Equality Authority Welcomes Introduction of Civil Partnership Bill As Important Step Forward

 'Making Equality Count' Conference  Legal Conference Irish and International Approaches to Expanding Equality Protections in Goods Measuring Equality and Discrimination and Services: Irish and EU Perspectives

 EA Welcomes Civil Partnership Bill  Say No To Ageism Week Contents

1. Equality Authority Welcomes 8. Say No To Ageism Week Introduction of Civil Partnership Bill 10 Equality Authority seeks reform of Family 3. Legal Conference Law to recognise the reality of modern family life 4. Making Equality Count Conference 12 Response of the Equality Authority to the 5. Equality Studies (UCD) Law Reform Commission Consultation Paper on Legal Aspects of Family 6. Women's Studies (UCD) Relationships

7. Global Village

This publication is available in a range of The contributors to Equality News are welcome accessible formats (for example, in large print, and appreciated. The opinions of contributors do Braille or on audio cassette) on request from not necessarily reflect the position of the Equality the Equality Authority. Authority. We welcome your feedback on any article in Equality News. Please send information to Attn: the Editor, Equality News at [email protected]

Equality Authority Welcomes Introduction of Civil Partnership Bill as Important Step Forward for Civil Rights in Ireland

The Equality Authority welcomed the recommendations of the Government introduction of the Civil Partnership Bill in Working Group on Domestic Partnership, Dáil Éireann which is an important step chaired by Anne Colley which underpin forward for civil rights in Ireland. The equality-based reform for opposite sex, proposed legislation will, for the first time, same-sex and non conjugal cohabitants. give same-sex couples the right to have their relationships formally recognised by In this regard, the Equality Authority voiced the State. some concerns with the proposed legislation, the main one being the lack of In a statement on the 3rd December 2009, reference to children and of adoption by the Chairperson of the Equality Authority same-sex couples in the legislation. The Angela Kerins stated: Colley Group recommended that same- sex couples should be eligible for "Today's legislation is a ground-breaking consideration as adoptive parents. move for Ireland and a major step in the right direction towards full equality for gay "In reality, many same-sex couples are and lesbian couples. Numerous opinion already parents. Their children will polls have shown that the majority of us continue to face questions regarding are in favour of allowing same-sex couples inheritance, guardianship and access, and to marry or form civil partnerships, and the will remain disadvantaged when compared recognition of same-sex partnerships also with other children, including the step enjoys cross party support in both houses children of a civil marriage. It is to be of the Oireachtas. hoped that the Law Reform Commission's current consultation on the Legal Aspects This proposed legislation will extend of Family Relationships will bring forward protection to thousands of same-sex major reform in this area." couples in areas like inheritance, pension benefits, taxation and medical rights and is Addressing the issue of a possible welcome. However, though a significant amendment which has been mooted to step forward it is not the final destination. allow for state officials to be exempt from In 2002 the Equality Authority called for registering civil partnerships, Kerins equal access to civil marriage, and for stated: equality in other relevant areas of family law, for same-sex couples. This remains "This proposal would be unjustified, our goal." unworkable and unacceptable. Civil Partnership is a civil event, not a religious The policy of the Equality Authority is to one. The Equality Authority would be support the full implementation of the strongly against such an amendment to

1 Equality Authority News Spring 2010 the Bill, as a retrograde and discriminatory clause in what is a progressive piece of legislation."

In conclusion, Angela Kerins commented: "Hundreds of committed campaigners have invested time and energy in bringing Ireland forward to this point and now this Bill will finally be debated in the Dáil. Today is a historic day for Irish civil rights, with Ireland joining other countries such as the UK, Canada, Spain, Denmark and Sweden which have already taken steps to recognise the rights of same-sex couples to have their relationships recognised by the state.

While the availability of civil marriage must always be our goal for same sex couples, the Civil Partnership Bill is a fundamental and historic step towards a fair and just society for gay, lesbian and bisexual people who are not unknown faceless people but the sons, daughters, mothers, fathers, aunts, uncles, neighbours and friends of all of us. All our elected representatives should stand behind this Bill and ensure its swift enactment."

2 Equality Authority News Spring 2010

Legal Conference Expanding Equality Protections in Goods and Services: Irish and EU Perspectives

This conference is co-funded by the European Union under the PROGRESS Programme 2007-2013

Date: 21 May 2010 distinctions between discrimination 9.30am - 4.30pm grounds in EU law; Venue: Royal College of Physicians,  Geraldine Hynes, solicitor with the Dublin Equality Authority, will examine caselaw on financial services; The Equality Authority will hold a legal  Carol Ann Woulfe, solicitor with conference on the theme of equality the Equality Authority, will speak protections in goods and services. The about disability discrimination in conference is aimed at an EU and Irish education; audience of legal practitioners,  Garret O'Neill, solicitor with the policymakers, academics, students, Equality Authority, will look at Equality NGOs and social partners. discrimination and public housing accommodation services, caselaw The speakers will include: and progress made

 Professor Mark Bell, University of The Hon. Mr. Justice Nial Fennelly , Judge Leicester will discuss the of the Supreme Court (Ireland) and former anticipated impact of the proposed judge of the European Court of Justice, will new EU directive, including in be one of the two conference chairs. terms of the treatment of multiple discrimination; Admission to the conference is free. A full  Lilla Farkas of the Migration Policy conference programme will shortly be Group will address race and available on the Equality Authority website: education in a comparative EU www.equality.ie. context;  Dr Tony McGlennan from the Bar of Northern Ireland will explore If you would like to attend this conference, religion and sexual orientation and please return the booking form (available their interface from a Northern on our website www.equality.ie) by email Ireland perspective; to [email protected] by Monday 10 May  Colm O Cinneide, University 2010. Please ensure that you save the College London will discuss completed form as a Word 1997/2003 file, multiple discrimination and the and include the words "Expanding Equality Protections" in the subject line

Making Equality Count Irish and International Approaches to Measuring Equality and Discrimination

This conference is co-funded by the European Union under the PROGRESS Programme 2007-2013

Date: Wednesday 23 June 2010 Senior Research Officer and joint programme 8.45am - 5.30pm coordinator of Equality Research at the Economic Venue: Main Conference Centre, and Social Research Institute, Dublin Dublin Castle, Dublin 2 'Disability, Labour Force Status and Social This Research Conference is being jointly Inclusion in Ireland' organised by the Equality Authority, the Professor Brian Nolan Economic and Social Research Institute, the Professor of Public Policy, Department of Applied UCD Geary Institute and the Central Statistics Social Studies, University College Dublin Office and is being co-funded by the European Union under the PROGRESS Programme, 2007- 'Age Discrimination: A Field Experiment' 2013. Dr. Judy Rich, It will be of particular interest to academics, Principal Lecturer in Economics, Portsmouth policymakers, statisticians and equality bodies Business School, University of Portsmouth from Ireland and also from other EU countries. ‘Discrimination in Ireland: Evidence from Self- Conference presentations will include: Report Data’ Dr. Helen Russell, 'Racism and Colorism in Post Racial Societies' Associate Research Professor and joint Professor William Darity, programme coordinator of Equality Research at Arts & Sciences Professor of Public Policy the Economic and Social Research Institute, Studies and Professor of African and African Dublin American Studies and Economics at Duke University, North Carolina, USA 'Multiple Inequalities: Evidence from the 2006 Census’ 'Assessing Unequal Treatment: Gender and Pay’ Dr. Dorothy Watson, Professor Mary Gregory, Associate Research Professor at the Economic University Lecturer in Economics at St. Hilda's and Social Research Institute, Dublin College in the University of Oxford To attend this conference, please email the 'The Social Psychology of Discrimination: Theory, booking form (available on our website Measurement, and Consequences' www.equality.ie) to [email protected] by Friday Professor Miles Hewstone, 4th June 2010. Please ensure that you save the Professor of Social Psychology and Fellow of completed form as a Word 1997/2003 file, and New College in the University of Oxford include the words "Making Equality Count" in the subject line. The language of the conference ‘Are Eamon and Ellen more employable than will be English. Hardeep and Heike? Evidence from a Field Experiment in Ireland.’ Dr. Frances McGinnity,

4 Equality Authority News Spring 2010 Equality Studies UCD School of Social Justice

Invites applications for the following postgraduate programmes commencing Our programmes are flexible. They may September 2010 be taken on a full or part-time basis, with classes offered in the evening.  M.Sc. in Equality Studies  Graduate Diploma in Equality Our staff comprise leading UCD Studies academics in the Equality and Human  PhD in Equality Studies Rights field.

Equality Studies is unique. It is the only Our graduates can be found working in programme of its kind in Europe, every sector. They include political addressing a wide range of equality, leaders, community activists, educators, human rights, global justice and feminist lawyers, social workers, civil servants, issues. carers, members of the gardai and journalists. Our taught M.Sc. and Graduate Diploma programmes provide a critical analysis of We welcome applicants from a wide a all forms of inequality from economic, range of backgrounds, experience, legal, political and sociological interests and ambitions. Mature and perspectives. ‘returning’ students, international students, and both men and women, are Our modules include Human Rights Law, encouraged to apply. Economics of Development, Racism and Anti-Racism, and modules on the social NOW ACCEPTING APPLICATIONS FOR and political theory of equality. For a full SEPT 2010 list, see our website at www.ucd.ie/esocialjustice For the online application form, see http://www.ucd.ie/socialjustice/postgraduat Our PhD programme offers expert e.htm research training, strong individual guidance, and the opportunity to research For further information please visit major equality and social justice issues in www.ucd.ie/socialjustice or contact us by depth. phone: Tel: (+353) 1 716 7104; Email: [email protected]

Women’s Studies UCD School of Social Justice

UCD School of Social Justice Invites applications for the following For further information please contact: postgraduate programme: Elizabeth Hassell School Manager  Graduate Diploma in Women’s Tel (+353) 1 716 7104 Studies Email: [email protected]  MA. in Women’s Studies www.ucd.ie/werrc  MLitt. in Women’s Studies  PhD. in Women’s Studies

In the current global and national economic crisis, a feminist perspective offers a complex understanding of how oppression works locally and globally and offers rich insights into the way multiple discrimination works across gender, race, class, sexual orientation, dis/ability and age.

The wide range of course modules cover feminist theory and politics, research methods, global perspectives on women, inequality and public policy, sexualities, women’s history and literature, psychology, education, law and human rights.

Our programmes are flexible. Students may enrol on either a fulltime or part-time basis.

We welcome applicants from a wide range of backgrounds, experience and interests. Mature and ‘returning students’ and international students are encouraged to apply for study in the largest university in Ireland.

Find out more, and apply online at: www.ucd.ie/socialjustice

Global Village

Saturdays, 7pm – 9pm

Global Village is the only live equality The show aims to raise discussions and focused space on Irish media which awareness based on the nine grounds of discusses social justice issues, human Equality: rights and equality in its entirety. Presented by a social activist and 1. Gender entrepreneur, Dil Wickremasinghe, the 2. Age show is dedicated to creating an inclusive 3. Religion Ireland by giving a voice to those who are 4. Race often ignored by mainstream media. 5. Sexual Orientation Recent studies show that discrimination 6. Disability and social injustices thrive in times of 7. Marital Status recession and it is our mission to create 8. Family Status awareness of these issues which affect all 9. Membership to the Traveller community residents in Ireland. If you missed last week’s Global Village In addition to in-depth thought provoking you can hear it again through the archive discussions, Global Village also has feature on www.newstalk.ie regular monthly features such as the expertise of Brian O’Reilly, Radio Solicitor. Past Topics Listeners receive initial legal advice which promotes awareness of rights and In the last 2 years we have covered entitlements. The editorial team of THE countless topics and here are just a few: Magazine, Ireland’s newest gay magazine, are in studio to discuss LGBT issues.  Unmarried Fathers Rights Malcolm Quigley of VSO Ireland focuses on international news and Irish volunteer  Institutional Abuse experiences from overseas. Recently, Dil  Barriers to employment for people with has committed to learn the Irish language Disabilities and she aims to keep her listeners abreast with her development each week.  Members of Traveller Community still experience discrimination  Gay Marriage or Civil Partnership?  Gender gap  Female Genital Mutilation in Ireland  Minority Stress – Minority Groups & Mental Health  Sex Trafficking  What is Racism?

7 Equality Authority News Spring 2010  Human Trafficking – over 500 children to allocate adequate discussion time to get missing from the care of the HSE to the heart of the matter.

 Active Citizenship Please contact Dil or John on  Ageism [email protected] and let us know how we can support your organisation  The business case of diversity and equality in the workplace

Say No to Ageism Week May 24th to 30th 2010

A wide range of sectors, including health, This year's "Say No to Ageism Week" transport and hospitality will develop takes place from May 24th to 30th. It is a initiatives as part of the week and time to again consider the effects of throughout 2010. The week will involve ageism in our society and provides an increasing public awareness through the opportunity to remind us of the use of outdoor advertising in the transport consequences of ageism in service sector and other related events. Practical provision. initiatives will be promoted in each of the sectors to develop a strategy to identify It is a time to renew our commitment to ways of tackling instances of ageism in the combating ageism in society, especially for context of access to services. older people whose identities are often replaced by a negative stereotype that This is the seventh year of the initiative denies them access to full participation in and we are pleased to avail of support society. under the European Community Programme for Employment and Social The "Say No to Ageism Week" is an Solidarity - PROGRESS (2007-2013) for initiative developed by three organisations, the 2010 initiative. the Health Service Executive, the Office for Older People and the Equality Keep an eye on the Equality Authority Authority. Its aim is to raise public website (www.equality.ie) for more awareness about stereotyping of older information, including a booklet and a pdf people and to promote and support poster which you can download for free. practical action for 'age friendly' service Let us know of any action you take to provision in key sectors. strengthen your commitment to "Say No To Ageism this week and throughout the year by emailing us at: [email protected].

This initiative is co-funded by the European Union under the PROGRESS Programme 2007-2013

Contribute to Global Village!

Global Village aims to act as a platform for the community sector to highlight the causes they advocate and we endeavour

9 Equality Authority News Spring 2010 Equality Authority seeks reform of Family Law to recognise the reality of modern family life in Ireland

Synopsis of the position of the Equality Authority on the law Reform Commission's Consultation paper on Legal Aspects of family Relationships

The Equality Authority seeks greater recognition law as it relates to children, with an emphasis on of the diverse situations in which children are supporting both parents and others in a being parented in modern Ireland. "The best parenting role in fulfilling their responsibilities interests of children require that greater diversity towards all children. of parenting arrangements be acknowledged in the framing of family law, so that the "At the core of these proposals is a goal: to responsibilities of all those in a parenting role ensure full support for all children, with a view to are appropriately recognised. The Authority forging laws and policies that appropriately emphasises that policies and laws must place recognise the diverse reality of family life in the child at the centre of all matters relating to modern Ireland. The Authority emphasises the his or her welfare. This necessarily requires that need to recognise a much wider frame of full regard be paid to the particular responsibility and equality in respect of circumstances of every child's life, ensuring that parenting than is currently the case in Irish law" both policy and the law are sufficiently flexible Kerins concluded. and responsive to the needs of children in all family units", said the Chairperson of the Among the Authority's proposals are: Equality Authority, Angela Kerins. 1. The Authority recommends the conferral of "Today, more and more children are being automatic parental responsibility on all fathers, raised in families that do not meet the prescribed regardless of marital status, with provision for constitutional norm of the family based on the removal of responsibility in exceptional marriage. In particular, many children are cases. growing up in families headed by unmarried cohabiting couples, including opposite-sex and As a matter of principle, an unmarried father same-sex couples, while a growing number of should be granted automatic guardianship children are being raised in one-parent families. (parental responsibility) on the birth of his child. Additionally, many children are cared for by This principle should be placed on a statutory people other than their biological parents, with footing. grandparents and step-parents often playing an important role in the life of the child." she said. The Authority recognises that the wide and complex varieties of circumstances in which a The Authority believes that the law as currently child may be conceived, born and raised require constituted copes poorly with these new a range of responses that are flexible in realities. It fails to recognise the responsibilities addressing the best interests of the child in of a number of important people in the child's those diverse circumstances. The Authority also life. The Authority recommends a review of the believes in the equal sharing of caring rights and

10 Equality Authority News Spring 2010 responsibilities between both parents. There as a mechanism that would afford the family may be exceptional cases in which it will not be greater flexibility in making child-care either in the child's best interests, or in the arrangements a mother should have the right interests of the well-being of the mother, for the after an appropriate period, voluntarily to father (or indeed other guardians) to retain transfer an appropriate portion of her leave. parental responsibility. These exceptional situations will necessitate a mechanism whereby 4. Access to children by wider family members, a person may be removed as a guardian. This such as non biological grandparents, is not removal must be subject to periodic review and currently protected by law and in the best subject to appeal. interests of the child, this should be addressed. There is a strong case for the simplification of 2. The Authority also recommends the the process by which persons other than parents introduction of provisions allowing, in may apply for access. appropriate cases, the conferral of parental responsibility on people who are playing a de The Authority would welcome the inclusion in facto parenting role in respect of a child, the category of persons entitled to maintain including the new spouses and civil partners of contact with a child, persons who, while not biological parents. technically related to a child, have (in the opinion The law as it currently stands affords very of the court) a bona fide interest in the child. limited recognition to persons, other than These persons may include, for instance, the biological parents, who are performing a parents and other relatives of a non-biological parenting role in respect of a child. A parent where a child is being or has been cared mechanism is required that would allow a new for by that non-biological parent. spouse or civil partner, in appropriate cases, to acquire parental responsibility. In particular, The Authority would also welcome the such a facility would obviate the need for the introduction of an express definition of the term existing guardians to waive their guardianship 'in loco parentis' as used in s. 11B of the responsibilities before a new spouse or civil Guardianship of Infants Act 1964. This would partner may acquire guardianship. Any such place on a clear statutory footing the right of a mechanism should, of course, treat spouses and non-marital cohabiting partner (opposite-sex or civil partners equally. same-sex) of the child's parent to seek contact with a child in respect of whom he or she has 3. The Authority calls for the introduction of performed a de facto parenting role. Similarly, paternity leave for fathers and also for a mother the right of a civil partner to seek access in to have the right to voluntarily assign a portion of respect of a child for whom he or she has her maternity leave to her spouse or partner provided care should also be expressly therefore providing greater flexibility for the confirmed in anticipation of the enactment of the family in making childcare arrangements. Civil Partnership Bill 2009.

The provision of an appropriate period of paid paternity leave would facilitate and support shared caring arrangements in the early stages of the child's life. It would, in particular, allow a father to assist and better support the mother and child at the critically important and challenging time following the child's birth. The precise implementation of such a proposal will require further and detailed consideration, though this should not detract from the general principle that fathers should be entitled to an appropriate period of paternity leave.

As stated, there is currently no provision for a mother to have the right to voluntarily transfer a portion of her maternity leave and benefits to the father of the child, or alternatively to her partner. While the provision of maternity leave is primarily addressed to the health and safety of the mother and child, the Authority believes that

Response of the Equality Authority to the Law Reform Commission Consultation Paper on Legal Aspects of Family Relationships

The Law Reform Commission Consultation growth in the diversity of family patterns, Paper, Legal Aspects of Family with a growing number of children being Relationships1 addresses a variety of raised by unmarried cohabiting couples questions concerning the law as it relates (both same-sex and opposite-sex)2 and in to children and their parents, as well as the one-parent families.3 Similarly, the number legal position of other persons who play a of children growing up in blended families role in the life of the child. The consultation (families made up of children from more paper primarily focuses on three legal than one relationship) is steadily rising. concepts relevant to parenting, namely, Increasingly, biological parents are sharing guardianship, custody and access, which de facto parenting roles with partners who the Commission suggests renaming are not the biological parents of the ‘parental responsibility’ (guardianship), relevant child. In some cases, moreover, ‘day-to-day care’ (custody) and ‘contact’ people other than the biological parents of (access). In particular, the paper a child have assumed a parenting role in discusses the legal responsibilities and circumstances where the biological rights of unmarried fathers as well as parents are unwilling or unable to perform those of a variety of other people with this role. whom a child may have an ongoing relationship. The current legislative framework copes poorly with these new realities and would The Commission is to be commended for benefit from careful reconsideration. In its thorough, clear and learned review of this particular respect, the Commission’s this area of the law. The Equality Authority paper is especially welcome, affording as it welcomes this opportunity to consider the does the first opportunity in over a Commission’s report, and to respond to generation to engage in a root-and-branch those parts of the report that fall within its review of the legal rules that apply to remit in promoting equality on the nine parenting in the increasingly complex and grounds contained in the Equal Status diverse context of modern Irish family life. Acts 2000-2008 and Employment Equality Acts 1998-2008. 1. Setting the Theoretical Framework for Discussion This is undoubtedly a complex and The Law Reform Commission makes a contentious area of law and policy that number of proposals. It also seeks requires careful consideration. The law as comments and suggestions relating to a it currently stands dates back to a time when patterns of family life differed 2 The 2006 census indicated that there significantly from those currently prevalent were 121,800 cohabiting couples living in in 21st century Ireland. The past twenty Ireland, approximately 1/3 of whom had years have witnessed a considerable children. See www.cso.ie 3 Census 2006 enumerated approximately 1 LRC CP 55-2009 190,000 one-parent families.

12 Equality Authority News Spring 2010 variety of other issues regarding the the child’s parents separate or where the welfare of children in private law child is taken into care is also a prominent proceedings. It is important that any theme in international instruments and discussion of this area of law is case law.7 underpinned by a clear and cogent theoretical framework, one that is mindful The Authority is mindful also of the terms of the responsibilities and rights, as well as of the United Nations Convention on the the dignity of all relevant parties. Rights of Persons with Disabilities. Article 3(h) of that Convention highlights as a 1.1 Human Rights and Equality principle the importance of “…ensuring Considerations respect for the evolving capacities of Any discussion of this area of law must children with disabilities and respect for have regard to, and be framed by the the right of children with disabilities to relevant international and national human preserve their identities.” Article 7(1) of rights framework. Reform must be guided, that Convention, moreover, requires furthermore, by considerations States Parties to “...take all necessary underpinning equality law and should measures to ensure the full enjoyment by seek, in particular, to eliminate children with disabilities of all human rights discrimination on the nine grounds and fundamental freedoms on an equal contained in the Employment Equality Acts basis with other children.” Article 7(2) and Equal Status Acts. Those Acts prioritises the best interests of the child as address, in particular, discrimination on the the primary consideration in all actions basis of gender, marital status, family concerning children with disabilities. status, age, race, colour, nationality or Article 7(3) highlights the need to ensure ethnic or national origins, religion, that children with disabilities have the right disability, sexual orientation, and to express their views on all matters membership of the Traveller community. affecting them, stressing the further While the Acts are addressed primarily to requirement of age-appropriate and employment and the provision of goods disability-appropriate mechanisms to allow and services, the overriding ethos of children with disabilities to realize this equality legislation offers an important right. touchstone for reform in the context of family relationships, with the grounds of Article 23(3) of the Convention gender, disability, marital status, family emphasizes the entitlement of children status and sexual orientation being of with disabilities to equal rights with respect particular relevance. to family life. With a view to realizing this “…States Parties shall undertake to In this specific context, legal reform should provide early and comprehensive be guided and informed by the United information, services and support to Nations Convention on the Rights of the children with disabilities and their families.” Child as well as the relevant case law of Article 23(4) discourages the forced the European Court of Human Rights. A separation of a child from his parents variety of other international instruments, except where this is necessary to secure including provisions in the EU Charter of 4 the best interests of the child. Where a Fundamental Rights, also highlight the child with a disability cannot be cared for rights of the child. In international law, by his immediate family, Article 23(5) particular emphasis is placed on the requires that “…every effort be made to seminal importance of the best interests 5 provide alternative care within the wider principle discussed below, as well as the family, and failing that, within the right of the child to be heard in community in a family setting.” proceedings concerning his or her welfare.6 The right of the child to maintain contact with both parents in cases where 6 See, for instance, Article 12 of the UN Convention on the Rights of the Child and 4 See Article 24 of the EU Charter of Article 24(1) of the EU Charter of Fundamental Rights. Fundamental Rights. 5 See, for instance, Article 3 of the UN 7 See, for instance, Article 9(3) of the UN Convention on the Rights of the Child and Convention on the Rights of the Child and Article 24(2) of the EU Charter of Article 24(3) of the EU Charter of Fundamental Rights. Fundamental Rights.

13 Equality Authority News Spring 2010 Article 23, moreover, requires the circumstances of the child and his or her elimination of discrimination against parents. While it is important to ensure people with disabilities in relation to that there are clear principles and policies marriage, family, parenthood and in place, it is submitted that it is important relationships. Article 23(4) emphasizes also to maintain sufficient flexibility in the that a child should not be separated from law to allow judges to take steps that will his or her parent or parents by reason of a suit the particular needs of each child in a disability of the child or of either parent. In variety of diverse scenarios. In particular, this context, the Authority is mindful that in there may be some risk in fostering a ‘one- considering whether a parent should be size-fits-all’ approach that imposes a granted custody of a child, the courts, universal remedy regardless of the great amongst other matters, look to the diversity of parenting arrangements that capacity of the parent to cater to the needs may be encountered in practice. of the child.8 While parental capacity may be an appropriate criterion, the Convention 1.3 Emphasising Parental demands some considerable care in Responsibilities ensuring that the fact of disability is not Placing the child at the centre of legal and used to deny custody to a parent. As policy considerations is particularly useful Geoffrey Shannon observes, to in framing a clear theoretical framework for acknowledge that parental capacity is a legal reform. This focus on the child’s best criterion of relevance: interests serves to move the debate around parenting from one that “…is not to say that the more capable emphasises parental rights (usually parent will always be granted custody. competing) towards one that more Nor should it suggest that parents with appropriately prioritises the responsibilities needs of their own, owing for instance and obligations of parents towards to disabilities, should be denied children. It also emphasises that children custody.”9 are not ‘prizes’ to be won in intra-family disputes but rather people with 1.2 The Best Interests Principle 9 Shannon, Child Law, (Dublin: Thomson In this context the predominant Round Hall, 2005) at 2-21, p. 39. consideration is that of the best interests of 10 Welfare is defined in the Guardianship of the child, a concept that is sometimes Infants Act 1964, s.2 as comprising “the called ‘the welfare principle’. This principle religious, moral, intellectual, physical and presupposes that in all cases concerning social welfare of the child.” In D.F.O’S v. the legal position of children, the welfare10 C.A. unreported, High Court, April 20, or best interests of the child is the primary 1999, McGuinness J. added that the consideration of relevance. The best emotional welfare of the child was also to interests test is well established in be considered as a “most important aspect international law11 and EU law12, and is of welfare”. The Irish courts have noted reflected in domestic law as it relates to that these various aspects of the child’s private law disputes13, care proceedings14 welfare should be considered collectively and adoption proceedings15. and in their totality. Typically, no one criterion is to be considered in isolation The Authority is mindful that what is in the from the others: see M.M.D.S. v. P.D.O.S. best interests of a particular child in a (1974) 110 ILTR 57 per Walsh J. and particular case will depend to a significant MacD. v. MacD. (1979) 114 ILTR 66 per extent on each specific situation. The Finlay C.J. circumstances in which a child is 11 See, for instance, Article 3(1) of the UN conceived, born and raised often differ Convention on the Rights of the Child significantly. As a result, family law 1989. confers considerable discretion on judges 12 See Article 24(2) of the European Union and other state actors,16 leaving to them Charter of Fundamental Rights. the decision as to what steps and 13 See s. 3 Guardianship of Infants Act remedies will best suit the interests of the 1964 child given the particular facts and 14 See s. 3(2)(b)(i) Child Care Act 1991 15 See s. 2 Adoption Act 1974 8 See for example CC v. PC [1994] 3 Fam. 16 Such as, in the case of adoption, the L. J. 1985 Adoption Authority.

14 Equality Authority News Spring 2010 entitlements and interests that transcend changes, greater efforts are made to those of adults and indeed those of the clarify to parents the implications of and State in legal disputes concerning children. responsibilities associated with each of The Children (Scotland) Act 1995, for these concepts, as well as the instance, stipulates that the rights consequences of birth registration. This conferred on a person with parental task would be made considerably easier if responsibility in that jurisdiction are the terms used in law were themselves bestowed “…in order to enable him to fulfil fully and appropriately defined within the his parental responsibilities in relation to legislation. his child”.17 This formula underlines that parental rights, while undoubtedly 1.4 Equality and the Child’s Best important, are subservient to and indeed Interests concomitant with the duties and The aforementioned emphasis on the obligations that parents owe to their child’s best interests is fully compatible children. with a perspective that emphasises equality. In fact, the best interests of a In this regard, the Authority welcomes the child arguably require that his or her changes in terminology proposed by the relationships with a variety of people who Law Reform Commission in Chapter 1 of play or have played an important beneficial its paper. These proposed changes role in the child’s life are legally represent a shift from an approach that recognised. The Status of Children Act foregrounds parental authority and rights 1987 eliminated most overt instances of to one that highlights and places greater discrimination against children born emphasis on the responsibilities of parents outside of marriage. In particular, it and others towards children, and the conferred equal rights of succession and corresponding rights enjoyed by the latter. maintenance on children, regardless of The new terminology, in particular, whether they were born inside or outside underlines the central position of the child marriage. That Act and the subsequent and of considerations of the child’s best Children Act 1997 strengthened the role of interests in this context, placing the child fathers in the lives of children born outside firmly at the centre of enquiries relating to marriage, by facilitating the father’s arrangements for his or her parenting. acquisition of guardianship responsibilities These changes may also serve to clarify in respect of the child, by agreement19 or, the precise nature of the responsibilities alternatively, by court order.20 The associated with each concept, the Employment Equality Acts 1998-2008 and proposed new terms conveying much Equal Status Acts 2000-2008 also provide more aptly the character of the important protections against responsibilities and rights involved than discrimination on the basis (amongst other the terminology that is currently employed. grounds) of marital status21 and family 18 It is hoped that in tandem with these basis a personal relationship and direct 17 S. 2 of the Children (Scotland) Act 1995. contact with both [of] his or her parents…” 18 Additionally, these changes in 19 S. 2(4) Guardianship of Infants Act 1964, terminology will bring Ireland into line with as inserted by s.4 Children Act 1997 relevant provisions of international and allows the parents to confer guardianship European Union law. For instance, on a father by means of a statutory Council Regulation (EC) No 2201/2003 of declaration signed by both the mother and 27 November of 2003, which concerns “… father of the child. See also the jurisdiction and the recognition and Guardianship of Children (Statutory enforcement of judgments in matrimonial Declaration) Regulations 1998, S.I. No. 5 matters and the matters of parental of 1998. responsibility”, uses the term “parental 20 S. 6A Guardianship of Infants Act 1964, responsibility”. The UN Convention on the as inserted by s. 12 Status of Children Act Rights of the Child, Article 9(3), moreover, 1987 and as amended by s. 6 and s. 12 speaks of the child’s right to “…maintain Children Act 1997 personal relations and direct contact” with 21 The Civil Partnership Bill 2009 proposes its parents. The EU Charter of to replace the ground of ‘marital status’ Fundamental Rights, Article 24(3), uses with a ground of ‘civil status’ to include civil similar language when it speaks of the partners as a category against in respect right of a child “…to maintain on a regular of whom discrimination is not permitted.

15 Equality Authority News Spring 2010 status in the context of employment and Equality Authority’s specific commitment, the provision of goods and services in its current Strategic Plan 2009-201122: respectively. “To support initiatives responding to Nonetheless, the true and meaningful priority issues for specific equality equality of all children cannot be achieved grounds through the European Year if the families of which they are members Legacy Action Plan by: are not recognised in Irish law. Non- recognition of families outside of marriage a. Promoting the status of men as serves negatively to affect the children carers, in particular the equal who form part of these families, such that sharing of caring rights and non-recognition of a child’s family responsibilities between women disadvantages that child. In this context, it and men and continuing dialogue is submitted that an equality perspective with men’s organisations on progresses the best interests of the child. issues of equality for men…”23 Such an approach serves to emphasise both the symbolic and practical importance In the Equality Authority/ESRI research to a child of equal recognition and support report on Gender Inequalities in Time Use: for the family that cares for him or her. It The Distribution of Caring, Housework and serves also to foreground the child’s equal Employment Among Women and Men in right to contact with and care from a Ireland24 McGinnity and Russell conclude variety of people who are important to that that while “Irish women’s participation in child’s sense of wellbeing and belonging. paid employment has increased dramatically” since 1990, women in Clearly, in this context one must treat the general continue to spend substantially child’s best interests as the primary more of their time engaged in work within criterion of relevance. Flexibility will also the home than is the case for men.25 In be important, given the wide diversity of particular, the authors highlight that, even situations in which a child may be in dual-income households, where both conceived, born or raised. Nonetheless parents are in paid employment, parenting any review of the law must also have remains a “gendered time constraint”, the regard to the importance to the child that authors concluding that “…parenthood the family of which he or she is a part is brings a reallocation of time for both men considered to be of value and worth. In and women, leaving a more traditional particular, the circumstances of a child’s division of labour in couples with conception and birth should not in and of children.”26 The authors add that those itself result in the child being treated less childcare functions that are performed by favourably than other children. Nor should men and women respectively generally any child’s family receive any less support differ in character, with men “more likely to or recognition on the basis that the family be involved in social/emotional care” while does not meet a particular legally women perform a greater proportion of prescribed ideal. physical and supervisory care functions.27 It is clear, then, that despite significantly An equality perspective also serves to increased participation by women in paid emphasise the importance of the active, employment, childcare functions still fall meaningful and equal participation of both disproportionately to women. Additionally, fathers and mothers in the lives of their there is considerable and ongoing children, as well as the need to recognise evidence from the Equality Authority’s and value the contribution of others who are committed to the raising of a child. In 22 Equality Authority, Strategic Plan, 2009- this regard, it is worth highlighting the 2011, (Dublin, 2009) at p. 25. 23 Ibid. p. 25 24 McGinnity and Russell, Gender Inequalities in Time Use: The Distribution of Caring, Housework and Employment Among Women and Men in Ireland, (Dublin, Equality Authority/ESRI, 2008). 25 Ibid. at p. 69 26 Ibid. at p. 72 27 Ibid. at p. 70

16 Equality Authority News Spring 2010 casework that being a parent with caring child’s right.28 With some rare exceptions, responsibilities can disadvantage parents a child generally must rely on others to (particularly mothers) in the workplace. enforce his or her rights. Although the wishes of the child must be considered by 1.5 The Voice of the Child a court if the child is of sufficient age and Despite the commitment to the child’s best understanding,29 Dr. Ursula Kilkelly notes interests, children are not typically entitled that Irish case law “…indicates a mixed to take proceedings on their own behalf. judicial response to the duty to hear For instance, a child is not entitled on his children’s views and the weight to be or her own initiative to seek contact attached to them”.30 (access) with a parent or relative, even though contact is universally framed as a The UN Convention on the Rights of the Child, in Article 12, asserts the right of the child to have an opportunity “…to be heard in any judicial or administrative proceedings affecting the child…”, a principle reflected in section 25 of Guardianship of Infants Act 1964.31 Both the aforementioned UN Convention and the Act of 1964 recognise that the extent to which this may be realised is dependent on the age and maturity of the relevant child. The UN Convention on the Rights of Persons with Disabilities, Article 7(3), moreover, emphasises the particular right of children with disabilities “…to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age- appropriate assistance to realize that right.”

While it may not be desirable generally to involve children directly in court proceedings, the Commission should consider measures to ensure that the child’s voice is genuinely heard in cases involving his or her welfare. This may be facilitated by the activation of provisions allowing for the appointment of a guardian ad litem to allow separate representation of the child in private law proceedings.32 Such a move was envisaged (albeit only in limited circumstances) by s. 28 of the Guardianship of Infants Act 1964, but this measure has not yet been brought into force.33 This failure to facilitate independent representation for the child in private law proceedings brings Ireland into

28 See sections 11 and 11B of the Guardianship of Infants Act 1964. 29 S. 25 Guardianship of Infants Act 1964 30 Kilkelly, Children’s Rights in Ireland, (Dublin, Tottel, 2008) at 7.040, p. 223 31 See also Article 3 of the European Convention on the Exercise of Children’s Rights.

17 Equality Authority News Spring 2010 potential conflict with Article 12(2) of the on the child’s behalf, to invoke such rights United Nations Convention on the Rights where the parents or guardians of the child of the Child.34 It also precludes ratification choose not to do so. by the State of the European Convention on the Exercise of Children’s Rights, 1.6 Access to Effective Legal Remedies Article 4 of which confers on the child the The Equality Authority has previously right to apply for a special representative noted the seminal importance of in proceedings concerning the child’s accessibility so that all sections of the welfare.35 community have equal access to effective legal and social remedies.37 This means, In many cases, the law, while providing in particular, that the law should be framed remedies in respect of children, either in as clear, comprehensible and does not afford or limits the independent accessible a manner as possible, and that right of the child himself or herself to litigants be enabled to access affordable invoke such remedies. For instance, mechanisms offering prompt recourse to despite the fact that access (contact) is the law. Difficulties may arise where universally recognised as a right of the litigants do not have access to civil legal child, such a right may only be invoked by aid, particularly where one party is legally people other than the child.36 Additionally, represented and the other not only the guardians or parents of a child represented, leading to an ‘inequality of may seek an order relating to the welfare arms’ before the court. It is also of a child under s. 11 of the Guardianships necessary to ensure that the courts are of Infants Act 1964; the child himself or provided with and exercise effective herself cannot independently apply under means of enforcing remedies, so that the this section, even though it is the child’s remedies granted by courts are not own welfare that is being considered. The defeated through the non-cooperation of Commission may wish to consider one or other parent. generally whether mechanisms should be introduced to allow the child himself or 1.7 Alternative Frameworks for Dispute herself, or an independent person acting Resolution The adversarial nature of Irish law 32 See also Article 12(2) of the UN arguably does not readily suit the needs of Convention on the Rights of the Child, families in distress or dispute. In which envisages, as a means of ensuring particular, the adversarial framework that the views of the child are considered potentially encourages parties to a legal in judicial and administrative proceedings, dispute involving children to view child the appointment of a representative or custody as a ‘winner takes all’ scenario appropriate body. whereby the spouses/parents are 33 By contrast, section 26 of the Child Care propelled to dispute custody rather than Act 1991, permitting the appointment of a framing arrangements that allow the child guardian ad litem in care proceedings, if meaningful contact with both parents. In necessary to promote the interests of the this regard, it is suggested that legislative child and the interests of justice, has been policy should continue to support and brought into force. encourage alternative means of dispute 34 See the discussion in Kilkelly, Children’s resolution, such as mediation and Rights in Ireland: Law Policy and Practice, separation agreements. In particular, (Dublin: Tottel, 2008) at 7.037, pp. 221- sections 20 and 21 of the Guardianship of 222. See also Children’s Rights Alliance, Infants Act 1964 require solicitors to From Rhetoric to Rights: Second Shadow advise their clients on alternatives to court Report to the United Nations Committee proceedings, including counselling, on the Rights of the Child, (Dublin: mediation and custody agreements. To Children’s Rights Alliance, 2006) at pp. 22- ensure widespread access to such 23 services, it is vital also that they are 35 A point made by Kilkelly, op. cit., at funded appropriately. p.222, who adds that “…a case may also be made that this situation breaches 2. Parenting and Employment obligations under Art. 6 of the [European Convention on Human Rights].” 37 See for instance Equality Authority, 36 Section 11 and 11B of the Guardianship Implementing Equality for Lesbians, Gays of Infants Act 1964 and Bisexuals, (Dublin, 2002) at p. 29 Given the specific remit of the Equality and responsibilities between women and Authority in relation to employment and the men”,38 the Authority considers that the supply of goods and services, the provision of an appropriate period of paid Authority is mindful of the interrelationship paternity leave would facilitate and support between parenting and employment. It is shared caring arrangements in the early important in this regard to recognise that stages of the child’s life. It would, in parents may play a role in supporting particular, allow a father to assist and children by work that takes place both better support the mother and child at the within and outside the home, through critically important and challenging time employment and home-making alike, with following the child’s birth. The Authority is each element contributing to the general conscious that the precise implementation wellbeing of the family. of such a proposal will require further and detailed consideration, though this should The Authority has previously highlighted, not detract from the general principle that through research, the importance of fathers should be entitled to an appropriate promoting an appropriate work-life period of paternity leave. balance, thus facilitating employees in fulfilling a parenting role. Current Second, the Authority notes that there is legislation, and in particular the Maternity currently no provision allowing a mother to Protection Acts 1994-2004, confers on share a portion of her own maternity leave mothers and expectant mothers a right to and benefits with the father of the child, or maternity leave, as well as a variety of alternatively with her spouse or partner. entitlements, including a right to time off While acknowledging that the provision of work in order to receive ante-natal and maternity leave is primarily addressed to post-natal care, for attendance at ante- the health and safety of the mother and natal classes (with provision also being child, the Authority believes that a mother made for attendance by expectant fathers) should be allowed, after an appropriate and for the purpose of breast-feeding. The period, voluntarily to transfer an Acts also require that work conditions do appropriate portion of her leave. The not imperil a pregnant mother, the mother recipient of this portion of leave may be of a new-born child or a mother who is the father of the child, or alternatively a breast feeding. Additionally, health and spouse or partner of the mother, (including safety leave is available to mothers in a same-sex partner or civil partner), the cases where it is not practicable to purpose being to allow the father, spouse reassign the employee from work that or partner to provide for the care of the presents a risk to the mother or child. child. Given the aim and purpose of maternity leave, the amount of leave that The Parental Leave Acts 1998-2006 may be allocated to the father, spouse or facilitate up to 14 weeks of unpaid parental partner may, of necessity, be limited, leave for employees with children, though in principle the transfer of an including natural and adoptive parents as appropriate portion of leave should be well as persons acting in loco parentis in facilitated, subject to the full and free respect of a child. The Acts also provide consent of the mother. While the precise for force majeure leave where, for urgent dimensions of such an arrangement may family reasons, owing to an injury to or the need further and detailed consideration, illness of (amongst others) a child of the the Authority commends the principle as a employee, or a child in respect of whom mechanism that would afford the family the employee is in loco parentis, the greater flexibility in making child-care immediate presence of the employee is arrangements. indispensable. Third, currently there is no provision for While these measures are of significant leave where a parent is required to attend value, three specific points are worthy of court in family law proceedings concerning consideration. The first is that fathers, the child of that parent. The Authority while able to avail of parental leave, do not believes that a parent who is required to enjoy any right to paternity leave per se. attend court in relation to family law Given the Authority’s strategic aim to promote “the status of men as carers, in particular the equal sharing of caring rights 38 Equality Authority, Strategic Plan, 2009- 2011, (Dublin, 2009) at p. 25.

18 Equality Authority News Spring 2010 proceedings relating to a child should be afforded leave to do so. The Equality Authority has specifically committed itself to supporting initiatives “… While these matters may be beyond the [p]romoting the status of men as carers, in specific remit of the Commission’s particular the equal sharing of caring rights consultation paper, they are pertinent to and responsibilities between women and the exercise by parents of responsibilities men and continuing dialogue with men’s and rights associated with parenting. It organisations on issues of equality for may thus be worth considering these men…”.43 The Authority thus recommends matters in the context of the Commission’s that steps be taken to progress and final report. promote equal sharing of parental responsibilities by those in a parenting role 3. Unmarried Fathers and Parental in respect of the child, where this is Responsibility (Guardianship) appropriate in the particular Perhaps the most difficult and contentious circumstances. In this regard, as a matter question posed by the Commission’s of principle, the fact that a child is born consultation paper relates to the legal inside of or outside of the context of position of an unmarried father on the birth marriage should have no bearing on the of his child.39 child’s right to be cared for and supported by both of his or her parents. Currently where a child is born to parents who are married to each other, the child’s If guardianship is viewed as a vehicle mother and father automatically acquire primarily for conferring responsibility in joint guardianship in respect of the child.40 respect of a child, the case for conferring By contrast, where a child is born outside parental responsibility on both father and marriage, only the mother will acquire mother automatically on the birth of a non- automatic guardianship. An unmarried marital child, has much to recommend father is not automatically deemed to be a itself: guardian, though he may become a guardian either by means of a statutory  It removes the distinction between declaration made jointly by both parents,41 marital and non-marital fathers, or by court order.42 This means that a child emphasising that parental born to married parents automatically responsibility is predicated on the enjoys the guardianship of two persons. A relationship between the parent child born outside marriage, on the other and child and should not depend hand, has no automatic right to this on the relationship between the second guardian. The child’s right to a parents of the child; second guardian is, in such cases,  It emphasises that mothers and contingent on the father’s willingness to fathers alike each have equal seek and accept guardianship, and then responsibilities towards their child. on either the mother’s willingness to accept him as a joint guardian or, in the The Authority recognises that the wide and alternative, on the assent of a court. complex varieties of circumstances in The Commission’s suggestion of a strong which a child may be conceived, born and presumption in favour of the father, while raised require a range of responses that an incremental step, will nonetheless are flexible in addressing the best interests maintain the current situation whereby of the child in those diverse responsibility will be conferred only on circumstances. There may be exceptional unmarried fathers who seek to exercise cases in which it will not be either in the such responsibility, (through the courts if child’s best interests, or in the interests of the mother’s consent is not forthcoming) the well-being of the mother, for the father while mothers and marital fathers will continue automatically to assume such 40 S. 6(1) Guardianship of Infants Act 1964 responsibilities on the birth of a child. 41 S. 2(4) Guardianship of Infants Act 1964 as inserted by the Children Act 1997 39 That this is an ongoing debate, spanning 42 S. 6A Guardianship of Infants Act 1964 several decades, is illustrated by the as inserted by the Status of Children Act discussion of this point in the Law Reform 1987 Commission’s Report on Illegitimacy (LRC 43 Equality Authority, Strategic Plan, 2009- 4-1982) from 1982. 2011, (Dublin, 2009) at p. 25

2019 Equality Authority News Spring 2010 (or indeed other guardians) to retain for by people who are members of their parental responsibility. These exceptional extended family, or who are the partners situations will necessitate a mechanism or spouses of a biological parent (those whereby a person may be removed as a partners or spouses not being themselves guardian. Such situations may include, in the biological parents of the child). particular, where that person has consistently failed to meet his Despite these arrangements, the law as it responsibilities towards the relevant child currently stands affords very limited or where that person has been convicted recognition to persons, other than of a serious criminal offence or has biological parents, who are performing a committed a serious civil wrong against parenting role in respect of a child. In the person of the child or other guardian. particular, while the law currently extends This removal must be subject to periodic access to a wide range of persons,44 review and subject to appeal. guardianship and the right to seek custody are, by contrast, generally confined to the Exceptional circumstances should not biological parents of a child. Other shape general policy and principles of the persons may only acquire guardianship on law as it applies to the majority of cases of the death of an existing guardian45 or by childbirth. The Authority takes the view adoption.46 that the better approach is to permit automatic conferral of parental This lack of legal recognition has responsibility on unmarried fathers in all implications for a wide variety of people cases, subject to a mechanism whereby who may be exercising de facto parental parental responsibility may be withdrawn responsibilities in respect of a child, either for exceptional reasons as outlined above. on a temporary or indefinite basis. In particular, the absence of a straightforward Therefore, given the goal of the Authority facility for conferring guardianship to promote the equal sharing by those in a (parental responsibility) on non-biological parenting role of caring responsibilities in parents who are exercising a parental role respect of their children, the Authority is of (where such conferral would be the opinion that as a matter of principle, an appropriate) may create significant unmarried father should be granted practical difficulties in specific automatic guardianship (parental circumstances. The non-biological parent responsibility) on the birth of his child. may, for instance, be unable to consent to This principle should be placed on a medical treatment in cases of emergency, statutory footing. In light of the discussion where the child’s guardian is not above, however, such recognition may be immediately available. Similar difficulties removed or displaced where it would not may arise where the child requires consent be in the child’s best interests to allow that for school activities. A non-biological father to retain joint parental responsibility. parent may also be precluded from Such situations may include, in particular, seeking custody (a day-to-day care order) where that person has consistently failed in appropriate circumstances, for instance, to meet his responsibilities towards the where it is clear that the child’s parents are relevant child or where that person has unable or unwilling to care for the child. been convicted of a serious criminal offence or has committed a serious civil Given the great diversity of situations in wrong against the person of the child or which a child may be parented by a person other guardian. This removal must be who is not his or her biological parent, it subject to periodic review and subject to will be evident that there is no universal appeal. remedy that will suit all cases. The Authority is mindful, in particular, that in 4. De Facto Parenting Arrangements cases where a non-biological parent The final chapter of the Commission’s shares a de facto parenting role with a consultation paper deals with parenting biological parent of a child, there will and contact arrangements involving adults who are not the biological parents of a 44 See section 11 and 11B of the child. As a result of the increased diversity Guardianship of Infants Act 1964 and fluidity of modern family life, a growing 45 See sections 7 and 8 of the number of children live with and are cared Guardianship of Infants Act 1964 46 Adoption Acts 1952-1998.

21 Equality Authority News Spring 2010 typically be another biological parent with in the context of civil status)47 the Authority responsibilities and interests that must wishes to highlight and address a number also be considered. As such, the issue of of issues of note in this context. conferring responsibilities and rights on persons other than the biological parents Parental Responsibility and the of a child is by no means a straightforward Spouses/Civil Partners of Parents. The matter. It is clear also that the appropriate Commission has invited submissions on legal response to each situation will whether step-parents should be able to depend in large part on the specific facts apply for or be conferred with of each case. In particular, the question as guardianship/parental responsibility. While to whether the conferral of parental such a facility may be useful in specific responsibility will serve the best interests cases, the conferral of such of the child is likely to differ significantly responsibilities and rights needs to be depending on the particular fact scenario considered in the context of the specific present in each case, a consideration that circumstances of each child. While the underlines the importance of ensuring best interests of the child are the primary flexibility and avoiding ‘one-size-fits-all’ consideration in any case concerning the approaches to this complex issue. child’s welfare, the responsibilities and rights of the child’s other parents will also Given the specific remit of the Equality need to be taken into account before any Authority, and in particular its role in decision is made. promoting equality on the grounds of sexual orientation, marital status and The term ‘step-parent’ is traditionally family status, (and anticipating a new role understood as referring to the spouse (meaning a husband or wife in a marriage recognised by law) of a child’s parent. In anticipation of the passing of the Civil Partnership Bill 2009, the Authority is mindful also of the position of civil partners who may enter into or be in a civil partnership with a person who is already a parent or who becomes a parent of a child. Given the Authority’s specific brief to promote equality on the ground, amongst others, of sexual orientation, and anticipating an expanded role in the context of civil status, the Authority maintains that such measures as are recommended in the case of the spouse of a biological parent should apply equally to the civil partner of such a parent. The Authority thus recommends that to the extent that the Commission determines that a facility should be introduced allowing for the conferral of parental responsibility on non-biological parents in appropriate cases, such a facility should apply equally to the spouses and civil partners of biological parents.

In this context, a useful model is offered by Section 4A of the Children Act 1989, applicable in England and Wales. There, a person may acquire parental responsibility in respect of the biological child of that person’s spouse or civil partner if the spouse or civil partner who is the biological parent already has parental responsibility

47 Under the Civil Partnership Bill 2009.

22 Equality Authority News Spring 2010 in respect of the child.48 This may occur by adoption, moreover, is not available to agreement with the spouse or civil partner unmarried couples, including same-sex who is the biological parent of the child. If couples, nor will it be available to civil the other biological parent also has partners under the Civil Partnership Bill parental responsibility, the agreement of 2009, as currently formulated. that other parent is also required. Alternatively, parental responsibility may Clearly, a mechanism that would allow the be conferred by court order. It is important new spouse or civil partner, in appropriate to emphasise that this facility is available cases, to acquire parental responsibility by on an equal footing to civil partners as well means other than adoption would expand as spouses. Notably the relevant the range of legal options available in such legislation defines a ‘step-parent’ as cases. Given the stark consequences of including both a spouse and a civil partner adoption, it is arguable that a mechanism of the biological parent. allowing parental responsibility to be extended, in appropriate cases, to a Whether this remedy is an appropriate spouse or civil partner would generally be measure will depend on the circumstances preferable to adoption. In particular, such of each specific case. Nonetheless, the a facility would obviate the need for the granting of parental responsibility in existing guardians to waive their appropriate cases is arguably preferable to guardianship responsibilities before the the current very limited options available in new spouse or civil partner may acquire Irish law. In the Irish context, unless an guardianship. Any such mechanism existing guardian dies, the only means by should, of course treat spouses and civil which the new spouse of a parent may partners equally. currently acquire guardianship is by adoption. This requires both existing Same-sex Couples and Parenting. In an parents (and any other guardians) to give increasing number of cases, children are up any parental responsibilities and rights growing up in families headed by lesbian that they may have,49 and for the newly and gay couples. The circumstances in married couple to adopt the child. In which this is occurring are diverse and particular, the spouse who is already a raise complex issues that require careful parent must first give up his or her own attention.51 While the situations in which child for adoption, and then jointly adopt lesbian and gay couples are parenting that same child. Where the child was children are diverse and multi-faceted, the born within a previous marital relationship, common thread is that in all such cases adoption will not be possible unless very only a biological or adoptive parent may exceptional circumstances apply.50 Joint acquire guardianship responsibilities.52 This potentially leaves the child in a very 48 Section 4A of the Children Act 1989, as precarious and unstable legal position vis- amended by s. 112 of the Adoption and à-vis the other, non-biological parent. The Children Act 2002 and section 75 of the other partner may acquire guardianship Civil Partnership Act 2004. responsibilities on the death of an existing 49 An unmarried father without guardian, but otherwise it is not possible guardianship is in a particularly invidious for the same-sex couple to share parenting position in this context. He may lose his responsibility. The non-biological parent, status as parent without his consent, as he in particular, may not be pursued for is not entitled to veto the adoption, though, maintenance in respect of the child. Nor under the Adoption Act 1988 he does have can the child seek to claim from the non- a right to heard in relation to the proposal biological parent’s estate should the latter to adopt the child. die without making a will. The non- 50 Typically, with limited exceptions, a child biological parent currently is unable to born inside marriage may not be adopted. seek custody of the child, and, barring the A child of married parents may be adopted death of one or other guardian, will not be where both of its parents are deceased. Exceptionally, the child of living married parents may be adopted under the terms likely to continue until the child is at least of the Adoption Act 1988 in circumstances 18 and where the parents can be shown to where the parents can be shown to have have abandoned their parental failed in their duty towards the child for at responsibilities and rights in respect of the least 12 months, where such failure is child.

23 Equality Authority News Spring 2010 able to acquire joint guardianship complex legal issues arising for children responsibilities.53 being parented by same-sex couples. Given the diversity of situations in which a Given its specific concern to progress child may come to be raised by a same- equality on the nine grounds set out in sex couple, the precise legal response to equality legislation, and anticipating a new such situations will, of course, depend on role in the context of civil status, the the facts of each case. In particular, some Authority notes the proposal in the Civil care will be required to ensure that the Partnership Bill 2009 to introduce civil responsibilities and rights of other parties, partnership as a means by which same- such as the other biological parent, be sex couples may enter into a legally considered. It is suggested, however, that recognised union. While welcoming this there is a need for some mechanism bill as an important step forward for civil permitting the civil partners to acquire joint rights in Ireland, the Authority has parental responsibility in appropriate previously voiced its concerns at the circumstances. This may well take the relative absence in this Bill of provision for form of a measure similar to section 4A of children being raised and cared for by civil the Children Act 1989 (England and partners. 54 In particular, the Bill generally Wales) as discussed above. ignores the de facto relationship that may exist between a person and the biological 5. Access (Contact) child of his or her civil partner. It is well established that children generally benefit from contact with and the care of a In light of these gaps in the Civil wide variety of people that play a role in Partnership Bill, the Authority urges the their lives. In particular, the European Commission to pay close attention to the Court of Human Rights has recognised that even where a child has been taken into care, a child’s welfare is generally best 51 See, for instance, the discussion in the served by maintaining contact with his or Colley Group’s Options Paper: Presented her parents, and other relatives.55 by the Working Group on Domestic Similarly, the courts, in cases of Partnership, (Dublin, 2006) at pp. 17-18 relationship breakdown, have emphasised 52 Although in the case of foster parents, that the best interests of a child generally s.43A of the Child Care Act 1991 allows favour maintaining contact (access) with the extension of certain guardianship the parent who does not have day-to-day responsibilities to the foster parents of care and custody of the child, even if that children in long term foster care. As there parent is not conferred with custody of the is no bar on same-sex couples co- child.56 fostering a child, this may give rise to same-sex couples sharing guardianship The Authority notes that the range of responsibilities in respect of the child. persons entitled to apply for 53 The non-biological parent, as an access/contact in respect of a child is individual, may possibly adopt the child, already extensive.57 The Commission has but the couple is precluded from joint itself made a strong case for the adoption, as joint adoption is available only simplification of the process by which to married persons. Same-sex couples are persons other than parents may apply for not permitted jointly to adopt a child, a access, eliminating the requirement to situation that has not been addressed by obtain leave prior to an application for the Civil Partnership Bill 2009 as currently access. Given the Authority’s remit to formulated. promote equality on the nine grounds set 54 out in equality legislation, the Authority See the Equality Authority statements of December 3, 2009, 55 See for instance Eriksson v. Sweden “Equality Authority Welcomes (1989) 12 EHRR 200. Introduction of Civil Partnership 56 This may be the case even where the Bill as Important Step Forward for parent is considered to represent a Civil Rights in Ireland” at possible risk to the child, in which case the http://www.equality.ie . See also, court may consider supervised access. Ryan, Civil Partnership: Your 57 See section 11B of the Guardianship of Questions Answered, (Dublin: Infants Act 1964, as inserted by section 9 GLEN, 2009), especially chapter 8. of the Children Act 1997.

24 Equality Authority News Spring 2010 would welcome the inclusion in the category of persons entitled to maintain contact with a child, persons who, while not technically related to a child, have (in the opinion of the court) a bona fide interest in the child.58 These persons may include, for instance, the parents and other relatives of a non-biological parent where a child is being or has been cared for by that non-biological parent. These persons technically may not fall within the definition of ‘relatives’ entitled to seek access to the child and thus it may be to the child’s benefit to extend contact in such cases. The Authority would also welcome the introduction of an express definition of the term ‘in loco parentis’ as used in s. 11B of the Guardianship of Infants Act 1964. Although this phrase is potentially wide enough to include the cohabiting partner of a parent who lives with and cares for a child of that parent, it is submitted that the legislation would benefit from express clarification of this point. This would place on a clear statutory footing the right of a non-marital cohabiting partner (opposite- sex or same-sex) of the child’s parent to seek contact with a child in respect of whom he or she has performed a de facto parenting role. Similarly, the right of a civil partner to seek access in respect of a child for whom he or she has provided care should also be expressly confirmed in anticipation of the enactment of the Civil Partnership Bill 2009.

58 This is already possible in cases where children are in the care of the State – see section 37 of the Child Care Act 1991.

The Equality Authority Dublin Office: Birchgrove House, Roscrea, The Equality Authority Co. Tipperary, 2 Clonmel Street, Ireland. Dublin 2, Ireland. Information – Lo Call: 1890 245 545 Business Telephone: +353 1 505 24126 Fax: +353 1 505 22388 Business Telephone: +353 1 417 3336 Fax: +353 1 417 3331 Email: [email protected] Text Phone: +353 1 4173385

Web: www.equality.ie

Visit www.equality.ie or contact our Public Information Centre on Lo Call number 1890 245 545 for information on the Employment Equality Acts 1998 to 2007 and the Equal Status Acts 2000 to 2004. Information is also available on the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, and the Parental Leave Acts 1998 and 2006.