Senator Rónán Mullen has welcomed new recommendations to create a statutory presumption that unmarried fathers obtain guardianship rights vis a vis their children.
Commenting on the Law Reform Commission’s (LRC) proposals , published yesterday, Senator Mullen said that the move represented “a step in the right direction,” and suggested that the current legal status, in which unmarried fathers can only apply for guardianship rights “tends to promote a ‘responsibility-free’ approach to fatherhood”.
Senator Mullen added: “An increasing body of research shows just how important it is for a father to maintain caring contact with his child. Guardianship rights for unmarried fathers is ultimately child-centred.”
In its consultation paper, Legal Aspects of Family Relationships, the LRC suggested that there should be a statutory presumption that non-marital fathers be made guardians of their children, unless this was not in the child’s best interest or would jeopardise the welfare of the child.
The paper also called for submissions on whether unmarried fathers should have automatic guardianship rights.
Campaigners for unmarried fathers welcomed the call. Ray Kelly, of Unmarried and Separated Fathers of Ireland, welcomed the broad thrust of the paper, and said he was optimistic for change.
“I would like to see unmarried fathers having automatic rights except in cases of incest and rape,” he told the Irish Times.
Being made a guardian entitles one to make decisions about the education and overall care and welfare of the child, along with any other person who is appointed or recognised as guardian. It also entitles the guardian to custody of the child as against any other person who is not a guardian.
Presently, the mother of child, married or unmarried, is automatically given guardianship rights. Unmarried fathers may apply to be given guardianship status, but the court will examine, among other things, the relationship between the parents.
It has been argued that this effectively gives unmarried mothers veto power over whether unmarried fathers are made guardians.
The paper recommends that the terms “parental responsibility” and “day-to-day care and contact” replace the legal terms “guardianship” and “custody and access”, which would bring Ireland’s terminology into that used in EU law and by the Council of Europe.
It recommends keeping the distinction between birth registration and guardianship, but suggests that the law should do more to “encourage greater joint registration of births”
It suggests that the false belief that joint registration automatically grants guardianship rights or parental responsibility, and has implications for eligibility to the lone parent’s allowance may be one reason for the absence of the father’s name on the register in some cases.
It recommends a statutory clarification to make clear that having the father’s name on the register does not give rise to such rights and duties. It invites submissions on whether there should be a statutory duty on a registrar to ask a mother who comes in alone to register a birth whether she wishes to include the father’s details on the birth certificate.
It is also seeking submissions on whether there should be compulsory joint registration of parenthood.
The commission is also seeking changes in the presumption that the child of a married couple is the child of the husband, except in very limited circumstances. It points out this presumption exists even when the couple has lived apart for decades without formalising separation, and the wife has no idea where the husband is; or where he is in prison or abroad.
It provisionally recommends extending the right to apply for custody or day-to-day care to people other than parents or guardians, where the parents are unwilling or unable to exercise their responsibilities.
This can occur where the parent is ill or in prison, or has addiction or mental health problems. The commission notes that a number of grandparents are de facto guardians in this situation, but do not have the right, for example, to give permission for medical treatment.
It is seeking submissions on whether there should be a procedure whereby a step-parent could apply for guardianship.
The commission invites submissions on whether a child should be able to apply for contact with the non-resident parent or with members of the extended family.