I move amendment No. 1:
In page 7, subsection (2), line 23, to delete "shall come" and substitute "comes".
This is a technical amendment which improves the text. I trust the Minister will accept it.
Vol. 175 No. 11
I move amendment No. 1:
In page 7, subsection (2), line 23, to delete "shall come" and substitute "comes".
This is a technical amendment which improves the text. I trust the Minister will accept it.
We have looked at this section which provides for the Title of the Act and the commencement of the different parts. I have received advice from the Office of the Attorney General and through the Parliamentary Counsel that the words should stand and that all the drafting of the provisions of this section complies with best current practice. It would give no additionality to the Short Title and commencement of the Act if we were to introduce such an amendment.
I thank the Minister for the reply. This is not an amendment on which we intend spending much time. Regarding section 1——
We are dealing with the amendment.
It refers to section 1.
We will be dealing with the section. Does the Senator wish to speak on the section?
If I may.
We will deal with the amendments first.
Amendments Nos. 2, 3, 5 and 28 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 2:
In page 7, between lines 28 and 29, to insert the following subsection:
"(3) As soon as may be after the passing of this Act, the Minister shall prepare and lay before both Houses of the Oireachtas, a statement as to the implications of introducing a system of registration of guardianship orders and agreements".
I welcome the Minister to the House. The purpose of the amendment is to stimulate discussion on this matter. We have all been lobbied at some length by associations representing natural fathers and I broadly support their pleas. I would like to know the Minister's thoughts on this amendment.
Amendments Nos. 3 and 28 are in my name and that of Senator Cummins. They relate to a fundamental issue on which many Senators have received representations from a wide number of groups representing unmarried fathers and mothers.
Amendment No. 3 seeks to include after the word "adoption" the word "guardianship". Senator Cummins and I propose that change in order to bring a new definition to the Bill and to bring into being a new registration for guardianship orders, which have been granted for the past ten years or so. In amendment No. 28 we go further, proposing a new section urging the registration of guardianship. I have read the Minister's remarks on this matter in the other House, where she will no doubt agree that a very interesting debate took place. I commend the Minister on many of the initiatives she is taking in the Bill, but there is nevertheless a good deal of public concern about the fact that while we are putting in place a registration procedure, we are excluding the issue of guardianship, which to many people is "a life event" and very significant in their lives as a result of orders obtained.
Before the legislation brought to the House by former Deputy and Minister for Equality and Law Reform, Mervyn Taylor, it was the case that in order for guardianship to be recognised by the State, a father and mother had to go to court to have it determined. The decision would be set out by the court in a very prescriptive form. As I understand it, since the 1997 legislation, it now falls within the responsibility of the father and mother to determine the issue themselves, entirely outside the courts. That is a very good development because, as the Minister knows, there is no legal fuss or cost involved and perhaps through a peace commissioner people can have a guardianship order recognised and signed.
In my constituency clinic last Saturday I met a group of men who are concerned that if guardianship orders are not recognised in the context of this Bill, a whole range of difficulties and concerns that we may not have considered may open up. There is a necessity to do something about that.
Let us consider the following scenario. An unmarried mother and an unmarried father have a child. Some years later they agree on guardianship. They both have that document but let us assume he loses the document and there is a further deterioration in the relationship between the two parties. If that unmarried father does not have access to the document originally obtained under what I believe is the 1997 legislation, he has no proof that such an order was granted.
There are some practical outcomes if this measure cannot be brought forward. For instance, if the father wants to take the child out of the jurisdiction, as I understand it, under guardianship the father and the mother must agree to that. However, if the unmarried father does not have a document stating that, for one reason or another, and the woman refuses to acknowledge guardianship, there is no standing for the unmarried father in the eyes of the law.
To take another example, a mother could put her child up for adoption. If the unmarried father has guardianship I would have thought his views on the matter are fundamental as to the future of the child, yet if he does not have access to this document for one reason or another he will find it difficult to prove that. The same is true for health information. I have come across a number of cases in my constituency whereby the father wants access to the reports of a child in State examinations or in-house examinations in schools. Has he the right to obtain those if he does not have the document so described? It is good for a whole range of reasons to put this into the legislation as a first principle.
The Minister stated in the other House that guardianship is not a life event; I believe that is the term she used, but I remind her that when the Bill was published the explanatory memorandum stated that apart from providing a record of vital events in relation to persons living in the State, these records also satisfy the need for evidence which has a bearing on rights, entitlements, liability, status and nationality. The Minister has conceded in the explanatory memorandum that rights flow from many of the agreements we make.
It is good practice to stitch these guardianship orders, which the law wisely has facilitated, into the legislation and, from now on, register those with the registration procedures in the State because it is not sufficient simply to have the name of the father on the birth certificate. If the father has guardianship it implies not just rights for him, and we will come to that in another section, but it implies obligations on him by ensuring the State has a system of tabulating these guardianship orders. From a public policy perspective we need to know that information. I am not sure how many of these guardianship orders have been granted since the legislation was introduced. No one knows because no one keeps a record of it but we now have a chance to modernise our national records and with these guardianship orders, that should be the case.
I apologise for going on about this matter but I have strong opinions on it. I want to read a statement from Treoir, which is the national federation of agencies which provide services to unmarried parents and operates a national information centre for unmarried parents and those who work with them and, through this service, the regular communications with member organisations. I am sure the Minister will welcome this statement. It states:
Treoir welcomes the legislation to modernise the civil registration system but there is a number of issues which are of concern to the organisation . . .
Joint Guardianship by Agreement — register:
There has been a missed opportunity in the Bill in that it does not allow for the setting up of a system of registering Joint Guardianship Agreements... [that was following the 1997 legislation to which I referred]. These are statutory agreements which unmarried couples can sign in the presence of a peace commissioner or commissioner for oaths agreeing to joint guardianship of their child as unmarried mothers have sole rights and fathers have no automatic rights. There is no obligation on the peace commissioner or commissioner for oaths to record such agreements. There is no central register for such agreements and we believe that a facility for registering such agreements should be included in the Civil Registration Bill.
Over one third of children are born outside of marriage and many of the fathers of these children rely on such agreements to acquire and prove guardianship rights of their children. In case of dispute between parents the only record is a copy of the document and if this is mislaid there is no way of establishing that such an agreement was made.
This is not just an issue that many men's organisations have brought to colleagues' attention. It is an issue which those who work with unmarried parents have identified through the Treoir organisation.
We have a responsibility to move with the times on this issue. The Minister said she is consulting with her colleague, the Minister for Justice, Equality and Law Reform, on the matter. We now have an opportunity to insert this provision in the legislation from day one. Many people would be very grateful for that because in the natural course of events relationships break down and become acrimonious, with one side saying this and the other side saying that. It is difficult to work out who is telling the truth in the whole saga and I would have thought it sensible that we would have a national register for these guardianship agreements which the courts could then refer to because the Minister states, in the explanatory memorandum, that the records satisfy a whole range of other rights. We have to keep that in mind. I apologise for being so long-winded.
I, too, support the call for a central register of joint guardianships. As Senator Brian Hayes said, one third of children are born in this State outside marriage and therefore we are talking about a considerable number of cases. It is important to remember that this provision could be vital for the father, the mother, the child and their extended families. I hope the Minister can accept one of the amendments.
I spoke on Second Stage about another group of children I am concerned about but I did not hear the Minister's reply. It concerns the position regarding children who were born to surrogate mothers abroad and brought back to this country. As the Minister is aware, there is quite a number of such children who have either been born in the United Kingdom or the United States; I do not have any knowledge of children born in any other country. I would have thought we have a serious problem regarding the register these children are on because they have not been born and registered here. There is a problem regarding adoption because, with surrogacy, money has changed hands and as the Minister is aware, under the Adoption Acts money cannot change hands. Perhaps the best option is to have the parents made joint guardians of these children and have them on this register.
I know of a number of cases where the biological father, whose sperm was used in pregnancies which took place — one in the United Kingdom and one in the United States — had a court order that he is the guardian of the child but that leaves the mother here, who is bringing up that child, with no legal rights over the child. Perhaps we could do something about that here and have them in a position of joint guardianship by agreement. I am not talking about half a dozen cases. I am talking about quite a number of children by now. I do not know how they are managing because with the joy of the child arriving, and it must be remembered that this has only been happening for five or six years, little thought is given to what will happen in the future about inheritance and so forth. If the parents are killed in a car crash, will the child be viewed as a stranger and have to pay an enormous amount of inheritance tax? There are many difficulties here which are not being considered. Senator Brian Hayes and Senator Cummins raised the more common situations. One of the reasons I was keen to try to get the register of guardianships set up was that this matter needs to be addressed now. I have met some of these children. Unless the adoption laws are made fairly elastic, I do not know how they are to be dealt with except under joint guardianship. I would be glad to hear the Department's views.
I referred to this issue on Second Stage and I do not wish to repeat what my colleague, Senator Brian Hayes, said. It will be a missed opportunity if we do not act now. The Bill is an opportunity to set up a register of guardianship. I firmly believe it should be done now and I hope the Minister will accede to our request.
I knew when I came to the Upper House that I would find a few more complications with the legislation.
The Minister is looking at them.
I appreciate there is some written opinion by some journalist who has a particular issue with this legislation personally and, as a consequence, it has got a good deal of airing. Senator Brian Hayes said the explanatory memorandum reflected the issue of bestowing rights as a consequence of life events. That is true, but it only reflects the life events referred to in the legislation. It would be the considered view that guardianship is not a life event. It may be something that happens during one's lifetime but it is not necessarily a life event. Much discussion has taken place on it. The Guardianship Act 1964 provides for the declaration by the mother and father in relation to the guardianship of a child through a notary public, commissioner for oaths or a PC. It is stated in big writing on that piece of paper that it is a legal document and should be looked after and cared for. I assume that anyone who has guardianship of a child would, by right, lodge that document with their solicitor to keep it safe because on many occasions there are acrimonious situations at a later stage.
Guardianship can also be determined by the courts. The Ard–Chláraitheoir never had any function in the registration of guardianship orders granted by the courts or in any of the other statutory declarations. The registration of life events, for example, births, deaths, marriages, is a compulsory act. There is a penalty for failing to do so.
I appreciate where Senators are coming from on the basis of the changes in society, life changes, life event changes, relationship difficulties and the responsibility of guardianship. On that basis I wrote to my colleague, the Minister for Justice, Equality and Law Reform, given that he, through the Courts Service, provides registration for divorce and would have records of guardianship orders, arising from the courts, asking if he would consider making the declarations available in the same way as court orders are available. On the issue of surrogate mothers——
On the issue of surrogate children, if, for example, the child is born in the United Kingdom, that child would be registered there. Given that we recognise British birth certificates, the involvement of the Ard Chláraitheoir is something we would query because the child has actually been registered and has a birth certificate. The Senator is talking about a child who has been adopted as a consequence or who has, perhaps, circumvented the legal——
The child cannot be adopted because money has changed hands. The adoption legislation provides that money cannot change hands. The woman here — and perhaps the man — is not in a position to adopt. This happens particularly if the man's sperm is used and the biological mother of the child is in England, but the woman who is bringing up the child is back here in Ireland and has no rights to that child. Could a joint guardianship arrangement be made in that case?
We are getting ourselves into an area well outside the parameters of this legislation. Our only focus would be on the basis that the child would have a birth certificate. What the Senator is speaking about is a legal quagmire.
That is correct. By right, if anyone accepts money for a child — we all have our views on that issue — that child probably would be in a legal limbo because if the biological father's name was on the birth certificate, then that child would have a father. However, that man's wife would not be that child's mother.
That is right.
She has no right——
——to the child.
——to adopt that child because that child's birth mother is someone else in the United Kingdom.
That is right.
Under the legislation as it stands, that child could not be adopted by that woman even though she is the wife of the father, on the basis that there is a legal mother.
That is right.
That mother cannot remove that right of being the mother. One cannot quench the fact that one has ever been a mother in this world. It leaves that child in a legal limbo. I am speaking off the top of my head and I am not a legal person. If one is talking about the real father of the child and the wife of the father, I assume they would get legal advice on the basis of guardianship. I am not sure whether that stands up. Equally, there could be a issue in five or ten years as the birth mother may come back and look for that child.
She cannot come from the United States.
Not from the United States. What we are looking at is an issue which is well beyond the realms of this legislation, although there is obviously an issue there. All we can do is draw to the attention of the Ard Chláraitheoir that there is an issue, especially on the basis that the child has a birth certificate and the legalities of where that child stands, and more particularly where the woman stands with regard to her guardianship of that child and whether she can legally take up the guardianship order. That is an issue on which I am not competent to advise. I am sure that is an avenue available to people to take out guardianship but I am not legally qualified to give an opinion on that issue.
On the basis of the legislation, the child has a birth certificate. It is a legal birth certificate and whatever information is on that birth certificate would be legally held and acceptable to the Ard Chláraitheoir. The issues raised would need more than five minutes reflection on the floor of the House. Certainly it is an issue we may have to look at in the future. On the basis of this legislation, as it stands, it is more like the Guardianship Act or succession legislation which is outside the parameters of this legislation and is, perhaps, an issue for the Department of Justice, Equality and Law Reform.
I was the spokesperson on social welfare in the last Dáil. The dilemma sometimes is that in Social Welfare (Miscellaneous Provisions) Acts these matters are stitched on at the end.
The argument of this House is that there is an opportunity in the context of this Bill — it has been many years coming and to the Minister's credit she has produced it — to get this right now rather than stitching it on in years to come. The Minister stated in regard to my amendments Nos. 3 and 28 that she is considering the issue in conjunction with the Minister for Justice, Equality and Law Reform. She also stated that the Minister for Justice, Equality and Law Reform may deal with this in the Courts Service Bill. However, that only affects guardianship orders which come before the courts. The majority of new guardianship orders — I do not know how many because nobody has evidence on total numbers — which we encourage unmarried mothers and fathers to make with each other, are made outside the courts. Even if the Minister amends the Bill she refers to in conjunction with the Minister for Justice, Equality and Law Reform, it will only deal with matters before the courts. It will not deal with the new regulations of guardianship which have come about since the introduction of Children Act 1997.
We have an obligation to get this right now. The definition of "events" for the purposes of the Bill includes adoption, foreign adoption, marriage, death and decree of divorce. However, the Minister cannot create a value judgment that guardianship is less important to a person or has some sort of second class status in the context of life events. To a man not married to a woman but who has a child with her, it is just as important as adoption or the issue of stillbirth.
We should get away from the notion that we are creating different divisions of life events. The objective of this legislation is to modernise civil registration and to take account of the new life events provided for in previous legislation. I do not accept the argument that in some way guardianship is outside the remit of a life event, as the Minister has described. I reiterate that it is fine for the Minister for Justice, Equality and Law Reform to change the Courts Service Act 1997, as we would then know of all the guardianship orders going through the courts. However, we will not know of all the guardianship agreements between unmarried mothers and fathers and, consequently, it will undermine the State's claim that men have an obligation to their children.
We should encourage people to take full and active part in and responsibility for the rearing of children, in particular men, some of whom do not take any such responsibility. While I suspect we will have a debate on section 22 later as it concerns a related point, the State has an obligation in regard to all aspects of legislation to state that it is encouraging people to seek guardianship and, if that happens, that the State will register this in the national civil register, which has been in existence since the foundation of the State and before, and that the State will recognise this as a life event. That is not difficult to accept.
I appreciate the Minister's dilemma in that she is in discussion with the Minister for Justice, Equality and Law Reform on this issue. However, it is a serious matter, in particular for men who want to stay close to their children but for all kinds of reasons, such as the breakdown of a relationship or otherwise, cannot. We must be mindful of this as we try to modernise this legislation.
I can understand the Minister saying she is not competent to discuss this matter as it is difficult to find anyone who says they are. However, it is a real problem. Can the Minister and her officials reconsider the issue of the guardianship register? The orders made in court are already written down somewhere.
While the Minister is quite right to say that people should keep their papers safe, it is amazing what happens to important bits of paper, which often get lost. I hope the Minister can revisit this issue, in particular as it involves so many children and parents and not a small isolated group.
To return to the matter of the other small isolated group to which I referred earlier, they will not be isolated for much longer as they will be a much bigger group. I would be grateful if the Government would address this important matter because issues may arise where parents split up and a person finds he or she has no rights to a child, or where there is a tragic accident in which the parents are killed and the child is left in a legal limbo. From a general point of view, I hope the Minister can accept one of the amendments regarding a guardianship register.
I know the orders dealt with in court are registered and available. I have spoken to the Minister for Justice, Equality and Law Reform regarding the statutory declarations being made available on a register similar to that for court orders. The issue of compulsion is a problem for us in the context of this legislation because any agreement is a voluntary act between two people. However, as I have said, I have spoken to the Minister on the basis that he would facilitate the statutory declarations being made available in a similar manner to the court orders. While we cannot compel people to do that as it is a voluntary agreement between two people, the Minister and I are discussing its facilitation. I brought the views of the lower House to the Minister and can do the same in regard to the discussions in this House.
That would facilitate duplicates of the original form being made available.
That would certainly be a step forward.
I was contacted yesterday be a constituent in regard to section 1. He plans to get married over the summer and is very supportive of the Minister's innovative proposals to allow marriages to take place outside of normal places. He wants to know when the legislation will be enacted. The Minister will presumably have to make orders regarding most of the sections. When will that commence in terms of impact, in particular in regard to new places of marriage?
Enactment of all sections will be in the second half of 2004. It will take that amount of time.
He might be lucky.
I hope the registrar in his area has a nice office.
I move amendment No. 4:
In page 15, subsection (1)(b), line 38, after “State” to insert “or to which section 26 or 27 applies”.
I understand the register of births covers children born in the State and additional cases where children are born outside the State, for example, where children are born to Irish citizens resident outside the State such as members of the Defence Forces or Garda Síochána serving abroad, or otherwise, or where children are born on aircraft travelling between airports or on vessels between ports. Provision is made for registering such births in sections 26 and 27.
I understand the Minister accepted an amendment in the Lower House in regard to provision for foreign stillbirths. Perhaps the Minister will explain why she accepted the amendment. There is a difference between the wording in 13(1)(b) and 13(1)(a) regarding the reference “or to which section 26 or 27 applies”.
The Senator will be aware that a number of issues arose. Perhaps he is not aware that the registration of a birth on an aircraft and ship was an issue for parents who are not Irish born. One of the reasons for bringing the legislation to the House quickly is that an issue has arisen and the Supreme Court is awaiting our decision.
The problem was that births and stillbirths abroad, apart from births to members of the Garda and the Defence Forces, could not be registered except in a situation whereby similar registration to that which applies here was not available outside the State. At the time we omitted stillbirths. We all appreciate that stillbirth is a terrible trauma for a family. It had not been included in a similar way to all births, therefore, we accepted the amendment to ensure that births and stillbirths get equal recognition throughout the legislation. The registration of a stillbirth on a boat or aircraft was not previously included, but we have now decided to include it for the sake of equity. This creates exactly the same legislative framework for births and stillbirths, which the Lower House asked me to accept.
It basically extends the same rights to the registration of stillbirths.
I appeal to the Minister to accept the amendment because it mirrors what she has said in regard to accepting the amendment in the Lower House. It is just a matter of the difference between the wording in 13(1)(a) and 13(1)(b). Obviously it is a very sad issue and we owe it to these people to emulate in this House what happened in the Lower House.
I am confused about where the Senator is coming from. I accepted the amendment, therefore, it is included, as amended.
It is my understanding that the Minister accepted an amendment to 13(1)(b).
Section 27(6) addresses the Senator's concerns. It reads as follows:
Subsections (1) to (5) apply to the stillbirth of a child as they apply to the birth of a child and, accordingly, references in those subsections to birth or births shall be construed as including references to stillbirth or stillbirths, respectively.
What the Senator is seeking in section 13 is included in section 27.
The amendment reads, "In page 15, subsection (1)(b), line 38 after “State” to insert ‘or to which section 26 or 27 applies’ “.
One does not have to refer in section 13 to sections 26 and 27 as they stand.
Is the Minister's point that this provision is included?
Section 27 reflects exactly what the Senator wants.
I move amendment No. 6:
In page 20, before section 18, but in Part 3 of the Bill, to insert the following new section:
18.---(1) the Minister shall establish an advisory body, to be known as the Civil Registration Advisory Body (and referred to in this Act as 'the Advisory body'), to advise an tArd-Chláraitheoir and an tArd-Chláraitheoir Cúnta in their exercise of the powers and duties under this Act:
(i) on all matters affecting civil registration, and
(ii) about the provision of service by an tArd-Chláraitheoir, and the use of such by the general public, and
(iii) about the care and preservation of any and all records held in the care of an tArd-Chláraitheoir.
(2) The Advisory Body shall consist of a chairperson and not more than eleven other members (who shall not be entitled to draw any expenses or other financial remuneration from the public purse), appointed by the Minister on such terms and conditions as shall be determined by him or her.
(3) (a) The members of the Advisory Body shall include at least one member from each of the following bodies, organisations or interest groups:
(i) Adopted Peoples Association;
(ii) Association of Professional Genealogists in Ireland;
(iii) Council of Irish Genealogical Organisations;
(iv) Genealogical Society of Ireland;
(v) Irish Family History Society;
(vi) Law Society of Ireland;
(vii) National Archives of Ireland;
(viii) National Library of Ireland;
(ix) Public interest nominee.
(b) An tArd-Chláraitheoir shall be entitled to attend meetings of the Advisory Body.
(4) The Minister may at any time terminate the appointment of the chairman or any other member of the Advisory Body.".
This amendment seeks to establish a civil registration advisory body. Advisory bodies are very common. For example, the National Archives of Ireland has one, the National Library has one, while the general registration office, which will have the largest and most complete set of data relating to people in Ireland, does not have an advisory body. Given that it is a most important institution from the point of view of the general public, I thought it would be useful if there were a body to which citizens could appeal if they felt there were inadequacies in the way they were being treated.
The Minister said in the select committee that she would set up two non-statutory central panels, one to cater for general registration and the other focusing on family research. While these would be very worthy bodies, it would be better if there were a statutory civil registration advisory body, which would have a bit more power. It is not as though I am seeking something expensive. They are barely able to get a cup of tea and they can just meet approximately a couple of times a year. It would be useful to have such a body which could comprise a wide number of other bodies, including the Adopted Peoples Association; Association of Professional Genealogists in Ireland; Council of Irish Genealogical Organisations; Genealogical Society of Ireland; Irish Family History Society; Law Society of Ireland; National Archives of Ireland; National Library of Ireland and a public interest nominee.
I would have thought that such a body could be very useful. I hope the Minister will consider favourably my amendment.
I support Senator Henry's amendment. We will not get a chance for another 15 or 20 years to get the general statutory provision for civil registration right. As I said earlier, rather than having civil registration added at regular intervals by way of social welfare Bills that come before these Houses, it would be sensible to provide for it on a statutory basis. I concur with Senator Henry's remarks.
The Minister referred to the fact that she will establish two panels. When does she expect the panels to be established and to be up and running? What precisely will they do? The members of the advisory body set out by Senator Henry encompass all the interested parties in this matter. This would not register with many people but those who are interested are experts and perform a public service, whether they are involved in the GRO or in these organisations, and we should recognise their work in a statutory format. I can point to countless examples in other legislation where Ministers have put such bodies on a statutory footing and they are totally independent of Government.
This amendment has merit. The Minister might not accept it on Committee Stage but she could table her own amendment on Report Stage. Given the work these bodies do and the service they provide, they should be recognised in legislation. There is no reason why we should not take this route.
There is no dispute about the principle of consultation on the operation of the office. As Senator Henry explained, there are two dimensions to the legislation, the strict original purpose and the social dimension of family history and research. There is merit, however, in the Minister's approach of keeping the system on an informal basis. There is no dispute about the principle but once a statutory advisory body is set up——
It can be awkward.
There are advantages in informality and there will be more constructive co-operation than if people are invested with statutory powers.
I support this amendment. The body should be established on a statutory basis because advisory bodies can be ignored and statutory authorities lead to greater accountability. People may feel an advisory body exists for consultation alone and that there is no obligation to take the advice it offers. The Minister should consider establishing a statutory body to deal with the matter.
The Senators sell themselves short as advisers to the Government and as public representatives. It is obvious from the comments today that the lobby bodies have done their bit to influence Members to put forward their views.
There was no cash for questions.
As many Senators know, there are advisory bodies in the Department that come together on anad hoc basis. We have always been of the view that quality customer service is vital. One of the difficulties with Committee Stage is that there has been a pre-emptive strike on what I wish to do.
Within the General Registers Office we are now monitoring the levels of service delivery against defined, published targets and obtaining feedback from customers on service delivered and future service requirements. That is an integral part of the commitment on the delivery of quality customer service. It is also proposed to establish a customer consultation framework and from that we would facilitate and encourage customer feedback on the levels and quality of the customer service being provided. It will enable customers to raise any issues or areas of concern, to suggest ways in which the service can be further improved and provide input into the future developments of the service, including the most appropriate use of technology.
The consultative panels are important and we will consult the organisations mentioned by Senator Henry that are in touch with the Department on an ongoing basis when it comes to the future of our service delivery. We will establish a customer service side and a professional side to look at the family genealogy side of service delivery as well as the normal service delivery.
The panels established in the Department in recent years have been excellent. People are chosen randomly and invited to participate in a forum. They are asked about the service that is being provided and to give their views on its service. There is good interaction between the staff of the Department and the customer and most people have enjoyed the opportunity to give their views. The Department recognises that there is a specialised group with a particular interest in the running of the General Registers Office that we would want to give it an opportunity to interact on a regular basis with the Department.
I do not like establishing statutory advisory bodies, however, because they often go beyond their remit and lose sight of the genuine concerns that would be raised in the Houses. I prefer a more targeted approach through the service delivery models. That is why it took so long to get this legislation ready — the consultation that took place was time consuming and widespread. There is good interaction between the organisations and the General Registers Office. The ethos of the amendment is being addressed in the proposals I have made in the Department.
Before I was elected to the Seanad, as a doctor I was tortured by people asking questions about social welfare. When I entered the House it was worse. Then, seven years ago, the queries stopped. I thought they had realised I had no power or influence but then I discovered that the Department of Social and Family Affairs had been touched by an angel of some sort and there had been training in customer service because people were getting answers to their queries. There is now a totally different attitude in the Department of Social and Family Affairs from that of some years ago. People get answers and that saves people like me a great deal of time and trouble.
I am sure the two bodies the Minister will establish will be excellent but the lobby groups are enthusiastic about a statutory advisory group and this is the one opportunity they will have to get it. The Minister, however, has her face set against it.
I have but, unlike some of my colleagues, I am not afraid to amend my legislation if circumstances change. I must tell Deputy Michael Woods that the Senator thinks he is an angel because it was he who introduced quality service.
I think Senator Henry was referring to Deputy Dermot Ahern.
The ethos of the Department has changed considerably due to the training and customer service initiatives in place, which have developed. Staff have also met members of the community and such interaction has led to good action being taken on the ground. As that methodology has stood its stead well within the Department, I would like it to continue. However, if glaring problems arise in regard to certain issues, we will have to re-evaluate the methodology. I would prefer to continue with the two initiatives in place, to monitor how they work and evaluate them. I have never had a problem with evaluating and reforming existing practices. Once a measure becomes a statutory obligation and a statutory animal, it is difficult to reform. Often we may have to change the direction in which we want to go. I am sure the Senators will also continue to act as an advisory body on these issues, as they have eloquently done in recent weeks.
I will be in contact with the Minister because the Council of Irish Genealogical Organisations will be in contact with me. If the system does not work there will be this chain reaction. We will have to see how it works.
From time to time presumably there will be a level of disagreement, creative tension, call it what we may, between the GRO and some of these organisations. One does not need to be Einstein to note from reading the letters page ofThe Irish Times for the past ten years that there has been a significant degree of complaints about the length of time it takes for certification due to searches and so on. Let us be honest and admit that difficulties and tensions arise sometimes which are only natural and acceptable in any institution. However, I would have thought it more sensible if those experts — a small band of people throughout the country — who are dealing with this area on a constant basis were part and parcel of this whole process. I take it the panels to which the Minister referred are the existing ones and that she is not referring to new panels she intends to establish.
I am referring to two new panels.
When will they be established? Prior to their establishment, presumably the Minister will be in discussions with all the organisations mentioned in Senator Henry's amendment to get some measure of agreement on how they will operate going forward. What will the panels be able to do? I presume they will be advisory.
When will they be established?
They will be established simultaneously on the enactment of the legislation and will have an advisory role. Often issues will arise where those people will have to be brought together and asked what direction they consider should be taken. I will not, nor I am sure will the Senator, negate my role as a legislator. Arising from the difficulties that have been brought to our attention, this action is on foot of the concerns expressed about the methodology andmodus operandi of the General Registrars Office. That requires that we listen, although it may take some time to deal with the issues. I accept that 1845 is a long time ago, but we have been able to address many of the concerns spoken and written about.
The Minister must be complimented on moving significantly on an amendment in regard to death certificates that she accepted in the other House. That happened because the legislation was being discussed on the floor of the other House and groups had to submit their views on it. That is not necessarily the best way to do business in this technical area.
To return to the proposal to which Senator Henry alluded, if we had this type of an advisory body working on a 12 month basis, we would not be dealing at this stage with dilemmas that arise such as the one to which I referred to in regard to death certificates, on which the Minister moved as a result of some media publicity and other lobbying. We should not view issues of tension and difficulty between the GRO and many of these organisations as a bureaucratical nightmare about to happen every time they enter into discussions; they are only there presumably to help and advise the Government and the GRO in its important work because they are the people who use it on a constant basis.
We need to make a distinction in this regard. The GRO has a fundamental importance in that it provides documentation which gives all of us various rights during our lives such as access to birth and marriage certificates. It also has a subsidiary role, the genealogical one. I would be concerned if that role were formalised in the way suggested as that would result in the priorities being lopsided. The genealogical side would almost assume primacy. It is an important economic and cultural activity and I would not in any way underrate it but, nonetheless, it is not the primary function of the GRO. Therefore, I support the Minister's position out of conviction rather than any other reason.
Is the amendment being pressed?
I move amendment No. 7:
In page 20, line 22, after "registrar" to insert "if required to do so".
The purpose of this amendment is to make the Bill more user friendly. The Bill retains a Victorian precept in that it is a requirement that both persons registering a birth must attend a registrar's office in person. The Minister spoke about customer service at some length. The Minister has enthusiastically taken the opportunity presented by the Bill to modernise the legislation, and this section presents another opportunity to do so.
The amendment proposes inserting the words "if required to do so". It would relieve the exacting requirement in this regard. There are many work and family demands on people and it may not always be suitable for both people to make an appearance in a registrar's office. I am not sure that requirement is as essential now as it may have been at one stage. I appeal to the Minister to positively consider this amendment.
It is a duty of any parent to do what is the most important action on behalf of a child, namely to register it. Given that we have allowed the registration of a birth in any registrar's office, it is an important and imperative duty on parents that they appear before the registrar to authenticate the identity of their child. It is important that the information is absolutely accurate. As Members will be aware, any inaccuracy in a person's birth certificate could create great difficulties for him or her in future life. To make the obligation optional would undermine the importance of the registration of the birth of a child.
Under section 19, we have facilitated a situation whereby a qualified informant can also participate in the registration of a birth where the parents are dead or incapable through ill health of complying with this subsection, unless he or she reasonably believes another qualified informant has complied with it in regard to the birth. Those are the only exceptions made with regard to the registration of a child.
In the main, most people are quite excited and anxious to register their children fairly quickly. Given the importance of a birth certificate, there is a duty on parents to go before the registrar to register a child. By facilitating and modernising the methodology by which that can be done, this facilitates the registration. For example, a couple can register a child's birth at any registrar's office. In the past, if a couple's child was born in Dublin and the couple came from Offaly, they had to register the child in Dublin. That has been done away with. One will now have three months to register a child whereas it used to be 42 days. We have certainly addressed the concerns that existed, while appreciating the pressures people are under. It is a fundamental duty of a parent to register a child and to be present for the registration.
I appreciate what the Minister is saying but not everybody shares the view she articulated that registration of a child is a fundamental duty. Unfortunately, some may not even consider a wide range of fundamental issues although they may be as serious as the Minister stated.
Good customer service would involve a recognition that people may not be in a position to be present at registration. I accept that being present at the registration is a very important duty of any parent but there are cases in which it might be impossible, or almost impossible. In recognition of good customer service and the many ways in which information can now be relayed, and given the prompt service and resources available, the Minister should consider this matter in the context of customer service in her Department, to which she referred, and perhaps in other contexts in the future.
In modernising the facility we have also extended the opening hours, thus appreciating that some may not be able to register their children during work hours. Linked to this is the fact that, in the larger maternity hospitals, we can now facilitate the registration of a birth before the mother goes home through the Department of Health and Children. This is also very important. Every effort is being made to ensure we provide a service to the customer but we all agree that registration of a child is one of the most fundamental things a parent should do. The failure to register a child would have serious consequences because one's registration details are used for absolutely everything. I am sure some Members still deal with cases in which births were never registered, thus resulting in considerable hassle over inheritance, land, etc. Therefore, registration is the most important duty of parents, apart from caring for the child. I believe we have facilitated many of the concerns of modern life.
I move amendment No. 8:
In page 20, after line 45, to insert the following subsection:
"(4) Where a child is born in a vehicle or vessel in transit from one place to another and the precise place of birth cannot be identified, the place of birth to be recorded shall be that of the townland or civil parish concerned, or other identifiable geographical area concerned, or if that cannot be ascertained, either the place of departure of the vehicle or vessel or the place of arrival, as may be specified by the informant,".
This amendment is the result of a recent case in which the registrar produced a birth certificate for a child born in an ambulance that specified the place of birth as a road between two named destinations. This is wholly unsatisfactory for very obvious reasons. My amendment proposes a number of alternatives to registering a child in this manner, which is not acceptable by today's standards. In the case in question, a reference to a townland may have been appropriate, as opposed to a road between two destinations. If the Minister accepts my amendment, it will at least provide that an identifiable location be included in the birth certificate as the place of birth. I appeal to her to consider it.
Without prejudice to the merits of this amendment, I am irresistibly reminded of Oscar Wilde'sThe Importance of Being Earnest, in which a baby was found in a handbag in a London railway station. That is the way it was worded.
We do not have the resources the Senator has.
Normally, births occur in a hospital or a home — these are easy to determine — but there are instances, such as that alluded to by Senator McCarthy, in which a child is born in transit between two places. In the main, the townland would be included as the place of birth in such cases. In the particular case to which Senator McCarthy referred, the townland was not known. If the townland becomes known, the birth certificate can be amended accordingly. I appreciate that the absence of a named place of birth on a birth certificate can cause difficulties in terms of qualifying to play for a football team, be it Ulster, Connacht, Cork or Kerry.
It is much more open than that.
Certainly, the normal practice is to use the townland in which the birth occurred.
From what the Minister stated, I presume a birth certificate can be amended if the name of the townland in which a birth takes place is not known but becomes known subsequently.
I do not wish to take any steam from Senator Mansergh, but his contribution reminds me of a story about the naming of a street, in which two members of the Garda Síochána apprehended someone who was involved in a brawl in Clanbrassil Street. When the gardaí apprehended the individual and documented the incident, they decided they would be better off moving the suspect to Cork Street because neither could spell Clanbrassil Street. I thank the Minister for her reply.
I hope that is not a reflection on my registrar.
Before we proceed, I would like to say something about section 19 in general, in light of what previous speakers have said. Section 19 imposes the primary obligation to register on the parents, but in many instances involving assisted reproduction or surrogacy there is a problem defining who are the parents of the legal entity. The Bill, in various sections, refers to "the mother". What mother are we talking about? Are we talking about the genetic mother who donated the egg, the gestational mother who actually gave birth or the intended social mother? I presume we are taking "the mother" to mean the birth mother, but a difficulty arises in cases of surrogacy, for example, where the birth mother cannot present herself to the registrar because she may have relinquished the right to the child, thus implying that the social mother must present herself to the registrar. I am concerned about this. I know it is a complex area but, unfortunately, if this legislation is throwing up complex matters, we must face up to them and not brush them under the carpet.
I know the Minister referred to the "qualified informant", which is fine, and the Bill is quite specific that the qualified informant must attend before any registrar if the parents are dead or incapable through ill health of complying with what is required of them. This would apply where the biological father of the child makes an application for guardianship, but he has no right to register the child under this section.
This matter will recur as we consider other sections of the Bill. If the section uses terminology such as "father" and "mother", we must be very careful regarding our intended purpose. I know we are getting into a complex area, but I believe we should consider it very carefully. As we consider other sections, it will become far more complicated.
Given that Senator Mansergh quoted Oscar Wilde, why should I not quote Homer? He stated, "It is a wise child that knows his own father" but it is now a case of its being a wise child that knows his own mother. These issues are very important in the Bill.
To add to the Minister's complications and in order that she will have something to talk about over lunch after Cabinet meetings——
We do not get time for lunch.
——the daughter of a woman in her 40s had to have a hysterectomy and it was proposed that her mother would have a baby using her daughter's ova and sperm from the partner of the daughter. The mother was still married to the girl's father. If the child was born, the gestational mother, the genetic mother's sister, would be the parent and the grandfather of the child would be the father. Talk about guardianship: the biological father, the genetic father of the child, would have no rights to it at all. These are the sort of issues we have to address. They are complex, as Senator Minihan said. I do not know how they will be sorted out, but they need to be examined.
I will have a law degree by the time I get out of here. The Bill states that an tArd Chláraitheoir may conduct or cause to be conducted "such enquiries as he or she considers necessary" to ascertain whether a birth, stillbirth, death or marriage required to be registered under this Act, or if the repealed enactments, as may be appropriate, has been so registered. If it has been, it must be ascertained "whether the particulars in relation to it in the entries of the register concerned are correct and complete".
An tArd–Chláraitheoir may have an inquiry to determine registration in a particular case. That is where the role of an tArd–Chláraitheoir comes in. In that inquiry an tArd–Chláraitheoir may determine, following that event, whether the particulars concerned in the register are incorrect or incomplete. When we get to other sections in this legislation, the assumption is that the mother is the biological mother.
She is the gestational mother.
She is the gestational mother. The mother is the person who delivered the child. A father is not a father; he is a person until paternity has been determined. Save in exceptional circumstances, the assumption is that the man is the father if he is married to the mother unless that man relinquishes that right. He has to be married to the woman ten months prior to that and this is the big issue. It will come up in section 22. There is no assumption in law that the man is the father, save that he is married to the mother unless he relinquishes that right.
There is no such thing as a married father. It has to be proven.
There is no such thing. There is DNA and paternity issues, but that is the pre-determinant problem within law currently. If that were to be changed in itself, it would create assumptions which could be incorrect because initially paternity would have to be proven. Senator Henry is right on the basis that it is an assumption that the mother who is carrying the baby was married to a husband who was not the father unless he relinquished the right and was the child's grandfather and also his or her uncle.
The Minister is a contortionist as well.
Exactly. On that basis one would have to ask an tArd–Chláraitheoir to make a determination. Under the Status of Children Act 1987, a declaration may be obtained in court to determine parentage. That, I would assume, would be part of the inquiry of an tArd Chláraitheoir. It would turn out to be a legal determination on parentage. The judge can make that determination on the instructions of an tArd Chláraitheoir. Traditional life was much easier.
It would seem that section 22 and section 65 deal with those issues. There is no point dealing with them again.
If we are to take on board the statistics given out earlier regarding one third of births, this reality must be faced up to. Many inquiries and investigations will be set up to establish who is who. Would it not be simpler if in the registration documentation it was covered by starting with the genetic mother and moving on to the gestational or intended social mother? If that was signed off from the start, there would be no issue because the clear record would be there. They would be giving their consent. The history is there on the documentation and it would resolve all the inquiries.
We have forgotten one important person, the child.
The child has a right to all information, father and mother.
This is not necessarily so, when we go further down the line. The best interests of the child are paramount when one examines adoptions and all those other issues that have not come to any finality. The precise information the Senator is talking about would go to the court and then a determination would be made on parentage. The court would have to make that decision. When this legislation was initiated, a plethora of other issues arose which will give rise to problems of pre-determination. We will reach these at a later stage. The power of an tArd–Chláraitheoir is there to make the required investigation, linking in to other legislation in determining parentage. I was not aware of that but the cláraitheoir cúnta here is keeping me right on the legal aspects of it. It is complicated, the permutations are there and it will end up as a legal determination by the courts.
I move amendment No. 9:
In page 21, before section 20, to insert the following new section:
20.—Parents may opt to have the birth details of their child recorded in the Irish language and may opt to have a birth certificate issued in the Irish language.".
This would be a simple request, that parents should have the option to have details of their child registered in the Irish language. They may opt for an Irish language version of a birth certificate. It is a matter which should be close to the Minister's heart. Tá blas aici mar gheall ar an Ghaeilge.
We spent hours debating an all-party motion in this House, recently asking that Irish be one of the official languages within the EU. This amendment is a simple request for parents to be able to register their child in the Irish language and get a birth certificate accordingly. It is self-explanatory. I am hopeful it can be acceded to. I do not see why it cannot be, given the consensus within the House on the need for Irish to be an official language within the EU. If we are doing that and this cannot be allowed, then it is hypocritical.
Ar dtús báire, tá rogha ag na tuismitheoirí é a dhéanamh i mBéarla nó i nGaeilge. Seo an traidisiún atá anseo, go díreach, traidisiún atá le fáil ins na tíortha Ceilteacha agus tugaimid gach tacaíocht don teanga ar dtús báire. Cé go bhfuil an rogha ann, tá daoine ábalta an tuarascáil seo a fháil i nGaeilge agus é a dhéanamh i nGaeilge. Ar mo thuairimse ní chuidíonn sé go díreach don teanga ar dtús báire an rún seo a úsáid. Dá mbeinn ábalta é a úsáid chuirfí an-bhrú ar chúrsaí teicneolaíochta, i mo Roinn féin ar dtús báire agus ins na Ranna eile, fosta. Tá an córas teicneolaíochta in ann é a dhéanamh i mBéarla nó i nGaeilge ach níl sé in ann é a dhéanamh dátheangach. Cé go bhfuil an rogha sin ann, ní bheidh mé ábalta an leasú seo a ghlacadh.
I listened carefully to what the Minister had to say. She should not cite technical problems as a reason for not accepting the amendment which does not require her to do anything exceptional. This problem can be overcome by technology. It is unacceptable to say that to do so is technically impossible. Is the Minister accepting the amendment?
A parent can opt to register a child in the English or Irish language. That option has always existed and we will continue to provide it.
I move amendment No. 10:
In page 22, subsection (1), line 16, to delete "The father of a child" and substitute "A person".
The Minister rightly stated earlier that this section is one of the most controversial of the Bill. The new section 22 will replace section 49 of the Status of Children Act 1987 which redefines who we mean to be an unmarried father and his rights and obligations therein in terms of registering his name on a birth certificate.
It is absolutely essential that the rights of the child are paramount in this debate. We had a brief discussion on this earlier. Every child born in this country has a right to know his or her father and mother. There will always be extenuating circumstances where one of those parties may not play any role in the child's life. Section 22 as currently drafted gives unmarried fathers a cavalier role and provides them with an opt-out and says to them "We have no difficulty if you decide not to have your name on the birth certificate." This attitude must be tackled.
Section 22(1) states:
The father of a child who was not married to the mother of the child at the date of his or her birth or at any time during the period of 10 months before such birth shall not be required to give information under this Act about the birth.
The provision allows unmarried fathers who want nothing to do with their children acarte blanche to do as they wish. It gives legal recognition to an opt-out that is not in the interests of the child or society. I would like to know from where this idea came. The formulation of section 49 of the Status of Children Act is much better. It states, in the case of a child whose parents were not married to each other at the date of his or her birth or at any time during the period of ten months before the birth, that no person shall as father of the child be required to give information concerning the birth. The words “a person” have been dropped in the new section. I would like the Minister to put on the record of this House her rationale in that regard.
It is important that we, as legislators, say to parents, married or unmarried, that they have a fundamental responsibility to be inextricably linked with the development and welfare of their child. Too often, fathers take the easy option. There are many examples of young women wanting nothing to do with the man concerned. While I understand that, it is too easy for us to accept this situation in legislation.
Section 49 of the Status of Children Act is probably better than the new section we are debating here today. We have a major responsibility, when establishing registers, to ensure that fathers and mothers whether married or unmarried take their responsibilities seriously and ensure, at the very least, that a child knows his or her parents. There are too many examples of people opting out in this regard. We have a responsibility to get this right.
The debate on this legislation in the other House was rushed. The Dáil had no time to discuss this section. The great advantage of the Seanad is that everyone can speak on Committee Stage and we have a great deal of time to discuss these issues.
I support Senator Hayes' comments. It is extraordinarily important for the child that everything possible is done to ensure the father's name is registered at birth. A distinction exists between the registration of marital births and non-marital births and so a difficulty arises from the moment of registration.
I support the case so eloquently made by Senator Hayes. We owe it to children to include this provision. Access to this type of information is essential. Too often we forget the current moral entitlements of the child. It is not good enough that we allow some people off the hook because no legislative framework is in place to ensure they honour their responsibilities. It is difficult to believe such people do not want to be available to their children but that is the sad reality. I urge the Minister to look favourably on this amendment.
We will go into the particulars of matters raised on this amendment when we come to deal with others. Amendment No. 10 seeks to substitute the words "The father of a child" with "A person". Acceptance of the amendment would not substantiate or support the Senator's intention. One would first have to determine what constitutes "a person". The Senator is seeking that "A person who is not married to the mother at the date of his or her entry....". One cannot use the words "a person" in that regard. I am advised by the Attorney General that the section as currently drafted complies with best practice. The inclusion of the words "A person" would not achieve the Senator's intention. The overarching issues could, perhaps, be addressed in the next amendment.
Section 22(1) refers to the father of the child. What is the distinction between this and section 49 of the Status of Children Act which states that "In the case of a child whose parents were not married to each other at the date of his birth or at any time during the period of ten months before his birth, no person shall as father of the child be required to give information concerning the birth."? Is there a difference in the Department's mindset in respect of section 49 of the Status of Children Act and section 22(1) of the Bill? Why are they not the same?
Section 22(1) is written in plain English and refers to the father of a child. There is a determination there.
I accept that.
Amendments Nos. 11 and 14 are related and may be discussed together by agreement.
I move amendment No. 11:
In page 22, subsection (2), line 21, after "name" to insert "and required particulars".
Senator Cummins and I tabled these amendments with a view to including the term "and required particulars" after the word "name" in subsection (2). In other words, we are seeking more information and not just the name. As I understand it that is the practice, namely, that people are encouraged to give as much information as possible to go on the certificate. Why have we not provided for that in the legislation? If it is the practice — it is one which we would all welcome — why did the Minister not include an explicit reference in the relevant sections? I would have thought that it would make sense, in the event of there ever being a challenge on this, that the Minister could point to the legislation and state that she has not just stipulated that the name of an individual be provided but also that they provide required particulars, as set out in the Schedule. Both amendments attempt to achieve the same objective.
My comments in respect of amendment No. 10 equally apply to amendment No. 11. I am interested that we should move to a discussion of the section as soon as possible because we only have approximately 45 minutes before the end of Committee Stage.
Our deliberations can be resumed later.
The First Schedule requires the provision of a considerable number of particulars. I am concerned that the personal public service number of the father must be provided. I hope this will not deter people or lead them to believe that they will be pursued for maintenance money. While the warm feelings remain after someone is told he is the father of a child, it might be advisable not to seek people's insurance numbers. I do not know if I sound very callous or venal but it might be as well to omit that requirement.
The Senator sounds extremely practical.
With the exception of that requirement, the Schedule seems fine.
Senator Henry has addressed this matter in her comments on the particulars which must be provided under the First Schedule. Quite a number of such particulars are required. If a person does not have his or her PPS number, it does not deter the registration of the child's birth.
The child can still be registered.
So there is a legal basis for it by virtue of the fact that it is included in the First Schedule but not the relevant sections.
Is the Minister satisfied with that?
Yes. It stands on the Schedule.
As a consequence of this legislation, other issues are being raised which fall outside its parameters. I am delighted that Senator Brian Hayes has agreed that every effort is being made to ensure that two parents register. Senator Henry referred to warm feelings after someone is informed he is the father of a child. These people will be facilitated in the maternity hospital or at their local registrar's office and an extension of time is provided. If, therefore, something does not work out in the early period, there are up to three months in which a determination may be made in terms of both parents having their names on the birth certificate.
Many people have referred to children's right to know the identity of their father or — this concerns a minority of instances — their mother. There is a great deal of logic to that. It is for this reason we have had a considerable amount of debate with regard to adoptions and access to that type of information. As Members are aware, we have not reached agreement on that matter but there have been considerable discussions. The Minister of State, Deputy Brian Lenihan, is anxious to bring before the House a new adoption Bill which, in my view, will have major consequences for the legislation before us. When that Bill emerges, it is highly likely that the legislation on civil registration will have to be amended as the existing restrictions will remain in place under its provisions because a determination to change the position has not been made.
Statistics show that at Erne maternity hospital, the father's name was registered in 91% of births, while in Limerick, 93% registered their names. This shows that what is understood as a public perception does not actually exist. It is obvious that the change has come about of its own making because of the fact that we do facilitate registration. Quite a high percentage of fathers register their names on birth certificates.
Unfortunately it is the other 7% or 9% about which we must be concerned.
I accept there are other issues. There is no presumption in law other than that the husband of a married woman is the father of the child. There can, however, be complex and complicated relationships where, for example, the mother of the child may not be married to the father but is married to someone else and the person who is the father of the child could be married to another woman.
It has happened.
It is the reality. There are sensitive and difficult situations with which we must deal. There are other situations where the father would be genuinely unknown. That is another fact of life.
The high percentage of registration by both parents on birth certificates is good and important and we are facilitating it. Whether it is reflected in other responsibilities is another matter. Members will agree that in the main, save in exceptional circumstances, the inclusion of two parents is the best and most beneficial way of rearing a child. However, we know in our hearts and souls that people, be they men or women, abdicate their responsibilities. This is another societal issue about which it would be good to converse but it falls outside the parameters of this legislation. Just because a man's name is registered on a birth certificate does not mean that he is actively involved in the parenting of the child. Having his name registered does not bestow on him any rights if he is not going to be actively involved in the rearing of the child.
There are other consequences which arise out of registration. However, I am happy to see such a high percentage of involvement among men and women. I appreciate that there are difficulties in relationships, particularly where a woman may not want to have anything to do with the father. There may, perhaps, be reasons for that. It often happens, sometimes later in life, that people ask, as they are entitled to do, a registrar to amend the registration. A couple of thousand re-registrations take place every year. This indicates that, perhaps through reconciliation or whatever, people involve themselves more in the rearing of a child or wish to have their names registered on the birth certificate.
There will always be cases where people have a personal difficulty or problem. At the end of the day, people can have recourse to the courts to establish parentage. We would prefer it if they did not have to go to such lengths, but that opportunity is available to people if they want to establish their parentage. The court will then advise an tArd Chláraitheoir to register the father's name and details.
In how many cases per year would the courts intervene in that way?
We do not have figures in respect of that matter.
I move amendment No. 13:
In page 23, subsection (2)(d), line 4, to delete “child.” and substitute the following:
(e) declare that they are the mother and father of the child concerned or the prospective parents of the child yet unborn and make a statutory declaration to that effect containing the required particulars needed to register the birth or stillbirth as the case may be.”.
We are all agreed by now that it is a good idea that a child should know his or her paternity. Can we include a provision to accommodate unmarried couples where, for example, a non-national father who plans to leave the State can make a statutory declaration acknowledging paternity of a child or stillborn child to be? A father could be registered as the father of a child on the basis of such a declaration.
That cannot be done until the child is born.
I move amendment No. 15:
In page 25, between lines 21 and 22, to insert the following subsection:
"(9) When the person to whomsection (2)(d) applies makes a request to a registrar under that provision, the registrar shall notify the mother of the request before re-registering the birth.”.
Section 23 makes provisions on re-registration. I have been advised that Senator Henry is more expert on this matter than me and I will let her come in on it. I may have been advised of that inadvertently, however.
The intention of amendment No. 15 is to insert a new subsection (9) to make provisions in respect of a re-registration some years after the birth. The registrar would be obliged to notify the mother of a request before re-registering the birth. We are all aware of a number of tragic cases which have come before the courts. Are there circumstances in which it would be advisable to provide that a mother should be entitled to know if someone was attempting to re-register? The Minister may well tell me that the mother is entitled to know as the law stands. However, there are some tragic cases in which it would be advisable to ensure that a mother is informed if a re-registration application is made by a father or a person alleging to be the father. Examples include circumstances in which there is violence in a relationship or other legal difficulties. Have the Minister and her officials considered this matter in the context of section 23?
Will there be double indexation of surnames, in particular, if a child is re-registered? That could be very important from the point of view of the father, the mother and members of the extended family who wished to look the names up in future.
Double indexation will happen. A father is entitled to have all his details on certificate whereas Senator Brian Hayes is referring to cases in which a mother would not wish to have a father's name on the register. That cannot be prevented under the Status of Children Act. There is an automatic guarantee.
It has been brought to my attention that there may well be a handful of cases in which estranged fathers can be prevented from re-registering on the basis of a very violent relationship. There is no basis in law, which means the information can be openly obtained by him.
The information is a matter of public record.
Amendment No. 17 is consequential on amendment No. 16 and both amendments may be discussed together. Is that agreed? Agreed.
I move amendment No. 16:
In page 25, line 26, after "1931" to insert "as amended by subsection (2)."
Amendments Nos. 16 and 17 seek to correct what appears to be an outdated provision in section 1 of the Legitimacy Act 1931. The provision operates to legitimise children whose parents subsequently marry only if the father is domiciled in the State. There appears to be an inappropriate form of discrimination in the provision. I ask the Minister to consider the amendments positively in view of that fact.
As the Senator has rightly said, the section provides for the re-registration of a child legitimised by his or her parents marriage to each other. Section 1(1) of the Legitimacy Act 1931 provides for the legitimising of a person where his or her parents marry each other and the father of the illegitimate person is, at the date of marriage, domiciled in the State. The amendment seeks to provide that either the father or the mother of the child is domiciled in the State at the date of marriage. As this proposal does not relate to the re-registering process covered under this section, it is not proposed to accept the amendment as appropriate for inclusion in the legislation.
I accept what the Minister said. The relevance of the Legitimacy Act 1931 could be called into question. This is clearly the case in terms of attempting to legitimise children after the parents get married. It may not be a matter to be considered in the context of the legislation before us, but it points to the inadequacy of the Legitimacy Act 1931.
I move amendment No. 18:
In page 26, before section 25, to insert the following new section:
25.—(1) The State shall endeavour, insofar as is practicable, to ascertain and register the name of the birth father at the time of registration of a birth.
(2) Nothing insection 23 or 24 shall prejudice or restrict the right of a child to ascertain his or her birth father.”.
This amendment represents an attempt by Fine Gael to include a new section to encompass the aspirations of every Member of both Houses of the Oireachtas. It seeks to ensure that nothing the State ever did would stop a father registering his name on a birth certificate. I am sure the Minister will tell me a father already has this right. This new section would be useful particularly in the context of sections 22 and 23. Inclusion of the new section as an overarching protection would be seen by many men as a validation of a man's right to include his name on a birth certificate. The provision is copperfastened in subsection (2) which states that nothing in sections 23 or 24 shall prejudice or restrict the right of a child to ascertain his or her birth father. The Minister will probably tell me the right already exists.
While the right may already exist, the wording of our new section is better and clearer. That is all I have to say about that matter.
That is one-nil to this side. The right is established.
Is the Senator happy with the right?
I accept the Minister's word on it.
I move amendment No. 19:
In page 26, subsection (1), line 28, after "like effect", to insert "made within 12 months of the registration of the birth".
It has been suggested to us that it may be sensible to put a restriction on the time length during which people can make the alteration — up to 12 months from the registration of a birth. The argument put to us is that this sort of provision would constitute good record-keeping. I am interested in the Minister's views. As currently worded, there can be an alteration at any time. Would that not be open to abuse in the future?
That restriction was in the legislation in 1980 but was taken out sometime in the 1990s. I think this would be very restrictive. We give people a once-off opportunity to change the forename. As the Deputy knows, a year is quite a short period and it was considered restrictive in the 1990s, so it was removed. Maybe it was a Fine Gael Minister who removed it. I am not quite sure.
There were not too many of them at that time.
The provision was considered somewhat unnecessary and slightly restrictive, and it was decided to take it out. Re-introducing it might not serve much purpose.
We will discuss amendments Nos. 20 and 21 together by agreement, as amendment No. 21 is an alternative to amendment No. 20.
I move amendment No. 20:
In page 26, subsection (2), lines 39 to 43, to delete all words from and including "in" in line 39 down to and including "to" in line 43.
We are suggesting the removal of five lines from subsection (2) because there is no necessity for them. Subsection (2) states that where a forename is changed, altered or registered, or one or more forenames are added under subsection (1), the then existing entry concerned shall be retained. Why is there a need to add the remaining five lines? They have no purpose. We ask the Minister to consider the amendment in that context.
Amendment No. 21 is an effort to remove part of the bureaucratic straitjacket attached to the Bill. I am also led to believe there was no provision to change a forename once it has already been changed. I appeal to the Minister to remove the bureaucratic straitjacket and accept the amendment. That would make history.
Remove the verbiage.
The amendments seem contradictory because one of them called for a 12 month straitjacket.
That is the beauty of Opposition.
There was a timeframe and a clothing issue involved.
This is a once-off opportunity to either amend or change or complete a birth registration, for example where the name which is not originally registered is, for example, in common usage. That happens on a number of occasions.
If I were to accept this amendment, it would result in the possibility of multiple changes of forenames with resulting degradation of the birth record. I have said that there should be only one opportunity to make the change. If we were to remove what the Deputy referred to as the verbiage, one could change the name on a continual basis, and that would not be appropriate. That is why the additional five lines are there among the seven.
I move amendment No. 22:
In page 26, between lines 43 and 44, to insert the following subsection:
"(3) Where a person whose birth is registered as being of a particular gender, subsequently undergoes gender reassignment surgery and produces a certificate in a prescribed form from a registered medical practitioner to the effect that the person's gender has now altered from that stated on his or her birth certificate, the birth may be re-registered with particulars of the person's gender at the time of re-registration.".
We know this Bill covers wide-ranging areas and is sensitive in parts. The purpose of this amendment is to address a defect in the law currently for a small number of people who undergo gender reassignment surgery. Currently, such people are forced to live with birth certificates denoting their original gender for the rest of their lives, with no provision for change. This is an unsatisfactory situation for such people, and the amendment provides the necessary legal protection.
The European Court of Human Rights has already issued a warning regarding this kind of legislation. It recently ruled that failure to make provision in law for transsexuals is a breach of the European Convention on Human Rights. If we do not take action in this area, we will hear about it from the powers that be in Europe. A ruling will be made against it. I am interested to hear the Minister's response. It is important that Ireland, which has signed up to the convention, would actively lead from the top. If we do not act soon, it is only a matter of time before a ruling is made against the legislation by the European courts.
The registration of a birth is designed to record personal details as they pertain at the time of birth. The issue of the amendment of the birth certificate following gender reassignment arose in an application for a judicial review of a decision of an tArd-Cláraitheoir at the time, not to amend an entry in the register of births following an application from a person who had undergone gender reassignment surgery. The High Court declined to grant the application. The judgment noted that the applicant raised many personal complex social, ethical and legal issues. I understand that the High Court decision has now been appealed to the Supreme Court, and pending the outcome of the appeal and the enactment of the provisions of this Bill, I am not currently in a position to accept the amendment. We must await the decision of the Supreme Court.
Even if the Supreme Court upholds the High Court decision, I urge caution in this regard, because we are dealing here with a powerful European instrument. If this State were to violate the European Convention on Human Rights, it would be shameful. I accept that the Minister is following due legal process on this, but it is only a matter of time before the European Court of Human Rights will rule that this country is in dereliction of its duty, despite having signed up to the convention and having fulfilled obligations thereunder. Even if the Minister will not accept the amendment, I urge her to be cognisant of the situation. If the Supreme Court upholds the High Court ruling, what action will the Minister take?
I prefer not to pre-empt the Supreme Court decision. I would not dare to do so. Once we get the decision, we will determine what to do. The action taken by the European Court of Human Rights pertained to marriage and its inter-linking with the birth certificate. That is being investigated and considered by the inter-departmental committee on marriage reform currently working. It is best to await the Supreme Court ruling before any further decision is made.
I move amendment No. 23:
In page 36, before section 43, to insert the following new section:
43.---The date of birth of a dead person shall be recorded on the death certificate.".
Section 43 refers to the place of death and the circumstances involved. We suggest that the date of birth of a dead person shall be recorded on a death certificate. I was not aware that was not the case.
On Second Stage the Minister informed me that going forward there would be a cross-tabulation between people who die and their birth certificates. I raised an issue with the Minister that had been brought to my attention in that it was still possible to obtain, for illegal purposes, birth certificates of people who had died and she said, in the course of her reply, that from cross-tabulation in the future she would be able to clamp down on that.
That is right.
That led me to table this amendment whereby we suggest that the date of birth of a person should be recorded on the death certificate. It would certainly help in terms of that cross-tabulation.
I support Senator Hayes. This is very important. There are many Mary Henrys and it might be as well if they had my date of birth when they are certifying my death in case they confuse me with someone else.
I support this amendment. We have accepted the provision on the place of birth and the date of birth should also be included for the reasons outlined by Senator Brian Hayes. It should not pose a major difficulty. I hope the Minister accepts the amendment.
The Bill now provides for the date of birth or age last birthday of the deceased to be entered in the register. The Senator is right. Going forward we will be able to cross-tabulate from a control point of view.
The Minister accepted it in the other House.
If the Bill were here first, I would have accepted it.
I just thought I would ram home the point that we got one amendment accepted.
I move amendment No. 24:
In page 37, subsection (1), lines 23 to 29, to delete paragraph (b) and substitute the following:
"(b) attend at the office of that registrar, or at any other convenient place specified by that registrar, including an Embassy or Consulate of the State, at any time during normal business hours——
(i) not less than 5 days (or such lesser number of days as may be determined by that registrar), or
(ii) in the case of a person who has resided outside of the jurisdiction for at least three months preceding the date of marriage, whose place of residence has no Irish diplomatic representation, not less than 1 day (or such lesser period as may be determined by that registrar)
before the date aforesaid and make and sign a declaration in his or her presence that there is no impediment of kindred or alliance or other lawful hindrance to the said marriage.".
This amendment concerns people who are residing in another country coming home to be married. The five days restriction is practical. These people should be allowed go to an embassy or consulate and do what is necessary. What we suggest in this regard is self-explanatory. We are foreseeing difficulties that may arise in such circumstances and we would welcome the Minister's opinion on it. This matter was raised in the other House and we felt it should be raised here because we foresee practical difficulties if the section is left as it is.
Provision is being made in the Bill to facilitate couples working or living abroad. They can notify the registrar under the prescribed form by post. They can submit any other required documentation, for example, a divorce decree, by post but they must attend a registrar's office a minimum of five days prior to the date of the intended marriage to produce the identification and to sign a declaration of freedom to marry. Where a couple is unable to meet this requirement due to exceptional circumstances, special arrangements can be made by agreement with the registrar. We can all appreciate that something might happen, and that can be facilitated.
In addition, it is proposed that the designated registrar's office will be open late one evening each week to provide an expanded service for our customers. All marriage notification details, including the couple's signatures, will be captured electronically and this can only be done now by a personal attendant at the registrar's office. We will certainly facilitate people as best we can. The couple's electronic signature will be used for comparison purposes with those on the marriage registration form when the marriage is being registered.
It is a principle of international law that couples wishing to marry outside their country of residence must comply with the marriage laws of the country where the marriage is to take place. We are all aware of that happening. Given the significance of marriage to the couple in society, it is not unreasonable to require a couple to attend a registrar's office in person to complete the civil preliminaries for marriage. It is an intrinsic part of making all necessary arrangements for the marriage.
I consider that adequate provision is included in the Bill to cater for couples resident outside the State who wish to marry in Ireland. That flexibility is being given to the registrar.
Is the Minister saying the registrar has discretion to dictate for special circumstances that may arise?
Yes. The local registrar would be aware of something happening. If, say, there was a death, an accident or whatever, the registrar, who would be local and would most likely know the person, would be able to facilitate him or her.
However, that does not extend to consular or embassy services abroad.
No, it does not. As I said, the signature has to be made with our registrar. We talk about a minimum of five days and circumstances may arise where documentation may not be correct, for example, and that would have to be dealt with. That is the reason we are providing for a minimum of five days. That is the framework we are looking at, for example, if somebody forgot something or needed to come back with something else. It might be a bank holiday, and many people get married on bank holidays or on Sundays in some areas. These things happen and we are providing contingencies for them but it is felt that it is best that the person would appear before the registrar to ensure that all the documentation is correct. A consular would not be adept at dealing with many of the permutations and considerations that a registrar might face and it would be unfair to expect that. If exceptional circumstances arise where people are coming home to get married, the registrar would usually facilitate that. I know from a good deal of experience that the mother usually has to sort it out, for some reason or another, and that will be facilitated.
I presume this is the section which makes everything all right for the Church of Ireland service in section 51, where the two people are required to say if there is any impediment to their marriage. In the Book of Common Prayer, the minister says to the couple:
The vows you are about to take are to be made in the name of God, who is judge of all and who knows all the secrets of our hearts. Therefore if either of you know any reason why you may not lawfully marry, you must declare it now.
Nothing used to be said, so I presume it is this declaration——
No, it is not. Section 51 will deal with that.
Does the declaration five days before make up for the fact that no one says anything? Section 51 states that the two people——
This is a totally different measure. This is to provide for the three months' notification. The other issue is dealt with in section 51 and we will deal with it when we get to that section.
I thank the Minister.
I move amendment No. 25:
In page 37, subsection (4), line 37, after "marriage" to insert ", provided that where a marriage takes place in contravention of those provisions in circumstances where the parties believe in good faith that one or both of them is in danger of death, and the parties or either of them or the person or the person celebrating the marriage proves the existence of such belief to the satisfaction of the Circuit Court, which application may be made after the celebration of the marriage, the said subsection shall not apply".
In 1995 the rainbow Government introduced the three months notification period. Naturally there was a commitment to this and it appears to be a good idea in principle. However, there is the difficult case in marriages where one of the partners is in imminent danger of death. While in principle it is possible to get an exemption from a Circuit Court judge, this may not be possible in a very limited number of cases and this amendment makes provision accordingly. I recognise this is an inherently difficult area.
This section does deal with a notification of marriage and the requirements set out in subsections (1) and (2) of section 46 are substantive requirements for a valid marriage. Provision is made in the Bill for an application to the courts for an exemption to the three month notification requirement, as Senators will be aware. However, where special or exceptional circumstances arise, the party can arrange with the registrar a place and time convenient for completion of the civil preliminaries for the marriage and the issue of the marriage registration form. In those circumstances, the registrar has the flexibility to facilitate a couple and determine a time and place to deal with the legalities. The flexibility is there to facilitate those unfortunate circumstances.
I move amendment No. 27:
In page 40, subsection (6), line 36, to delete "may" and substitute "shall".
This amendment is self-explanatory and one that appears in various Bills. The difference between "may" and "shall" is very weak. There are different implications for both words. Given that the Bill is weak, the amendment would give the Minister discretion as to whether to allow correction of errors. There is a belief in some quarters that there must be a provision for correction of errors. It is a semi-technical amendment.
Subsection (6) of section 49 makes provision for the Minister for Health and Children to make regulation for the correction or errors in the register of marriages. It gives the Minister discretion on whether he wants to regulate on the matter. In the interests of better regulation, the need to regulate it is carefully analysed to prevent creating unnecessary legislation. It is in keeping with the practice to allow for discretion on the matter. In the circumstances it would not be appropriate for the Minister to be obliged to make a regulation. It gives the Minister the facility to make regulation if needs be, but he is not obliged to do so. If the word "shall" is introduced he would have to make a regulation, when there may be no necessity for it. It is only an enabling provision for the Minister for Health and Children in the advent of the need for a regulation. Does that explain the matter?
We may raise the matter on Report Stage.
I move amendment No. 28:
In page 42, before section 51, to insert the following new section:
"51.—(1) Where a person is formally granted guardianship of an infant, the details of the guardianship shall be entered in the register of guardianship.
(2) Persons who acquire guardianship shall furnish all details of such guardianship, together with all necessary documentation to the Civil Registration Service as soon as may be after the event.".
I request a lobby vote.
As the Senator who requested the lobby vote is not a teller, will the Senators supporting the request please stand?
The vote will proceed.