1. Parental Equality - Current legislative attempts to equalise parental rights under Irish law Dr Louise Crowley Faculty of Law

2. Parental Equality – historical position Status of Children Act 1987 - s 3(1) "...the relationship between every person and his father and mother (or either of them) shall…be determined irrespective of whether his father and mother are or have been married to each other, and all other relationships shall be determined accordingly. Removed the secondary status of non marital children 2

3. Rights of unmarried parents Natural father v natural mother Distinct legal treatment Differing automatic legal status by operation of law 3

4. Unmarried mother – sole guardian s.6(4) Guardianship of Infants Act 1964 “The mother of an illegitimate infant shall be guardian of the infant.” s.5 Children Act 1997 now provides that: “Where the mother of a child has not married the child’s father, she, while living, shall alone be the guardian of the child, unless the circumstances set out in section 2(4) apply, or there is in force under section 6A (inserted by the Act of 1987) or a guardian has otherwise been appointed in accordance with this Act.” 4

5. Unmarried mother – sole custodian S.10(2) Guardianship of Infants Act 1964 As the sole automatic guardian of the child the mother shall be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the infant; 5

6. Unmarried father Pre 1987 No right to guardianship No right to seek or to agree guardianship 1964 Act mandated that a father is married to the mother of the child Status of Children Act 1987 Right to apply to the court for guardianship Children Act 1997 Right to agree guardianship status with mother 6

7. Limited rights of unmarried father – leading case law JK v VW [1990] 2 IR 437 s.6A of the 1964 Act gives a natural father the right to apply to be appointed a guardian but does not give him the right to be a guardian; nor does it equate his position in law with the position of a father married to the mother of his child. “The discretion vested in the Court on the making of such an application must be exercised regarding the welfare of the infant as the first and paramount consideration. The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by and the society of its father is one of the many factors which may be viewed by the court as relevant to its welfare.” (Finlay CJ) 7

8. Determining application by father WO’R v EH and An Bord Uchtála [1996] 2 IR 248 “Section 6A gives a right to the natural father to apply to be appointed guardian. It does not give him a right to be a guardian, and it does not equate his position vis-à-vis the infant as a matter of law with the position of a father who is married to the mother of the infant.” (Hamilton CJ) Highlighted varying nature of the rights and duties of unmarried fathers given the multitude of circumstances that could come before the courts. Although the basic issue for the trial judge is the welfare of the children, consideration must be given to all relevant factors. The blood link between the natural father and the children will be one of the many factors for the judge to consider, and the weight it will be given will depend on the circumstances as a whole. Absent other factors beneficial to the children and in the presence of factors negative to the children’s welfare, the blood link is of small weight and can not be the determining factor. But where the children are born as a result of a stable and established relationship and nurtured at the commencement of life by father and mother in a de facto family as opposed to a constitutional family, the natural father on application to the court under s.6(A) of the 1964 Act has extensive rights of interest and concern. 8

9. Recent consideration of fathers’ rights JMcD v PL, BM and AG [2010] 2 IR 199 Child born as a result of an arrangement between lesbian couple and the applicant sperm donor Supreme Court unanimously recognised his statutory right to apply for guardianship but each judge rejected his application, declaring this determination to be in the best interests of the child Geoghegan J noted the limited rights of the natural unmarried father, and the extent to which the task of securing the welfare of the child will prevent the right to apply for guardianship from being elevated to a constitutional or natural right to guardianship itself “...the degree (if any) to which rights might be conferred on the father...will depend on the circumstances of the particular case and must always, of course, be subject also to the principle that the welfare of the child should be the first and paramount consideration.” By refusing to extend the rights of the father beyond access arrangements, the child would be much better placed to establish the solid relationship with the respondents 9

10. Concept of De Facto Family JMcD v PL, BM and AG [2010] 2 IR 199 “I can find nothing in Irish law to suggest this family composed of two women and a child has any lesser right to be recognised as a de facto family than a family composed of a man and a woman unmarried to each other and a child. Indeed, it seems to me that the State has a strong interest in the recognition, maintenance and protection of all de facto families that exist since they are inherently supportive units, albeit unrecognised by the Constitution.” (Hedigan J HC) 10

11. De Facto Family Rejected by the Supreme Court Denham J was “satisfied that the learned High Court judge erred in his analysis of the family under Irish law” expressly rejecting the suggestion that the institution of a de facto family exists under Irish law. Regarded the term as “...a shorthand method of referring to the circumstances of a settled relationship in which a child lives” Geoghegan J regarded a de facto family as a “rather useful expression”....but it remains “merely a factual situation and not a legal concept” 11

12. Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 Children ignored by 2010 Act “main gap” in the legislation – Fergus Ryan Ryan notes the failure to provide a “mechanism to secure legal rights and impose obligations in respect of the child of the civil partner who is not a biological parent of the child.” Act has studiously avoided the legal relationship between children and the civil partner unit by whom they are being raised 12

13. Defence offered by Dermot Ahern “In formulating the civil registration scheme for same- sex partners the Government was mindful of the implications for children. On the advice of the Attorney General, it concluded that it was not appropriate that the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill should develop principles on children that would have much wider implications than those on same-sex partners. Apart from constitutional difficulties, issues which arise with regard to children and their welfare are so significant that it would not be appropriate to address them on a piecemeal basis without a thorough review of all of the implications such changes might have for children and also for those who might be affected by such changes.” 13

14. 2010 Act - further observations Children not relevant to division of shared home No obligation to maintain the child by the non-biological parent acting in loco parentis No succession rights vis-a-vis estate of non-biological parent No capacity for civil partners to adopt 1964 Act, as amended still applies 14

15. Child and Family Relationships Bill 2014 General Scheme published February 2014 Automatic rights arising in the non-marital context First positive statement of automatic guardianship rights for civil partners First provision for a right to apply for guardianship status by civil partners Welcome statutory reflection of social changes Recognition of alternative family formations Do the proposals achieve formal equality?? 15

16. Part 2 - Parentage Head 6(3) – identifies who is considered a parent Unmarried father has no automatic right to parentage Status as male parent is determined by relationship with the mother of the child Presumes committed heterosexual relationship 12 months cohabitation pre birth Joint agreement with the mother Court order confirming parentage Query need for both parentage and guardianship status? 16

17. Part 3 – Assisted reproduction – transfer of parentage Commission on Assisted Reproduction (2005) recommended that the presumption of parentage should apply to the commissioning parents Head 12 – transfer of parentage depends entirely upon the consent of the surrogate mother Highlights the vulnerability of commissioning parents Commissioning parents, incl biological father must secure a court order to attain parentage Not earlier than 30 days post birth One applicant must have a genetic link 17

18. Practical shortcomings In practical terms, when the baby is discharged from hospital the intending parents will not have their declaration of parentage, thus the hospital staff may not discharge the baby into the care of these parents. If the baby is in the care of the intending parents and the child becomes unwell, the commissioning parents will have no right to consent to medical treatment for the child. Only the birth mother can give consent and this is problematic both if the surrogate is uncontactable and also forces the surrogate to have extended contact with the commissioning parents and the child which she may not want. 18

19. New Hampshire model Requires surrogacy arrangement to be judicially pre- authorised. Evaluations and counseling conducted prior to impregnation of the surrogate. Allows for a judicial investigation to ensure no party is being coerced or exploited Ensures the arrangement is appropriate in terms of the welfare of the resulting child. Surrogacy agreement is validated by the court following meeting with the parties, and consideration of all the factors as noted above Need to secure consent of surrogate mother post birth of the child does not arise. Parental rights of commissioning parents are established pre- birth 19

20. Exclusion of traditional surrogacy Refers to an arrangement where the surrogate mother uses her own egg Prevents exercise of freedom of choice by surrogate mother “Compelling public policy reasons” cited Cannot permit a woman to contract out of her parental responsibilities Consider proposed Article 42A and right to voluntarily place child for adoption? Other legal frameworks and protections could be utilised 20

21. Part 7 - Guardianship, Custody and Access Equalisation of parental rights? Traditional terminology is maintained Guardianship Custody Access Recommendations of 2010 LRC report ignored Note use of ‘guardianship’ in Children's Referendum 21

22. Automatic guardianship status of Father Father married to the mother of the child Male adopter of the child Father who is a party to an annulled marriage Father who is not married to the mother of the child but has cohabited with her for 12 consecutive months prior to the birth of the child, such cohabitation not ending more than 10 moths prior to the birth of the child 22

23. Best practice in other jurisdictions 2010 LRC Report noted that the Australian legal framework provides for automatic parental responsibility for all parents, and has no gender based distinction. In England and Wales Section 4 of the Children Act 1989, as amended by section 111 of the Adoption and Children Act 2002 provides that where a non-marital father jointly registers the birth of the child with the mother, he will obtain parental responsibility. 23

24. Best practice in other jurisdictions In New Zealand s17 of the Care of Children Act provides for automatic guardianship rights for the majority of parents. But a father who is not a guardian by operation of law becomes a guardian of his child if his particulars are registered as part of the child‘s birth information by the mother and the father. S9 requires both parents to jointly notify a Registrar of the birth. A sole registration is only permissible where: (a) the child has only one parent at law; or (b) the other parent is unavailable; or (c) requiring the other parent to sign the form would cause unwarranted distress to either of the parents. 24

25. Acquired guardianship status of father Not married to the mother of the child but the mother and father have agreed that the father has guardianship status Court appointed guardian... 25

26. Court appointed guardians Head 39 – permits the court to grant an application for guardianship to a person who is not a parent of the child where the applicant is: Married to or is in a civil partnership with, or is cohabiting for over 3 years in an intimate and committed relationship with the parent of the child and has shared with that parent, responsibility for the child’s day-to-day care for a period of more than 12 months OR Is an adult who has provided day-to-day care for the child for a continuous period of more than 12 months and the child has no parent or guardian willing or able to exercise guardianship powers, rights and responsibilities in respect of that child 26

27. Court appointed guardians/custodians Such a court appointed guardianship order can not be made without the consent of: Each guardian of the child The child, if aged 12 years or older The proposed guardian However the consent of an existing guardian or of the child as required can be dispensed with where the court is satisfied that such consent is unreasonably withheld and it is in the best interests of the child to make the order sought. The same category of person can apply for custody pursuant to Head 47 and are subject to the same qualified consent requirements. 27

28. Powers of guardians Head 34 – first statutory statement of scope of guardianship rights and duties; guardianship means having in relation to the child: - (a) all the duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child; (b) every duty, power, right and responsibility that is vested in the guardian of a child by any enactment; and (c) every duty, power, right and responsibility, that immediately before the commencement of this Act was vested in the guardian of a child by any enactment or rule of law. Guardianship also includes the rights, powers and responsibilities which a guardian of the child’s estate has in relation to the child and his property. 28

29. Responsibilities to the child Head 36(5) - Except where otherwise limited by court order or by law, each guardian has the following responsibilities in respect of the child: (a)to nurture the child’s physical, psychological, emotional, intellectual, social and other personal development; and (b) to ensure the child is properly maintained and supported and is provided with necessary medical care, food, clothing, accommodation and access to appropriate education. 29

30. Rights of a guardian vis-a-vis child Head 36(6) - Except where otherwise limited by law or court order, each guardian may: (a) make day-to-day decisions affecting the child, including having custody and the day-to-day care and control of the child and supervising the child’s daily activities; (b) decide the child’s place of residence and to change the child’s place of residence; (c) make decisions about the child’s education, including the nature, extent and place of education and any participation in extra curricular school activities; (d) make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing and heritage; (e) decide with whom the child is to live and with whom the child is to associate; (f) consent to medical, dental and other health related treatment for the child; (g) grant or refuse consent where consent of a parent or guardian is required by law in any application, approval, action, proceeding or other matter;.... 30

31. Rights of a guardian vis-a-vis child (h) receive and respond to any notice that a parent or guardian is entitled or required by law to receive; (i) subject to the relevant and applicable statutory and regulatory provisions, commence, defend, compromise or settle any legal proceedings relating to the child and compromise or settle any proceedings taken against the child; (j) receive from third parties health, education or other information that may significantly affect the child; (k) ensure the child’s safety and protect the child from harm (l) appoint a person to act an behalf of the guardian in an emergency or where the guardian is temporarily absence because of illness or any other reason; (m)exercise any other powers reasonably necessary to carry out the responsibilities of guardianship. 31

32. Making joint decisions Clarification required! Head 36(1) requires the guardians to act jointly in relation to “significant decisions” affecting the child Head 36(4) – also right of both guardians to be “informed..and consulted” in respect of all “significant decisions” Unclear on whom the onus to inform and consult lies? But Head 36 fails to specify what the significant decisions are in relation to the child. Briefing notes refer to a decision that could seriously damage or cause a serious risk to the health and safety of a child or is likely to have serious long term consequences for the child 32

33. Scope of unilateral powers of a guardian? Head 36(6) provides that each guardian “may” make certain decisions Unclear whether these decisions can be made unilaterally Clarity needed in relation to the right to make a decision relating to medical, dental and other health related treatment under Head 36(6)(f). Direction needed as to who it refers to how this should be implemented and to what specific situations it applies to. Requirement that guardians consult each other is unclear – certainly seems to envisage possibility of unilateral decisions. 33

34. Parental Equality? Welcome but limited proposals for reform Fact of automatic guardianship for unmarried father Weakened by reliance upon adult relationship Capacity for application based on parental role Not equality! On going adjudicatory role for the courts Need for scope for inter parte consent agreement Silent on number of guardians 34