Vol. 518 No. 2
10 Mr. J. O'Keeffe asked the Minister for Justice, Equality and Law Reform if his attention has been drawn to recent plans announced in the United Kingdom to give parental responsibility to some unmarried fathers; if he has similar proposals; and if he will make a statement on the matter. [11053/00]
Policy in our law on guardianship is contained in the Guardianship of Infants Act, 1964, the Status of Children Act, 1987, and the Children Act, 1997. Prior to commencement of the 1997 Act the position was that an unmarried father could acquire guardianship rights if he subsequently married the mother or if he applied to the court under section 6A of the Act of 1964, as inserted by the Status of Children Act, 1987, to become a joint guardian.
The law in this area was the subject of review in the course of preparation of the Bill which led to the Act of 1997. That Bill was the subject of detailed debate in the course of its passage through the House. The Act of 1997, which came into force in January 1998, makes it possible for a father who has not married the mother of his child to acquire joint guardianship rights by agreement with the mother of his child without having to go to court. In addition, it inserted new provisions in the Act of 1964 to specify that the court has discretion to order joint custody.
In the course of passage of the Bill, I strengthened it in the area of guardianship, custody and access with a provision that the court, in settling disputes in relation to children, must have regard to 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. That provision was inspired by a provision in the UN Convention on the Rights of the Child.
There are no further proposals to amend the law in this area, although I can say that its operation is being kept under review and the details of developments in other jurisdictions can be part of that review.
(Mayo): Does the Minister accept that there is a significant difference in the legal status of married and unmarried fathers? Where a child is born to married parents, both mother and father automatically have legal powers. That is defined as parental responsibility. If the parents are not married and even if they live together as a family and the man is registered on the baby's birth certificate as the father, only the mother automatically receives parental responsibility when the child is born. The father has no legal rights in terms of formal decision-making. Given that it has been decided in Britain to apply automatic parental responsibility to both parents provided the father's name is on the birth certificate, will the Minister consider making a similar move here?
My understanding of the position in Great Britain is that it is similar to the law in this jurisdiction and that all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in regard to a child and his property is the definition of what parental responsibility amounts to in that jurisdiction. My understanding of the situation in the United Kingdom is different to Deputy Higgins's. My view is that the mother has automatic parental rights there and that the unmarried father can acquire parental rights through a number of ways, similar to here – by subsequently marrying the mother, by obtaining a court order or by means of a formal agreement with the mother. My understanding is that an agreement must be in the prescribed form and must be registered in the court. The court's power is purely administrative and there is no investigation of a child's welfare when the agreement is registered. It is true that entry of an unmarried father's name on a birth certificate is prima facie evidence that he is the father of that child and that the onus of proof is on any person who wishes to dispute that. While the birth registration constitutes an important method of establishing parentage, it has no effect on guardianship rights of the unmarried father.
This is an important element of rights, responsibility and guardianship. How does the Minister equate obligation with rights? We should all adhere to the basic principle that a parent has a right to maintain his or her child and to provide for its upkeep and care. What is the Minister's position on granting rights or guardianship to a parent who is not prepared to take responsibility for maintaining and caring for that child?
Deputy Ahearn has raised an important and interesting point. A father's duty to maintain his child and his right to apply to the courts for access to the child concerned is obviously not contingent on his being made a guardian. Indeed, his right to apply to the courts for access to the child concerned is not contingent on his being made a guardian. Deputy Ahearn is correct, people have obligations and duties which might be ascribed to the natural law and which are of a higher order than anything I could enact. If people wish to ignore their responsibilities and simply walk away from them, there is very little the law of this country or, indeed, any other jurisdiction can do about it.
What is the Minister's view on the UN convention provision which states that a child has the right to know and be cared for by both parents? Does he accept the follow-on from that in regard to the need to oblige the registration of both parents' names on birth certificates as is the case in many other EU states? Does the Minister intend to move in that direction?
It always has been the case in our courts and in our law, as evidenced in the Guardianship Act, that the child's interests are paramount in terms of deciding who should obtain guardianship or who should not have access to a child. The concept of the family is broadened in the Guardianship Act by allowing orders for access to be given to grandparents etc. I outlined the precise implications of registering a father's or mother's name on a birth certificate. In 1992, the Law Reform Commission was of the view that the principle of equality required that no distinction whatsoever should be made in regard to the legal rights of guardianship on the basis of marital status alone and that is not the case in this jurisdiction.
