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Ireland's political and cultural magazine
16 April 2015
T
HE Children and Family Rela-
tionships Bill is the most
important piece of legislation
affecting parents and chil-
dren for a generation. There
is much that is good in the bill but this
article focuses on one surprising defect:
the provisions on unmarried fathers and
guardianship.
While the extension of automatic
guardianship under the Bill to fathers
who can demonstrate that they have
cohabited with the mother for one
year (with three of the months after
the birth of the child is an advance of
In these jurisdictions, automatic
guardianship for unmarried fathers can
be challenged by the mother if it is not in
the best interest of the child.
In other words the presumption that
the father should have guardianship
over his children can be rebutted (the
same position as applies to the mother’s
rights).
The proposal in the current Irish bill
seems to be based on the view that the
father derives his guardianship rights
as “family” rights from co-habitation.
But the rights accrue to the child on the
basis that it is better the child should
have fully engaged parents, mother and
father alike – and should not derive from
any interpretation of family.
It is possible that the Children and
Family Relationships Bill when enacted
will be infirm either constitutionally
or under the European Convention on
Human Rights.
Currently where a child is born to par-
ents who are married to each other, the
child’s mother and father automatically
acquire joint guardianship in respect of
the child. By contrast, where a child is
born outside marriage, only the mother
a sort, concerned agencies like Treoir,
which provides advice to unmarried
parents, believe that the Bill does not
go far enough to reflect the rights and
responsibilities of unmarried fathers
for their children. Unmarried fathers
should be the automatic guardians of
their children – as married fathers
are. The father’s relationship with the
mother should not be determinant. The
Law Reform Commission (LRC) recom-
mended this in 2010 (and indeed in its
1982 Report on Illegitimacy). It stated
unequivocally: “equality should be the
guiding principle in reforming the law
in this area”.
Equality is a big principle with clear-
cut edges and the Bill simply does not
enshrine it. That is a fundamental prob-
lem. The LRC’s recommendation that
“legislation be enacted to provide for
automatic joint parental responsibil-
ity (guardianship) for both mother
and father of any child” has been
flouted in the Bill.
Unmarried fathers are the automatic
guardians of their children in Northern
Ireland, Britain, Australia and many
European countries.
The Children and
Family Relationships
Bill betrays the equal
rights and duties of
paternal guardians.
By Michael Smith
Improved but still
fundamentally awed
The Law
Reform
Commission
stated
unequivocally:
“equality
should be
the guiding
principle in
reforming the
law in this
area”
“
NEWS Guardianship
April 2015 17
NEWS Guardianship
will acquire automatic guardianship.
An unmarried father is not automati-
cally deemed to be a guardian, though he
may become a guardian either by means
of a statutory declaration made jointly
by both parents, or by court order. This
means that a child born to married
parents automatically enjoys the guard-
ianship of two persons. A child born
outside marriage, on the other hand,
has no automatic right to this second
guardian. The child’s right to a second
guardian is, in such cases, contingent
on the father’s willingness to seek and
accept guardianship, and then on either
the mother’s willingness to accept him
as a joint guardian or, in the alternative,
on the assent of a court.
The Commission’s suggestion of a
strong presumption in favour of the
father, while an incremental step, would
nonetheless maintain the current situ-
ation whereby responsibility will be
conferred only on unmarried fathers
who seek to exercise such responsibil-
ity, (through the courts if the mother’s
consent is not forthcoming) while moth-
ers and marital fathers will continue
automatically to assume such responsi-
bilities on the birth of a child.
The LRC thinking is reflected in that
of the Equality Authority which has spe-
cifically committed itself to supporting
initiatives “…[p]romoting the status of
men as carers, in particular the equal
sharing of caring rights and respon-
sibilities between women and men
and continuing dialogue with men’s
organisations on issues of equality
for men…”.
In 2010 the Equalit y Aut horit y recom-
mended that steps be taken to promote
equal sharing of parental responsi-
bilities by those in a parenting role in
respect of the child, where this is appro-
priate in the particular circumstances.
In this regard, as a matter of principle,
the fact that a child is born inside of or
outside of the context of marriage should
have no bearing on the child’s right to be
cared for and supported by both of his or
her parents.
If guardianship is viewed as a vehicle
primarily for conferring responsibility
in respect of a child, the case for con-
ferring parental responsibility on both
father and mother automatically on the
birth of a non-marital child, has much to
recommend itself:
• It would remove the distinction
between marital and non-marital
fathers, emphasising that parental
responsibility is predicated on the
relationship between the parent and
child and should not depend on the
relationship between the parents of
the child;
• It would emphasise that mothers and
fathers alike each have equal respon-
sibilities towards their child.
Certainly there may be exceptional
cases in which it will not be either in the
child’s best interests, or in the inter-
ests of the wellbeing of the mother,
for the father (or indeed other guard-
ians) to retain parental responsibility.
Some disgracefully argue, for exam-
ple, that rapists should potentially
benefit from paternal rights including
guardianship.
These exceptional situations will
necessitate a mechanism whereby a
person may be removed as a guard-
ian. Such situations should include,
in particular, where that person has
consistently failed to meet his respon-
sibilities towards the relevant child or
where that person has raped the mother
or been convicted of a serious criminal
offence or has committed a serious civil
wrong against the person of the child or
other guardian. This removal must be
subject to periodic review and subject
to appeal.
Exceptional circumstances should
not shape general policy and principles
of the law as it applies to the majority of
cases of childbirth.
The Bill reveals an extraordinary def-
icit in egalitarianism – denigrating the
father and denying him guardianship
unless he can prove certain conditions
have been met – being married, having
been in a relationship with the mother
for a year etc.
The presumption should be reversed.
Unless he is shown delinquent in some
significant way the presumption must
be that the best interests of the child
are served by his being guardian and he
should have that status automatically,
subject to rebuttal of the presumption. If
the father’s rights are not seen through
the lens of equality there is a danger that
his duties will not be either.
Legal reform should have been guided
and informed by the United Nations
Convention on the Rights of the Child
(UNCRC) as well as the relevant case
law of the European Court of Human
Rights and the EU Charter of Funda-
mental Rights. In international law,
particular emphasis is placed on the
seminal importance of the best interests
principle.
For example, Article 18 of the UNCRC
provides:
1. States Parties shall use their best
efforts to ensure recognition of the
principle that both parents have
common responsibilities for the
upbringing and development of the
child. Parents or, as the case may be,
legal guardians, have the primary
responsibility for the upbringing
and development of the child. The
best interests of the child will be
their basic concern.
2. For the purpose of guaranteeing
and promoting the rights set forth
in the present Convention, States
Parties shall render appropri-
ate assistance to parents and legal
guardians in the performance of
their child-rearing responsibilities
and shall ensure the development
of institutions, facilities and serv-
ices for the care of children.
Guardianship really matters. The
guardian of a child decides where that
child will live, and go to school, and
what religion, if any, the child will be
raised in. The guardian’s permission is
required for medical treatment of the
child, including vaccinations, and to
secure a passport for the child.
Beyond guardianship the Bill will
finally ensure the voice of the child will
be heard and his or her best interests
will be taken into account in decisions
affecting a child.
Treoir has welcomed the provisions
that grandparents, step-parents, foster
parents and others who have acted in
loco parentis to a child can apply for
guardianship. And recent amendments
made to the Bill will mean that a Birth
Registrar will be empowered to witness
a statutory declaration for joint guardi-
anship, signed by the mother and father,
appointing the father as a guardian. This
can be done when the birth of the child
is being registered (or re-registered) or
within 14 days of the registration. This
is a welcome advance. Many unmarried
fathers are currently under the mis-
apprehension that jointly signing the
birth register gives an automatic right
to guardianship of a child.
While the Bill constitutes an advance
in several important areas, it is con-
trary to elementary principles of human
rights, egalitarianism and the best
interests of the child to link automatic
guardianship to any marital or cohabi-
tation criteria. •
Unless he
is shown
delinquent
in some
significant
way the
presumption
must be that
the best
interests of
the child are
served by the
father being
guardian
“
18 April 2015
A
T best we see migrants as work-
ers, and all too often as a source of
cheap, exploitable labour. Integra-
tion policy tends to be concerned with
what happens in the workplace or out in
the community. We fail to see migrants
as entrepreneurs. Economic policy and
economic development programmes
don’t do diversity and end up incapable
of meeting the specific needs of migrant
entrepreneurs. That is why we need to
put the economic back into integration.
The Dublin Institute of Technology
has been setting trends in this regard.
It established an Institute for Minority
Entrepreneurship in 2006. This Insti-
tute is demonstrating how to put the
economic back into integration. It was
set up because the relevant state agen-
cies did not appreciate the particular
difficulties facing entrepreneurs who
were immigrants or from minority
groups. At a recent Dublin City Coun-
cil event, Professor Thomas Cooney,
Academic Director of the Institute, out-
lined the specific difficulties for migrant
entrepreneurs.
He said that about 12.6% of migrants
have partial or full ownership of a busi-
ness. This compares with 8.6% of the
Irish population. Most of these migrant-
owned businesses provide small-scale,
locally-traded services. They are often
targeted at the migrant entrepreneur’s
own community. A high 94% employ
five or less staff and a significant 65%
generate €50,000 or less in annual sales
revenue.
He pointed out that migrant entrepre-
neurs start out in sectors where there are
no barriers to entry such as retail, res-
taurants and IT. This is because of the
difficulty they have in getting access to
finance. Most go to family and friends
for start-up funds. Migrant entrepre-
neurs have limited access to the business
networks needed for successful start-
ups. They don’t know their way around
the business support systems that are
available in Ireland. Some of them face
language barriers. He suggested that the
biggest problem was one of trusting, and
gaining the trust of, the Irish customer.
Lack of trust is sometimes manifest in
having to battle extremes of racism, dis-
crimination and prejudice.
The Irish Government has set a target
for Ireland to be, by 2020, the best coun-
try in the world in which to start up a
business. It is big into entrepreneurship.
Why we have to be the best in the
world and cannot settle for ‘very good’
remains, as always, a mystery. How-
ever, this commitment should provide
a favourable environment for this wide-
spread migrant entrepreneurship to find
the support it deserves.
Dublin City Council initiative is part
of a Europe-wide initiative of the Coun-
cil of Europe covering ten cities called
‘Diversity in the Economy and Local Inte-
gration’. The initiative aims to introduce
quality-management standards into
integration policy such that appropri-
ate business supports are made available
to migrant entrepreneurs and such that
migrant entrepreneurs have improved
access to procurement tenders from
public bodies and private companies.
Declan Hayden, Director of the Office
for Integration in Dublin City Council,
is co-ordinating this work for Dublin.
He says that one outcome of the initia-
tive will be the inclusion of a focus on
business start-ups in the new Dublin
City Council Integration Strategy. This
will serve to continue the work after the
Council of Europe support has ended.
Migrant entrepreneurs aren’t hanging
around for everyone else to deliver. Cath-
erine Mahoro is the founder of the Down
to Basics Network (DotoBa), a platform
for migrant entrepreneurs to network
and find support. Its networking ses-
sions stared with groups meeting for a
cup of tea in the Gresham. The group got
so big they began to have duty manag-
ers hovering around wondering ‘if they
needed any help’. They took the hint and
decamped to a larger venue, with the
group growing to over 100 members.
In May Mahoro launches a networking
website for migrant entrepreneurs.
She says that migrant entrepreneurs
tend to shy away from state agencies.
Many work extremely long hours in busi-
nesses that are barely sustainable and
don’t see the returns their initiative and
hard work merit. Financial institutions
have shown little understanding of their
needs. There is, therefore, some urgency
to putting the economic back into inte-
gration if this talent and effort is not to
be wasted. •
Economic policy needs to recognise the possibilities and challenges for immigrants.
By Niall Crowley
12.6% of
migrants have
a business,
compared
with 8.6%
of the Irish
population
“
Migrant entrepreneurship
NEWS Migrants
