Two important announcements have been made by the Government that will lead to reform of family law in Ireland:
- a referendum on same-sex marriage will be held in the first half of 2015;
- the Family Relationships and Children Bill will be enacted in advance of it.
Both announcements are the responsibility of the Department of Justice where the Minister, Alan Shatter TD (FG; Dublin South) has a long-standing interest arising out of his significant, high-profile career as a family law solicitor. He, literally, wrote the book and has been calling for reform of many aspects of family law for decades. The Bill is not a comprehensive reform package, but does address some key issues.
The current situation in cases involving children where the core concern of the courts is their welfare will be updated to emphasise their “best interests”, as will be required by the new article 42A.4.1° of the Constitution once signed into law by the President (assuming that the Supreme Court appeal challenging the referendum result is unsuccessful). The wording of the Bill itself is not yet available, but the proposal to include legislative guidance on the best interests principle is particularly welcome. “Best interests” will
includ[e] the benefit of meaningful relationship with both parents, ascertainable views of the child, needs of the child, history of upbringing and care, religious, spiritual and linguistic needs, harm suffered or which the child is at risk of suffering, custody arrangements, capacity of applicants etc. [as well as considering] any family/domestic violence and its impact
Existing guardianship legislation provides little detail on the nature, obligations and powers of guardians and this will also be changed. In addition, the range of people who can become guardians will be expanded to provide greater opportunity for non-parents to obtain guardianship. This will particularly benefit non-parents who reside with a child as a spouse, civil partner or cohabitant of that child’s parent. It also envisages guardianship for non-parents who have cared for children where their parents or guardians were unwilling or unable to do so.
While principles concerning the voice of the child in family are established in practice the Bill will clarify those principles, for example by requiring that a child over 12 must be consulted in relation to guardianship, custody and access applications.
The Bill includes limited provisions to deal with assisted reproduction and surrogacy. While assisted reproduction will not be fully regulated, the Bill will specify who the legal parents of a child are in a number of possible scenarios. The Bill will also prohibit commercial surrogacy arrangements.
There have been reforms to the law on children, cohabitants and civil partners in recent years but there has been little reform of the key questions of parentage, guardianship, custody and access. Part of the reason, it could be surmised, is an unwillingness to tackle such issues when a variety of alternative or new family arrangements have arisen but were considered too politically controversial to address, for whatever reason.
Between 2008 and 2011 very little happened that was not dictated by economic considerations and it is refreshing to see that, while those considerations still dominate, the current Government has evidently decided to tackle social issues as well.
More detail on the proposals should be available by the end of 2013 with the Bill being published and (it is intended) enacted in 2014. The Government has created a long run-up to the same-sex marriage referendum, which will allow significant time for debate, though the proposed legislation is unlikely to be available before 2015.