I thank the Senator for raising what is a very important issue. While much of my response is quite technical in outlining the situation as it stands, the Senator has brought it back to what it should be about, namely, families, children and their parents. While he, I and many others would recognise both people in the example he gave as parents, the letter of the law says otherwise. We have to work to bring about change, as we have done in the past and as the Senator outlined.
All passports are issued in accordance with the provisions of the Passports Act 2008, as amended. Pursuant to section 7 of the Act, a passport cannot be issued unless the Minister is satisfied that the person is an Irish citizen and as to the identity of the person. Citizenship is governed by the Irish Nationality and Citizenship Act 1956, as amended, which is under the responsibility of the Minister for Justice and Equality. Legislative measures relating to citizenship do not fall within the remit of the Department of Foreign Affairs and Trade. I will therefore confine my remarks to an explanation of the current citizenship legislation under which the Department of Foreign Affairs and Trade operates. I will also explain the current legislative situation relating to guardianship of children.
The Department, specifically the passport service, is tasked with processing passport applications in line with the requirements of the Passports Act. The passport service has received several applications from same-sex married couples seeking to obtain Irish passports for their children born abroad and, in giving due consideration to these applications, has rightly raised a number of issues relating to both citizenship and guardianship with the relevant Departments and the Office of the Attorney General.
I would like to set out the current legislation on citizenship. Section 7 of the Irish Nationality and Citizenship Act 1956, as amended, addresses citizenship by descent and provides that a person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen, although an additional requirement of registration is imposed in respect of children born outside the island of Ireland where the Irish citizen parent was also born outside the island of Ireland.
For the purposes of the 1956 Act, a parent is understood to mean either the "mother" or "father" of the child. For the purpose of Irish law, the mother of a child is the person who gives birth to the child or a female adopter of a child. In general, the "father" is the person identified as the genetic father of the child or a male adopter.
The passport service has received passport applications for children born outside the State to same-sex couples where one member of the couple is an Irish citizen and the other is not. Following consideration of the 1956 Act, the passport service understands that, under the current legislation, where the Irish citizen is neither the birth mother nor the genetic father or neither the male nor female adopter of the child, the child does not qualify for Irish citizenship by descent. The passport service sought and received advice on its understanding of the 1956 Act from the Office of the Attorney General.
While the passport service's understanding was confirmed, the Office of the Attorney General was of the view that further confirmation from the Department of Justice and Equality was required.
The passport service has sought clarification from the Department of Justice and Equality on this and many other related matters, including the effect on citizenship of Parts 2 and 3 of the Children and Family Relationships Act 2015, once commenced by the Minister for Health.
I would like to outline the current legal status and position on guardianship. There are particular provisions in the Passport Act dealing with applications for children. Under the terms of the Act, the passport service requires the consent of a guardian or guardians before issuing a passport for a child under the age of 18 years, subject to very limited exceptions. Section 14(1) of the Act provides, "The Minister shall, before issuing a passport to a child, be satisfied on reasonable grounds that where a child has two guardians, each guardian of the child, and where a child has two or more guardians, at least two of those, consent to the issuing of a passport for the child". In line with section 2 of the Act, "guardianship" is a term with a defined legal meaning. For the purposes of that section, "a guardian" means a person who, first, is a guardian of the child pursuant to the Guardianship of Infants Act 1964 and, second, is appointed to be a guardian by either the child, deed, or will or order of court in the State and has not been removed from that office. In cases where a child has only one guardian within the meaning of the legislation, the guardian is required to complete a sole guardian affidavit to confirm that there is no other person to confirm that no other person holds guardianship rights in respect of the child applying for a passport. This is necessary in order to verify that the requirements for guardian consent have been satisfied. It is my understanding the Minister for Health has recently met civil society representative groups from the LGBTI community to discuss a range of issues, including the rights of same-sex couples and their children. I will bring this debate to the attention of the Minister, the Minister for Justice and Equality and my colleague, the Tánaiste, Deputy Coveney. This is an issue we need to address and it is an area in which I would like to see further progression.
