Alan Shatter TD, Minister for Justice, Equality and Defence, today published the General Scheme of a Children and Family Relationships Bill.
The Government agreed, on 28 January, to the Minister’s proposal to request the Oireachtas Committee on Justice, Defence and Equality in conjunction with members of the Oireachtas Committee on Health and Children to undertake a consultation process on his proposals for the Bill. Minister Shatter has requested the Committee to furnish any observations it may have before Easter. The proposals outlined in the draft General Scheme of the Children and Family Relationships Bill seek to put in place a modern legal architecture to underpin diverse family situations.
Minister Shatter said: "We urgently need to reform and modernise our family and children's law to cater for the growing number of families whose needs are not adequately addressed in current law. Legislation in this area cannot be a one-size fits all solution but must, in a creative and pragmatic way, reflect the needs of families and children in 21st century Ireland with the focus firmly fixed on the best interests of the child. Families not only include co-habiting married families and single parent families but also families where the care of children is provided by a parent together with a step parent, or by extended family members or families based on cohabiting couples and families based on civil partnerships. The draft Bill, published today, seeks to provide legal clarity for all families in terms of their parental rights and responsibilities with a central focus on ‘the best interests of the child’. The proposals published today provide the basis for a consultation on a clear pathway for parentage and guardianship of children living in all family types."
Minister Shatter stated: ‘The draft Bill also seeks to provide legal clarity on the parentage of children born through assisted human reproduction and surrogacy, issues for too long ignored. The draft Bill’s objective is to safeguard the child’s best interests while offering a route to parenthood for the commissioning parents. In the area of surrogacy it provides for court oversight in the making of declarations of parentage to ensure that future surrogacy arrangements are consensual, altruistic and non-commercial.
Minister Shatter added: ‘My main concern is the child. These proposals put the child’s welfare and best interests at the heart of decisions on parentage, guardianship, custody and access. Where parents are estranged or living apart, I want to enable both parents, where possible, to maintain a meaningful relationship with their child. The General Scheme proposes to make it easier for grandparents and relatives to maintain contact with a child in the situation of relationship breakdown. My proposals in relation to guardianship will enable a step-parent caring for a child on a daily basis, for example, to sign a school note or to consent to emergency medical treatment. It will also facilitate step-parents of children born outside marriage in acquiring parental rights and responsibilities following their marriage to a child’s biological parent. It will no longer be necessary, as currently happens, for a biological single parent to jointly adopt his or her own child following marriage, together with their marital partner, for this to occur. However, the draft Bill does not create any barrier to such adoptions being effected.
Minister Shatter continued, ‘The General Scheme also addresses issues that were omitted from the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, including the child maintenance obligations of civil partners and the eligibility of Civil Partners to adopt. The current law relating to adoption provides for the adoption of children by married couples and by single persons (irrespective of their sexual orientation), but not jointly by civil partners. Under the proposed General Scheme, a civil partnered couple will be eligible to be assessed jointly as a couple for adoption. This measure removes the current anomaly where single lesbian and gay individuals can adopt children, but civil partners cannot jointly adopt. ’
The proposals, amongst other matters, seek to:
ensure our law reflects the principles, rights and obligations contained in Article 42A (if upheld) of the Constitution;
update and modernise the law regarding parental rights relating to children living in diverse family relationships;
establish that the best interests of the child is the paramount consideration in the resolution of disputes concerning the guardianship, custody of and access to children;
spell out in detail for the first time in Irish law the rights and responsibilities of guardians of children
clearly set out how parentage is to be assigned in cases of assisted reproduction and non-commercial surrogacy and proposes transitional provisions applicable to surrogacies which precede the Bill’s enactment;
extend automatic guardianship to non-marital fathers who cohabit for a specified period with the child’s mother;
render civil partners eligible to jointly adopt a child (presently single individuals regardless of sexual orientation may adopt, as may married couples but a gay couple cannot jointly adopt);
allow step-parents, civil partners, those cohabiting with the biological parent and acting in loco parentis for a specified period to obtain guardianship and/or custody;
enable members of the extended family to apply for access to the child;
put in place a series of provisions aimed at making parenting work where estranged parents are in continuous disputes to ensure, insofar as is possible, that court orders made to maintain a child’s connectivity with each parent are respected;
make express provision to facilitate the use of DNA to determine parentage disputes without the necessity of a blood sample by the use of mouth swabs and other appropriate samples;
reform child maintenance laws so that the courts, when making child support and lump sum orders, treat all children equally irrespective of the circumstances relating to their conception and birth;
encourage the use of mediation to resolve disputes relating to children between estranged parents;
Minister Shatter concluded: ‘These are complex and sensitive issues. It is important that the general public and relevant interest groups should be consulted before we finalise the Bill that is to come before the both Houses of the Oireachtas for enactment. I look forward to the report of the Joint Oireachtas Committee together with all observations it may make relevant to the Bill which will feed into the preparation of the new legislation. I have also forwarded the draft Bill to Emily Logan, the Ombudsman for Children, for consideration and it has, of course, been prepared in consultation with my colleague Frances Fitzgerald, the Minister for Children and her Department. I have no doubt that this process we are today undertaking will result in beneficial changes, refinements and additions to the Bill. It is my hope that the legislation required in this important area will be enacted by the end of 2014 and that we will have, at the end of this process, a new Act relating to children and family relationships that is both comprehensive and child friendly."
Please see below link to Policy Rationale for General Scheme of Children and Family Relationships Bill:
Please see below link to General Scheme of Children and Family Relationships Bill:
30 January 2014
Note for Editors:
The Government agreed at its meeting on 29 January to refer the General Scheme of the Children and Family Relationships Bill 2014 to the Oireachtas Committee on Justice, Equality and Defence, with a request to undertake a consultation process which will inform the finalisation of the new legislation. It also agreed to ask that members of the Joint Oireachtas Children’s Committee be invited to be involved in the consultative process. Minister Alan Shatter TD will complete the proposals for the new legislation in light of the feedback from the consultation process.
The General Scheme addresses issues of parentage, guardianship, custody and access arising in a range of diverse family types. It provides a mechanism by which married couples, civil partners and cohabitants in a committed relationship can acquire legal recognition as parents if they have had children through assisted human reproduction and non-commercial surrogacy. It is proposed to prohibit commercial surrogacy. Transitional arrangements will be devised. The proposals address the parentage issues arising from surrogacy and assisted human reproduction and do not extend to issues of regulation of those areas more generally.
It proposes to repeal the Guardianship of Infants Act 1964 and to re-enact reformed and modified legislation. It proposes that the category of fathers entitled to automatic guardianship would include cohabiting unmarried fathers. It also enables step-parents and those cohabiting with a child’s parent to apply for guardianship in specified circumstances, if involved in day-to-day care for a child. It proposes more streamlined procedures to enable grandparents and other relatives to apply for access to a child and greater protection for children in the area of child maintenance and financial supports.
The General Scheme provides a comprehensive definition of a child’s best interests which includes the benefit of a meaningful relationship with both parents, the range of the child’s needs, the views of the child, the history of the child’s upbringing and situation, the capacity of the child’s parents and guardians to rear the child and the risk or otherwise of harm to the child. The prism of ‘best interests’ is to be applied to all decisions concerning guardianship, custody and access.