March 11, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Advocates for equal parenting are saying that the new bill before the Irish Parliament doesn’t go far enough in granting unmarried fathers parental rights (Irish Independent, 2/24/15). By contrast, advocates for the bill, including Justice Minister Frances Fitzgerald, claimed the Children and Family Relationships Bill would be in children’s best interests (Irish Times, 2/24/15). Who’s right?
Well, it’s certain that, if passed, the bill would improve the chances for children of unmarried parents to maintain a relationship with both should the two adults split up. But that sets the bar for improvement pretty low. Put simply, existing Irish law renders unmarried fathers close to non-persons regarding their children. Here’s how Collette Browne describes it.
If you are an unmarried father, you may not fully comprehend just how few legal rights you have in respect of your child. You have, literally, none. While some seem to think that a name on a birth cert confers guardianship rights, it doesn’t. It simply establishes the identity of the child.
So, what does this mean? It means that if your partner is away and your child falls ill, you cannot authorise medical treatment. It means that if your relationship breaks up and your partner decides to move abroad with your child, you are powerless to stop her. It also means that you have no automatic right to custody or access to your child. By law, the mother is entitled to sole custody of the child if the father has not been made a guardian. Imagine a worst-case scenario in which your partner dies and you are left alone to care for your child. You would have to mount a court battle just to be entitled to care for your own child.
So, starting from a point at which unmarried fathers have essentially no parental rights to their children and therefore their children have none to their dads, the bill would be an improvement if it were to be enacted into law.
But…
Happily, the new law plans to change this appalling situation for some unmarried fathers. Those who have been cohabiting with their partner for 12 months, including at least three months following the birth of the child, will receive automatic guardianship rights. However, the big question is why Justice Minister Frances Fitzgerald opted for this rather complicated cohabitation test instead of just conferring automatic guardianship rights on all fathers upon the birth of their child?
Good question. After all, why impose such a requirement on fathers but not mothers? Why place such an obstacle between unmarried fathers and their parental rights? Why make it difficult for children to have meaningful relationships with their fathers? Above all, why place the rights of fathers to their children and children to their fathers in the hands of mothers? A requirement that the two parents live together does exactly that. If she doesn’t want him to have a say in the child’s upbringing, all she has to do is to refuse to cohabitate. Simple.
And, speaking of simplicity, why not just grant unmarried fathers parental rights based on their biological relationship to their children? Minister Fitzgerald answers none of those questions.
Minister for Justice Frances Fitzgerald said the best interests of the child was the “golden thread” running through everything in the Children and Family Relationships Bill, a long-awaited and controversial piece of legislation…
The Minister stressed: “Our challenge is to ensure the children’s best interests are served, regardless of the family type.”
Platitudes about children’s welfare aside, the bill does no such thing. As a large body of social science demonstrates, children’s well-being is best served by having two biological parents involved in their lives. Erecting obstacles between fathers and their children obviously interferes with that. Why keep fathers out of their children’s lives? Why do anything that would come between children and their fathers?
It turns out that two separate Law Reform Commissions in Ireland have argued exactly as I do — that fathers should have full parental rights solely due to their biological connection to their children.
This was a course of action that was recommended by the Law Reform Commission as far back as 1982, when it said that non-marital fathers should automatically become a joint guardian. That advice was ignored. The Law Reform Commission, in 2010, again recommended that automatic guardianship should be linked to compulsory joint registration of the birth of the child. It reached its decision having regard to two guiding principles: the best interests of the child and the notion that all parents should be treated equally, regardless of gender or marital status.
So it’s all the more remarkable that Fitzgerald’s bill ignores the advice of not one but two commissions that acknowledged that children’s interests are best served by having two parents and that gender equality under the law demands equal rights for mothers and fathers. In the process of course, the bill ignores the social science on the matter that the commissions got right. To put it mildly, this is not progress.
Regrettably, the Minister has jettisoned this advice and her new Bill still seems to presumptively view some unmarried fathers as feckless sperm donors with no interest in the lives of their children. There are many reasons why a couple may not want to cohabit or that a relationship may break down before the birth of a child. Why should these fathers be discriminated against?
Another good question for which Frances Fitzgerald has no answer.
But there’s more.
Speaking on Newstalk last week, the Minister said she opted for the cohabitation test as a means of demonstrating "responsibility and day-to-day involvement". This is an extraordinary statement, implying that the only way to be show responsibility for your child is to live with its mother. She also said that those men not covered by the new Bill would be able to apply for a statutory declaration, which is a legal document signed in the presence of a peace commissioner conferring guardianship rights.
But there’s a catch to that back-up way of gaining guardianship rights.
What she didn’t say is that there is no central register for these documents, meaning that if it goes missing, or one parent decides to rip it up, there is no evidence that it ever existed and a man’s guardianship rights are immediately extinguished.
That’s beyond amazing. The Justice Minister wants the government to issue pieces of paper acknowledging the rights of unmarried fathers who’ve applied and had their rights granted, but to keep no database of what dads have done so. In that way, any man who loses his document, has it stolen, lost in a fire or simply, as Browne says, ripped up by his partner, all of a sudden — poof! — loses his parental rights.
To condition a child’s rights to its father on something so tenuous is absurd, but it does drive home the message that, I suspect, the minister wishes to convey: unmarried fathers are to remain second-class citizens. Unlike all mothers and married fathers, they must, for some reason, demonstrate their bona fides as parents. And even if they do, their rights are still in the hands of the mothers of their children.
Needless to say, this is directly contrary to what serves children’s interests. But as is so often the case, the ”best interests of children” is merely a euphemism covering the profound unease with which political elites view fathers and fatherhood.
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