Dáil Éireann debate -
Thursday, 26 Feb 2015

Vol. 869 No. 3

Children and Family Relationships Bill 2015: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

Deputy Ciara Conway

I am very glad to get some speaking time on this historic Bill. I congratulate the Minister on her efforts to bring it before the House. There is a saying that life sometimes imitates art but in my case, it is a case of politics imitating my life. When I was elected to this Dáil, I was a single parent and my daughter and I were unrecognised by the State. I am very glad to see that when passed, this legislation will change that for so many parents who parent alone for a range of different reasons. Since my election to the House, my life has moved on, like that of other people.

I am now a married woman. This Bill will give recognition to my new form of family and to my daughter's stepfather. I anxiously await the introduction of the adoption legislation. The Minister will be aware that where a person who has a child marries or remarries and the new partner wishes to adopt that child under current law both people must adopt the child, which is nonsense. I told my daughter that I would be speaking in the House about this issue today. She does not want me to have to adopt her. I respect her opinion on that. I eagerly await the adoption legislation which will further formalise the recognition of our family in this State.

This is powerful legislation. Ireland has moved on. As legislators, we are often scolded for not moving quickly enough on issues affecting people outside this House. I know from my experience as a social worker and my engagement with families trying to look after children in particularly difficult circumstances that the unsung heroes in this regard are the grandparents. In bestowing guardianship rights on grandparents this legislation will be transformational for families and children. I do not say that lightly. A child's sense of belonging and identity is wrapped up in the home in which he or she lives and the person who cares for him or her. No child should feel that he or she is somehow lesser than the child he or she sits beside in school or plays with on the football or hockey team. This legislation will bring an end to that for many children and families throughout the country.

The Bill also makes provision for the children of same-sex couples, which is hugely important. I have many friends who are currently in that situation and whose children, again, feel left out or different in some way. As I said, this legislation, in terms of the child-centred approach therein, is powerful legislation. The old adage that children should be seen and not heard is the type of philosophy that surrounded the manner in which family life and family legislation in this country was constructed over the last number of years. I am always horrified by how often in family law cases the voice of the child is not only not heard but not consulted. That we are taking a child-centred approach to this legislation will be transformational for these children and their families.

It is a great sense of pride for a State to be able to recognise, acknowledge and confer an official status on a family. I do not think we can under-value this. It is hugely important. This is a significant step forward for Ireland as a country. As a young student in college it always was a source of amusement for me that Article 41 of the Constitution only recognised the married family. We all know that the tapestry of family life is so much more intricate and stitched together in different ways than the idealised nuclear family. It is extremely important to the development of a child, emotionally and socially, that he or she has a sense of identity when growing up, that there is no big kerfuffle when he or she has to provide a birth certificate for school purposes and that he or she does not have to endure the embarrassment of having to go court in order to get a passport when every other child does not have to jump through those types of hoops. For the children who live in a diverse array of family situations to be officially recognised is powerful. I am excited that as a Government we are at long last legislating on this issue.

The guardianship rights afforded under this legislation to step-parents will be hugely helpful to families. I hope that priority will be given in the adoption legislation to address the situation of a single parent family which later becomes a married family and the step-parent wishes to adopt the child. Any change in this regard will be powerful for many families throughout the country. I eagerly await that legislation.

I know from the briefings and build up to the introduction of this legislation that drafting it has been technically difficult and onerous. However, it is worth it. I commend the Minister and her officials for their work in that regard. I believe that as a result of this legislation children will have a proper sense of who they are and a proper recognition of the families in which they live. I will be eagerly following the debate on the legislation as it moves through all Stages.

Deputy Róisín Shortall

I welcome the opportunity to speak in this debate. However, I believe this Bill, in terms of the time provided for Members of the House to consider its contents, is not being handled in an appropriate manner. It is a substantial Bill, which comprises 106 pages. The Bill was published last Thursday and has hugely far-reaching implications for many families across the country. I believe that the manner in which this debate is being handled is not acceptable or appropriate given the seriousness and import of this legislation. What is generally regarded as best practice in terms of Dáil scrutiny of legislation is that following publication of a Bill a minimum of two weeks is allowed for Members to read it, take advice on it and cross reference its provisions with other legislation for which it has implications, which is the case in this regard in that the Bill references and amends umpteen other pieces of legislation. Members should have been given a minimum of two weeks to consider this complicated legislation. It is not acceptable that it is being rushed through the Houses.

The original timescale, as set out by the Minister's predecessor, was that this legislation would be published in the autumn of last year, that adequate time would be allowed for consideration of it and that it would be passed by the end of last year. For some reason, there have been delays. I am concerned that at this point there is an unspoken view that we need to get this Bill enacted prior to the debate on the same-sex marriage referendum. While I am supportive of the same-sex marriage proposal I believe these are two separate issues that need separate consideration. My concern is that in seeking to avoid the two issues running together adequate time for debate on this legislation will not be provided and its implications will not be adequately considered by Members of this House and by Members of the Seanad.

That is regrettable.

Deputy Frances Fitzgerald

That is not true.

Deputy Róisín Shortall

I am also concerned about that fact that very few Government Deputies appear to be offering to speak. Today, I understand slots are available that are not being fully taken up.

Deputy Frances Fitzgerald

Many Government Deputies are speaking on the Bill.

Deputy Róisín Shortall

I suggest that given the very tight timescale to which the Minister is working, that many Members of this House have not even had a chance to read the Bill let alone take advice on it. That is not an adequate way to deal with far-reaching legislation. That is regrettable, and the Bill will be weaker for that. The conclusions people come to will be weaker because of the inadequate time that has been allowed for debate.

The Bill contains a number of very progressive provisions that are very much to be welcomed. Reform of family law has been outstanding for several years and is now being finally tackled. Certain issues that should be in the legislation are not in it. The principal one relates to surrogacy. It does not make any sense whatsoever to have taken that very major issue out of the legislation. The original intention of the then Minister, Deputy Alan Shatter, was to include surrogacy in the Bill. It is not a good idea to remove it and to transfer it to the Department of Health. Surrogacy should have been dealt with in the context of the Bill because while there are significant health issues involved in terms of the regulation of the area, there are also significant legal and justice issues which come into play. It would have been much more satisfactory if that had been dealt with in the context of this legislation, which was the original intention.

Aspects of the provisions outlined are a matter of some concern. My main concern relates to the treatment of unmarried fathers. There is a small provision for unmarried fathers in terms of guardianship where they have been living with the mother of their child for a minimum period of 12 months, three months of which must be following the birth of the child. I find it very difficult to understand the thinking behind the provision. What is regarded as best practice, and what is done in many countries, is to provide automatic guardianship for the father of a child. That is the case where the paternity of the child is not contested and both unmarried parents register the birth of the child together. I refer to cases where parentage is not disputed and both parents accept responsibility for the child. I cannot see any reason whatsoever why the father of a child would not have automatic guardianship.

There has been much talk about the best interests of the child. The best interests of the child is that he or she is cared for by two loving parents. Where parents are more than happy to be registered as such and want to play a role in their child’s life, that should be absolutely respected. Not only that, it should be encouraged. We are very good in this country at sending out very negative messages about fathers. We make it very difficult for unmarried fathers to play an active role in their child’s life. For example, last year’s budget provision cut the tax relief available to unmarried fathers, as it was in most cases. Even where a single-parent allowance was not being used by the mother it could not be transferred to the father. Again, a very negative message was sent out to unmarried fathers that they are not wanted on the scene and they are not recognised as having a role in their child’s life. I am very disappointed the Minister has taken that approach. It is very easy to demonise unmarried fathers. Some of them are not interested in playing a role in their children’s life and some of them play a destructive role, but they are the few. The majority should not be demonised because of the behaviour of the few. When summing up on Second Stage could the Minister explain why a father should not have automatic guardianship rights simply because he is not married to the mother of his child? I cannot see any rationale whatsoever for that. In fact, it is very damaging to fathers. It sends out a very negative message that fathers do not have a very important role to play in their children’s lives and that they are somehow second-class citizens by virtue of being unmarried. That is not acceptable.

When the Special Rapporteur on Child Protection, Dr. Geoffrey Shannon, examined the issue and reported in January 2011, he said it was critically important to extend automatic guardianship rights to unmarried fathers and that the State should consider implementing the procedural reforms recommended by the Law Reform Commission to give effect to automatic joint parental responsibility. It is very important that we expect fathers to play a responsible role. That sends out a very clear message; that fatherhood is important. It is critically important from the point of view of a child that he or she would have the care, love and attention of both parents. But it is also important that the message is sent out to all fathers that the State values the role of fathers, irrespective of whether they are married or unmarried.

When the Joint Committee on Justice, Defence and Equality examined the issue, it recommended automatic guardianship for fathers and joint guardianship. The Minister owes the House a clear explanation as to why she has ignored the advice of Dr. Geoffrey Shannon, the Law Reform Commission and the Joint Committee on Justice, Equality and Defence. I see no justification whatsoever for the approach being taken by the Minister. Could the Minister explain the reason the regulations relating to previous legislation on compulsory registration at birth have not been signed yet? A commitment was given to ensure compulsory registration of the names of both the father and mother on a birth certificate but the regulations to underpin the legislation have not yet appeared.

The restrictive route taken by the Minister in the legislation in terms of the 12 month cohabitation requirement is very much an outlier. It is out of line with what is happening in many others countries, for example, in Northern Ireland, the United Kingdom, Australia and many other countries where a clear position is set out that values fathers, and states the importance of the role they play in children’s lives, in recognition of the commitment in the UN Convention on the Rights of the Child that all children have a right to know, and as far as possible to be cared for by, both of their parents. That happens in other jurisdictions and there is automatic guardianship for fathers in that situation.

Could the Minister also respond to a point that was made to me recently, namely, that under the Good Friday Agreement there is a commitment to ensure that all of the rights enjoyed by citizens in Northern Ireland are also enjoyed by citizens here and vice versa?

In this regard, the Minister might explain why she proposes a very different policy from that which obtains in Northern Ireland in respect of the rights of unmarried fathers and, by implication, the rights of children of unmarried parents. The unfairness of the way in which unmarried fathers are treated is exacerbated by the constraints imposed by the in camera rule for family law cases. Anecdotally we know many fathers have felt very hard done by, and there is a lack of accountability with regard to the treatment of unmarried fathers in the courts because of the in camera rule.

Many fathers mistakenly believe that if they put their name on their child's birth certificate it somehow conveys a right to guardianship, but this is a mistaken belief because it is not the case. It is important the Minister commits at the very minimum to providing information to fathers in these circumstances to let them know they must take further steps if they are to have guardianship rights. This information should be provided at the registration of the birth, and an information sheet should be available to fathers to let them know merely putting a name on the birth certificate is not sufficient. According to Treoir, a majority of parents and professionals mistakenly believe the father's name on the birth certificate gives him guardianship rights, and this gap in information needs to be addressed.

Regrettably, many fathers will still have to resort to the courts if the mother does not agree to sign a statutory declaration. We heard Deputy Shatter speak about this last night and on the media this morning. Unfortunately, there are many situations where children are used as pawns in serious disagreements between their parents. It is highly unsatisfactory that children are caught in the crossfire in a dispute involving their parents. It is not good for anybody that this should be the case. A court can be a very confrontational arena in which to resolve some of these issues. In practice, many fathers give up because they know the odds are stacked against them.

The Law Reform Commission recommended a central register where provision is made for joint guardianship, as did the Oireachtas Joint Committee on Justice, Defence and Equality. If a statutory declaration for joint guardianship is signed but is subsequently mislaid or destroyed, there is no evidence of the fact the father has guardianship rights. Treoir states this can have dire consequences, such as the father losing contact with his child, particularly when a mother changes her country of residence, or the father not being able to consent to medical treatment for his child. The Bill should make provision for the establishment of a central register for joint guardianship agreements to keep a record of statutory declarations agreeing guardianship rights. I ask the Minister to respond to this specific issue. Will she commit to providing a register of statutory declarations at a very minimum?

The Bill makes provision for many family types, which is very welcome, and constitutional protection will be provided for families based on heterosexual and same-sex marriage if the referendum passes. However the Bill does not provide protection for the children of non-married couples and will not bestow rights on non-married fathers. This is a significant problem with the legislation. The Bill goes into much detail about the register to be set up to keep a State record of donors in the case of assisted reproduction, but it will not put in place a record of statutory declarations providing for the rights of guardianship of unmarried fathers. This beggars belief. There are major gaps in this regard. In the rush to provide for other family types, I am concerned the Minister has not addressed the issue of unmarried fathers and their rights.

Other issues come into play on the register of donors with regard to gametes. This register will be very important but I am concerned about the lack of provision for how it will be handled. The Bill speaks about the register being accessible by the Minister for Health. I wonder who in the Department of Health will handle this. What are the protections with regard to confidentiality? What are the protections with regard to the provision that when a person conceived through assisted human reproduction reaches the age of 18, he or she can request a copy of his or her birth certificate? The registrar must notify the person there is additional information on his or her parentage and this will place a significant responsibility on registrars. It also opens up the possibility of significant family issues arising for the person. I am not satisfied it has been adequately considered under the legislation. There is potential for major difficulties to be caused within families unless it is very sensitively handled. I hope the Minister will be open to amendments as the Bill works its way through the House and the Seanad. In particular, I ask her to respond to the questions I have asked on the rights of unmarried fathers.

Acting Chairman (Deputy Frank Feighan)

I call Deputy Alan Farrell, who will share time with Deputies Dan Neville and Andrew Doyle.

Deputy Alan Farrell

I thank the Minister for bringing the Bill to the House. I recognise the work she and the Department have done in recent years. The Bill serves the best interests of the child. It gives us an opportunity to focus on the rights of children, and what is the perception or reality of the best environment in which to rear of a child in this country. Every child has the right to have his or her familial relationships recognised and we have a responsibility, as legislators, to ensure this right is protected.

The law is outdated and does not identify with the realities of family life in Ireland. The census in 2011 showed there were more than 215,000 lone-parent households, with more than 17,000 lone parents living in multi-family households. There was an increase of 41% in the number of children living in households headed by cohabiting couples between 2006 and 2011, while more than 25,000 children were born outside of marriage or civil partnership in 2012 alone. Current legislation does not provide these children with the protection they deserve.

Whatever one's moral or religious backgrounds our State is evolving and family life is changing. This Bill recognises the change and will cater for the needs of children living with married parents, unmarried parents, a grandparent, another relative who is parenting the child or a parent and parent's partner.

As the Minister stated in her speech, it has been 51 years since the Guardianship of Infants legislation was enacted in 1964. With the exception of the children's referendum, there has not been any significant legislation or changes in Irish society or legislation since that period. Part 4 of the Bill, when enacted, will enable the court to appoint step-parents, civil partners and cohabiting parents as guardians. Moreover, it will allow a parent or guardian to nominate a temporary guardian, a progressive advancement.

Should the Bill pass, a wider range of unmarried fathers will automatically become guardians of their children. A father who has lived with the child's mother for 12 consecutive months, including at least three months with the mother and child following the child's birth, will automatically become a guardian. These 12 months of cohabitation may take place at any stage between the birth of the child and the child's 18th birthday.

It will be possible, under this legislation, for a parent's spouse, civil partner or cohabitant of not less than three years to apply to the court to become a guardian where the person concerned has co-parented with the child for two years. While this is an important development in recognising the relationship between the child and the parent or relative parenting the child, these guardians will not have full guardianship powers unless it is determined to be in the best interests of the child, a priority at the heart of this Bill in the first instance. This level of guardianship will not be an automatic entitlement: for a spouse, civil partner or cohabitant the consent of an existing guardian will be required.

While these changes are essential to provide all children with the same protection of familial relationships as children born to married parents, a majority of children, except those who have been adopted, will continue to live with their biological parents, as they do now.

The matter of temporary guardians will be addressed by amending section 6E of the Guardianship of Infants Act 1964. The insertion of a new section for the appointment of a temporary guardian by the court is a valuable aspect of the Bill. The court will have the ability to appoint temporary guardians in cases where it considers the qualifying guardian incapable of exercising guardianship, provided the temporary guardian is a suitable person to take on the responsibility of guardianship and, most important, the appointment is deemed to be in the best interests of the child.

The question of maintenance has raised its head on several occasions in the Dáil and Seanad in recent years. I welcome the fact the Bill includes measures that focus on making parenting work in cases where relationships have broken down. It is important to ensure the child's relationship with both parents is maintained and the Bill will implement provisions to assist in this regard. For example, parents who do not comply with court orders on access or custody can be required to compensate the other parent for the loss of time with the child or to attend a parenting programme. Furthermore, it will be possible for a potential maintenance liability to be imposed on a parent's civil or cohabitant partner.

I raised a particular matter on two previous occasions during discussions on the Bill. This is the scenario whereby attachment of earnings orders are placed on a parent. In the examples I have come across this is primarily a father who is not working and on social welfare. The court does not consider social welfare to be earnings and therefore the attachment order does not apply. In certain instances I have encountered in my constituency, children, who are now in their mid to late teens and whose parents have split up, divorced or separated, legally or otherwise, are not receiving any maintenance whatsoever from their fathers. This is wrong and it is highly questionable for society to accept it. Furthermore, it places a financial burden on the State. As legislators, we have a responsibility to ensure that all children are supported. We must ask what measures we can take as legislators to ensure that fathers in the cases I have mentioned actually pay their way or pay for their child's upbringing. Perhaps that is a matter for another Bill, probably in conjunction with the Department of Social Protection.

The rights of the majority of children in respect of parentage will not be changed under this legislation. On this matter we must be clear. I will reiterate a point made by the Minister, Deputy Fitzgerald: the natural child of heterosexual parents will continue to be the child of his natural mother and natural father. However, this is about allowing a donor-conceived child to gain a second parent and a child adopted by civil partners or a cohabiting couple to gain two parents.

I wish to highlight one point with regard to same-sex couples adopting. Since 1952, an individual person in this country has been able to adopt as a single person, regardless of his circumstances or sexual orientation. Indeed, the qualifying criteria for someone to adopt a child in this country are rather onerous. It is extraordinarily difficult to pass the various tests applied and that is not going to change. All we are doing is recognising that two loving parents, regardless of their sexual orientation, can adopt. At the moment, a homosexual couple cannot and that is inherently unfair. I am pleased to see this being addressed in the Bill.

I welcome the inclusion of retrospective recognition of the parentage of certain donor-conceived children in cases where a child has been born through donor-assisted human reproduction treatment pre-commencement of the Bill.

Since my time is limited I will skip to the end and ask that my notes be read into the record. The Taoiseach has described this Bill as the most important change in family legislation in the history of this State. This is an apt description. I believe the Bill is essential to ensure family law in Ireland reflects the society in which we live, as I remarked at the outset.

I commend the Minister on her diligent work on the Children and Family Relationships Bill as well as the work of the Department officials present. I recognise they have put in a great many hours in the creation of this Bill.

It is necessary to ensure that all children, regardless of the family type they come from, have equal protections under our law. Not to take such child-centred action would be irresponsible of us as legislators.

Deputy Dan Neville

I welcome the opportunity to speak to the Children and Family Relationships Bill. It is long overdue. I commend the Minister on bringing the Bill to the House. The Bill will modernise the law in respect of children living in diverse family forms. It is intended to address the security needs of those children and their family situations, whether they are living with married parents, unmarried parents, a parent and the parent's partner, a grandparent or another relative who is parenting the child.

Society has changed significantly in the 51 years since the Guardianship of Infants Act was introduced in 1964. My lifetime has seen significant changes in society and children in society. The realities of modern life have changed significantly in that period. Previously, people took the view that children should be seen and not heard and that corporal punishment was acceptable and legal in the home and in schools. The changes have been significant since those times. Previously, family law assumed that a married couple would take the responsibility for rearing children. However, the family situation has changed significantly since then. Now, the majority of children are reared in married families, but there are lone-parent households, blended families or households headed by same-sex couples, grandparents or other relatives as well.

The children in such diverse families need the State to recognise their status as a family and legislate to allow them to function as a family.

The Bill modernises Irish law on a range of complex and sensitive areas such as parentage, custody, access, maintenance and adoption. It puts the welfare of the child as the central consideration. This is the central theme of the Bill, as it should be the central theme of society, namely, it is child-centred and the interests of the child are paramount in considering legislation. The people decided this in the referendum to change the Constitution to recognise the child's welfare as being predominant in terms of treatment by the authorities, services and society.

The 2011 census outlined that 215,300 families were headed by lone parents and 44% of these parents had never been married. There were 49,005 households of cohabiting couples with children under 15 years of age. The number of children living in cohabiting households rose by 41% between 2006 and 2011. We urgently need modern legislation that recognises the changes that have happened in society. I firmly believe a child has a right to know and to be parented by both parents. It should be a central issue for society that there is an expectation of and a duty on parents to parent the child, except in exceptional circumstances, because that is a child's right. With rights come responsibilities for the parents in those situations.

The Bill makes the best interests of the child paramount in decisions on guardianship, custody and access. It also 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. This is a very welcome change given that, 51 years ago, the child's views would not even have been considered by the courts or those with responsibility for ensuring the child's welfare was taken care of.

I welcome the Bill and again congratulate the Minister on bringing it forward.

Deputy Andrew Doyle

Like other speakers, I commend the Bill and congratulate the Minister on bringing it forward. It is fair to say it is of benefit to the framing of the Bill that the Minister spent time as Minister for Children and Youth Affairs. I certainly believe that has given a breadth and depth to it that maybe would not have been possible otherwise. It is hugely reforming in the same way that the civil partnership Bill was a couple of years ago.

I want to deal with three aspects which are central to the Bill: donor-assisted human reproduction, adoption and the Guardianship of Infants Act amendments that occur in the legislation. With regard to donor-assisted human reproduction, I believe the impending surrogacy legislation will have an impact on this in so far as it seeks to deal comprehensively with all forms of family formation, and donor-assisted human reproduction will certainly be a part of that.

With regard to adoption, the Bill seeks to put children first. As Deputy Neville said, the fact children's views are being taken into account for adoption, guardianship and custody is very important. Some who are against the proposals in the Bill say that a child is best reared in the family home with the biological father and mother. While I do not think anybody disputes that, children who become available, for want of a better word, for adoption are not going to grow up in that environment. I have had experience of children who lived in residential care for whom that experience was mixed and certainly not the most desirable, although at the time it was in their best interest. We have done everything we can to move away from that system, as is only right and proper. The adoption laws in this country, including those concerning inter-country adoption, are comprehensive to the point that some would consider them restrictive. However, this is always in the best interests of children.

With regard to the guardianship of infants and the whole issue of parenting and parents' rights, a lot has been said about unmarried fathers, in particular the time periods of 12 months and three months with the mother. However, there is one group that may not have been dealt with comprehensively. I sent an e-mail to the Minister's office last week, having been contacted by a constituent who is a separated father. He is a very upset, emotional and dejected individual who has taken joint custody of his children. As his ex-spouse is now remarried, under the new laws he does not qualify for tax relief as a single parent. This issue should be looked at. Likewise, he feels the legislation further dilutes his rights in so far as the legislation would make the mother's right supreme in the Constitution whereas the separated father's right would have to be dealt with through primary legislation, even though in this case he is the biological father. This also needs to be clarified.

I appreciate there are many scenarios where fathers, be they separated or unmarried, take no responsibility for their children and have no interest. There are provisions in the Bill to deal with this and there is recourse to the courts, which is very much to be welcomed. However, I hope cognisance is taken of the many fathers, separated or unmarried, who want to be active participants and want to bring their children up in, as it were, as normal an environment as possible. We should not lose sight of this. I ask that the Minister, when considering her response or when this Bill goes to Committee Stage, would consider a specific reference to separated fathers because there is some feeling of ambiguity in the legislation with regard to their status.

This man went on to suggest that even if his ex-spouse had more children, she could actually come back through the courts to him for more maintenance, which I think bizarre if she is in a stable married or civil relationship and when it is a case of children of whom he is not the biological father. It is a point that was made to me. While it may not be relevant, the Minister can understand where this person and people like him are coming from. I ask that this sort of issue be dealt with because it would be a pity for such comprehensive, reforming and welcome legislation to leave a few people out of the loop when such an effort has been made to deal with this in a comprehensive fashion.

Deputy Barry Cowen

As the House knows, Fianna Fáil has indicated we will support this Bill. It is a Bill which seeks to centralise the best interests of children rather than continue with the constraints of existing legislation, which leaned heavily in favour of the traditional family. We all recognise that the conventional family, unfortunately, is no longer the functional family in many cases, and the onus on legislators is to take cognisance of that and to amend legislation appropriately.

We have learned in recent years the distance there has been between children and the Legislature in terms of many aspects of governance, in particular care facilities where the State's involvement was not as it should have been, to the great detriment of many children and the detriment of many people's health, mental health and so forth.

We have had much cleansing in recent years and an acknowledgement of the failings of the system and State. There has been whole-scale recognition of those facts. The onus of responsibility once that is completed and recognised shifts to those in positions of power and representation in this House. We have an obligation to appropriately amend legislation and take cognisance of the lessons we have learned. This Bill is no different.

While we support the Bill, some elements of it need to be questioned and teased out, and there needs to be a proper, open and frank debate before an informed decision can be made to improve it and its child-centred thrust. It is worth noting that in January 2012 the first scheme of the Bill was published by the then Minister, Deputy Alan Shatter. It is unfortunate that some confusion may exist in respect of this Bill and the upcoming referendum on marriage equality. I do not see that, and it is unfortunate that it is the case. A recent television programme highlighted the confusion that may exist. The onus of responsibility lies on the Government to create clear daylight between the two. It is not an easy task. It is unfortunate that the two are coming so close together and that the publication of the Bill and its content only came to light a week before we began to debate it. I ask the Minister to be careful and considerate in the manner in which the Second Stage debate takes place and the various amendments to existing Acts, such as the Adoption Act 2010 and others, are discussed. We need to put clear daylight between the Bill and the amendment to the Constitution to give equal rights to those same sex couples who wish to enter into marriage.

The Bill addresses key issues in respect of guardianship, custody, access, maintenance, adoption, parentage and assisted human reproduction. It is unfortunate that the Minister's intentions in regard to surrogacy, such as banning commercial and other forms of surrogacy which are questionable, have been removed from the Bill and require separate legislation. If we had debated and passed the Bill a year ago, clearer daylight could have been shown to exist. We have to recognise where we are at and the responsibilities the Government has. Its intention to address this issue needs to be made clear and concise in order that people can easily understand what the Bill involves and will be under the impression that those matters will be dealt with sufficiently and efficiently, and that there will be no duplicity or confusion around what is proposed.

I refer to the impact of the Bill on vindicating the rights of unmarried fathers. That may require more debate and amendments from the House in order to strike the right balance. I know there are conditions in respect of the sort of guardianship rights that would extend to natural parents by virtue of their relationship with the mother. One section of the Bill which deals with this issue refers to the various criteria under which applications for guardianship and custody can be made. We have to allow for different situations to be interpreted in different ways. That can be difficult, but there needs to be a clear provision in the Bill which will provide guidance to the courts on the decisions which are made.

The heads of the Bill detail the amendments required to various Acts. It is interesting to examine them and the efforts made to address these issues. Perhaps previous Governments did not think we would face the current situation. Despite the conventional family systems that have evolved, their functionality was a different matter. The Guardianship of Infants Act 1964 is being repealed in its entirety. The Family Law (Maintenance of Spouses and Children) Act 1976 will be amended. There are elements that need to be elaborated on in order to ensure that no errors are made. Deputy Doyle commented on certain circumstances on which we need clarity and certainty so that when situations arise they can be interpreted by the courts. The Status of Children Act 1987, the Family Law Act 1995, the Status of Children Act 1987 and the Adoption Act 2010 will be amended. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 will be addressed. There will be a referendum on marriage equality arising from that. People like to imply that there is confusion. Unless the Minister and House address the confusion that is out there, people will take advantage of that and it will affect the result of the referendum.

The Bill will implement provisions of the UN Convention on the Rights of the Child by protecting the rights to family life in respect of Articles 5,9, 10, 18 and 20. It will protect the children of unmarried parents from discrimination based on their parents' marital status, which is to be welcomed. It is amazing to think that was not the case heretofore. Be that as it may, there is an obligation on Members of the House to address that, having learned from, recognised, acknowledged and, in many instances, apologised for the mistakes of the past. We are now bringing our legislation and Constitution in line with the people's views and the lessons that have been learned.

The Bill refers to ensuring that the best interests of the child are paramount in the consideration of decisions on guardianship, custody and access. The conventional family make-up was predominant in previous legislation, not just in this country but in many others. We have followed the lead of the recommendations on the UN Convention on the Rights of the Child. Providing children with the right to have their voices heard as part of the best interests determination regarding guardianship, custody and access reflects the rights of child. We will be allowing a child's voice and views to be heard and appropriately deliberated on by the courts on foot of the Bill.

On the whole, there is broad consent on our part in regard to the thrust of the Bill and much of its content. Individuals would like to question some issues and table amendments. I have no doubt that the Minister, in line with previous proposals, will be open to those considerations and offer the advice of experts within the Department to assure Members on many aspects of the Bill.

This is an important part of any legislation, and most important when dealing with the best interests of children, who do not necessarily have a direct voice in the House, although they have a representational voice in all of us. The best interests of children must be served and the eventual decision made by the House must be well informed, not only on the basis of what has gone on previously and historical reasons but, more important, on the basis of legal expertise to give effect to the wishes of the House in order that we will not have to debate such issues in future. That would do a great service to those whom we represent and, in particular, the children. They have no choice in the sort of family circumstances they are in but they have every right to express their views on what they believe to be in their best interests. That is the most important aspect of the legislation.

Acting Chairman (Deputy Robert Troy)

Deputies Martin Heydon, Pat Breen and Michael Creed are sharing time.

Deputy Martin Heydon

I welcome the opportunity to speak to the Children and Family Relationships Bill and commend the Minister, her predecessors and officials in the Department on the extensive body of work that has gone into this legislation which will have a seismic impact on a range of different elements involving children and their relationship with parents, guardians and families in general. There has been much discussion of this Bill, particularly with reference to the upcoming marriage equality referendum. However, this Bill is about so much more than just provisions relating to that referendum and I wish to focus on those today. This Bill is about bringing our legal system up to date with the many different types of families that we now have in society. In that sense, it is long overdue. It is a means of recognising the diversity that now exists within family structures, many of which can be complex and can change over time but which are still defined as modern families.

As a new father, I am acutely aware of the rights of fathers. What many people may not realise is that unmarried fathers do not have an automatic right of guardianship to a child and are essentially at the mercy of the child's mother to ensure guardianship is recognised. In the majority of loving cases, this works well, but there are many examples of cases where fathers lose out. In many cases, the only fathers who really become affected by such issues are those where a relationship has broken down with the mother. The split may be irrevocable, and the parties may not even get on well enough to arrange some kind of system. In that case, the odds are very much stacked against the father. I welcome the provisions in this Bill to provide automatic guardianship to unmarried fathers but we must reconsider the detailed rules for cohabitation. The current requirement in the Bill is for a father to have cohabited with the mother for 12 consecutive months to be automatically considered a guardian, at least three months of which must have occurred after the birth. The Bill wishes to give equality to fathers and mothers with respect to guardianship but the cohabitation requirement may lead to disadvantage or exclusion, in some cases, for fathers in particular.

I note the report of the Ombudsman for Children on the general scheme of the Bill from May 2014. At that stage, she welcomed the extension of automatic guardianship to unmarried fathers but questioned the use of the 12-month cohabitation clause. Her report indicates that although it is clear why a cohabitation criterion would be considered in the context of drafting the legislation, it is not clear why it should be decisive for the purposes of automatic guardianship as "there is a range of situations in which a father would clearly wish to become a guardian but would not satisfy this criterion". That report goes on to indicate that the European Court of Human Rights has consistently stated that family life can exist between a father and his child irrespective of the cohabitation arrangements of parents. The ombudsman's report instead supports the recommendations of the Law Reform Commission from 2010 with respect to the issue and notes that similar reforms were introduced by the Welfare Reform Act 2009 in the UK. For these reasons, the ombudsman recommends that the cohabitation period required for the conferral of automatic guardianship on unmarried fathers should be removed and the link to joint registration from the Law Reform Commission should be reconsidered. Will the Minister review this part of the Bill to see if the cohabitation clause can be amended or removed to be more in line with recommendations of the Law Reform Commission?

While speaking about the rights and responsibilities of fathers, I also wish to touch briefly on maintenance payments. With parentage and guardianship also comes responsibility. I acknowledge the extension in this Bill of potential maintenance liabilities on parent civil partners or a cohabiting partner who is the guardian of a child under 18. However, we must also ensure that parents pay their way and sufficiently cover the needs of their children where financially possible. It is sometimes far too easy for fathers to walk away from responsibilities and leave all the pressure on a mother and other family members, or even the State.

Another aspect of this Bill I welcome in particular is the granting of guardianship to grandparents and other blood relatives of a child where they essentially act as parents for family and personal reasons. I met a number of grandparents in my office in south Kildare who are essentially raising grandchildren, and they are very happy to do so. The red tape involved in getting custody and guardianship adds stress where it is not needed. Grandparents and other family members will now 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. I also welcome the measures in this Bill to promote compliance with court orders on custody and access. I have come across a number of cases recently where fathers have had to fight to receive custody and access rights that have been legitimately awarded to them through the courts. That is not right and it makes an already stressful scenario even worse.

I will refer to the section which gives step-parents the opportunity to become guardians. My father died when I was eight and, ten years later, my mother remarried. I had a very close bond with my stepfather, so I know what I am talking about in this respect. The role my stepfather played, albeit when I was an adult, was important. I welcome the provision which recognises step-parents and the role they play in children's lives. We must be very conscious of a different scenario where a step-parent exists while a blood parent is still alive and taking an active role in a child's life. That is a more complex are that needs specific consideration. These roles are not the same and granting rights and guardianship to a step-parent should never usurp the right of a parent where he or she still wishes to be involved in a child's life.

There is a subsection setting out the responsibilities that can be awarded to step-parents. Are those the same as would apply to a parent? The Bill indicates:

The rights and responsibilities referred to in subsection (9) are the rights and responsibilities to:

(a) decide on the child’s place of residence;

(b) make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;

(c) decide with whom the child is to live;

(d) consent to medical, dental and other health-related treatment for the child, in respect of which a guardian’s consent is required;

(e) consent under section 14 of the Passports Act 2008 to the issue of a passport to the child;

(f) place the child for adoption, and consent to the adoption of the child, under the Adoption Act 2010.

Is there potential for those rights to be conferred on a step-parent when an existing parent is still very much in place? It is important to achieve a balance in recognising the role of a step-parent in conjunction with the role of an active parent where there has been a split. In many cases, fathers split with mothers and a step-father should not necessarily be able to deal with all the above responsibilities without input, in some regard, from an existing father who is taking an active role and interest in a child's life.

Ireland and its families have moved on significantly since the Guardianship of Infants Act was considered in 1964. I am very glad the Government is now bringing forward this important legislation and updating it for the needs of modern Irish families. I have stayed away from the referendum I mentioned at the start of my contribution as I am very concerned that the two elements are becoming muddied. I am delighted this Bill is being dealt with first and that all the different elements can be considered. I commend the Bill to the House and compliment the Minister, her predecessor and her officials on the work on it. I look forward to the Minister addressing some of the concerns I have raised.

Acting Chairman (Deputy Robert Troy)

There are approximately ten minutes remaining in Government time for Deputies Creed and Breen when the debate resumes.

Debate adjourned.