THE LAW on guardianship of children dates from 1964 and is in urgent need of reform.
Unfortunately, the Government’s current reform proposal is limited in scope and fails to address some of the substantive shortcomings in the current framework of family law.
The introduction, in isolation, of compulsory joint registration of births is not in keeping with the undertaking in the Programme for Government to reform and modernise family law in line with recommendations of the Law Reform Commission.
The commission’s report, Legal Aspects of Family Relationships, proposed extending automatic guardianship rights to all parents, regardless of marital status.
Compulsory joint registration of births was only one aspect of a much broader scheme of reform. The Government is focusing on the low-hanging fruit instead of engaging in the root-and-branch reform that is necessary.
Compulsory joint registration of births means the name of both the mother and father would appear on the birth certificate of every child. It is relatively uncontroversial to suggest a child should have information about, or at the very least the name of, both parents.
However, Irish law does not at present require the name of both parents on the birth certificate of a child. Where parents are married, both names are usually entered on the birth certificate. Where a non-marital mother registers a birth alone she will not be asked about the father.
There are myriad reasons why the father’s name may not be included on the birth certificate of a child born to non-married parents. One reason is the urgency associated with getting the birth registered, as registration triggers the payment of child benefit.
The process for registering a non-marital father on the birth certificate is logistically complex. In many cases, therefore, the intention may be to re-register the birth to include the father’s name at a later stage, once social welfare payments are activated, but this is often not done.
In some cases the father’s name may be omitted in the mistaken belief this will ensure he does not become a guardian. In fact, under the current law, the inclusion of the father’s name on the birth certificate gives rise to no legal rights or responsibilities.
Alternatively, the mother may genuinely not know who the father is or she may know but not wish to enter the name on the birth certificate for a variety of reasons including, for example, rape, incest or fear of violence.
From a children’s rights perspective it is possible to view compulsory joint registration as a positive development, as it is a means to vindicate the right of the child to know the identity of his or her parents.
There are also medical and social reasons why it is important for an individual to know his or her genetic background, one example being to avoid unknowingly entering into a relationship with a relative.
However, the push to introduce compulsory joint registration in isolation is concerning. Requiring the names of all parents to be registered, while benefiting the child, will also provide the State with information on the family status of a greater proportion of the population.
During a period when the State’s finances are strained, and over €1 billion was spent on the One-Parent Family Payment in 2010, it is not unreasonable to suggest this information may be used in the future to pursue parents to recoup some of that expenditure.
In principle there is no objection to requiring a parent to contribute to the cost of raising his or her child. However, with responsibilities should come rights, and the difficulty is that the current law on guardianship grants very limited rights to non-marital fathers.
At present, unless the mother agrees to extend guardianship rights to the non-marital father, he can only obtain guardianship by court order. To address this inequality, the commission recommended the introduction of automatic guardianship rights for non-marital fathers. It suggested a trigger mechanism for activating guardianship and considered that being named on the birth certificate would be appropriate.
This was to ensure that all parties concerned would have a record of who was a parental guardian of a child. To guarantee that practically all non-marital fathers would be registered on the birth certificate, and therefore entitled to guardianship, the commission recommended compulsory joint registration.
It accepted such a system would be subject to limited exceptions, for example where the mother genuinely does not know the identity of the father or where there is a risk to the health or wellbeing of mother or child.
However, by introducing only one aspect of this reform proposal, compulsory joint registration of births, the Government is increasing responsibilities without creating concomitant rights. In so doing it is undermining the spirit of the Law Reform Commission’s recommendations.
Dr Claire Murray is a lecturer in the Faculty of Law, University College Cork and was the principal legal researcher on the Law Reform Commission’s Legal Aspects of Family Relationships report