iconPhone_w30.pngCall 01-475 9345 for a Consultation

01-4759345

Family Law Solicitors

Unmarried fathers should become automatic guardians of their children under Bill

Thursday, 5 March 2015

The Irish Times

Ruth Barrington

The Children and Family Relationships Bill is being examined at committee stage tomorrow. It is the most important piece of legislation affecting parents and children for a generation.

Treoir, which for nearly 40 years has been providing information to unmarried parents and advocating on their behalf, warmly welcomes the legislation.

The Bill will 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. We welcome the provisions that grandparents, step-parents, foster parents and others who have acted in loco parentis to a child can apply for guardianship.

Guardianship matters

Crucially, for the first time, an unmarried father who cohabits with the mother for one year, three months of which must be after the birth of the child, will become a guardian of his child. Guardianship matters.

The guardian of a child decides where that child will live, 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.

Married parents are the automatic guardians of their children but at present, in the case of unmarried parents, only the mother is the automatic guardian of her child.

If an unmarried father wishes to be a guardian of his child, he must have the mother’s agreement and they both must sign a statutory declaration in the presence of a commissioner for oaths.

If the mother does not agree, his only recourse is the courts – a course of action likely to destroy whatever is left of the relationship between them.

While the extension of guardianship under the Bill to fathers who can demonstrate that they have cohabited with the mother for one year is an important advance, Treoir believes that the Bill does not go far enough to reflect the rights and responsibilities of unmarried fathers for their children.

Treoir believes that unmarried fathers should be the automatic guardians of their children – as married fathers are.

The Law Reform Commission recommended this in 2011.

Unmarried fathers are the automatic guardians of their children in Northern Ireland, Britain, Australia and many European countries. 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.

At a minimum, the Bill should require the general registrar, when registering the birth of a child, to inform the parents of the law on guardianship.

Through its information service, Treoir is aware that many unmarried fathers are under the impression that jointly signing the birth register gives an automatic right to guardianship of a child.

No rights

Unmarried fathers are shocked to find out, perhaps when the relationship with the mother breaks down, that they are not guardians and have no right to a say in the important decisions affecting their child, even though they are involved in his or her care.

Such misunderstandings could be avoided if they had been informed by the registrar at the time of birth registration of the need for both parents to sign a guardianship declaration and encouraged to do so then and there.

A limited form of guardianship is being introduced for step-parents and others acting in loco parentis and this is very welcome.

It is a cause of concern, however, that unmarried fathers who are not guardians, though they may be very actively involved in the child’s life, will not be consulted about the appointment of another guardian.

Treoir is also concerned that there is no provision in the Bill for a central register of guardianship declarations.

The registration of marriage provides a public record of the guardians of children of married couples; the courts have records of guardianship orders granted to unmarried fathers but the guardianship declarations that unmarried couples sign will be personal to them and can be lost, destroyed or taken out of the country with no independent record that they were ever agreed.

There is not a square metre of this country the ownership of which is not recorded in the Land Registry, with rights and responsibilities that can be independently verified.

Yet, in relation to our most precious resource, our children, this Bill fails to provide for a central registry of who is responsible for the care and welfare of children of unmarried parents.

Minister for Justice Frances Fitzgerald said at the end of the second stage that she would consider amendments at committee stage to widen the criteria for automatic guardianship of unmarried fathers and the establishment of a guardianship register.

The Children and Family Relationships Bill is a major step forward in recognising and protecting the many different types of families in Ireland today but without such amendments, we will continue to discriminate between children of married and unmarried parents.

Ruth Barrington is chairwoman of Treoir Treoir.ie