Children and Family Relationships Bill 2015: Second Stage

Deputy Olivia Mitchell: I very much welcome the opportunity to speak on this Bill. I welcome that it is a reforming Bill updating family law and that it at last recognises in law and gives clarity and certainty to the status of family members, specifically parents with children, in the many different family formations. It gives that clarity and certainty in the context which prioritises the needs of the children.

 It has been many years since the typical household was one of husband, wife and children but even when that was the norm, there were many differing arrangements for the rearing of children. Many such arrangements were informal and undocumented where, for instance, a grandparent, a spinster aunt or an uncle took over the care of a child, perhaps from a large family, or where the mother may have been ill. Many of these arrangements were very satisfactory and benign and worked in the interests of both the child and the parenting family. This was a very common practice but for many children it was not a benign arrangement. We know all too well the tragic tales of what happened to children, for instance, if they were born out of wedlock or where people in positions of power but with no legal entitlement often secretly and without any documentation sequestered children into orphanages, often for their entire lives, or sent them to work on farms or in households as virtual slaves, or, worse, exported them to countries such as America, Canada, New Zealand and Australia where in many cases their fates still remain unknown.

These children had no rights, entitlements or power. We should welcome the fact that in more enlightened times we started to introduce legislation to protect children, including the Guardianship of Infants Acts, the Status of Children Act and the Adoption Acts. Now is the time to update family law to reflect the diverse forms of family in which many children grow up and to ensure that these children have the legal support, security and protection in their relationships with those who are parenting them.

 While there has been some opposition to this Bill, it is probably more a reflection of unhappiness with the circumstances that gave rise to the need for the legislation rather than with the Bill’s measures. I can understand that people maybe unhappy with the decline in the traditional marital unit, but it is declining none the less. People may not be happy with single parents or unmarried parents but they exist. They may not be happy with marriage breakdown but it happens. They may not be happy with assisted human reproduction but it is happening and will continue to occur, probably with greater frequency due to fertility decline in Ireland.

 Children are being born into, and living in, these kinds of relationships every day. As legislators, it is our responsibility, first, to recognise in law that such relationships exist and, second, to ensure that the children of these relationships have the same legal security, protection and certainty about parentage that children of marital parents have. Legal certainly about parentage, custody, guardianship, succession rights and maintenance is vital to a child’s welfare and well-being. Children in the traditional family have it and it is now time to ensure that all children in the diverse family formations that exist also have it.

 In legislating for children born from assisted human reproduction we are doing something new. In all its forms, including surrogacy, it is complex and evolving. It presents us with totally new and previously unimagined family relationships and, consequently, with new and extremely challenging legal and – let us face it – ethical questions as well. However, being new and challenging does not justify ignoring the existence of donated assisted human reproduction or DAHR. In fact, it highlights that it is imperative to regulate it and establish the status of relationships that result from DAHR.

 I appreciate the concerns that have been expressed about the exclusion of surrogacy from this Bill. As the Minister for Health, Deputy Varadkar, said on radio this morning, there is an urgency about it. Issues have already arisen before the courts because of the lack of any legal framework. Indeed, the courts have changed their minds on a number of occasions, but they have clearly indicated that it is up to the Oireachtas to provide legislation in that regard. As the Minister also indicated this morning, this area is extremely complex and arcane. The ramifications are difficult to deal with and some of them have not yet been foreseen as this is an area which is evolving all the time.

 The Government has decided to provide for the regulation of surrogacy in a stand-alone Bill. The Bill before us is, in itself, long and complicated enough without introducing the surrogacy issue. I welcome the progress that has been made on the surrogacy issue, including the publication of the heads of the Bill. I hope it will follow this legislation in the not too distant future.

 There has been some criticism of the donor-assisted human reproduction element of this Bill. However, I would have thought that regulation and imposing controls on the circumstances of donation, which already exist, would be welcome and a clear improvement on what at the moment is effectively a free-for-all, if that is not an inappropriate expression. In future, donation must be carried out in a clinical setting. Otherwise the clarity of parentage granted under this Bill will not apply, and rightly so, as there cannot be clarity of parentage in the loose and often private arrangements that currently pertain. This clarity of parentage through a donor-conceived person register, which is welcome, is a vital element of the legislation. It will give the children of donor-assisted human reproduction access to information about their genetic make-up and to all of the health related implications they or their children may have in the future, perhaps in perpetuity. Clarity about one’s genetic make-up is essential.

 I welcome the fact that the same information is now accessible to all children. It is bizarre that it was not available to all children until the enactment of the Civil Registration Bill last December. That legislation requires the mother to name the child’s father on the child’s birth certificate, which is a very basic requirement. I hope the next step will be a requirement for fathers to make a contribution to their children’s upkeep. Most non-marital fathers take an active interest in their children’s upbringing and certainly contribute to their maintenance, but there are many serial fathers who do not. In almost every western European country it is a requirement that the father makes some contribution to the maintenance of his children. It should not be left to taxpayers to carry that burden.

 In giving greater responsibilities to fathers, it is also right that we should recognise their relationship to the children they have parented. That is reflected in the various categories of parents, other than birth mothers, who will have access to guardianship rights under this Bill. I have heard some complaints by unmarried fathers that the mother’s live-in partner, married or unmarried, may have greater rights than they have under this legislation. They may have a point in respect of their own position but the reality is that this legislation and the defence of it prioritises the child not the parent. That is the tone of the legislation and we have to accept that it is the right way to go.

 I also welcome the Bill’s provision for improved access for grandparents. When families break down, it often means that the relationship, however close it may have been previously, can be completely severed. That is not in the child’s interests, so it is right that we should do what we can to minimise the disruption to a child’s world caused by marriage breakdown.

 The legislation puts in place a number of provisions to ensure parenting works for parents and children as well as it can when breakdowns occur. The Bill also tries to ensure that a meaningful relationship exists for both parents with their children. When children are old enough, they can be consulted on what kind of custody, access and maintenance arrangements are put in place for them. Where children are not old enough, an expert can be appointed to advise the courts on the best arrangement for the children’s parenting.

 Two points stand out for me in this legislation. First, if people are worried about this Bill, there is absolutely no change whatsoever in the constitutional rights of birth mothers and marital fathers. The second point concerns the diversity of relationships in families, which has often been stated with regard to this legislation. There is the traditional marital relationship, the non-marital relationship, the separated-previously married relationship, and separated non-married couples. We have same-sex couples and into that mix we also have donor-assisted human reproduction. We have relationships that form and break up, followed by new relationships. These diverse relationships can be complex, challenging, messy and unsatisfactory on a range of fronts. If they break down they are often the cause of major grievances between couples, not just over property and money but also over maintenance, guardianship, custody and access to children. These grievances are not always resolved in a way that makes both parties happy. Neither will this Bill, to be honest, but the legislation is not about the happiness of adults. It is about children and what arrangements best serve their interests in respect of the diversity of relationships in which they are increasingly living.

Bearing in mind that a child may move through a range of relationship types over his or her childhood, the framework we put in place is vital to children’s well-being and future. I very much support the legislation.