Planned reforms finally reflect modern realities of family life

Analysis: Children and Family Relationships Bill modernises areas such as custody and access

The group Mothers and Fathers Matter organised a photocall outside Leinster House yesterday as the Children and Family Relationships Bill 2015 was presented to Cabinet. Photograph: Eric Luke/The Irish Times

The group Mothers and Fathers Matter organised a photocall outside Leinster House yesterday as the Children and Family Relationships Bill 2015 was presented to Cabinet. Photograph: Eric Luke/The Irish Times

 

Rewind back to the 1960s for a moment. Cohabiting couples were rare and just 3 per cent of children were born outside wedlock.

That was when we last revisited our laws over guardianship, custody and access to children in any significant way.

Today, more than a third of children are born outside marriage. Same-sex couples are raising children in the community. Tens of thousands of children live with cohabiting parents. Society has changed beyond recognition – but our lawmakers have failed hopelessly to reflect the reality of modern family life.

The result is a diverse range of people and parents who have often felt invisible or discriminated against in the eyes of the law. The Children and Family Relationships Bill 2015 aims to bring these families in from the cold.

Plans to allow for the adoption of children by same- sex civil partners for the first time may well grab most headlines. But, arguably, the most significant reforms are the improvements to guardianship, access and custody for unmarried parents, partners, grandparents and relatives involved in raising children.

Grandparents’ access

It will also end the bizarre consequences of so-called step-parent adoptions. This is where a mother – who had a child outside marriage – is now married to a man who is not the father of the child and wants her husband to have a legal link with her child.

As a result of a gap in the law, mothers have to go through the artificial procedure of adopting their own child.

The Bill will end this by facilitating husbands in these situations to become joint guardians of children.

Many unmarried fathers also stand to benefit from the legislation. More will automatically become guardians of their children if they have lived with the child’s mother for 12 months (including three with the mother and child after the birth).

Fathers’ rights groups and others will, understandably, feel aggrieved that non-cohabiting fathers remain excluded.

Part of the reasoning behind the cohabiting provision, according to sources, is to ensure children are not caught up in legal struggles if they have been born as a result of rape.

Assisted reproduction

The use of anonymous donors will be banned. While would-be parents may well be able to access anonymous donors in other jurisdictions, the Bill at least seeks to minimise the pain caused to many adopted people who can’t trace their genetic parents.

Crucially, underpinning the legislation is the provision that the best interests of the child will be central in family law proceedings. Children will also need to be consulted on issues affecting them.

Minister for Justice Frances Fitzgerald may have faced criticism for the delays in producing the legislation, but the extent to which she and policymakers have engaged with those affected by the measures is to her credit.

The planned reforms are likely to go too far for conservatives, who see them as an attack on marriage and the family. And they may not go far enough for many unmarried fathers seeking to have greater custody rights.

But few are likely to disagree that they are a long overdue attempt to catch up with the rapidly changing face of the 21st century Irish family.

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