FATHERS AND mothers, whether married or not, should have automatic guardianship of their children, according to the Law Reform Commission.
It also tackles the vexed issue of the parental rights of same sex couples in recommending that legislation should permit the extension of guardianship to step-parents and civil partners.
The term “guardianship” should be replaced by “parental responsibility”, it states.
The recommendations come in the commission's Report on Family Relationships, which is published today.
This forms part of the commission’s programme of law reform, agreed with the Government, and is the latest in a series of reports recommending reform in family law. The recommendation that non-marital fathers have guardianship rights and responsibilities goes back to a Law Reform Commission report in 1982, but this was never implemented.
The commission regards the welfare and best interests of the child as a primary consideration in any issue concerning family relationships. It stresses that both the Constitution and the United Nations Convention on the Rights of the Child place the rights of children against the background of responsibilities and the rights of parents.
The report proposes changes in the terminology surrounding issues in family relationships, both to reflect more closely the content of the issues concerned, and to bring them into line with the terminology used in international law and conventions.
“Parental responsibility”, “day-to-day care” and “contact” replace the “guardianship”, “custody” and “access”, all currently used in the Guardianship of Infants Act 1964.
This Act should be replaced by a new Children and Parental Responsibility Bill, a draft of which is appended to the report.
It recommends that parental responsibility be automatic for both parents and be defined in legislation as including the duty to maintain and properly care for a child, the right to apply for a passport and to make decisions about where the child will live, his or her religious and secular education, health and general welfare.
A child should have the right to know their parents, and both should be automatically registered on a birth certificate, unless the mother signs a statutory declaration that she does not know the identity of the father or that her safety and welfare or that of the child is at risk by doing so.
Legislation should facilitate the extension of parental responsibility to civil partners and step-parents, either by way of an agreement with the other parties who have parental responsibility, or by application to court.
In considering the application the court should have regard to the wishes and best interests of the child and the views of others with parental responsibility.