By Dr Ruth Barrington
The Children and Family Relationships Act 2015 was passed in April this year. When it is commenced, the legal landscape for families in Ireland will change dramatically. From Treoir’s perspective, the guardianship provisions are the most significant and are the subject of this article.
It is likely that the guardianship provisions of the Act, which affect unmarried parents (particularly unmarried fathers), will be commenced before the end of this year. While many of the provisions of the Act are very welcome and beneficial for children and families, particularly non-traditional families, the legislation is not a panacea and many inequities will remain, especially in relation to unmarried fathers.
Guardianship rights flowing from cohabitation
Approximately 36% of children are born outside of marriage each year and 46% of first births to women in Ireland each year are outside of marriage. Currently, unmarried fathers have no automatic guardianship rights to their children. This means they have no legal right to be involved in the major decisions about the upbringing of their child, for example those relating to where the child lives and goes to school; decisions on consent to medical treatment, on the religion of the child or on consent to adoption. When commenced, the legislation will confer automatic guardianship rights on unmarried fathers who have cohabited with the mother for one year, three months of which must be after the birth. This is a major step forward for those fathers who qualify for automatic guardianship under this provision and who can demonstrate that they meet the criteria.
What about fathers who are not living with the mother?
Many non-cohabiting fathers play a very active role in their children’s lives and are very important to their children. There is nothing in the Act to benefit these fathers or their children. Their status will remain as it is at present – unless the mother agrees to sign a Statutory Declaration for joint guardianship, these fathers will have no option but to apply to the court for guardianship. It is regrettable that the legislation does not go further towards ending this area of discrimination against unmarried fathers. Shared parenting should be promoted in every way possible because it gives children the possibility of a nurturing relationship with both parents and their extended families even if the parents are not living together.
Joint guardianship at the point of birth registration
Many parents wrongly believe that having the father’s name on his child’s birth certificate gives him guardianship rights. This is not so and it is usually only if and when a relationship breaks down that it comes to light that the father has no legal rights in respect of his child. A welcome provision was inserted in the legislation whereby it will now be possible for Birth Registrars to witness the signing of statutory declarations by unmarried parents appointing the child’s father as a guardian. Unmarried parents can complete the form when registering the birth of the child or within two weeks of registration. If the parents do not agree to sign the declaration at the point of birth registration, at least unmarried fathers will be alert to the fact that they do not have any automatic rights and that action is required in order to acquire them.
Compulsory registration of father’s name
Under the Civil Registration (Amendment) Act 2014, which is due to be commenced shortly, it will be compulsory (with some very specific exceptions) to have a father’s name on his child’s birth certificate. This is welcome recognition that children have a right to know who their parents are so they will have a good sense of their own identity and it could change for the better the nature of the relationship between children born outside of marriage and their fathers.
Recording Guardianship Agreements
It is a source of great regret to Treoir that, despite our efforts over many years, there is no provision in the legislation for a Central Register of Guardianship Agreements. Where a Statutory Declaration is signed by both parents and subsequently mislaid or destroyed, there is no evidence of the fact that the father has guardianship rights to his child. This can have dire consequences, such as a child losing contact with his/her father (particularly where a mother changes country of residence). As there is no Guardianship Register it is not possible to know how many children of unmarried parents will have the benefit of a legal relationship with their fathers. It is extremely disappointing that not even the Declarations witnessed by the Registrars of Births will be recorded and there will therefore be no record of the number of Declarations witnessed by the Registrars. We have a national register of who owns every square meter of land in Ireland and yet we do not know who is responsible for our most precious resource, all of our children.
Frances Fitzgerald, Minister for Justice, said that she would commit to setting up a working group to investigate the feasibility of a Guardianship Register. Treoir calls on the Minister to promote this as a matter of urgency.
Court-appointed guardians (other than parents)
When the Children and Family Relationships Act is commenced, grandparents, step-parents and those who have acted in loco parentis can be granted guardianship by the Court. This will be a different and lesser form of guardianship than that enjoyed by parents. From a list of rights specified under section 49 (6C) (9) of the Act, a court will be empowered to grant selected rights. In the absence of a Guardianship Register, it is unclear how professionals (social workers, doctors, teachers passport office staff etc.) and other family members will know which selected rights a guardian has and who must be consulted when significant decisions are being made in relation to children.
Undoubtedly the legal position of many unmarried fathers will improve as a result of the Children and Family Relationships legislation. However, Ireland is still very much out of line with other countries where the rights of biological parents are automatic. Treoir was disappointed at how little support there was for improving the rights of unmarried fathers, particularly among family organisations, in the run up to the legislation. However, we were encouraged by the many Deputies and Senators, who during the passage of the bill, expressed concern about discrimination against unmarried fathers and worked hard to positively influence the legislation.
Looking to the future, in order to address the inequities between married and unmarried parents, consideration should be given to introducing automatic guardianship rights for all parents.
Dr Ruth Barrington is Chair of Treoir (federation of services for unmarried parents and their children)