Address by the Minister for Justice, Equality and Defence, Alan Shatter TD, to the Family Lawyers Association of Ireland

February 12th, 2014

8 February 2014

  • New unified family court structure for 2015.  Minister Shatter says referendum may not be required.
  • Draft Children and Family Relationships Bill 2014 discussed and new Domestic Violence Bill announced.
  • Minister endorses HSE Director General’s letter to HSE personnel.
  • Minister announces that he and Minister for Health have commenced work on preparation of “open disclosure” legislation which would involve hospitals and medical personnel having to inform patients or families of medical incidents/failures that have caused harm or which are responsible for the death of a patient.  Calls the manner in which Portlaoise Hospital treated families, as revealed in recent days, inexcusable.

Ladies and Gentlemen

I am delighted to have been invited to speak today to the Family Lawyers Association’s Four Jurisdictions Family Law Conference. The conference will provide an opportunity to exchange perspectives across jurisdictions and to generate new ideas on judicial and legal cooperation. I am sure that there will be much enjoyment and good networking, whether or not the weather holds.

We urgently need to reform and modernise our family and children law in Ireland to cater for the growing number of families whose needs are not adequately addressed in current law. Many children in Ireland are growing up outside the constitutionally protected family. More and more children are living in blended families. More children than ever are living with cohabiting parents. The figures speak for themselves. Census 2011 reveals that the number of children of cohabiting couples increased by 41% between 2006 and 2011. There were 49,005 households of cohabiting couples with children under 15 recorded in Census 2011. 25,344 children or 35% of all children born here in 2012 were born outside marriage or civil partnership. That amounted to an increase of 1.4% over the 2011 figures.

The Government is conscious that our current laws do not cater adequately for many children living in these family forms. You, as family law practitioners, experience first-hand the negative impact on children when their families are not adequately protected in law. You see the problems in terms of guardianship, the complexity of decisions on education and medical care, the disputes over upbringing. Our laws were framed in a different age and for different social circumstances. That is why the Government made a commitment in the Programme for Government that we would address the issue. We have indicated that ‘we will modernise and reform outdated elements of family law’. Legislation in this area cannot be a one-size fits all solution but must, in a creative and pragmatic way, reflect the needs of families and children in 21st century Ireland with the focus firmly fixed on the best interests of the child. 

The General Scheme of a Children and Family Relationships Bill that I published on 30th January seeks to put in place a legal architecture to address the needs of diverse families. It seeks to provide legal clarity in terms of parentage, guardianship, custody and access for the new family forms within which children are being reared. I am providing for a comprehensive reform of the law in this area. The Guardianship of Infants Act 1964 and parts of the Status of Children Act 1987 will be repealed and replaced by this legislation, once enacted. Conscious of the complexity and sensitivity of the issues at stake, I have forwarded the General Scheme to the Oireachtas Committee on Justice, Defence and Equality with a request that it should undertake a public consultation on the provisions and furnish their conclusions and observations to me by Easter. I have also forwarded the General Scheme to the Ombudsman for Children for her views as to the implications for children. I, of course, would welcome submissions and observations on the Bill from practitioners and the wider public and, in particular, from family law practitioners and other professionals working with children.

As we have seen this week, the law as to parentage in surrogacy matters is presently being considered by the Supreme Court in an appeal hearing resulting from a judgement last year by Mr Justice Abbott. It is for the Supreme Court to determine the matter before it and I am, of course, confining my comments to the draft Bill as published.  The legislation seeks firstly to provide clarity in terms of parentage. Under its provisions, the birth mother will be the mother of the child. A married father will enjoy a rebuttable presumption of paternity and the Bill makes provision for new presumptions to take account of the diversity in existing family formations.

More children than ever are being born to Irish parents through assisted human reproduction and surrogacy arrangements, both in Ireland and abroad.  It is crucial that there is no uncertainty as to the parentage and guardianship of children so conceived and born. Increasingly, these issues are ending up in our courts with protracted and difficult proceedings regarding parentage and guardianship. The draft Bill seeks to provide a legal solution to these issues.

The Bill proposes, in relation to assisted human reproduction, that the birth mother would continue to be the mother of the child in all cases. The child’s other parent would be determined by genetic connection to the child or by reference to a committed relationship with the child’s mother, and the appropriate consents. The husband, civil partner or cohabiting partner of the child’s mother, therefore, could be declared the second parent of the child.

The parent of a child born through surrogacy would be the surrogate mother. The draft Bill provides for the transfer of the surrogate mother’s parental responsibilities, if she consents, to the commissioning parents. It requires at least one of the commissioning parents to be genetically linked to the child. The draft Bill proposes that altruistic surrogacy would be permitted but that commercial surrogacy would be prohibited, in line with the model in countries such as the UK, Canada, Australia, Belgium and the Netherlands.

I believe that the proposed approach can safeguard the welfare of the child while protecting vulnerable potential surrogates against exploitation. At the same time, these provisions will enable couples, not otherwise able to become parents together, to have a pathway to parentage.  There are also transitional arrangements proposed to address the parentage of all children born through surrogacy whether altruistic or commercial prior to the Bill’s enactment.

It is important that legislation should support couples who wish to create a family together. The draft Bill aims to rectify the current anomaly in the adoption legislation preventing civil partnered couples from adopting children jointly. Since 1952, married couples have been able to adopt jointly while gay men and lesbian women can adopt only as single individuals. The draft Bill provides for civil partnered couples to be assessed as joint adopters in the same way as married couples. Under these provisions, the Adoption Act 2010 would be amended to enable the same criteria for eligibility and suitability to apply for civil partnered couples as for married couples.

Much of the media commentary on my proposals has centred on the provisions on surrogacy and also on parentage and adoption by same-sex couples and the new provisions on guardianship, custody and access have been largely ignored. They are of particular importance to the resolution of the many disputes that occur between estranged parents and should be of great interest to family law practitioners.

I have provided for a comprehensive definition of the best interests of the child applicable to guardianship, custody, access proceedings and proceedings relating to the administration of property on behalf of a child. This definition is broader than the definition of welfare in the Guardianship of Infants Act 1964 and reflects the objectives of the Children Constitutional Amendment which seeks to place the interests of the child at the heart of decisions affecting a child’s life.

The new definition encompasses the benefits for a child of having a meaningful relationship with both parents and the ascertainable views of the child, having regard to the child’s age and maturity. It includes the physical, psychological and emotional needs of the child, including the child’s need for continuity and stability. It also takes into account the history of the child’s upbringing and care, including the nature of the child’s relationship with both parents and with other relatives. It encompasses the child’s religious, spiritual, cultural and linguistic upbringing and needs as well as the child’s social, intellectual and educational upbringing and needs. It also, of course, takes account of any harm or risk of harm suffered by the child as well as any plans proposed for the child’s custody, care, development and upbringing and access.

I am providing for a statutory definition of guardianship that details the many rights and responsibilities of a parent, all additional statutory powers and any further powers under common law, including in relation to a child’s estate. However, a guardian who is neither a parent nor in loco parentis will not be required to maintain the child from the guardian’s own resources. In line with overall focus on a child’s best interests, the guardian is explicitly mandated to act in a child’s best interests.

The draft Bill proposes to retain existing provisions whereby a birth mother is automatically the guardian of her child. It also proposes to expand the category of unmarried fathers entitled automatically to be guardians of their children. Under these provisions, an unmarried father will be entitled to automatic guardianship of his child if the father has cohabited with the child’s mother for a period of 12 months before the child’s birth and where the cohabitation has ended, if applicable, no later than 10 months before the birth.

I believe it vital to provide for the reality that many children are living in blended families with step-parents or with a parent’s civil partner or cohabiting partner. The draft Bill broadens the categories of person who can apply to become a guardian of a child. A step-parent or the parent’s civil partner or a person who has cohabited with the parent for over three years and who has shared a parenting role for a child for more than two years will be able to apply to become a child’s guardian under these provisions. I have also provided for a person providing day-to-day care for a child for more than 12 months, such as a grandparent for instance, to apply for guardianship where there is no parent or guardian willing or able to fulfil their responsibilities. Consent would be required, of course, of each guardian of the child and provision is made generally in the Bill for ensuring the voice of the child is heard, and taken account of, where the child is sufficiently mature to express a view. I propose to replicate the provisions of section 7 of the Guardianship of Infants Act 1964 enabling parents to appoint testamentary guardians. I am also providing for a new category of guardian, described as a substitute guardian, who would be appointed by the child’s parent for a specified period if the parent were unable or unwilling to exercise the rights and duties of guardianship in relation to the child. I believe that this new provision will help to safeguard the child’s welfare in the context of family crisis or tragedy.

Where a single parent marries, and the spouse is not the biological parent of the single parents child, under our current adoption laws the latter may acquire full parental rights and responsibilities by jointly adopting the child with the biological parent. The reality at present is that the majority of domestic adoption orders made occur in such circumstances. I believe it is particularly anomalous that the option available requires that a parent adopts their own child. The Bill will enable the spouse the biological parent marries to become a guardian of the child and acquire parental rights and responsibilities without being required to use the adoption process.

As family law practitioners, you are only too aware of the many cases in which relationship breakdown can create collateral damage, with grandparents finding it difficult to maintain contact with a grandchild. I believe that it is often in a child’s best interests to be able to maintain contact with grandparents and with both parents’ wider families. I am proposing to make it easier for a relative to apply for access to a child by streamlining the existing procedures. The draft Bill proposes to replace the provisions under section 11B of the 1964 Act by removing the two-step process in which an applicant has first to seek leave to make an application. Under the stream-lined procedure, a relative or a person acting in loco parentis would be able to apply for access to a child.

You will be all too aware of the intractable disputes that can arise between estranged parents in relation to custody and access. Many of you will know of my commitment to, and interest in, mediation and alternative dispute resolution mechanisms as a means of solving such disputes. I see mediation as particularly fruitful in cases involving children, as an agreed solution on custody and access is better for children. The draft Bill accordingly reiterates the duty on solicitors, under sections 20 and 21 of the 1964 Act, to inform their clients of alternatives to court proceedings and to encourage them to engage in counselling and mediation aimed at finding non-adversarial solutions to family disputes. The draft Bill also proposes to amend section 47 of the Family Law Act 1995 to enable the District Court as well as the Circuit Court to seek expert assessment reports on issues in dispute affecting the best interests of a child. It also makes provision for the possible appointment by the court of a guardian ad litem in appropriate cases and envisages a different approach to that currently contained in the Childcare Act 1991. The draft Bill defines the role of the guardian ad litem as an independent officer of the court who is neither a party to, nor the subject of, proceedings. During the consultative process further work is being undertaken with regard to further refining provisions relating to guardians ad litem which may include reforms to the Child Care Act 1991 so as to provide for uniformity.  I believe that the final provisions to be contained in the Bill will provide appropriate supports to the courts to enable them to determine, more easily, the best interests of a child In both private and public law disputes relating to children.

We need to make parenting work for the child even when the relationship between the child’s parents has broken down. I believe strongly that it is in the interests of a child to have a meaningful relationship with both parents, where possible. It is important that a parent should not be allowed to prevent the other parent from maintaining contact with the child. As a consequence, I have proposed a graduated menu of options that can be ordered by the courts when an application is made for an enforcement order if an access or custody order has been breached. These options could include requiring the respondent to give the applicant compensatory access time or to lodge security with the court. Another measure could be to require the respondent to compensate the applicant for expenses incurred in attempting to exercise custody or access. I am also proposing that the court would have discretion to order the parties to engage, together or separately in a parenting programme, counselling or mediation focused on parenting.

The other side of the equation is, of course, maintenance. Children living in blended families or with cohabiting parents need the same protections in terms of maintenance as those living in marital families. The draft Bill proposes to establish the principle that a step-parent, civil partner or cohabitant partner of a child’s parent would, in certain circumstances, have a maintenance obligation to the child. The liability would arise where the child was a dependent child of the family and would depend on the nature and duration of the relationship. The draft Bill proposes that the Family Law (Maintenance of Spouses and Children) Act 1976 would be amended accordingly. Similarly, the Family Law Act 1995 would be amended to enable children born outside marriage to be treated equally to those born within marriage. These provisions would enable the court to make a lump sum order in maintenance proceedings where the child’s parents had not been married to one another.  The court could also specify how the lump sum might be applied for the benefit of the child, including in providing suitable accommodation for the child. The proposal to reform the law on maintenance to create a maintenance liability for civil partners will also require consequent changes to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

As families become more diverse, the legal issues that arise become ever more complex. Family breakdown and parenting disputes are particularly sensitive and painful areas and their determination requires specialist skills. Such skills are also required in childcare proceedings.  You will all be aware of the commitment in the Programme for Government to the establishment of a distinct and separate system of family courts aimed at streamlining family law court processes and making them more efficient and less costly. Indeed, many of you may have been involved in the seminar on family law courts, held with the support of the Law Society of Ireland, last July. I am at present working with officials in my Department to develop a concept for the new Family Court structures which will envisage a single point of entry to the Family Court at all levels, with use of standard documentation and electronic filing mechanisms where possible. Special provision will be made for the making of ex parte and/or emergency applications within the family court structure. I envisage a cohort of Family Law judges who will have substantial expertise in this area of law and access to ongoing professional development in the area. I also envisage integrated family court offices at regional level which will have ancillary facilities for the assistance of litigants including ready access to alternative dispute resolution and necessary support services.

This is, of course, a major legislative project which raises complex issues, including some constitutional matters.  As many of you know, I have previously stated that a constitutional referendum will be held to facilitate the establishment of family courts. However, arising out of the consultative process in which we have engaged, we are exploring the possibility of successfully establishing the new court as a separate and independent court structure within the parameters of the existing Article 34. It is, therefore, a possibility that provision will be made for the new unified family court system by way of statutory provision only and that the constitutional amendment route will not be required. Work on the development  of the family court project will continue over the coming months and I expect final decisions to be made after the summer vacation and that a general scheme for the Family Law Courts Bill will be published later this year with the objective of the legislation being enacted during 2015. If a referendum is required it will take place in the first half of 2015, in view of the Government’s decision that 2014 should be a referendum-free year.

These reforms are part of a broader programme of legal reform that I am spearheading. Work is underway on the preparation of a new Domestic Violence Bill, which I expect to publish in 2015. This will consolidate current legislation and introduce new reforms to assist Ireland to ratify the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence.

On 10 January last, I commenced the provisions of Courts and Civil Law Miscellaneous Provisions Act 2013 amending the in-camera rule. As you are aware, the changes allow the media to report on family law and child care proceedings, subject to strict conditions which protect the anonymity of the parties and take account of the best interests of the child. I want to welcome the responsible and careful reporting of family cases undertaken by some in the print media to date. It would be very valuable if, following the end of the legal term in July next, the Family Lawyers Association and family law practitioners could furnish both myself and my Department with some feedback as to how the change is working; the perspective of family law litigants and its impact, if any, on them; and to alert me to any difficulties arising.

Family difficulties arise, of course, in many circumstances and families can experience many difficulties, including the tragedy of losing a loved one where there is a catastrophic failure by our health service. We in this country are no different in this area than are other countries, but we must treat people better when such tragedies impact on their lives. There can be no valid excuse for the manner in which some families were treated by Portlaoise Hospital as disclosed in recent days.

I welcome the letter sent this week by Mr Tony O’Brien, Director General of the HSE, to health care staff, where he asked that patients be treated with the same care and attention as one would treat a parent, sibling or partner. This “do onto others as you would have them do unto you” approach requires a strong cultural shift by some – not all – but some in the health service in this State.

Tony O’Brien also wrote that the health service should be open about things that go wrong and communicate honestly with patients and families. I want to make one further point here today. The distress caused to families through lapses in medical care should not be magnified by the conduct of hospitals and State authorities subsequently engaging in an unnecessarily contentious and defensive handling of such unfortunate events. Families should not face further and ongoing hardship caused by hospitals and State bureaucracies refusing to engage and acknowledge fault where it properly and obviously rests with them. Legislation elsewhere, and in particular in the United States, has very well addressed this issue in recent years.

The Minister for Health and I have commenced work with a view to enshrining the principles of open disclosure in legislation. This would involve hospitals and medical personnel having to inform patients or families of medical incidents that have caused harm to the patient. I believe that if hospitals were to investigate an incident and to admit liability quickly once medical negligence had been established, such reform would be much more beneficial to families. It would avoid families having to go to court to prove that medical negligence had actually occurred. Families would not have to incur the same level of costs for medical reports and legal advice. The focus would be more properly on the appropriate damages payable. A reform of this nature could achieve a better outcome for patients and families without generating large increases in costs to the taxpayer. Indeed, it would mean that taxpayers money would no longer be wasted by State agencies seeking to defend the indefensible.

While cultural change is of crucial importance, I believe such new practice by hospitals and State authorities can be initiated and copper fastened in legislation of the kind described. I look forward to progressing this with my colleague Dr. James Reilly.

We are entering a time of change in family law in Ireland. We have to respond to the realities of the changing society in which we live. My focus in the Children and Family Relationships Bill is to ensure that the welfare and best interests of the child are fully protected. The legislation being devised must facilitate a resolution in the best interests of a child of all issues that can be a cause of dispute between estranged parents and ensure that there is a clear roadmap to determine complex issues of parentage. I greatly value any views you may wish to express on the draft Bill and I look forward to receiving them in the coming weeks.

Thank you very much.