" were archaic and that we should consider more up-to-date terminology that people might understand better and might not be put off by the rather archaic terminology.

Some colleagues have said they will introduce amendments to the legislation when it comes before the committee shortly. We look forward to addressing those amendments. I am happy that the pre-legislative scrutiny has been taken into account and that most of the recommendations we made have been incorporated into the Bill.

I commend the Bill to the House and wish it well on its way.

Debate adjourned.