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Ireland's political and cultural magazine
26September/October 2015
RUTH BARRINGTON
T
HE Children and Family Relationships Act
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 provi-
sions 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, espe-
cially in relation to unmarried fathers.
Guardianship rights owing
from cohabitation
Approximately % of children are born outside of
marriage each year and % 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
The Children
and Family
Relationships Act
benefits most non-
traditional families
but not fathers who
are not living with
the mother
No panacaea for unmarried fathers
September/October 2015 27
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 Statu-
tory Declaration for joint guardianship, these fathers
will have no option but to apply to the court for guardi-
anship. 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 chil-
dren 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 legisla-
tion whereby it will now be possible for Birth
Registrars to witness the signing of statutory declara-
tions 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 regis-
tration, 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 ,
which is due to be commenced shortly, it will be com-
pulsory (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 out-
side 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 coun-
try of residence). As there is no Guardianship Register
it is not possible to know how many children of unmar-
ried 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 investi-
gate 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 guardi-
anship 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 (C) ()
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 deci-
sions 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 legis-
lation. 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 influ-
ence the legislation.
Looking to the future, in order to address the inequi-
ties 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)
Treoir was disappointed
at how little support
there was for improving
the rights of unmarried
fathers, particularly
among family organisa-
tions, but encouraged by
support from politicians
“
