In the Stakeholder Summary Report, reference is made to a submission by Equality for Fathers Ireland (EFI) which stated that, contrary to section 6 of the Guardianship of Infants Act 1964 conferring joint guardianship to the mother and the father of a child, fathers were generally discriminated against, notably following separation or divorce. EFI recommended that wherever consent was deemed necessary, it should be sought from both legal guardians.
As the Deputy knows, section 6 of the Guardianship of Infants Act 1964 as amended confers guardianship of the child of married parents on both parents jointly. Separation or divorce of the parents does not affect the status of either parent as a guardian of their child or children. In cases where both parents maintain an ongoing interest and involvement in their children's lives, they should jointly make important decisions concerning the children's health, education and upbringing. However, given the many different family dynamics resulting from marriage break-up, it may not always be practical for both parents to consent to each and every decision made about the child's upbringing
Present law is comprehensive. Under section 11 of the Guardianship of Infants Act 1964 as amended, a guardian of a child may apply to the court for direction on any question affecting the welfare of the child. As with all orders under the Act, the court is required to regard the welfare of the child as the first and paramount consideration. Section 11D of the Act, inserted by the Children Act 1997, provides that the court must also have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his father and mother on a regular basis. It is also important to recall that in all proceedings under the Act, where appropriate and practicable the court must take into account the child's wishes in the matter, having regard to the age and understanding of the child. In practical terms, the older the child, the greater the importance the court attaches to the wishes expressed by the child.
I do not foresee any departure from these important principles in the law. However, I would at this stage indicate that, in line with commitments in the Programme for Government, the operation of family law is under active review in my Department. The commitments in the Programme for Government are to reform and modernise certain aspects of family law, and to promote mediation as a means of resolving disputes. Already, in that context, the Legal Aid Board will shortly take on responsibility for the Family Mediation Service following provisions I made for that in the Civil Law (Miscellaneous Provisions) Act 2011. My Department is also finalising proposals for a Mediation and Conciliation Bill which will promote a more structured approach to mediation in the legal system.
