I thank Senators for their constructive contributions, and I appreciate the welcome they have given it. This Government is committed to a caring society and a system of laws and administrative measures which deal comprehensively with marriage breakdown and the failures of relationships, particularly the effects on children of such unhappy occurrences. I emphasis again the principle underpinning the Bill which is that in all matters relating to the guardianship and custody of and access to children, their welfare is of paramount consideration.
In reply to a comprehensive debate on the Bill, I would like to address a number of the major issues raised by Senators, in particular, the questions of the right to guardianship of unmarried fathers and joint custody which have been a recurring theme throughout the debate. Senators Norris, Henry, Keogh, Fitzpatrick, Coghlan, O'Donovan, Ryan, Farrell and O'Meara referred to the position of guardianship and the rights of unmarried fathers. I took the opportunity to meet Parental Equality in relation to this and other matters and I also met members of Cherish. It has been suggested that given the changes in the family, it was time to give greater recognition to the role of unmarried fathers. I am sure the House will share my view that children are best brought up by both parents and that the law should facilitate, as far as possible, the sharing of responsibilities of parents in relation to their children.
The position on guardianship under the law is that the Guardianship of Infants Act, 1964, provides that the married parents of a child are the guardians of that child jointly. In the case of unmarried parents, the mother is the guardian of the child. If the child's father subsequently marries the mother, he automatically becomes a joint guardian. Where the father is not married to the mother, he can apply to the court under section 6A of the Act to become a joint guardian. Section 4 provides that where a child is born outside marriage, the father can become joint guardian with the agreement of the mother without going to court. The provision in section 4, which is a relaxation of the procedures, while welcomed in many quarters has also been criticised for not going far enough. Some critics argue in favour of the granting of automatic guardianship rights to unmarried fathers while others seek to amend the law so as to tilt the balance more in favour of the unmarried father than is the case at present.
Before examining the complex issues involved in these propositions, it is important to outline the background which informed existing law. In 1982 the Law Reform Commission Report on Illegitimacy recommended a number of changes in the law of illegitimacy on foot of which the Government passed the Status of Children Act, 1987. The commission was of the view that the principle of equality required that no distinction should be made in the legal rights of guardianship on the basis of marital status. It recommended that both parents of a child should be joint guardians of the child whether born within or outside marriage.
In considering the commission's recommendations in the context of preparing the legislation on the status of children, the then Government had regard to the fact that the extent and character of the relationship of the father of a child born outside marriage with both the mother and child varies greatly. The situations vary from where a child is conceived as a result of a casual relationship to one where a child is planned and conceived within a stable relationship which has all the characteristics of a family. The Government, at the time, was of the view that to accord the father of a child born outside marriage a defeasible right would enable a natural father with no interest in the child to interfere with, for selfish or vindictive reasons, arrangements which the mother might wish to make in the best interests of the child and would result in greater recourse to the courts because the number of cases in which mothers would have no option but to seek the withdrawal of the father's guardian status would far exceed the relatively low incidence of cases of fathers seeking appointment as a guardian. The Government considered it invidious to place the onus on the mother to have the father's guardianship rights terminated. Having considered all the issues the Government decided that rather than give fathers of children born outside marriage an automatic right of guardianship, they should be given a right to apply to the court to become a guardian of their children jointly with the mother.
The report of the 1996 constitutional review group, in considering the question of unmarried fathers, points to the fact that a natural father has no personal right in relation to his child which the State is bound to protect under Article 40.3. It points out that any criticism of this can be readily understood in relation to natural fathers who live in a stable relationship with the natural mother. However, it states that "there does not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links". It also states that were consideration to be given to any modification of Article 42.1 to expressly include unmarried parents "care would have to be taken with the drafting to avoid giving rights to natural fathers who have no relationship with the natural mother or no relationship, other than a biological one, with the child."
Much of the criticism of the position of unmarried fathers stems from the common belief that unmarried fathers who apply to the courts to be made joint guardians of their children are discriminated against and that if the mother opposes the application the father has little chance. However, when one examines court statistics, one discovers this is not the case. In 1996 there were approximately 12,500 children born to unmarried parents. In that year, 750 applications were made to the courts by unmarried fathers for guardianship. In approximately 90 per cent of these cases, the court made the unmarried father a guardian of the child jointly with the mother. Of these 750 cases, 400 were with the agreement of the mother. I understand from the courts that they will refuse guardianship to a father only in cases where the father is clearly unsuitable to be a guardian. The court in coming to all decisions in relation to children must, under section 3 of the 1964 Act, regard the welfare of the child as paramount.
The change proposed in the Bill is a reasonable step forward in the law as it applies to unmarried fathers. It would take approximately 400 non-contested cases a year out of the court system and facilitate better the position of unmarried fathers where guardianship is not in dispute. On that basis, our law is broadly similar to that in the UK and many other countries. To give automatic rights of guardianship to unmarried fathers would seem to fly in the face of the reality that the mother is normally the homemaker for, and carer of, her child. On that basis, I strongly believe the law should continue to be generally protective of her position vis-à-vis the child.
Where the parents cannot agree on guardianship, each case is decided on its merits by reference to what is best in the interests of the child. It is open to question as to whether, as has been suggested, a presumption should be exercised by the court in favour of the father's application for guardianship. It could operate to make unmarried mothers concede guardianship rather than face court action by the father — an action, the outcome of which, might in future be regarded as inevitably in favour of the father and not necessarily in the best interest of the child. Any court action that is invoked could result in undue strain and hardship for the mother.
Senators Norris, Keogh and O'Donovan raised the question of the powers of the court to make orders for joint custody. Section 11A, which is being inserted in the 1964 Act by section 9, makes clear that the court may make an order granting custody of a child to both parents jointly if it believes it appropriate. The Bill has been criticised on the basis that it does not provide that joint custody be made the norm and that the wording of section 11A implies that joint custody should only apply where it is proven to a court that the circumstances merit it, otherwise sole custody should apply. There is no such implication in the wording of section 11A.
Before dealing with what is provided in the Bill, I refer to the joint custody concept. There is no statutory definition of joint custody and the question of what it means varies. In practice, the term "joint custody" is used in the courts to describe a variety of arrangements. These range from a situation where a child would spend a certain number of overnights separately with each parent during the week — not necessarily half and half — to a situation where parents, although formally separated, continue to live in the same household and may be in a position to operate a joint custody arrangement.
Because of the variety of interpretations of what is involved in a joint custody arrangement, there seems to have been some doubt in people's minds as to whether a court had the power under the 1964 Act to make a joint custody order. Under section 11 of the 1964 Act, a court may give directions as it thinks proper regarding the custody of and access to a child. This section has been interpreted by the court as including a power to grant custody of a child to the father and mother jointly. However, for practical and other reasons, joint custody orders are the exception rather than the rule. To clarify matters, section 9 amends the 1964 Act by the insertion of a new section 11A which provides that for the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if it thinks it appropriate, grant custody of a child to the child's mother and father jointly. The provision is being inserted to make it clear the court may make such orders.
To construe the words "if it thinks it appropriate" as meaning that sole custody will be the norm is to misunderstand the context of the 1964 Act. Under section 3 of that Act, the court is obliged to regard the welfare of the child as paramount in deciding questions of guardianship, custody, access, etc. A court, in deciding on whether to make a custody order, must regard the child's welfare as the paramount consideration. It is that consideration and no other which must inform the court's decision on the nature of the custody and/or access order which is most appropriate in the circumstances. However, as I indicated in my opening speech, I intend to look closely at this matter between now and Committee Stage.
What guides the court in making custody orders under the 1964 Act are the circumstances of each case and what is best in the interests of a child. In the absence of agreement between the parents, the court will inevitably have to make hard and difficult decisions based on the evidence before it. If, on the basis of evidence, sole custody is the best solution in terms of the welfare of the child, the court will make an order giving custody to one parent and access to another. If the evidence is that joint custody is considered best in the interest of the child, the court will make an order for the parents to share custody. At present, courts do not normally make joint custody orders as the mother is awarded custody. This feature of the practice of the courts has little to do with the law and a lot to do with the circumstances of each case. It should be recognised that this is the reality of these cases.
In the course of the debate on the Bill in the Dáil I introduced a new section 11D which provides that in considering whether to make an order relating to guardianship, custody or access, under sections 6A,11,14 or 16, the court shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis. This provision is inspired by a provision in the United Nations Convention on the Rights of the Child. It is intended to direct the courts' attention, in exercising its discretion in making guardianship, custody and access orders, to the desirability of ensuring that children have ongoing and close contacts with both their parents. This is the most appropriate way to bring about change in the Act of 1964.
Senator Connor referred to the report recently published by the Eastern Health Board on child prostitution in Dublin. Pornography, prostitution and paedophilia are the most heinous of crimes. As a society we have a duty to protect our children from the perpetrators of such crimes and the full sanctions of the law should be brought to bear on people who exploit our children in this way. Such criminal behaviour should not and, I guarantee, will not be tolerated. Already our laws provide many sanctions against people who engage in such activities and I am determined to further strengthen our laws in this area. When in Opposition, I strongly advocated a new child pornography Bill to deal with this problem. I am happy that the Government has approved my proposals for the drafting of this Bill.
The purpose of the new proposals is to enhance the measures already in place to protect children under 17 years from sexual exploitation and abuse. More specifically, there is provision in the proposals for a definition of child pornography as well as for a number of new offences dealing with the production, distribution and possession of child pornography. It is proposed that all forms of child pornography, including photos, videos and films, will be dealt with as will the use of computers and the Internet to produce and communicate such pornography. There will also be new offences dealing with the abduction and trafficking of children. The penalties proposed range from five years to life imprisonment.
I expect the Bill will be ready for publication later in this Dáil session and I am anxious to put this legislation in place as quickly as possible so that the criminal purveyors of the appalling and sickening trade of child pornography are dealt with swiftly and severely by the law enforcement agencies. I also intend to publish a discussion paper on the law relating to sexual offences before the end of the year. This paper will also deal with the question of child pornography.
The recommendations of the Eastern Health Board working party report on child prostitution are a matter for my colleague, the Minister for Health and Children. He informs me that the health board is preparing proposals for submission to him to deal with the issues raised by the working party.
I hope I have dealt comprehensively with the points raised in a constructive debate. I thank Senators for their contributions to a valuable and informed debate. I look forward to discussing the Bill further on Committee Stage.
