The Equality Authority seeks greater recognition of the diverse situations in which children are being parented in modern Ireland. “The best interests of children require that greater diversity of parenting arrangements be acknowledged in the framing of family law, so that the responsibilities of all those in a parenting role are appropriately recognised. The Authority emphasises that policies and laws must place the child at the centre of all matters relating to his or her welfare. This necessarily requires that full regard be paid to the particular circumstances of every child’s life, ensuring that both policy and the law are sufficiently flexible and responsive to the needs of children in all family units”, said the Chairperson of the Equality Authority, Angela Kerins.
“Today, more and more children are being raised in families that do not meet the prescribed constitutional norm of the family based on marriage. In particular, many children are growing up in families headed by unmarried cohabiting couples, including opposite-sex and same-sex couples, while a growing number of children are being raised in one-parent families. Additionally, many children are cared for by people other than their biological parents, with grandparents and step-parents often playing an important role in the life of the child.” she said.
The Authority believes that the law as currently constituted copes poorly with these new realities. It fails to recognise the responsibilities of a number of important people in the child’s life. The Authority recommends a review of the law as it relates to children, with an emphasis on supporting both parents and others in a parenting role in fulfilling their responsibilities towards all children.
“At the core of these proposals is a goal: to ensure full support for all children, with a view to forging laws and policies that appropriately recognise the diverse reality of family life in modern Ireland. The Authority emphasises the need to recognise a much wider frame of responsibility and equality in respect of parenting than is currently the case in Irish law” Kerins concluded.
Among the Authority’s proposals are:
1. The Authority recommends the conferral of automatic parental responsibility on all fathers, regardless of marital status, with provision for the removal of responsibility in exceptional cases.
As a matter of principle, an unmarried father should be granted automatic guardianship (parental responsibility) on the birth of his child. This principle should be placed on a statutory footing.
The Authority recognises that the wide and complex varieties of circumstances in which a child may be conceived, born and raised require a range of responses that are flexible in addressing the best interests of the child in those diverse circumstances. The Authority also believes in the equal sharing of caring rights and responsibilities between both parents. There may be exceptional cases in which it will not be either in the child’s best interests, or in the interests of the well-being of the mother, for the father (or indeed other guardians) to retain parental responsibility. These exceptional situations will necessitate a mechanism whereby a person may be removed as a guardian. This removal must be subject to periodic review and subject to appeal.
2. The Authority also recommends the introduction of provisions allowing, in appropriate cases, the conferral of parental responsibility on people who are playing a de facto parenting role in respect of a child, including the new spouses and civil partners of biological parents.
The law as it currently stands affords very limited recognition to persons, other than biological parents, who are performing a parenting role in respect of a child. A mechanism is required that would allow a new spouse or civil partner, in appropriate cases, to acquire parental responsibility. In particular, such a facility would obviate the need for the existing guardians to waive their guardianship responsibilities before a new spouse or civil partner may acquire guardianship. Any such mechanism should, of course, treat spouses and civil partners equally.
3. The Authority calls for the introduction of paternity leave for fathers and also for a mother to have the right to voluntarily assign a portion of her maternity leave to her spouse or partner therefore providing greater flexibility for the family in making childcare arrangements.
The provision of an appropriate period of paid paternity leave would facilitate and support shared caring arrangements in the early stages of the child’s life. It would, in particular, allow a father to assist and better support the mother and child at the critically important and challenging time following the child’s birth. The precise implementation of such a proposal will require further and detailed consideration, though this should not detract from the general principle that fathers should be entitled to an appropriate period of paternity leave.
As stated, there is currently no provision for a mother to have the right to voluntarily transfer a portion of her maternity leave and benefits to the father of the child, or alternatively to her partner. While the provision of maternity leave is primarily addressed to the health and safety of the mother and child, the Authority believes that as a mechanism that would afford the family greater flexibility in making child-care arrangements a mother should have the right after an appropriate period, voluntarily to transfer an appropriate portion of her leave.
4. Access to children by wider family members, such as non biological grandparents, is not currently protected by law and in the best interests of the child, this should be addressed. There is a strong case for the simplification of the process by which persons other than parents may apply for access.
The Authority would welcome the inclusion in the category of persons entitled to maintain contact with a child, persons who, while not technically related to a child, have (in the opinion of the court) a bona fide interest in the child. These persons may include, for instance, the parents and other relatives of a non-biological parent where a child is being or has been cared for by that non-biological parent.
The Authority would also welcome the introduction of an express definition of the term ‘in loco parentis’ as used in s. 11B of the Guardianship of Infants Act 1964. This would place on a clear statutory footing the right of a non-marital cohabiting partner (opposite-sex or same-sex) of the child’s parent to seek contact with a child in respect of whom he or she has performed a de facto parenting role. Similarly, the right of a civil partner to seek access in respect of a child for whom he or she has provided care should also be expressly confirmed in anticipation of the enactment of the Civil Partnership Bill 2009.
These proposals have also been submitted by the Authority to the Law Reform Commission’s Consultation Paper on Legal Aspects of Family Relationships, a copy of which is attached.
ENDS