Speech by Minister Alan Shatter T.D., Minister for Justice and Equality, at the Children’s Rights Alliance’s Information Seminar on the Children and Family Relationships Bill

I would like to thank the Children’s Rights Alliance for the invitation to speak at its information seminar on the draft Children and Family Relationships Bill. I would like to acknowledge the pivotal role played by the Children’s Rights Alliance in championing the rights of children in our society. The Alliance has consistently reminded Irish society of its responsibility to protect and to nurture children. It has demonstrated how international frameworks such as the UN Convention on the Rights of the Child can be used in a domestic context to promote children’s rights. It has also highlighted the positive role being played by the EU in relation to children. The Alliance’s work has deepened our understanding of the needs of children and of the way in which those needs can be addressed.

Of course, the Children’s Rights Alliance has consistently pressed the case for legislation to respond to the diversity of children’s situations. In this context, I am very pleased to have the opportunity to speak to you about my proposals for a Children and Family Relationships Bill. The Bill is designed to put in place a comprehensive legal architecture to underpin the wide range of families in which children are being raised. Today’s seminar is particularly timely as the Joint Oireachtas Committee on Justice, Defence and Equality has just held its pre-legislative scrutiny hearings on the draft legislation. I look forward to the Committee’s report, which is due before Easter. Its report will enable me to consider if changes need to be made to the General Scheme or if further issues need to be included. The Committee’s report will therefore feed into the refinement of the General Scheme and into the subsequent drafting process for the Bill. Your views and your input into the consultation are tremendously important and I am very glad to note that the NGO sector has extended a broad welcome to my legislative proposals.

This legislation will constitute a radical reform of the law as it relates to children and their parents. Many of the proposals are reforms that I have long considered necessary based on my extensive experience as a family law practitioner. Other proposals, particularly relating to the complex issue of surrogacy, are relatively new and have come to prominence only within the last small number of years. As such, they reflect the impact which new technologies and social attitudes can play in creating new forms of family with corresponding legal needs.

My legislation is not intended to regulate the broader medical, commercial and ethical issues around assisted human reproduction. These are, primarily, a matter for my colleague the Minister for Health. He is examining proposals to regulate assisted human reproduction and related matters. He will make a decision on these matters in due course in the context of on-going legislative priorities. I am very much aware of the importance of these issues, including that it is essential to vindicate the right of the child to know his or her identity including genetic origins.

I have been particularly conscious, in developing this legislation, of the need to reflect the increasing diversity of family forms. The marital family has, quite rightly, always attracted substantial legal protections for all its members. However, significant – and ever-increasing – numbers of children are growing up in families with unmarried parents. Many are being raised with one parent and that parent’s cohabiting partner or civil partner or are spending time with each parent and their new partners. Even where relationships between all the parties are good and positive, such blended family arrangements can be complex and difficult to manage within our current legal structures. As you know, the parenting role often being fulfilled by a step-parent, for instance, is not currently recognised.

As UN Secretary-General Ban ki-Moon said last year in his message to commemorate the International Day of Families: ‘Families hold societies together’. The well-being of families is crucial to our well-being as a society. This is why we must move towards giving recognition and support to the range of family forms within which children are being reared. This is not to “downgrade” or devalue the traditional marital family – rather, it is to embrace the multiplicity of other family forms and to ensure the children growing up in those families have the reality of their lives and families valued too. If we cherish our children equally, we have a responsibility to put legislation in place that encompasses children across a range of situations. I view it as fundamentally unfair that children should be less protected by virtue of living in specific family forms. Children do not choose the families in which they are being raised and should not be penalised for their parents’ entirely legitimate choices. Children do not know whether or not they are members of a constitutional family. What they know is that their family is the centre of their world. When that family is in crisis, all the child wants is for the storm to pass and for their world not to disintegrate. We cannot ignore the needs of large numbers of children simply because they live in new family forms.

The draft Children and Family Relationships Bill aims to respond to the needs of children across a range of family forms. These reforms focus more than ever before on the child at the centre of the family. My guiding principle in developing this legislation is that the best interests of the child must prevail, particularly in instances of family conflict. I believe that my proposals to bring legal clarity to parentage, guardianship, custody and access for children across a range of diverse family forms will be of great benefit to children throughout Ireland.

In my career as a family law practitioner, I saw all too frequently how family conflicts could have seriously negative implications for children. Family break-ups are painful for everyone concerned and it is natural and understandable that sometimes couples are bitter. But all too often, children’s best interests can be sidelined in the acrimonious battles between their parents. I am determined to change existing procedures so that the child’s best interests will be truly paramount. I also want to give greater encouragement to parents to reach agreed solutions.

The draft Children and Family Relationships Bill aims to put in place a legal architecture which will offer recognition and support to a wide range of different family structures. It will offer a range of solutions for families to manage their family lives and to resolve disputes where they occur.

The legislation seeks firstly to provide clarity in terms of parentage. Our current understanding of the legal position is that mater semper certa est, that is that “motherhood is always certain”. This position is currently under consideration by the Supreme Court in a high-profile case concerning children born through surrogacy. The legislation provides for certainty of motherhood by, in effect, putting on a statutory basis the mater semper principle – this is of course without prejudice to whatever conclusions the SC may reach in the case currently before it. This is to affirm the common-law understanding which currently benefits a significant number of women who have given birth through egg donation.

There will be a presumption, which can be rebutted, that a married father is automatically the father of the child. Likewise, a woman’s cohabiting partner will also generally be presumed to be the father of her child. The latter presumption will operate in circumstances where the mother and her cohabiting partner have cohabited for more than a year and provided that the cohabitation does not end more than 10 months before the child’s birth.

More children than ever are being born to Irish parents through assisted human reproduction and surrogacy arrangements, in Ireland and abroad, in a wide range of situations, methods and circumstances. These arrangements are leading to the birth of children in respect of whom the law must provide certainty. Increasingly, these issues are ending up in our courts with protracted and difficult proceedings regarding parentage and guardianship. The draft Bill seeks to provide a legal solution to these issues. It proposes, in relation to assisted human reproduction, that the birth mother would continue to be the mother of the child in all cases. This will protect the legal status of women who have given birth through egg donation.

Where a child is born through sperm donation, the law by application of a legal presumption currently allows a mother’s husband to be recognised as the father of the mother’s child. Where sperm donation is used by cohabiting couples, they may be registered as mother and father to the child where the use of a sperm donor is concealed. However, such fatherhood can be brought into question in the event of any family dispute or where there is no such dispute, by the sperm donor. In general terms with regard to cohabiting couples under the Bill, the rule will be that the child’s other parent is determined by reference to a committed relationship with the child’s mother, and the appropriate consent to using a donor sperm.

The mother of a child born through surrogacy will also be the birth mother. The draft Bill provides for the transfer by court order of the surrogate mother’s parental responsibilities, if she consents, to the commissioning parents. It requires at least one of the commissioning parents to be genetically linked to the child. The draft Bill proposes that altruistic surrogacy would be permitted but that commercial surrogacy would be prohibited. I believe that the proposed approach can safeguard the welfare of the child while protecting vulnerable potential surrogates against exploitation.

I have also provided for transitional arrangements for children born through surrogacies entered into before the proposed ban on commercial surrogacy. Under current law, a father’s paternity is recognised by reference to his genetic connection to the child. However, even if the intended mother has a genetic connection to the child, she cannot currently be recognised as a legal mother. Once the Bill is enacted, the parents of these children will be able to apply to court for recognition of the intended mother as the legal mother of the child.

The draft Bill aims to rectify the current anomaly in the adoption legislation preventing civil partnered couples from adopting children jointly. Since 1952, married couples have been able to adopt jointly while unmarried people can adopt only as single individuals. The sexual orientation of an individual has never rendered an individual ineligible to adopt under our law. This has led to the anomaly under which gay and lesbian people may adopt as single individuals but a couple in a civil partnership cannot adopt jointly. The draft Bill provides for civil partnered couples to be assessed as joint adopters in the same way as married couples. Under these provisions, the Adoption Act 2010 will be amended to enable the same criteria for eligibility and suitability to apply for civil partnered couples as for married couples.

My legislation will repeal and replace the Guardianship of Infants Act 1964, as amended. In these reformed provisions, I have provided a comprehensive definition of the best interests of the child to be applied in proceedings on guardianship, custody, access or in the administration of property on behalf of a child. This definition is broader than the current focus on a child’s welfare and reflects the purpose of the Children Amendment which seeks to place the interests of the child at the heart of decisions affecting a child’s life. The new definition refers to the benefits, in most circumstances, for a child of having a meaningful relationship with both parents. It also requires account to be taken of the ascertainable views of the child, having regard to the child’s age and maturity. It includes the physical, psychological and emotional needs of the child, including the child’s need for continuity and stability. It also takes into account the history of the child’s upbringing and care, including the nature of the child’s relationship with both parents and with other relatives. It encompasses the child’s religious, spiritual, cultural and linguistic upbringing and needs as well as the child’s social, intellectual and educational upbringing and needs. It also, of course, takes account of any harm or risk of harm suffered by the child as well as any plans proposed for the child’s custody, care, development and upbringing and access.

I am providing for a statutory definition of guardianship that would include all the rights and obligations of a parent, all additional statutory powers and any further powers under common law, including in relation to a child’s estate. However, there will not be an obligation on a guardian who is neither a parent nor in loco parentis to maintain the child from the guardian’s own resources. A guardian who is neither a parent nor in loco parentis will generally be appointed as a testamentary guardian. The surviving parent, if any, will remain responsible for the child’s upbringing and maintenance. In line with the overall focus on a child’s best interests, all guardians will be explicitly mandated to act in a child’s best interests.

The draft Bill proposes to retain existing provisions whereby a birth mother is automatically the guardian of her child. It also proposes to expand the category of unmarried fathers entitled automatically to be guardians of their children. Under these provisions, an unmarried father will be entitled to automatic guardianship of his child if the father has cohabited with the child’s mother for a period of 12 months before the child’s birth and where the cohabitation has ended, if applicable, no later than 10 months before the birth.

I believe it vital to provide for the reality that many children are living in blended families with step-parents or with a parent’s civil partner or cohabiting partner. The draft Bill broadens the categories of person who can apply to become a guardian of a child. A step-parent or the parent’s civil partner or a person who has cohabited with the parent for over three years and who has shared a parenting role for a child for more than two years will be able to apply to become a child’s guardian under these provisions. I have also provided for a person providing day-to-day care for a child for more than 12 months, such as a grandparent for instance, to apply for guardianship where there is no parent or guardian willing or able to fulfil their responsibilities. Consent would be required, of course, of each guardian of the child and of the child, if over 12.

These provisions are very much along the lines recommended by the Law Reform Commission in its 2010 Report “Legal Aspects of Family Relationships”. Their purpose is to recognise the reality of the child’s family and the role a parent’s partner plays in their lives, whether that person is a spouse, civil partner or long term cohabitant.

I propose to replicate the provisions of section 7 of the Guardianship of Infants Act 1964 enabling parents to appoint testamentary guardians.

I am also providing for a new category of guardian, described as a substitute guardian, who would be appointed by the child’s parent for a specified period during which the parent might be unable to exercise the rights and duties of guardianship in relation to the child. It is an anomaly that a parent may appoint a trusted friend or relative as a testamentary guardian to act in the event of the parent’s death, but cannot appoint somebody to act on their behalf if they are temporarily or permanently incapacitated. I believe that this new provision will help to safeguard the child’s welfare in the context of family crisis or tragedy. Accordingly, I am creating this new form of guardianship which will allow parents to make contingency plans for their children’s care and upbringing. This is a recognition of the fact that parents are usually best placed to understand their child’s needs and how to meet them. Parents are often the best judge as to who might best meet those needs if the parents were not in a position to do so. It also ensures that guardianship can vest in the child’s main care-givers, even where the arrangement is temporary.

There are many cases in which relationship breakdown can create collateral damage, with grandparents and other members of a child’s extended family finding it difficult to maintain contact with a child. I believe that it is usually in a child’s best interests to be able to maintain contact with grandparents and with both parents’ families. I am proposing to make it easier for a relative to apply for access to a child by streamlining the existing provisions to remove the cumbersome two-stage application process for access to a child.

Many of you will know of my commitment to, and interest in, mediation and alternative dispute resolution mechanisms as a means of solving such disputes. I see mediation as particularly fruitful in cases involving children as an agreed solution on custody and access is better for children. Parents are also far more likely to abide by an agreed solution so it is more sustainable for the family and more predictable for the adults and children alike. It also reduces the potential for stress or conflict between the parents which is similarly better for everybody concerned.

The draft Bill accordingly reiterates the duty on solicitors, under sections 20 and 21 of the 1964 Guardianship of Infants Act, as amended, to inform their clients of alternatives to court proceedings and to encourage them to engage in counselling and mediation aimed at finding non-adversarial solutions to family disputes. The draft Bill also proposes to amend section 47 of the Family Law Act 1995 to enable the District Court as well as the Circuit Court to seek expert reports on questions affecting the welfare of a child.

It also retains the provision enabling the court to appoint a guardian ad litem to assess the best interests of the child and to report to the court accordingly. The draft Bill defines the role of the guardian ad litem as an independent officer of the court who is neither a party to, nor the subject of, proceedings. Accordingly, the Bill proposes that they would not need separate legal representation.

However, I should add that my Department and the Department of Children and Youth Affairs are currently engaged in detailed discussions on the implementation of the Children Amendment to the Constitution. As you are aware, the Amendment sets out the importance of ascertaining the “voice of the Child” in proceedings related to children. The aim of the discussions between our Departments is to establish effective mechanisms to ensure that children are enabled to be heard in court proceedings, depending on their age and maturity. We need to ensure that the experts chosen for this role have the necessary skills. It is important that children and their families receive good quality services from those appointed to support children in having their views heard in court. With this in mind, I am currently exploring the feasibility of a possible pilot project by the Probation Service whereby Probation Officers would undertake Section 47 reports in family law cases. Ideally, we should have a mix of qualified child experts in view of the diversity of children’s needs across public and private law proceedings. Of course it is important that such a service be not identified with our criminal processes and ultimately, in the context of the establishment of Family Courts, it is my objective that we have a child welfare assessment service as part of the Family Court structure to assist the Judiciary in addressing issues in the best interests of children whilst respecting the rights and responsibilities of parents.

We cannot always avoid the crises and problems that can affect a child’s well-being. However, we can take action to ensure that the impact of such crises is reduced. We need, for instance, to make parenting work for the child even when the relationship between the child’s parents has broken down. I believe strongly that it is in the interests of a child to have a meaningful relationship with both parents, where possible. Too often within my own professional practice I have encountered parents who, because they were bound up in their own anger and bitterness, did not facilitate their children to have any ongoing contact and relationship with the other parent. While I sympathise deeply with people who are in such great pain because of the breakup of their relationship, their problems cannot be allowed to destroy the relationship between the other parent and the child. It is important that estranged spouses or partners be neither facilitated nor permitted to so behave and to prevent the parent from whom they are estranged or with whom they are at war from maintaining contact with a child. As a consequence, I have proposed a graduated menu of options that can be ordered by the courts when an application is made for an enforcement order if an access or custody order has been breached. These options could include requiring the respondent to give the applicant compensatory access time or to lodge security with the court. Another measure could be to require the respondent to compensate the applicant for expenses incurred in attempting to exercise custody or access. I am also proposing that the court would have discretion to order the parties to engage, together or separately in a parenting programme, counselling or mediation focused on parenting.

The other side of the equation is, of course, maintenance. Children living in blended families or with cohabiting parents need the same protections in terms of maintenance as those living in marital families. The draft Bill proposes to establish the principle that a step-parent, civil partner or cohabitant partner of a child’s parent would, in certain circumstances, have a maintenance obligation to the child. The liability would arise where the child was a dependent child of the family and would depend on the nature and duration of the relationship.

The draft Bill proposes amendments to the Family Law (Maintenance of Spouses and Children) Act 1976 to allow the court to order maintenance where it has assessed that a particular child has been treated as a child of the family. Similarly, the Family Law Act 1995 would be amended to enable children born outside marriage to be treated equally to those born within marriage in respect of maintenance. These provisions will better enable the court to make a lump sum order in maintenance proceedings for the benefit of a child where the child’s parents have not married one another than is the position under the current law as interpreted by the High Court. The court will also be able to specify how the lump sum might be applied for the benefit of the child, including in providing suitable accommodation for the child. The proposal to reform the law on maintenance to create a maintenance liability for civil partners will also require consequent changes to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. I believe strongly that these practical reforms will be of great benefit to the financial well-being of children who often experience hardship when the family relationship breaks up.

Of course, as with all legislation that deals with the constitutionally fraught area of family and personal rights, this legislation will be the subject of ongoing legal advices from the Attorney General. There are many competing rights to be reconciled and there is a delicate balance to be achieved between extending and equalising rights and respecting the clear constitutional mandate in relation to the marital family.

As families become more diverse, the legal issues that arise become ever more complex. Family breakdown and parenting disputes are particularly sensitive and painful areas and their determination requires specialist skills.
You may be aware of the commitment in the programme for government to the establishment of a distinct and separate system of family courts aimed at streamlining family law court processes and making them more efficient and less costly.

Work is currently being undertaken to develop a concept for the Family Court which utilises our existing court structure whilst ending the current jurisdictional fragmentation and providing for a unified and comprehensive approach. It envisages the exercise of an ex parte and / or emergency and consent order jurisdiction at the District Court level to ensure ready accessibility. Most substantive family law cases, including contentious divorce and separation, would be at the Circuit Court level, with more complex cases being dealt with at the Family High Court level. I envisage a single point of entry to the Family Court at all levels, with use of standard documentation and electronic filing mechanisms, where possible, and overall substantial reduction in legal costs incurred across a broad range of contested family disputes that require court resolution. It is intended that there will be a cohort of family law judges who will have substantial expertise in this area of law and access to ongoing professional development in the area. I also envisage integrated family court offices at regional level which will have ancillary facilities for the assistance of litigants including ready access to alternative dispute resolution. It is also intended that childcare proceedings will be dealt with within the new Family Court structure.

It was originally anticipated that a referendum would be required to establish the new Family Court structure. From the work that we have undertaken, it appears this may not now be necessary and that we may be able to establish the new court as a separate and independent court structure within the parameters of the existing Article 34 of the Constitution. My aim is to publish a general scheme for the Family Law Courts Bill in the autumn with a view to enactment of the Bill in the first half of 2015.

These are major projects, which will change the face of family law in Ireland. It is crucial that we get these reforms right, because there are many families depending on us. These reforms are part of a broader suite of reforms in which I am presently engaged. My Department is currently preparing legislation to consolidate all the family leave legislation (maternity, parental, adoptive and carer’s leave). Responsibility for Carer’s Leave is being transferred from the Department of Jobs, Enterprise and Innovation to the Department of Justice and Equality in the context of this statute law consolidation exercise. This consolidation will involve an examination of possible discrepancies and anomalies between the various Acts with a view to making the code more accessible and streamlined. This is a significant statue law consolidation and revision project on which work is ongoing. My plan is to publish the consolidated Bill later this year. This Bill also provides an opportunity to look again at the question of leave for new fathers. The feasibility of this issue is currently being considered within the context of the overall consolidation of family leave. Substantial work is also being undertaken on the preparation of a new draft Domestic Violence Bill which will consolidate, reform and extend existing law beyond it’s current application to spouses, cohabitees and civil partners and apply it to other special circumstances that create difficulty for individuals, such as stalking.

I believe that the reforms proposed in the draft Children and Family Relationship Bill are urgently needed in the interests of children and their families. This area of law is particularly emotive because it goes to the heart of our needs and identity. As you know, our children are the most vulnerable members of our families. This is why it is so very important that they be protected, nurtured and supported, whatever form their families take. All families, particularly those in crisis, deserve a clear, predictable and fair legal system to support their needs. If that family is in crisis, it is even more important that the children of the family should be able to have their views considered and their interests safeguarded. The aim has to be to put in place a legal architecture within which we can develop sustainable and appropriate legal solutions for families.

There is much yet to do to make these reforms a reality. Your support will be crucial in this process. We cannot afford to retain outmoded legislation which treats some children less favourably simply because of the families to which they belong. Nelson Mandela famously said ‘there can be no keener revelation of a society’s soul than the way in which it treats its children’. I believe that the Children and Family Relationships Bill, when enacted, will ensure that children can be confident that their families will be treated fairly within the legal system. My aim is that we should be proud in years to come to have legislation in this area which recognises the diversity of families and which supports children across a multiplicity of situations.

Thank you very much.

10th April, 2014