The Children and Family Relationships Bill 2015 is the most comprehensive overhaul of the law on children and family relationships in decades, writes Geoffrey Shannon
The Children and Family Relationships Bill 2015 is the most significant change in family law in a generation, reflecting the reality of modern family life in Ireland.
Until recently, family life in Ireland was synonymous with marriage. The increasing fluidity and diversity of family forms means that it is no longer tenable for Irish law to recognise only one type of family. The constitutional preference for families based on marriage remains intact, but it is essential to provide certainty for all families, whatever their status.
The new framework to be implemented following the passage of this bill will radically overhaul many existing rules and create new rights for parents, both biological and social, and most critically for children. This is an important milestone on the road to recognition of children as rights holders.
Almost all proposals contained in the bill are progressive. There has been only piecemeal reform to the law on the family outside marriage since the Guardianship of Infants Act, 1964.
In this context, the bill’s overhaul of the legal position is to be welcomed and should considerably improve the position of the family outside marriage.
The bill provides various pathways to parentage. This is achieved in part through legal recognition of the changing family landscape in modern Ireland where diversity is ever more common. These families deserve recognition, security, and equity.
Allowing for parentage to be legally confirmed and recognised is an important element in this. It is vital for children, in that it ensures that those providing, supporting, and caring for the child are given the rights, responsibilities, and legally consequential duties attendant upon parenthood.
An example of the commitment to that demonstrated by the bill is the defined maintenance provision for civil partners and cohabiting partners living with a child for a certain amount of time, among various provisions to help make parenting work better.
Until the enactment of the Status of Children Act, 1987, children born to unmarried parents were considered illegitimate. The 1987 Act abolished the concept of illegitimacy and in just over 25 years, a seismic change has occurred in Irish society.
Recent statistics show that, in the second quarter of 2014, 36.1% of registered births were outside marriage. These include situations involving lone unmarried parents; unmarried and cohabiting couples; various types of blended families; and children living with their parent and non-biological civil-partnered parent.
According to the latest figures available, almost 352,000 children live with a lone parent; 104,665 children live with co-habiting, unmarried parents, and there are 230 same-sex couples with children.
The Children and Family Relationships Bill 2015 will bring a diverse range of family types in from the cold, offering greater protection for children in all family types including step-parent families and families headed by cohabiting couples, gay or lesbian couples, or by other extended family members. Provisions relating to these families are a practical expression of the principled, rights-based approach which informs much of the bill.
One major development is in the area of guardianship. For the first time, non-marital fathers cohabiting for a specified period with the child’s mother will be entitled to automatic guardianship. Under section 45 of the bill, a parent or another eligible adult can apply to court for guardianship.
An eligible adult is a person who is married to or in a civil partnership with a child’s parent, or has cohabited with the child’s parent for three years and shared responsibility for the child’s care for a two-year period. Persons who have cared for the child for one year, where no other parent or guardian is able or willing to fulfil the rights and duties of the role, may also be eligible to apply for guardianship. This therefore allows foster parents and other adults who provide day-to-day care for children to apply for guardianship, thereby providing a remedy for the present position.
The legal ability to formalise the relationship between a child and their de facto parent is critical to ensure security, fairness, and clarity in the child’s life and upbringing and the bill’s recognition of this is an important step which should be welcomed. In addition, the bill enables temporary guardians to be appointed, replacing the provisions relating to substitute guardians which were included in the heads of the bill.
Various changes in the bill resulted from a consultation process with relevant organisations and experts, including a provision to ensure that a child born through assisted human reproduction has the right to know his or her genetic identity. This will involve a prohibition on anonymous donation of genetic material and the establishment of a national donor-conceived person register.
A provision on the child’s right to identity in line with Articles 7 and 8 of the UN Convention on the Rights of the Child is another welcome development. The bill continues this principled, rights-based approach by providing that the best interests of the child are to be paramount in decision-making, and that the ‘voice of the child’ should be heard as much as possible. These two elements are children’s rights principles which are recognised internationally as best practice. Their inclusion is progressive and ethical.
Importantly, the bill does not address issues relating to DIY donor-assisted human reproduction (DAHR). The DAHR provisions that are included in the bill ban anonymous donation and relate only to where procedures are carried out in a DAHR facility.
While the bill is a hugely positive development, it should be accompanied by structural reform. The establishment of a specific family court system is promised in the programme for government and is necessary for a fair and effective forum to vindicate the rights of children and families.
The Children and Family Relationships Bill 2015 is the most comprehensive overhaul of the law on children and family relationships in decades. It is a unique opportunity to modernise the law in the area and provides legal recognition of the many different and diverse family relationships that exist in modern day Ireland.
Dr Geoffrey Shannon is the Special Rapporteur on Child Protection and Founding Patron of the Children’s Rights Alliance.
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