5.1 Legal Aspects of Family Relationships

In 2010, the Commission published a Report on Legal Aspects of Family Relationships (LRC 101-2010) (3rd Programme of Law Reform, Project 23), which followed its Consultation Paper on Legal Aspects of Family Relationships (LRC CP 55-2009). The Report continues the Commission’s long-standing work on reform of family law. In its 1982 Report on Illegitimacy (LRC 4-1982), the Commission recommended the abolition of the status of illegitimacy, so that all children would be treated equally in the law. This was implemented in the Status of Children Act 1987. The Commission had also recommended in 1982 that automatic guardianship rights and responsibilities should apply to all fathers, regardless of marital status. This has not been implemented in Ireland, although the 1987 Act (and other changes made since then) recognises the importance of the relationship between fathers and their children. The 2010 Report on Legal Aspects of Family Relationships reiterates the view taken in the 1982 Report, and the Commission emphasises that this reflects an appropriate recognition of the rights of children to know their parents and the corresponding rights and responsibilities of fathers. The Report also makes additional wide-ranging recommendations for reform that reflect the changing patterns of family relationships that have emerged in Ireland in recent years. This includes reform concerning the rights and responsibilities of civil partners, step-parents, grandparents, co-habitants and other members of the extended family in contemporary Ireland, taking into account the best interests and welfare of children. The Report also includes a draft Children and Parental Responsibility Bill, which would replace the Guardianship of Infants Act 1964.
Among the specific recommendations made in the Report are:

• new terms “parental responsibility”, “day-to-day care” and “contact” should replace the terms guardianship, custody and access currently used in the Guardianship of Infants Act 1964. The new terms would give a clearer indication of what is actually involved in this part of family law; and remove any misunderstanding that parental rights involving children exist without corresponding responsibilities. It would also ensure that the terms used in Ireland would be in line with those used in many other States and in international instruments to which Ireland is a party.
• parental responsibility (guardianship) should be defined in legislation as including the duty to maintain and properly care for a child, the right to apply for a passport for the child and the right to make decisions about where a child will live, a child’s religious and secular education, health requirements and general welfare.
• day-to-day care (custody) should be defined in legislation as including the ability of the parent, or person in loco parentis, to exercise care and control over a child on a day-to-day basis, to protect and to supervise the child.
• contact (access) should be defined in legislation as including the right of the child to maintain personal relations and contact with the parent or other qualifying person on a regular basis, subject to the proviso that contact must be in the best interests of the child.
• mothers and fathers (including non-marital fathers) should have automatic joint parental responsibility (guardianship) for their children.
• there should be automatic joint registration of both parents on a birth certificate (intended to reinforce the right of a child to know their parents).
• legislation should facilitate the extension of parental responsibility to civil partners and step-parents. The Commission recommends that civil partners and step-parents could obtain parental responsibility by way of an agreement with the other parties who have parental responsibility for the child or by application to court.
• where parental responsibility is extended by court order the court shall have regard to, among other factors, the wishes and best interests of the child and the views of other parties with parental responsibility.
• the ability to apply for day-to-day care (custody) should be extended to relatives of a child, persons in loco parentis and persons with a bona fide interest in the child in circumstances where the parents are unable or unwilling to exercise parental responsibility.
• the draft Children and Parental Responsibility Bill in the Report uses the proposed new terms and, as well as replacing the Guardianship of Infants Act 1964, incorporates the reforms made in the Report.

5.2 Adoption Law

In 2008, the Commission published a Report on Aspects of Intercountry Adoption (LRC 89-2008), following its Consultation Paper on Aspects of Intercountry Adoption (LRC CP 43-2007). This arose from a request to the Commission by the Attorney General, in accordance with the Law Reform Commission Act 1975, to consider and recommend reforms concerning the status and rights of a child resident outside the State who is the subject of a foreign adoption order made in favour of an Irish citizen or citizens; and the most effective manner of securing the performance of the constitutional and legal duties of the adoptive parents – and of the State - in respect of such a child. The request from the Attorney General came against the immediate background of Attorney General v Dowse (2006), which concerned the adoption of an Indonesian child, and which was recognised and registered in Ireland under the Adoption Act 1991, but which the adoptive parents later applied to have revoked.

This was an unusual intercountry or foreign adoption because the adoptive parents did not live in Ireland and the child never set foot here. Such adoptions represent approximately 10% of all the intercountry or foreign adoptions recognised and registered by the Adoption Board in the Register of Foreign Adoptions. Around 75% of intercountry or foreign adoptions recognised and registered in Ireland involve adoptive parents who live in Ireland and have been assessed before they travel abroad and adopt a child. Once a foreign adoption is recognised and registered by the Adoption Board, the child is entitled to become an Irish citizen provided that at least one of the adoptive parents is an Irish citizen. This is what occurred in the Dowse case even though the adoptive parents and child were resident outside the State.

The Commission’s research shows that this approach is accepted by a growing number of countries and its provisional recommendation is that this should remain the law on this point. The Commission highlighted the practical difficulties of ensuring the legal and constitutional rights of an Irish citizen child who is resident in another jurisdiction and notes that the Constitution of Ireland states that most rights are subject to a test of how “practicable” it is to protect them. The Commission recommended that if a situation like the Dowse case arises in future, the Attorney General, in his role as guardian of the public interest, and in conjunction with the diplomatic and consular services of the Government, is the most appropriate officer of the State to protect the rights of the child subject to relevant principles of international law. The Commission also reiterated a previous recommendation made in 1998 that the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption be ratified and incorporated in Irish law.

5.3 Rights and Duties of Cohabitants

In 2006, the Commission published a Report on the Rights and Duties of Cohabitants (LRC 82 – 2006), following from its Consultation Paper on the Rights and Duties of Cohabitees (LRC CP 32-2004). The Report – which was launched at the Commission‟s Annual Conference 2006 - makes substantial recommendations for reform of the law concerning cohabitants, defined as opposite sex or same sex couples who live together in an intimate relationship and who are not related to each other. It covers cohabitants who do not marry or who have not registered their relationship through, for example, civil partnership. In light of the publicly-stated views of most elected public representatives and of the approach outlined in Options Paper on Domestic Partnership published by the Working Group on Domestic Partnership in 2006, the Report assumes that a form of civil partnership for same sex couples is likely to be introduced in the near future. The Report emphasises that its recommendations are not an alternative to public registration systems – whether marriage or civil partnership – but deal with a different situation, which is the position of cohabitants who do not publicly register their relationship (for whatever reason). The Commission concluded that this group of cohabitants – whether same-sex or opposite-sex – should be considered separately in any reform of the law.

The Report deals with the rights and duties of cohabitants under a wide range of topics. The Report makes recommendations aimed at encouraging cohabitants to make agreements on financial matters (cohabitant agreements), how transactions between “qualified cohabitants” (discussed below) should be dealt with under tax laws, and what succession entitlements qualified cohabitants should be entitled to apply for. The Report also recommends that there should be general recognition of same sex and opposite sex cohabitants under, for example, social welfare law, private tenancy law, in the health care and hospital setting, and under domestic violence law. The Report also recommends the enactment of a “safety net” redress system for “qualified cohabitants,” who could apply to court for financial relief at the end of a relationship but only if they can show that they had become “economically dependent”. The Commission recommends that, in such an application, a Court could make any of the following orders: a property adjustment order, a compensatory maintenance order, or (as a last resort) a pension splitting or pension adjustment order.

The Report also states that, where cohabitants wish to claim some public benefit (such as tax benefits) or redress through the courts (such as succession rights or a property adjustment order) this will only be available to “qualified cohabitants,” which is defined as cohabitants who have been living together for at least 3 years (or, if they have had a child, 2 years). The Report emphasises that, in many cases, a much longer period would be required before a cohabitant would obtain any entitlements, because the Court would also have to take into account a wide range of factors, including contributions and sacrifices made to the relationship. The Report recommends that, for couples who do not register their relationship (whether through marriage or civil partnership), most entitlements will not be automatic and will only apply where various “qualifying criteria” have been met, including the requirement that a cohabitant shows he or she is “economically dependent.”

5.4 Domestic Violence

In 2013, the Commission published a Report on Aspects of Domestic Violence (LRC 111-2013) (3rd Programme of Law Reform, Project 24) which followed the publication of its Issues Paper on Domestic Violence: Bail (LRC IP 1-2013) and Issues Paper on Domestic Violence: Harassment (LRC IP 2-2013). The Report examines two specific issues concerning the current law of domestic violence.

The first issue dealt with in the Report is whether current bail law as it applies to domestic violence cases should be retained or reformed. In particular, the question raised is whether, when a person is charged under the Domestic Violence Act 1996 with breaching a barring order or safety order, should it be made possible to refuse bail on the basis that the person might commit another offence while on bail. This is called refusing bail for preventative reasons. The Constitution allows bail to be refused on this ground if a person is charged with a “serious offence” and where it is reasonably considered necessary to prevent the commission of another serious offence by that person while on bail. The Bail Act 1997 defines a “serious offence” as an offence that must carry at least 5 years imprisonment on conviction and which is also specifically listed in the Bail Act 1997 itself. The offence of breach of a domestic violence order currently carries a maximum sentence of 12 months imprisonment. The Report discusses whether the law should be reformed to make it a serious offence.

The Report recommends that the current law should be retained and that the offence of breach of a domestic violence order should not be changed into an offence that could carry 5 years imprisonment on conviction. Among the reasons listed in the Report for this conclusion is that such a change would not be in keeping with the general purpose of the Domestic Violence Act 1996, which is to ensure that victims of domestic violence can get access to effective protection through barring orders and safety orders. This could be put at risk if breach of an order was made a very serious criminal offence. The Commission’s Report also notes that the current law on bail allows a court to impose conditions that prohibit a person from making contact with the person who has applied for a barring order or safety order and that if the accused breaks any such condition their bail can be revoked. The Commission also recommends that there should continue to be a clear policy of prosecuting not only breaches of barring orders and safety orders but also that if this is accompanied by an underlying serious offence, such as assault causing harm or harassment, this should be prosecuted also.

The second issue discussed in the Report is whether the offence of harassment in the Non-Fatal Offences Against the Person Act 1997 addresses sufficiently the problem of stalking in domestic violence cases. The Report notes that most prosecutions for harassment involve domestic cases, and usually involves stalking by former spouses and partners. The current law requires that the harassment must involve “following, watching, pestering, besetting or communicating” and must be done “persistently.” The Commission’s Report points out that the requirement of “persistence” means that a person can be convicted of harassment where stalking involves a single long episode of continuous following or pestering. By contrast, under English law the harassment or stalking must involve at least two separate types of conduct. The Report concludes that the current requirements in the 1997 Act impose appropriate legal thresholds and standards that should be met in order to convict a person of stalking. The Report also notes that some emerging types of unacceptable behaviour, such as the use of social media to post fake or misleading information, may not come within the current law on harassment. The Commission concludes that this and other forms of cyber-bullying should be examined as part of the project on that topic in its Fourth Programme of Law Reform: see heading 4.4, above. 

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