CHECK AGAINST DELIVERY

 

24 February 2015

 

Ceann Comhairle,

I move that the Bill be now read a second time.

Today I am introducing the landmark Children and Family Relationships Bill 2015 to the House which when enacted will be a watershed in the development of Irish Family Law. I would like to thank the Joint Oireachtas Committee on Justice, Defence and Equality for undertaking pre-legislative scrutiny of the Bill and for organising public hearings on it last April. I took account of the Committee’s recommendations when revising the General Scheme on which this Bill is based.

I must also register today the pivotal contribution to the reform of family law in Ireland made by my predecessor, Alan Shatter both in this House and outside of this House. This Bill began on his watch, largely driven by his concern about the lack of action in this area, and I am privileged to continue the work, with the necessary changes and additions following the legal and other advices I have received.

This Bill will, as I have said, when enacted, will be a watershed in the development of Irish Family Law.

It aligns our family law with the realities of modern Irish life.

It addresses a world where children are reared within married families, within lone parent households, in blended families, households headed by same-sex couples or by grandparents and other relatives. It recognises that assisted human reproduction has created a new scientific reality where children are daily born to couples using donor gametes.

It acknowledges that all of these children have in common the fundamental need for security and stability in their family situations. They are entitled to clarity in the rules on parentage, guardianship and access. They need to know that there is someone who has a legal duty to look after them.

The Bill in effect modernises our law in relation to a range of complex and sensitive areas such as parentage, custody, access, maintenance and adoption. It adopts a child-centred approach, giving a child essential legal rights on matters that are fundamental to the child’s identity and well-being. It takes account of the changing social demographic in Ireland over the past 51 years since the Guardianship of Infants Act was first enacted in 1964. Crucially, it equips us to support the families now and in the future.

First of all I would like to set out for Members the demographic context which is shaping this legislation. Most children live in marital families with their biological parents and those families enjoy the unique protection of our Constitution in relation to marriage and the family. However, as Members of this House are also very aware from their day-to-day work with constituents, a significant minority of children live in other family types. Census 2011 indicated that there were 215,300 families headed by lone parents with children in Ireland in 2011; 44% of the parents had never been married. There were 49,005 households of cohabiting couples with children under 15 recorded in Census 2011. The number of children living in cohabiting households is rapidly increasing, rising by 41% between 2006 and 2011. These numbers indicate to us that a significant number of children may be living in households other than those headed by their married parents.

In 2010, the Law Reform Commission, in its report on the Legal Aspects of Family Relationships, identified the need for a coherent and modern legislative framework which recognises the changing nature of families in Ireland. It recommended, for example, that provision should be made for parental responsibility to be extended to civil partners and step-parents. It also recommended that a child’s relatives, persons in loco parentis or those with a bona fide interest in the child should be able to apply for custody. At the time in 2010, the Commission also noted the limited legal recognition of the rights and responsibilities of families of donor-conceived children. The Commission pointed to the issue as one that would need to be addressed by Government.

This issue has become even more pressing in the past five years. Increasingly, it is evident that those who are unable to have children themselves are using assisted human reproduction at home and abroad, in a wide diversity of situations, methods and circumstances. It is all the more complex as the sector in this country continues to be largely unregulated. Children born into these situations do not have sufficient clarity on their parentage. The Commission on Assisted Human Reproduction recognised this problem in 2005 exactly 10 years ago when it produced a comprehensive report on this issue. No Government until now has taken any action on this issue. The Commission noted that “The issue of legal parentage in Ireland of children born through donor programmes is complicated by the absence of legislation”. It acknowledged that its recommendations would necessitate a change in the current law relating to parentage. The Commission also recognised that the application of the principle of intent of the parties – for instance the intent that a donor will not have a legal relationship with the resulting child – would necessitate the broadening of traditional family structures.

Ceann Comhairle, put simply, the availability of assisted human reproduction arrangements has led to the birth of children in Ireland who need legal certainty in terms of their parentage and guardianship. In the absence of comprehensive legislation, families have to go to the courts to secure the rights of the child. We cannot continue to let children be born into the unregulated environment I have described. We have a responsibility to these children that they should have certainty with regard to their parentage.

Legislation is also needed for children growing up in family types whose needs are not addressed adequately by current legislation and the Government believes that a legislative response is needed to give clarity on the parentage of children born through AHR. That is why the Government made a commitment in the Programme for Government to address this situation by “modernising and reforming outdated elements of family law.”

The Children and Family Relationships Bill 2015, before the House today, is proposed as the legislative response to many of the issues raised by the changing composition of Irish families. It is underpinned by two key principles:

· The best interests of the child must be central to legislation governing familial relationships whether they be within the constitutional Family based on Marriage or in other family types;

· The effect of the provisions should be to promote the stability of such families and to ensure that children are enabled to enjoy relationships of care and support with parents, guardians or those acting in loco parentis.

 

In relation to surrogacy Minister Varadkar has already given a commitment to include surrogacy in the planned legislation dealing with the regulation of Assisted Human Reproduction. The Government approved Minister Varadkar’s proposals on 17 February. The Department of Health is now proceeding to the drafting of the General Scheme of a Bill and it will undertake consultation on what is a complex and sensitive area.

In fact let’s be clear about the situation - the vast majority of children will continue to live with mothers and / or fathers who are biologically linked to them, except where they have been adopted. Internationally there is a move towards open adoption where increasingly, where possible, biological parents are kept informed about their child’s progress.

The Bill will not change the rights of most children in terms of parentage. A child who is the natural child of a heterosexual couple will have exactly the same parentage rights as at present. That child will continue to be the child of his or her birth mother and natural father. However, two categories of children will get the chance to GAIN a parent or parents as a result of this Bill. A donor-conceived child will get the right, under this legislation, to gain a second parent. As it stands, if the child is born to a female same-sex couple, that child has only one legally recognised parent if the donor is unknown.

Secondly, the Bill will enable a child to be jointly adopted by couples who are civil partners of each other or who have cohabited for at least three years. The provisions on adoption will give a child in need of parents’ access to a broader pool of potential parents ready to assume parental duties towards that child. In Ireland we know that adoption numbers have changed hugely and most adoptions now are by step-parents or are international. Last year 120 adoption orders were made by the Adoption Authority of Ireland.

We will hear a range of views in the coming weeks on what is best for children. We will hear people express the view that children have a right to a mother and a father and that it is always in their best interests to be brought up by their natural mother and father in a married family setting. We will hear the opposite views that it is in the best interests of children to be brought up by any parent or parents who love the child and dedicate themselves to the child’s welfare, regardless of their gender or sexual orientation. People will bring forward evidence supporting either point of view. We know that there are many thousands of children in Ireland and many adults alive today who are being or were brought up very happily and successfully by lone parents, by civil partners or by cohabiting couples and of course, we know that the majority of children have been brought up happily and successfully in the marital family.

Our challenge is to ensure the child’s best interests are served, regardless of the family type. I have already said that I regard the best interests of the child as the golden thread running through everything that we are doing in this Bill with family law. That is the core governing principle of this Bill. The best interests of the child is key and that is the test which the Courts will apply in decisions on guardianship, custody and access. I am pleased that this Bill outlines a wide range of factors for the court’s consideration when determining a child’s best interests. These factors will include the benefit to the child of having a meaningful relationship with each parent. It will also take account of the child’s physical, psychological and emotional needs. Crucially, it will consider the capacity of the person seeking guardianship, custody or access to care for and meet the child’s needs. Of course, the court will also be able to consider any history of family violence. This is very important because of the potential impact on the child’s safety and well-being and on that of other family members. This is the first time in legislation that the principle of best interest has been outlined in such detail.

An issue that has generated widespread commentary, and in relation to which there is of course a wide spectrum of views, is the proposal to enable civil partners and cohabiting couples to adopt jointly. Under our adoption laws, since 1952 a single individual, regardless of sexual orientation, has been eligible to adopt, but at present only married couples are eligible to adopt jointly. The Bill will extend eligibility to adopt jointly to civil partners and to cohabiting couples who have lived together for three years.

I know that there has been commentary in the media that our provisions on adoption do not recognise a hierarchy of family types in which a married family is considered the best family to adopt a child. I want to be clear. My view, and the view underpinning this Bill, is that adoption is a child welfare mechanism. It is not about discriminating in favour of particular family types. It is not about the marital status of the adopters. It is about giving a child the chance to have a family. It is about matching the child to a family that best safeguards the child’s welfare. Under these provisions, each couple will be assessed on whether they are suitable to raise the child and to fulfil all parental duties towards that child. A single person will continue, of course, to be assessed on the same basis. If the married couple is considered to be the most suitable couple to adopt the particular child, that couple will be the one selected. In other cases, the couple chosen will be a civil partnered couple or a cohabiting couple. However, many of the children likely to be adopted will involve in-family adoptions in which the child’s parent and the parent’s partner jointly adopt the child. These provisions will now enable more children to get the chance of gaining a second parent who will have parental responsibilities and duties towards them.

This Bill is a good news story for many families. The most wide-ranging reforms in this Bill relate to guardianship. These reforms have the potential to benefit tens of thousands of families across Ireland. Many unmarried fathers will now become guardians automatically of their child if they cohabit with the mother for 12 months, including 3 months with mother and child following the child’s birth. That cohabitation can happen anytime between the child’s birth and when he or she reaches 18.

At the moment, guardianship is restricted to parents, except where a parent has appointed someone as a testamentary guardian in the event of the parent’s death. If a parent is hospitalised, a step-parent may have to defer day-to-day decisions affecting the child because he or she is not the child’s guardian. This Bill will provide solutions to these problems. It proposes that a step-parent, civil partner or cohabiting partner will be able to apply to court to become the child’s guardian if they have undertaken day-to-day care for the child for over two years. The cohabiting partner must be living with the parent for three years to be eligible to apply. Any existing guardian will have the right to object to the appointment.

A person will also be able to apply to court to become a guardian if she or he has provided day-to-day care for a child and there is no parent or other guardian willing to take on these responsibilities. This provision will be of benefit in situations where a grandparent, aunt or uncle has stepped in because a parent is unable to care for the child. Becoming a guardian will enable that person to take key decisions on the child’s behalf. These provisions offer good news for foster parents. It will enable them, if they wish, to apply to become guardians of the child and to offer more stability in a child’s life.

A court-appointed guardian will generally be given limited guardianship powers to enable him or her to take day-to-day decisions on the child’s behalf, such as signing the school note. However, he or she will not be able to decide where the child lives nor consent to a passport. Similarly, he or she will not be able to place a child for adoption. However, the court will have the possibility of making the person a full guardian if it is satisfied that it is in the child’s best interests to do so.

What happens to a child if the person with sole custody experiences serious illness or injury? A child can fall into a very vulnerable situation in these circumstances. The Bill provides a targeted solution to address this crisis. In situations of serious illness or injury, a parent or guardian with sole custody can nominate a temporary guardian who will be appointed by the court to take on the role of guardian temporarily. The court must be satisfied that the temporary guardian is suitable for the role and that the appointment is in the child’s best interests. There are safeguards. Tusla will be put on notice in case of any child welfare or protection issues. The appointment is subject to any limitations imposed by the court. Another welcome reform is that the Bill will enable grandparents and other relatives to have access more easily to children in the context of relationship breakdown. They will be able to apply directly to the court for access rather than having to go through the existing two-stage process whereby they have to apply to the court for leave to make an application for access.

The Bill will enable a child’s views to be ascertained in proceedings on guardianship, custody and access. These provisions comply with Article 12 of the UN Convention on the Rights of the Child which require a child’s opinion to be heard on matters affecting him or her. It is important that a child should have the opportunity to have a say on matters that are so fundamental to his or her well-being. The child will be able to give views directly, as appropriate. The court will also have the option to appoint an expert to ascertain whether the child is capable of forming views. If the child is sufficiently mature to form views on the matters that are the subject of the proceedings, the expert will have the duty to ascertain those views and to convey them to the court. This mechanism is designed for private law proceedings.

There has been a lot of public reference to the AHR provisions in this Bill. My purpose is to ensure that there is certainty of parentage for donor-conceived children. The Bill provides for those who always intended to be those children’s parents to become their parents in law. This Bill is essentially focused on parentage. The complex and wider regulation of AHR will be addressed by the Minister for Health.

However, I am very pleased that I was able to accommodate the strong recommendation of the Joint Oireachtas Committee that provisions be included to enable a donor-conceived child to trace his or her genetic identity. As Deputies will see, Part 3 provides for a National Donor-Conceived Person Register, to be established and operated in the first instance by the Minister for Health. The Minister has worked closely with me on the provisions which set out the obligations on Donor Assisted Human Reproduction facilities to record and transmit information to the Register. I am conscious that there has been some concern that anonymous donation will be prohibited, except for some small exceptions. I realise that these provisions will impose extra responsibilities on facilities. Donations may reduce in the short-term. However, international experience indicates that donations will increase after a short period. In any case, I believe that a child’s right to identity outweighs potential commercial considerations. It reflects the priority that we attach in this Bill to children’s rights.

Turning now to the description of the Bill:

Part 2 deals with parentage in cases of donor-assisted human reproduction. There are two types of couple who will benefit from these provisions – heterosexual couples and female same-sex couples who have a child through donor-assisted human reproduction. A mother’s spouse, civil partner or cohabiting partner will be able to become the second parent of a child born to both of them. There are three conditions that will have to be fulfilled. The donor-assisted human reproduction will have to take place in a clinical setting. The birth mother and the intending second parent will have to consent in advance that they will be the parents of any child born through donor-assisted human reproduction. The donor will also have to consent in advance of the procedure that he or she is a donor and does not intend to be a parent of the child. If these conditions are fulfilled, the intending parent will be recognised as a second parent under section 5. We have had much discussion in relation to adoption and the child’s right to information. Clearly the same principles apply here.

Detailed provisions have been included on the consent required of the birth mother, second parent and donor, reflecting the importance of full and informed consent in the recognition of parentage. Provisions are also included which detail the information that must be given to the birth mother, intending second parent and donor which make clear to them the effect of their consent on the parentage of the child born as a result of the procedure.

The Bill makes provision for retrospective recognition of the parentage of certain donor-conceived children. Where a child is born in the State as a result of donor-assisted human reproduction treatment carried out pre-commencement of the Bill, sections 18 to 20 outline the procedure that will apply. The second parent must be able to demonstrate that she or he knew of the donor-assisted human reproduction procedure at the time of the procedure. He or she must also be able to demonstrate that she or he intended to be a parent of the child. The donor must be unknown to the birth mother and the intending parent. If the couple fulfil those conditions, they can apply either to the District Court or to the Circuit Court for a declaration of parentage and the court can issue that declaration if it considers it to be in the child’s best interests. The declaration will have the effect that the person declared to be a parent of the child will have all parental rights and duties in respect of the child from that date.

Part 3 sets out the obligations that will apply to Donor-Assisted Human Reproduction facilities. They will be prohibited from using anonymous gametes other than in two exceptions. It will be possible for a couple who already have had a donor-conceived child to use an anonymous donation from the same donor within three years of the Act’s commencement to enable the couple to have a full genetic sibling of their child. It will also be possible to use embryos formed pre-commencement and there is no time limit on the use of those embryos in donor-assisted human reproduction treatment.

Part 3 also sets out the procedure that will apply in terms of accessing information from the National Donor-Conceived Person Register. A donor-conceived child will be able, once over 18, to seek from the Register all information held on the donor. The donor-conceived child over 18 will be able to register personal details on the Register that can be given to the donor or to a genetic sibling on request. Each party will be notified of any request for the release of information. A donor conceived child or sibling will have the right to refuse to allow information to be released from the Register. A donor will be limited to the option of making representations that there are exceptional circumstances in which release of that information would have an effect on his safety and well-being or on that of the child. The decision to release that information will then be a matter for the Minister for Health.

Part 4 introduces much-needed reforms to guardianship, custody and access in situations of relationship breakdown. I have already spoken of the guardianship provisions. This Part also enables a relative to apply for custody of a child. A parent’s spouse or civil partner or a parent’s cohabitant of not less than three years’ duration can also apply for custody where s/he shared parenting of the child for 2 years. A person can apply for custody if s/he has parented the child for a year and if there is no parent or guardian willing or able to exercise the powers and responsibilities of guardianship.

The Part also proposes a set of enforcement procedures in relation to custody and access. These provisions are intended to ensure that both parents can have meaningful relationships with their child even in a context of relationship breakdown. Measures will promote compliance with court orders on custody and access. These include allowing a court to require a parent who is persistently flouting a court order to attend a parenting programme or to give the other parent extra time with the child to help rebuild their relationship.

Part 5 makes technical amendments to the Succession Act 1965 to address situations in which civil partners are both the legal parents of a donor-conceived child. The technical amendments also address situations in which joint adopters are not married or civil partners of each other.

Part 6 amends the Family Law (Maintenance of Spouses and Children) Act 1976 to deal with maintenance liabilities in situations where the parents of a dependent child are of the same sex and are not married to one another. The amendments also allow the court, in certain circumstances, to order payment of maintenance by the cohabitant of a child’s parent for the support of the child. This potential maintenance liability can arise when the cohabiting partner is a guardian of the child.

Part 7 amends the Status of Children Act 1987 in relation to declarations of parentage and DNA testing. Section 75 amends section 35 of that Act to widen the category of persons who can apply to the court for a declaration of parentage.

Part 7 also amends the Status of Children Act 1987 to provide for DNA testing, such as of mouth swabs or saliva samples, to be used as the primary means of establishing parentage.

Part 8 amends the Family Law Act 1995 to enable the court to order maintenance payments by the cohabiting partner of a child’s parent for the benefit of the dependent child and to make associated provisions.

Part 9 amends the Civil Registration Act 2004 to provide for the registration of the birth of a donor-conceived child where the second parent is a parent under section 5 of this Bill. This is a change from the General Scheme as circulated. A couple will be able to have the child’s birth registered by the An tArd-Chláratheoir and will not have to go through a court-based procedure for recognition of parentage.

Section 88 inserts a new section 19A into the Civil Registration Act which details the process of registration of the child’s birth. The new section requires that the parents provide An tArd-Chláratheoir with a statutory declaration that they are the child’s parents. It also requires that they furnish a certificate from the Donor Assisted Human Reproduction facility. This certificate must state that the parents have consented to be the child’s parents, as is required under Part 2 and that the donor has also consented in accordance with that Part that he or she is not a parent of the child.

Section 89 deals with the situation of donor-conceived children who are born through a donor-assisted human reproduction procedure that took place before the Act is commenced. The parents who have secured a court order under section 19 or 20 declaring them to be the parents of the child can have the child’s birth re-registered. This provision will enable the second parent to be registered as the child’s parent on the child’s birth certificate.

Part 10 amends the Passports Act 2008 to enable the Minister for Foreign Affairs and Trade to issue a passport to a child living outside the State without the consent of a guardian in certain circumstances.

Part 11 amends the Adoption Act 2010. I have already mentioned that civil partners and cohabiting couples who have lived together for over three years will be eligible to adopt jointly providing of course they have been assessed as suitable to adopt. The amendments to the Adoption Act provide for the existing assessment and eligibility criteria to be extended to these couples. In addition, technical amendments are proposed to the Adoption Act to address situations in which a donor-conceived child is being given up for adoption. Where the child of a female same-sex couple is proposed to be placed for adoption by the birth mother, the second female parent will have the same rights under the Adoption Act as are held by a father.

Part 12 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to extend the protections of that Act to dependent children of one or both civil partners. These protections relate to maintenance and the protection of the family home. They provide – in specified circumstances - for a civil partner to have a potential maintenance liability in respect of a dependent child of the civil partners.

Sections 143 to 162 allow the court, when dissolving a civil partnership, to take account of the position of any dependent children and to make orders for their benefit.

Part 13 makes a number of changes to other Acts stemming from the provisions of this Bill. They enable, inter alia, a civil partnered or cohabiting male same-sex couple to qualify for adoptive leave and for a female second parent to qualify for certain rights to maternity leave and parental leave. Section 171 amends the Adoptive Leave Act 1995 to enable a same-sex adopting couple to qualify for adoptive leave. One member of the couple will be entitled to the adoptive leave. The couple will be able to choose which member of the couple should take the leave.

In 1987, the Status of Children Act, by abolishing the concept of illegitimacy, began the process of dismantling the family law architecture that treated children differently because of the families into which they had been born. The Children and Family Relationships Bill is a major step forward in terms of equality for children. It protects the rights of children of married families. Equally, it gives new rights to children living in other family situations. I am confident that hundreds of thousands of children will benefit from its provisions. Thousands of families will gain a stability and security they've not had up to now.

This Bill is child centred and family centred. This is an ambitious Bill which sets a blueprint for family law for the decades to come. Its reforms are long overdue. We owe it to the children of Ireland to give them the security and stability in their families that they deserve. I commend this Bill to the House.