New legislation to modernise family law and protect the rights of children

Three major Bills are in development, which aim to modernise family law in Ireland: the Children and Family Relationships Bill, the Adoption (Identity & Information) Bill, and a draft Bill on Surrogacy, Assisted Human Reproduction and Associated Research. The Children and Family Relationships Bill has been hailed as “the most important change in family legislation since the foundation of the state.”

The wording of the Children and Family Relationships Bill (CFR Bill) has been approved by the Cabinet and will now be passed through both Houses of the Oireachtas for approval, beginning with the Dáil this week. The Bill aims to modernise family law by reflecting the reality of the diverse family forms in Ireland today. The reform is child-centred with more focus on the protection of a child’s rights and security.

The Bill covers issues of parentage, guardianship, adoption, custody and access, and it addresses gaps which have been identified in current law. The Bill addresses the needs of children living with: married parents, unmarried parents, a parent and their parent’s partner, or with their grandparent or other relative taking on a parental role. The Bill will cover children being parented by same-sex couples and children who have been conceived through assisted human reproduction (AHR).

Some of the major reforms include:

• The Bill emphasises the child’s right to be heard in family matters which relate to them. It also defines for the first time factors which a court can take into account in defining a child’s best interests, such as meaningful relationships, psychological, emotional and spiritual well-being as well as issues such as family violence.
• Where a spouse, civil partner, or cohabiting partner has lived with a parent for three years and co-parented for two years, they will be eligible to apply for guardianship or custody.
• The Bill will enable civil partners and cohabiting couples who have lived together for three years to jointly apply to adopt, rather than individually as is the current case.
• More unmarried fathers will be entitled to automatic guardianship of their children. The father will become guardian where they have lived with the mother of their child for 12 months and played an active role in parenting their child.
• The legislation allows a relative of the child to apply for custody if they have looked after them for 12 months, where no guardian is able or willing to do so.
• The Bill establishes a national donor-conceived child register which will allow children conceived by AHR to trace their identity and know specified personal information relating to donors.

Further legislative developments

The CFR Bill originally intended to address the issue of surrogacy. Late last year the Supreme Court urged the Oireachtas to legislate around issues of motherhood, surrogacy, and assisted reproduction to provide clarity and security to families engaging with these new technologies. Minister for Health Leo Varadkar has Cabinet approval to begin drafting a Bill on Surrogacy, Assisted Human Reproduction and Associated Research.  It is proposed that at least one of those involved in a surrogacy arrangement would have to be a genetic parent. He has also stated that a “transfer of parentage” will be allowed in surrogacy cases under the new legislation, where birth certificates can be reissued to reflect the genetic parents of a child.

The Seanad has unanimously passed the Adoption (Identity & Information) Bill which aims to provide greater rights for adopted people. If the Bill is passed through the Dáil it will provide up to 50,000 with the right to their birth certificate for the first time. Minister for Children and Youth Affairs James Reilly stated that he did not oppose the Bill but he could foresee constitutional difficulties with it. The Bill was proposed by Senator Averil Power and co-sponsored by Senators Jillian Van Turnhout, and Fidelma Healy Eames, and has received cross-party support.