Families today are more likely to be Modern Family than Brady Bunch (though, they were a ‘blended family’ decades before the term was trendy). The government is now taking steps to change the law to recognise that families come in all shapes and sizes. Fiona McGarry looks at the Children and Family Relationships Bill.
1 Guardianship
The Bill clarifies who can apply for guardianship of a child, and in what circumstances.
Unmarried fathers: For the first time, unmarried fathers will have automatic guardianship of their child, provided they’ve lived with the child’s mother for 12 months in a row. It’s important to note here that the father must live with the mother and child for at least three months after the birth, in order to qualify.
Parents and their partners: The Bill allows for parents who are living with a new spouse, partner or civil partner to give that person a greater role in raising their child. The couple must have been living together for at least three years and co-parenting the child for two of those. In this case, guardianship isn’t automatic, but can be applied for through the courts. It’s worth noting that guardians in most of these cases will have a limited say in the raising of the child. If, for example, questions arise about the child’s residence, religion or culture, the consent of the parent will be needed.
Temporary guardians: A parent will be able to use the courts to appoint a temporary guardian for their child. This could arise in a situation where a parent has a serious illness or injury. Again, restrictions will apply to the powers and responsibilities of the temporary guardian.
2 Custody and Access
The Bill outlines cases where the partner of a parent can apply for custody, in the event of relationship breakdown, the death of the parent, etc. The couple must have lived together for at least three years and shared the parenting role for two of those. If someone has parented the child for a full year, and there is no other parent or guardian, they can apply for custody.
Grandparents: When a relationship breaks down, a child can lose contact with their parents’ relatives and wider family and the new Bill addresses this. Grandparents and other relatives will find it easier to apply for access. The existing two-stage application process will be replaced with a single direct application to the courts.
Enforcement of court orders: The draft law aims to make sure that a child has meaningful contact with both parents, even if they’re no longer in a relationship. For that reason, the courts will have greater powers to enforce orders on custody and access. A parent who flouts a court order could be directed to take a parenting programme or to pay compensation if they unreasonably deny access to the other parent.
3 The use of donor Assisted Human Reproduction (AHR)
If a donor gamete (egg or sperm) is used in AHR, the partner of the birth mother can become the child’s second parent. It’s important to note that the fertility treatment must be carried out in a clinical setting. The donor must also declare that they are acting solely as a donor, and not a parent.
If those conditions are adhered to, and evidence is provided, the birth mother and her partner will be able to register the birth of the child jointly, and won’t have to go to the courts for a ruling on parentage.
A child born through donor AHR will be able to trace their genetic identity through a national register of donors. It’s anticipated that the child will have to reach the age of 18 in order to do this. It’s likely then that anonymous donations will be banned once the Bill becomes law.
4 Adoption
Currently, single people can apply to adopt a child. The draft law proposes that civil partners and couples who have lived together for at least three years will be eligible to adopt jointly.
5 Parental and adoptive leave
Same-sex civil partners or cohabiting couples will qualify for adoptive leave and will have the right to decide themselves which member takes it.
Under the Bill, the second female partner in a same-sex relationship will be given the same parental leave rights as Irish fathers currently have.
6 Surrogacy
A legal framework for surrogacy was included in the first drafts of the Bill, but later removed. The Department of Health is drafting the Surrogacy, Assisted Human Reproduction and Associated Research Bill as a separate piece of legislation. This is likely to ban commercial surrogacy and other controversial aspects issues like sex-selection of a child. The timeframe for this Bill isn’t clear, but it isn’t likely to be passed in the lifespan of the current government – i.e. before early 2016.
7 Children’s rights
The draft law puts the best interests of the child to the fore in issues like guardianship, custody and access. Children will be consulted on all matters that affect them. Justice Minister Frances Fitzgerald has described children’s rights as a “golden thread” running through the new Bill.
8 Reaction to the Bill
Children’s rights charities and government parties have all gotten behind the Bill, though some are taking issue with the length of time available to have it adopted – especially in light of the Same Sex Marriage Referendum in May. The ‘Mothers and Fathers Matter’ group headed by economist Professor Ray Kinsella has called for a number of amendments. The group takes issue with the provision made for same-sex couples, saying the Bill promotes situations where a child is denied either a mother or a father.
The Bill is available here.
Modern Families by Numbers (Source: CSO, Department of Justice):
- 215,315 lone parent households in Census 2011
- 186,284 lone parent households headed by a mother
- 29,031 lone parent households headed by a father
- 17,378 lone parents living in multi-family households
- 4,042 same-sex couples living together
- 66% of the 115,046 divorced or separated women were living with their children
- 49,005 households of cohabiting couples with children under 15
- 41% increase in the number of children living in households headed by cohabiting couples between 2006 and 2011.
- 25,190 children were born outside marriage or civil partnership in 2011
- 25,344 were born outside marriage or civil partnership in 2012
