Dáil Éireann Debate, Wednesday - 23 November 2005
99 Mr. Stanton asked the Minister for Justice, Equality and Law Reform if safeguards will be put in place to protect the rights of fathers to have access to their children; and if he will make a statement on the matter. [30831/05]
Amharc ar fhreagraUnder the law as it stands, married parents living together are joint guardians and custodians of their child. If they separate, the custody is normally with the parent with whom the child primarily resides, but the other parent still remains a guardian. 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 1964, as inserted by section 4 of the Children Act 1997, appointing the father as a guardian of his child, without having to go to court. Under section 11 of the 1964 Act, as amended by the Status of Children Act 1987, a father, whether married to the child's mother or not, may apply to the court for its direction on any question affecting the welfare of the child, including the right of access.
In all family law proceedings relating to the upbringing of a child, the court must always regard the child's welfare as the first and paramount consideration. Where appropriate and practicable, the court will 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 of his or her parents. Section 11D of the 1964 Act, inserted by the 1997 Act, 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.
The 1997 Act also provides for an emphasis on counselling and mediation as alternatives to court proceedings concerning the custody of and access to children. It encourages couples who are in dispute to think in terms of agreeing to the custody of and access to their children, without the need for court interventions. Before instituting proceedings for guardianship, custody or access, a solicitor must discuss with the parent the possibility of engaging in counselling and mediation to assist in effecting an agreement between the parties. The court may adjourn any proceedings for the purpose of enabling attempts to be made by the parties to reach agreement, with or without the assistance of a third party, on some or all of the issues in dispute. An agreement in writing between parties relating to custody, access or maintenance can be made a rule of court and thus become enforceable in the same way as if it were a court order.
These legislative provisions are extensive. They permit the court in cases of disagreement to decide on arrangements for the child's care and upbringing, including access rights, having regard to the welfare of the child which is always paramount. I am aware of the concerns of fathers regarding access rights and the issue of enforcement. Operation of the law in this whole area is being kept under review in my Department.
