Madam, – I was disappointed to read your Editorial on parental responsibility (January 4th) as it wrongly claimed “Both parents will have automatic guardianship (to be renamed parental responsibility), again unless this endangers the mother or child”. Unfortunately, this is the politically correct spin that has been put forward by the Law Reform Commission press release but should be challenged by your paper rather than simply repeated.
First of all, married parents currently share guardianship and, even after divorce or separation, this right is inalienable, imprescriptible and guaranteed by the State. According to SI No 5/1998: Guardianship of Children (Statutory declaration) Regulations, 1998, “Guardianship is the collection of rights and duties which a parent has in respect of his or her child. It encompasses the duty to maintain and properly care for the child and the right to make decisions about a child’s religious and secular education, health requirements and other matters affecting the welfare of the child”. Married parents carry out their guardianship duties “jointly”, according to Section 6 of the Guardianship of Infants Act 1964. However, the proposals by the Law Reform Commission state, “The Commission recommends that a general statutory requirement to consult should not be included in legislation concerning parental responsibility”.
This is despite recent Equality Tribunal cases which showed occasions when fathers were purposefully excluded from their role as acting jointly with the mothers of their children on behalf of their children. In one case, a married father was awarded €2,000 after he was refused access to his daughter’s medical records following an operation carried out without his knowledge or consent. In a second case, a married father was awarded €5,000 after he was discriminated against by a community school in not being provided with information and documentation he had sought with regard to his children’s progress in school. A third case was not heard as the father failed to appear at the hearing which was in regard to an allegation of discrimination against him by a school ignoring his request that his son repeat sixth class and by avoiding contact with him regarding the issue, during the school year. It is understandable that the father failed to appear as the discrimination occurred in October 2008 and the hearing did not occur until September 2010, by which time the child had obviously left the school.
If enacted, the Law Reform Commission proposals will exclude the constitutional right of married fathers to act as guardians on behalf of their children. It then proposes to grant these weakened rights to unmarried fathers, along with any aunt or uncle that wants them, as well as allowing for the current partner of the child’s mother to be guardian. This will leave any father in the minority if it comes to a dispute but will apparently grant rights to an unmarried father, albeit rights that are of no benefit to father or child.
Secondly, the proposal to amend the Civil Registration Act 2004 to include the particulars of an unmarried father at the registration of the birth of his child “unless this endangers the mother or child” undermines the constitutional presumption of “Innocent until proven guilty”. A mother simply has to state that “her safety or welfare or the safety or welfare of the child so requires it” and “she may request the exclusion of the required particulars of the birth pertaining to the father”. This request must be in writing to the registrar and be accompanied by a statutory declaration setting out the reasons for the request. Unfortunately, the registrar will have no option other than to comply with the request. – Yours, etc,