MASSIVELY IMPORTANT LEGISLATION WILL OVERHAUL FAMILY LAW IN IRELAND - KENNY

Posted on February 25, 2015 4:04 PM   |   Permanent Link   

Speaking on the Children and Family Relationships Bill 2015

I am very pleased to be able to speak on what is a massively important piece of legislation that will overhaul family law in Ireland - this is perhaps the most important and far reaching legislation to come before the House during the lifetime of this Government that does not deal with economic issues. This is a huge piece of legislation and I can only refer to a small amount of it in the time available to me.

The Children and Family Relationships Heads of Bill 2014 represents the most important reform of child and family law for a generation. The proposed legislation seeks to put children at the heart of family law, provide legal clarity around various family types and address discrimination faced by children in non-marital families.

The Oireachtas Committee on Justice, Defence and Equality, of which I am a member, was invited to review and consider the proposed legislation and to report back to the Minister with any observations arising from a consultation process. The Committee held a public consultation and its Report was published on 29 May 2014. I was glad to be able to participate in this valuable process.

It is hoped that it will significantly reduce the number of cases going to court due to the current legal vacuum. The legislation addresses key issues relating to guardianship, custody, access, maintenance, adoption, parentage, assisted human reproduction and surrogacy.

The legislation will amend a number of existing pieces of legislation including the Guardianship of Infants Act 1964 - which will actually be repealed in its entirety, the Family Law (Maintenance of Spouses and Children) Act 1976, the Status of Children Act 1987 and as well as the Family Law Act 1995, the Children Act 1997 and the Adoption Act 2010. Also the radical in itself Civil Partnership and Certain Rights and Obligations of Cohabitants Act of 2010 will also be amended.

The proposed legislation will see further implementation of the UN Convention on the Rights of the Child (UNCRC) in Ireland by protecting the child's right to family life (Articles 5, 9, 10, 18 and 20 of the UNCRC) and protecting the children of unmarried families from discrimination based on their parent's marital status (Article 2 of the UNCRC).

The best interests of the child will be the paramount consideration in decisions involving guardianship, custody and access (Article 3 of the UNCRC) and providing children with the right to have their voice heard as part of the best interest determination regarding guardianship, custody and access cases (Article 12 of the UNCRC).

The Irish Constitution places great importance on the family and defines it as 'the natural, primary and fundamental unit group of society' (Article 41). However, the Courts have narrowly interpreted the constitutional family as only including marital families.

Cohabiting couples, civil partners, lone parents, unmarried fathers and grandparents are all excluded from this definition. An increasing number of children are being cared for in non-marital settings for example, one in four children live with lone mothers and almost one in ten live with unmarried cohabiting couples, yet the law does not provide for the recognition of the unmarried parents' relationship with the child.

This can impact on their day-to day parenting role, for example, consent to medical treatment or the granting of permission for school trips. This lack of legal clarity can be particularly detrimental to a child in the context of family breakdown. I would like to speak from my own experience. My father died when I was 2 and a half years old and my mother became a widow. I believe that this experience growing up in a one parent family gives me some insight into in this area.

The legislation aims to provide greater legal certainty and recognition of the relationship between the child and the person or persons who are responsible for their everyday care and upbringing. The explicit focus on the best interests of the child is extremely welcome. However, I would have concerns as to how the courts can be systematically and professionally resourced with the relevant background information in order to determine the best interests of the child. I have heard too many stories of our courts being frequently under-resourced with the relevant impartial information particularly where the parents are not in cooperation or in agreement about plans for the child's care.

The provisions of the legislation in relation to family violence and domestic abuse are welcome and I would strongly urge that courts look at all issues relating to a family in the round, preferably in one sitting by the same judge, to ensure consistency and that decisions are made in the best interests of the child. Family violence is not only limited to physical harm, sexual abuse or fearing for safety and this must be taken into account.

I am very proud to support this pioneering, modernising and overdue legislation, and I commend it to the House.