· Legal clarity brought to parentage, guardianship, and access for diverse families
· Minister says Bill “places the interests of the child centre stage in all decisions”
25 September 2014
Frances Fitzgerald T.D., Minister for Justice and Equality, today announced that the General Scheme of the Children and Family Relationships Bill has been approved by Government.
The Minister said: “I am delighted to announce that the Government has approved the General Scheme of the Children and Family Relationships Bill. Formal drafting will now begin on this important legislation which recognises the changing nature of family life in Ireland. These proposals will bring legal clarity to parentage, guardianship, custody and access for diverse families, thus benefiting a wide range of families in Ireland. They put the interests of children centre stage in those decisions with profound implications for a child’s life.”
The Minister added: “I have listened to the views expressed in the Joint Oireachtas Committee on Justice, Defence and Equality’s consultation and to the recommendations of the Ombudsman for Children. One issue that emerged strongly was that a donor-conceived child should be able to trace his or her identity. This is seen as a critically important element in the regulation of assisted reproduction at the start of the process where the use of gamete donation arises. I have included new proposals in the Scheme which will require clinics and hospitals to provide details of donors and children to a national register. The key issue is to enable a child to know his or her identity. As a result, anonymous donation will be prohibited.”
The Minister continued: “The proposals enabling civil partners to adopt children jointly were welcomed when this Scheme was originally published. I am now providing for cohabiting couples, living together for 3 years in a committed relationship, to be eligible to adopt children jointly.”
“It will be easier for unmarried fathers to become guardians automatically if they live with the child’s mother for 12 months, including at least 3 months following a child’s birth. This should particularly benefit young unmarried fathers who may not be in a position to live with their child’s mother for 12 months before the child’s birth.”
The Minister added: “Many children are being jointly reared by step-parents and by their parents’ partners. My proposals will enable a step-parent or cohabiting partner to be able to take day-to-day decisions on behalf of a child. At the same time, it is crucial to protect the rights of parents who are guardians. My solution is that the right to take major decisions on issues such a child’s education will be reserved for a parent who is also a guardian, except where a judge considers it in the child’s best interests to give the step-parent or partner a larger guardianship role. Census 2011 recorded 49,005 households of cohabiting couples with children under 15 and that this number is rapidly increasing. A modern and caring Ireland cannot sustain the absence of adequate legislative provisions to cater for the rights of these families.”
The Minister continued: “These proposals offer recognition to new types of families, while protecting the interests of marital families. They are intended to support families, in their many forms, to continue to make their vital contribution to the well-being of our society.”
“I have decided to remove surrogacy from the General Scheme at this stage firstly because the Supreme Court decision on this issue is pending and secondly because there are very critical issues needing to be resolved, relating for example to how our law deals with commercial surrogacies and to the rights of children born through surrogacies. More policy work and consultation is needed on these areas.”
The Minister concluded: ‘I acknowledge that this is a very complex piece of legislation which raises many questions of balancing constitutional rights. These questions will have to be kept under careful review as the provisions in the Scheme are turned into the formal legislative provisions of a Bill. While there is a lot of work to be done, the intention is that the Bill would be enacted in early 2015.”
The General Scheme of the Children and Family Relationships Bill is available here http://www.justice.ie/en/JELR/Pages/PB14000256
Notes for Editors:
The General Scheme of the Children and Family Relationships Bill was approved by the Government on 23 September and will now proceed to drafting. The General Scheme was published for consultation on 30 January 2014. It was forwarded to the Joint Oireachtas Committee on Justice, Defence and Equality for pre-legislative scrutiny and public consultation. The views of the Ombudsman for Children were also sought on the proposals.
The General Scheme proposes, in summary, to:
· modernise the law regarding the parental rights of children living in diverse family forms;
· establish that the best interests of the child are paramount in decisions on custody, guardianship and access;
· set out how parentage is to be assigned in cases of assisted reproduction;
· extend automatic guardianship to non-marital fathers who have lived with the child’s mother for at least 12 months, including 3 months following the child’s birth;
· enable civil partnered or cohabiting couples to be eligible jointly to adopt a child;
· allow civil partners, step-parents, those cohabiting with the biological parent and those acting in loco parentis for a specified period to apply for guardianship and custody;
· enable members of the wider family to apply for access to the child;
· put in place a series of provisions on making parenting work.
The main changes to the General Scheme as published on 30 January are as follows:
· Provisions are included enabling a donor-conceived child, born through assisted reproduction, to trace his/her identity. A mandatory national donor-conceived person register will be established. Hospitals and clinics will be required to provide details of donors and of donor-conceived children born through assisted reproduction. Anonymous donations will be prohibited.
· Surrogacy has been removed from the General Scheme. The existing provisions which provide for a father to secure parentage of a child born through surrogacy, if genetically linked to the child, will continue to apply. A commissioning mother will be able to apply for guardianship of the child.
· Eligibility to adopt jointly has been extended to cohabiting couples, living together in an intimate and committed relationship for over 3 years. The proposals are retained to allow civil partners to be eligible jointly to adopt a child.
· It will be easier for an unmarried father to become a guardian automatically. The previous proposal required him to cohabit with the child’s mother for 12 months prior to the child’s birth. The new requirement enables an unmarried father to become a guardian automatically once he cohabits with the child’s mother for 12 months, including 3 months following the child’s birth.
· Provisions on non-parent guardianship have been modified. Step-parents and a parent’s cohabiting partner will be able to apply to become a child’s guardian if s/he has shared caring responsibilities for the child for over 2 years. However, this guardianship will generally be limited to day-to-day decisions so as to safeguard the rights of a parent who is also a guardian to take strategic decisions on issues such as a child’s residence, religion or education.
· Provisions on making parenting orders work have been refined in the child’s interests. If a parent consistently violates a custody or access order, she or he may be required to attend a post-separation parenting programme, give the other parent compensatory time with the child or refund the other parent for expenses incurred.
· The court will have the option to appoint a child’s views expert to ascertain the views of the child in guardianship, custody and access cases.