New Bill announced to significantly change family legislation in IrelandThursday, 19 February 2015
The Children and Family Relationships Bill (the “Bill”) was published on 19 February 2015 and comprises 172 Sections in 13 Parts. If enacted in its current form, the Bill will significantly reform the legislative framework governing Adoption, Guardianship, Custody and Access, and Maintenance law. The Bill devotes particular attention to establishing, and in some cases, broadening legal rights and responsibilities of cohabiting couples, civil partners, same-sex couples and unmarried fathers.
Key Provisions in the Children and Family Relationships Bill 2015
Donor Assisted Human Reproduction (DAHR):
Part 2 of the Bill (Sections 4-21) sets out the parentage rules applying to a child born through DAHR. Key definitions are set out for the terms “donor assisted human reproduction” a "donor", an "intending mother", and an “intending parent”. The Bill also examines the issue of consent as well as declarations of parentage in various DAHR scenarios, and provides for the recording of certain DAHR information in a “national register”.
Part 3 of the Bill (Sections 22-39) addresses the obligations of DAHR facilities, and the establishment of a national donor conceived person national register under the supervision of the Minister for Health. The Bill sets out the rights of certain persons seeking to obtain information from the national register.
Part 9 of the Bill (Sections 87-93) amends the Civil Registration Act 2004 to allow for the registration of the birth of a child born through DAHR and takes account of revised definitions of "father" and "parent" of a child through DAHR.
Guardianship, Custody & Access
Part 4 of the Bill (Sections 40-58) proposes substantial amendment to the Guardianship of Infants Act 1964. The Bill proposes to enable the court to appoint step-parents, civil partners, and cohabiting parents as guardians, to allow for the nomination of a temporary guardian in certain circumstances, and broadens the category of applicants who can apply for custody and access.
The Bill sets out revised definitions of the terms “father", “parent” and “qualified guardian” and strengthens the rights of unmarried fathers, who automatically become a guardian of the child where they have cohabited with the child's mother for 12 consecutive months, including 3 months with the mother and child following the birth of that child.
The Bill states that the “best interests of the child” is the paramount consideration in proceedings relating to guardianship, custody or upbringing of, or access to, a child or in relation to the administration of any property belonging to, or held in trust for, a child. Civil partners or a cohabiting couple who have jointly adopted a child are considered “joint guardians”. The Court is provided with the power to appoint a parent, or a person other than a parent as guardian in certain circumstances, as well as the power to appoint a temporary guardian in certain circumstances. The Bill sets out the rights of certain parents to guardianship, which provides further rights to civil partners, unmarried fathers and cohabiting same-sex partners.
A particularly constructive reform is the provision of detailed guidance in determining what constitutes the "best interest of the child". This should have positive implications for consistency.
Part 5 of the Bill (Sections 59-65) addresses some minor technical amendments to the succession rights of children under the Succession Act 1965, particularly in relation to the rights of children against the estate of civil partners or cohabitants, as well as the rights of children born through DAHR.
Part 6 of the Bill (Sections 66-73) amends the Family Law (maintenance of Spouses and Children Act) 1976 and addresses maintenance payments by cohabiting partners, including partners of the same sex couples and provides the Court with power to make orders against co-habitants in certain circumstances.
Part 8 of the Bill (Sections 84-86) amends the Family Law Act 1995 to provide the Court with power to secure maintenance payments from a cohabitant of a parent for the benefit of a child and also to specify how such payments should be used to the benefit of the dependent child.
Declarations of Parentage:
Part 7 of the Bill (Sections 74-83) amends the Status of Children Act 1987 to broaden the category of persons who can apply for a declaration of parentage. The Court can direct the use of DNA testing instead of blood testing to establish parentage: this allows for the less invasive process of obtaining DNA by mouth swab or saliva sample. The Bill also sets out the presumptions of parentage that apply in specified circumstances.
Changes to Adoption:
Part 11 of the Bill (Sections 95-128) provides significant amendment to the Adoption Act 2010. Under the Bill, civil partnered couples and cohabiting couples who have cohabited for three years are eligible to adopt jointly. The Bill also provides for the placing of a child for adoption by a female same-sex couple. The Bill provides a series of definitions for terms such as "civil partner", “cohabitant", “cohabiting couple”, “father”, “second female partner”, and “guardian".
Right and Obligations of Civil Partners & Cohabitants:
Part 12 of the Bill (Sections 129-166) amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to ensure that the same protection rights and obligations that are afforded to dependent members of the family in legislation, in particular in relation to maintenance, the protection of the family home and on the breakdown of the marriage of spouses, are afforded to dependent children of one or both civil partners. In certain circumstances, "any person" may apply to the court on behalf of the child to ensure provision for the dependent child. “Dependent child” also includes a person aged 18-23 in “full-time education”. The Bill includes a list of factors to be considered by the Court to ensure consistency in determining applications for the benefit of the dependent child.
Part 13 of the Bill (Sections 167-172) provides for miscellaneous amendments to other acts. In particular it is proposed that a civil partnered or cohabiting male same-sex couple can qualify for adoptive leave and also enables a female second parent to have the same maternity leave and parental leave rights as a father.