Check Against Delivery

 

16 April 2015 

Diversity of families recognised in legislation

The Children and Family Relationships Act 2015 is a child-centred act which addresses the rights of children to legal security, to the care of their parents and important adults in their lives, and to equality before the law. My guiding principle in the development of this legislation is that no child should be seen as a second-class citizen by virtue of that child’s family type. No child should feel that his or her family matters less to us because of its form. No child should have to face legal insecurity because his or her family is not a married family. Every child matters. We began the process of ending discrimination against children because they were not members of a marital family when we abolished illegitimacy in 1987. I am proud that the Children and Family Relationships Act 2015 will now enable many thousands of children across Ireland to know that they are valued, regardless of their family type. As a result of this legislation, those thousands of children will gain the legal security that they deserve on issues that are fundamental to a child’s well-being and identity.

Modernising and reforming outdated elements of family law

The Children and Family Relationships Act 2015 provides a comprehensive reform of family law to bring it up to date with the realities of family life in Ireland. As we know, there are very many different family types in Ireland in 2015. We know that there are many families headed by married parents, by lone parents and by cohabiting parents. We know that children are being raised by same-sex couples. We know that there are children growing up in blended families, living with step-parents or with a parent’s cohabiting partner. 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. This provides just a partial illustration of the diversity of family life. It confirms why it was important and necessary that the Government should take action now to fulfil its commitment to ‘modernise and reform outdated elements of family law’.

Conferring rights and recognition on more people does not mean that we are taking them away from others. What it does mean is that we are providing legal rights and protection to more people, more families, and very particularly to the children of those families. At the same time, this legislation is grounded in respect for the rights of families based on marriage. Article 41.3 of the Constitution requires the State to guard with special care the Family based on Marriage. This legislation does not nor could not affect or undermine those constitutional provisions.

Fathers’ rights strengthened

The provisions of the Bill which will affect the largest numbers of people are those on guardianship. These were extensively debated in the Dáil and in the Seanad, most particularly in relation to the guardianship status of non-marital fathers. Until now, non-marital fathers have never been automatic guardians of their children. The Act changes that situation. Where a non-marital father is living in a family unit with the child’s mother continuously for a year, including not less than three months after the child’s birth, he will automatically be a guardian of the child. That cohabitation requirement can be fulfilled any time before the child turns 18.

Registration of births and statutory declarations

In addition, as a result of amendments that I proposed after Dáil discussions, it will now be possible for registrars to witness statutory declarations by unmarried parents appointing the child’s father as a guardian. The statutory declaration mechanism to appoint a non-marital father as a guardian is a simple and straightforward one, but there is very little public awareness of it. As a result of the changes that I am making, non-marital parents will be informed of the possibility of making the statutory declaration when registering the birth of a child. They will have the option of making the declaration, witnessed by a registrar, within two weeks of registering the child’s birth. Information will also be available to inform non-marital fathers to counter the mistaken assumption held by many non-marital fathers that they are guardians by virtue of having their names on the child’s birth certificate. With this provision I have provided a simple and direct guardianship opportunity for a non-marital father at the point of registration and I expect that this will be availed of by many.

These measures will improve the position of non-marital fathers significantly in relation to their children, and ensure that many involved non-marital fathers will become guardians automatically. Others will have the information on how to become a guardian given to them at a very early stage in the child’s life. I also plan to develop a pilot project aimed at examining the feasibility of a voluntary repository for statutory declarations.

Two year review

I have also made a commitment to review these provisions within two years to ensure that they are working effectively. My objective is to facilitate as many non-marital fathers as possible to become guardians. At the same time, it is important to ensure that a child’s best interests are safeguarded and that neither the child nor the mother should be put at risk as a result of these provisions.

Guardianship – day-to-day decisions

Our reforms to guardianship for non-marital fathers are significant, but they are by no means the only changes in this area. The Act also allows a step-parent, a civil partner or a parent’s cohabitant of not less than 3 years’ duration to apply to the court to become a guardian where he or she has co-parented the child for 2 years. These guardians will generally have restricted powers limited to decisions on day-to-day matters other than where it is in the child’s best interests for the guardian to have full guardianship powers. As such they strike a careful balance between the responsibilities of parents and the need for the person caring for a child on a daily basis to be able to take day-to-day decisions on behalf of that child.

Grandparent guardianship

Other adults may also apply for guardianship where they have cared for a child for more than a year, if the child has no guardian willing or able to exercise guardianship responsibilities. This will greatly assist in some complex family situations, such as where a grandparent or other family member is caring for a child because the parents are unable to do so. Where these situations arise, the legal standing of the child’s carers has been quite uncertain up to now. The Act’s provisions will be very practically useful in ensuring that such carers have the legal powers that they need to take responsibility for the child. The Act also makes it easier for grandparents to have access to a child in the context of relationship breakdown between the child’s parents.

The Act makes provision for another new form of guardianship, called temporary guardianship. As many of you will be aware, a child’s guardian parent is entitled to appoint a “testamentary guardian” to be the child’s guardian if the parent dies, together with any other surviving parent or guardian. Many parents of young children are advised to consider appointing such a testamentary guardian when making a will. Thus, a parent is able to make contingency plans for the care of his or her children in the event of the parent’s death.

What has not been possible up to now is for a guardian parent to appoint someone to act as guardian if that parent is unable, through serious illness or injury, to exercise his or her guardianship. This is particularly critical for lone parents, especially where the other parent is not playing an active role in the child’s life. The Act enables the parent to nominate a person to act as guardian in the event of the parent’s serious illness or injury. The nominated person can apply to court to act as guardian if the parent is subsequently incapacitated. This provides a safeguard to ensure that the child’s best interests are properly considered. It will allow parents to make contingency provision for their children against some of the most serious events, short of death, that could befall the parents. It ensures that a trusted relative or friend can take on a formal role in relation to the child, subject to the court’s approval.

Hopefully, the appointment of temporary guardians will always be rare, since they will only be appointed where the parent is so seriously ill or injured as to be unable to care for a child. But I think it is a very valuable addition to our family law code since it will give parents comfort that they can ensure that the welfare of their children is safeguarded even when they are unable to do so.

Child’s best interests

I have stated that I see the child’s best interests as the golden thread running through this legislation. The Act provides that the child’s best interests are the paramount consideration in decisions on guardianship, custody and access. It sets out 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 to meet the child’s needs. The court will also be able to consider any history of household violence. This is very important because of the potential impact on the child’s safety and well-being and on that of other members of the household.

First detailed outline of best interests

I believed that it was important that the Act should set out factors for possible consideration by the court in making its best interests assessment. I believe that this provision will be of assistance to the courts. At the same time, they should assist private individuals taking family law cases. However, I would like to clarify that this list is not exhaustive. Not all of the factors outlined will be relevant in all circumstances. Furthermore, depending on the precise circumstances of a particular case, other factors particular to the child and the family concerned may require consideration. I would not like this to be seen as a “box-ticking” exercise – rather, it is guidance as to the types of issues which may require examination.

Child’s voice

One of the Act’s other important reforms is that of enabling a child’s voice to be heard in family law proceedings. The Act makes provision for the child’s views to be heard in proceedings that can be vital to the child’s well-being. Depending on the age and maturity of the child concerned, the child’s views may be heard directly by the court. A teenager may, for example, be willing and able to convey his or her views directly without requiring them to be mediated through another person. Younger children may not be able to offer their views directly or might find it intimidating to do so. In such cases, the court can appoint an expert to ascertain the child’s views and to report them to the court. The Act’s provisions allow the courts to take account of the evolving capacity of children, and give them the flexibility to ensure that all children’s views can be heard. I believe that this is a crucial provision to give a child a voice in family law proceedings.

Parentage provisions

The Act addresses several major areas of the law as it relates to parentage for donor-conceived children. The Act provides the first steps to recognising the reality of donor-assisted human reproduction in Ireland. This is long overdue. Many children have been born in Ireland to parents who have used donor gametes to enable them to have a child, and the legal parentage of many of those children has until now been very uncertain.

We do not have comprehensive figures for the number of children born through donor-assisted reproduction procedures, but data from 2010 indicated that 300 procedures involving donor gametes took place that year in 6 of the 7 IVF clinics operating in this field in Ireland.

Ten years ago, the Commission on Assisted Human Reproduction recommended action on this issue. It noted that “The issue of legal parentage in Ireland of children born through donor programmes is complicated by the absence of legislation”. The Commission 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 to encompass the social family.

Under the law as it stands, the birth mother of a donor-conceived child has certainty as to her situation. Supreme Court case law, in the case of MR and DR versus An tArd-Chláraitheoir, confirms that the birth mother is the mother of the child, regardless of whether she is also the genetic mother of the child. The Act will not change the situation of the birth mother. She will continue to be the mother of her child. What this Act does change is the situation of the intending second parent of a donor-conceived child.

At present, the situation of a second parent of a donor-conceived child is uncertain. The law currently applies a presumption of paternity in favour of a married woman’s husband. This allows the married father of a donor-conceived child to be presumed to be the child’s father, even if he is not biologically linked to the child.

The non-marital father of a donor-conceived child can jointly register the child’s birth with the mother, but arguably, the parents may be committing an offence in so doing. In either case, if that presumption is tested, such as in the event of a family dispute, the man’s paternity can be rebutted.

This underscores the importance of the new provisions in this Act which can secure the legal relationship of that father with his child.

It is even more difficult for the second member of a female same-sex couple. Under the law to date, she has had no means of being recognised as the parent of a child whom she may be jointly raising with her partner.

These elements of this Act, when commenced, will give certainty to donor-conceived children with regard to their parentage. It will enable those who have brought a child into being, in mutual love and commitment to each other and to the child, to be recognised as the child’s parents. The Act addresses the current anomalous situation whereby the second person, who may have shared in all of the joys and fears of pregnancy and birth, is a stranger in law to a child. It rectifies this situation and provides a pathway to parentage for the second parent.

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.

Certain conditions will have to be fulfilled. The donor-assisted human reproduction will have to take place in a clinical setting. This, and informed consent, are key to parentage where a child is born through donor-assisted human reproduction. Where the birth mother and her husband, civil partner or cohabitant both consent in advance of the donor-assisted human reproduction treatment to becoming the parents of a child born as a result, they can both be registered as the child’s parents. The donor must also have donated gametes on the clear understanding that the donor knows that he or she will not legally be a parent of a child born as a result of that donation.

The Act 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 prior to commencement of Parts 2 and 3 of the Act, sections 20 to 22 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 undertook to care for, and to exercise responsibilities towards, any child born as a result of the procedure as it she or he were 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.

Child’s identity

Hand-in-hand with recognising the parentage of the second parent, the Act will also safeguard information on the child’s genetic identity. This was a key recommendation of both the Joint Oireachtas Committee on Justice, Defence and Equality in its pre-legislative scrutiny of the Bill, and of the Ombudsman for Children. It is also grounded on the principles set out in the UN Convention on the Rights of the Child, although it is not a requirement of the Convention.

The Act therefore provides for the establishment of a National Donor-Conceived Person Register, on which the identity of a donor-conceived child, his or her parents, and each relevant donor will be recorded. The child will have a right to access identifying information about a donor on attaining the age of 18.

Clinics will also be prohibited from providing donor-assisted human reproduction services using gametes donated on condition on anonymity, except for certain specific situations which are generally time-limited. This is to ensure that donor-conceived children will have the possibility of tracing their identity.

The provisions in the Act in relation to donor-assisted human reproduction are strictly about parentage and identity. The broader regulation of assisted human reproduction will be undertaken by Minister Varadkar in separate legislation, the draft General Scheme of which is currently being developed. Minister Varadkar intends to undertake a consultation process on these proposals later this year.

I am happy to say that the Government has approved Minister Varadkar’s preliminary proposals, including in relation to surrogacy. It is appropriate that Minister Varadkar’s legislation should be the vehicle in which these complex issues can be given the detailed examination that they require. Stakeholders will be able to give their views during the consultation process on the legislative proposals.

Child welfare not family types key to decisions on adoption

The Act also, of course, addresses parentage issues in the context of adoption. Minister Reilly has outlined the provisions of the Act to you in this regard. There has been some commentary on the provisions to enable civil partners and cohabiting partners to be eligible to adopt children jointly. Some have argued in favour of a hierarchy of family types, with married couples viewed as the optimal family for an adoptive child. I have made clear my position that I do not favour a hierarchy of family types in terms of adoption. Indeed, I have been very concerned at the suggestion that there should be a change in public policy from approaching adoption as a child welfare measure to one in which the family type of the potential adopters would be the crucial factor. The point of departure has to be the best interests of the child involved. Sometimes, a child’s best interests will be served by being adopted by a married couple. Sometimes, it will be in the child’s interests to be adopted by a cohabiting couple or by civil partners. The key issue, as the international research has shown, is good parenting rather than a specific family type.

 

Parenting

I take the issue of parenting very seriously. It is crucial for a child to receive good parenting, including in the context of relationship breakdown between his or her parents. The Act also creates new 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. My philosophy is that the interests of the child should be paramount, even when parents, locked in relationship conflict, are unable to see beyond their own concerns.

It is also crucial to a child’s welfare that the child be properly provided for if the relationship breaks down between the adults who have been rearing that child. Sometimes, the child has been reared by a same-sex couple. Sometimes, she or he is being reared by a parent and by the parent’s partner. The break-up of such a relationship can have significant consequences for the child. The Act recognises that the realities of new family types must also be reflected in the law on maintenance. The Act makes certain reforms to the law on maintenance, in particular to deal with maintenance liabilities where the parents of a dependent child are of the same sex. This will ensure that same-sex parents, whether they are parents through donor-assisted human reproduction or by adoption, will have the same maintenance responsibilities as any other parents in respect of their children. Where those parents are civil partners of each other, the protections contained in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 are also extended to the dependent children of the civil partners. In addition to maintenance, these protections relate primarily to the protection of the civil partners’ home.

Other maintenance reforms will 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 only when the cohabiting partner is a guardian of the child.

Family courts

I have touched on key aspects of the Act, and what its practical effects will be for families and children. But I should also say that we have further plans for reform. As well as Minister Varadkar’s proposals for the wider regulation of donor-assisted human reproduction, my own officials are working on the General Scheme of a Family Courts Bill. My intention is that, to go with a modernised and reformed family law code, we will also have a modernised and reformed family court system, which is more responsive to the needs of families and children. I expect that the General Scheme will be published before the summer recess. Work is also advancing on a Mediation Bill.

Transformative legislation

The end result is an Act which will be genuinely transformative. It will change and improve how we provide legal recognition and support for the huge variety of family types in which children live. It will determine how we establish the legal relationships between children and their parents, step-parents and those caring for them. It will also provide meaningful recognition to the complexities of blended families.

The Children and Family Relationships Act will benefit many thousands of children and their families. It will give stability and certainty to the children and their parents. It will place a child’s best interests at the heart of key legal decisions concerning a child’s life. It will give the child a voice in the process.

More fundamentally, the Act gives a message to children across this country that we treasure and respect them across the diversity of their families. It does not change the constitutional position of the marital family but it tells them that their families matter. It tells them that their families deserve to be protected and supported. It tells them that the time has passed in which some children might be viewed as second-class citizens because of their families. Nelson Mandela famously said that "There can be no keener revelation of a society's soul than the way in which it treats its children." I am proud that the Children and Family Relationships Act 2015 confirms the importance that we attach to equality for children and for their families.

Thank you very much.