Children and Family Relationship Bill 2013

 

Children and Family Relationships Bill 2013.

Families in Ireland today come in many different forms. However, this is not reflected in the law. Families of unmarried parents, same-sex couples and cohabitants have long been discriminated against under the law. The area is regarded by many legal academics and practitioners as ill-equipped for the complex modern Irish family.

The current law was drawn up in the 1960s and does not reflect the Ireland of today. Laws relating to paternity and children of unmarried individuals date to the mid-1980s and there are no laws to govern the area where children are born as a result of assisted human reproduction or surrogacy.

The Children and Family Relationships Bill 2013 is designed to fill this serious legislative void within Irish law and recognize for the first time the diverse range of family types that make up Irish society. Minister for Justice Alan Shatter has described the bill as “contemporary legal architecture” on guardianship, custody, access and the raising of children in family types ranging from married families, couples and civil partnerships, families involving the extended family and families based on cohabiting parents.  He believes “This is finally addressing areas that have been substantially ignored by successive governments,”

In the case of step-parent adoptions (where a mother with a child born outside of marriage, is now married to a man other than the father, but wants legal recognition of the relationship between the two) mothers must perform the artificial procedure of adopting their own child as part of the process. The new Bill will allow husbands to become joint guardians in these situations where it is in the child’s best interest without entering the adoption process. The bill also provides for those cohabiting with the biological or adoptive parent and for same-sex civil partners to apply for guardianship of a child. In the case where a grandparent for example seeks access to a child, the access provisions will also be improved compared to their current two-stage format for a person other than a parent.

Surrogacy laws under the new bill will allow the court to assign parentage on the basis of a genetic connection to one of the proposed parents and their partner. Payment for a commercial surrogacy is prohibited and the only payment allowed will be limited to the reasonable costs that may be associated with pregnancy. The area of assisted human reproduction will also finally be given legal clarity. This will give thousands of families who have had children using donor eggs or sperm, comfort, reassurance and significantly, protection under the law. The new provision will provide that in cases where donors are used, the parents will be the birth mother and her consenting partner. This is particularly important now at this time given the recent High Court ruling that parentage was based on genetics, the donor mother rather than the birth mother.

An area that is long overdue to be addressed is that of adoption by same-sex couples. This area will finally be legislated for in this proposed law or in a related piece of legislation. At present, only one member of a same-sex couple may adopt a child and be regarded as that child’s legal guardian. The law allows the adoption of children by married couples and single heterosexual or homosexual individuals. It does not provide for adoption by cohabiting couples or by civil partners. A law that allows the adoption of a child by a person who is gay but prohibits it in the case of a same-sex couple is nonsensical and discriminatory. This is a sentiment that the Justice Minister himself has previously expressed. It will therefore allow for the adoption of children by same-sex civil partners for the first time.

The bill is also a welcome step for the rights of fathers who have campaigned for years for better legal recognition as guardians of their children. The legislation is set to improve the recognition of single fathers. The number that will automatically be legally recognized as guardians of their children will increase as the bill will recognize that the father of a child born outside of marriage is a guardian of his child where he has cohabited with the child’s mother for a year before the birth and the cohabitation has not been ended for more than 10 months before birth.

The bill proposes to introduce new welcome penalties for parents who do not comply with maintenance or access orders. Up until now the penalty has been imprisonment for breach of a court order but it is not used as this is not a resolution to the problems access or custody.

Most importantly, this new legislation will put the child’s best interest first. The bill will set out what constitutes the best interests test. A child over the age of 12 will be addressed in relation to applications for guardianship.

The planned reforms have the support of the Government, however it can be easily predicted that they will be controversial among conservative Catholics and the Church in their provisions to allowing same-sex couples in civil partnerships to adopt children. The heads of the new Children and Family Relationships Bill are expected to be published this month by the Minister for Justice.

 

 

James Dooley, GCD FLAC.