Dáil Éireann Debate, Wednesday - 20 September 2017
324. Deputy Tom Neville asked the Minister for Justice and Equality his plans to ratify EU resolution 2079 (2015) concerning equality and shared parental responsibility: the role of father, in order to remove from family law the difference based on marital status between parents who have acknowledged their child (details supplied); and if he will make a statement on the matter. [39495/17]
View answerMarried parents of a child are automatically joint guardians and have joint custody of their children. Where married parents separate or divorce, they can decide between themselves on custody arrangements for their children or apply to the courts to decide on the matter.
If the father is not married to the mother of the child, he will not automatically become a guardian of the child. The issue of automatic guardianship was considered during the passage of the Children and Family Relationships Bill through the Oireachtas. However the automatic extension of guardianship to a father who is not involved and is not participating in his child’s life would have consequences for the child and the child’s mother, for example, if he does not consent to the issue of a passport or to the placement of a child for adoption.
There are provisions in place to facilitate non-marital fathers who have an ongoing relationship with their children to become guardians of their children. Section 2(4A) of the Guardianship of Infants Act 1964 (as inserted by section 43(c) of the Children and Family Relationships Act 2015) now provides for joint guardianship by a man who was not married to the mother of the child and was cohabiting with the mother for not less than 12 consecutive months. This 12 month period must include a period, occurring at any time after the birth of the child, of not less than three months during which both the mother and father have lived with the child. In addition, a father who is not married to the child's mother and does not satisfy the cohabitation requirements may become a guardian if the parents jointly make a statutory declaration appointing him as a guardian. It is also open to the father at any stage to make an application to court for guardianship of the child under section 6A of the Guardianship of Infants Act 1964.
Section 3 of the Guardianship of Infants Act 1964 provides that the best interests of the child shall be the paramount consideration for the court in any proceedings where guardianship, custody or upbringing of, or access to, a child is in question. The best interests of a child are to be determined in accordance with Part V of the 1964 Act, inserted by section 63 of the Children and Family Relationships Act 2015. Section 31 of the 1964 Act sets out a wide range of factors that the court is required to take into account when determining the best interests of the child. These factors include the benefit to the child of having a meaningful relationship with each of his or her parents.
The majority of court applications for guardianship made by fathers are granted. In 2015, the most recent year for which full figures are available, the District Court determined 2,367 guardianship applications of which over 76% were granted.
I am aware of resolution 2079 (2015) of the Parliamentary Assembly of the Council of Europe concerning equality and shared parental responsibility and of the Parliamentary Assembly’s request at point 5.4 that member states remove from their laws any difference based on marital status between parents who have acknowledged their child. I have no plans at present for further amendment of the Guardianship of Infants Act 1964 to provide for automatic guardianship for unmarried fathers, but the operation of the law in this area is kept under ongoing review by my Department.
