FAMILY LAW judges will have to rule on issues relating to the new Irish family in the absence of legislation on questions like same-sex parenting, according to a leading family lawyer.
Inge Clissman SC was speaking at a conference on children's rights and the law in Trinity College on Thursday night.
"The Irish courts will be confronted with an increasing number of cases where there are several 'players' who all claim recognition of some aspect of their role in relation to a child, whether it is biological or social parenthood. In cases which demand an immediate Solomon-like decision, it will be no answer for a judge to state that he or she would prefer to wait for further studies in the area to be completed."
After surveying the development of international law on this issue, Ms Clissman pointed out that a common factor in cases heard as far apart as Australia, Scotland and the European Court of Human Rights in Strasbourg was the importance of biological truth in a child's well-being.
"Experts consider it vitally important for a child to know his or her biological origins," she said. As a result, the UK Human Fertilisation and Embryology Act was changed in 2005 so that any child born from sperm donation can request to know the identity of their biological father when they turn 18.
"The issue of discrimination against homosexual or gay people may also be highlighted in cases where the custody of and access to children crops up," she said. "While a court must remain conscious of this aspect of any application, it is bound to give the welfare of the child the paramount consideration. Ultimately, psychological evidence and expert reports will feature heavily in any decision."
Once the issue of civil partnerships has been legislated for, the Oireachtas can turn its attention to the pressing issue of same-sex parenting under Irish law, she said. "In the meantime, family law judges will have to make the first few tentative brush-strokes on the blank canvas for the portrait of the new Irish family."
Family law solicitor Rosemary Horgan told the conference that the Council of Europe was preparing a new Convention on the Adoption of Children to take account of recent developments in defining the family.
The absence of any provision for same-sex parenting in the previous Convention on Adoption, dating from 1968, had already led Sweden to "denounce" it, and opt out. It also now diverged from the emerging jurisprudence of the European Court of Human Rights, she said.
The need for the adoption to be in the best interests of the child is the "acid test" in all adoptions.