Daddy of them all: Bill finally offers to fill gap in family law

Whether the father of a child was an automatic guardian of his child depended upon his relationship with the mother. The proposed bill would change this, writes Dr Louise Crowley

Daddy of them all: Bill finally offers to fill gap in family law

Certain contentious aspects of the Children and Family Relationships Bill 2015, including the expansion of the capacity to adopt beyond married couples and single applicants; the elimination of anonymous sperm donation; and the regulation of surrogacy have grabbed the headlines in recent months.

This is not surprising as these socially divisive issues have eluded satisfactory state intervention for many years.

However, another long-awaited development of fundamental importance is also tackled by these new laws, and relates to the legal position of the natural father of a child.

When enacted, the law will finally accord qualifying unmarried fathers with automatic legal status and rights vis-á-vis their child.

Whereas the married parents of a child are the joint guardians and joint custodians of that child, conversely, until now, whether the father of a child was an automatic guardian of his child depended upon his relationship with the mother of the child.

Acquiring legal status for fathers not married to the mother of the child necessitates a favourable court order or the agreement of the mother.

Under current laws, where the parents of a child are not married, only the natural mother is automatically a guardian of that child.

Section 6(4) of the Guardianship of Infants Act 1964 provides that the unmarried mother is the sole guardian, its original wording expressly stating that “the mother of an illegitimate infant shall be guardian of the infant”, and her associated automatic sole right to custody is set out in section 10(2) of that Act.

This historic position of the unmarried father was improved somewhat by the Status of Children Act 1987 which not only abolished the legal concept of illegitimacy but also enacted the statutory basis for a court application by a father for guardianship status.

The Children Act 1997 subsequently extended the means for an unmarried father to attain guardianship status by agreement with the mother of the child, secured by their joint completion of a statutory declaration to that effect.

Upon the enactment of the Child and Family Relationships Act 2015, the natural unmarried father of a child will automatically be a legal guardian of that child if he has cohabited with the mother of the child for not less than 12 consecutive months, to include a period of not less than three consecutive months during which both the father and mother have lived with the child.

It is quite disconcerting that as Ireland seeks to very rightly legislate for the protection of the rights of multiple family formations that it is only now addressing the long-ignored position of the biological father who happens not to be married to the mother of his child.

Operating from a starting point of no rights, and requiring every such father to seek the permission of the court, or jointly complete a statutory declaration to attain guardianship status, has long ignored the fact that one in every three children is now born outside marriage, and has served to ignore the rights of an ever growing populace.

While the circumstances of conception can sometimes warrant guardianship status being rightly denied, to apply this starting point of nil to all fathers seems an excessively punitive and indefensible approach.

Interestingly in its original wording the 2014 bill (as it then was) simply required a 12-month cohabitation period between the mother and father and ignored the need to establish a relationship or even period of habitation between the father and child.

This original position effectively perpetuated the traditional approach whereby the determination of fatherhood was premised upon the nature of the parental relationship rather than any direct consideration of the nature of the relationship between the father and the child.

To this end it was criticised as not only discriminating between a mother and a father but also as maintaining a view of fatherhood that is not child-centred.

Notwithstanding this belated recognition of the need for a father/child link to be established, in its current form, the 2015 bill maintains the long-standing discrimination between the mother and father of a child, placing conditions upon the right of the father to be identified as a guardian, and where not so identified, requiring him to seek approval or agreement for such recognition.

Despite these criticisms, this is a welcome and incredibly overdue response to a long-standing gap in family law.

It seeks to address gender-based discrimination and to strengthen the legal rights and status of fathers; irrespective of their marital status, sexual orientation, or indeed their capacity for a long-term relationship with the mother of the child.

The new starting point for fathers who can establish a 12-month cohabiting relationship with the mother of their child is one of equal guardianship status.

Where it will continue to fail fathers is where the relationship with the mother breaks down to the detriment of the relationship, legal and otherwise, with the child.

Equally it is also likely to operate most favourably in respect of those couples whose living arrangements in effect mirror the traditional family unit, albeit absent a wedding ring.

While much concern has been expressed about the apparent speedy passage of the Children and Family Relationship Bill 2015 through the law-making process, it is evident that this recognition of an automatic legal status between the natural father and his child is a long-awaited measure, the culmination of some 50 years of lobbying since first deliberately excluded from the provisions of the 1964 Act.

It goes to the heart of the broader need to recognise the rights and status of Irish family units whatever their composition.

This new approach to the rights of biological fathers recognises the need to acknowledge the importance of both parents, and will indeed accord automatic rights in many instances, perhaps marking the start of a process of recognition that will continue to expand.

The biological father will now have an automatic legal relationship with his child, albeit dependent upon an adequately committed relationship with the mother, at least until the child is three months old.

This is welcome progress in the modernisation of family law, and serves to recognise and protect the most fundamental of rights that is parenthood.

Dr Louise Crowley is senior lecturer at the School of Law, University College Cork

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