Why I expected nothing from a Family Bill that does nothing for fathers, or their family relationships
by John Waters
The Irish Independent, Friday 18th February 2015
Since I have had no expectations at all concerning the Children and Family Relationships Bill, I am not disappointed to discover that it does nothing for either children or family relationships as conventionally understood.
For two decades, I have been seeking to draw attention to issues adversely affecting families and children in the context of divorce, the cruelty of so-called "family courts" and the absence of legal protections for the relationships between unmarried fathers and their children.
Year after year, government after government, I have taken at face value promises made by innumerable politicians, and one by one they have done nothing or made things worse.
The denial of the natural rights of fathers and their children has been the subject of many articles of mine for nearly 20 years. Since one-third of Irish children are now born outside marriage, is indeed possibly "the most pressing human rights issue of our time".
The Children and Family Relationships Bill, however, is directed not at helping families conforming to the conventional meaning of that word, but at creating the conditions whereby a "family" will be just about every conceivable combination of individuals - some with biological links but in many cases not - apart from a father and a child.
At the time of writing, I have not had sight of the final version of the Bill. A 2013 preliminary draft of the legislation proposed extending automatic guardianship to non-marital fathers who have cohabited with the child's mother for at least 12 months prior to the child's birth, "where that cohabitation ends (if applicable) not more than 10 months prior to the child's birth".
Judging from comments made last year by the present Minister for Justice Frances Fitzgerald, this section would appear to be radically amended in the final draft, due out today or tomorrow. On September 24 last, Ms Fitzgerald stated: "It will be easier for unmarried fathers to become guardians automatically if they live with the child's mother for 12 months, including at least three months following a child's birth. This should particularly benefit young unmarried fathers who may not be in a position to live with their child's mother for 12 months before the child's birth."
This is somewhat confusing, and probably confused. Nevertheless, it indicates that the Government has again kicked for touch on the question of extending legal rights on the basis of the natural connection between father and child. Six years ago, the Law Reform Commission issued a consultation paper in which it recommended that there should be a statutory presumption that a non-marital father be granted an order for guardianship "unless to do so would be contrary to the best interests of the child or would jeopardise the welfare of the child".
Glossing over the fact that the final clause of this sentence allows for the usual evasions and cop-outs, this - in principle - is the right thing to do.
The present Government, however, like several of its predecessors, seems determined not to do it.
This Children and Family Relationships Bill is directed at a range of peripheral questions in respect of adoption, step-parenting, co-habiting 'partners', donors, assisted reproduction, surrogacy, same-sex parenting, etc - everything, that is, except the rhinoceros in the room.
The objective appears to extend the embrace of "family' to include, recognize and facilitate as many conceivable permutations as possible, but without fixing the core problems relating to family and children that have been signposted for decades.
If this legislation passes, it seems unlikely that any political entity in this country will ever in the future arise to do anything to help actually existing families in the pains and griefs they suffer as a result of the encroachment on their lives of money-grubbing lawyers, tyrannical judges and the casual indifference of society and its laws.
From what we have gleaned from the various leaks and preliminary drafts, it would seem that the legislation does very little to ameliorate the vulnerability of fathers and children in their relationships, and will therefore make it far easier in the future for such relationships to be summarily denied and obliterated by family courts seeking to uphold one or other of the more exotic models of "family" which are valourised in this legislation.
The net result for future fathers is that, in most cases, their legal position will become even more fragile. At present, a father can gain guardianship "rights" to his child in one of two ways: by obtaining a statutory declaration from the mother stating she has no objection to his guardianship application; or, in the absence of this, by applying to a district court in the hope of getting a guardianship order from a judge. In practice, fathers - for fear of provoking antagonism from the mother - do not, generally speaking, seek such rights until a conflict has arisen, by which time it is too late.
Fundamentally, what is wrong with this dispensation is that it accords not "rights" but concessions - from the mother or a judge. The Children and Family Relationships Bill appears to propose a continuation of this situation. Fathers will remain dependent on concessions or on the characterisation by mothers of the mother/father and father/child relationships, rather than on the idea of a natural relationship between father and child.
In the new dispensation, a father will be able to obtain guardianship if he can prove a history of cohabitation with the mother.
But, presumably, it will be necessary, if a mother objects to the awarding of guardianship to the father, for the father to produce proofs of co-habitation. How will this work?
Indeed, what in this context does cohabitation actually mean?
Does the father need to prove that he slept in the same bed as the mother? Will fathers need to keep detailed diaries of their domestic arrangements in case of disputes?
The chief change here, it is clear, will be increased business for family lawyers, arguing about the meaning of words like "reside" and "consecutive".
I predict that the new legislation will result in fewer fathers getting guardianship, because the entire focus of the legal oversight of this provision will shift from the admittedly crude understanding of natural justice currently prevailing to a quantity surveying-style measurement of cohabitation history.
It seems, then, that the proposals contained in the Children and Family Relationship Bill do nothing to alter the fundamental injustices which have prevailed in this connection. The changes may relieve a minority of fathers from having to take legal proceedings to establish a safe place for themselves and their children, but will not extend "rights" to these relationships.
Since a father's case will depend on the amount of time he has spent with the mother, or being permitted by the mother to remain in the vicinity of his child, the father/child relationship will continue to be defined according to what amounts to gatekeeping and, in effect, child-ownership "rights" of the mother.