MUCH OF THE media attention surrounding the publication of the Children and Family Relationships Bill 2015 on 19 February last rested on same-sex adoption and Artificial Human Reproduction.

The Bill, however, has a much broader focus. It proposes to herald a new era for family law in Ireland. The cornerstone of family law, particularly in relation to issues concerning children has been the Guardianship of Infants Act 1964, which will be amended significantly upon the enactment of the Bill.

There are many positives in this new Bill

There are many positive elements in the Bill such as the best interests of the child being the paramount consideration in all proceedings relating to guardianship, custody and access.

The Bill also provides for enforcement orders in circumstances where one parent “unreasonably” denies custody or access to the other parent. These enforcement orders include the attendance at parenting programmes, family counselling or mediation and the inclusion of compensatory time (extension of periods of access) when access orders are breached.

Further, while the 1964 Act makes provision for the removal of a guardian, the Bill helpfully specifies the circumstances in which a guardian can be removed, for example, if another guardian is being appointed, if existing guardians are unwilling or unable to exercise their guardianship rights or have failed in their duty to that child to such an extent that the welfare and safety of the child is likely to be affected unless removal takes place. This again will provide transparency not only for guardians but for the courts if called to decide on this issue.

Introducing automatic guardianship for non-marital fathers

The legislation will provide for automatic guardianship for non-marital fathers who have lived with the mother of the child for a minimum of 12 months, which period must include three months following the child’s birth.

While welcoming this development, Treoir – the national federation of services for unmarried parents and their children – has reservations as to how cohabitation periods will be verified if parents are in disagreement as to the time they have been living together.

Though this is also an issue that arises in separation and divorce cases, it is resolved at the hearing of the application. If a judge has to determine the length of cohabitation in guardianship cases, it is hardly satisfactory that we have a situation that could potentially increase the volume of guardianship cases going to court. While the issue of time limits is being resolved, the unmarried father will be unable to make important decisions around the child’s life. This is not in keeping with the ethos of the Bill.

This allows cohabiting fathers to become guardians – but what about fathers who live separately? 

The Bill also seeks to recognise the new concept of family in modern Ireland by proposing that the court may appoint persons who have acted in loco parentis (eg, step- parents, grandparents, etc) as guardians, with the consent of existing guardians. Treoir is concerned that if the unmarried father is not a guardian there will be no requirement to consult him. He will, however, be given notice of any application for guardianship of his child.

While amendments to the Guardianship of Infants Act 1964 thus far have improved the position of the unmarried father in Ireland by providing that he can apply to court for guardianship or acquire guardianship by signing a Statutory Declaration for Joint Guardianship jointly with the mother, this Bill goes a step further.

It permits cohabiting fathers to become guardians subject to cohabitation conditions; however, the Bill does not provide for unmarried fathers who do not live with the mother of their child but may have a strong relationship with the child. In such circumstances, the old regime applies in that such a father will have to apply to court or gain agreement of the mother to sign a Statutory Declaration for Joint Guardianship.

Putting both parents’ names on their child’s birth certificate 

We are delighted that at the report stage of the Bill on 12 March, following pressure by Treoir and many deputies, the Minister for Justice and Equality Frances Fitzgerald amended the Bill to facilitate unmarried parents signing a statutory Declaration for Joint Guardianship at the point of birth registration. This dovetails well with the Civil Registration (Amendment) Act 2014 which, when commenced, will make it compulsory for both parents’ names to be entered on the child’s birth certificate, with a number of exceptions.

It appears that when an unmarried couple register the birth of their child, they will be given a statutory Declaration for Joint Guardianship to sign. They can sign at that point or within 14 days of the birth registration and the Registrar will witness the signing of the declaration. The advantage of the acquisition of guardianship at the point of birth registration is that the parents do not have to satisfy a cohabitation period of one year. It is a matter of regret to Treoir that there is no duty on the Registrar to record this information.

Creating a central register for guardianship agreements?

Since the introduction of the Children’s Act 1997 an unmarried father can become a guardian if he signs a Statutory Declaration jointly with the mother. There is nowhere to file the forms and thus, in the event of a dispute between the parents, or the document being mislaid or destroyed, an unmarried father has no evidence of his guardianship and as a result will not be in a position to make major decisions in relation to his child.

For almost two decades there has been much criticism of the lack of a central register for joint guardianship agreements. Both the Oireachtas Committee on Justice, Defence and Equality and the Law Reform Commission have recommended the introduction of such a register.

While the Minister did not commit to the provision of a central register for guardianship agreements, she did agree to the commissioning of a report on the feasibility of such a register. Treoir would like this to be embedded in the legislation. Perhaps consideration will be given to doing so at Seanad stage.

A more child-centred approach

All of the issues raised above have the potential to affect relationships in the future. The Bill attempts to support a more child-centred approach in deciding issues of guardianship.

The amendment at the report stage last week will assist unmarried parents to become joint guardians more easily and will also alert them to the fact that the father, who is unmarried, is not an automatic guardian of his child.

An unmarried father can acquire guardianship in one of several ways – by signing a Statutory Declaration and having it witnessed by the Registrar at birth registration (or within 14 days); by the parents living together for 1 year, 3 months of which must be post birth; by both parents signing a Statutory Declaration at a later stage of the child’s life, in the presence of a peace commissioner or commissioner for oaths; or by application to the court to be appointed a guardian. The ideal is that court should be the last resort.

Whether these different options will provide clarity or cause confusion awaits to be seen but there is an onus on all concerned to provide information to parents at the earliest stage possible. Treoir has been committed to doing so for the last 39 years and will continue to do so in the future.

Dr Anne Egan is a member of the National Council of Treoir. Her doctoral research, awarded by NUI Galway was in the area of fathers’ rights.