I thank the Deputies for their references and comments. The Department looked hard and seriously as this issue when preparing this Bill and the view as expressed by Deputy Howlin was somewhat similar to mine. I refer in particular to his reference to the effect that the acquisition of rights through other citizens is not something with which we should continue. The right way to adopt changes regarding the protection of children is to give them additional rights in their own right. This is as has been indicated through constitutional change, which I hope will be brought forward sooner rather than later.
I have to hand a long note that should be put on record for the sake of further deliberation at another time on this aspect and the reason this Bill deals with it in this fashion. Obviously, it is clearly established in our Constitution that the family is based on a marriage between a man and a woman. This has been determined on many occasions by the Supreme Court. The European Convention on Human Rights makes provision for family rights of people who are not married but the convention is not generally part of our domestic law and is not directly applicable in this case. In any event, the European Court of Human Rights has not determined that same-sex partners fall under the definition of family life under Article 8. This also appears to be the conclusion reached by English courts.
The Supreme Court made clear in the famous case of the State (Nicolaou)v. An Bord Uchtála that:
For the State to award equal constitutional protection to the family founded on marriage and the ‘family' founded on extra marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1 to guard with special care the institution of marriage.
There already are extensive provisions in the law in respect of, for example, the position of the unmarried father. Under the law as it stands, namely, section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, an unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act, as inserted by section 4 of the Children Act 1997, conferring on the father the status of guardian. Under section 11 of the 1964 Act, a guardian may apply to the court for its direction on any question affecting the welfare of the child, including directions as to custody and access. In addition, the section provides that the unmarried father of a child, even if he is not a guardian, may apply to the court for orders on custody and access. Section 3 of the Act provides that, in deciding on an application relating to the custody, guardianship or upbringing of a child, the court shall regard the welfare of the child as the first and paramount consideration.
Where appropriate and practicable, the court may also take into account the child's wishes in the matter, having regard to the age and understanding of the child. In addition, the law now places an emphasis in terms of recognising the rights of the child to the society of both his or her father and mother. Section 11D of the 1964 Act, as inserted by the Children Act 1997, obliges the court in proceedings relating to the welfare of a child to consider whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.
These legislative provisions are complex. They permit the court in cases of disagreement to decide on arrangements for the child's care and upbringing, having regard to the child's best interests. In formulating the civil registration scheme for same-sex partners, the Government was mindful of the implications for children. On the advice of the Attorney General, the Government concluded it would not be appropriate that the Civil Partnership Bill should develop principles regarding children that would have implications wider than those in respect of same-sex partners. Apart from constitutional difficulties, issues which arise pertaining to children and their welfare are so significant that it would not be appropriate to address them on a piecemeal basis without a thorough review of all the implications such changes might have for children and for those who might be affected by such changes.
To comply with the constitutional imperative to protect the family it is necessary to differentiate the recognition being accorded to same-sex couples who register their partnership with the special recognition that is accorded under the Constitution to persons of the opposite sex who marry. While we need to respect the entitlement to equality that same-sex partners enjoy under Article 40.1 of the Constitution, we also need to respect the special protection that Article 41 gives to marriage. As I have stated many times, the Bill has been carefully drafted to balance any potential conflict between these rights. In particular, the Attorney General has advised that constitutional difficulties arise in respect of children in civil partnerships. His advice is that giving a family unit that is not based on marriage a constitution, that is, two adults who are co-parents of children, and authority, that is, full parental powers, rights and duties to adopt, which are substantially identical to that of the family would probably be viewed as reneging on the guarantee to protect the family.
There is already an extensive body of law regarding the welfare of children in areas such as guardianship, maintenance, access and custody and many of these issues are faced by couples whether married or not. The suggestion has been made that the Bill should make express provision for the rights of same-sex partners in respect of children. In the recent case of J.McD.v. P.L. and B.M. of 10 December 2009, the Supreme Court makes it clear that in the context of any debate about rights regarding children that it is the welfare of the child as the first and paramount consideration which is central to the determination of issues, as section 3 of the Guardianship of Infants Act 1964 provides. The judgment went on to state:
the mere fact that the law could be said to be silent as regards a specific situation does not necessarily mean that the situation is unaffected by the law or the Constitution. Silence of the law may speak volumes for the legal status to be accorded or not to be accorded to a particular subject matter or situation.
It was in this case that the Supreme Court reconfirmed that the family is defined as the family based on the marriage of a man and a woman and that there is no institution of a de facto family deriving family rights or protection under the Constitution or the law. Equally the court found that any such rights, where they may exist under Article 8 of the European Convention on Human Rights, have at present no direct effect under our law. This case also highlighted the difficulties involved in situations of a party other than a natural parent. The judgment stated as follows:
That the situation of a party other than a natural parent, and in particular such a person's relationship with the child, should be a material factor in determining the custody and associated rights of the child is not unique to the situation which has arisen in this case. It may also arise in a variety of other situations such as a household consisting of a mother and child and one, or both, parents or where a child has been raised for a number of years by grandparents or foster parents. In the end these often so difficult situations have to be determined by the best interests of the child being considered paramount and, subject to that, with due regard to constitutional and other rights in law vested in other parties.
Given the complexity of legal relationships between children and their parents, a comprehensive review of the law in this area has been under way by the Law Reform Commission, LRC. In due course, this will also help to inform policy decisions on the rights in general of children of non-married parents and others. The commission published a consultation paper on the legal aspects of family relationships in September 2009 and has invited submissions from interested parties on its provisional recommendations. The commission's final report and recommendations are expected later this year. However, I might add that the paper did not make specific recommendations on the position of same-sex couples or civil partners. In any event, it is not intended that the Civil Partnership Bill should deal with what is obviously a complex situation and one with which other jurisdictions have experienced difficulties with or without the types of constraint posed by our Constitution.
Putting all of this on record is important, as it indicates the Government's approach to the protection of children. It would be wrong to suggest that the Bill is silent on this matter. Section 117(2)(l) expressly mandates the court in making financial and property orders to consider the rights of people other than either of the civil partners, specifically including any child to whom either of the civil partners owes an obligation of support. This is an important provision on the protection of children. The rights of the child to financial support by and the care of his or her parent must be considered before any financial or property order is made in favour of a civil partner under this Bill.
While we must always maintain the fine balance between the constitutional imperatives of equality on one side and the special recognition of marriage on the other, it is important to point out that aspects of taking care of children, specifically the children of same-sex partners and depending on those children's circumstances, would be better dealt with in the context of amending existing legislation, particularly the proposed constitutional referendum.