Wednesday, 7 July 2010
Seanad Eireann Debate
An Cathaoirleach: I draw the attention of Senators to a drafting error in the Bill. In the version of the Bill as passed by Dáil Éireann on page 91, line 15, “on that behalf” should read “in that behalf”. Accordingly, as provided for in Standing Orders, I will instruct the Clerk of the Seanad to make the formal correction to the text of the Bill.
As stated on Second Stage, we have a number of concerns with regard to this Bill. One aspect in this regard is the fact that the rights it confers more or less mirror those relating to marriage. Many of the amendments we have tabled are designed to ensure there is a clear distinction between civil partnership and marriage. The first of these, amendment No. 1, proposes a change to the Title of the Bill. In the Dáil, the Minister amended the Title so that it now reads “Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009”. Amendment No. 1 proposes that the Title should be “Partnership and Cohabitants (Non marital Relationships) Act 2010”, which is a tidier formation.
We have not, however, tabled amendment No. 1 in order that the Title to the Bill might be more streamlined. Effectively, we wish to signal that there is a definite distinction with regard to partnership, cohabitation and marriage. That is why the term “non-marital relationships” is included in the amendment. For various reasons outlined on Second Stage, we are of the view that it is imperative this change be reflected throughout the Bill. A number of the later amendments we have tabled do, perhaps, put the case in this regard more clearly. When they are discussed, we may be able to argue further in respect of this matter.
On Second Stage, the Minister and various Senators stated there was all-party agreement on the Bill in the Dáil. While there may have been all-party agreement, it is certain there was not agreement among all Members of the Lower House on the Bill. The reservations I articulated on Second Stage were also reflected within my party. At that point, I read into the record of the House a motion tabled at a meeting of the Fianna Fáil parliamentary party and which was signed by 15 Deputies and 11 Senators. Within Fine Gael, the second largest party in the Houses, a significant number of people were particularly engaged in respect of the conscience clause. I spoke to a number of these individuals. Five or six Deputies from Fine Gael were very much engaged with regard to the conscience aspect and some of them indicated publicly that they wanted changes to be introduced and that they intended to table amendments.
I do not wish to comment, in a pejorative sense, on the business of the Lower House. How it conducts its business is its own affair and how the Seanad conducts its business is our affair. However, when Marriage Equality and the National Women’s Council of Ireland applied to appear before what was then the Joint Committee on Justice, Equality, Defence and Women’s Rights to outline their views on the Bill, several members of that committee, including me, suggested that we should also seek the opinions of other bodies. On foot of this, a decision was made that submissions would be accepted but that there would be no oral hearings. On the day on which this decision was made, Fine Gael’s then spokesperson on justice, Deputy Charles Flanagan, sought clarification to the effect that only members of the select committee would be in a position to table amendments. That removed the option for certain members of his party to bring forward amendments. Some of these individuals expressed their personal views on this matter on Report Stage in the Dáil. It is important that this fact be highlighted.
We had a good debate on Second Stage. That was acknowledged by Senators on both sides of the argument. If I recall correctly, the Minister stated that it was as fine a debate as he has heard in either House during his time as a Member — a period of some 23 or 24 years. Having engaged in such a good debate, it would be a pity if none of the amendments we have tabled, some of which are substantial and others of which are more symbolic in nature, was accepted. Symbolism is nonetheless important. The message we, as legislators, send to society on this matter, especially in the context of our system of values and the matters within our Constitution that are held to be important, must be clear. It is for that reason we have tabled an amendment to the Title of the Bill.
Senator Eugene Regan: I do not support the amendment because it is unnecessary. The Title to the Bill was changed in the Lower House and is perfectly clear in its intent. On the general issue of the distinction to be made between the family and non-marital relationships, which is the purpose of the amendment, there is no confusion. The Bill does not involve a change to the Constitution. It is designed to provide rights and dignity to people involved in relationships which are different in form from marriage. There is no lack of clarity in the Bill and, in such circumstances, I cannot support the amendment.
Senator Ivana Bacik: The Labour Party is also opposed to the amendment. It is clear that civil partnership is not marriage. The Labour Party has been critical of the Bill because it is of the view that it does not create a status that is close enough to equality or marriage. However, we support the concept of civil partnership as an advance. It is only now that the many people who were involved in loving and committed relationships for a long period will obtain legal recognition from the State in respect of those relationships. It is a shame that there are those who are seeking to restrict the Title of the Bill so that it will, as it nears its entry into law, only refer to partnership and non-marital relationships. That is mean-minded and mean-spirited and is not in keeping with the generous and progressive nature of the legislation.
Even though the Labour Party believes the Bill does not go far enough, we are of the view that it is generous and progressive. This legislation represents an enormous step forward not just for the members of the gay community in Irish society but for all citizens. It marks a step up in maturity and a move towards a more inclusive and more tolerant Irish republic. As a republican, I am of the view that even as we criticise the Bill for not going far enough, we should support it to the fullest extent possible. Seeking to restrict it further is something neither I nor my party could support.
Senator Labhrás Ó Murchú: I support the amendment and I concur with the remarks made by Senator Walsh. The Senator placed into perspective the fact that we engaged in a good debate on Second Stage. I am disappointed, therefore, that Senator Bacik in some way resents that we are seeking to protect our ideals. We engaged in a good debate on Second Stage because, as democrats, we accept that this is the process which must be undergone. To use a term such as “mean-minded” so loosely is very unfair and could almost be regarded as being anti-democratic. We have tabled a number of amendments to the Bill. It might be the case that those of us who do not agree with the Labour Party’s amendments could use terms such as that to which I refer in respect of them. I will not be using such terms because I respect everyone’s right to put forward their views. The best legislation is produced when people feel free to express their views. There should be no personal animosity involved. The cut and thrust of political life is built on the notion that we should tease out every single element of legislation brought before us in this House. I would like to think the Minister accepts that, when we propose an amendment, we are not trying to muddy the waters. I am certainly not trying to do so. I feel strongly about what I am saying.
Messages have been pouring into my office for the last few hours. I am inundated with messages. I have not received any hate mail from anyone. I respect those who did not send me such mail. They accept that we are going through a democratic process. I would be worried for the future if we were in some way to feel restricted or, even worse, intimidated, as we try to express our views. That is not the intent of this House and certainly should not be. Perhaps it was in the past, but I have not noticed it in my 13 years as a Senator.
I accept that people may believe they have a reason to celebrate. They have expressed that feeling exceptionally well in the House and I wish them well. I am anxious to make my views known in the hope we might be able to convince the Minister to revisit some of these issues. Our proposals are very reasonable.
The suggestion the Title of the Bill be amended is not mean-minded. It has been proposed to copperfasten what the Minister is saying about the difference between civil partnership and marriage. That message needs to be transmitted. If, on some future occasion, the Minister or some future Minister introduces legislation to move these arrangements in the direction of marriage, we will debate the issue at the appropriate time. I am supporting the amendment for the reasons mentioned by Senator Walsh. If it is accepted, it will clarify issues for the general public.
Senator David Norris: Senator Ó Murchú has said he is disappointed. I am afraid he will be disappointed further by what I have to say. I agree 100% with Senator Bacik and do not think she said it half firmly enough.
Senator David Norris: The Senator was extremely restrained. I would like to comment on the language used during the debate on the amendment. I compliment the three gentlemen on the other side on their newly acquired, if specious, status of victimhood. They were politically astute when they jumped before they were pushed. If they had not been pushed, I had a loaded pistol and most certainly would have pulled the trigger. I will tell the House why. On the subject of respect, there has been no retraction of the odious comment made about the Penal Laws, about which I continue to feel very deeply, if I am allowed to have feelings. The other day, after I had been struck by posters and prevented by the allies of the conservative side in this debate from expressing my right to freedom of speech on Bloomsday, a democrat on this side of the House told me it would be better to make a laugh out of the incident rather than pretending to have feelings I did not have. Apparently, I now have to apply for permission to experience my own feelings. That is a——
Senator David Norris: I wish to make it clear that I think this is a mean-minded and thoroughly nasty amendment. Senator Ó Murchú presumed to tell me what those whom he inaccurately described as the bishops of the Protestant church believed on this issue. He got it wrong. I am a long-standing member of the Anglican church. Apparently, I cannot even stand by my own church. I know exactly how to interpret what is happening. I say the amendment is mean-minded because, having persuaded the Government to make a clear distinction between various marital states, certain interests then felt the need to rub our noses in it, as a community, by making an amendment to the Title, contrary to all the evidence from other countries. The entire purpose of the change was to rub the noses of the members of the gay community in their second-class status, just in case we had not noticed it. For that reason, I will definitely oppose the amendment.
Senator Lisa McDonald: I oppose the amendment, too. The inclusion of the word “partnership” is fine, but the inclusion of the term “non-marital relationships” could cover many forms of relationship not of an intimate variety. There can be partnerships in business, etc. This change would water down the Title of the Bill and make it so broad that it would cover almost every form of relationship in society. Each of us has plenty of relationships of various forms. We had a good debate on Second Stage. It would be a shame if the debate on the Committee Stage amendments were to degenerate into insults and name calling. I hope we can try to keep this out of the debate.
Senator Rónán Mullen: I am surprised, delighted and somewhat bemused to hear Senators Bacik and Norris express their support for what Senator McDonald said. However, I am glad to hear it. I support the reasonable amendment proposed by Senator Walsh. I do not understand why Senator Bacik characterised it as restricting further what was on offer. The Title of a Bill is largely descriptive of what is contained in it. Senator Walsh is striving for accuracy in the context of the constitutional preference for, and recognition of, marriage. He is simply seeking to describe what we are talking about in direct terms such as “partnership”, “cohabitants” and “non-marital relationships”. If such a modest proposal leads to the kind of response we have just heard from Senators Bacik and Norris, I do not know what is in store for the rest of the evening, when Members who have more substantive objections to the Bill stand up and explain their reasons. As I listened to Senator Norris, I could not help asking myself if this was the man who wanted to unite everybody as President of Ireland. That was not showing a spirit of kindness towards——
Senator Rónán Mullen: I am trying to nip in the bud a rather unhealthy tendency towards using a divisive and aggressive debating technique. I hope I will succeed. I will try to avoid using terms such as “mean-minded” which was used by Senator Bacik. I never look at the motives of those who disagree with me. I never try to claim they have a particular reason or motivation for doing what they do. I criticise them on the merits of their case. If I have ever failed to achieve such a distinction, I apologise. I certainly try to live by this rule which involves not looking into people’s motivations and not judging them personally, even if I disagree with their approach to an argument.
I would like to respond briefly to what Senator Regan had to say. One cannot take away people’s dignity, or confer it on them. They have their own dignity. I would oppose any legislative measure that sought to detract from their dignity.
We have heard many references in recent times to the “new republic”. I suspect some have a certain idea of what the new republic will be like. They seem to expect it will involve the separation of church and State, which I would support. People have to remember that the new republic will have to accommodate all of its citizens, including those who can be characterised as traditionalists, liberals or radicals.
In supporting Senator Walsh I appeal to Members to moderate their language and be temperate in their disagreements. If they are not going to be temperate, I have to ask the following question: if this is what they are like in victory, what would they be like in defeat?
Acting Chairman (Senator Diarmuid Wilson): Before I call Senator Hanafin, I ask Senators to speak to the relevant amendment and avoid personalising their remarks and commenting on other Members’ contributions. We have many amendments to get through tonight and tomorrow.
Senator John Hanafin: I share the views expressed by the Chair. I have every intention of speaking to the amendment which I second. Senator Walsh’s proposal, although reasonable, was misrepresented. I do not like to hear of standards of conduct being imposed on other Senators to which others do not adhere in any way. I referred before to the intolerance of liberals and, sadly, this can be the case. If we wish to continue in a better vein, we should start now.
Senator Labhrás Ó Murchú: There is time to step back from the temperature being created in this debate. When I spoke on Second Stage I do not believe I offended or insulted anyone nor did I personalise the debate but I was shocked by the aggressive tone I just heard and the underlying virtual threats which come with it. That cannot be correct. Amendments have been tabled in a democratic way. It is up to both sides to put forward their case and set out their stall. It will not help the debate if we are to go down the road of name-calling, personalisation and insults. I will not engage in that. I never have in my 13 years in the Seanad and do not intend to start now. For the sake of the debate and the amendments, it is time for those who started it to step back at this point.
Senator Jim Walsh: I shall refer to this when we come to much more fundamental amendments in regard to what we will allow take place, whereby people of reasonable and tolerant views will find themselves in jail as a consequence of those views.
It has been suggested we are mean-spirited. That would not be my intention in any way. Senator Bacik may have had a point, which I had not noticed until now, with regard to placing “civil” ahead of “partnership”, so that the title would read “Civil partnership and cohabitants non-marital relationships Bill 2010”. If the Minister is minded to accept the amendment, I am happy to allow him bring back his own proposal in that regard on Report Stage.
The thrust of what we are endeavouring to do in this amendment is to make a reference in the Title that clearly distinguishes the civil partnership, which is the subject of this Bill, and the cohabitant arrangement as being entirely different from marital relationships. I make no apology to anyone inside or outside this House. I have stated that consistently since Senator Norris tabled his Civil Partnership Bill in 2005. I said I would support measures he sought, justifiably, in respect of people in his own community who have suffered long and hard because of discrimination. I acknowledge that. However, I stated that the threshold for me would be equivalence to marriage. I oppose marriage equality measures for same-sex couples because I believe marriage is for heterosexual couples. It is safeguarded in the Constitution and there are very good reasons, which we may touch on later, as to why that is the case.
Minister for Justice and Law Reform (Deputy Dermot Ahern): When I concluded on Second Stage I said this had been one of the best debates in the past 23 years. I hope I will not have to retract that statement at the end of the evening or whenever this Bill passes.
I cannot understand this amendment and cannot put that point better than Senator McDonald did. Before I came into this House I was a member of a partnership although it was not a civil partnership. The proposed amendment suggests the Bill should be called the partnership and cohabitants non-marital relationship Bill 2010. I believe Senator Walsh is nodding in the direction that instead of his amendment deleting the word “civil” the word should be left in which might make it better from his point of view. In other words it would be the civil partnership and cohabitants non-marital relationship Bill 2010.
However, the reference to non-marital does not describe the Bill properly. The Bill is in two parts, one being the civil partnership element, the other the cohabitant element. In the Dáil we accepted the suggestion from the Opposition that, as originally initiated, the Civil Partnership Bill did not properly reflect the two distinct elements to the Bill. That is why we tabled an amendment and although we did not accept the exact amendment proposed by the Opposition, having discussed it with the Attorney General’s office and within my Department, the best solution as far as we were concerned was the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009. Therefore, I cannot accept the amendment.
Senator David Norris: ——and speaking to the amendment, I wish to comment on the new Title proposed by my colleague, Senator Mullen, “A modest proposal”. I am not sure whether he is aware of the origin of that in a remarkable document by the late Dr. Jonathan Swift which was replete with irony. The whole point about the modest proposal was that it was one of the most sinister plots ever hatched. The Senator’s title may exaggerate the dangers a little.
Senator David Norris: With regard to the Senator’s comments about any possible future career in politics I might have, I do not delude myself that I am President yet. However, one never knows. It is a possibility and in those circumstances I would know very much how to behave with people.
Senator David Norris: I merely include that little point. However, I wish to ask for guidance from the Chair on this matter. I take it we are to discuss all these amendments because they are grouped. Is that correct?
Senator David Norris: All right. That is fine. I am very happy to leave it at what the Minister had to say. I cannot speak for other people but I am a humble and totally imperfect member of the Anglican communion so I doubt if I can accurately be termed an aggressive secularist. However, I believe in the separation of church and state and just as I believe the state should be separated from the church so the church should be separated from the state. It is an equal position and I believe in equality. Senator Walsh acknowledged, very charmingly and honestly, that in this instance he simply does not believe in equality. I do not think I misinterpret him because he said he did not believe in marriage equality or that the two should be equal. He stated he does not believe in equality and on that point I beg to differ with him. However, despite the various imprecations, I hope I am still allowed to express this view in the House. I shall not speak on this amendment again and hope it comes to a vote shortly because there are a very large number of amendments.
Senator Jim Walsh: I believe I am in order to speak on issues that arise on Committee Stage. I am not trying to delay the Bill. It is not our intention to delay. However, I wish to deal with it because the Minister made the same point in his summing up on Second Stage. I clearly outlined on Second Stage my interpretation of republican equality which differs from the interpretation of left-wing liberals. It is equality of opportunity for the individual. The Constitution refers to equality for each person, as the Minister rightly pointed out when he quoted from it. Senator Norris is talking about equality for different types of relationships and what is involved is not individual relationships but couples or institutions such as marriage. The interpretation of republican equality does not stretch to all relationships or to all situations such that they should be equal. It pertains specifically to persons.
In regard to the specific amendment that my colleagues and I tabled, I accept it could be interpreted that due to the omission of the word “civil” the proposed wording to be inserted could appear narrow-minded. If the wording proposed to be inserted was “civil partnership and cohabitants (non marital relationships) Act 2010”, I would press the amendment. However, in view of the fact that we have omitted “civil” from the proposed words to be inserted and that people might take offence, I will withdraw the amendment.
Senator Rónán Mullen: I welcome what Senator Walsh said by way of clarification. The more widely accepted principle in regard to equality is that all persons are equal but different situations can be treated differently. It is worth remembering what our Constitution has to say in that regard in Article 40.1 on equality, which provides that the State can have regard in its enactments to differences of capacity and function. Therefore, just as it is acceptable for some people to see an appropriate inequality between intimate couples and non-intimate couples, by the same token it is surely appropriate to argue that the doctrine of equality does not necessarily mean that all relationships have to be viewed by the law in the exact same way.
All these amendments deal with the important matter of the defence of the rights of children. As I spoke on the Order of Business today concerning this matter, I do not intend to rehearse these matters in any great detail, but it is important that we highlight the strong support of the majority of the Members of this House for the rights of children. I had tabled these amendments with considerable care before I received a very significant document, entitled Advice of the Ombudsman for Children on the Civil Partnership Bill 2009, yesterday afternoon from the Office of the Ombudsman for Children. The ombudsman is the person and office charged with vindicating the rights of children in this State. For that reason it is important that those who cherish the rights of children in this State, especially politicians and particularly in the passage of legislation such as this, should listen with due attention to what is in this document. I will, with the indulgence of the House, as it is directly relevant, quote briefly what I regard as the most salient points of this significant document. I would like the House to consider that I believe that these comments cover all the amendments I have proposed. I cannot speak for my colleagues who tabled the other amendments. Amendment No. 64 is in the name of Senator Bacik and her colleagues and amendment No. 63 is in my name. All these amendments represent the same point of view. I know that to be the case from my conversation with Senator Bacik.
That is very clear. It is not prejudiced. There is no intolerance and there is no name calling. It just states an objective fact, that it is clear the rights of children were considered but were omitted from the Bill and it is not clear why it did not prioritise them.
The ombudsman goes on in the document to indicate that this is not a hypothetical problem or abstraction, it is something that deals directly with a very real and existing situation. The ombudsman states:
I outlined the very clear results of the Swedish commission which was instructed to investigate this matter in 1999 by the Swedish Parliament. Interestingly, it acknowledged that there might be some negative consequences for children in same-sex relationships, but it also made it very clear that this came not from the same-sex partnership relationship but from peer group pressure. In other words, the children were expected to pay in their own lives for the prejudices of the society that some groups would still wish to foster. That puts the blame very squarely on opponents of these kinds of measures.
The ombudsman goes on to say in the document: “the failure to provide adequately for children in the Bill is concerning, particularly as no arguments based primarily on the interests of children has been advanced by the Government to support its approach to children in the Bill”. I understand it is suggested that this will be addressed in other Bills. The Adoption Bill was passed recently and there was no hint that this issue would be addressed in it, although there were some interesting points made in the debate on that Bill. The Government did not take opportunities already offered to address this issue.
The Minister might feel a sense of pleasant surprise about this, as I did when I got this document yesterday evening. I had no inkling that the Ombudsman for Children was so deeply concerned about this matter that she would provide impetus politically for this kind of change. Even long before that the Minister will know very well, because he is not only a decent man he is a highly intelligent man, that the Colley report stated:
I draw the attention of the House to the fact that part of my amendment deals with the protection of “a person who has an intellectual or physical disability to such an extent that it is not reasonably possible for the child to maintain himself or herself fully”. I would be interested to learn of an objection to that, particularly on, as we would say in Ireland, the day that is in it when a very large number of people campaigned outside the gates of these Houses for the rights of people with disabilities.
The recommendation of the ombudsman’s document states: “Provision should be made in law for special guardianship orders, either in the Civil Partnership Bill or in other appropriate legislation, particularly in the absence of an amendment to the law governing the eligibility criteria for adoption.” I respectfully say to the Minister that this is what I have provided. I hope the amendments I and my distinguished colleague, Senator Ivana Bacik, tabled with the support of the Labour Party will have the support of the Fine Gael Party. If I may allow myself an aside on this, some negative comments were made about Fine Gael from the other side of the House. I will not be negative in my response but I would like to take the comments positively and say that I am deeply grateful to Fine Gael, its Leader in the House, Senator Frances Fitzgerald, and Senator Eugene Regan for their dignified and courageous espousal of this cause. Even before that, in very difficult times when in their party there was a nasty attempt to amend the legislation decriminalising homosexuality, a wonderful group of Fine Gael people filibustered the amendment out of existence. I honour and salute them for it. I would not like Fine Gael to be excluded from the paean of praise which has been rightly paid to Fianna Fáil, Labour and the Green Party. All the parties have behaved with great honour in this process.
Senator David Norris: Yes. It is clear that the children of same-sex parents who enter into civil partnerships are greatly disadvantaged. I have tabled these amendments with the intention of starting the process of redressing this wrong. I believe, from the comments of the Minister in his speech earlier today, that it is his intention to address this at some stage.
I was told there would be a vote on Second Stage and I am determined to vote with the Government and will continue to do so until the very last minute in the hope that this Bill will be amended, even on Report Stage. If that does not happen I will have to vote against the Bill but I believe it will pass anyway. It is important for people like me, who have the significant luxury of being Independent, to be able to hold the Government to the gold standard, even in circumstances where it may not feel it to be a practical approach.
Senator Ivana Bacik: I am delighted to support these amendments, three of which were tabled by Senator Norris with the support of the Labour Party and one of which we tabled, amendment No. 64 which in essence has the same aim as amendment No. 63. All four amendments have in common the main and critical aim of seeking to write into the Bill the rights of children which are noticeably lacking now. The single biggest criticism of the model of civil partnership with which the Minister has presented us is that it makes no provision for the rights of the children of gay couples.
As I said, we know many children are living in families with gay parents whose rights are not recognised, in particular their rights vis-à-vis the non-birth or non-adoptive parent in the relationship. Senator Norris referred to the very helpful advice of the Ombudsman for Children, which I quoted. It is worth noting that she said the children of same-sex parents who enter into a civil partnership will be left at a clear disadvantage compared with other children if the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill remains as it is. She made some very practical suggestions for amendments to the Bill and many of her recommendations are incorporated into these amendments and in amendments Nos. 5 and 37 which we also tabled with the support of Senator Norris.
The ombudsman recommended that provision be made in the Bill for special guardianship, which is what amendment No. 37 seeks to do, to ensure the non-birth or non-adoptive parent in a gay couple who enter a civil partnership would be able to be made a guardian of the child, which would then give him or her rights of access and other rights if the relationship were to break down. Any provision for that is notably absent from the Bill. She also recommended that the Bill be amended to ensure adequate protection for the children of civil partners in the areas of shared home protection, maintenance, succession, dissolution of civil partnerships and related matters. They are very important areas.
It is wrong to say there is no reference to children in the Bill. I am sure the Minister will refer us to the provisions which exist and are welcome but they are very limited. Section 73(8) provides for the succession rights of a child of a civil partner’s estate but it does not refer to the child of a non-birth or non-adoptive parent in a civil partnership, which again is a major omission. Section 129, which was section 127 when the ombudsman referred to it, also refers in the context of the dissolution of a civil partnership to a court being able to have regard to the child to whom either civil partner owes an obligation of support. Again, that is welcome because it will give some discretion to the courts to make maintenance orders but there is nothing in the Bill about the rights of child to the guardianship of their parent who is not a birth or adoptive parent within a civil partnership which is a glaring omission and will place the children of gay families at a real disadvantage.
I am very grateful to Senator Norris for tabling these amendments. We planned to draft similar amendments and when we saw his amendments were framed in such a well-crafted way, we felt they were worth supporting. Amendment No. 2 defines “dependent child” very similarly to the definition already provided in the Bill in section 171 which provides for the children of cohabiting couples. It is very close to the Minister’s wording and I do not see why he could not support it.
Amendment No. 22 simply refers to writing in the dependent child in section 29 and amendments Nos. 63 and 64 seek to do similar things, giving the court specific power to have regard to the circumstances of the dependent child or children of civil partners. These are vital amendments which need to be made to ensure the children in gay families have rights and status equal to those in marital families.
In 1987 we abolished the status of illegitimacy and no longer think it acceptable for a child to have a different status depending on whether his or her parents are cohabiting or marital, but we still regard the children of gay couples in a different and discriminatory way, as the ombudsman has so clearly pointed put. The Minister said he is awaiting a review from the Law Reform Commission on this area but we have been waiting a long time. Senator Norris pointed out that when we debated the Adoption Bill, to which he and I tabled amendments on special guardianship and extending eligibility to adopt to gay couples, the Minster of State, Deputy Andrews, told us this Bill would come to the House which would be a more appropriate time to consider the issue.
We have been waiting long enough. It may well be that the review will provide greater guidance as to how we may see a comprehensive reform of the law on children, which we very much welcome, but this is the time, given that we are passing a law which will recognise gay couples for the first time and giving the status of civil partnership, that we should also be giving status and rights to the many existing children of gay couples and give them rights in this Bill. I urge the Minister to accept these amendments and the others we have tabled with the aim of seeking to write the rights of the child back into the Bill.
Senator Eugene Regan: I support these amendments. They are carefully crafted and fill the lacuna in the legislation. The Bill, as drafted, assumes there are no children of same-sex relationships. On whether the issue is dealt with in this Bill or another, the Minister has not been clear as to his intentions in this regard and I raised this question on Report Stage. For example, amendment No. 64 simply provides for the court to have regard to the fact that when a partnership is dissolved, provisions that the court considers proper, having regard to the circumstances which exist, will be made for any dependent child or children of the civil partners. It is very light, sensible and appropriate.
I referred on Report Stage to the judgment of Miss Justice Elizabeth Dunne in the Zappone and Gilligan case. She stated that undoubtedly people in the position of the plaintiff, be they same-sex or heterosexual couples, can suffer great difficulty or hardship in the event of the death or serious illness of the death of his or her partner and that it is hoped that the legislative changes to ameliorate these difficulties will not be long in coming. She went on to say that ultimately it is for the Legislature to determine the extent to which such changes should be made.
I also referred to the judgment of Mr. Justice Hedigan in which he speaks about the de facto family. He stated that it seemed to him that the State had a strong interest in the recognition, maintenance and protection of all de facto families which exist since they are inherently supportive units, albeit unrecognised by the Constitution. In terms of children not following through, there is a lacuna. The general principle of recognising the relationships of same-sex couples and cohabitants confers dignity on them by acknowledging their worth and, as Mr. Justice Hedigan stated, the strong interest in maintaining and protecting all de facto families. For too long that has been denied.
I support the amendments, although I do not expect the Minister to accept them because he has set his face against all of the amendments. I hope, however, that he will indicate whether he intends to address the issues raised by revising the Guardianship of Infants Act or other legislation.
Senator Rónán Mullen: I find I have conflicting attitudes to the amendments. I am inclined to support Senator Norris’s amendments. As I have consistently supported the principle that our legislation should be child rather than adult centred, it is difficult to argue against including the concept of a dependent child in amendment No. 2. The wording proposed in amendment No. 22 in regard to any dependent child of either civil partner appears to recognise the possibility that there is a child from a previous relationship. Amendment No. 63 is similar and, as such, deserves our support. However, I oppose the Labour Party amendment because its drafting is poorer and refers to any dependent child or children of the civil partners.
Those who emphasise the importance of putting children’s welfare at the centre of policy have rightly identified certain shortcomings in the Bill in terms of its failure to consider the needs of children. However, it is more difficult to get them to engage adequately in the debate on the context in which we should provide for children in the first place. It is undoubtedly the case that some children will be cared for outside marriage or the society of their two parents. Similarly, there will be cases in which same-sex couples care for children who are the offspring of one of the partners. However, I do not want children’s welfare to be used, whether accidentally or deliberately, to buttress the argument for making alternative relationships to marriage equally valid in the eyes of the State and society ab initio. In that regard, I understand why the Minister is keeping the issue of children largely separate from this legislation.
In the context of our general discussion on equality, it is interesting to note that our adoption laws provide that in nearly all situations a married couple shall seek to adopt. A single person is allowed to adopt in special circumstances. This is the context in which same-sex couples are often assessed for adoptions. When the legislation was debated in the Dáil in the early 1990s, however, the concept of special circumstances was taken to mean exceptional situations. I understand the example outlined was that of a single person working in an orphanage abroad who wanted to adopt a child. When we are rushing headlong, we can conveniently forget that there are places where our law deems it appropriate to make distinctions.
In regard to the needs of children, I read with interest what the Ombudsman for Children had to say. I disagree with her approving citation of the Colley report on the extension of consideration to adopt any child to same-sex couples because I do not believe this is in the best interests of children. I note, however, that she discussed the need for further measures to support children, including special guardianship orders. She made the point that such orders could be beneficial to children in a range of circumstances beyond those immediately relevant to civil partnership such as step families, families reorganised following divorce or the children of a widow or widower and that an argument could be made in favour of addressing this issue by means of other legislation.
To some degree, this offers us an answer to the puzzle. Instead of lumping together ostensibly well intentioned measures aimed at protecting the welfare of children in civil partnership legislation in a way that might cause confusion about the State’s intentions for children, it would be better to legislate at all times from a child-centric perspective. Just as I have argued that civil partnership should be available to all couples in caring dependent relationships who have made sacrifices for each other, our provisions for children should be included in separate legislation in a way that they are not confined to civil partnerships. This would make it clear that our primary and sole motive was securing the welfare and best interests of children.
It has been suggested on occasion that children are more bereft than is actually the case. It is possible, for example, under section 7 of the Guardianship of Infants Act to appoint a testamentary guardian where a non-biological parent is in a partnership of the kind we are discussing. For these reasons, while there is a strong case for making child-centred amendments to the Bill, perhaps an even stronger argument can be made for looking at it as a separate matter precisely because it is not only in the context of civil partnerships that there are gaps in the welfare and well-being of children.
Senator Jim Walsh: I agree the amendments are important. They go to the core of the reservations people have about aspects of the Bill, including those who have children in loving and caring same-sex relationships. There is a temptation in dealing with such sensitive issues to sidestep them, but, while that is wise in some instances, it is also dishonest. I concur with the view of the previous speaker that the focus in this area should not be on the interests of same-sex couples or adults of any particular gender but should centre on the child. For this reason, I do not embrace the notion of gay adoption. I know there are good gay couples who have children and I have no doubt the children in question are well cared for but, as the Minister acknowledged, children have an entitlement, where possible, to a mother and father.  This is recognised in the Constitution and, as Senator Mullen correctly noted, in our adoption laws. We should have a hierarchy of adoptees and preferences in the interests of the child.
I referred to reports that were done in the United States and Britain, especially in the former, with regard to children in various relationships. I am sure those countries have the same multiplicity of relationships as we have in this country. The reports in question clearly indicate that children reared by their mother and father tend to have better outcomes in a range of areas. One of my colleagues in the House took some umbrage at this point and may have understood it to be a criticism of single parents. I came from a single parent family. In the past two decades, I have seen many young girls who were single mothers sacrifice careers and give full and absolute attention to the rearing of their children. It is commendable that they chose to do this and many of their children have turned out to be excellent citizens. That is not the point, however. A child who has the complementarity of the influence of a male and female — his or her mother and father — as he or she grows up through childhood, adolescence and into adulthood has better prospects. This is the issue on which we should focus.
I was appalled the other evening on “The Frontline” television programme to hear the chairman of the Law Reform Commission dismiss as insignificant the surveys to which I referred. A young man in the audience asked whether the judge was dismissing evidence. I raise this because I have listened not only in this area——
Senator Jim Walsh: No, I am dealing precisely with issues related to children, which are to the core of all the amendments. My concern is that those in pivotal, influential positions should be objective, irrespective of what role they occupy. I was amazed to receive a report from the Ombudsman for Children dated July 2010 given that the heads of this Bill were published in summer 2008. It is astonishing that she is only now making her views known on the legislation. We need an explanation for this.
I noted the Ombudsman for Children’s report indicates that, in producing further recommendations to be submitted to the Law Reform Commission, she will rely on a survey which has been undertaken by Marriage Equality. While I have the height of respect for the good people involved in that organisation, if we are serious about examining these issues of fundamental importance to the development of society, we must do so with independence and absolute objectivity. Not only should this be the case but it should be seen to be the case.
Similarly, a spokesperson for the Equality Authority stated that this Bill is only a stepping stone towards what it seeks to achieve, namely, marriage equality. As I stated earlier, the individuals to whom I refer are all recompensed from the public purse.
Senator Jim Walsh: ——which protects the interests of the family and children and there is an onus on everyone to uphold it. I appeal to the Minister to review these appointments given the emphasis he placed on Legal Aspects of Family Relationships, a paper published by the Law Reform Commission. If the commission’s members are not objective, only one outcome will be possible and the traditional family will not be considered.
Senator Rónán Mullen: I ask the Leas-Chathaoirleach to consider that this House has a distinguished reputation for having debates which are adventurous and examine issues in a more considered manner than the other House. While some people may not accept that, it is a reputation the House enjoys. The Leas-Chathaoirleach will curtail and truncate this reputation if he heeds voices that wish to cut short Senator Walsh who is in order in speaking about——
Senator Jim Walsh: On the amendment, my concern is about children. I am highly critical of people with a driven agenda being appointed to positions in which they can have adverse effects on children. That should not be permitted and the State is not fulfilling its obligations in that regard. I make no apology for making that criticism. This issue is related to the adoption issue which is fundamental to what is being discussed.
Senator Ann Ormonde: I did not speak on Second Stage, although I had hoped to do so. While I believe in the principle of the Bill, I am concerned about an anomaly in the area of the protection and welfare of children. The Minister indicated he would revisit this issue and Senator Mullen referred to child centred legislation. The Law Reform Commission will publish a report on how children will be protected. Will the Minister revisit the Bill on the issue of the protection of children? My only concern is that children may not be protected, specifically children from a previous relationship who find themselves disadvantaged as a result of the legislation. While I welcome the Bill, I am concerned about the protection of children.
Senator Lisa McDonald: The amendments, as drafted, have some merit, as does Senator Mullen’s contribution. For too long, we have swept under the carpet issues related to children and their welfare. I do not want to say there is blood on many people’s hands on that issue, but we do not have a proud history in the manner in which we have dealt with children’s rights. As a matter of urgency we need to bring forward the amendment to the Constitution enshrining children’s rights. We need to review the area of the de facto family cohabitants. We need to be upfront and realise that biologically gay people can have children. As I said on Second Stage we do not wish to create children of a lesser god and we need to ensure those children are protected. If our past has taught us anything it is the need to ensure that children are protected for the common good. There is great merit in parking this issue to one side, but not for long. We need to move on it immediately in separate legislation.
Senator David Norris: Yes, very much so. It is a directly relevant element. It is the practical question of payment and financial support. That is in the first amendment. Some of the others deal with guardianship and so on. I am parking to one side the question of adoption and whether single parents are capable of doing the job or whether two parents are needed. I am just considering the question of financial support, which is what this amendment addresses. I would be surprised if anyone on either side of the House questions the fact that all the indicators and sociological surveys demonstrate that financial security is an important factor in developing a child’s emotional security and welfare. For that reason I welcome the moderate tone adopted by my colleagues who take a different view on this. It slightly surprises me.
We are all capable of unfortunate sentiments and occasionally I indulge in them myself. I will not name anyone, but with regard to impugning the motives of people, I remember people not too far from me indicating that they wanted to impugn the motives of scientists by saying they were motivated not by humanity but by an interest in fame and wealth. That was actually impugning. I very much welcome that that kind of thing has not been engaged in here tonight. For that reason, for the time being I will suspend this hand-written note that I made from radio broadcasts of other unfortunate comments made in the area of this general Bill. It is a temporary suspension, but I do so as an earnest of goodwill so that we can all get on with the debate without name calling.
Senator Ivana Bacik: I wish to clarify a number of points on these four amendments, in particular amendments Nos. 63 and 64. I will stick to points on those amendments and not stray into other territory by mounting attacks on anyone at all. In essence these amendments are child-centred. They are about trying to ensure the rights of existing children — some of whom are now adults — who were brought up by gay couples in loving families where they deserve the same recognition as children brought up in any other type of family.
I believe Senator Mullen was critical of amendment No. 64. That amendment is not poorly or shoddily drafted. It is very carefully drafted to ensure that it refers to the child or children of the civil partners. A child or children of a civil partnership may not be the biological or adopted child or children of either civil partner in fact. We can all think of examples. There is one very high-profile couple who have children who are not their biological or adopted children. We need to be careful to be inclusive in our definitions and that we cover all children.
We also need to ensure our laws are extensive enough. Senator Mullen referred to the testamentary guardian provision. While I am very much aware of that provision, it only applies where one of the existing guardians or parents dies. One needs to have made provision in one’s will for testamentary guardian. That is the nature of testamentary guardian. Clearly it is not adequate to cover guardianship rights of a child to his or her guardian where the partner is alive. That is why I was careful to give the example of a civil partnership that breaks up and a non-birth or non-adoptive parent is the one of the civil partners. In that case the child will have no right of access to that parent — someone he or she has always regarded as a parent — because of the absence in our law on guardianship.
I very much welcome Senator McDonald’s comments. She is right that we need to address all these issues. Perhaps it will be in some other legislation. Senator Regan has already specifically asked the Minister, if he is to introduce this legislation on the rights of children of same-sex couples and in other situations, when he will do so. I acknowledge that special guardianship orders have relevance considerably beyond civil partnership. That is why, with the support of Senator Norris, I tabled an amendment to the Adoption Bill about special guardianship orders. I am well aware of them and am familiar with them from Britain. I used the model of the British legislation. The provision is commonly used there where children are in long-term foster care. I have practised in this area and I know about it. When a child is in long-term foster care and wishes to have a more permanent relationship with the parent, the special guardianship order is a means of doing so that is short of adoption, which means the child does not break the tie with the birth parent. It fulfils a very specific role, but in a range of different areas, for example, long-term foster care. It could also fulfil that role for civil partners.
As we know very well and as the Minister of State, Deputy Barry Andrews, acknowledged during the debates on the Adoption Bill, many gay couples are engaged in foster parenting for the HSE and doing an excellent job. There is no reason not to extend adoption rights to gay couples. I know that is addressed in another amendment. I have strayed somewhat, for which I apologise. Critically, these four amendments are simple and straightforward. They seek to make provision for the dependent child or children of civil partners. Amendment No. 64, which we drafted, simply makes that provision in section 110, which already provides that where a court is making a grant of decree of dissolution of civil partnership, the court must have regard to whether proper provision has been made for the civil partners. We have simply added in “for any dependent child or children”. Senator Norris’s amendment No. 63 is to the same effect. These are very simple and provide a safety net for a child of a civil partnership in the event of dissolution.
Senator Rónán Mullen: I compliment you, a Leas-Chathaoirligh, on allowing Senator Bacik the leeway because her contribution was much more coherent as a result of her being allowed to discuss in interesting detail the issues on guardianship. I want to encourage you along that route because we will have a more informative debate if we do it that way. I also compliment Senator Norris, but I encourage him not to be slow to bring statements, whether from hand-written notes or otherwise, into the debate. No one would like him to be seen to have a chilling effect on the contributions of fellow Seanadóirí.
Senator Rónán Mullen: It is much better to do bring it all out. Bring it on, as they say. If there is anything that requires clarification, I am sure the Senators so impugned will be delighted to respond with precisely what they mean.
Senator Rónán Mullen: I know you will want to be very fair in allowing it to me. Senator Walsh was correct in pointing to the need for objectivity when it comes to assessing what is in the best interests of children. In that regard I, too, was surprised by the comments of the president of the Law Reform Commission. I recall an occasion when a previous president of the Law Reform Commission lost his job because he dared to express a view on the abortion issue. As we know, he subsequently settled a case. When people pooh-pooh evidence, it worries me as to what extent any of us would get any respect were we to approach the Law Reform Commission with any kind of evidence.
Likewise, I had not considered the timing of the report of the Ombudsman for Children, but I would prefer if, generally speaking, personages such as the president of the Law Reform Commission and the Ombudsman for Children would confine themselves to assisting us within our constitutional apparatus. To recommend, for example, the widening of the law to provide for applications by same-sex couples for adoption would be to go beyond the requirements of the Constitution. Therefore, I think one is justified in questioning the appropriateness of that particular recommendation being made.
In respect of what Senator Bacik said about guardianship, we must be careful. It is agreed that there is a wide category of situations where something may have to be done for children in respect of guardianship. However, things are different in circumstances where a non-married biological father just has the right to apply to be considered for guardianship. Let us be very careful of doing anything under the heading of civil partnership that would undermine the child’s primary right, which is to the care and society of his or her biological parents as far as possible.
Internationally, it cannot be said that there is anything like a recognised human right to same-sex marriage or same-sex adoption. There has been correspondence in that regard. Last year, Amnesty International sought to bring the case for same-sex marriage and adoption under the international human rights architecture. In fact, it is patently clear that the references are to the rights of men and women of marriageable age to marry and to found a family. Those terms “men and women” are used quite distinctly, because there are more general references to “people” or “persons” elsewhere in those human rights instruments. The very specificity of the reference to men and women suggests it was clear what was intended. None of the contracting parties sought to enter protocols or distinctions when these rights instruments were being drawn up.
It is important that we have a debate about where the best interests of children lie. There will be other times in this debate when we consider the appropriateness of people making arrangements with surrogate parents or sperm donors to bring children into the world so that they may parent. I will certainly be opposing any sense of a right to have a child under that heading, but that is all in the background of what we are discussing here. In trying to secure the best interests of children, we must not be blind as to what are the ideal and preferred circumstances in which children come to be parented. We cannot be bleeding hearts about the best interests of living children and totally neutral about the circumstances in which children come to be parented. We have to open our eyes and take one hard look at what the evidence has to tell us in that respect.
Senator John Hanafin: I agree with those Senators who express the view that the ideal situation is a loving and caring relationship for the child with a mother and a father. If that is a biological mother and father, then all the better, but if not, then it should be an adoptive mother and father because that is as nature has given it to us. Given that nature would have some interest in this matter, we should send a clear message for the future in that regard. There are many scientific developments that allow the development of children, be it surrogacy or sperm donors, so we will have to come back to this issue and I ask the Minister to be cognisant of what I have suggested.
I also share Senator Mullen’s point about the list that may or may not be produced. Things seem to have gone full circle. It was Joe McCarthy who had a list that he might produce in certain circumstances. If Senator Norris has a list, he should just produce it. I think we can stand up for ourselves.
Senator Jim Walsh: That is correct. They deal with the issue of children, which includes the guardianship issue to which other speakers have referred. There are issues that need to be carefully evaluated and examined. We have to be mindful of where children bond in a relationship. If civil partnership had gone on over a number of years and children had been living in a good, low conflict environment, that should be taken into account. It cannot be taken into account without regard to the biological fathers. There are many problems with that.
These complex issues should be examined fairly, openly and objectively. It is essential that we get commissions and vehicles that will do that. If I want to count my chickens, I will not send the fox in to do it for me. We need to be careful with who we put in charge of these jobs on behalf of the State.
Deputy Dermot Ahern: I have been somewhat of a bystander during this debate on children. I have no doubt this Bill will be tested in the courts at some stage, so I think it is appropriate I outline the reasoned view of the Government of the proposed amendments.
Under the Family Home Protection Act, a spouse may be considered by the court reasonably to withhold consent to the conveyance of the family home, where there are dependent children of the family. Amendments Nos. 2 and 22 propose to impose the same restrictions on the conveyance of the shared home of civil partners where there is a dependent child of one of the partners. The Bill does not impose these restrictions on a civil partner in respect of the child of the other civil partner. This is because the Bill’s scope is confined to the relationship between adult couples and the extensive range of mutual rights and obligations between them.
Section 110 of the Bill provides that a court may grant a decree of dissolution to civil partners, only if proper provision is or will be made for the partners, having regard to the circumstances of the case. Amendments Nos. 63 and 64 propose that in order to grant a decree of dissolution, a court will also have to be satisfied that proper provision is made for the dependent child of either of the civil partners. The Bill again makes no provision for children for constitutional reasons we have discussed at some length. This does not mean the court is required to ignore the needs and requirements of a dependent child or children of either civil partner. Section 110 requires the court to be satisfied that proper provision, having regard to the circumstances, exists or will be made for the civil partners.
The parental responsibilities of the civil partners represent a relevant circumstance for the court to consider in making ancillary orders on dissolution of the civil partnership. Section 129 sets out factors for the court to consider in making ancillary orders. This includes, under section 129(2)(l), “the rights of any person other than the civil partners but including a person with whom either civil partner is registered in a new civil partnership or to whom the civil partner is married, or any child to whom either of the civil partners owes an obligation of support”.
A dependent child cannot be regarded as a child of both civil partners, but safeguards are in place to require the courts to have particular regard to the parents’ responsibility to maintain dependent children. The Bill can go no further than this without, in our view, undermining the fine constitutional balance it attempts to achieve. The Bill has been rigorously scrutinised by the Attorney General during the drafting process and he has given advice related specifically to making provision for children within the Bill. In particular, he has advised that “Giving a familial unit that is not based on marriage a constitution — two adults who are co-parents of children — and authority — full parental powers, rights and duties of adoption — substantially identical to that of a family would probably be viewed as reneging on the guarantee to protect the family in the Constitution.”
My legal advice is very clear on these matters, and I have no doubt that introducing substantial legislative provisions relating to the children of a civil partner will upset the careful constitutional balance of this Bill. The issues surrounding children are extremely complex and I do not wish to ignore the fact that there are children being brought up by same-sex couples. However, this is not the Bill to deal with matters relating to children being cared for in non-marital households. The position of children in a marital family is different by virtue of the additional constitutional protection afforded to the marital family. Civil partners caring for children do not have the same constitutional protection, and we cannot impose obligations on them with respect to their parents’ children in the same way as is done in family law Acts. The Attorney General’s advice on the constitutional robustness of the Bill has been very clear that providing a formal legal relationship between a civil partner and children of the other civil partner may undermine the constitutional protection given to the family. The amendments would make the Bill more vulnerable to a constitutional challenge.
However, as Senator Bacik said, the Bill is not entirely silent on the matter of protecting children. Section 129(2)(l) the Bill expressly mandates the court in making financial and property orders to consider the rights of people other than either of the civil partners, specifically including any child to whom either of the civil partners owe an obligation of support. This is an important provision to protect children as the right of the child to the financial support and care of its parent must be considered before any financial or property order is made in favour of the civil partner. We believe the Bill achieves a balance in protecting children while respecting the special constitutional position of marriage.
When the Government looked at the formulation of the civil registration regime for same-sex couples, it was very mindful of the implications for children. As I stated previously, there is a very extensive body of law in regard to children generally in areas such as guardianship, maintenance, access and custody and many of these issues are faced by persons, whether they are married.
Some people have made the suggestion that there be express provision in this Bill, including the Ombudsman for Children. As I said when concluding on Second Stage, I received just last night the submission from the Ombudsman for Children. I had an opportunity during Second Stage to read the submission. I made the point that this Bill was published in June 2009 and I was somewhat surprised I only got that submission last night.
As I said, a significant examination is being carried out by the Law Reform Commission in regard to legal aspects of family relationships. It issued a consultation paper in September 2009 after the publication of the Civil Partnership Bill. It outlines the sort of issues that need to be discussed. It is an extremely complex and well set out paper. It does not refer to same-sex couples as such but refers to step-parents. Interestingly, the Ombudsman for Children is thanked by the commission for her valuable assistance along with other people. Obviously, she has had an input in this regard, although the paper is silent in regard to same-sex couples. That shows that one could not just deal with the issue of children of civil partners in this Bill without affecting a myriad of other types of relationships which children have with biological parents and adopted parents and the rights of the natural father who may not be part of the civil partnership.
There are also issues relating to guardianship. That is being considered by the Law Reform Commission. The consultation forms part of its third programme of law, involving the examination of the rights and duties of fathers in regard to guardianship, custody, access to their children and the rights or duties of the extended members of families, including grandparents and step-parents.
This document also examines the area of the law. The issue under discussion by the commission is whether Irish law should continue to distinguish between categories of fathers for the purpose of guardianship and so on. The commission sought submissions by the end of 2009 with a view to publishing its final report and recommendations within 18 months. If anyone in this House or outside it has not made a submission, in particular in this area, I suspect the Law Reform Commission would be able to take one on board in the context of the consultation it is carrying out.
In her submission, the Ombudsman for Children states she is mindful that I have outlined previously the reasons behind the Government’s approach to this Bill. She refers to the reasons we have dealt with it in this way, Article 41 of the Constitution, the desire to avoid addressing discrete questions relating to guardianship outside the wider context of reform of this area of law and the review currently being undertaken by the Law Reform Commission in regard to legal aspects of family relationship. She recognises that these issues relating to children are complex and interact with other areas of the law beyond the scope of the civil partnership Bill. That is the very reason the Government decided not to include specific provisions in regard to children of same-sex couples in this Bill. She concludes by stating that she fully appreciates that these matters relating to the rights and welfare of children in the Bill are complex and interact with areas of the law beyond the scope of the civil partnership Bill.
Senator Regan raised the issue of the de facto family. He referred to a High Court judgment which was appealed to the Supreme Court. In the Supreme Court judgment on that case, Mrs. Justice Denham stated:
I return to the point that has been raised time and again that the way the Supreme Court has adjudicated on the issues has confirmed that a family is made up of a heterosexual couple. That was confirmed as recently as December of last year.
In regard to children, I wish to make a number of points which again show the complexity of this issue and the reason the Government has made the restriction in regard to the Constitution. There must be material differences between civil partnership and marriage. I accept people do not accept that but it is the case in regard to the Constitution. Until the Constitution is changed, we must work within it.
The issue of children creates significant distinct issues relating to the welfare of the child, the constitutional position of the family, surrogate issues and other issues relating to IVF etc. and the rights of the natural father. Senators adverted the fact the children of a same-sex couple are children. However, the fact there are obviously other biological parents of the children involved raises the issue as to how their constitutional rights are dealt with. These are extremely complex legal and social issues and we believe would not be appropriately dealt with in this Bill. When Irish law assigns parental rights and duties, it already accords primacy to the biological link between the parent and the child. The law does not currently recognise the concept of what is sometimes termed social parenting. A child living with a same-sex couple can only be the biological and legal child of one of the couple, and the child’s other biological parent has rights in respect of the child, whether or not those rights are currently being exercised. This was confirmed recently in a Supreme Court case, JMcD v PL and BM.
If we were to deal in this Bill with children of same-sex couples and not deal with a similar situation, that could lead to the accusation of discrimination on the basis of sex. We would not be dealing with similar situations such as heterosexual step-families, whether based on marriage or not. If the Bill were to assign parental rights to a civil partner of a child’s mother in circumstances where the law would not assign equivalent rights to the mother’s heterosexual partner or husband, this would potentially discriminate between children based on the sexual orientation of the adults caring for them, as well as encroaching on the existing constitutional rights of biological parents.
Under section 129 there is protection for the children in relation to division of property. I go back to the point I made about the major report of the Commission on the Family, which I was party to when I was Minister for Social, Community and Family Affairs as far back as 1998. We could not come up with a definition of a family, given that even in those days there was a myriad of different relationships and, flowing from that, different relationships between those family units and children. Given that this is being dealt with by the Law Reform Commission in an ongoing consultation leading to a final report, I suggest to Senators and others outside the House who have made submissions on the Bill that the proper place to provide for dealing with legal aspects of family relationships is this consultation process. A composite response to looking after the best interests of children of civil partnerships is this vehicle and not a very focused Bill which would not be able to deal with the concurrent issues of the relationship and the constitutional rights with natural parents who would not be part of the same-sex couple.
An Cathaoirleach: The Guardianship of Infants Act is referred to in amendment No. 37 which proposes to insert a new section before section 90. Amendment No. 37 may be discussed with amendment No. 5. This point was raised and I merely clarify the matter.
Senator David Norris: In that case, I will return to these issues. However, I must address one matter to which the Minister referred, that is, the decision of the Supreme Court concerning a de facto family. I found the judgment of Mrs. Justice Denham surprising. In any event, I believe it has been overtaken by a recent decision of the European Court of Human Rights. The Minister will know better than I do that since the absorption into Irish law of the European Convention on Human Rights, a citizen can seek a declaration of incompatibility. It seems to me very clear that the Supreme Court view would be incompatible with the most recent judgment of the European Court of Human Rights which clearly states that there is in existence a de facto family.
With regard to the rights of the natural father, the Minister is absolutely right. I wish something could be done about it but the Cathaoirleach will say, perfectly appropriately, that this is not the place to do it. The natural father has virtually no rights whatsoever. Mr. John Waters has been properly eloquent on this subject for many years. I have supported him in this, as I have supported my colleagues who say one should consider the rights of housekeepers, siblings and so on. I was the first person to raise this and I got certain ameliorations of that situation from the then Minister for Finance, Deputy Charlie McCreevy. However, it is a separate issue and I saw it as such. It is now muddying the waters.
I have many other comments but under your direction, a Chathaoirligh, I will save them until amendment No. 37, except to say this is developing into a mature and interesting debate. The Minister, in particular, has been extraordinarily helpful in illustrating how very complex these issues are. They are not simple or easy to separate and I absolutely agree with him on that. However, if we are not able to accept in good faith the view of the Law Reform Commission and the Equality Authority, even after it has been disastrously politically tampered and interfered with, we are in trouble because we are not going to trust anyone at all.
The Minister will understand the human situation of people. I am sure he says, in all good faith, that this is not the appropriate Bill and we should wait for the Law Reform Commission. These matters have been pushed into so many commissions and long-fingered. We were told the Adoption Bill was not appropriate and we should wait for the Civil Partnership Bill. I refer the Minister to Seanad debates of March 2009, May 2009 and March this year.
Senator Ivana Bacik: I wish to make three brief points in response to the Minister. First, we are disappointed that he is not going to accept any of these four amendments or indeed any of the others on children. If that is not going to happen, the promise of a composite response with regard to the rights of children is welcome. Can the Minister give some indication of when that is likely to happen? He says the Law Reform Commission is likely to report within 12 months from now. Has any work been done preparatory to legislation following that? I know the Minister for Health and Children is working on legislation on IVF and assisted human reproduction. That might be part of it.
Third, I must take issue with the Minister’s point that there are constitutional difficulties with providing for dependent children. There is some very limited provision for dependent children in the Bill and that creates no constitutional difficulty. I do not see how some form of recognition for the children of gay couples could cause a difficulty with the Constitution. The Law Reform Commission, in its earlier work on cohabitants, stated categorically that there would be no constitutional difficulty with creating a bundle of rights and responsibilities for cohabitants so long as they were not greater than the rights of a married couple.
Senator Ivana Bacik: They could not be greater than the status of married people but they could be equivalent. Legal recognition could be given to a cohabiting couple, including a same-sex couple, to a level equivalent with marriage. I do not see how our amendments go anywhere beyond that. They are not even equivalent to marriage. I do not see how there could be a constitutional difficulty with those.
Senator Eugene Regan: The Minister has not spoken to the amendments. He has given a blanket rejection of any provisions in the Bill for the protection of children of same-sex relationships. He refers to careful constitutional balance. I do not quite get the point he is making. What the Minister said is that the design of the Bill is to deal with the relationship between adults, and the line he takes is that this does not conflict with the Constitution. However, he suggests that to provide any protection for the children of those relationships would be, in effect, unconstitutional, if I understand him correctly. I cannot fathom the premise, the basis or the logic of the argument which is being advanced.
The Minister said that this matter will be examined by the Law Reform Commission in a wider context. What he might confirm, perhaps, is whether he is happy that the chairperson of the Law Reform Commission is and will be objective in carrying out her duties, because it has been suggested by a Senator that she is not objective. That would be an important point to clarify.
Deputy Dermot Ahern: I do not accept Senator Regan’s contention that I did not address the points in regard to each of the amendments. I have full confidence in the members of the Law Reform Commission, including the chairperson.
|Bacik, Ivana.||Burke, Paddy.|
|Buttimer, Jerry.||Cannon, Ciaran.|
|Coffey, Paudie.||Coghlan, Paul.|
|Cummins, Maurice.||Doherty, Pearse.|
|Fitzgerald, Frances.||Hannigan, Dominic.|
|Healy Eames, Fidelma.||McCarthy, Michael.|
|McFadden, Nicky.||Norris, David.|
|O’Reilly, Joe.||O’Toole, Joe.|
|Prendergast, Phil.||Regan, Eugene.|
|Ross, Shane.||Ryan, Brendan.|
|Twomey, Liam.||White, Alex.|
|Boyle, Dan.||Brady, Martin.|
|Butler, Larry.||Carroll, James.|
|Carty, John.||Cassidy, Donie.|
|Corrigan, Maria.||Daly, Mark.|
|Dearey, Mark.||Ellis, John.|
|Feeney, Geraldine.||Glynn, Camillus.|
|Hanafin, John.||Keaveney, Cecilia.|
|Leyden, Terry.||MacSharry, Marc.|
|McDonald, Lisa.||Mooney, Paschal.|
|Mullen, Rónán.||Ó Brolcháin, Niall.|
|Ó Domhnaill, Brian.||Ó Murchú, Labhrás.|
|O'Brien, Francis.||O'Donovan, Denis.|
|O'Malley, Fiona.||O'Sullivan, Ned.|
|Ormonde, Ann.||Quinn, Feargal.|
|Walsh, Jim.||White, Mary M.|
Senator David Norris: It is clear the Government has won a victory and I deliberately front-loaded my concerns about some of the other issues involved in a general discussion on the first couple of amendments. That was the only vote to be called by me and it is perfectly obvious we will not have any more. It is very important that we get that out of the way in order that we can discuss the principles and the Minister’s view and urge people of goodwill who are in any degree moved to act within the parties. I am sure, for example, that many want to provide financial support for children with disabilities who are very vulnerable. There is not a single person in the House who would not want to see such children properly catered for. It is open to people of goodwill within the parties to urge the Minister to address this issue as rapidly as possible in another Bill. I am a realist and as such, I do not believe in wasting time, or at least I try not to do so. I have had my vote and have demonstrated that I am serious about dealing with this issue. I have ventilated and voted on the principles about which I am most concerned. For that reason, I will not challenge the section.
As this amendment was tabled on Report Stage in the Dáil, I will not press it here. It is to clarify an important point in that has been designed to preserve pension and other rights for partners of diplomats or members of the military posted abroad. It takes into account civil partners abroad while in the service of the State.
Senator David Norris: This is a most practical amendment. We can be very pleased that at a very early stage a Fianna Fáil Minister for Defence, Mr. David Andrews, indicated there would be full equality in the consideration of gay members of the Defence Forces. This is clearly a practical arrangement which applies not only to the Irish diplomatic and foreign service but also to those of other countries. I am aware of the Minister’s interest in the area of foreign affairs and he will know that a number of distinguished diplomats who represent other countries and who are resident in this city at present are not only gay but are involved in partnerships or married relationships which are recognised in their home countries. All we are doing in this amendment is reflecting the reality that exists. However, for the technical reasons to which I referred earlier, I accept it is highly unlikely that this or any other amendment will be accepted.
Deputy Dermot Ahern: The Senator misunderstands what is contained in the Bill. The terms used in the legislation are “ordinarily resident” and “domiciled” and they act as alternatives to each other. The court may have jurisdiction if a couple, or one member thereof, is ordinarily resident in the State or is domiciled here. Being ordinarily resident does not require that one need be present within the State at all times in the relevant period. However, some measure of residence within the State will be required.
It is difficult to understand why the Irish courts should have jurisdiction over a person whose domicile is not in the State and who is also not ordinarily resident here if a question arises as to his or her civil partnership status or if there is a dispute between him or her and his or her partner. Having one’s domicile here certainly does not require presence in the State. The argument is made that a person posted abroad in the service of the State for an extended period could lose his or her Irish domicile. This is a highly unlikely eventuality. To lose a domicile, a person must have actively decided that he or she is moving abroad permanently. It is very difficult to lose domicile in law. A person posted abroad by the Department of Foreign Affairs, for example, would not lose domicile. Furthermore, the ongoing links with the State are crystal clear. Members of the Defence Forces do not lose their domicile of origin merely because they go on overseas missions to Lebanon or wherever. The person in the Department of Foreign Affairs would, while abroad, still be paid and taxed by the State and would be working on its behalf. Much looser links than these are sufficient to establish domicile within the State. The amendment is designed to remedy a problem which, I respectfully suggest, is not encountered.
Senator David Norris: The Minister indicated that there might be some question of a particular, if fairly flexible, timeframe. Does he have in mind a timeframe within which residence or domicile might be established? In this regard it must be borne in mind that a question of domicile relating to a member of his party, who is also a Member of this House, has given rise to difficulties.
Deputy Dermot Ahern: No, there is no particular timeframe involved. One has a domicile of origin and if one wants to change this, one can then adopt a domicile of choice. In the context of the people to whom the Senator refers, namely, members of staff of the Department of Foreign Affairs, members of the Defence Forces and others in the employ of the State who are stationed abroad, they do not lose their domicile unless they make a conscious decision to the effect that they want to have a different domicile.
Deputy Dermot Ahern: The provision relating to what constitutes being ordinarily resident, which is also contained in the Bill, would cater for those people who are resident in Ireland as a matter of fact.
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