THERE HAVE been many changes in the Irish family since the enactment of the 1964 Guardianship of Infants Act. Separation has become more common, divorce has been legalised and the number of children born out of wedlock now amounts to one in three. For the children involved, this means that their family relationships can be complex and sometimes difficult, yet until now the law has not been designed to cope with these new realities, often putting the children at a disadvantage.
The most recent Law Reform Commission report sets out to deal with these problems with a number of far-reaching proposals setting out parental rights and responsibilities, and making provision for these to be available not just to marital parents, but to all those with a bona fide interest in the welfare of the child. This can only be to the benefit of the children who have a right to know and be cared for by their parents or – when this is not possible – by those who genuinely care for them.
All parents, married or not, will have their names on the birth certificate of the child except in strictly limited circumstances, where the mother makes a statutory declaration that she does not know the identify of the father or where her safety or that of the child would be in danger. Both parents will have automatic guardianship (to be renamed parental responsibility), again unless this endangers the mother or child. If enacted, this will bring to an end the long-standing grievance whereby unmarried fathers, including those who have been intimately involved in bringing up their children, have had to go to court to establish guardianship unless this has been established by agreement with the mother.
The commission’s proposals will allow grandparents seek parental responsibility and contact with their grandchildren through the courts and will permit other adults involved in the lives of children – including step-parents and civil partners – to seek parental responsibility. This latter proposal fills the gap in the recently enacted Civil Partnership Act, which made no provision for the position of civil partners in the lives of the children they may be bringing up. This meant there was no protection for that relationship in the event of death of the natural parent or separation of the couple.
The commission’s report is accompanied by a draft Children and Parental Responsibility Bill which, in so far as it reflects the realities of contemporary relationships and resolves a range of anomalies, should be high on the legislative agenda of the next government.