Consultation Paper on Legal Aspects of Family Relationships forms part of the Commission’s Third Programme of Law Reform 2008-2014, and involves an examination of the rights and duties of fathers in relation to guardianship, custody and access to their children; and of the rights and duties (if any) of grandparents and other members of the extended family. The Consultation Paper makes wide-ranging provisional recommendations for reform of the law.
The Consultation Paper continues the Commission’s long-standing work on reform of family law. In a 1982 Report, 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 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 others changes made since then) recognises the importance of the relationship between fathers and their children. The Consultation Paper notes that, while many proposals for automatic rights and responsibilities for fathers have been made here and in other States, very few countries have legislated along these lines.
Emerging changes in family relationships
The Consultation Paper has also examined this area in the light of changing patterns of family relationships generally in Ireland. Some of these changes were reflected in the recommendations made by the Commission is a 2006 Report on Cohabitants, which are being implemented in Part 15 of the Government’s Civil Partnership Bill 2009. In this Consultation Paper, the Commission has also re-examined how the law should approach the rights and responsibilities of fathers, step-parents, grandparents and other members of the extended family in contemporary Ireland, taking into account the best interests and welfare of children.
Among the provisional recommendations made in the Consultation Paper are:
- instead of the current legal terms guardianship, custody and access, the law should use the terms parental responsibility, day-to-day care and contact. This would give a clearer indication of what is actually involved in this part of family law; and remove any misunderstanding that parents might have rights involving their children without corresponding responsibilities. It would also ensure that the terms used in Ireland would be in line with those used in EU legislation, by the Council of Europe, and in other international instruments to which Ireland is a party.
- there should be a statutory presumption that a non-marital father be granted an order for guardianship (parental responsibility) unless to do so would be contrary to the best interests of the child or would jeopardise the welfare of the child. The Commission also invites submissions on whether automatic guardianship (parental responsibility) for all fathers should be introduced.
- the distinction between birth registration and the allocation of guardianship (parental responsibility) should remain. This would be accompanied by provisions to encourage greater joint registration of births.
- the removal of the current two stage procedure for applying for access (contact) by members of the extended family. The Commission also invites submissions on whether the categories of persons who can apply for access (contact) should be expanded to include persons with a genuine (bona fide) interest.
- persons other than parents there be able right to apply for custody (day-to-day care) of the child where the parents are unwilling or unable to exercise their responsibilities.
- the Commission invites submissions on the inclusion of a specific requirement that the wishes of the child be considered in making a decision on an application for access (contact) by a member of the child’s extended family.
- the Commission also invites submissions on whether it would be appropriate to develop a procedure to extend guardianship (parental responsibility) to a step-parent.