THE Minister for Equality and Law Reform, Mr Taylor, in responding last Wednesday to my criticisms of his recently published Children Bill, advances an interesting perspective on law creation. He appeared to suggest that bad law is justifiable if it has been preceded by even worse law. Thus, the central plank of his defence of the Children Bill is that it is an improvement on the situation as outlined in the Status of Children Act 1987.
I believe that Act, like the Minister's Bill, together with most of the present laws dealing with the relationships between children and parents, to be unconstitutional on the grounds of offending against Article 42:1 of the Irish Constitution, which "guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children".
At the moment, these rights appear to be guaranteed only to mothers, a situation which the Minister for Equality and Law Reform appears to support.
The Children's Act 1987, in Mr Taylor's words, allowed a father who was not married to the mother of his child or children "to apply to the courts to be appointed as a guardian if he so wished". In this phrasing resides a clue to the nature of the culture pertaining to the legal rights of fathers and their children, and to the tactics of Mervyn Taylor in seeking to maintain that culture.
The implication of the wording is that a father may or may not wish to apply for guardianship of his children, which in turn is based on a deeply prejudiced view of unmarried fathers, presupposing reluctance, recalcitrance and general fecklessness.
This may by true of some cases, but it represents a gross defamation of the generality of such fathers. The problem is that, because this thinking forms the cornerstone of both the culture and the laws and legal processes deriving from that culture, it governs every relationship between an unmarried father and his child that comes up for judgment.
By presupposing irresponsibility as the natural response of an unmarried father, the culture builds a wall against him, ensuring that he could only apply for or obtain guardianship in a manner subservient to the wishes of the mother.
It is hardly surprising if the view of fathers inherent in this legislation can turn into a self fulfilling prophecy. Because, in the absence of a marriage contract, the law gives virtually all rights to the mother, the unmarried father must live by the culture's designation of him as a secondary being.
By bending over backwards to please the mother, he can gain access to his child. But this gives him no rights. By behaving in a manner pleasing to the mother - perhaps, for example, eschewing relationships with other women he can build a relationship with his child.
Mr Taylor is theoretically correct in stating that "the grant of rights to a natural father does not depend on the mother's consent", but in practice, as he must know, any family lawyer in this State will tell an unmarried father seeking guardianship that he has no business going to court without a letter of consent from the mother. Mr Taylor can assert otherwise only because he knows that the in camera rule means that no case histories or statistics can be quoted against him.
Once you begin from the viewpoint that men are reluctant fathers, it is easy to canonise women and declare them owners of children. But this is, at its core, a lie. Why on earth would I not "wish" to be a guardian of my child? Am I not human? Is she not human? Is the fact that a father is not married to the mother to be held against both father and child?
Do we not live, as we keep being reminded, in a Modern Ireland, which no longer clings to the certitudes and shibboleths of the past? Do we have a right to anything more from our leaders than rhetoric about the virtues of modernity? Mr Taylor does not appear to think so.
"I was not under any obligation to tackle this issue," he wrote. Why? Because "there was no European requirement to review the law on guardianship and I could just as easily have let well enough atone, as Fianna Fail and the PDs did in the years following the Status of Children Act".
So now we know. Our Government and its Ministers feel obliged to bring in laws only when there is a "European requirement" to do so.
Mr Taylor accuses me of being "ill informed". Unfortunately, I am all too well informed about this matter. I dearly wish I were wrong about his Bill. Nothing would give me greater pleasure than to be able to give him a clap on the back.
Many people hoped that a Labour Party initiative in this area might display some of the enlightenment which that party's rhetoric might have led us to expect. However, it appears that Mr Taylor is content to be judged by comparisons with Fianna Fail and the PDs.
MR TAYLOR'S response to my criticisms, while containing much defensive bluster, offered no reassurance. I read and reread it in the vain hope that I had, in fact, misread his Bill. But it is clear that I was all too correct about both the Bill and the ideological agenda underlying it.
Mr Taylor asks if I would have preferred him to "leave well enough alone". Yes, I would. By doing nothing to improve things, while making a song and dance about tackling the issue, he has almost certainly postponed proper reform well into the future. Despite the Minister's 1,000 word article, the arguments I made against the Bill last week remain unanswered.
I do not have space here to repeat them, but there will, I hope, be an opportunity to air these and other matters this coming Thursday morning when the Gay Byrne Show has agreed to provide time for a debate between the Minister and me.
will deal with just one point which, I believe, graphically illustrates the utter uselessness of this Bill in addressing the inequalities it purports to reverse. Mr Taylor makes much of the fact that it allows grandparents and other relatives to apply for access to children. In actual fact, the Bill proposes that such relatives will have the right to apply to a court for leave to apply to a coup for access.
Firstly, how is an old age pensioner to finance such complex and lengthy legal proceedings? Secondly, the Bill states that, in deciding whether to grant leave even to apply for access, the court will "have particular regard to . . . the wishes of the child's guardian".
Since the cases in which legal proceedings will be necessary will be those where the child's mother has already refused access, it is not difficult to predict what will occur. In the absence of a comprehensive realignment of rights, we are back to square one: if the mother says it's OK, it's OK, if she doesn't, it isn't.