Children and Family Relationships Bill 2015: Committee Stage

This meeting has been convened to consider the Children and Family Relationships Bill 2015. I welcome the Minister and her officials to the meeting. I must request that all mobile phones be switched off or else put on silent mode or some mode that does interfere with the sound system here.

I propose that we should commence now and continue until 11.30 a.m. when we will we take a break for 30 minutes. We will then go from 12.30 p.m. to 1.30 p.m. with another break for 30 minutes. We will then go from 2 p.m. until we decide to conclude. Is that agreed? Agreed.

Question proposed: "That section 1 stand part of the Bill."

I wish to give notice that I intend to move an amendment to this section on Report Stage. It will provide a collective citation of Part 4 with the Guardianship of Infants Act and provide for the commencement of Part 10 which amends the Passport Act 2008 by the Minister for Foreign Affairs and Trade.

Question put and agreed to.
Sections 2 and 3 agreed to.

Amendments Nos. 1, 5, 18, 22 to 24, inclusive, 27 to 30, inclusive, 34, 47, 49, 57 to 59, inclusive, and 67 are related and may be discussed together.

I move amendment No. 1:

In page 10, lines 19 and 20, to delete “to which section 14 applies”.

This is a purely technical amendment to remove a redundant cross-reference in relation to embryo donations. The other amendments in this group are minor revisions for clarity and consistency in the language used in the Bill. They include the removal of redundant phrases or minor restructuring of certain provisions to make their meaning clearer.

Amendment agreed to.

Amendments Nos. 2, 8, 17, 26, 32, 45, 53, 55 and 56 are related and may be discussed together.

I move amendment No. 2:

In page 10, line 21, to delete “section 24(5)” and substitute “section 24(6)”.

This is a technical amendment to correct a mistaken cross-reference. The other amendments in this group are drafting amendments to ensure that cross-references within the Bill are clear and unambiguous, including corrections to some minor cross-referencing errors.

Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."

I plan to amend this section on Report Stage. The amendments will provide for a definition of a donation facility that includes foreign donation clinics. They will also refine the definition of "intending parent" to clarify that the intending parent, other than the mother, consents to parentage as opposed to requesting the donor-assisted human reproduction procedure.

Question put and agreed to.

There is one amendment in section 5 in the name of Deputy Mac Lochlainn, but as he is not here it cannot be moved.

Amendment No. 3 not moved.
Section 5 agreed to.

Amendments Nos. 4, 6, 35 and 51 are related and may be discussed together.

I move amendment No. 4:

In page 12, line 34, to delete “and”.

The amendments in this group are minor technical ones for stylistic consistency.

Amendment agreed to.
Section 6, as amended, agreed to.

I move amendment No. 5:

In page 13, to delete lines 15 to 19 and substitute the following:

“(a) that, in the event that he or she consents under section 6 to the use in a DAHR procedure of a gamete provided by him or her—

(i) he or she is entitled to seek the information referred to in section 32(2), and

(ii) where such a DAHR procedure is performed, he or she consents to the provision to the Minister of the information referred to in section 26(2)(a) in respect of him or her,”.

Amendment agreed to.
Section 7, as amended, agreed to.
Question proposed: "That section 8 stand part of the Bill."

I intend to amend this section on Report Stage to clarify where consent can be revoked. Similar amendments will be required to sections 9 and 11 to provide absolute clarity as to where the intending parent may revoke their consent.

Question put and agreed to.
Sections 9 and 10 agreed to.

I move amendment No. 6:

In page 16, line 6, to delete “procedure,” and substitute “procedure, and”.

Amendment agreed to.

Amendments Nos. 7, 20, 25, 31, 33, 44, 46 and 61 to 66, inclusive, are related and may be discussed together.

I move amendment No. 7:

In page 16, line 9, to delete “a” where it thirdly occurs and substitute “the”.

Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.

I move amendment No. 8:

In page 17, line 5, to delete “section 32(2)” and substitute “section 32(1)”.

Amendment agreed to.
Section 13, as amended, agreed to.

Amendments Nos. 9 to 14, inclusive, are related and may be discussed together.

I move amendment No. 9:

In page 17, line 13, after “applies,” to insert “the”.

These amendments are minor drafting clarifications which address embryo donation to ensure that the section can operate effectively. The section, as drafted, refers to the donation of embryos by a couple who have ceased their donor-assisted reproduction treatment and where there are remaining embryos when they do so. At the moment it applies only where those embryos were themselves formed using donor gametes from another person.

I will be bringing forward amendments on Report Stage to ensure that a couple who have had embryos formed for their own use, and using their own gametes, may donate those embryos where at the end of treatment they have embryos that they do not intend to use. I will move an amendment on Report Stage to clarify the issue in relation to embryos.

Amendment agreed to.

I move amendment No. 10:

In page 17, line 30, to delete “will be” and substitute “is”.

Amendment agreed to.

I move amendment No. 11:

In page 17, line 31, to delete “will not be” and substitute “is not”.

Amendment agreed to.

I move amendment No. 12:

In page 17, line 37, to delete “relevant intending parent” and substitute “person”.

Amendment agreed to.

I move amendment No. 13:

In page 18, line 21, to delete “the DAHR procedure” and substitute “the further DAHR procedure".

Amendment agreed to.

I move amendment No. 14:

In page 18, line 23, to delete “his or her gamete” and substitute “an embryo”.

Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."

The question I want to raise is as relevant to section 14 as to other sections - that is, the interconnectivity between the section and the definition of "egg" in the legislation. The draft Bill examined by this committee had a definition of "human reproductive material" which included an ovum or part of an ovum. This had relevance in circumstances in which an ovum was provided but there was a background difficulty with regard to certain genetic diseases that could be inherited, such as mitochondrial deficiencies. If a husband and wife are using their own reproductive material to conceive a child but the wife has a family history of mitochondrial deficiencies, there can be an intervention under what is now the new frontier of genetic reproductive medicine, which allows for modification of the wife's ova with no impact on the looks or personality or the overall genetic makeup of the child that is ultimately born. A 0.1% change to the original material in the ovum using material from a donated ovum would prevent the type of difficulty that arises from what could non-technically be described as mitochondrial disease, where the body is not able to properly digest food to create energy that is necessary. This can have a dramatic impact on the health and welfare of children and adults in areas both mild and serious, including cardiac and respiratory issues. This issue was addressed recently when the Westminster Parliament dealt with a deficiency in its own legislation that created a barrier to dealing with this in the context of assisted reproduction.

This is also relevant in a context in which a husband and wife have no fertility issues, in the sense that they can conceive naturally, but there is an inherited mitochondrial disease in the family. What people may not understand is that the wife's ovum needs to be corrected in this particular way. I am conscious that this is at the frontier of reproductive medicine. It is something I was aware of when I prepared the draft Bill, and the reference to part of an ovum was designed to address this issue. I am conscious that when dealing with legislation there are ten different ways one can draft something to address a problem - there is no perfect drafting methodology - and one can problem-solve with a variety of different phraseologies. I am not sure whether there is a definitive definition. In the context of dealing with the embryo, there is a reference to "a human egg" and "a human sperm" and there does not seem to be a recognition, as the legislation is currently drafted - I am open to correction - that one could in fact be dealing with 99.9% of an ovum derived from the wife, with the final 0.1% coming from a donated ovum, which would correct an inherited deficiency that has an impact on well-being and welfare not just for the child that is born but for generations into the future. This is an issue that is relevant to this section and to earlier sections, and it is important that it be teased out a little.

Does the Deputy have a proposal on it?

I am interested in listening to the Minister's response on the extent to which this was considered when amendments were made to the legislation. It was always envisaged when the Bill went to a consultative process that it would be improved and that amendments would be made, as that was the whole purpose of the consultative process. However, I am concerned that because of the changes that have been effected, this particular issue - the creation of an embryo, and ultimately a child, with contributions from two separate ova - may not be envisaged in the legislation as we are dealing with it.

The approach in regard to this issue arises from the Department of Health's policy position. Its policy is single-egg only. The issue will be considered undoubtedly in the context of the development of assisted human reproduction, AHR, legislation, which will be worked on comprehensively. The Minister for Health came to Cabinet some weeks ago and got permission to draft the heads of a Bill and he has announced a consultation for later this year. The approach I have taken in the legislation arises from the Department of Health's present policy on this issue.

It appears, as Deputy Shatter says, that this whole area is changing by the week, with further developments coming forward all the time.

My problem with that is that this issue was addressed by virtue of the definitions contained in the heads of the Bill, to which this committee gave very detailed consideration, and gave rise to no difficulty or controversy. I do not believe there is anyone in this room, in any of the political parties or among the Independents, or anyone outside this House who would be of the view that a medical intervention that can ensure that a very serious genetically inherited physiological difficulty is corrected should not be carried out. In the context of the hearings that this committee held - I followed them with great interest, and a very interesting report was produced - I am not aware of anyone mentioning a problem with regard to the definitions that were used.

The difficulty with the Bill is that it is dealing with aspects of reproduction. What the Bill was originally intended to do was to identify parentage in the area of assisted reproduction. It is doing that in a variety of ways. A different formula is being adopted, and we will come to that shortly. I must say, frankly, that there are issues in this Bill that I envisaged would have been dealt with as part of a consultative process that the Minister of Health would undertake. Why that consultative process did not occur earlier is a mystery to me, because it was my understanding that it would have commenced fairly shortly after the heads of the Bill were published in January 2014. The Bill seems to be dealing with some aspects of reproduction, and in fact - I am coming back specifically to the issue - it is dealing with some areas that it probably should not be dealing with and omitting other areas that it should be dealing with. The point is that there are rules and specifics in the Bill with regard to whether anonymous donors are allowed or not allowed, and I am not sure whether we have touched on that. Yet the Bill seems to be progressing at a great rate this morning without the sections being examined beyond amendments.

Everybody has their chance to contribute.

I appreciate that.

There has not been adequate consultation on what is effectively the banning of anonymous donors in the context of assisted reproduction. Currently, the overwhelming majority of couples who engage in assisted reproduction using donor sperm or ova are entirely dependent on anonymous donation. There is a risk that this legislation, while providing for recognition of the parentage of children born through assisted reproduction, will mean that a majority of parents with fertility issues who need assistance through donation will need to go abroad. It will create another Irish solution to an Irish problem. The issue of anonymous donation should have been part of the consultative process in which the Department of Health is engaged. I do not know why it is now in this Bill without the extensive consultation that was required.

With regard to the issues of parentage and consent to the use of embryos in further DAHR procedures, we are talking about, to take a simple example, a couple who have not used an embryo created from their own reproductive material and are now agreeing that it can be used to assist another couple. Perhaps this is a conversation that should have taken place on an earlier section. However, it is relevant to this section and to the definition of ovum that is applicable to determining what is an embryo in the context of the legislation. I have been part of this process and I have been on both sides of the divide in this committee, both as Minister and as an ordinary Member of the House. There is no reason for us to enact a definition that is now recognised by our neighbouring Parliament to be out of date. There is no reason for us to exclude the possibility in the area of assisted reproduction for couples who have fertility difficulties, and for those who do not but who want to correct an inherited deficiency that could have an impact on the life and welfare of the child to be born to them. There is no reason for not ensuring that we have an adequate definition that addresses this issue. This is not an issue of major complexity. I ask the Minister on Report Stage to look at the definition that is being used and to go back and examine the definition that was framed in the heads of the Bill as discussed by this committee.

I appreciate that the architecture of the Bill has been amended and, knowing how the system works, I do not doubt that some of that change was derived from the Attorney General's office. Without revealing too many secrets that I should not reveal, I can tell Members that during my three years as Minister there was many an occasion on which I had to engage in arm wrestling with the drafters in the Attorney General's office to ensure the legislation emerged out of that office in the form I wanted to see it. It seems to me there is a risk that this legislation is going to create a block, if the Minister introduces the provisions on anonymous donation any time soon, on assisted donor reproduction occurring at all in this country for the vast majority of individuals. We are at risk of creating a block on what I would describe as a crucial health intervention.

It is important to know where we are coming from. This area is currently unregulated. I agree that it is an issue for the Department of Health to introduce regulation for fertility clinics and, frankly, to introduce regulations or laws to deal with the issue of anonymous or non-anonymous donation, but why would we now change something and create a difficulty that does not currently exist? If someone is able to avail of this advance in reproductive medicine in this country today, why enact legislation that might, when it comes into force, create a block that does not currently exist? That is the point I want to make. We know from what the Minister for Health has said that there is no possibility that legislation dealing with the areas he is addressing will come before the Oireachtas and be enacted before the next election. It has taken decades for us in this State to deal with this matter. There is very little chance, whatever new Government comes into office in 2016, that the matter will be prioritised for revisiting by the Minister for Health. We should not create this difficulty. We should not leave parents in this State with a family history of mitochondrial disease in a position in which the only way they can have that corrected is by travelling to England.

Does the Minister wish to respond to Deputy Shatter?

As I have stated, much work has taken place in the Department of Health in recent weeks and months, as evidenced by the fact that the Minister for Health brought a recommendation to Cabinet for the heads of a Bill on assisted human reproduction to be developed. That is a very significant development. He has also announced wider AHR consultation, which is also important, as there is much on which to consult in this area. We have the recommendation made by the commission in 2005 for a regulatory authority, which is certainly needed. In this Bill we are dealing with certain aspects of AHR, but we are not dealing with the wider issues; we are dealing with parentage issues. I see the particular point raised as being very relevant to that wider debate and wider consultation. The Department of Health feels very strongly that there are many ethical issues involved. Its policy is single-egg only and it is not addressing the issue of mitochondrial disease. The UK, which has recently legislated on this matter, is the only country to have done so. Many of the issues that arise are more appropriately dealt with in the wider AHR legislation and consultation.

With regard to anonymous donation, I wish to make a number of points. The UN Convention on the Rights of the Child speaks about the importance of the child having access to its own genetic information, and that is the reason we have taken this approach. It clearly is in the interests of the child that it would have access to genetic information. This is best practice internationally and is what other countries have done. They have moved from anonymous donation. Obviously there are still some countries where there is anonymous donation, and there is a history in Ireland of using both anonymous and non-anonymous donation. This Bill makes it clear that we are moving to a situation of best practice in terms of donations and that they will be known. We have gone further and have talked about the type of detail that will have to be kept by the clinics. We are talking about the consent issues and the access of the child, when he or she reaches the age of 18, to that information. All of that is dealt with in the legislation on the basis of the right of the child to access its genetic identity.

With regard to the concerns of some of the clinics, I want to reassure them that there will be a transitional period. Much work remains to be done in terms of working out the detail of this regulation, the consent issues and the various other aspects that are addressed in the Bill. There will be ample opportunity for the clinics to engage, primarily with the Department of Health, on this issue. In fact, the Department of Health will hold a stakeholder meeting in the next few weeks in order to work with the clinics and discuss these issues. I am absolutely clear that the principle outlined in the Bill is the right one in the context of children and going forward with AHR in this country. There are transitional issues that have to be dealt with, and they will be dealt with, but the principle and the policy are right and they are in line with the UN Convention on the Rights of the Child and the discussions in the committee, as well as the recommendations of the Ombudsman for Children. Sweden moved to this system 20 years ago. The international experience is that there can be a reduction in donations initially, but as the legislation becomes known and as people understand it this issue can be dealt with.

If I may return to that point, I will be brief. I very much support and have always supported the concept that in so far as is practical and possible children should be able to trace their origins. That is a fairly basic principle. We have failed abysmally to address that issue adequately in the area of adoption.

This is because of the constitutional issues and difficulties that arose in marrying the rights of children with the right to privacy of individuals who placed children for adoption at a time when no legislation on origin tracing existed. Donation, whether of sperm or eggs, is a complicated and more difficult issue. There is a diversity of different approaches worldwide. Some states have no particular rules at all. The donor may be anonymous or not anonymous. Some states have a mixture of rules with options for anonymous donation or identified donation. A smaller number of states require that the donor's identity be known.

The difficulty in Ireland is that it is an extremely small country. Our population is entirely different from that, for example, of the neighbouring jurisdiction. I presume that members of the committee have received the letter from the Institute of Obstetricians and Gynaecologists. I wish to refer to one particular aspect of it. In its letter, the institute references the circumstances and the difficulties with regard to assisted reproduction in Ireland. I do not know if the Minister knows the number of children born through assisted reproduction by donation. If she does, perhaps the committee should be informed of it. We are also entitled to know what consultation the Minister engaged in with fertility clinics and those members of the medical profession who are engaged daily in assisted reproduction medicine in this country. We should not be enacting provisions and saying that we will have a consultative process later. It was my understanding, when the heads of the original Bill were published, that the Department of Health was first going to engage in a consultative process. This is why these particular provisions were not in the original draft Bill. The Institute of Obstetricians and Gynaecologists states in its letter:

It must be realised that virtually no sperm, egg or embryo donation occurs in Ireland at present using sperm or eggs donated in Ireland. It occurs in a handful of cases, usually involving family members or friends. Virtually all sperm donated and used here is imported sperm, mostly from Denmark, and donor eggs used come mostly from the Ukraine. Denmark allows anonymous or non-anonymous [donation] and the Ukraine is all anonymous. The majority of couples having egg donation in fact travel to Spain or the Czech Republic where donation is anonymous. This practice will undoubtedly continue for many years yet and it will take a slow cultural change for the majority of Irish heterosexual couples to move to open donation. Many people in Ireland do not live [it says] in a tolerant or liberal community. Recent appalling coverage in the media confirms this.

I will not comment on the last bit.

I am someone who emotionally believes, as opposed to intellectually believes, that children should be able to trace their origins. However, first, there is no certainty that individuals living in this State, in circumstances in which they have not done so to date, will, in the future, when donation is non-anonymous, provide the necessary donations to facilitate Irish couples in conceiving where there are fertility issues. Second, it is unenforceable legislation in any case. Until there is a united global approach, or at a minimum a united European approach, in this area, those who wish to conceive by anonymous donation will simply get on the plane and they will conceive. Third, even though all of us instinctively feel that children should be able to trace their origins, the truth and the reality is that the children concerned, and it might sound tough to say this, would not be born or exist in many instances without anonymous donation. It is a question of a balanced and rational approach that needs to be applied.

I am aware of what the UN and other organisations have said. However, we now live in a remarkably different world. One reason for recording information about donors or knowing information, for example, about the background of the biological parent or parents of an adopted child was so that its origins could be traced. The Minister referred to the second reason, which is that individuals would have some knowledge of heritable health difficulties they could suffer as a consequence of the genetic makeup of their biological parents.

It might be helpful to keep to the sections as they arise. This section is about consent to use embryos to further the assisted human reproduction, AHR, procedure only. The other issues with which Deputy Shatter is dealing are further on in the Bill.

Might I finish what I am saying with a final sentence?

Today a person can know much more about his or her health vulnerabilities through genetic testing than he or she would ever know from a brief medical history of his or her biological family up to the time he or she was conceived. Since the discovery of the genome and all of the enormous advances in genetic and hereditary medicine, the idea of having a history from the biological parent which is comprehensive and adequate is now largely irrelevant.

As I understand it, most of those who donate sperm are young men in the 18 to 30 age group. Unless they are required, be they in Ireland, Denmark or the United States, to provide details of their medical history annually, how their vulnerabilities develop and what their medical history is may not be known until they are in their 50s, 60s or 70s. By that time, the world will have substantially moved on for the child who has been born. The practical reality is that we cannot require someone who makes a donation to furnish annual returns as to the state of his or her health.

I have one further point. This discussion illustrates the very broad range of issues in relation to AHR and all of its complexities. We are the first Government to begin to address this issue and we are, I repeat, addressing some aspects of it regarding parentage in this legislation. However, there are many issues which will need much more detailed work and consultation because there are so many aspects to the area. It is primarily a Department of Health area. I think everyone would agree with this.

The issue of identity is far greater than medical history. This is the reason all best practice suggests that all of the information about the donor should be made available to the child at a later stage. The intention is that as much medical history and information as possible would be made available. If we move from anonymous donation to known donation, the donor is making the decision in a different way because he or she is making it with the knowledge that the information is going to be made available when the child is 18 years of age. This, as well as the question of ongoing provision of information, changes the perspective and the decision the person is making.

Many of these issues are related to the broader discussion on AHR. The current policy from the Department of Health is as I have advised. This is why this section of the Bill is drafted as it is.

Before Deputy Shatter comes in again, I remind colleagues that any issues raised here can be raised on Report Stage as well, once they are referenced here.

What consultation was engaged in with fertility clinics and members of the medical profession engaged daily in treating people in this country in the area of assisted reproduction?

Does the Minister know how many children are born annually through assisted reproduction by donation?

We are really stretching the section now.

No matter how the Minister puts it, we are dealing with aspects of assisted reproduction that impact directly on real couples who have to come to terms with the fact that they need assistance in the area of assisted reproduction. For many couples, that is a stressful and emotional period in their lives and we should be careful not to create barriers with unintended consequences.

I appreciate that but we have discussed this for some time. I have to stick with the sections as they are. We should focus on the sections or we will go all over the place. This section concerns consent to the use of embryos in further DAHR procedures and that is the only thing we should be talking about. The information the Deputy wants could probably be ascertained by means of a parliamentary question.

Question put and agreed to.

I move amendment No. 15:

In page 19, to delete line 6.

The proposal is to delete a reference in section 15(2)(b) to the donor of an embryo, whose gamete was used in forming the embryo, being informed that he or she will not be the parent of a child born as a result of the donation. This is because the person will already have been so informed under section 15(1)(a) and the reference is redundant. It is therefore a technical change.

Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."

I intend to bring an amendment to this section on Report Stage to make clear that the donor of an embryo whose gamete was used forming the embryo will be able to seek information under section 32(2) to find out whether a child was born as a result of the donation.

Question put and agreed to.
Section 16 agreed to.
Question proposed: "That section 17 stand part of the Bill."

I intend to introduce an amendment to this section on Report Stage. I propose to delete the word "any" from line 37 on page 19. The adjective "any" is not used to qualify travel costs or medical expenses as provided for in section 17(3)(a) and 17(3)(b), respectively.

The Deputy is not tabling the amendment now but giving notice of his intention to table it on Report Stage.

I think I hear a mobile telephone. Can members please turn their off telephones off? It is not fair on the staff who have to operate the transmission.

Question proposed: "That section 18 stand part of the Bill."

Question put and agreed to.

The Minister may tell me that what I have to say is relevant to a later section. My understanding of the structure of the Bill is that any parent to whom a child has been born by use of assisted reproduction by donor up to the time when the Bill becomes operative, and who wants the child to be regarded as their own, must make a court application to do so. I am talking about the straightforward situation of a husband and wife where the wife has given birth. The original legislation had a structure where there was a presumption of parenthood and if there was a challenge to the parenthood of a child a court application could be made. The effect of that was that, for the vast majority of individuals who had a child through assisted reproduction by donor, the child would be regarded as effectively theirs.

I ask the Minister again if she is aware of the number of children who have been born by assisted reproduction by donor over the past 30 years. What work has been done to assess how many court applications could arise if the only way to establish parentage of a child born where there has been a donated sperm or ova is through the making of a court application? What consideration has been given to the capacity of the courts to cope with that? What consideration has been given to the difficulties that might arise if, as is likely, there are hundreds and possibly thousands of children whose parents will not make this application as the children may already be adults or no longer living in this country? Issues with parentage could arise on the death of a parent where there is a succession dispute. Will the fact that a person did not apply create a difficulty and will there be some measures in the Bill to address the consequences of this?

Perhaps I misunderstand the Bill but it does seem to me to envisage that where there has been a birth through assisted reproduction and a donated sperm or ova there will not be an assumption of parenthood by virtue of the fact that the couple residing together, whether they are married or a same sex couple, will require a court decision. If the Minister wants to provide for a degree of certainty in this matter, the Bill could have both the presumption and, should problems arise later, the facility to apply for a court declaration so that a person could marry the two processes. Removing the presumption leaves individuals vulnerable and will result in a lot of unnecessary court applications being made.

It is true that we are not creating a presumption in the legislation. One of the difficulties in this whole area, which emerges when one begins to examine it, is that there is not much in the way of statistics so it is difficult to give precise numbers. There is no legislation covering the area, and while there are EU regulations and Medical Council guidelines there are poor data because not all the clinics operating in the country provide the information to the relevant European group. We received a lot of representations on this point and it is envisaged that the couple would have an opportunity to deal with the issue retrospectively. We have built a procedure into the legislation whereby the couple can go to court to present the information and have the issue dealt with.

May I respond? It is relevant because there is a connection between the children to whom the sections apply and the process whereby declarations of parentage are sought in the District Court. We sometimes think we have to invent wheels that have long since been invented in other countries. I do not know the exact statistics but as far as I am aware, there have been many thousands conceived and born over the past 30 years as a result of assisted reproduction by donor. Many of them are now adults getting on with their lives and not all are living in Ireland. Members of the committee may not be aware of this but we used to have what were known as "presumptions of paternity". Mothers in our law were always individuals who gave birth but the issue was often who was the father.

There were presumptions of paternity. If a married woman gave birth to a child, the presumption was that her husband was the father. Now we are living in a more complex world of assisted reproduction where children are being conceived by donated ova and sperm. In other jurisdictions they move from presumptions of paternity to presumptions of parentage and the architecture used in the draft Bill provided for presumptions of parentage and was based on international precedence that had worked well in a variety of other countries. It was not a reinvention of a wheel that does not work; it was the transplanting of a wheel into our legislation that has proved to work well.

The Minister has said that presumptions of parentage are taken out of the Bill. In the context of couples who have fertility issues in the context of using donated sperm or ova, or even now, in the context of the issue I raised previously, where one may need a small intervention in a married woman's ova or in a gay woman's ova to correct an inherited difficulty, presumptions of parentage become a lot more important. I do not understand why presumptions of parentage are taken out of the Bill. I genuinely do not understand it. Happily, it has nothing to do with the Department of Health. It is to provide some degree of certainty as to the parentage of children in circumstances where issues might arise. It is a good idea that one not only has the presumption, but that the parents of a child, or the child himself or herself, has the facility to make application to the court to get a declaration of parentage but that was always in the draft Bill.

We currently have in our law provisions that derive from the Status of Children Act 1987 where one can make application to the courts for declarations as to parentage or paternity. I urge the Minister to reintroduce the presumptions on Report Stage. It is a serious issue. I do not think one can say one will only recognise that the people who have cared for a child born through assisted reproduction throughout the child's life are the true parents of the child if they make a court application and get a court declaration. If that invitation is taken up and if presumptions are not in the Bill, there could be thousands of applications taken to our courts which could be snowed under in trying to deal with them, albeit I appreciate they may not be contested applications. The volume of those applications could be enormous. There is also the blindingly obvious issue of should individuals incur legal costs in having to make those applications where there is no inter family dispute as to who the child is and who should be regarded as his or her parents and there is no conflict as to whether the parents consented to the use of assisted reproduction.

We have strayed into sections 19 and 20 which are related.

I promise I will not repeat all of this.

Section 46 of the Status of Children Act 1987 is still in place with all of the presumptions.

To assist-----

I will allow the Deputy back in again.

The legal advice was very clear that we needed a court procedure when assigning parentage retrospectively. That is the reason it is built in in this way. Of course, many of the children who are being spoken about will have been registered as the children of both in an opposite sex couple and benefit from the presumptions of parentage. It is primarily an issue where there is a dispute.

I wish to inform the committee that I plan to make technical amendments to this section on Report Stage. This will include amending the definition of "repealed enactments" within the meaning of the Civil Registration Act 2004.


Question put and agreed to.
Section 19 agreed to.

I move amendment No. 16:

In page 22, line 13, to delete "Subsections (4) to (8)" and substitute "Subsections (5) to (8)".

The purpose of this amendment is to rectify an incorrect cross reference in section 20 which enables a person to apply for a declaration of parentage to the Circuit Court in relation to a child born through a donor assisted human production procedure. The reference should correctly be to the requirements of subsection (5) to (8) of section 19. Reference to subsection (4) would suggest that the application must be based on an affidavit sworn by the applicants. However, this is unnecessary as subsection (4) of section 20 requires the application to be granted on evidence. Furthermore, if one of the parents has since died it may not be possible to have an affidavit made by each of them.

Amendment agreed to.

I move amendment No. 17:

In page 22, line 17, to delete "section 18(1)(d)" and substitute "section 18(1)(c)".

Amendment agreed to.
Section 20, as amended, agreed to.

I move amendment No. 18:

In page 22, line 37, to delete "order" and substitute "declaration".

Question proposed: "That section 22 stand part of the Bill."

Amendment agreed to.
Section 21, as amended, agreed to.

I intend to make technical amendments to this section on Report Stage to ensure there is no doubt that references in the Bill to a donor will, where relevant, apply to the donor of an embryo, whether or not that donor's gamete was used in forming the embryo and apply to a person whose donated gamete was used in forming a subsequently donated embryo, whether or not that person is also the donor of the embryo.


Question put and agreed to.

I move amendment No. 19:

In page 23, lines 28 to 30, to delete all words from and including "(1) A" in line 28 down to and including line 30.

The amendment refers to the provision: "A person shall not perform a DAHR procedure unless the person is - (a) a registered medical practitioner, or (b) a registered nurse." It appears to preclude what is termed DIY DAHR. As the Minister is aware, there are currently many families who have availed of reproduction outside of that parameter. The concern is whether that would impact on their guardianship and parental rights. I appreciate that the DAHR facilities would have a robust method of fully informing the persons involved in terms of consent and ensuring they are kept up to date. Is the Minister ruling out any other means of reproduction outside of DAHR facilities? Is that what this section is about? In terms of those who are currently availing of that facility, how are they impacted? To repeat a phrase used earlier, what are the unintended consequences?

One of the questions I had intended to raise was the one raised by Deputy Mac Lochlainn. There are numbers of people who would use what they describe as traditional methods to effect a pregnancy in circumstances which may not involve intercourse but which may involve a donation, particularly of sperm, which would facilitate somebody becoming pregnant. There is an issue around that and how that is to be regarded under the Bill. Relevant to the preceding section - I did not want to hog matters in any way - is the question I asked earlier and I want to ask it again.

What consultation has been engaged in to date with members of the medical profession engaged in reproductive medicine and the fertility clinics, with regard to the practice of assisted reproduction by donor continuing in this State, should these provisions be introduced? Has the Minister considered what I believe would be a more appropriate and balanced approach, which I again say should be dealt with by the Department of Health and should not be part of this legislation, which is to make provision for assisted reproduction by both anonymous donor and non-anonymous donor, which is, because of the type of difficulties I referenced earlier, a policy that has been adopted in some other states where either is a possibility?

I want to come back to this without repeating everything I said previously. I do not believe that these sections in this Bill should be enacted in the context of maybe we will engage in a consultative process later or the Department of Health will do it. Either there has been a consultative process and the problems that I have described have been addressed, and what is stated here by the Minister disagrees with what is stated by the Institute of Obstetricians and Gynaecologists in the passage I read out, or, if the Minister agrees with what I read out, how is it that we are in this space where this is going ahead with these provisions in it that were not part of the original consultative process and without, as it seems to me, an adequate consultative process having occurred? I think it is only now dawning on members of the medical profession that this is an area of major difficulty.

I do not believe that the majority of couples who currently anticipate requiring assistance from fertility clinics and assisted reproduction would be aware of what we are doing with this Bill on this issue and I do think this aspect of the Bill should be part of a broader consultative process because it was not part of the original consultative process on the Bill. That consultative process would appropriately be dealt with, without upsetting members of this committee, by the health committee because it uniquely requires looking at some medical issues and availabilities. I do not want us, out of the best of idealistic motives, and I am not attributing any ill motives to anyone, by facilitating children to trace their origins, to create the unintended consequences of creating a barrier which up to now does not exist to assisted reproduction by donation in Ireland.

This particular section is concerned with the performance of DAHR procedures. Will the Minister address the two issues that have been raised by the Deputies?

To address the points made by Deputy Mac Lochlainn, the aim of this amendment, which would remove the requirement that a donor assisted human reproduction procedure be carried out only be a registered medical practitioner or a registered nurse, appears to be that the parentage of a child born through a non-clinical procedure such as self-insemination would be recognised under the provisions of this Bill. These provisions have been carefully designed to allow the assignment of parentage in limited and specified circumstances. A requirement that the treatment takes place in a clinical context is an important element of the safeguards included. If wider provision were made for the assignment of parentage other than on the basis of genetic connection, this obviously would have significant consequences for the positions of natural fathers, for example.

There are several difficulties with Deputy Mac Lochlainn's proposal even if consents can be taken in broadly the same way as envisaged in sections 4, 9, and 11. In particular, it will not be possible to have independent verification that the child was born through a donor assisted human reproduction procedure and it will, therefore, not be possible to provide the necessary certificate under section 25(5). That certificate is essential to enable a couple to jointly register as the parents of a donor-conceived child. There would also be significant difficulty in ensuring that the safeguards allowing revocation of consent by a donor can be properly implemented. The case law on the position of a donor in cases of self-insemination is to be found in the Supreme Court judgment in the case of McD v. L. This found that the man concerned was, in law, the child's father and had the same statutory rights to seek guardianship, custody and access as another non-marital father.

The Bill does not attempt to regulate this issue or, for example, to ban it. It has the consequences though in relation to parentage as set out in section 5. However, where all of the adults involved are in agreement and it is in the best interest of the child concerned, there are options available which will allow a non-biological parent to secure a legal relationship with the child. That person could apply for guardianship of the child under section 6(c) of the Guardianship of Infants Act 1964, as inserted by section 45 of the Bill, leaving the parental status of the natural father unaffected. Alternatively, of course, the mother and her partner could jointly adopt the child under the Adoption Act 2010 as it is proposed to be amended by this Bill.

In short, they will have a route to parentage which does not run the risk of undermining the position of natural fathers. I cannot accept the amendment. There is a very clear process and approach laid out in the Bill in relation to the question of the procedure and where it is carried out.

Why are people being excluded if they have engaged in the procurement in an ethical and informed manner, they have signed affidavits, the donor has consented to the treatment, and they understand their parenting roles? If they have the aid of clinicians and they have legal advice outside of the parameters suggested in this proposed legislation, is there any room for flexibility in terms of those who have gone down this course already? There is a sense that, as a result of this legislation, they will have lost the rights that they would have assumed they had or they see themselves as having less equality with parents who have gone down the route of the DAHR clinic process.

I want to get clarification on this. The amendment refers to deleting one particular subsection, which states, "A person shall not perform a DAHR procedure unless the person is a registered medical practitioner or a registered nurse". Does Deputy Mac Lochlainn want to take that out?

There are families who availed of other routes and their concern is that their right to parenthood is not automatically guaranteed by this legislation. They would also argue that they have had the proper clinical and legal advice and have done everything properly in terms of signing affidavits. That is their argument that is being put to us and we want to put it here today and have it thrashed out.

The effect of the Deputy's proposed amendment would be to enable the donor to contract out of parentage without the kind of safeguards and procedures that are in the Bill. The strong legal advice that I have is absolutely against doing that and the case law that I have quoted in relation to the Supreme Court is very clear about the assignation of parentage in that case. The way the Bill is constructed is to ensure that where there is that transition from the donor to parentage, there is a very clear route outlined for all involved so that the rights of everyone are protected, the donor and the parents. What we have done in the Bill is that we have outlined clear routes to parentage but we have the safeguards of where the procedures are taking place and the independent verification of them. That really is the essence of the approach. As far as I am aware, there is no precedent for what the Deputy describes of opting out of the parentage provisions by a donor by way of affidavit. I am not aware of any precedent for that.

This Bill is a beginning and in looking at this Bill, Deputy Shatter was dealing with the parentage aspects in order to have clear procedures in this area regarding what I call the routes to parentage where there was donor-assisted reproduction.

Will the Minister respond to my questions?

They were not specific to the amendment about which we are talking and with which we are dealing at the moment. We might come back to that when we come to the section, if the Deputy does not mind.

I want to try to keep this as tight as possible because this is so complex that we could get lost in details.

Amendment put and declared lost.
Question proposed: "That section 23 stand part of the Bill."

While I do not wish to delay the committee, perhaps the Minister will respond to the questions I asked earlier without my repeating them. If she needs me to repeat them, I am happy to so do.

In that regard, I will make the point that clearly, the submissions were considered by the committee during the public consultation. A number of recommendations arose from the committee's consideration regarding the question of identity. A clear recommendation came from the committee in that regard, of which I took note, as well as from the Ombudsman for Children and the relevant international provisions. That is what primarily has determined the approach regarding the child's right to genetic information. It is very much a case of considering it from the point of view of the best interests of the child. This is what has informed the approach in the Bill. There has been ongoing consultation between the Department of Health and the relevant clinics and their submissions have also been considered.

Unless I am missing something, it appears to me that the Minister is stating that neither she nor her Department has been engaged with the fertility clinics and that they have not considered the difficulty that could arise if we move from anonymous donation to identifying donors. No assessment has been undertaken as to whether a barrier will now be erected when this comes into force and will be placed in the way of couples who wish to conceive in Ireland through assisted reproduction by donor. I apologise but this is too important an issue. This legislation is designed to do something that has been ignored for too long in this country, that is, to provide rules with regard to parentage of children born through assisted reproduction. Unfortunately, the issue of surrogacy effectively has been abandoned to whoever is in government the next time around.

However, one should not do something that has unintended consequences. I accept absolutely that the Minister does not intend these consequences. I accept absolutely that this is a well-intentioned approach to ensure that children can have information with regard to biological parents, that is, the donors. I accept absolutely the intentions behind this are well-intentioned and would not wish anyone to misinterpret what I am saying. I believe the necessary consultation on this matter has not occurred and that it will have unintended consequences. I believe it will greatly stress couples who have personal fertility issues and will create a difficulty for the continued work on existing fertility clinics. Moreover, I do not think it is good enough, for example, to state that while the measure will be enacted, it will not be brought into force instantly but that the Government will then engage in a consultative process. There must be some certainty in this environment for both couples and members of the medical profession as to the direction they are taking over the next period of time.

I wish to give one simple example in this regard. At present, there are couples throughout the country who are having difficulties in conceiving. They will be getting some medical assistance and, inevitably, will be attempting to conceive without assisted reproduction. The next stage may well be that they will attempt to conceive through assisted reproduction by use of their own reproductive material. The third step, if that does not work, may be by donor. In circumstances in which couples may have some reasonable prospect of conceiving by use of their own material without donor, will members, because these provisions are coming down the track, put them in a position where, if they wish to go through assisted reproduction in Ireland, they must forget about that and must conceive rapidly through anonymous donation for fear that in six, 12 or 18 months' time, there simply will not be donors in this country and their only alternative option will be to leave the State? Are we going to put couples in that position?

It is too serious to simply state there will be a consultative process later on and it is unfair. I acknowledge the Minister's amendments in this area are well-intentioned. I am totally familiar with the international legal provisions to which she is making reference and am aware of the recommendation of this committee. However, while I am open to correction by members, I do not think the committee explored whether, if we did what is now proposed, it could have the unintended consequence of bringing to an end for a time assisted reproduction by donor in Ireland. I do not believe any member of this committee envisaged that unintended consequence as a possibility. Moreover, I do not think one should simply ignore what the Institute of Obstetricians and Gynaecologists is saying about this issue. I urge the Minister to rethink the presence of the provisions contained in this section and related sections. I will not come back and repeat this but I urge the Minister to rethink the appropriateness of their inclusion in this Bill with a view to what she states should occur, that is, the engagement of the Department of Health in a consultative process and these elements of this Bill being removed from it on Report Stage. Let the Department of Health get on with its consultative process, which is the area in which it should be dealing and not on the issue of parentage in the context of surrogacy. This is the particular area with which it should be dealing. Let us not create a difficulty or unnecessary worries for people by the enactment of this measure in its current form without understanding the unintended consequences.

Obviously, the intention of Committee Stage is to raise issues like this and then to report back to the Dáil thereafter. No amendments have been tabled in respect of any of these matters on which we can make decisions here. Members can raise and discuss such issues and then report back to the Dáil, by way of amendment, if people wish to raise them there at that time.

Obviously, I understand completely the position of people in Ireland who wish to use donor-assisted reproduction procedures. Each member of the committee has a significant understanding in this regard and obviously wishes to support the very best practice in this area. At this stage of the discussion, it is appropriate for me to state that in respect of the broader regulation of assisted human reproduction, the regulation of clinics and all the details this area involves, which are many, complex and evolving, the appropriate place for such discussions clearly is in the development of the legislation being undertaken by the Department of Health.

As for concerns about the future of donor-assisted human reproduction in Ireland, if one examines the position internationally, when countries moved from anonymous donation to known donation, donor-assisted human reproduction did not stop in those countries. It simply meant that best practice was in place with regard to protecting the interests of the child. While I clearly desire to have a system that is effective and that works, there are a couple of key principles, one of them being a move from anonymous to known donation. I already have spoken about that. As I stated, there is not evidence available from elsewhere that in the longer term, this has been a problem in countries which have moved in this direction. In addition, I have made it clear that a stakeholder meeting is coming up between the Department of Health and the clinics.

I have already spoken with the Minister for Health, Deputy Varadkar, on a transition period. We can examine the length of the transition period so that these issues can be dealt with. The range of concerns the clinics have can be worked through during that transition period, but in terms of the routes to parentage and assigning parentage in this Bill, I have very much taken the approach that it should be known donations rather than anonymous ones.

On a point of information, the committee did address this issue and get submissions on it.

The other point I wish to make is that in September when I published the scheme, all of those issues were also included in it for consultation and information.

Question put and agreed to.

I move amendment No. 20:

In page 25, line 26, to delete “concerned”.

Amendment agreed to.

I move amendment No. 21:

In page 25, between lines 35 and 36, to insert the following:

“(8) A transition period of 12 months, from the date of enactment, shall be allowed for cases where patients have already selected or paid for anonymous sperm donors or have the donation currently in storage in Irish clinics awaiting use in treatment, to complete their treatment cycles.

9) A transition period of 12 months, from the date of enactment, shall be allowed for cases where individuals have already initiated the process of anonymous egg donation, to complete their treatment cycles.

(10) A transition period shall be allowed for cases of treatment involving a DAHR procedure resulting in a sibling child from an anonymous donor for a period of 3 years from the birth of the first child or 3 years from the date of enactment, whichever of the two is longer.”.

There are three separate aspects to what we propose. The first deals with those who have selected or paid for anonymous sperm. We seek that they would be given a further period after the enactment of the legislation to avail of the process on which they have already embarked. It is a very sensitive and difficult process for the hopeful parents involved and the intention is to take account of that. I understand 600 to 700 patients across the country would be prevented from completing their treatment and they are the people addressed in the proposed new section 24(8).

Section 24(9) deals with those who have initiated the process of anonymous egg donation and allows them to complete their treatment cycles. The third subsection deals with having the same donor to produce siblings. We are advised that it would be reasonable to allow three years from the birth of the first child. If the legislation as put forward by the Minister is enacted it would apply to people who engage for the first time in the process, but the intention is to take a compassionate approach to those who have already engaged in the process in recent years in order that they would be allowed to complete the cycle. That is the advice we have been given. We are hopeful the Minister will accept it as it is a very reasonable amendment. It is a compassionate amendment.

The amendment would provide for a transition period to allow couples currently undertaking donor-assisted human reproduction procedures to continue with their treatment and to facilitate an orderly move to the regulatory framework envisaged in Parts 2 and 3 of the Bill. In principle, I broadly agree that such a transitional period has its merits and I stress in that regard certain transitional provisions are already included in section 20(5) and (6). The Deputy's provision in the proposed section 24(10) would to some extent cut across the provisions set out in 20(6) which sets out a three year period from the commencement date to allow the couple to have a sibling using gametes from the same anonymous donor. That is a very specific section to deal with the issue of siblings.

As an alternative to the amendment, I propose to give a clear commitment to the Deputy, together with the Minister for Health, Deputy Varadkar, that Parts 2 and 3 will not be commenced for a minimum period of one year from the date of enactment and that would provide at least the same transition period which would enable couples currently undergoing treatment to continue with that treatment and will give clinics time to prepare for the new regulatory framework. This is a practical and pragmatic administrative solution to which I will give a binding commitment so that we will have a seamless transition to the new regulatory framework. On the basis of my commitment in that regard I ask Deputy Mac Lochlainn not to press the amendment.

I welcome the Minister's commitment. She referred to section 20(5) and (6).

It is section 24. I am sorry. I said section 20.

I will just check the reference.

While Deputy Mac Lochlainn is looking at the Bill perhaps I could let Deputy Shatter contribute and then I will come back to Deputy Mac Lochlainn?

I have found the reference. I just wish to clarify with the Minister that what we propose in section 24(10) is covered by section 24(5) and (6), and that what we seek to achieve has already been achieved in the Bill.

It is a slightly different time but I believe it essentially deals with the point made by Deputy Mac Lochlainn.

I thank the Minister. The Minister has said the proposed measure in section 24(10) is already addressed in the legislation and in terms of the proposed section(8) and (9) provisions that it will be a year before the legislation is enacted to allow the necessary time to complete the process they have begun.

I am actually saying there will be a minimum period of one year. That is an issue that can be further addressed in the consultations with the shareholders which are being held by the Department of Health.

Could everyone speak through the Chair, please, otherwise we will be going all over the place.

My apologies, Chairman. There is no need to press the amendment because the commitment from the Minister is a binding one and it achieves what we seek to do. On that basis, I welcome the Minister's assurances and I will withdraw the amendment in good faith.

Question proposed: "That section 24, as amended, stand part of the Bill."

Amendment, by leave, withdrawn.

First, I will address the specific provision the Minister referenced. It is section 24(5). It provides for a period of three years from the date on which that subsection comes into operation, a gamete to which paragraph (a) of that subsection does not apply may be used, basically, in an assisted human reproduction procedure. Then it goes through a whole series of issues.

The three years is the problem. I am going to ask the Minister to amend that on Report Stage because in circumstances where there is frozen material available to be utilised in assisted reproduction, that could be used over many years. In the context of that, it does not make sense that it is confined to a three-year period. For example, where a couple has an arrangement or where material is available, will it be the case that if one wants to have children, one had better have three in three years?

I do not understand the three-year provision. It creates unnecessary difficulties. Could the Minister clarify if, for example, this were to apply to an embryo, if a number of embryos were created - I understand it will apply - let us assume there are five frozen embryos that a husband and wife can utilise to conceive a child and a donor has been involved with regard to the material required to create the embryos, are we going to say to them, first, any ones that can be utilised to conceive must be done within three years of the enactment of the Bill because the donor was anonymous? That makes no sense. There is no merit in it and I would suggest that should be revisited.

When replying in respect of Deputy Mac Lochlainn's amendment, the Minister indicated that Parts 2 and 3 of the Bill will not be brought into force for a minimum of one year and possibly longer. I am of the view that Part 3 should be removed from the legislation entirely. The difficulty with Part 2 is that it contains provisions relating to identifying the children born through assisted reproduction. I am quite happy that the provisions which should have been left to the Department of Health to deal with in the first instance will not be brought into force for a minimum of one year. I suspect that some of them will never be brought into force in their current state.

There is an urgent need to make specific rules in respect of the area of parentage. Under the enabling provision in the legislation, at section 1(3), the Minister "may appoint by order or orders either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions". Basically, this means that he or she may bring different sections into operation. There is an urgent need to provide clarity with regard to the parentage of children born through assisted reproduction. It is bad enough that we are leaving out children born by means of surrogacy, particularly in the context of the number of court cases which have taken place to date on that issue and the number of parents and children affected. We should not be saying that we are not going to provide clarity for children who are born via assisted reproduction for a minimum of one year and possibly longer.

I do not want the Minister to be in a position in the future where when she wishes to bring certain sections into operation, she will be of the view that she has made a pledge not to do so. I hope that when the legislation is enacted, the provisions which offer clarity regarding parentage will be brought into force. Even though I disagree with the necessity for individuals to be obliged to go before the courts to obtain orders or declarations of parentage which indicate that their parents consensually agreed to use assisted reproduction by donor, we should postpone the possibility of their being able to do so for a minimum or possibly a good deal longer. I ask the Minister to reconsider the blanket promise to the effect that Part 2 will not be brought into force for at least a year. The parentage identity provision should be implemented immediately.

I welcome the fact that Part 3 will not be brought into force for at least one year. It would be preferable if the matter to which it relates were dealt with by the Department of Health. Whatever the position, the three-year provision in section 24(5) must be revisited.

It is important that I make absolutely clear the fact that embryos are permanently exempted. I will be introducing a further provision on Report Stage to clarify the position even further. For constitutional and other reasons - but mainly constitutional ones - embryos are permanently exempted from this provision. Even if the donation is anonymous, it will be permanently exempted. I wish to make that point perfectly clear to the Deputy. Parts 2 and 3 are inextricably linked because they set out in the Bill the whole approach we believe is necessary in the context of identity. They also construct the framework to be put in place in order to ensure clarity in respect of the various routes to parentage.

Essentially, the Minister is now informing us that as a result of the additional provisions introduced into the legislation - which effectively prevent the use of anonymous donation - those provisions that will facilitate identifying and confirming the parentage of the thousands of children born through assisted reproduction will not be brought into operation for a minimum of one year and possibly longer. That is regrettable. I do not believe there was a necessity to mix these issues up in this particular way. I urge the Minister to reconsider what is being done here. If she insists on going down the road of including in the Bill measures which would more properly be dealt with under legislation relating to the Department of Health and which are clearly recognised as creating a difficulty in the context of assisted reproduction by donation, then the issues to which I refer should be separated from the rules relating to parentage. They are of no relevance at all to the thousands of children already born by means of anonymous donation for whom a court procedure is being provided in order that they might definitively identify who are their parents so that their parentage will not be a matter of dispute in the future. It is regrettable that the issues in question have become interwoven in the way I have outlined. I make these points because it has taken us 30 years to get to the point of enacting legislation in this area. I urge the Minister to examine the architecture of the Bill in order that the parentage of children born to date can at least be readily determined, addressed and dealt with and to ensure that matters will not be left in limbo for a minimum of one year and possibly longer.

In developing the provisions contained in the Bill, many different aspects had to be taken into consideration. I received strong and complex legal advice to the effect that the identity and parentage provisions should be dealt with together.

We will note all the points that have been made.

I should point out that I intend to amend the section on Report Stage in order to provide key clarifications. I propose to amend the references in subsections (5) and (6) to consent to a form that is substantially the same as provided for in sections 6 and 14. This is because that is too high a threshold for these particular transitional provisions. Accordingly, I will amend the Bill in order to clarify that the consent in question is to the use of the gamete embryo in a donor-assisted human reproduction procedure. I will also make further provision to clarify that where a couple already have embryos - formed using gametes from one of them and from donor gametes - stored in a clinic, there will be no limitation on the time within which they may use those embryos. This is the point I sought to clarify earlier.

In the context of these matters being delayed for more than a year, I am conscious that so far much of my focus has been on heterosexual couples. Effectively, however, what is proposed means that gay couples who have had children through assisted reproduction will be left in a position whereby, for a continuing and indefinite period, the parentage of their children will not be capable of being definitively addressed. That is most regrettable.

Let us see what happens on Report Stage. It is open to all Deputies to bring forward amendments at that point provided they have highlighted them here in the context of Committee Stage proceedings.

Question put and agreed to.

I move amendment No. 22:

In page 26, line 30, to delete “mother” and substitute “intending mother”.

Amendment agreed to.

I move amendment No. 23:

In page 26, line 32, to delete “mother” and substitute “intending mother”.
Amendment agreed to.
Section 25, as amended, agreed to.

I move amendment No. 24:

In page 27, to delete lines 1 and 2 and substitute the following:

“(b) a record of the revocation, under section 8, 10, 12 or 16, as the case may be, by a person referred to in paragraph (a) of his or her consent.”.

Amendment agreed to.

I move amendment No. 25:

In page 27, line 5, to delete “a” and substitute “the”.

Amendment agreed to.

I move amendment No. 26:

In page 27, line 8, to delete “subsection (1)” and substitute “subsection (2)”.
Amendment agreed to.

I move amendment No. 27:

In page 27, to delete lines 13 and 14 and substitute the following:

“(b) the information referred to in subsection (2) in respect of the donor and the intending parent;”.

Amendment agreed to.

I move amendment No. 28:

In page 27, line 23, to delete “date of birth” and substitute “date and place of birth”.

Amendment agreed to.
Question proposed: "That section 26, as amended, stand part of the Bill."

I intend to amend this section on Report Stage to clarify that the DHAR, donor assisted human reproduction, facility referred to in section 26(1) is that in which the gamete or embryo was donated.

Question put and agreed to.

I move amendment No. 29:

In page 27, line 37, to delete “facility” and substitute “operator”.

Amendment agreed to.
Section 27, as amended, agreed to.
Section 28 agreed to.

I move amendment No. 30:

In page 28, line 20, to delete “place of work or”.

Amendment agreed to.
Section 29, as amended, agreed to.

I move amendment No. 31:

In page 30, line 12, to delete “it” and substitute “him or her”.

Amendment agreed to.

I move amendment No. 32:

In page 30, line 14, to delete “subsection (5)” and substitute “subsection (3)”.

Amendment agreed to.

I move amendment No. 33:

In page 30, line 29, to delete “its” and substitute “his or her”.

Amendment agreed to.
Question proposed: "That section 30, as amended, stand part of the Bill."

I will be putting forward an amendment on Report Stage to amend this section. It will propose to delete lines 27 to 33 on page 30 and insert a provision making an order to prohibit the DAHR facility from performing DAHR procedures for any period up to 12 months and that an operator of a DAHR facility will commit an offence if he or she fails in their obligations to comply with section 26 to the extent of causing the Circuit Court to make an order under section 26(5). It will also provide that a person who commits an offence under this section will be liable, on summary conviction, to a fine not exceeding €3,000 and, on conviction of indictment, to a fine not exceeding €100,000.

The Deputy can submit that amendment for Report Stage.

Question put and agreed to.
Question proposed: "That section 31 stand part of the Bill."

This requires that the Minister for Health is to establish a register and details the information that is to go into it. How is it envisaged this is going to work in practice? This is relevant to a discussion needed on section 32. Is this a register that the Minister for Health will provide? Will some section in the Department operate it?

In 2005 the Commission on Assisted Human Reproduction recommended there should be an independent regulatory authority to deal with all of the issues with DAHR and AHR, assisted human reproduction. This is not in place yet. Regarding the original provisions in the Bill and the developments in the provisions dealing with identity, the appropriate Ministry is the Department of Health. I thank the Department for the work it has done in this because provisions have had to be brought in ahead of the comprehensive legislation needed in this area. There has been detailed contact and consultations with the Department to arrive at this particular architecture in the legislation.

In the first instance, this register would be the responsibility of the Department of Health which has agreed to take it on. As the legislation develops, the work that unit is doing within the Department of Health would be taken over by the authority which will be responsible for AHR. The Department will be responsible for the development of this register. It has much contact with the clinics and it will be working closely with them to establish the range of procedures necessary to ensure this will operate effectively.

It appears from what the Minister is saying that it is never envisaged that this provision will come into force in its current form. Whatever legislation the Department of Health is working on that might get published in 2016, 2017 or 2018 will provide for the creation of a regulatory authority in the area of assisted reproduction fertility clinics. It again illustrates why this aspect of this legislation should be dealt with by the Department of Health and should not be in this Bill. What is becoming clearer as we are having this discussion is that these provisions in this Bill will create a blockage on reforms relating to identifying the parentage of children born through assisted reproduction for heterosexual couples or gay couples across the country and that there is no certainty as to when any of the provisions in Parts 2 or 3 will come into force.

The reason it is important is because the architecture is making the presentation that this is a function that the Minister for Health is personally going to perform or his officials. When we come to sections 32 and 33, we will see that the Minister is then given an adjudicative function which is, because of its nature, completely inappropriate for a Minister to engage in. The adjudicative function will be around determining what information may or may not be given to a donor-conceived child who has achieved the age of 18 years or the parents of a donor-conceived child.

I know these are all interrelated but we will come to them when dealing with the next sections.

The point I am making is that the Bill as drafted means that decisions on this, under section 33, will be made by the Minister for Health. However, we are now being told they will not be made by the Minister for Health but by a regulatory authority that has not yet been created and for which there is no legislation but is currently in the mind of the Minister. I am again making the point that I know what the Minister is doing is well-intentioned. It is another indicator, however, that crucial aspects of the legal architecture still need to be created. I do not understand why we are dealing with these provisions in this Bill.

These are similar to some of the issues I wanted to raise earlier but the Chairman put me off.

However, we have not come to those yet.

No, but we will come to deal with them. The issue is that many of these sections are interrelated. We have now come to the section dealing with the register and there are a number of sections involved and members can speak on these, but I am trying to help members to speak to matters covered within the sections.

We are appreciative but we want to avoid creating difficulties.

I am trying to help members to speak to matters within the sections, if possible, to ensure we have clarity as to where we are going but, I admit, there are overlaps. Does the Minister want to respond? Deputy Ferris can come in again after that.

I believe there is a misunderstanding here. I am not for a moment suggesting that the development of the national donor-conceived person register would wait until there is an independent regulatory authority dealing with donor-assisted human reproduction, DAHR. I am simply making the point that in the longer term, clearly that is envisaged. We need that and that is quite obvious from the commission's original report of 2005. What I am saying is that in discussions with the Department of Health, it has agreed that it will be responsible for the development of the national donor-conceived person register. We do not have an authority at present, so we have to identify where this work is going to be done. There are clearly resource issues as well, which the Cabinet has discussed and of which the Minister, Deputy Varadkar, is well aware, but the Department of Health has accepted that this would be part of its responsibility in terms of the implementation of this Bill. That decision has been made and the Department of Health has agreed to it. There is no question of putting off the implementation of this element of the Bill until there is an authority in place. I simply made the point that in the longer term, clearly these provisions would transition into an authority when it is established.

Question put and agreed to.
Question proposed: "That section 32 stand part of the Bill."

This section deals with access to certain information from the register. Does anybody wish to speak to that?

My point relates to sections 32 to 35, inclusive.

Let us deal with section 32.

Yes, but there are no amendments to these sections and there is a thread running through them. Deputy Shatter has mentioned since early this morning that there are different threads running through sections and I agree with the points he has been making all along, but we are only now coming to deal with the points in these sections.

I have done quite a degree of extensive work on the adoption information and tracing legislation. I believe that instead of a contact register being set up in this area for children who are born as a result of the donor-assisted human reproduction procedure, as in the case of children born naturally, a no-contact veto provision should be provided. As much information as possible should be provided both on the donor side and on the side of the child who was born as a result of the donor-assisted human reproduction procedure. That information should be on a register in as much detail as I would be advocating in terms of the adoption information and tracing legislation, so that either the donor or the child could register. They would have to give this information but they could put in a no-contact veto provision stating that they do not wish to be contacted, rather than an application having to be sent to the Minister or whoever seeking the information and the Minister having to check what is on the file. The Minister mentioned that there would be a stakeholders' meeting after this and she mentioned time and again the role of the Minister for Health, Deputy Varadkar. The Minister for Children and Youth Affairs should certainly be brought into this discussion on this area as well. If the information on the tracing legislation goes through, and I hope it goes through in this Dáil term, and if the Minister takes up my suggestion about including a no-contact veto provision, there would then be a difference between children and adults who are born as a result of the donor-assisted human reproduction procedure and children who are born naturally. I am not sure what is the politically correct way to put that, but that should be re-examined.

Does the Minister wish to respond to the Deputy's points at this stage?

I know Deputy Ferris's deep interest in this issue in regard to the child's right to know in regard to adoption. In developing this legislation, what is very much in our minds is the very difficult issues that have emerged in regard to the situation where children did not have access to identity and genetic information. That has been a central part of our approach to the setting up of provisions to ensure that as much information as possible would be given to the child.

Deputy Ferris, in the first instance, might elaborate on the no-contact veto provision in order that I understand precisely what is meant by that because obviously that would have to be translated into legal terms and I can then respond to the points she has made.

Does Deputy Ferris wish to tease that out a little first?

Yes, I do. That is why I suggested that the Minister for Children and Youth Affairs should also be brought into this conversation when the stakeholders meet. I was working on the adoption information and tracing Bill rather than on this Bill but it applies to this one as well. All possible information about the birth mother or birth parents and the child who was adopted should be on the register. In a case where a child, on reaching a certain age, or a birth mother would contact the register of adoptions seeking information to see if there is corresponding information there, and the information from both sides would be on the register for health and various other reasons, if the birth mother did not want to be contacted by her child at any stage, she could put a no-contact veto provision on the register. Her information, details about herself, her medical history and other information she might want to provide would be on the register, but instead of that person being contacted and advised by the Adoption Authority that their child wants to contact them, and a certain time being allowed for that person to respond, that person, either the adult child or the birth parent, could put on the register that they do not wish to be contacted. I know people have fears about harassment and all of that but we already have legislation in place that covers that. I made quite a long submission to the Minister for Children and Youth Affairs on this issue on behalf of the Labour Party, so it is on the record. I would ask the Minister and her officials to contact the office of the Minister for Children and Youth Affairs to get this information.

An aspect in this respect that might create a difficulty arises under section 33(3).

We will deal with that when we reach that section.

It is all part of it. I believe the provision under that subsection closes the door, as it were, because it states that if the Minister is satisfied-----

I ask the Deputy to defer making that point. When we finish dealing with section 32, we will then move on to section 33.

I want to focus on the points related to section 32 first.

To return to the inclusion of a no-contact veto provision, rather than having both sides looking for information on contact details, I honestly believe we should change our mindset in the adoption information and tracing Bill and in this Bill to put in a no-contact veto provision.

For my own information, is the Deputy suggesting that the names, addresses and other such details would-----

Absolutely, full information.

-----not be available?

No. They would be available on the register because that is the issue. I know we are straying into a different area here-----

No, we are not.

-----but it is well documented that children who are adopted want to know their identity. They want to know information about themselves. If, say, the birth parent or, in this case, the donor gave the information about themselves but did not want to be contacted, they could still give information about their medical background. That is far more optimistic and healthy in terms of the future and it will help many people. That is the basis on which I am proposing this. If we were to put in the wording as it is, it would be completely different from what will be possible in the adoption information and tracing legislation.

The Deputy might consider tabling an amendment on this on Report Stage. Does the Minister want to respond?

The approach in this Bill is that the right to information is the right of the child. The child will not be contacted with the request if he or she has not made a notification that he or she is willing to be contacted, so the donor cannot veto.

That is a vital component of the approach we have taken to consent in the Bill, so that if one is a donor and is making a donation, one will be told that a child has the right to that information at age 18 and one will be asked to give as much information as possible. The range of that information will have to be worked out, but there are fairly accepted international standards. I have a great deal of information on what has happened in other countries when they have moved from anonymous to known donation. We are saying that the donor cannot veto and that is an important part of the approach we have taken to consent. Once the donor is involved, the donor will know there is a register and that the child has access to that information and can be given all the details the clinic has at that point.

Deputy Shatter wants to come in on that. Does Deputy Ferris want to speak first?

I will let Deputy Shatter go ahead.

I want to raise a different issue under section 32. This section provides for two things: for information to be given either to a child over 18 or to the parents of a child under 18 concerning matters recorded in the register. However, it also provides in subsection (2) that the donor of a sperm or ovum, and it will more frequently be sperm than ova because of the way reproductive medicine tends to work and the difficulties people experience, "may request the Minister to provide him or her with information from the Register on the number of persons who have been born as a result of the use in a DAHR procedure of a gamete donated by the donor, and the sex and year of birth of each of them". How will that work in practice? Is the Minister obliged to respond and provide the information? Is there a timeframe within which information should be provided? Is there any basis for the Minister not to provide the information? I am just curious about how that will work in practice. I am open to correction, but it does not seem that there is anything else in the Bill of relevance to that subsection if the Minister refuses, for example, to provide the information, or decides to take five years to make the decision. I may be wrong.

As the Deputy has said, subsection (2) specifies that a donor may ask the Minister to tell him or her how many people were born as a result of donations he or she made and the sex and year of birth of each such person. That is the extent of the information the donor can request. I intend to amend this section on Report Stage to oblige the Minister for Health to comply with a request for information from the national donor-conceived person register, subject to the provisions of sections 33 to 35, inclusive, and to provide that the donor of an embryo who has provided gametes used in that embryo will be able to request information on whether a child has been born as a result of the donation. I hope that clarifies matters.

Question put and agreed to.
Sitting suspended at 11.35 a.m. and resumed at 12.05 p.m.
Question proposed: "That section 33 stand part of the Bill".

I believe Deputy Ferris wished to raise some points under this section. It relates to information in respect of the relevant donor to be provided to a donor-conceived child.

I want to query one point under this section. In subsection (3)(a) it is stated "if satisfied that sufficient reasons exist to withhold the information concerned from the donor-conceived child" and so on. Does that close the door completely on information being given? People get on in years, they change their minds and circumstances can change. Does that provision close the door completely on information being given, or can a request for the information be submitted at a later stage?

Obviously it would be extremely rare and it is difficult to imagine the circumstances but it would probably be where there was a threat, for some reason, to the life of the donor or of the child, or that the child's safety and well-being would be completely prejudiced by releasing the information. If that situation changed, clearly, the request could go in again. Obviously, there could be an appeal by the person as well to the Circuit Court and notice would be given to the Minister. It must be heard otherwise than in public in these particular circumstances because they would be very unusual circumstances. It is a provision included for exceptional circumstances where the child's safety would be prejudiced by releasing the information.

There is a process. If this changes another application can be made.

It is not easily read within the section that it can be reopened. Perhaps it can be reworded to make clear another application can be made at a future time.

I will examine it and see whether a point on the circumstances changing needs to be included. If my advice is it is already understood from the drafting, I will inform the Deputy. I will certainly examine it.

I have concerns as to how this will work in practice and what transparency, if any, there will be in the process. There is obviously an interaction between subsection (2) and subsection (3), in that under subsection (2) the Minister must within 12 weeks from the date on which notice was sent release to the child the information requested unless the relevant donor makes representations to the Minister setting out how it would affect the safety or well-being of the donor or the donor-conceived child or both. It seems to be an issue of safety or well-being. I do not know in legal terms what the phraseology "well-being" means. I have absolutely no idea what it means. The meaning of "safety" is reasonably clear but I do not know about "well-being". In the context of the donor, should the well-being solely relate to the donor or to anyone associated with the donor, such as children born to him by a partner, whose well-being needs to be considered in all of this? I simply do not know the answer to this.

Subsection (3) states the Minister shall consider these representations and if satisfied sufficient reasons exist to withhold the information, may do so. The words "well-being" and "sufficient reasons" are not adequate. As the child will be over 18, will the best interests principle be applicable or some other principle because the child at that point will be an adult? In the context of the adoption legislation and the difficulties around tracing origin and giving information, the paramount consideration when making a decision about revealing information was the welfare of the child. We now use, correctly, the formula "best interests".

These provisions are very unclear. It is not clear whether the Minister must state the reasons he or she makes a decision. There should be an obligation to expressly state what the reasons are. It is not clear procedurally. For example, if the donor objects, will the Minister have in front of him or her an application for information and a donor objection? Will any of the information contained in the objection be furnished to the now adult child? I do not know the answer to this. Will the child have an opportunity to respond? I am not clear on this. Will any fair procedures apply? I do not know.

In the context of an appeal there should be an obligation that the court knows the exact basis on which the Minister has withheld information. Presumably whatever document is furnished to the Minister by the donor will have to go to the court. We cannot have a court process where an adult child makes an application without the adult child knowing what it is he or she will confront. Some form of the objection will have to be given to the child, even if it is redacted to exclude the name and identity of the individual who has raised the objection. I am not sure why we are doing it in the Circuit Court, other than Circuit Court judges often behave better than some of our District Court judges do in giving time to deal with family cases and family issues. This is a serious practical problem but it is another day's issue. There are problems and this has not been fully thought out. There are difficulties with it.

The Minister must make a decision within 12 weeks and release the information. This cannot take place until a child is 18. If the notice goes out to an address of the donor that the donor gave at the time he donated sperm, who is to know whether the donor receives the information? Is there any provision to ensure this will be sent to an up-to-date address? There are issues which need to be teased out. I do not want to go on at any greater length, but I am not sure how well this has been thought out.

I am concerned about how legal costs will be dealt with. Let us say the Minister makes a decision to turn down an application. Subsection (3) states an appeal on notice to the Minister will be held otherwise than in public. Will notice to the Minister make the Minister a defendant in the proceedings? Let us presume I am a 20 year old who wants to obtain this information, and on the basis of something the donor has said, the Minister makes a decision I should not get information. Could I find myself in a Circuit Court application with the Minister represented by senior and junior counsel and either representing myself or being represented by a solicitor? What legal costs will arise in this process? This is an important issue.

The provision also states it will be heard otherwise than in public. This goes completely against the tenor and new ethos of the courts legislation enacted in 2013, under which family law cases or family applications can now be reported but anonymity of the people is preserved. There is a residual right on the court to exclude reportage in particular circumstances. The media have not taken it up in the manner I would have hoped they would, but some of what happens behind what used to be the closed doors of a family court is now getting some fresh air and there is some insight and limited transparency. There is no particular reason the same rule should not apply here. If there are issues around the circumstances in which information will be made available, and the anonymity of the parties needs to be preserved, information on the donor and information on birthdates should not come into the public domain, but the manner in which these applications are dealt with in the family courts and the family Circuit Court, which I presume will deal with it, should not be any more anonymous than any other type of family case. With transparency there is greater public insight into how the courts approach matters and greater insight by Members of the House as to whether laws are not working as anticipated and need to be changed. I query this.

The main point on this provision is it is seen as applying in very exceptional cases. The strong presumption which clearly exists throughout the Bill is in favour of release. I have been advised, in the context of establishing a register such as this, one should allow for exceptional cases and that this should be provided for legally. My legal advice is it can be done in the way I have outlined. It is not the best interest principle, in the sense we are building it in as a basic right for the child to information.

We have done this for the reasons I have already mentioned. In some ways, it is similar, if not absolutely comparable, to the position that applies in immigration, where there is ministerial discretion. While that issue arises frequently, this case would involve exceptional circumstances.

In terms of court, we have stated that the case must be heard otherwise than in public, but my understanding is that this would not preclude some aspects of the case from being made public if the court so decided. I am not sure, so I will check. This provision is to be seen as a strong presumption in favour of release while allowing for exceptional circumstances, for example, where the safety or well-being of the child or the donor could be at risk. The Minister would have to justify his or her decision if it was disputed. For the reasons I have outlined, it is important that we include this provision.

The only issue is that the legislation does not use the words "exceptional circumstances". It uses the term "well-being". I am very conscious of, and I want to come back to this, the desirability where possible of facilitating individuals born through assisted reproduction or through adoption to trace origins, but one has to have a robust and coherent procedure and there has to be a prescription as to how it is going to work. The Minister has not replied as to whether it is envisaged a Minister who turns down an application would effectively be the defendant or the respondent in these applications and would play a role in defending the decision or whether the Circuit Court would be at large to consider it all from the perspective of what has been submitted to the court and then make a decision. I do not know the answer to that. Perhaps that could be clarified.

I do think it is important that there is a reasoned basis for the decision. It is not simply that the Minister decides he or she is not going to release the information and there are no reasons given. There is a need for this section to delineate an obligation to detail the reasons for the decision made.

I am presuming on the other side of this, as we are dealing with this, that if a decision is made by the Minister to make the information available, the donor can appeal to the Circuit Court. Equally, where the Minister rejects the donor's objection, presumably the donor should know the reason why. If it is a one-sided appeal, that would be a very strange procedure. I am particularly concerned in circumstances where the appeal is not going to be dealt with, from what the Minister said, in the initial period when this legislation might be in force by a specialist body. It is going to be dealt with by the Minister or the Minister will make a decision based on whatever recommendation he or she may or may not get from officials in his or her office who are assigned to process these applications.

Let us revert to what the legislation states. Subsection (3) reads:

Where a relevant donor to whom subsection (2) applies makes representations to the Minister in accordance with that subsection, the Minister shall consider those representations and--

(a) if satisfied that sufficient reasons exist to withhold the information concerned from the donor-conceived child, shall refuse the request under subsection (1)...

This is the threshold test. There is ministerial discretion in that decision and a range of factors would be taken into account. The Minister would be the defendant, as in the other example I cited. The donor cannot appeal the decision.

That is clear.

I do not wish to prolong this unnecessarily, but if there is a range of factors to be considered, they should be detailed in the legislation. If the decision is based on "well-being", there is a need to clarify what "sufficient reasons" means or can the Minister simply say that, based on his or her perception of the well-being of the donor or the well-being of the child, he or she will or will not make this decision? I do not think it is appropriate that a mechanism is created which is designed to protect safety or designed to protect "well-being", whatever that means, where if a decision is made not to do something, the party affected by that can appeal, but where a decision is made to do something, the party affected by that cannot appeal.

Can I put it in a political context? Let us assume for a moment, as the Minister said, the bias would be to make information available, but when it comes to making a decision, a Minister cannot come to it with bias. He or she must make an objective decision based on the information furnished to him or her. Of course, one of the difficulties is how the information furnished is validated because this does not involve any form of a hearing process. It seems to be based on some form of written submission. That is a particular difficulty. If it is the type of procedure that is here envisaged - not to be obtuse about it - and a 20 or 25 year old wants information or the donor does not want information provided, the Minister is the person making the decision. It is not an independent body or authority. Does the donor or the 25 year old conceived with the assistance of donor-assisted reproduction mechanisms start knocking on the doors of the constituency clinics of individual Deputies asking them to urge the Minister to make a particular decision or not? If we are going to have this process, it should not be a ministerial process. It should be a separate authority. I do not believe that it should be brought into operation with a Minister dealing with it until the independent authority is dealing with it.

The strong legal advice I have is that when setting up a register like this, one needs to make this exemption based on the type of threshold that I outlined. In light of other provisions in the Bill, we should remember that the donor has consented to the giving up of parentage and the pathway to parentage for the child. The donor has put himself or herself in that situation. One must take this point into account.

I can consider the Deputy's question on the use of the term "well-being". I will take further advice on it and revert to him on Report Stage.

To pick up on a point raised by Deputy Shatter regarding subsection (3)(a), will the Minister provide the reasons she is refusing to give the information to the applicant? If she believes that she does not have to give the reasons, could they be sought from the Department under freedom of information legislation?

No, that is not the intention.

So it is not intended to give the reason for the refusal.

As Deputy Shatter said, if a person goes to court to appeal a decision he or she will do so absolutely blind. The Minister will defend the case with junior or senior counsel, while a 25-year-old will have to go in on their own with no information as to how to argue their case. It seems unfair and ludicrous.

Will the information be made available to the court in those cases?

Yes. They have to apply to the court for the information.

Will the court provide information to the person appealing it?

I will go back to what section 33(2)(b) states:

[T]he Minister shall, 12 weeks from the date on which the notice is sent, release to the donor-conceived child the information requested, unless the relevant donor makes representations to the Minister setting out why the safety or well-being of the relevant donor or the donor-conceived child, or both, requires that the information not be released.

The committee should remember the point I made to the effect that the donor will have already signed consents on parentage at the early stage of the process when they made the donation and agreed that they were absolutely clear about the fact that the rights were being transferred to the parents involved in the procedure.

Nevertheless, the person in question will be going into the Circuit Court to appeal the Minister's refusal of his or her request. The Minister said the information would be made available to the court, but when does the person making the appeal get the information? Do they have to wait until they are in court? That would mean they are at a disadvantage straight away. God forbid, but if the donor was a mass murderer it would not be in the best interest of a person to have this information. I just feel the person making the appeal is completely on the wrong foot. They may be a young person with limited resources to engage a legal team and they will not have the same expertise. As the decision is made in the Department, can the information be released under FOI?

No. The information cannot be released under FOI. The Minister would obviously be obliged to give the information to the courts.

A Minister cannot secretly communicate to a court the things he or she has relied on to make a decision. If an appeal is going to be filed in the Circuit Court there has to be some ground for it. One objects to the original decision for specified reasons. If one does not know the reasoning behind a decision one cannot state the grounds of an appeal. It does not make sense.

Perhaps it needs to be looked at again. We have teased out a lot of issues here to which we may need to return on Report Stage.

I will probably table amendments to this section on Report Stage.

Question put and agreed to.
Question proposed: "That section 34 stand part of the Bill."

I intend to bring an amendment to this section on Report Stage to require the Minister for Health to inform a donor who has requested identifying information in relation to a donor-conceived child from the register of his refusal to release that information.

Question put and agreed to.
Question proposed: "That section 35 stand part of the Bill."

This section relates to information in respect of other persons to be provided to the donor-conceived child.

I intend to bring an amendment to this section on Report Stage to replace the term "donor-conceived sibling" with an alternative term which does not connote a legal relationship between the two donor-conceived children. While they will be conceived from gametes donated by the same donor, they will not legally be siblings.

Question put and agreed to.
Sections 36 to 38, inclusive, agreed to.
Question proposed: "That section 39 stand part of the Bill."

I intend to bring an amendment to this section on Report Stage to create a new section after this section which would deal with the jurisdiction of the District and Circuit Court for the purposes of sections 19, 20, 29, 30 and 33.

I wish to say a few things about Part 3. I mentioned that some statistics were collected by the European Society of Human Reproduction and Embryology. It collates statistics in relation to AHR procedures conducted in European Union countries. The majority of the Irish fertility clinics give information to the ESHRE on a voluntary basis regarding the AHR procedures they conduct, but not all of them do. Because of the lack of legislation and regulation in this area, we cannot be absolutely definitive about the information, and it does not encompass all AHR procedures that are conducted in Ireland. The most recent statistics available are from 2010. Those figures show that there were seven IVF clinics in Ireland, of which six provided data for 2010. In 2009, six out of seven clinics provided information to the ESHRE. The data for 2010 show that there were 1,856 cycles of in vitro fertilisation and 1,320 of intracytoplasmic sperm injection. In 2009 there were 1,987 cycles of IVF and 1,328 cycles of ICSI. It should be noted that each cycle does not necessarily result in a pregnancy or the birth of a child. The numbers relate only to IVF and ICSI and not to other AHR procedures, so we do not have exact figures for the number of children born on foot of AHR procedures in Ireland. These are the most comprehensive figures I could get.

Will the Minister circulate that information to the members of the committee through the clerk?

Question put and agreed to.

I move amendment No. 34:

In page 35, line 14, to delete "(inserted by the Act of 1987)".

Amendment agreed to.

I move amendment No. 35:

"In page 36, line 9, after “child;”,” to insert “and”."

Amendment agreed to.

Amendments Nos. 36 to 43, inclusive, 52 and 54 are related and will be discussed together. Amendment No. 38 is a physical alternative to amendment No. 37 and amendment No. 42 is a physical alternative to amendment No. 41.

I move amendment No. 36:

"In page 36, to delete lines 10 to 18."

Amendment No. 36 deals with the issue of the cohabitation rule put forward by the Minister, whereby a couple has to have been cohabiting for not less than 12 consecutive months, including a period after the birth of the child of not less than three consecutive months. One of the key criticisms of the Bill that is quite widespread is the fact that it does not give automatic guardianship to the father at the time of birth. If there are any reasons someone should not be given automatic guardianship, one assumes they can be dealt with through the courts process.

When an unmarried father registers his name on a birth certificate, he assumes he will be entitled to guardianship on the basis of having his name acknowledged on the birth certificate, but that is not the case. We want to remove the conditionality in this Bill and ensure that a father who has stepped up to the plate is entitled to automatic guardianship.

We talk about teenage pregnancies and young men accepting responsibility as a father and all that comes with it. Maybe the parents do not live together and are separated from the get-go but the father pays maintenance and helps with the upbringing of the child. That is not possible in these circumstances because of the proposed legislation. There is also the issue of fathers who have to work abroad, which is a big issue in Ireland today, and who cannot physically be there. If the couple are not married they cannot comply with the criteria. I ask the Minister to accept the amendment. I ask that we work between now and Report Stage on trying to ensure there is automatic guardianship for the father, and, failing this, that the father is informed from the get-go that having his name on the birth certificate does not entitle him to automatic guardianship, and that he should seek to make a statutory declaration. I will deal later with the issue of a central register for these declarations. My own hope and that of my party is that there would be automatic guardianship. Of course, if the father was not fit to be guardian, that could be dealt with through a court case. We need full equality in parenting. The purpose of this legislation is that it reflects the diverse nature of modern families in Ireland. It also reflects the reality that about one third of children are born to unmarried mothers. If all fathers were to step up to the plate, one third of them would not be given automatic guardianship.

So much more needs to be done in respect of the wider issue of fathers' rights in terms of family law and our courts system, which has families stuck in waiting rooms with other civil cases. There are long queues, which causes distress. It would be a good start if we were to make a clear statement that the mother and father, if they are not married, have equal guardianship rights from the get-go.

I believe Deputy Collins also wished to speak on an amendment in this grouping, amendment No. 52.

I thank the Chairman. I have to introduce a Bill in the Dáil so I am keeping an eye on the monitor.

Our amendment is along similar lines and is about improving the rights of unmarried fathers. We are seeking to ensure that the father of a child is aware of his rights at the time of the registration of the child. The amendment places the onus on the registrar to ensure the father is aware that the registration process is taking place, giving him an opportunity to apply for guardianship under current legislation. The amendment would, for the first time, put the onus on the State to afford the mother and father the opportunity to jointly sign the statutory declaration consenting to the appointment of the father as a joint legal guardian. Oftentimes, unmarried fathers are unaware of the importance of the registration process. We believe there is currently a great imbalance between the rights of the mother and those of the father. In some instances this imbalance is justified, but in many instances it clearly is not. The amendment seeks to address the imbalance.

I have certain sympathies with Deputy Mac Lochlainn's amendment. In a lot of cases, it may not be possible for the mother and father to be living together. There are teenage pregnancies where both parents could be living at home with their own parents, or the father of the child could be married to somebody else. There are difficulties. The woman could already be in receipt of the one-parent family allowance and not allowed to cohabit with her partner. It is very restrictive and does not take into account the diverse society in which we now live.

More than likely I will be tabling an amendment to section 40 on Report Stage regarding the fact that, under the guardianship provisions, even married fathers do not have an equal right to custody of the child if the relationship breaks up. I have to have further discussions with some legal people on this. It has partly to do with how, even in marriage, guardianship does not entail equal rights for both partners.

Let me begin by saying what the Bill does for unmarried fathers. As the committee is well aware, there is at present no provision in law for automatic guardianship for non-marital fathers. The legislation will introduce such a provision for some non-marital fathers. Under it, an unmarried father will automatically become the guardian of a child if he lives with the child's mother for at least 12 consecutive months, including three months after the child's birth. The policy decision was taken not to extend automatic guardianship to all unmarried fathers for a variety of reasons. Some unmarried fathers will not be involved with their children to any extent. However, the unmarried father will be able to make a statutory declaration jointly with the mother saying that he is the guardian of the child. That option remains for an unmarried father, as does the option for him to go to court to be given guardianship.

In the section dealing with the best interests of the child, the Bill specifies that the best interests of the child are the paramount consideration for the courts in such circumstances. I would point out to Deputies that one of a number of specified factors and circumstances that the court must take into account when determining the best interests of the child is the benefit to the child of having an ongoing meaningful relationship with each parent and sufficient contact with them to maintain such a relationship.

The legislation is the first recognition in Irish law of a mechanism for automatic guardianship of a child for a non-marital father.

That is the first point I want to make.

To reply to Deputy Mac Lochlainn, he should be aware that his amendment would delete the newly proposed provision which will make certain fathers automatically the guardians of their children.

Sorry Deputy-----

I will explain that in a moment. I am disappointed with that. That was not our amendment, it was not what we submitted.

We will come back to it shortly. I am suspending the meeting because a vote has been called in the Dáil.

Chairman, are we breaking for lunch?

No. We will come back and break at 1.30 p.m.

Chairman, I have to introduce a Bill in the Dáil. I want to press my amendment but if I am not here, I will reintroduce it on Report Stage.

Before the Deputy leaves I would make the comment that I accept the spirit of the amendment. I will introduce amendments on Report Stage on some of the key points he makes in the amendment.

I am advised the Deputy must nominate a colleague or somebody else to move the amendment here on his behalf in order to be able to re-table it later.

I am happy to do that.

Sitting suspended at 12.55 p.m. and resumed at 1.10 p.m.

The Minister was in possession.

Deputy Mac Lochlainn wanted to make a point about this but just to say that the effect of the deletion would be to maintain the status quo, that the only fathers who are guardians are the child's marital father or a father who makes a statutory declaration with the child's mother appointing him as guardian, or a father who obtains a court order appointing him as guardian under section 6A of the 1964 Act.

I am very conscious of the desire to improve the position of other natural fathers, and I am investigating ways of achieving that. However, this deletion will simply mean that a substantial number of non-marital fathers will not now benefit from the new provision which would enable them to become guardians automatically without taking any further action.

Are we also dealing with Deputy Collins' amendment?

As I said at the outset, there was a good deal of discussion on this during the course of the Second Stage debate in the Dáil. Subject to some particular comments I want to make, I can accept the spirit of the amendment. These comments are, first, that the information on guardianship proposed in the draft subsection (5)(c) is specific in regard to a court application under the Guardianship of Infants Act 1964. It may put registrars in a difficult position if they are required to give information to new parents on possible adversarial processes.

I am keen that parents have information, but the information which should be provided is confined to the fact that the father is not a guardian unless he takes further steps. I also intend to provide for registrars to have the power to witness statutory declarations. They are not in a meaningful position to carry out any form of welfare or best interest test. Further work will be necessary before establishing a register or repository on the basis of guardianship declarations being made in a variety of places. On the basis of the commitment I am making to bring forward a Report Stage amendment, I ask the Deputy not to press the amendment.

The amendment we submitted was "after line 10, to delete section 40(b) in its entirety" so, unfortunately, what has been presented as our amendment is not the one we submitted. That is unfortunate. We do not propose to remove section 40(a) but rather section 40(b). That is out of our control but we will resubmit the amendment and ensure it is worded properly the next time. As we are speaking to amendment No. 39, I will be moving it on behalf of the relevant Deputy. I would like to see it implemented. The Minister has not outlined why she believes automatic guardianship should not be given. Once a father has his name on a birth certificate, why can that automatic guardianship not be given?

I welcome the legislation and the new provisions in it, and I have listened to the comments. As a Deputy, I meet many fathers who do not get any or adequate access to their children, particularly if a couple does not get on. The people may be separated, for example, and the issue is that the parents do not regularly see the children. I know courts can make decisions in this regard. Is there any implicit recognition in this legislation of a right to see the child? I know there are legal issues with the likes of barring orders and so on. One of the commonest complaints I hear from fathers is that they have nowhere to bring a child even if they have access. Poorer families in particular might have to walk in Drogheda or Dundalk on a Saturday or Sunday or go to the back of a pub or inappropriate places. These people want to bond with children but cannot do so in such places. I recently visited the Tusla centre in Drogheda and there is a special room for provision. Could the State do more to assist parents in such difficult positions? Often, if these men are not living at home, they are living in very poor accommodation or apartment complexes. They are often in very difficult financial circumstances. It is an issue for a number of my constituents.

We are on the next section but we can allow that as a general contribution.

What was striking about the Second Stage debate was that people spoke about automatic guardianship involving the father, and almost everybody who talked about it also spoke about exceptional circumstances in which a mother could find herself with respect to the father's role. For example, people mentioned cases of domestic violence and many called for exceptions to be made if the pregnancy was a result of rape. A variety of circumstances were cited by Deputies who spoke on the Bill. Many family law practitioners would have a particular concern about the issue. Nevertheless, it is a very real area for consideration. The approach we have taken in the Bill is to link the automatic right to cohabitation for a specific period. It is the first time this is being dealt with in legislation.

For non-married fathers who go to court seeking guardianship, the vast majority of such requests are granted but a percentage are not granted where the courts do not consider it in the best interests of the child to have the father as a guardian. That is because conferring guardianship has specific effects. If a father is not on the scene or involved, his failure to exercise guardianship responsibilities has real consequences for the child and mother. The mother would have to apply to court to dispense with the consent of the father to the issue of a passport, with related implications. It would be extremely difficult to place the child for adoption or for the mother to adopt the child jointly with a new partner if the father did not consent to the adoption. However, all of these issues would in such a context be very carefully considered with respect to the best interests of the child. Other considerations would also apply.

I will go through some other concerns in detail. If a mother decided to relocate with a child, her legal position and authority to do so would be unclear as a guardian has the right of custody within the meaning of the Hague Convention on international child abduction or the Brussels II bis regulation. These are very vital protections where both parents are involved with the child's life, but they could be problematic for a mother and child if a father with no involvement with the child had an effective veto. These are real and potentially serious implications of automatic guardianship, and that is not to speak of some of the other issues I discussed.

I am therefore proposing an amendment. There is a real problem in that many fathers, especially young fathers, are not aware that they can sign a statutory declaration in front of a peace commissioner or a commissioner for oaths that would give them guardianship rights. There is a real information deficit with this issue, and that is a clear opinion of all the non-governmental organisations working in the area and speaking about it. A number of Deputies have raised the point and argued that it should be easier and more straightforward for fathers in that position to know their rights and be able to exercise and vindicate those rights through a statutory declaration. That relates to cases where a mother does not object, because where there is conflict, there would be a court hearing.

Perhaps I can give a further indication of the Report Stage amendment I intend to introduce, as it may be helpful to the discussion. I have gone into some detail already. The purpose of this Report Stage amendment relating to guardianship is to enable registers to witness a statutory declaration by which the father can be appointed a guardian at a time when a couple is registering a child's birth or within a short period afterwards. Treoir and a number of other organisations made submissions in this regard. This statutory declaration mechanism is easy, straightforward and inexpensive. The principal difficulty for many non-marital parents is that most are not aware of the existence of this mechanism. This amendment would ensure that a couple would have necessary information and can make an informed choice on whether the father should be a guardian. Subject to legal advice, it is possible that the Report Stage amendment will amend the Civil Registration Act 2004.

I also plan, and will say so on Report Stage, that I will review this issue in two years time, at which time it will be possible to consider the impact of the proposals in this Bill to make it easier for non-marital fathers to complete a statutory declaration. We can see what the result of that has been and whether we are seeing the kind of increases we would expect to see. Many people who have looked at this area feel that the information and the access to the statutory declaration is one of the big barriers. I believe that with the combination of initiatives in this Bill, we are moving forward substantially in regard to the rights of non-marital fathers.

I draw the Minister's attention to the fact that her amendments Nos. 38 and 42 are part of this grouping if she wishes to discuss them.

She has an opportunity to comment now because once the amendment is put, we cannot go back on them again.

Amendment No. 38 is a minor drafting revision and I wish to move amendment No. 42.

The Minister can move it when we reach it but we are discussing them at this stage.

The Minister has suggested that she will not concede on the cohabitants rule in terms of guardianship. However, she will entitle somebody who has not complied with that criteria, and is not going to, the opportunity to make a statutory declaration at the time of the birth certificate. Does one provision not contradict the other? Have I missed something?

That is right. I am not removing the cohabitation requirement. I am moving the-----

That is not the question I asked. Perhaps I have not phrased my question properly. If the Minister is saying she will bring in amendments that will allow for a father, at the time of the name going on a birth certificate, also to make a statutory declaration which would obviously, I assume, give him guardianship rights, why would one also need a cohabitants rule along with that? Have I missed something? Why is that provision necessary?

One is automatic and the other is not. Is that right?

Does one provision not overrule the other?

It is in parallel. Once one has the statutory declaration, clearly one has the guardianship rights. There will be fathers who will not do so at that point. If they do not, then the other provisions continue to apply. The statutory declaration gives one the guardianship rights.

I can see what the Deputy is trying to say. There is a provision at the moment that the father can be granted guardianship rights by the mother. What the Minister is suggesting, I think, is that guardianship will be made known more clearly and explicitly at the time of the birth of the child. If that happens, then the cohabitation provision will not apply because the father will be a guardian by virtue of the declaration.

The Minister is saying what happens when a father steps up to the plate and is there, although the couple might not be living together, and is putting his name on the birth certificate. It is at that point that the registrar will inform both parents that they can choose to avail of a declaration of guardianship. If that happens, then the cohabitancy rule does not apply because one has made a declaration at that point. If, for whatever reason, a father has not done so, then the cohabitants rule applies.

I assume that the Minister intends to hold a public information campaign. I presume there will be a visible poster for everyone to see when they go into the registry office, as well as that a person in the registry will be obliged to say to people when registering that they should be aware that a father does not have automatic guardianship and if they wish to have it, he can make a declaration there and then. The Minister has suggested that is way and that if a person has not done so at that point, this provision would kick in then.

To clarify, that is precisely the situation. Quite a number of Deputies and organisations working in this area have spoken about the need for better information to be available to fathers, for example, in maternity hospitals and when the mother is registering the birth, and that there should be information leaflets available advertising such information and very obvious things. There is clearly an information deficit in this area. The provisions are obviously responding to those suggestions.

I have also had some contact with the Department of Social Protection which is supportive of this provision. The provision is not by any means saying there is automatic guardianship for non-marital fathers. It simply takes an initiative in this area that will ensure that more fathers would be aware of the statutory declaration. It also makes it easier for them at the point where they could do so, when the family or mother and father are registering the birth of the child.

There is a legal requirement now that the father's name goes on the birth certificate. If the parents have not been cohabiting, for whatever reason as we outlined earlier, can the mother of the child object to the father's application for statutory guardianship? Is there any way to stop him? If he wants to sign a statutory guardianship declaration to say he wants to be a guardian of his child, can the mother of the child object to him signing such a declaration?

One cannot make a statutory declaration in the situation of a non-marital father unless the mother agrees.

What happens if the mother does not agree for whatever reason? There are many reasons.

That is precisely what happens at present. The father must go to court where a decision is made. This Bill is based on the best interests of the child and a range of considerations apply, including the ongoing relationship that the child would have with both parents. My understanding is that the vast majority of guardianships in those circumstances are granted in the courts but not all are. Clearly, there are cases where the court considers that it is not in the best interest of the child to go in that direction.

I find it difficult to accept this. If a couple has cohabited for 12 months of which three months can be after the birth of the child, which means nine months beforehand, the father of the child gets automatic guardianship. I have serious doubts about that provision although I do not oppose it. I have serious doubts as to why 12 months' residency or cohabiting qualifies somebody to be the automatic guardian of the child. I am reminded of the old saying, if you want to know me then come and live with me. The mother of the child may have better and more reasons, after that period, for denying guardianship than when the child is born and the father applies. Does the Minister understand what I am saying?

This is the kernel of the issue. There are very different views on this point. Some jurisdictions have automatic guardianship for non-marital fathers while others do not. Other jurisdictions use a variety of criteria or mechanisms. The situation varies quite substantially. We had this debate in the Dáil where some people asked, as Deputy Ferris has done so, about those circumstances where the involvement of the father may not be in the best interest of the child and where that only emerges after a certain period. Obviously in the legislation we are taking important steps.

Given that one third of children are born outside of marriage in this country, this position affects many fathers. We are saying in the Bill that it should not automatic but that where a father is living with the mother three months after the birth and these circumstances have been met, the father then would have automatic guardianship. As we can see, people will also say the stipulated time is not long enough. At what point does one decide that the father could have automatic guardianship? Does one say one year, two years, three years or does one just say it is an inherent right that a father should have? That is the issue we are grappling with here and there are very different views on the matter.

I agree that it is difficult.

Even though this cohabitation rule is being proposed and despite the fact that the Minister states it will entitle the father to automatic guardianship, if he is the perpetrator of domestic abuse or a criminal, then it will not be automatic and the mother of the child will be in a position to go to court and have his right to guardianship quashed. That is why I do not believe this provision to be necessary. At its core, this is a matter of equality. Like many others, I am arguing that the mother and father should begin as equal guardians to the child. If there is a good reason the mother objects to the father being a guardian, then she should take her case to the courts. If she is found to be in the right, then I presume the court will not grant guardianship to the father. The difficulty now is that the father must ask permission from the mother to be granted his equal rights. That is not fair. The cohabitation rule is a distraction. The core issue is that the father must approach the mother to be granted equality. If she agrees, then all will be well. If she does not, however, he will be obliged to take her to court.

I feel very strongly about this matter. As public representatives, we have all been obliged to deal with fathers who have needed to have recourse to the courts. I accept that there are terrible fathers and men who have no right to claim the title "father". However, there are also very good fathers who have been exasperated as a result of their need to undergo the legal process just to exercise their right to be parents to their children. If we get this right, we will send a clear signal to the effect that we are of the view that mothers and fathers are equal from the outset. If an issue arises, then the mother, or indeed the father, will be able to take a case before the courts to state that the other person involved should not have guardianship rights. The courts, which are independent, should decide these issues. I ask the Minister to reconsider the position on the cohabitation rule and examine the possibility of granting automatic guardianship from the outset.

I am conscious of the time and we stated earlier that we would suspend proceedings at 1.30 p.m. Perhaps we will dispose of this amendment and the section before taking a break. The next section relates to the courts. We have teased out the matters to which the amendment relates to quite a degree at this stage. Do members want to discuss the issues involved further?

I just wish to make the point that I plan to bring forward an amendment on Report Stage to include in this section the definition of "enforcement orders" used in the new sections 18A to 18D, inclusive, which section 56 inserts into the 1964 Act.

Does Deputy Mac Lochlainn intend to press the amendment?

Yes. I apologise about the wording. I have already clarified that the wording, as presented, is not that which we submitted. I intend to press the amendment. I was inclined to call a vote on the matter but the wording precludes me from doing so because it does not reflect what I was seeking to achieve.

How stands the amendment?

On reflection, and through no fault of our office, the wording does not reflect what we were seeking to achieve. As a result, I will not press the amendment. I will resubmit it in a different form on Report Stage.

Amendment, by leave, withdrawn.

I wish to give the Chairman notice that I intend to raise a range of issues in respect of the section.

If that is the case, we will suspend proceedings for lunch.

Sitting suspended at 1.35 p.m. and resumed at 2.15 p.m.
Question proposed: "That section 40, as amended, stand part of the Bill."

I want to raise some matters. This seems to be the first section dealing with the Guardianship of Infants Act 1964 in the Bill and it seems to also be partially a definitions section. I want to just repeat something that I said in the Dáil on Second Stage. I believe it is good legislative practice that we try to keep what is a fairly complex area as legislatively clear as possible. I really do not understand why the Bill does not simply repeal all of the relevant provisions in the Guardianship of Infants Act 1964 and the Status of Children Act 1987 that relate to guardianship and custody of children and do what the original draft Bill did, which was incorporate all relevant provisions in the one piece of legislation. I think that, when we are dealing with section 40, we see how additional complexities arise as a consequence of that because of the multiple amendments having to be made to the 1964 Act. I still do not understand why that change has been effected. The only reason I heard mentioned was in case we left something important out that was in the 1964 Act - if there is something important in the 1964 Act that needs to be retained, it could have all been retained. If we adopted this approach to legislation, which is epitomised by section 40, we would never have enacted the Adoption Act 2010 and would have just done a series of amendments to all of the preceding adoption legislation. We would not have enacted the Freedom of Information Act 2014, which replaces all of the previous legislation in that area. I just do not understand why we have made this more complex than it needs be.

In relation to the specifics of the section, in so far as it is amending the 1964 Act, there are, and have been since 1964, definition deficiencies in the 1964 Act where concepts are not adequately defined. The Law Reform Commission, when it was looking at this area of the law, recommended certain changes. A part of the changes it recommended was a change of terminology so that we replicated here the terminology that they have adopted in England. That is not appropriate and certainly was not appropriate after the constitutional referendum relating to children. It is right that we retain the terminology we have, but the issues in particular that were dealt with in some of the draft legislation which are excluded - I do not understand why they are excluded - are important definitions of concepts people think they are familiar with but which are normally defined in similar legislation in nearly all the other common law jurisdictions with which I am familiar. I want to raise these particular definitions and suggest they be incorporated by the Minister on Report Stage.

The first is the concept of access. We were discussing access previously. There was a definition of "access" in the measure that this committee previously looked at, which said, "'access', in relation to a child, includes the right of the child to maintain personal relations and contact with a parent and relatives or other person with a bona fide interest in the child on a regular basis except where such access is not in the best interests of the child". What that did by way of a definition which could be incorporated into section 40 as an amendment of the 1964 Act was make it clear that access was the right of a child as opposed to simply the privilege of a parent or the entitlement or right of a parent. There have been court decisions which have described "access" as the right of a child. The definition recognised that the access or contact that a child had not only included the right of the child to maintain personal relations and contact with the parent, but also with relations. I think that is important because, when relationships collapse, all of us as public representatives learn of circumstances where, in the marital war or parental war that follows people's relationships collapsing, important people with whom a child has contact are often cut off, like grandparents, aunts, uncles, cousins and others within the family. Later provisions of the legislation allow for relations to make applications for access, but there is a need to define what we mean by "access". That is a modern definition which reflects the approach taken in a series of other countries.

We also do not have a definition of "custody". Everyone thinks he or she knows what the concept of custody means. One of the great areas of difficulty when relationships break down is, if one parent is awarded custody, the other parent thinks he or she has no further involvement or engagement with his or her children. While the concepts of custody and guardianship have been used for some centuries, they are not adequately defined in Irish law. There is a need to define the concept of custody and be clear on what we mean by it. We reference it in the legislation; it is not defined. The definition that was previously before this committee stated as follows: "'custody', in relation to a child, includes the provision of day-to-day care of a child, to protect and supervise the child and the right to provide a residence for the child and may include providing such care for one or more specified days or parts of days". On some occasions, parents have joint custody. They share the custody of a child and a child can live with one parent for a period of the week and the other parent for another period of the week. We do not have a definition. Unless I am missing something, it seems that the definition has been dropped out of the legislation. Again, I do not understand why.

Turning to the final issue that I want to mention in this context, I cannot think of where else I can reference it other than in the conversation that we might have on section 41, so if the Chairman wants to pull me up when I-----

I do. We will reach section 41 shortly.

This is a definitional issue around what the concept of guardianship means.

We will get to that in a minute.

I am quite happy to discuss it under section 41.

If the Deputy speaks then, that will be fine. Does the Minister wish to respond to any of the issues raised about the definitions of "custody" and "access"?

Yes. We took a different approach to the development of the legislation. We decided that, instead of repealing the guardianship Act, we would amend it in this Bill in the way that has been outlined. That different approach had implications for other sections of the Bill and some of these definitions. My legal advice was that no new definition was required or advisable in our approach to the Bill.

This is a contentious area in the courts. A number of broader points were made by Deputies in the course of the Second Stage debate. In light of the new initiatives contained in the Bill, many Deputies made the point that how children and families were dealt with in the court system needed to be improved and court welfare services for parents needed to be developed.

I take the Deputy's point on the definitions of "access" and "custody". The decision to amend rather than repeal was taken. This is a large Bill and has involved a significant amount of work. I wish to take this opportunity to thank the Attorney General and all of her staff who have been working on it for months on end to address the range of issues it encompasses. While I take the Deputy's suggestion about including further definitions, it was decided to amend rather than repeal, and my advice was that the concepts of access and custody were well understood in the context of the 1964 Act.

With due respect, to say that makes no sense whatsoever. I am sorry to phrase it that way. If the Guardianship of Infants Act 1964 remained exactly as it was with no amendments, there would still be a need for us to finally have a definition of these concepts. They are defined worldwide in legislation dealing with the custody, care and upbringing of children. In my view, the entire Act should have been repealed. On occasion I have had to wrestle with the approach of the Attorney General's office to particular pieces of legislation. The drafting of the Bill would have been simpler if the Minister had not travelled the route she has taken, yet even travelling that route, there is no logic in the suggestion that these concepts should remain undefined.

The concept of access, as the courts have generally perceived it, has largely been applicable to the relationship between a child and parents. This legislation does something very important in recognising the role that relations can play in a child's life. There is a need for us to provide a modern definition of access, as opposed to allowing it to remain a concept that is referenced in court judgments in various formats and differing half-definitions. Some judges have tried to define access as something that is the right of a child. It makes no sense that in 2015 we are enacting a piece of legislation of this nature while the basic concepts of access and custody are not defined.

There also is a need to define them because there is enormous confusion on the part of parents as to what the concept of custody means. I am going to talk about guardianship later on. Once one parent concedes custody to the other in a court or mediation context, perhaps in circumstances in which it may not be practical for him or her to look after the child on a day-to-day basis, he or she is conceding a whole range of other things on which it is important to be consulted, such as the child's health, education, cultural engagement or religious upbringing. The parent who obtains custody believes that, because he or she has custody, he or she can exclude the other parent from engagement on such issues. In order to reduce the level of family embattlement that takes place when relationships break down, there is a great advantage in having a clear definition of custody, such that people understand it to mean that the child is physically being cared for by one parent, without meaning that that parent should not consult with the other parent, who has a good relationship with the child, on some of the fundamental decisions to be made about the child's life.

One of the difficulties have I found as a practising lawyer, particularly in the District Court, is that judges often do not themselves distinguish between guardianship and custody, and are confused about it. To get over the sense some parents have that they are to be disengaged from their child's life entirely when the other parent is granted custody, there are occasions when judges make orders of joint custody that do not involve the child living part of the time with one parent and part of the time with the other. They make an order of joint custody and detail that the child should primarily reside with one of the parents. That is just a custody order. Even the Judiciary can be confused as to what on earth custody means, particularly at the lower levels. I have seen it on multiple occasions in 30 years of practice as a family lawyer. It is extraordinary how this is a continuing and prevailing difficulty.

I ask the Minister to reconsider this on Report Stage, because it makes no sense. I do not know what advice could be legitimately given to suggest, even given the somewhat complex structure that has now been adopted, that it would do some damage to include the definitions I have suggested or some reasonable variant of them. That is an issue on which the Attorney General's office should be further engaged. I presume we are stuck with the structure that is here, but I would dearly love to know why we are preserving a piece of legislation that contains some provisions - I do not have the 1964 Act with me, but from memory I think they are in Part III - that have been redundant for decades. Why are we not providing a modern legal framework in its entirety? We should have one piece of legislation that people can go to - namely, the legislation dealing with guardianship, custody of and access to children - rather than having to stray through myriad different pieces of legislation, with sections of one Act amending another Act that amends another Act. It is bad legislative practice and it is also unfair to assume that when we legislate this way, everyone who practises in the area, including the Judiciary, will necessarily find their way through the legislative maze that is created.

When we are reporting back to the Dáil, all of these issues can be taken into account. Colleagues can also put forward amendments on Report Stage.

In terms of the legal advice that has been made available to me and the work that has been done on this over the last weeks and months, I am advised that the direction in which we are going in the Bill allows the widespread understanding of these terms to be retained. The new provisions allow for flexibility to expand the understanding of these concepts. The decision to approach it in this way must be taken in the context of some of the other provisions in the Bill that are helpful in terms of the types of decision the Deputy is saying have to be taken in court. I understand and recognise that they are very complex decisions, but if we look at the best interests provision in Part 5 of the Bill----

We will move on to that in a minute.

I just want to make the point that clearly, the criteria the courts now have to guide them - and it is not an exhaustive list - include the types of factors and circumstances one would take into account when making decisions about access and custody. For example, the benefit to the-----

Before we stray into section 41, I would like to dispose of section 40, and then we can talk about section 41 in its entirety.

I have one or two other points to make in response to the points that were raised.

What I have just said is a key point, because if we combine that and see the provisions that are there in terms of the range of factors that need to be taken into account when deciding on the best interests of the child, clearly they would be very helpful in terms of making decisions on access and custody. That is the point about the best interests provision. The Deputy would be very familiar with the fact that on occasion, repeals of entire Acts have resulted in inadvertent deletion of provisions it was intended to retain. Clearly, a factor in preparing for this legislation was that the 1964 Act, as everybody on this committee knows, is embedded in Irish law and is in daily use in the courts. While preparing this Bill, we decided this was the way to go at this point, given a whole range of considerations.

If I may give a one-line response to that, the references that were made to what comprises the best interests of the child were substantially taken from legislation in Australia and Canada, where it works particularly well and where the legislation is very up-to-date. In both of those jurisdictions, as in England, these concepts of access and custody are defined and are complementary to each other, as opposed to getting in the way of one another.

We have made that point very well. Perhaps we can put forward definitions to be considered on Report Stage.

Question put and agreed to.
Question proposed: "That section 41 stand part of the Bill."

Deputy Shatter has indicated that he would like to make some points on section 41, to which no amendments have been proposed. This section provides for the best interests of child to be paramount.

This is a good and important section. I want to return to the issue of guardianship as well. It is important that we have an extended description of the obligations - perhaps "responsibilities" is a better word - and rights of guardians. I will not detain the committee by reciting what was in head 36 of the draft Bill that this committee considered last year. That particular provision reflected global best practice in jurisdictions that have the most up-to-date legislation dealing with children.

It is particularly important in the context of relationships that have broken down to specify the rights and obligations of parents and to ensure the custodial parent involves the other parent in fundamental issues relating to children. I made a point in the Dáil about what happens in a small number of instances when relationships break down. This does not apply to the majority of parents who behave responsibly when relationships break down by trying to protect their children from difficulties. Most custodial parents try to maintain a good relationship with the non-custodial parent where it is in the best interests of the children to do so, but I am afraid that some parents do not behave in this manner. Some parents go to war with each other. Mothers create problems for fathers, or fathers create problems for mothers. Some parents simply try to destroy the relationship between the child and the estranged parent.

The provision in the draft Bill to which I have referred was an important one. It stated:

In exercising or continuing to exercise the duties, powers, rights and responsibilities of a guardian in relation to a child, a guardian of the child shall act jointly (in particular by consulting wherever practicable with the aim of securing agreement) with any other guardian of the child.

Such a provision has not been included in the Bill before the committee. The draft version of the Bill further provided:

Except where otherwise stated by way of court order, each guardian is entitled –

(a) to be informed of and consulted about and to make all significant decisions affecting the child in the exercise of the powers, rights and responsibilities of guardianship derived in subhead (5), and

(b) to have sufficient contact with the child to exercise those powers, rights and responsibilities.

Under the draft Bill, each guardian would have a responsibility to "nurture the child’s physical, psychological, emotional, intellectual, social and other personal development " and to "ensure the child is properly maintained and supported and is provided with necessary medical care, food, clothing, accommodation and access to appropriate education".

A range of matters were detailed in head 36 and the subheads that were published. I emphasise that these measures were not reinventing the wheel. They were based on best practice in other jurisdictions. It was considered not only that they improved the law and provided clarity, but also that they helped to create an ethos in which the courts would encourage co-operation between estranged parents in the interests of children. Those provisions represent a statutory roadmap, to some extent, in so far as they could very well be included in a very reasonable leaflet indicating to estranged parents that each of them has particular rights and responsibilities and that they need to co-operate in the best interests of their children by approaching matters as detailed. I presume I will be told that these provisions are not being included in this legislation because they were not in the 1964 Act. I am afraid that does not make any sense. If we were simply trying to keep the 1964 Act in place, some of the other changes that we are happily implementing would not be part of the legislation.

I am raising this not simply in my capacity as a politician but as someone who practised in the area of family law for over 30 years. I used to spend large parts of my time trying to persuade people who wanted to go to war with each other to deal with each other in a more civilised way in the best interests of their children. There were occasions when it was extraordinarily difficult for them to gain that insight. This legislation envisages that parents who are not co-operating might avail of parental counselling services or certain other support services. In that context, it would be extremely useful for the obligations of parents, as well as their rights, to be set out in a straightforward, easily understandable linguistic framework that would be part and parcel of this legislation.

It might be helpful to the discussion to point out that section 45 of this Bill, which inserts a new section 6C into the 1964 Act, is linked to the points that have just been made. It gives the court the power to appoint a person other than the parent as a guardian. It spells out in detail the rights and responsibilities of the guardian. The proposed new section 6C(11) of the 1964 Act provides that those rights and responsibilities are to:

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

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

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

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

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

(f) place the child for adoption.

These key rights are clearly spelled out in the legislation. We have dealt with the point that guardians must act jointly. That does not always mean consulting on all decisions, especially those which are urgent. If we were to draft the legislation in a different way - a stronger way - it could cast into doubt the right of the guardian to make any decision unilaterally. That was the legal advice I received about the way this could be dealt with in legislation. Of course I realise, not least from my own practice as a social worker over many years, that these decisions are extremely difficult and complicated. I am aware that a range of relationships and competing rights come into play. I have always acknowledged Deputy Shatter's major contribution to this legislation. I think it will give us further enhanced powers, not least because the definition of "best interest" is dealt with in much more detail than ever before in legislation. That will be very helpful because it will ensure the courts have further legislation on which to rely in order to make the best decisions for children in these very difficult family relationship situations.

I would like to give a brief response. The very content of the section referenced by the Minister is causing me the greatest puzzlement because some of it reflects the provisions I mentioned. It is extraordinarily perverse that we are spelling out the rights and obligations of third parties who are named as guardians by the courts without defining or spelling out in detail what being a guardian actually means to a child's parents. It really does not make sense. I would like to see the best possible legislation here. I have no interest beyond ensuring we have the best possible legislation that protects the best interests of the child and provides absolute clarity for parents regarding their rights and responsibilities. Most parents in happy families do not need to be told that. It is of particular importance where parents are estranged. It is distinctly odd to set out the rights and responsibilities of third parties who have been made guardians by the courts without also delineating the rights and responsibilities of parents as guardians, especially given that this is done in legislation worldwide. I just cannot fathom why we are doing this.

Perhaps the Deputy might table some amendments on Report Stage. I call the Minister for some final remarks. We have given this a good run at this stage.

These are rights for full guardians obviously. The important point is that the Act allows flexibility in terms of the other decisions that guardians have to make. It is important to note that point.

Question put and agreed to.
Sections 42 to 44, inclusive, agreed to.

Amendment No. 37 is in the name of Deputy Pádraig Mac Lochlainn. I advise that if amendment No. 37 is agreed then amendment No. 38 cannot be moved. Amendment No. 37 has already been discussed with amendment No. 36.

I move amendment No. 37:

In page 37, to delete line 38, and in page 38, to delete line 1.

I shall withdraw my amendment because the Bills Office worded it wrongly. I shall resubmit my properly worded amendment for the next round.

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 38, line 1, to delete “woman who gave birth to” and substitute “mother of”.

Amendment agreed to.

I move amendment No. 39:

In page 38, between lines 2 and 3, to insert the following:

“(2) A man who is the biological father of a child shall have an automatically guaranteed guardianship, when deemed suitable in accordance with this Act and he has willingly made his interest known in being a guardian.”.

Amendment put and declared lost.

I move amendment No. 40:

In page 38, to delete line 7.

Amendment put and declared lost.

I move amendment No. 41:

In page 38, to delete lines 9 to 14.

Amendment put and declared lost.

I move amendment No. 42:

In page 38, line 12, after “three” to insert “consecutive”.

Amendment agreed to.

I move amendment No. 43:

In page 38, between lines 25 and 26, to insert the following:

“Central Register for Statutory Declarations for Joint Guardianship

6C. The Minister shall cause to be established and maintained a register to be known as the Central Register for Statutory Declarations for Joint Guardianship, the purpose of which is to provide protection for the statutory declaration documents which grant guardianship rights to unmarried fathers in respect of their children.”.

Amendment put and declared lost.

I move amendment No. 44:

In page 39, line 11, to delete “view” and substitute “views”.

Amendment agreed to.

I move amendment No. 45:

In page 39, line 17, to delete “subsection (4)” and substitute “subsection (7)”.

Amendment agreed to.

I move amendment No. 46:

In page 40, line 5, to delete “interest” and substitute “interests”.

Amendment agreed to.

I move amendment No. 47:

In page 42, line 2, to delete “duties” and substitute “responsibilities”.

Amendment agreed to.
Question proposed: "That section 45, as amended, stand part of the Bill."

I intend to amend section 45 on Report Stage. Relating to the restrictions on guardians appointed by the court under section 6C or temporary guardians under 6E, certain functions are reserved from those guardians unless the court expressly confers them. Some additional restrictions are required in relation to consents a guardian may provide including: the taking of samples; repealing section 3(2)(e) of the Protection of Children (Hague Convention) Act 2000; and aligning the language in the inserted section 6E(5) with that in 6E(1) and (3) which refers to serious illness and injury. I intend to amend these on Report Stage.


Question put and agreed to.

I move amendment No. 48:

In page 44, line 20, to delete “the surviving parent” and substitute “a parent of the child”.

Amendment agreed to.
Section 46, as amended, agreed to.
Question proposed: "That section 47 stand part of the Bill."

I wish to signal that I plan to table a Report Stage amendment on this section. It will provide for a further amendment of section 8 of the Guardianship of Infants Act 1964. The amendment will allow a person to apply to the court for a declaration that he or she is a guardian by operation of the law.

Question put and agreed to.
Sections 48 to 51, inclusive, agreed to.

I move amendment No. 49:

In page 47, lines 2 to 4, to delete all words from and including “by—” in line 2 down to and including “(b) the” in line 4 and substitute “by the”.

Amendment agreed to.
Section 52, as amended, agreed to.
Sections 53 to 55, inclusive, agreed to.
Question proposed: "That section 56 stand part of the Bill."

There are provisions in this section which are important and very welcome. They prescribe how to deal with difficulties that arise when a parent fails to comply with a custody or access order and, effectively, this legislation will deal with the issue of access.

There is provision for a parent who has financially lost out. For example, attending or arranging to meet a child for access but for some reason, or rather the other parent obstructs that. One parent can be required to compensate the other for whatever financial loss, the parent can be given alternative or substitute access, and he or she can be required to attend a parenting programme or family counselling. All of this is very worthwhile and works well in Australia. The provisions here substantially reflect the provisions in the Australian family law Act.

With the Australian family law Act, in Australia they discovered that all of this was right and well but there were groups of parents who were so entrenched that it simply did not work. One can urge people to go to parental counselling or to participate in some sort of family counselling or parenting programme, or one might even force one parent to pay the other parent the cost of the bus fare for an abandoned access that does not take place. It is important that we realise there is a small group of parents who set out to destroy the relationship children have with the other parent when a marriage or relationship has collapsed. It does not have to be marriage, people may have been cohabiting together, but one or both parents can go to war with each other.

Sometimes it is simply one and sometimes it is both, and the children are in the middle of it. When this happens, the judges are frequently out of their depth. They find family cases difficult to deal with. In practice, when parents conduct themselves in this way, judges will normally urge on multiple occasions a parent to abide by court orders. I have seen judges threaten to transfer custody of a child from one parent to the other where the custodial parent is clearly misbehaving, but very often that is not an appropriate order to make because the parent who is anxious to have access to a child either does not have the accommodation where a child could live or they are at work and it is not practical that they have the day-to-day care of the child. There can be a whole range of reasons that it does not work.

I have seen on occasion judges literally tearing their hair out to resolve problems. When people are on civil legal aid through one of the Government law centres and where one parent, for example, can afford a lawyer and the other cannot, and the parent with the lawyer decides to go to war with the other parent, there is the risk that the law centre would just throw its hands up and the parent who is experiencing difficulties in spending time with his or her children finds they cannot even get legal representation to make their case to a court. On occasion, judges just lose their temper with everyone, and where one parent is misbehaving and the other is behaving properly, the judge just does not want to know and will not listen to either of them, to the detriment of the children and the parent whose contact with the children is being obstructed.

That long introduction is about saying there is no point in having all of this in the Bill if there is no sanction the courts can impose where one has a recalcitrant parent. The only sanction the courts can impose at present is they can send parents to prison. No one wants to see parents sent to prison. Judges, understandably, are enormously reluctant to do that and in circumstances where it is the custodial parent who is misbehaving and the other parent does not have the capacity to care for a child for some of the reasons I gave, that is not even a practical option and it is not in the interests of the children that that occur.

Other jurisdictions have tried a variety of different ways of dealing with the situation. One is that parents can be fined, so as opposed to simply paying someone back the cost of the bus fare or the cost of the petrol to drive out for an access visit that never takes place, the courts can impose a fine. Often, where marriages or relationships have broken down there is limited finance so imposing a fine may not be a great option and indeed it may affect the children because there may be less money in the household, but it is one of the options that should be there because there are circumstances where people have gone to war where it is not a financial matter, they are just at war with each other, and the court should have sanctions as an option. The court should have an option, for example, to require the recalcitrant parent to do community service. It does not put them in prison or cost them money but takes up some of their spare time. They could be doing the community a service while the other parent is having access. There is a need for some form of sanction that falls short of imprisonment. Some suggestions were put in the draft Bill for the consultative process on which I expected people would have different views, but it seems there is now no sanction if one does not comply, other than the one I mentioned - that one might be required to pay someone back the cost of their missed visit.

If a court takes a view that two parents together, or one who is creating a difficulty, should go to parental counselling and the court makes that order under this arrangement and the parent simply does not co-operate, the question is what is to happen next. I am asking the Minister that question. If the court orders that parents should go to family counselling together and one parent turns up and the other does not, the question is what is to happen next. If they both turn up and one is just abusive of the other at the family counselling as opposed to trying to work through issues to the benefit of the children, what is to happen next? An answer is required in that regard for this to work, and to improve the predicament that some estranged parents find themselves in, which is enormously to the detriment of children.

The other thing I have learned from 30 years of family law experience is that I can recall circumstances where I represented estranged spouses in the late 1970s and early 1980s who went to war with each other and where one spouse set out to destroy the relationship of the children with the other spouse. I was long enough as a lawyer to subsequently represent the adult children of those people who themselves were in a dysfunctional relationship because they had been damaged as children by the way their own parents conducted themselves, and now they were damaged in their relationship and they were now behaving in exactly the same way because that is all they knew. This is not just about particular couples; it is about a cycle of family dysfunction that needs to be broken.

Does the Minister wish to respond to that interesting point?

Yes. The provisions in 18A and 18D of section 56 are very carefully balanced to address the issue, which is that we want to enable children to have meaningful relationships with both parents. The mechanisms we have here seek to change a parent’s behaviour, obviously not to penalise the child. It would be very traumatic for a child if a member of the Garda were to enter the house and remove the child by force to bring him or her to the other parent. We clearly want to see a situation where the court has increased powers to ensure that the parents are not in contempt of court and that they do carry out what the court intended in relation to the access issues we are talking about. The existing enforcement orders do provide for quite a number of approaches. I will not go through them all but they are listed under section 56(4)(a), (b) and (c)(i)(ii)(iii) and 123, which I believe gives the court extra opportunities which do not exist at present to ensure that the terms of access are met by both parents. That is the intention. Of course there will be circumstances where a parent may simply be in contempt of court. I was advised that community service is an alternative to prison and therefore a prison sentence would have to be specified in the first place before a person could be asked to do community service as an alternative.

The other influencer in terms of how we approached this section was the strong representations made to the committee by the Ombudsman for Children, who said that we should not adopt this approach to access. She advised very strongly against removing those sanctions, as did other organisations such as One Family, and Women’s Aid also made comments in relation to the sanctions.

This is a very difficult area in terms of trying to get parents to work well together in the best interests of the child. Sometimes, clearly parents do not act in the best interests of the child. The new mechanisms in the Bill will be helpful for courts. The broader context where this can be dealt with even more effectively is in reform of the courts, developing court welfare services to a greater degree and having more contact centres. All of those areas need development in this country as they are very under-developed at present. We have had two very good pilot projects on contact centres where very good work was done by Barnardos and other groups to help parents. In effect, they mediate with parents and make sure access visits go well. The feedback I got from Barnardos is that a very significant amount of detailed work needed to be done with parents before they could get them to the point of fully fulfilling the access, but they felt the contact centres were a very worthwhile way to approach it. We have a lot of work to do in this area to support parents to continue parenting even where there is high conflict, tension and emotion. A lot of work can be done with those parents but it does require the development of services in this area. There is much work to be done in this country in that regard. We removed the sanctions to which Deputy Shatter referred that were in the original draft on the basis I have just outlined.

I agree with everything the Minister has just said about the need to provide the back-up services and to provide a more sophisticated court welfare service, which is practically non-existent in the context of the family law area at the moment.

The whole point of this is to ensure that where people are in contempt of court, imprisonment is not the only remedy available to the court. I am an enthusiast for what we have here, in subsection (4) that the Minister mentioned, the parent counselling, family counselling, all of these provisions, which indeed were in the original provision that the committee dealt with. I have no theological or ideological commitment to the original Bill because my perception was that it could be improved and we wanted to go through a consultative process but I do know that unfortunately with the best will in the world there are a group of parents who will not cooperate with any of these arrangements and the courts are bereft of an alternative then to imprisonment. We need to ensure that parents who behave badly and who could impact, not only on the best interests of their children as children, but on the capacity of their children as adults to have a normal functioning relationship, that the activities of those parents are curtailed, that there is some sanction the courts can utilise. There is no particular reason, for example, a community service sanction in the context of family law needs to be tied in with anyone committing criminal offences. It is just that community service is an alternative in the criminal law area to a sentence of imprisonment. There is no particular reason there could not be a stand-alone provision where a judge dealing with a recalcitrant parent behaving contrary to the best interests of a child could not say, "Well, if you do not go to parental counselling or family counselling and if you do not genuinely co-operate, I have other remedies at my disposal and one of the things you may have to do is go off for a couple of hours or three or four hours every week and do designated community service". That is not the worst of sanctions but it incentivises co-operation and it is not a sanction that renders a parent incapable of continuing to act as a custodial parent, if it is the custodial parent who is misbehaving. I think we have to have an open mind on these things and all I am saying is, and I keep coming back to something I said this morning, we are not inventing the wheel. We are travelling a route that other jurisdictions have travelled in this area some 20 to 25 years ago and have discovered that just doing this is not the solution. This is really valuable and helpful but there must be some alternative sanction if it is not working.

As a non-member of the committee there are one or two things that I would like to raise, possibly with a view to---

The Deputy must confine herself to this section.

Yes, I will. There were many contributions on the last Stage in the House about fathers' rights and the alleged denial of access by women to fathers who have custody. There were many contributions by different Deputies about that. I think this section clarifies that a second parent can apply to the courts for enforcement and for custody. There seems to be a lot of confusion between guardianship and custody among Deputies and among members of the public. It seems to me that this is what is being used to justify the introduction of automatic guardianship, which I would have questions about, because guardianship gives somebody sweeping powers, for example in relation to passports and the residence of the child.

In cases where relations have broken down, and contact with the child may have broken down over years despite, let us say, the father in this case, living for a full year or more with the mother, I am a bit concerned about the safeguards in relation to violence against women, people who are escaping violent relationships, and giving automatic guardianship to men, in this particular case. One in five women experiences domestic violence. That is quite a lot of women. This country has the highest rate of single-parent families. I know there are situations where men have been deprived of seeing their children but it is very clear here, they can apply for custody and unless there is a very good reason, they will get access to their children. What I am more concerned about is guardianship being given automatically to people who may have had no connection over a long period of time and who have given no financial support, emotional support or anything else. There are quite a lot of lone parents, who are women, who I know are quite concerned about that. Could the Minister give her views on that?

We had this discussion this morning on guardianship and automatic guardianship. The Minister might address that briefly.

It might be helpful to address that particular issue. We had a discussion as regards that issue, as indeed we had on Second Stage. I have indicated some amendments that I am bringing in which would make it more likely that non-marital fathers would sign the statutory declaration and that they could do that at the same time as the birth registration. That is without moving towards the automatic guardianship which some Deputies had asked for and, indeed, which other Deputies on the committee had expressed some serious concern in relation to.

What is at the heart of the Bill, and what I have described as the golden thread running through the Bill, is the definition of "best interest". For the first time we have gone into detail, as I have already said to the committee, about what constitutes best interest. The point I want to make in response to the Deputy is that we have linked with quite a wide range of organisations that work directly with families where there is violence. We have included in the best interest description, when the court is making a decision about a child in relation to access, custody, or guardianship, "The court shall have regard to family violence that has occurred or is likely to occur in the family of the child including the impact or likely impact of such violence on the safety of the child and other members of his or her family, the child's personal well-being, including the child's psychological and emotional well-being, the victim of such violence, and the capacity of the perpetrator of the violence to properly care for the child and the risk, if any, that the perpetrator poses to the child." That is an interesting point that is often spoken about. We have gone into quite a lot of detail. It is one of the sections---

We are moving ahead now to section 58.

It is in response to the point that Deputy Coppinger has made in relation to those kind of decisions and what might guide them.

I draw the Minister's attention to the work that the committee did on community courts and community service orders and all that stuff that Deputy Shatter has highlighted and perhaps that report might be looked at by the Minister in the context of the points made.

Is Deputy Shatter suggesting that an offence should be created in this section?

I am not suggesting that. I certainly do not think that criminal law should be introduced into the family law area. I am concerned about the circumstance where, whether it is the mother or the father, one of them is misbehaving and creating an enormous difficulty with regard to access issues. On occasions fathers create enormous difficulties for custodial mothers by not complying with access arrangements or using them to try to turn the child against the mother. I have seen every combination of this. What I am saying is that what we have in the Bill allowing the courts to require people to attend parental counselling, allowing the courts to require people to attend family counselling, all of this is a great advance and very important but when those individuals whom the court directs to do this do not co-operate, the court needs some sanction and there is no reason why, for example, the court should not have the capacity to prescribe stand-alone community service. It is not about a criminal offence. It is a sanction instead of committal to prison for contempt of court. It is not even a substitute for that, it is not asking the courts to commit anyone to prison.

There should be sensible, stand-alone sanctions that do not damage the parent-child relationship and which are pragmatic and workable in circumstances where people do not have much in the way of available funds and where imposing a fine may not be a practical sanction. The courts need some form of sanction in order that, instead of judges urging people who are obstinate and intent on using their children as pawns in an ongoing relationship battle, they can tell those parents that if they do not conduct themselves properly they can do X. At the moment there is not an X which they can do. The only X available is parental or family counselling or making good the cost of attending where access was not granted, but if that does not work, what happens next?

That is a very interesting point but it is a question for Report Stage.

Question put and agreed to.
Section 57 agreed to.

Amendment No. 50 in the name of Deputy Pádraig Mac Lochlainn is ruled out of order.

Amendment No. 50 not moved.
Question proposed: "That section 58 stand part of the Bill."

On Report Stage I intend to amend this section, which inserts new sections 31 and 32 into the Guardianship of Infants Act 1964. This will link the reference in section 31(2)(b) to the views of the child in the best interest provision to the provisions of section 32, which allow the court to seek a child's views directly or to appoint an expert to find out the child's views. It also amends the definition of "family violence" to "household violence" to ensure this encompasses more accurately the potential risks of violence that may have an impact on the child's welfare.

I plan to bring an amendment on Report Stage which will insert a new section after section 58. The amendment will extend the provisions of section 27 of the Guardianship of Infants Act 1964, enabling the court to proceed in the absence of the child to applications under sections 6C and 6D as inserted by section 45 of the Bill.


Question put and agreed to.
Sections 59 to 74, inclusive, agreed to.

I move amendment No. 51:

In page 63, line 22, after "subsection (4)," to insert "and".

Amendment agreed to.
Section 75, as amended, agreed to.
Sections 76 to 84, inclusive, agreed to.
Question proposed: "That section 85 stand part of the Bill."

Sections 85 and 86 have an interconnectivity. Can the Minister explain how she sees the workings of those sections?

Section 85 amends section 41 of the Family Law Act 1995 to clarify that, where the court orders a maintenance payment under another Act to be paid by a cohabitant of the child's parent, that maintenance payment may be secured to the maintenance applicant under section 41. Section 86 amends section 42 of the 1995 act, which allows the court, either instead of or as well as securing a maintenance order under section 41, to order a lump sum payment. The Deputy raised this point on Second Stage.

The amendment in paragraph (a) is technical to reflect the additional categories of orders which may be so secured. The amendment in paragraph (b) provides for the insertion of a new subsection which gives the court the powers to order how a lump sum should be spent, including providing suitable accommodation for a child.

I want to raise some serious issues about this action. I will reference it as (2A) in section 86(b), though it is cross-referenced as section 42(b)(2A). Under this provision the Circuit Court or the High Court can make a lump sum order that is unlimited in amount. It can be an order made instead of, or in addition to, a periodical payment order. How will this work in practice and is it adequate? The amendment of sections 41 and 42 of the 1995 Act is not adequate and does not go far enough. I direct my attention to a child born outside marriage because in a marital family there is no difficulty about lump sum orders in other provisions in our family law legislation. My example involves an unmarried couple who reside together for a period, a child is born and the father makes off. Let us assume the father is reasonably wealthy and owns a number of properties or substantial assets and he may well be able to afford a house for his child if the court orders a lump sum payment including an element for the accommodation of the child. Does this section envisage a provision for a sufficiently large sum of money to buy a home for the child in these circumstances? In mirror circumstances, if a marriage broke down, would a spouse be required to buy a home for the other spouse and child?

Yes, it does envisage that. I am conscious of cases in this area.

That leads on to another issue which is a problem. I would have mentioned I was involved in court proceedings some years ago. This is a declaration of interest that I have referenced on several occasions. The McE case involved an unmarried mother left high and dry by an extremely wealthy father with whom she had been residing. The Circuit Court made an order for €400,000 for the purchase of a house for the benefit of the child and the mother. The High Court reversed that order on the basis that lump sum orders under this particular provision could be made to benefit the children of married couples but not a child born outside marriage. This made no sense in the context of how the law was framed. The case was taken to the European Court of Justice and was settled on the basis that the law would be adequately changed to ensure no judge would do this in the future.

This provision goes part of the way. The real difficulty is that it does not spell out in full what the Minister intends. I agree with her that this is the intention. There is a risk, however, in the manner in which the Judiciary approaches this. The antiquated approach taken in the above case by a learned member of the High Court which was clearly going to get this State into difficulty in the European courts could be replicated. There is a need to expressly make it clear that in making provision for accommodation, it can include, where it is financially appropriate, a sum be provided for the purchase of a home for the benefit of the child and the parent - most frequently it will be the mother - bringing up the child. That is not clear from this, however. This measure could be interpreted by a court as requiring someone to provide a couple of thousand euro by way of a lump sum as a down payment for a rental property. It may well be that this is what it can only be where people have very limited means. However, that was not the intention.

The second aspect is that if the courts are to make a lump sum order to allow for the purchase of accommodation to give a child security, the courts have to have powers to determine the ownership of that property. If a lump sum is to be provided for accommodation, is the property, for example, to be purchased in the mother’s name to be held in trust for the child? Is it to be purchased in the father’s name on the basis the child will only live in the property until a particular age and then will vacate it? Can the lump sum be used to put the property into the joint names of mother and child where perhaps the mother will be the primary custodial parent, the best part of 18 years? It would be a gross injustice that when her child finally reaches adulthood and ends education that she and the child could be rendered homeless. This is not adequately teased out yet.

The original provision that the committee considered had another section that allowed for the courts to order that property be purchased in the name of trustees. More work was needed to be done on that particular provision, however. That was fine by way of heads of a Bill but it needed to be teased out further. It now seems to me that instead it has not dealt with the ownership of a property that might be purchased to provide a roof over a child’s head, provide security in that property, to provide the parent caring for the child, who in 98% of such cases in these circumstances will be the mother, will not be rendered homeless after she has brought the child up. These issues need to be dealt with.

There are interesting provisions in English legislation that could be possibly adapted into Irish legislation. They would have to be adapted, however, because the manner in which English courts have interpreted their particular measure is not adequate to meet our obligations under the European Convention on Human Rights. This has been dealt with in other jurisdictions. The reason is simple. If a marriage breaks up and a divorce decree is sought, the courts can make lump sum orders and require that a home be purchased with funds where there are family assets for the benefit of the mother and child. When a couple breaks up or a child is born outside of marriage to a very wealthy father, then that child should have the same equal entitlement to a roof over his or her head as any other child has.

What was in the original draft Bill was not by any means perfect. It was adequate for a consultative process. There is a need to tease this out further. This is too brief and knowing the manner in which the Judiciary will come to approach this, we will all be back again some years from now. What is more important - people being back here or the State being in the European Court? This will be to the disadvantage of a number of children in coming years for whom better provision could be made if we deal with this correctly now. A more sophisticated provision addressing these issues should be introduced on Report Stage.

Another section relevant to this Part is that we have separately amended section 11(2) of the 1964 Act to ensure a parent is liable for maintenance, whether or not the parent is the guardian of the child. We did examine this in detail and considered setting up trusts but there could be potential conflicts of interest.

We felt the approach we took in the Bill left the courts with a wide and appropriate range of discretion. Family law Acts do not require accommodation to be purchased in the names of children. I take Deputy Shatter’s point and I will get further legal advice to see if this section can be strengthened in the way he has outlined.


Question put and agreed to.
Sections 86 and 87 agreed to.
Amendment No. 52 not moved.

I move amendment No. 53:

In page 69, line 4, to delete “sub-paragraphs (i) to (iii) of section 19(1)(b)” and substitute “paragraphs (i) to (iii) of section 19(1)”.

Amendment agreed to.
Amendment No. 54 not moved.
Section 88, as amended, agreed to.
Section 89 agreed to.

I move amendment No. 55:

In page 70, line 10, to delete “section 20” and substitute “section 19”.

Amendment agreed to.

I move amendment No. 56:

In page 70, line 11, to delete “section 21” and substitute “section 20”.

Amendment agreed to.
Section 90, as amended, agreed to.
Sections 91 to 95, inclusive, agreed to.
Question proposed: "That section 96 stand part of the Bill."

I intend to make technical amendments to this section on Report Stage in order to remove the references in paragraph (b) to "inserted by section 45 of the Act of 2015" and correct some punctuation in paragraph (c).

Question put and agreed to.
Sections 97 to 133, inclusive, agreed to.

I move amendment No. 57:

In page 86, line 23, to delete “(in this Act referred to as a maintenance order)”.

Amendment agreed to.
Section 134, as amended, agreed to.
Sections 135 to 142, inclusive, agreed to.

I move amendment No. 58:

In page 92, to delete lines 30 to 32 and substitute the following:

“(a) in subsection (1)—

(i) in the definition of “lump sum order”, by the substitution of “paragraph (c) or (ca) of section 117(1)” for “section 117(1)(c)”,

(ii) in the definition of “periodical payments order”, by the substitution of “paragraph (a) or (aa) of section 117(1)” for “section 117(1)(a)”,

(iii) in the definition of “secured periodical payments order”, by the substitution of “paragraph (b) or (ba) of section 117(1)” for “section 117(1)(b)”, and

(iv) by the insertion of the following definition:

“ ‘Act of 1964’ means the Guardianship of Infants Act 1964;”,”.

Amendment agreed to.
Section 143, as amended, agreed to.

I move amendment No. 59:

In page 93, line 24, to delete “who is a child” and substitute “who is under the age of 18 years”.

Amendment agreed to.
Section 144, as amended, agreed to.

I move amendment No. 60:

In page 93, between lines 25 and 26, to insert the following:

“Amendment of section 113 of Act of 2010

145. Section 113 of the Act of 2010 is amended—

(a) by designating the section as subsection (1), and

(b) by the insertion of the following subsection after subsection (1):

“(2) For the avoidance of doubt, it is hereby declared that the grant of a decree of dissolution shall not affect the rights of the parents of a child, under section 6 or 6B of the Act of 1964, to be guardians of the child jointly.”.”.

The amended version of section 145 is the same in substance as the previous version, with the important modification that it additionally specifies that, under section 6B of the Guardianship of Infants Act 1964 - as inserted by section 45 of this Bill - guardianship of a civil partner who is a parent will be unaffected by the subsequent dissolution of the civil partnership. This has the same effect as provisions in the Family Law (Divorce) Act specifying that the divorce of parents does not affect their status as guardians of their children.

Amendment agreed to.
Section 145 deleted.
Sections 146 and 147 agreed to.

I move amendment No. 61:

In page 95, line 23, to delete “is” and substitute “was”.

Amendment agreed to.

I move amendment No. 62:

In page 95, line 24, to delete “is” and substitute “was”.

Amendment agreed to.

I move amendment No. 63:

In page 95, to delete lines 26 and 27 and substitute the following:

“(d) in subsection (7), by the substitution of “paragraph (a) or (aa) of subsection (1)” for “subsection (1)(a)” wherever it occurs.”.

Amendment agreed to.
Section 148, as amended, agreed to.
Sections 149 and 150 agreed to.

I move amendment No. 64:

In page 97, line 28, to delete “a” and substitute “the”.

Amendment agreed to.
Section 151, as amended, agreed to.
Sections 152 and 153 agreed to.

I move amendment No. 65:

In page 99, line 11, to delete “is” and substitute “was”.

Amendment agreed to.

I move amendment No. 66:

In page 99, line 15, to delete “is” and substitute “was”.

Amendment agreed to.
Question proposed: "That section 154, as amended, stand part of the Bill."

I intend to bring forward an amendment on Report Stage in order to make a technical correction to the amendment of section 123(9) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The amendment in question will relate to the obligation of trustees of a pension scheme to notify a beneficiary.

Question put and agreed to.
Sections 155 to 159, inclusive, agreed to.
Question proposed "That section 160 stand part of the Bill."

I intend to bring forward an amendment on Report Stage in order to correct cross-references relating to the amendment of section 133 of the 2010 Act.

Question put and agreed to.
Sections 161 to 163, inclusive, agreed to.

I move amendment No. 67:

In page 102, line 15, to delete “makes an order for the grant of a decree of dissolution” and substitute “grants a decree of dissolution (within the meaning of Part 12)”.

Amendment agreed to.
Section 164, as amended, agreed to.
Sections 165 to 170, inclusive, agreed to.

Amendments Nos. 68 to 71, inclusive, are related and will be discussed together.

I move amendment No. 68:

In page 104, between lines 31 and 32, to insert the following:

“ “ ‘Act of 2010’ means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;”.

This set of amendments effects a drafting revision required in order to ensure that the definitions applying for the purposes of the Adoptive Leave Act 1995 apply in full to the entire Act. The effect of the amendments will be to move those definitions into section 2(1) of the Adoptive Leave Act and to apply them to the whole Act, instead of subsection (1A) only.

Amendment agreed to.

I move amendment No. 69:

In page 104, line 32, to delete “ “ ‘Act of 2015’” and substitute “ ‘Act of 2015’ ”.

Amendment agreed to.

I move amendment No. 70:

In page 104, between lines 33 and 34, to insert the following:

“ ‘civil partner’ shall be construed in accordance with section 3 of the Act of 2010;

‘cohabitant’ shall be construed in accordance with section 172(1) of the Act of 2010;

‘cohabiting couple’ has the same meaning as it has in section 3(1) (amended by section 96 of the Act of 2015) of the Adoption Act 2010;”.

Amendment agreed to.

I move amendment No. 71:

In page 106, lines 12 to 22, to delete all words from and including “adopter.” in line 12 down to and including “2010.”.” in line 22 and substitute “adopter.”.”.

Amendment agreed to.
Section 171, as amended, agreed to.
Section 172 agreed to.
Title agreed to.

I thank the Minister and her officials for their attendance.

I thank the Chairman, members of the committee and the committee staff for facilitating the Committee Stage debate of this Bill. It is intended to take Report Stage next Thursday in the Dáil.

The deadline for Report Stage amendments is 4 p.m. tomorrow.

Bill reported with amendments.