Guardianship proposals still fail fathers

Bill incorrectly assumes a child’s welfare is always best served by the relationship with the mother, writes Louise Crowley

The Irish Examiner, Friday 28th March 2014

THE proposals contained in the recently published General Scheme of the Child and Family Relationships Bill 2014 identify novel categories of fathers to whom guardianship status can be accorded.

While married parents have long been automatically recognised as joint guardians of their child, an unmarried father can only secure guardianship status by formal written agreement with the mother of the child or on foot of a successful application to the court under the Guardianship of Infants Act 1964.

To be welcomed under the current proposals is the automatic guardianship status that will now be afforded to an unmarried father where he fulfils the requirements set out in part 7 of the proposed laws. Where a father has cohabited with the mother for 12 months prior to the birth of the child, and not later than 10 months before the birth, he will be automatically recognised as a guardian of that child by operation of law.

Interestingly, the operation of this novel automatic guardianship status is premised upon the fact of a committed heterosexual relationship between the parents, rather than the character of the relationship or intended relationship between the father and the child. This determination of the issue based on the fact and nature of the inter-adult relationship arguably undermines the importance of the welfare of the child, wrongly assuming that such welfare will only be served where there is a pre-existing, albeit not necessarily continuing relationship, with the mother.

However, the more fundamental weakness of this aspect of the proposed reforms is the continued deference to the courts in relation to the adjudication of the merits of a father’s application for guardianship. As distinct from the automatic guardianship and custodial rights of the mother irrespective of her marital status, the fact of the father’s parentage does not secure his legal rights, but merely permits him, in default of agreement with the mother, to pursue a court application for legal rights.

Despite the unequivocal recommendation by the Law Reform Commission in its 2010 Report on Legal Aspects of Family Relationships that the compulsory joint registration of births should be linked to the automatic guardianship rights of both parents, the current legislative proposals have desisted from such an equality-based approach.

The Centre for Criminal Justice and Human Rights at the Faculty of Law at University College Cork will today host a conference, entitled ‘Marriage Equality, Relationship Recognition and Non-Discrimination: Securing Equality and Rights’. It seeks to critically assess the extent of progress in respect of the equalisation of marital and parental rights.

The right of one party to a civil partnership — a recognised and registered same-sex union — to secure guardianship status in respect of the biological child of his/her partner is also provided for under the proposed laws. This is perhaps a more far-reaching proposal, given that the existing regulatory framework in respect of civil partnerships fails to acknowledge or govern the issue of children in such a family formation.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which regulates the inter parte obligations of registered civil partners, studiously declined to address issues relating to the care and responsibility of children raised in such a union. The right of the civil partner to guardianship status in respect of the biological child of his or her civil partner is not automatic. However, part 7 of the bill permits the court to grant an guardianship to a person who is not a parent of the child where the applicant is married to, or is in a civil partnership with, or is cohabiting for more than three years in an intimate and committed relationship with the parent of the child and has shared responsibility for the child’s day-to-day care for more than 12 months.

The court can also grant an order for guardianship where the applicant is an adult who has provided day-to-day care for the child for a continuous period of more than 12 months and the child has no parent or guardian willing or able to exercise guardianship powers, rights, and responsibilities in respect of that child. This provision could cover, for example, the not uncommon situation where grandparents are raising their grandchildren.

It is interesting and timely that lawmakers have chosen to now address the issue of the parental rights of civil partners, some 12 months in advance of the proposed referendum on marriage equality. If these proposals are introduced into law under the proposed Children and Family Relationships Act 2014, the issues for determination in the referendum next year will lessen significantly and may simply require a determination of the right of two parties in a recognised committed relationship to the equal, entirely reasonable right to walk up the aisle.

* Dr Louise Crowley, senior lecturer, Faculty of Law, University College Cork. Author of Family Law (Roundhall Thomson, 2013)