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Dáil Diary no 19- 3 March 2015

Children's Bill not perfect, but to be welcomed...


The long awaited Children and Family Relationships Bill is being debated in the House at the moment. Here's my contribution on it last Thursday.-
“I will support the Bill, which is long overdue. Although I may not agree with everything in it, I will certainly vote for it.

  The Bill before us represents an opportunity to update the laws in this country in respect of children, some of which have not been revised since the 1960s, when the idea of family was synonymous with marriage and when divorce and homosexuality were illegal, unmarried cohabitation was extremely rare and only 3% of children were born out of wedlock. If we fast-forward half a century to 2014, in the second quarter of the year, 36.1% of births registered were outside of marriage. There were 25,000 children born outside of marriage in 2011; there were 143,600 cohabiting couples in Ireland, of which 60,269 had children. These days, almost one third of Irish families do not belong to the so called "traditional" family unit, yet the existing legislation still assumes this as a given. Today's Bill is a step towards modernising our legislation in order to allow it to better reflect the society that it seeks to protect, which is an underlying principle of all law reform.

  The Bill will to some degree improve the lot of unmarried fathers by allowing for automatic guardianship to be granted in cases where the father has lived for 12 consecutive months with the mother, of which three of these months were after the birth of the child. In 2012, some 35% of births in Ireland took place outside marriage, meaning that in one year alone there were up to 25,200 men who became fathers but potentially had no rights as regards the day-to-day care or the upbringing of their child. Despite the fact that the European Court of Human Rights recognises "family" as existing in many diverse forms, Irish law still focuses on marriage as the basis of the family, which is not only anachronistic but discriminates against many groups in society, such as unmarried fathers. Personally I feel that marriage is a wonderful institution, provided one wants to live in an institution.

  Unfortunately, instead of rectifying this issue, the Bill still discriminates against some unmarried fathers, and in particular those who have not cohabited with the mother of the child. Perhaps a couple cannot afford to rent and are living separately with their respective parents. This Bill could introduce measures to meaningfully enhance the rights of unmarried fathers, for example, through establishing a mechanism which confers joint guardianship on the parents of a child by linking it to compulsory joint registration of the birth of the child, as recommended by the Law Reform Commission of Ireland. Furthermore, this Bill provides for the establishment of a national donor register, aimed at ensuring respect for the child's right to identity. Why is there no provision made for a central guardianship register? Along with improving the position of unmarried fathers, this would help the child to have, where possible, a meaningful relationship with both parents.

  A concern I have regarding this Bill is that it does very little to alleviate the ongoing larger problems of our backlogged family court system, in which delays, long waiting lists, brief hearings, inadequate facilities and overly hasty settlements are often the order of the day. Whereas new legislation should be capable of providing enough legal clarity so as to reduce traffic through the courts, this Bill will continue to push people unnecessarily into the courts system.

  A welcome addition in the Bill is that particular attention is paid to dealing with "family violence", but the definition as laid out in Part V of the general scheme is confined to "physical harm, including sexual abuse, or causing a child or member of the household to fear for his/her safety". Domestic abuse is not confined just to violence but can involve neglect, maltreatment, or the deliberate long-term use of coercion to control every aspect of someone's life. A recent study detailed in yesterday's Guardian and carried out by a domestic abuse charity group in the UK called SafeLives highlighted the long-lasting impact of living in a family coping with domestic violence. Although it is an English study, parallels with Ireland are never too far off.


According to the survey, in approximately a quarter of the cases on the domestic violence database the victim had a child under the age of three, and children are directly harmed in 62% of cases. These are frightening figures. The definition of family violence in the Bill should be expanded in line with the position of the UN Committee on the Rights of the Child in its general comment on the protection of children from all forms of violence, which covers all forms of physical or mental violence, injury or abuse, neglect or negligent treatment and maltreatment or exploitation, including sexual abuse.


I support the points made yesterday by my good friend, Deputy Shatter, and share his strong concerns about the watering down of some provisions in this newest version of the legislation. The exclusion of surrogacy from the Bill does not make sense. It appears to be the only area relating to assisted reproduction and parentage that is omitted from the Bill. If the Bill intends to uphold the best interests of the child as regards their rights and legal relationships with their families, why does it purposely exclude children born, and yet to be born, through surrogacy in Ireland, leaving them and their parents in a legal limbo? Rather than the people actually parenting them, the women who carried them and agreed not to act as parents will still be regarded as their mothers under the law. The Government's proposed way forward on this issue is to kick the can down the road through a separate Bill, which realistically has no chance of being completed during this Dáil.


While the legislation covers many issues and is designed to provide greater legal support for children and those parenting them, regardless of their marital status or living arrangements, what appears to have given rise to a large amount of controversy in the media is the issue of same-sex adoption. This has been opposed by a number of individuals and groups allegedly in the interests of the family, despite the largest ever peer-reviewed study on gay parenting carried out by Colombia Law School finding that of 75 studies on gay parenting, 71 concluded that children of gay parents fare no worse than others. Many of those who oppose same-sex adoption assume that it is always in the best interests of the child to stay with their biological parents, but in many situations this is not true. The law as it stands is so heavily, and perhaps disproportionately, weighted in favour of natural parents, that when a court is trying to determine whether a child should be taken into care, a very high level of neglect or abuse must be proven for the child to be taken away from the natural parents.


The anti-same-sex adoption voices are shouting loudly in the name, allegedly, of children's rights. When groups financed by the American right wing Christian fundamentalists start sending me e-mails, it’s always a sign that the Government must be up to something positive. Why are these people not focusing instead on the real issues affecting children's rights, such as the escalation in child poverty, the rise in deprivation rates or the ongoing social work crisis in which 8,000 children deemed at risk of neglect or abuse have not been assigned a social worker? Where were all these outraged voices when children were being illegally adopted and forcibly snatched from unmarried mothers? The hypocrisy is tough going.”


Mick Wallace

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