Report on Family Law Bill (NIA Bill 4/00)
COMMITTEE FOR HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY
COMMITTEE FOR FINANCE AND PERSONNEL
REPORT ONTHE FAMILY LAW BILL(NIA BILL 4/00)
Ordered by the Committee for Health, Social Services and Public Safety to be printed 28 March 2001 Report: 4/00/R (Health, Social Services and Public Safety)
FOREWORD BY THE CHAIRMAN OF THE COMMITTEE FOR
FINANCE AND PERSONNEL
On 6 November 2000, the Family Law Bill passed its Second Stage in the Northern Ireland Assembly and was referred to the Committee for Finance and Personnel for detailed scrutiny in the Committee Stage. Owing to the burden of work arising from bills already with the Finance Committee, an extension of the Committee Stage until 8 June was sought from and agreed by the Assembly.
Subsequently, it was agreed with the Chairman and members of the Committee for Health, Social Services and Public Safety that the Committee Stage of the Family Law Bill would be undertaken by that Committee under Standing Order 48(1). The reasons for taking this course of action were the Health Committee's general interest in children's legislation and the ability of the Health Committee to undertake the Committee Stage of the Bill within a shorter timeframe than would otherwise have been possible.
I am sure that all Assembly Members will welcome the fact that this Report has been completed well in advance of the extended deadline. On behalf of my colleagues on the Finance Committee, I am delighted to take this opportunity to thank the Chairman and members of the Health Committee for undertaking the Committee Stage of this important Bill and for completing the intensive work programme that has been required to produce this Report.
FRANCIE MOLLOY
Chairman
COMMITTEE FOR HEALTH, SOCIAL SERVICES AND
PUBLIC SAFETY: MEMBERSHIP AND POWERS
Powers
The Committee for Health, Social Services and Public Safety is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Standing Order No. 45 of The Northern Ireland Assembly. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Health, Social Services and Public Safety, and has a role in the initiation of legislation.
The Committee has the power to:
- consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
- approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
- call for persons and papers;
- initiate inquiries and make reports;
- consider and advise on matters brought to the Committee by the Minister of Health, Social Services and Public Safety.
Membership
The Committee has eleven members, including a Chairperson and Deputy Chairperson, and a quorum of five.
The membership of the Committee since its establishment on 29 November 1999 has been as follows:
- Dr Joe Hendron (Chairman)
- Mr Tommy Gallagher (Deputy Chairman)
- Ms Pauline Armitage
- Mr Paul Berry
- Mrs Joan Carson (was replaced by Rev Robert Coulter with effect from 11 September 2000)
- Ms Carmel Hanna
- Mr John Kelly
- Mr Alan McFarland
- Ms Monica McWilliams
- Ms Sue Ramsey
- Mrs Iris Robinson
- Rev Robert Coulter (replaced Mrs Carson with effect from 11 September 2000)
All correspondence should be addressed to The Clerk of the Health, Social Services and Public Safety Committee, Room 419, Parliament Buildings, Stormont, Belfast, BT4 3XX. The telephone number for general enquiries is: 028 9052 1932.
The Clerk's E-mail address is: george.martin@niassembly.gov.uk
TABLE OF CONTENTS
Report
Report on the Family Law Bill
Minutes of Proceedings Relating to the Report
List of Witnesses that gave Written Evidence
List of Witnesses that gave Oral Evidence
Written of Oral Evidence
Report on the Family Law Bill (NIA Bill 4/00)
Report on The Family Law Bill
(NIA Bill 4/00)
GENERAL
1. Although the Minister for Finance and Personnel is the sponsoring Minister for the Family Law Bill, it was agreed between the respective Chairmen of the Finance and Personnel Committee and the Committee for Health, Social Services and Public Safety that the latter would take the matter forward. This arrangement was agreed because a major objective of the Bill is to make appropriate amendments to the Children (Northern Ireland) Order 1995 in order to make further provision for the acquisition of parental responsibility under Article 7 of the Order.
2. The Committee is grateful for the opportunity to scrutinise the Bill, as provided for under Standing Order 48 (1) of the Northern Ireland Assembly, which covers instances where legislation due for consideration appears to fall within the remit of more than one Statutory Committee. Accordingly, it extends its appreciation to the Committee for Finance and Personnel for its co-operation on this matter.
3. The Committee on 7 March, 14 March, 21 March and 28 March 2001, considered the Family Law Bill (NIA 4/00) that was referred for its consideration.
4. It had before it the Family Law Bill and the Explanatory Memorandum to the Bill (NIA 4/00-EFM), as introduced.
5. Mr Mark Durkan, Minister for Finance and Personnel, made the following statement under section 9 of the Northern Ireland Act 1998:
"In my view the Family Law Bill would be within the legislative competence of the Northern Ireland Assembly."
6. The Bill covers three broad areas. First, it amends the Children (Northern Ireland) Order 1995 by providing that an unmarried father who jointly registers the birth of his child with the child's mother shall have parental responsibility for that child. It also provides for a step-parent to apply to a court for an order conferring parental responsibility on the step-parent in relation to a child of his or her spouse. In both cases, that parental responsibility may be terminated only by court order.
7. Secondly, it provides that a man shall be presumed to be the father of a child in certain circumstances: namely, if (a) he is married to the child's mother; or (b) he has been registered as the child's father in the Register of Births in any place in the United Kingdom. The presumption that a man is the father of his wife's children already exists at common law and (a) above simply puts this into statutory form.
8. Thirdly, it amends the Family Law Reform (Northern Ireland) Order 1977 by enabling courts to direct the taking and testing of bodily samples for the purpose of resolving questions of parentage. Courts are currently confined to directing the taking and testing of blood only.
CONSIDERATION OF THE BILL
9. The Committee held two oral evidence sessions in March 2001, taking evidence from the Office of Law Reform (within the Department of Finance and Personnel) and the Belfast Family Proceedings Court Standing Committee. It also wrote to 26 individuals and organisations to request written submissions. The Committee was pleased to receive 15 wide-ranging written submissions that addressed the issues in the Bill in considerable detail and from a number of perspectives. The entire evidence has been included in the report. The Committee wishes to place on record its gratitude to all of the witnesses for the quality of submissions received.
10. The background to the Family Law Bill lies with the Government's recognition of the changing patterns of family life, with fewer people getting married as more and more people choose to live together. In 1997 some 6449 children were born outside marriage in Northern Ireland, 26.6% of all live births. It is against this backdrop that the Office of Law Reform drafted legislation to review two aspects of family life in Northern Ireland: parental responsibility for children and court procedures for determining paternity. These are separate but linked issues affecting children and their parents.
Clause 1 (Acquisition of parental responsibility by father or step-parent)
11. The new concept of parental responsibility, which was introduced into Northern Ireland by the Children (Northern Ireland) Order 1995 emphasised that parents not only have rights in respect of their children but responsibilities towards them. The Order defines parental responsibility as "all the rights, duties, powers and responsibility and authority which by law a parent has in relation to the child and his property."
12. However, at present under the Children (Northern Ireland) Order 1995 unmarried fathers only acquire parental responsibility for their children by entering into a parental responsibility agreement with the mother, or by obtaining an order from the court. The level of take-up through these mechanisms has, though, been very low since the Order came into force. For example, in 1999 fewer than 200 parental responsibility orders were made in respect of unmarried fathers.
13. Nonetheless, this low uptake would not appear to represent unwillingness on the part of unmarried fathers to assume responsibility. In Northern Ireland in1997 there were 6449 live births outside of marriage of which 63.6% were registered jointly by the mother and father of the child. And this reflects a growing trend. Under current legislation, however, the unmarried father's registration of the child's birth does not confer upon him parental responsibility for his child. As a result, the vast majority of unmarried fathers have no formal legal relationship with their children.
14. The provision in the Bill for unmarried fathers to acquire parental responsibility by jointly registering the birth of the child reflects an increasing perception that the present discrimination between the position of married and unmarried fathers is unfair and should be remedied. It is felt that the proposals in the Bill will significantly strengthen family relationships in Northern Ireland by creating a legal relationship between children and their unmarried fathers.
15. Some witnesses argued that the Bill's provision for unmarried fathers to acquire parental responsibility continued to discriminate against them on the grounds of both gender and marital status. They maintained that the Bill did not really improve the position of the unmarried father, as he is still dependent on the consent of the mother as to whether or not he has parental responsibility for the child. While married fathers and natural mothers, who are automatically vested with parental responsibility, can only lose it where the child is made the subject of an adoption order, the unmarried father must jointly register the birth of the child, enter into a parental agreement or make an application through the courts. Moreover, he can be divested of his parental responsibility by a court order whereas the unworthy married father or mother does not face such a prospect.
16. It is generally acknowledged that this is an area fraught with difficulty involving competing human rights and equality arguments. The Committee acknowledges, however, that while the Bill deals with the rights of unmarried fathers, these rights are themselves firmly embedded in the rights of children and mothers. It noted the concern raised by some witnesses that some unmarried mothers would have if the unmarried father of their child were given automatic responsibility for their child. That child may have been born in the context of an abusive and violent relationship, though it is conceded that the same could equally occur in a marital relationship.
17. The Committee accepted, on balance, the arguments made by the Office of Law Reform that the United Kingdom's family law conforms to European human rights standards. The McMichael v UK case is particularly relevant in that the European Court ruled that an unmarried father's rights were not infringed by the fact that he did not have automatic parental responsibility. The Court took the view that there needed to be some test to protect children and mothers from unmeritorious fathers, and the test was marriage. Any differential treatment between parents on the basis of gender or marital status within articles 8 and 14 of the European Convention on Human Rights is reasonably justifiable with reference to the need for protection for mothers, fathers and children.
18. The Committee also acknowledges, however, that as society evolves it may not always be the case that current domestic legislation will conform to human rights standards. This area will need to be closely monitored.
19. Favouring a degree of caution, the Committee believes that the granting of parental responsibility to unmarried fathers who jointly register the birth of their child with the mother strikes a fair balance between the sometimes conflicting rights and interests of children, mothers and fathers, whether married or unmarried. The unmarried father who jointly registers the birth of his child is making a public commitment, just as a married father has publicly demonstrated a commitment to his wife and subsequently the mother of his children.
20. The Committee was content with the provision in clause 1 for a step-parent to be able to apply for a court order conferring parental responsibility for a child of his or her spouse. It accepts that in many second marriages a strong bond is built up between a step-parent and child, who may have lost contact with the natural parent. From a practical perspective, in terms of taking decisions with the other parent on the child's education and welfare, for example, it is important that a legal relationship be established between the step-parent and their "new" children.
21. Some witnesses argued that the granting of parental responsibility to step-parents could lead to the absent natural parent being sidelined, which could be potentially destabilising for the child; and that this should only be extended with the agreement of both natural parents. The Committee, however, accepted that the fact that the natural parents will continue to have parental responsibility and can alert the court to objections they might have, which it must take on board, provides for fair representation.
22. The Committee was content that article 8 of the Children (Northern Ireland) Order 1995 provides the mechanism for the court to arbitrate in disputes among the parties about decisions that will affect the child. It was also reassured by the Office of Law Reform that, in accordance with article 3 of the Children (Northern Ireland) Order 1995, courts will automatically place paramount consideration on the best interests of the child in deciding whether to make a parental responsibility order.
23. Members were satisfied that the Bill provides a mechanism for the courts to divest unmarried fathers and step-parents of parental responsibility, which was generally viewed as a sensible safeguard to protect children and mothers from violence, abuse or intimidation. This will complement existing legislation that deals with violence and abuse in family situations.
24. The Committee considered the arguments made by some that the Bill should equally provide for married fathers and natural mothers to lose parental responsibility where the particular circumstances warranted it. However, it was satisfied that, in such cases, there is provision for the courts to decide on the issue of parental responsibility if there is a need to make a prohibited steps order or a specific issues order. If there is concern about a child's welfare the child will be taken into care, and parental responsibility will lie with the Health and Social Services in addition to the parents. Ultimately, social workers can apply to the court to have a child adopted if they feel the case is so bad that no amount of work will help the family function properly. This extreme action divests married parents of parental responsibility.
25. The Committee considered the arguments made by some witnesses for the provisions of the Bill to have retrospective effect, but it accepts the more widely held view that retrospectivity is a legal principle to be avoided if at all possible. If the legislation were to have retrospective effect, it could impose unfair obligations on an unmarried father who had not registered his children with the intention of securing parental responsibility. On the other hand, if there is an earlier child for whom there was no assertion of parental responsibility, an unmarried couple can still make a parental responsibility agreement in respect of that child, thereby giving all their children the same status.
26. Members were in full agreement that as the rights of children lay at the heart of the Bill, there was consequently a clear duty to protect their best interests. The Committee is therefore pleased that the Office of Law Reform has agreed to take forward its request for amendments to Clause 1 that will specify the "best interests" test as a factor to be considered by the court when making an order conferring parental responsibility on an unmarried father or a step-parent.
27. Several witnesses argued persuasively that there ought to be a strong link between the acquisition of parental responsibility and providing emotional and practical care, direction and guidance to the child. Some proposed that the definition of parental responsibility in the Children (Northern Ireland) Order 1995 be amended to achieve a greater balance in relation to the caring and controlling aspects of parenting.
28. While the Committee saw considerable merit in the argument for a change in the definition of parental responsibility, it accepts the rationale of the Office of Law Reform that to redefine parental responsibility would also affect contact and residence cases and cases in the public care system, and would require further wide consultation as it would have effects outside the Family Law Bill. Academic authorities attest that the current provision works well in practice. There is also significant jurisprudence in case law of what parental responsibility means. Moreover, it was argued that to define tightly such a concept might mean restricting a court's latitude at a later date.
29. Having accepted the arguments against redefining parental responsibility, the Committee agreed with the many witnesses who stressed the crucial importance of developing an effective, high profile and widespread publicity campaign about the implications of the Bill, particularly in relation to unmarried fathers who jointly register a child's birth. A public information brochure on how to obtain parental responsibility should be made available to all new parents, which sets out in clear terms what this entails. The publicity campaign must place an equally strong emphasis on rights and powers, and the duty to provide emotional care, direction and guidance to the child. The importance of showing respect and support to the mother should also be highlighted.
It was agreed that Clause 1 should stand part of the Bill on the understanding that the Minister will bring forward an amendment relating to the "best interests" principle where the court orders that an unmarried father or step-parent shall have parental responsibility.
Clause 2 (Presumption of parentage)
30. The Committee was content with Clause 2, which deals with the common law presumption that a man who is married to a woman between the conception and birth of the child is the father of the child and places it on a statutory footing; and the further common sense provision that a man's registration as the child's father in the Register of Births anywhere in the United Kingdom is an acknowledgement of paternity. It was content that the Bill provides for the presumption of paternity in both instances to be rebutted on the balance of probabilities.
It was agreed that Clause 2 should stand part of the Bill.
Clause 3 (Tests for determining parentage)
31. The Committee welcomes Clause 3 as a technical measure that provides for the courts in Northern Ireland to have future additional powers in order to help determine the parentage of a child. The new provision for courts to direct that bodily samples, such as saliva or hair, may be taken for the purposes of scientific tests to determine parentage is clearly a less invasive and distressing procedure, especially for children, than existing mechanisms, which involve taking blood samples in order to determine parentage.
32. The Committee did, though, share the concern of some witnesses in relation to the rights of the child on scientific tests for determining parentage. Members felt that it was a crucial human rights issue that the views of children, particularly as they grow older, should be taken into account where the question of parentage arises in civil proceedings cases. The Committee was satisfied by the Office of Law Reform's assurance that the court will take account of those views when deciding whether to direct that a parentage test be carried out. Article 3 (3) (a) of the Children (Northern Ireland) Order 1995 states that, when dealing with the "best interests" test, the court shall have regard to the wishes and feelings of the child concerned, taking account of his age and understanding.
33. The Committee also acknowledged the point made by the Office of Law Reform that just as a child under the UN Convention on the Rights of the Child is entitled to know who his or her parents are, parents have a interest in determining who their children are, especially in the light of their financial obligations to them. So, while the best interests of the child are certainly a factor here, they fall to be considered within the overall circumstances of the case.
34. While concern was raised by the Committee about who is responsible for meeting the costs of tests for determining parentage, it was satisfied with the response from the Office of Law Reform that a general principle is that the costs follow the event. In other words, if a parent with care institutes proceedings to obtain a declaration of parentage and is successful, then the absent parent who has disputed parentage will bear the costs. Similarly, if the Child Support Agency takes a case against an absent parent who disputes parentage and loses the case, the costs of obtaining DNA tests and associated legal costs would be borne by the Agency.
35. The Committee was satisfied that the court-directed tests are carried out by an accredited laboratory company, whose terms of contract requires its retention of samples for two months after which they are destroyed. The Committee accepted that the two-month retention period was reasonable to enable further tests or challenges to be made upon the tests prior to the court making a decision where parentage is disputed.
It was agreed that Clause 3 should stand part of the Bill.
Clauses 4 and 5 (Commencement and Short Title)
36. It was agreed that Clauses 4 and 5 should stand part of the Bill.
RECOMMENDATION
37. The Committee is content that the Minister will bring forward the agreed amendments to Clause 1. It does not propose to bring forward any amendments of its own.
DR J HENDRON MLA
Committee Chairman
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MINUTES OF PROCEEDINGS OF THE HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY COMMITTEE
WEDNESDAY, 7 MARCH 2001
ROOM 135, PARLIAMENT BUILDINGS
Present:
Dr J Hendron (Chairman)
Ms P Armitage
Mr P Berry
Mr T Gallagher (Deputy Chairman)
Ms C Hanna
Mr J Kelly
Mr A McFarland
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson
Apologies:
Rev R Coulter
In Attendance:
Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mrs V Artt ( Executive Support)
Mrs K McFerran (Administrative Support)
Dr Hendron took the Chair at 2:06 pm.
Public Session
4. Family Law Bill
A. Belfast Family Proceedings Court Standing Committee
Panel Member:
Ms Colette Bowman-McAlister
Ms Karen Fox
The Chairman welcomed the panel to the meeting at 2:20 pm, after which Ms Bowman-McAlister presented the Belfast Family Proceedings Court Standing Committee's view of the Bill followed by a question-and-answer session. The entire proceedings are recorded separately in verbatim minutes of evidence. The Chairman thanked the panel for their input, and they left the meeting at 3:29 pm. The meeting was suspended at 3:30 pm and resumed at 3:40 pm.
B. Office of Law Reform
Dept. of Finance and Personnel Officials: Ms Claire Archbold
Mr Neil Lambe
The Chairman welcomed the Officials to the meeting, after which Ms Archbold presented the background to the Bill and its rationale. The entire proceedings, including the Committee's consideration of the Bill, are recorded separately in verbatim minutes of evidence. The Chairman thanked the Officials for their input, and they left the meeting at 5:10 pm.
Clause 1 - The Department will consider the following amendment: in paragraph (2) (c), after "child" insert ", where this is in the best interests of the child."
Clause 2 - Agreed
Clause 3 - The Officials will advise the Committee as to who it is intended will be responsible for the costs of tests for determining parentage. They will also advise as to whether samples taken for such testing are to be destroyed immediately following the court's decision.
Clauses 4 and 5 - Agreed
The Committee will continue its consideration of the Bill, particularly in relation to a number of concerns on Clause 1, with the Office of Law Reform at a later date. In the meantime, following a concern raised about the inclusion of women's and children's groups in the consultation process, the Officials will, if possible, provide a full list of consultees on the Bill.
[Extract]
WEDNESDAY, 14 MARCH 2001
THE CAUSEWAY HOSPITAL, COLERAINE
Present:
Dr J Hendron (Chairman)
Ms P Armitage
Mr P Berry
Mr T Gallagher (Deputy Chairman)
Mr J Kelly
Mr A McFarland
Apologies:
Rev R Coulter
Ms C Hanna
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson
In Attendance:
Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mrs V Artt (Executive Support)
Mrs K McFerran (Administrative Support)
Dr Hendron took the Chair at 2:06 pm.
Private Session
6. Family Law Bill
i. The Chairman reported that his counterpart on the Committee for Finance and Personnel will be writing to the Speaker with a view to establishing a satisfactory Assembly policy on the handling of Bills brought through the Office of Law Reform.
ii. The Clerk will prepare an options paper for members' consideration in advance of the meeting scheduled for Wednesday, 21 March, which will be attended by Officials from the Office of Law Reform.
[Extract]
WEDNESDAY, 21 MARCH 2001
ROOM 135, PARLIAMENT BUILDINGS
Present: Dr J Hendron (Chairman)
Mr P Berry
Rev R Coulter
Ms C Hanna
Mr T Gallagher (Deputy Chairman)
Mr J Kelly
Mr A McFarland
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson
Apologies:
Ms P Armitage
In Attendance: Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Ms V Artt (Executive Support)
Mrs K McFerran (Administrative Support)
Dr Hendron took the Chair at 1:52 pm.
Private Session
3. Family Law Bill
The Chairman advised that Officials from the Office of Law Reform would speak to their written response providing further information on their oral evidence given to the Committee on 7 March 2001. The Committee continued its deliberations and considered an options paper setting out the consultees' various arguments on the Bill's main principles.
Public Session
Office of Law Reform
Dept. of Finance and Personnel Officials: Ms Claire Archbold
Mr Neil Lambe
The Chairman welcomed the Officials to the meeting at 2:40 pm, after which they spoke to their written response to the Committee's previous request for further information on aspects of the Bill. The entire proceedings are recorded separately in verbatim minutes of evidence. The Chairman thanked the Officials for their input, and they left the meeting at 3:10 pm.
Clause 1 was agreed with the proviso that the Department of Finance and Personnel bring forward amendments to paragraphs (2) (c) and (3) (1A) stating that unmarried fathers and step-parents should acquire parental responsibility through the courts where this is in the best interests of the child.
Clause 3 - Agreed
[Extract]
WEDNESDAY, 28 MARCH 2001
ROOM 135, PARLIAMENT BUILDINGS
Present:
Dr J Hendron (Chairman)
Ms P Armitage
Mr P Berry
Rev R Coulter
Ms C Hanna
Mr T Gallagher (Deputy Chairman)
Mr A McFarland
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson
Apologies:
Mr J Kelly
In Attendance:
Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mrs V Artt (Executive Support)
Mrs K McFerran (Administrative Support)
Dr Hendron took the Chair at 2:03 pm.
Private Session
6. Consideration of the Report on the Family Law Bill
The Committee deliberated.
Draft Report on the Family Law Bill (NIA Bill 4/00), proposed by the Chairman, brought up and read.
Ordered: That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 37 read and agreed to.
Resolved: That the Report be the Fourth Report of the Committee to the Assembly.
That the Report should include written and oral evidence from the following witnesses. (Annex 2)
Resolved: That the Report be printed.
[Extract]
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LIST OF WITNESSES AND ORGANISATIONS THAT
GAVE WRITTEN EVIDENCE
Page
1. Falls Women's Centre
2. Families Need Fathers (Northern Ireland)
3. Women's Aid Federation
4. The Minister for Health, Social Services and Public Safety
5. P. Drinan, Solicitor
6. The Chief Inspector of the Social Services Inspectorate
7. British Association of Social Workers (Northern Ireland)
8. CARE (Northern Ireland)
9. Association of Family Solicitors for Children
10. Northern Ireland Guardian Ad Litem Agency
11. National Society for the Prevention of Cruelty to Children (NSPCC)
12. Children's Law Centre
13. Belfast Family Proceedings Court Standing Committee
14. Committee on the Administration of Justice
15. Family Bar Association of Northern Ireland 61
Written Submissions
WRITTEN SUBMISSION BY:
THE FALLS WOMEN'S CENTRE
The Falls Women's Centre welcomes the opportunity to comment on the Family Law Bill in order to outline to you our serious concerns regarding the potential outcome of several clauses in the Bill.
Consultation process
We welcome the fact that additional organisations have been asked to comment on the Bill. The Explanatory and Financial Memorandum detail a range of organisations included in the original consultation process which includes men's groups, however, it seems strange that women's groups were not included in the process. This excludes a key constituency from commenting on the Bill and denies the Assembly important feedback on this issue. The absence of this vulnerable and disadvantaged group from the consultation process raises some concerns when the proposed action is aimed at addressing the perceived disadvantage of a dominant group: men. All groups affected by the proposed action should have their views sought.
Human rights
Background and policy objectives state the primary purpose of the Bill is to facilitate the acquisition of parental responsibility by unmarried fathers. It details the existing mechanisms by which this may presently be done. 1. By written agreement with the child's mother that has been registered at the High Court. 2. By order of the Court. It also notes that these mechanisms have been held to comply with the European Convention on Human Rights by both the domestic courts and the European Court of Human Rights, as a justified interference with family life in order to protect the rights of others, namely women and children from unmeritorious fathers. The main reason for seeking to alter this state of law is given as the low take up by unmarried fathers of the existing mechanisms for acquiring parental responsibility. However, the Bill fails to address the impact of this change against the need to protect the rights of women and children.
The Falls Women's Centre would argue that the acquisition of parental responsibility is primarily a children's rights issue. The United Nations Convention on the Rights of the Child (UNCRC), states, government
".shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment or exploitation including sexual abuse while in the care of parents, legal guardians or any other person who has care of the child."
Government can not ignore the potential for persons who should provide care and protection to a child to abuse that child. It should be satisfied that the law does not facilitate persons who should provide care and protection to a child to abuse that child. It should be satisfied that the law does not facilitate persons who currently exercise parental responsibility in using that status to act irresponsibly, negligently or abusively towards the child: nor can government give control over a child's life to people who do not provide care to the child unless they can be sure that such persons can be relied upon to act in the child's best interests.
The UNCRC also states, state parties must
".use their best efforts to ensure the recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern."
This article promotes equality in the context of both parents engaging in caring and raising the child and acting in the child's best interests. The government is also required to
" .respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by custom, legal guardians or other persons legally responsible for the child in a manner consistent with the evolving capabilities of the child, appropriate direction and guidance in the exercise of the child's rights as exercised by the convention."
Thus recognising the importance of parents, extended family and community to the child in order that the child's right to experience and maintain kinship be respected.
The United Nations Convention on the Elimination of all forms of Discrimination Against Women, states,
"State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations..."
and in particular to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and the development of the children; it being understood that the interests of the child is primordial consideration in all cases. The Falls Women's Centre believes it to be open to serious error if legislation which aims to be anti-sexist should be introduced without actively seeking women's views as to how equality in family life can be achieved.
Parental responsibility
Article 6(1) of the order defines parental responsibility as all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property. This means that any person who has parental responsibility has control over important decisions in a child's life, for example, where the child will be educated, his or her religious practice, whether to consent to medical treatment, etc. While the Bill proposes that the unmarried father acquire this legal status by jointly registering the birth with the mother; it imposes no requirement for the unmarried father to provide or intend to provide any emotional or practical care to the child. The FWC believes that this does not offer adequate protection to either the mother, who may be left with all the burden of care and only half the parental authority, or the child whose best interests could not be served by the exercise of control without attending care and nurture. We believe equality in family life is not best promoted by forcing a woman and child to share control of all essential decisions with a man who may not be part of their intimate family and who is not required to contribute in any way towards the child's social and emotional life. This Bill would therefore seem to give pre-eminence to the rights of the unmarried father over those of the mother and child.
Conclusion
Unmarried fathers are currently entitled to acquire parental responsibility by making an agreement with the mother or by applying to the courts for a parental responsibility order. The explanatory note for the Bill suggests that less than 200 applications and less than 50 agreements are made annually. It remains unclear, however, as to why unmarried fathers do not apply for parental responsibility or make agreements with their partners as they are entitled to do, or what steps the government has taken to inform them of their current rights. It may be that once aware of these rights unmarried fathers will choose to exercise them.
The FWC recognises that the relationship between unmarried fathers and their children should be facilitated and that appropriate measures need to be in place for them to acquire control as easily and quickly as possible when it is necessary to carry out a caring role. However, we believe this Bill as currently constituted fails to adequately address this issue and that further research needs to be carried out as to how this can be done without adversely affecting the rights of women and children.
WRITTEN SUBMISSION BY:
FAMILIES NEED FATHERS NI
BACKGROUND
Before I enter into the main body of the Families Need Fathers NI submission, I would like to illustrate from my own experience how the average father in Northern Ireland has evolved over the last 25 years.
The first time I consciously remember seeing a man pushing a pram in Belfast in the early 1970s was when I was around 5. The man in question was the subject of much comment amongst the locals, and on seeing said father pushing a pram, my mother said to her friend "Look at the heck of yer man" to which her friend replied "Aye, he must be English!"
Following the press categorisation of the "New Man" in the 90s, a reawakening of the issues surrounding fatherhood has become a matter of much debate. Yesterday's "Englishman", is today's "New Man", and any one outside that model is deemed to be either "feckless" or repressed.
NEW MAN BUT SAME OLD STORY
Birth fathers' attitudes to their role has certainly changed, but the incumbent legislature still seems to wish to keep them on the periphery of their children's lives. Much talk along the lines of "Children Need Both Parents" by notables such as Blair and Boateng is never backed up by proactive legislation in defence of the child and non-resident parent (NRP). In 90%+ cases the NRP is the father.
The introduction of the Children's Act 1989 and the Children (Northern Ireland) Order 1995, both promised much, but delivered little in the way of positive outcomes for children and their birth father after divorce/separation. When Contact/Residency issues are contested, the outworking of both pieces of legislation has led to an adversarial system where the winner takes all, and the perception of the loser (the non resident father in 90%+ of cases) is that he gets a derisory amount of contact. If the Parent with Care (PWC) (mostly the mother) takes an "Implacably Hostile" position to the NRP having contact with the children, and/or Parentally Alienates the children against the NRP, then that parent may get no meaningful contact at all. This could be avoided if there was a presumption of Shared Parenting on separation or divorce.
WILL THE PROPOSED BILL BE THE BEST LAW POSSIBLE?
Biological fathers come in two varieties - married and unmarried. One set has automatic PR, one does not. Birth mothers however are honorary members of the "one size fits all" club and automatically have PR, regardless of their marital status.
According to some (including the author of the Explanatory and Financial Memorandum that accompanies this Bill as introduced) this clearly biased stance is wholly necessary to protect mothers and their children from the unwelcome attention of unmeritorious fathers. On closer examination the aforementioned rationale has very few merits itself.
The most common reasons put forward to support the view that automatic Parental Responsibility should not be granted to unmarried fathers are:-
1. It would lead to interference by the non-resident father in the day-to-day care of the children by their mothers.
2. What about rape?
In what is recognised as one of the most credible pieces of research into the subject, Ros Pickford's "Fathers Marriage and the Law" (Family Policies Studies Centre, Joseph Rowntree Foundation, London, 1999) deals with both topics. She accurately asserts that any of these concerns can equally apply to married fathers who are separated/ divorced from the child's mother. There is adequate provision in current law to deal with fathers regardless of their marital status. She also notes that:-
"There is also a difficulty as to whether there is a case for the identity of certain types of fathers being concealed. There are no reasons why a husband does not appear as the father on the birth certificate, not even rape, and the grounds that the father has undesirable characteristics that the child may find disturbing apply to many children who have to cope with unpalatable truths about married parents. The existence of any exceptions does carry with it the risk of increase litigation. The arguments against having exceptions generally for unmarried fathers are therefore strong. However even though it has been suggested that the number of births as a result of (non-marital) rape are very small (Scottish Law Commission, 1992), many consider that there is something repugnant about the idea of the identity of a rapist (if known) appearing on a birth certificate. There must be concern, that if this was an exception it might lead to more claims of rape. The disadvantages of such an exception might far outweigh any justification in terms of numbers affected, as the Scottish Law Commission accepted."
FNF NI COMMENT, CLAUSE BY CLAUSE
PR FOR UNMARRIED FATHERS
Families need Fathers NI see Section 1(2)(a) of Clause 1 as a small step towards equality for unmarried fathers.
We do however have concerns that the Assembly could make an error of judgement by not awarding PR to all fathers, regardless of their marital status. If this is passed without amendment the mother still has an effective veto over the father acquiring PR by the method proposed in this Bill. Our observation is supported by Pickford when she comments on page 43 that:-
"There seem to be some arguments against having joint registration as the sole determining factor for PR. The most important of these is whether it might reduce the number of joint registrations, and while this research found no evidence that this would be the case on the part of the fathers, it has to be a possibility that some mothers would refuse to allow fathers to register for this reason.".
ACQUISITION OF PR BY STEPPARENTS
We believe that the ability of stepparents to apply for PR is a mildly worrying development, even though a large number of our members are stepparents themselves.
Our worry is that in nearly all contentious cases it will mean that if a parent with PR has not remarried or their new spouse does not acquire PR through the courts, one parent with PR will be outvoted by the other and their spouse if they acquire PR through the courts.
As this impact on vital matters concerning the education, religious upbringing, nationality and medical treatment of the child, it may lead to increased litigation, and will almost certainly lead to greater pressure on an already stretched Family Proceedings system.
PRESUMPTION OF PARENTAGE
Clause 2 Section (2) states
"Any presumption under this section may be rebutted by proof on a balance of probabilities".
FNF NI feel that the above section should speak of certainty, not probability. The "balance of probabilities" is a subjective process, and is not to be trusted as fact. There are non-invasive methods of DNA testing available that offer this certainty.
If a parent wishes to contest the presumption of parentage they should have free access to the courts and the relevant resources of the NHS to do so. No party to the proceedings should have the power of veto.
TESTS FOR DETERMINING PATERNITY
Non invasive DNA testing has been available for some time, and we men have had to use resources in the US to establish paternity by this method, rather than have their children's blood taken.
PROMOTING THE CHANGE IN LAW AFTER THE ACT IS PASSED
- PR FOR UNMARRIED FATHERS
It is generally accepted that most unmarried fathers (75% as found by Pickford) did not understand their legal position re PR. There is no reason to believe that the figure is not similar in NI.
FNF NI are all volunteers and we receive no money at all from any agency. If funding was procured from Government we could help publicise the law that emerges in relation to the above.
CONTACT DETAILS
FNF NI can be contacted on 028 9074 3952, mobile on 07968 625913 or by email at fnf.ni@ntlworld.com
JOHN JUNK
LEGAL AFFAIRS SPOKESPERSON
FAMILIES NEED FATHERS NI
WRITTEN SUBMISSION BY:
NORTHERN IRELAND WOMEN'S AID FEDERATION
Northern Ireland Women's Aid Federation (NIWAF) is appreciative of the opportunity to offer further comment on this legislation. We commend the Assembly's action in giving further consideration to the sensitive issues raised in the Bill.
Acquisition of Parental Responsibility by Father or Step Parent
NIWAF acknowledges the injustice experienced by fathers who are in committed relationships and who are undertaking responsible parenting, but are legally denied rights enjoyed by married fathers. It is right that the law should not discriminate in this way and indeed should encourage parental responsibility by men.
The comments on the Family Law Bill (as introduced) give an agency perspective on the issues raised. Women who experience abusive and violent relationships are the focus of our work. We seek to promote their best interests and those of their children.
Information on Agency
NIWAF was formed in 1978 and exists to challenge attitudes and beliefs that perpetuate domestic violence. We seek, through our work, to promote healthy, non-abusive relationships.
There are eleven Women's Aid groups throughout Northern Ireland, who core aims are: to provide refuge to women and their children suffering from domestic abuse, recognise and care for the emotional needs of the children involved, to educate and inform the public, media, courts, social services and other agencies about the effects of domestic abuse. The 24-hour Helpline is a direct service of NIWAF.
Acquisition of Parental Responsibility by Father or Step Parent
While the experiences of individual women and children affected by domestic violence may vary, there are many shared characteristics: abusive partners are adept at using children, including the unborn, as a means of pressurising and coercing mothers. Parental rights (or supposed parental rights), like conjugal rights, have been viewed intrinsically as the prerogative of men.
The original consultation document distributed by the Office of Law Reform in July 1999 recognised the violence factor:
"2.34 One of the important issues we wish to highlight is the concern that some unmarried women would have if the unmarried father of their child were given automatic parental responsibility for their child. That child may have been born as the result of rape or otherwise in the context of an abusive and violent relationship. Of course, the birth of a child within a marital relationship could often occur in those contexts also.
3.35 If the law on parental responsibility is to be changed it may be that consideration would have to be given to the need for mechanisms whereby those unmarried fathers on whom the law confers parental responsibility could be deprived of those rights and responsibilities by a court order. The obvious example would be the mother applying to the court to have those responsibilities removed because the unmarried father is violent towards her or the child. Under the present law if an unmarried father is granted a parental responsibility order that order may be revoked by the court."
It is very disappointing that the Family Law Bill has not specifically addressed this issue. We would urge the Health & Social Services Committee to introduce a clause which recognises the potential risk in the best interests of the children, as well as their mothers. While acknowledging the fact that many children in Northern Ireland have no legal relationship with their father, we need to be aware of unintended consequences and guard against increasing opportunities for abuse.
It is essential that under amended legislation the protection of rights in this area should be somehow safeguarded, giving clear messages viz. that the use of violence, bullying and intimidation by unmarried fathers would prevent the acquisition of parental responsibility.
The suggestion that unmarried fathers, who jointly register a child's birth, be provided with information on how they might acquire parental responsibility would have merit in this regard, if the process required a clear undertaking from fathers regarding their responsibilities towards, not only the child, but the respect and support towards the mother. The process should give clear messages about parenting as a partnership and that evidence of violent, abusive, controlling behaviour, assertion of male privilege etc, will result in the denial of parental responsibilities in law.
An additional possibility is that the courts require evidence of satisfactory completion of a course in human relationships and parenting for unmarried fathers, to qualify them to acquire parental responsibilities. This could be explored as part of the court's support for parents. Needless to say, this should not be a method by which abusive men could claim parental responsibilities, but one which might be helpful to younger men to enable them to parent.
NIWAF regards the Family Law Bill as an important opportunity to bring about a cultural change in attitudes towards parental responsibilities, which are consistent with International Human Rights Judgements and the UN Convention on the Elimination of Discrimination Against Women to which the UK Government is a signatory, We urge the Assembly to grasp this opportunity to ensure that while extending the rights of fathers by granting them the opportunity to have a formal legal relationship with their children, they also protect the rights of vulnerable children and women from violent and abusive unmarried fathers.
ANGELA COURTNEY
REGIONAL MANAGEMENT CO-ORDINATOR
WRITTEN SUBMISSION BY:
DEPARTMENT OF HEALTH, SOCIAL SERVICES & PUBLIC SAFETY
I welcome the proposals contained in the Family Law Bill. In particular, I welcome the proposal to facilitate the acquisition of parental responsibility by unmarried fathers. The proposed amendments to the Children Order seem to offer a practical and effective means of assisting more unmarried fathers to acquire parental responsibility for their children. This significant reform of the law will reinforce one of the central messages of the Children Order which is that parents have prime responsibility for the upbringing of their children. Wherever possible, this responsibility should be shared by both parents throughout the child's life. It will be very important therefore that the legal consequences of jointly registering a child's birth are explained to both parents and that they are fully aware of what it means to have parental responsibility for a child.
BAIRBRE DE BRUN
MINISTER FOR HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY
WRITTEN SUBMISSION BY:
P DRINAN, SOLICITOR
It seems to be from the outset that there is a misconception in relation to parental responsibility. There is an assumption that authority over children facilitates the development of a relationship. What would facilitate that would be care for children and care for children is not necessarily given by having authority over them.
There also seems to be an assumption that parents do not deliberately harm their children. This is not the case and Doctor Ewan McEwan an adolescent expert can tell you that he spends a lot of his time repairing damage to children deliberately caused by their parents who have authority over them.
Basically parents rights should decrease as children's abilities develop. It seems to me that the purpose of this Order was to encourage men to take care and responsibility. However this is not the way to do it. There would need to be consultation as to how this is to be achieved.
This Bill, although short, has huge significance on the relationships between adults and children and people in general.
It would seem at first glance that the granting of parental responsibility to step-parents is a good thing. However the definition of step-parent being a person who is married to a child's parent who has parental responsibility for the child would seem to be really wide. For example, a man could, under this Order, obtain parental responsibility merely by signing the register at birth. Then a person who has no connection with the child marries him and that person too could have authority over the child.
The basic flaw in the legislation seems to be that there is no requirement for care to be shown before authority is given. The explanatory notes say that signing the register recognises in law that joint registration demonstrates a public statement by the man that he is the father of the child and that he accepts the responsibility of parenthood. I would say that this is not the case at all.
The first thing that would need to be done is that there would need to be an intense public education to make young women who have just had children aware of what it might mean to allow someone to register as father of a child. But even before that there would need to be detailed research into some of the assumptions that have been made.
It would probably be found that it would be a good thing for a child to know his father. However is it necessarily a good thing that that father has authority and control over the child?
The Bill as proposed means that mothers who rear children will have all of the duties and only half of the control.
Difficulties will also arise with the Benefits System where some people will argue because they have joint parental responsibility that they are entitled to joint benefits.
There will also be difficulties in schools when the consent of someone who may only have signed the Birth Certificate and who disappears will be required for example, a school trip. There will be difficulties in medical surgeries when Doctors may be challenged on what happened without the consent of a parent who has joint parental responsibility but who may not have seen the child for a number of years.
While certainly research should be done to see how better to provide care for children it seems to me that this Bill is not the best way to proceed.
P DRINAN
WRITTEN SUBMISSION BY:
SOCIAL SERVICES INSPECTORATE
1. The Bill addresses a fundamental issue in regard to unmarried fathers acquiring parental responsibility for their children and is welcome. The fact that the legislation does not cover unmarried fathers who have been registered as their children's father on birth certificates prior to the commencement of these changes is a weakness which perhaps needs to be addressed. While generally legislation is not retrospective, provision does exist to make it apply retrospectively. Building in retrospection should be considered in this case to ensure that neither children, nor unmarried fathers, are disadvantaged by this new legislative provision. Research indicates that the majority of men who jointly register a birth assume that this action establishes a legal relationship between them and their children.
2. The legal safeguards emerging from the process whereby a step parent acquires parental responsibility is welcomed as it ensures that birth-parents input into this process can be facilitated.
3. There is no reference, in the section "Tests for determining parentage", as to who is responsible for meeting the cost of such tests. Currently, the Child Support Agency requires men named as fathers to meet the costs of these tests. I understand this cost remains even when the man is deemed not to be the parent. This does appear an unreasonable cost and provision should exist in legislation to have costs fall to the party requiring the test, where such tests fail to substantiate his/her claim.
4. The approach not to afford automatic parental responsibility to unmarried fathers is endorsed, as this in some cases would disadvantage women and their children. The ECHR case McMichael v UK, ensures that this approach is currently consonant with the European Convention on Human Rights. This is, however, an area which will require to be kept under review in the light of developing European jurisprudence.
5. In summary, the provisions of this Bill are to be welcomed.
PAUL MARTIN
WRITTEN SUBMISSION BY:
BRITISH ASSOCIATION OF SOCIAL WORKERS (NORTHERN IRELAND)
FAMILY AND CHILD CARE SPECIAL INTEREST GROUP
INTRODUCTION
BASW (NI) welcomes the opportunity to comment on the Family Law Bill and appreciates the decision to extend the consultation period in order to involve as broad a spectrum of viewpoints as possible. The issues which the Bill seeks to address are both emotive and complex, and as the initial consultation document illustrates (1) (pages 8-9) the question of parental responsibility is being dealt with in a variety of ways by other jurisdictions. Although the consultation document refers to the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and to the UN Convention on the Rights of the Child (UNRC) 1989, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 also has particular relevance to the Bill.
BASW (NI) is aware of the fact that other organisations have recently taken the opportunity to respond to the Bill, in particular the Committee for the Administration of Justice and the Children's Law Centre. We wish to endorse the issues raised by both of these agencies in relation to the rights of women and children. At the same time, we acknowledge the position of unmarried fathers who wish to fulfil an "equal" role in parenting their children. Having outlined the context in which the current paper is written, BASW (NI) wishes to draw attention to the following issues:
1. Public Information Strategy
2. The Paramouncy Principle
3. The Concept of Parental Responsibility
1. Public Information Strategy
The initial consultation document (1) acknowledges that the "rising trend of children born outside marriage will continue in the coming year" (page 1). Patterns of family life are changing and so must the law and family policy in order to reflect the needs of people. On page 7 of the document, reference is made to comments from David Utting's report (2), which states:
"A more worrying finding concerned the ignorance of cohabitants regarding their rights as parents and as partners. None of the 77 long-term cohabiting mothers interviewed had taken the legal steps necessary to give their partner the equal and independent parental rights that a married father would automatically enjoy. In most cases, they seemed unaware of the law's requirements or to have, wrongly, supposed that joint registration of the child's birth was enough.".
While it should be noted that this research refers to the Children Act (1989), the concern remains that:
(a) Such erroneous assumptions are being made by parents 10 years after the implementation of the Act in England and Wales and,
(b) The process of implementing the Children NI Order 1995 has not fully taken account of the experience in England and Wales.
As regards the current Bill, this point is highlighted within the initial consultation document (1) which seeks views in relation to the following proposals:
(i) The father of a child, whether married or unmarried to the child's mother should automatically acquire parental responsibility for the child.
(ii) An unmarried father who jointly registers the child's birth with the child's mother should automatically acquire responsibility for the child.
NB: This Is the option which is currently included in the proposed Bill.
(iii) The existing law on parental responsibility for unmarried fathers should remain unchanged but unmarried fathers who jointly register a child's birth are provided with information on how they might acquire parental responsibility.
The third option begs the question, why is this process not already happening? The fact that it has not happened, may point to an important factor influencing the facts and figures quoted at the beginning of the document, that is, in Northern Ireland in 1997 there were 6,449 live births outside marriage, of which 63.6% (4,104) were registered jointly by the mother and father of the child, and yet,
"The existing provisions by which an unmarried father can acquire parental responsibility under the Children (NI) Order 1995 have been little used" (page 10).
2. The Paramouncy Principle
The welfare of the child is paramount, this is one of the fundamental principles underpinning the Children Order. The UNCRC states that the 'best interests' of the child must underpin all other rights and responsibilities (article 3). Inquiries such as the Cleveland Inquiry and High Court decisions such as the Gillick judgement, stress the point that the parental role is for the child's benefit. Parental rights yield to the child's right to make his or her own decisions, in other words parental responsibility should only be exercised to the extent that it supports a necessary caring role. It is therefore concerning that there is no reference made to the 'best interests' principle either within the key clauses of the proposed Bill, nor is it discussed in the explanatory notes.
3. The Concept of Parental Responsibility
Article 6(1) of the Children Order defines this as "all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property." A definition which places great emphasis on the controlling and authoritarian aspects of parenting, a view perpetuated both by the initial consultation document and within the current proposed Bill itself.
In light of the Human Rights Act (1998), and the UNCRC, the concept of parental responsibility requires in depth exploration which would take account of the views of all interested parties. To fail to take the opportunity to carry out such an exploration at this key stage, could be regarded as detrimental to the 'equality dimension' (page 4) to which the consultation document itself refers. It would be the view of BASW (NI) that a need exists for greater balance in relation to the caring and controlling aspects of parenting.
CONCLUSION
BASW (NI) recognises that change in family policy and law must reflect the needs of the people. It is with this in mind that the following recommendations are made:
1. Given the experience in England and Wales, as well as the fact that the issue of parenting is so fundamental, an information strategy should be formulated in relation to the main implications of the Children Order for families and children. This would allow for an informed debate to take place among interested parties.
2. The best interests of the child should be given priority in all proposed changes to any legislation which affects them.
3. The concept and meaning of parental responsibility should be addressed before any further amendments to the Children Order are considered.
REFERENCES
1. (i) Parental Responsibility for unmarried fathers
(ii) Court Procedures for the Determination of Paternity
A Consultation Paper form the Office of Law Reform July 1999
2. Utting, D., (1995) Families and Parenthood
Joseph Rowntree Foundation 1995
WRITTEN SUBMISSION BY:
CARE (CHRISTIAN ACTION RESEARCH AND EDUCATION)
1. About Care
1.1 CARE (Christian, Action Research and Education) was established 16 years ago to combine caring, at national and community level through church support, with campaigning on social issues. CARE has more than 100,000 supporters in the UK (2,500 in Northern Ireland) from across the Christian denominations, who regularly receive information and support CARE's work. CARE initiatives such as the network of 141 pregnancy and post abortion counselling centres and the Homes Programme draw heavily on the involvement of local Christians and the support of local churches. CARE is also concerned to see national and European law and public policy reflect Christian ethical principles.
1.2 CARE's Public Policy Department acts as a think tank on ethical issues involving the family, medical ethics and sexuality. We are a point of reference and information on these issues for our supporters, who we keep informed about developments in policy and the law through our regular publications. We also brief Parliamentarians and Assembly Members as relevant matters are considered in Westminster, Belfast, Edinburgh, Cardiff and Brussels.
1.3 Part of CARE for Education's work has been to produce a number of educational resources for primary and secondary schools which include successful sex, marriage and drugs education resources for pupils. In addition we have produced a number of resources for use by school governors in devising policy.
1.4 Our Caring Services Department co-ordinates several practical initiatives. The Homes Programme involves a network of Christian families and single people throughout Britain, who open their homes to provide short-term respite for those needing a break from their current circumstances. In addition we run CARE Remand Fostering - offering home based accommodation and training for young offenders on remand instead of traditional secure accommodation.
1.5 CARE for Life supports a network of 141 pregnancy crisis centres operating throughout the country, including centres in Lurgan, Coleraine, North Belfast, Ballymena and Bangor. The aim of these centres is to provide a safe, impartial environment in which women, and men, can talk through their circumstances of unplanned pregnancy, and discover all of the options open to them. The centres offer free pregnancy tests. Some of the centres operate schools work initiatives, which examine sexual activity in the context of relationships, unplanned pregnancy, sexually transmitted infections and the choices made by young people with respect to their physical and emotional health.
2. Introduction
2.1 CARE welcomes this opportunity to contribute to the discussion of the Family Law Bill at committee stage.
3. Parental Responsibilities and Rights
(2) In paragraph (1) (acquisition of parental responsibility by father who is not married to child's mother), for the words after "birth" substitute ", the father shall acquire parental responsibility for the child if:
(a) he becomes registered as the child's father;
(b) he and the child's mother make an agreement (a "parental responsibility agreement") providing for him to have parental responsibility for the child; or
(c) the court, on his application orders that he shall have parental responsibility for the child".
3.1 CARE believes that fathers play a vital role in the protection, support and emotional development of children. There is much research showing the need for children to have a father who is closely involved in their life and we would want to do all possible to ensure this happens.
"When fathers are readily available and actively engaged with their children from an early age there is positive impact on achievement, notably in the area of cognitive skills."
3.2 We believe that parents are the crucial touchstones of a child's life and have a vital responsibility and function in the daily lives of their children. We believe that women and men together are intended to take their parental roles seriously and should not be discouraged from putting their children and families first. The parent-child bond is unique. Its nurture or neglect produces long-term outcomes, such as social competency and self-confidence, or fearful behaviour and withdrawal tendencies, respectively.
3.3 CARE believes that it should be easier than is currently the case for unmarried fathers to acquire parental responsibilities for their children. We believe that all parents should exercise responsibility for their children and that most unmarried fathers are responsible and interested in their children and deserve a legal role as parents.
3.4. However, CARE is concerned about the effects of this proposal upon the position of marriage in society. A proposal to give the same rights to unmarried fathers as to married fathers cannot ignore the effect that this will have on the special status of marriage and the rights of married couples.
3.5 Although we would wish to see the acquisition of parental responsibilities and rights made easier, we do not consider that it should be made automatic upon joint registration of the child's birth. We believe that a differential must be maintained between married and unmarried fathers, in order to protect the unique status of marriage and thus to protect the interests of children in the long term.
3.6 CARE recommends that provision be made to allow for an appropriate amount of time for the mother to consider whether or not she wishes the father to have parental responsibilities.
3.7 Decisions about whether to grant parental responsibilities will have long-term and far-reaching consequences for the child as well as the mother.
3.8 CARE suggests that prior to the birth, at ante-natal classes for example, and also at the registration of the birth, information relating to parental responsibilities and rights for unmarried fathers should be given to the parents, with a set period of time (eg 3 months) for the application to be made.
4. Co-habitation
4.1 CARE urges the Committee to seek to ensure that cohabiting fathers are not given the same, automatic rights as those of married fathers.
4.2 We believe that fathers play a vital role in the protection, support and emotional development of the most vulnerable in our society, children.
4.3 However, a proposal to give the same rights to cohabiting fathers as those of married fathers cannot ignore the effect that this will have on the special status of marriage and the rights of married couples. CARE is concerned that if cohabiting couples are given all the "advantages" of the married state, but without the permanent commitment of marriage and its associated responsibilities, this will remove incentives to marriage, and society will be the long-term loser.
4.4 CARE is concerned that, if the permanent, public and unique commitment of marriage is undermined in any way, this may serve in the long term to actually cause more harm to children. Although of course there are some cohabiting relationships that are committed and last a lifetime, and there are marriages that do not, the statistics comparing marriage and cohabitation portray very clearly that cohabitation is significantly less stable than marriage, even when children are involved:
- Cohabiting couples are almost six times as likely to split up as those who are married
- Even where there are children, half of cohabiting couples part within 10 years, compared to just one in eight of married parents
- In Sweden, where cohabitation is regarded legally and culturally as an accepted alternative to marriage, cohabiting unions are more than three times more likely to end than marriages
- Furthermore, marriages that are preceded by living together are 50% more likely to end than marriages without pre-marital cohabitation
4.5 CARE believes that it should be easier for unmarried fathers to acquire parental responsibility for their children. However, although we would want to see the acquisition of parental responsibility made easier we do not consider that it should be made automatic. As we have stated more fully above, we believe that a differential must be maintained between married and unmarried fathers, in order to protect the unique status of marriage and thus to protect the interests of children in the long term. The implications of changing the balance between marriage and cohabitation are far-reaching and directly impact on the raising of children.
5. Retrospective Parental Responsibilities
5.1 CARE is opposed to giving retrospectively automatic parental responsibilities to unmarried fathers. We consider that this would be unfair to those mothers who have taken sole responsibility for the raising of a child. It would throw up a number of legal difficulties in terms of the Human Rights Act 1998, which prevents retrospective legislation. It may inflame difficult relationships and on occasions place in jeopardy the safety of the mother and/or child concerned. In some cases there would be a danger of domestic violence or a kidnap attempt on the child. We also consider that this proposal could be emotionally damaging to some children who have had little or not contact with their natural father. We are concerned that any system of public objection, which branded the father as unfit to have contact with his children, would be open to abuse.
6. Step-parents
"(1A) A child's step-parent shall acquire parental responsibility for the child if the court, on the application of the step-parent, orders that he shall have parental responsibility for the child."
6.1 CARE is generally in favour of this proposal. However, we would wish an explicit requirement placed in the Family Law Bill to take the views of the child into consideration in relation to giving step-parents parental responsibilities. In particular, we would wish to see this apply to older children and where the child is able to make an informed decision.
6.2 We are also concerned that giving parental responsibilities to step-parents might cause difficulties with the other natural parent of the child. Additionally, in some cases parental responsibilities might be made available to three, four or even more people. This we would view as being destabilising and having the potential to cause emotional damage to the child. Consequently, we would be cautious about extending parental responsibilities to step-parents without the agreement of all surviving natural parents.
7. Other Considerations
7.1 CARE recommends that the provision of parental responsibilities should only be terminated by a court.
ALISON LAIRD
ASSEMBLY OFFICER
WRITTEN SUBMISSION BY:
THE ASSOCIATION OF FAMILY SOLICITORS FOR CHILDREN
This submission is made on behalf of the Association of Family Solicitors for Children which was inaugurated on 10 May 2000. The main aim of the Association is to promote justice for all children and young people. The Association is a proactive organisation which acts as a pressure group to lobby for properly funded legal mechanisms to enable all children and young persons to have access to justice.
All mothers automatically have parental responsibility for their children. Parental responsibility is also vested in fathers married to the mothers of their children. Under Article 5 of the Children (Northern Ireland) Order 1995 unmarried fathers do not automatically have parental responsibility but can acquire same under the conditions stipulated by Article 7 of the Order. The Family Law Bill proposes to change the law by automatically conferring parental responsibility on unmarried fathers who jointly register the birth of the child with the mother. Article 8 of the European Charter on Human Rights and Fundamental Freedoms (hereinafter the "European Charter") as given effect to by the Human Rights Act 1998 states that
"Everyone has a right to respect for his private and family life, his home and his correspondence".
It should not be forgotten that Article 8 applies to children as well as adults and therefore protects the rights of a child to respect for family life.
The Family Law Bill clearly adopts the presumption that family life is to be treated as revolving around marriage. The concept of family life has been considered at length by the European Court. Boughanemi -v- France (1996) involved an immigrant who argued that his expulsion from France would violate the right to family life which he enjoyed with his family. The Court held that:
"the concept of family life, on which Article 8 is based, embraces even where there is no co-habitation the tie between a parent and his or her child regardless of whether or not the latter is legitimate. Although that tie may be broken by subsequent events, this can only happen in exceptional circumstances".
In Soderback -v- Sweden (1998) an unmarried father and his daughter were found to enjoy family life, despite the fact that they had never cohabited or enjoyed regular contact. The Court's approach in these cases indicates that the presumption in favour of family life has been extended to unmarried fathers and their children. We would submit that the child's right to respect for family life - which is accepted as existing between unmarried fathers and their children - includes the right to the existence in law of safeguards to protect and guarantee the child's right to respect for family life.
In Marckx -v- Belgium (1979) - the European Court established that:
"respect for family life implies the existence in law of safeguards that render possible from the moment of birth the child's integration into the family".
We would therefore submit that it is incumbent on the Government to protect this right by establishing a legal tie between children and their fathers. We would recommend that all unmarried fathers should automatically have parental responsibility for their children. It is only by taking this step that the child's right to respect for family life will be guaranteed.
The explanatory and financial memorandum to the Family Law Bill purports to justify any discrimination between unmarried fathers and between registered fathers and mothers as justifiable on the basis of the need to protect mothers, fathers and children. We would remind the Committee that a determination of the existence of family life as between all unmarried fathers and their children does not of itself determine the scope of obligations that will result from such a determination. The Court may still consider whether interference is justified under Article 8(2) of the European Charter in conjunction with regard to the Welfare Principle under the Children (Northern Ireland) Order 1995. We would therefore submit that the current legislation provides the appropriate mechanisms to protect mothers, fathers and children.
We would also refer the Committee to Articles 7 and 8 of the United Nations Convention On The Rights of The Child. Article 7 recognises the right of a child to be registered after birth, the right to acquire a nationality and, as far as possible the right to be known and be cared for by his or her parents. Article 8 guarantees the right of the child to preserve his or her identity. In Johnston -v- Ireland (1986) the Court found that the normal development of natural family ties between unmarried but cohabiting parents and their child required the child to be placed legally and socially in a position akin to that of a child whose parents were married. Similarly Marckx -v- Belgium highlighted the importance of the legal recognition of family ties enabling the child to be integrated into the family. It is clear from these cases that the child's right to identity is inextricably bound up with the child's right to respect family life. Preserving the child's right to identity imposes an obligation on the Government to ensure that there is proper legal recognition of family ties so as to enable the child to be integrated into the family.
We would submit that Article 7 and Article 8 of the United Nations Convention on the Rights of the Child, taken in conjunction with Article 8 of the European Charter and the case law referred to above imposes a duty on the Government to ensure that all fathers have parental responsibility. The Family Law Bill as proposed continues to infringe not only the child's right to respect for family life but also the child's right to identity.
Under the Children (Northern Ireland) Order 1995 it is clear that unmarried fathers are treated differently to mothers and married fathers married to mothers of their children. Unmarried fathers suffer discrimination on the grounds of gender and on the grounds of marital status. The Family Law Bill does not remedy this situation. Unmarried fathers continue to be treated differently on the grounds of gender and marital status. Unfortunately and most significantly the Family Law Bill fails to improve the position in relation to illegitimate children. The effect of the Bill is to enable discrimination to continue between legitimate and illegitimate children. Children will continue to be penalised and children's rights under the European Charter and the United Nations Convention on the Rights of the Child will continue to be infringed merely on the basis of the parents behaviour or status.
In relation to the application by step parents, once again the legislation adopts the presumption that family life revolves around marriage. As stated previously this approach is inconsistent with European Case Law. In the case of X and Z -v- United Kingdom (1997) the Court set down a useful test for the existence of family life ie
"when deciding whether a relationship can be said to amount to "family life" a number of factors may be relevant, including whether the couple lived together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means".
To limit the bringing of applications for Parental Responsibility to step parents is a failure to take account of the wide variety of circumstances where family life may be held to exist and where it may be appropriate for the Court to consider the granting of Parental Responsibility to safeguard and protect the best interests of the child. We would submit the clause discriminates against persons not linked by blood or marriage to a child. The statistics indicate that 40% of births occur outside marriage. The definition of family life as limited to married families is clearly outdated and fails to reflect the reality of family life as it now exists. We would however state that any application brought by any person who is not a natural parent of the child should be considered in accordance with the Welfare Principle of the Children (Northern Ireland) Order 1995.
We therefore conclude by making the following recommendations:
1. That Parental Responsibility be automatically vested in all mothers, married fathers and unmarried fathers.
2. We propose that the legislation is amended enabling a third party, not linked by marriage or blood to the child, to bring an application for Parental Responsibility subject to the proviso that any such application be considered in light of the Welfare Principle of the Children (Northern Ireland) Order 1995.
WRITTEN SUBMISSION BY:
GUARDIAN AD LITEM AGENCY
1. NIGALA broadly welcomes the initiative to facilitate the acquisition of parental responsibility to greater numbers of fathers through joint registration with the mother of the birth and enabling step parents to make application for parental responsibility.
2. NIGALA recognises from the figures proved in the memorandum that many children born outside marriage, have no legal relationship with their fathers. The measures proposed by this Bill will significantly alter this position. This will assist the development of many children through strengthening their sense of identity.
3. The acquisition of parental responsibility by considerably more fathers will have an impact on Adoption and Public Law proceedings where those with parental responsibility are granted party status. This will have some impact on the workload of NIGALA, Trust Social Services staff and others.
4. The opportunity for step parents to acquire parental responsibility may see a decline in the number of step-parent adoption applications.
5. The changes to the tests for determining parentage are welcomed as being much less intrusive for children.
The effect of the proposed Bill in relation to points 3 and 4 above will be closely monitored by NIGALA. The fine line Bill which seeks to tread between balancing the need for equality of opportunity and the need for protection of mothers, fathers and children is recognised as being necessary to ensure that the child's welfare remains the paramount consideration. When the Bill becomes law, NIGALA recommends that steps are taken to ensure the public become more fully aware of the legislative provisions concerning parental responsibility.
In order to make the legislation in relation to parental responsibility more easily understood by the public, it is necessary that the legislation offers clearer guidance on the meaning of the concept. Unfortunately our current legislation is open to criticism in this regard. The Children (NI) Order 1995 Article 6(1) simply provides that
"parental responsibility means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property".
It is generally recognised that the Children (Scotland) Act 1995 provided a more fulsome general guidance as to the meaning of parental responsibility. The Scottish approach is a substantial improvement on that contained within the Children Act 1989 for England and Wales, which was replicated in our own Children Order. It is therefore, with respect, proposed that the opportunity should be taken to ensure that the legislation is amended to achieve greater clarity of the concept of parental responsibility.
R H WILLIAMSON
EXECUTIVE DIRECTOR NIGALA
WRITTEN SUBMISSION BY:
nspcc
Thank you for the opportunity to comment on the Family Law Bill and in respect of its social policy aims. NSPCC completed a submission to the regional consultation favouring the option to acquire parental responsibility that now appears in the Bill. We feel that this was the most suitable compromise in terms of promoting children's rights and protecting them from situations where there was relationship instability or the child had been concerned as a result of rape etc.
colin reid
policy advisor
WRITTEN SUBMISSION BY:
children's law centre
This submission if made on behalf of the Children's Law Centre which is a registered charity established in September 1997. We carry out research, provide training, information, advice and representation in relation to children's rights in N Ireland. Our arguments are grounded on principles enshrined in The United Nations Convention On the Rights Of the Child, The European Convention On Human Rights as incorporated by The Human Rights Act 1998 and The Equality Provisions of The Northern Ireland Act 1998 (all attached for ease of reference at Appendix A).
We welcome the fact that the important issue of responsibility for children is being debated.
the united nations convention on the rights of the child
key relevant articles
Article 3 The best interests principle
Article 12 The right of the child to express his or her opinion and to have that opinion taken into account in any matter affecting the child
Article 7 The right of the child to a name at birth and as far as possible to know his or her parents and be cared for by them
Article 8 The right of the child to preserve his or her identity and family ties
Article 9 The right of the child not to be separated from his or her parents unless this is in the child's best interests
Article 16 The child's right to protection from interference with privacy, family, home and correspondence
Article 18 Parents have common responsibility for the upbringing and development of their children. Parents or legal guardians have the primary responsibility for the upbringing and development of children in their care
The State shall provide the appropriate assistance to parents and guardians in child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children
Article 19 The right of the child to be protected from abuse and neglect
Article 36 The child has a right to protection from all forms of exploitation prejudicial to any aspect of the child's welfare
the human rights act incorporating the echr
Article 3 ECHR Children have the right to be protected by the State from torture, inhuman and degrading treatment. This article has been argued in the European Court of Human Rights in the context of the protection of children from physical harm and from child abuse and ill treatment. It is clear that there is a positive obligation on the State to ensure that children are protected from ill treatment.
Article 8 ECHR Children as well as adults have a right to family life and to privacy. Family life is a wide concept and means people with whom there are "close personal ties". Family life is not restricted to those with parental responsibility. This wide definition of family life is reflected in Article 5 UNCRC.
Article 6 ECHR It has been clearly established that the right to a fair hearing extends to the field of family law and applies to administrative as well as judicial processes in this regard. Recent case law suggests that in order for a child to have a fair hearing, they must be able to participate and understand proceedings in which they are involved. This is an important concept and is strengthened by Article 12 UNCRC.
S75 Northern Ireland Act 1998; the duty to promote equality of opportunity between men and women generally, between persons of different marital status, between persons of different ages, between those with dependants and those without, between persons of different religious belief, political opinion, racial group, sexual orientation, between persons with a disability and without.
consultation and impact assessment
We note from the Explanatory Document that a consultation paper was sent out to 185 organisations in July 1999.
The obligations under s75 of The Northern Ireland Act 1998 have to be considered in relation to the requirement that due regard be given not only to the promotion of equality of opportunity between persons of different marital status and men and women generally, but also between persons of different ages.
In this regard we would be interested to know whether any consultation has taken place with young people about their views on the proposed changes to the law on parental responsibility. They may have strong views on the importance of knowing one's identity and parentage or about being denied contact with a parent who no longer lives in the family home. They may have views on the input that absent parents should have on their day to day lives, for example should a parent whose name is on the birth certificate, but who has not had any recent contact with the child, have automatic access to school records or be able to withhold consent to medical treatment? They may have views on being physically restrained into giving DNA and blood samples when they have a genuine reason for refusal. It is only by talking to children and young people themselves that we will ever know more about these issues.
We recommend direct consultation with children and young people with a clear explanation given about the meaning of parental responsibility and about blood testing and DNA testing. The consultation should endeavour to investigate the perception that children and young people have of family life and responsibility for their care and upbringing.
We recommend that an impact assessment be carried out in relation to the proposed changes to the law under The Family Law Bill.
blood testing / dna testing
The Family Law Bill seeks to extend the powers of the court to order the taking of bodily samples for resolving disputes about parentage. There is no doubt that this would make the results more certain. Our objection to this proposed legislation in relation to the taking of blood tests and DNA samples from children is as follows;
The Family Law Bill amends the Family Law Reform (NI) Order 1977 to enable courts to direct the taking and testing of bodily samples for the purposes of determining parentage. At present the courts can only direct blood tests. Article 3 of The Family Law Bill deals with these amendments.
Article 65(3) Child Support and Pensions Bill amends Article 9 of The Family Law Reform (NI) Order 1977 in relation to consents required for such tests. It replaces the wording of the old order which said
"If the person who has the care and control of him consents"
to
a) If the person who has care and control of him consents; or
b) where that person does not consent, if the court considers that it would be in his best interest for the sample to be taken.
This clause is obviously designed to prevent the parent with care and control "vetoing" the tests being done. In the past this resulted in children being denied certainty in relation to their parentage. It is quite clear from English case law that there was a concern that the courts were unable to order that tests be carried out, but could simply make a direction in this regard in England. From a child's perspective however the Bill does not mention the child's consent. Our view is that subject to age and understanding the child's consent should be obtained or at least Article 65(3) b) should make reference specifically to the ascertainable wishes and feelings of the child concerned in accordance with Article 3 Children (NI) Order (the welfare checklist). Article 65(3) b) should state: "that where either the person with care and control does not consent or the child does not consent, if the court considers that it would be in the best interest of the child for the sample to be taken."
We are aware from Hansard that an amendment was proposed to the Child Support and Pensions Bill in relation to consent of the child. The debate did not reflect the key question of the child's consent. We are not implying that a parent with care or a child should be able to thwart DNA or blood testing where the court deems this to be in the best interests of the child, after consulting the child and applying the welfare checklist at Article 3 Children (NI) Order 1995.
The Family Law Bill does not discuss consent at all. Young people aged 16 and over are capable of giving valid legal consent in their own right and this is not reflected in this draft legislation. A further difficulty, which arises from a children's rights perspective is in relation to a child under 16 who is refusing consent.
Article 12 UN Convention On the Rights of the Child states that any child who is capable of forming their own views must be given the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. In our view therefore there should be a mechanism for referral to a court where the child refuses consent and not just where the adult with care of the child refuses. The decision made by the court should be guided by the best interests of the child, with regard to the welfare checklist under Article 3 Children (NI) Order 1995. In the case of Re A (A Minor) (blood tests: constraint) 1988Fam66, 1998 1FCR41, it was held that under the English law governed at that time by s20 FLRA 1969, whilst there was an absolute embargo against forcing an adult to supply blood against their will there was no such bar against ordering the supply of blood from a child even to the extent of ordering physical constraint against him/her. However, it was considered that the best course of action in such cases might be to allow the Official Solicitor to represent the child in cases where consent was withheld. However in Re O (A Minor) (Blood tests; Constraint) 2000 2 All ER 29 Wall J stated that in his view under the English legislation the person with care had an absolute right to withhold consent. The court could simply direct blood tests but could not enforce them. In his view the child had a right to know the truth about his or her parents unless the child's welfare justified the "cover up".
We agree that the child has a right, but not a duty, to know his or her parents and this is reflected in Article 7 UN Convention On The Rights of The Child. We agree that one parent should not be able to veto tests and that the decision making process should always be grounded in the best interests of the child. However, in the event of a child withholding consent to DNA tests or blood tests at any time, we would recommend that the balancing exercise between the rights of the child to know his/her parent and the child's overall welfare and best interests be carried out by a court, with independent legal representation provided for the child. The court mechanism would at least allow for the child to voice their opinions and to have the benefit of advice and guidance from their own independent legal representative.
We are confused about how the Child Support & Pensions Bill and The Family Law Bill fit together. The position under s15 of the Child Support and Pensions Bill relating to presumption of parentage should now reduce the necessity for blood testing or DNA testing to be carried out as there is a presumed liability for payment of child maintenance where either a) a non resident parent whose name appears on the child's birth certificate does not rebut the presumption that he is the father or b) where the parties were married at the time of conception and there is no rebuttal of parenthood.
In the cases where it remains necessary to carry out blood testing or DNA testing, is it the case that the CSA will refer the matter to court for a declaration of parentage if the parent with care refuses consent and at that stage the court will have to make a decision grounded on the best interests of the child? If so, there is no mechanism for referral to court if the child refuses the testing to be done, because CSA only need the consent of the parent with care and control. It is essential that the best interests of the child is central to the decision making process and not financial considerations. We would not like to see any administrative decisions being made, which could result in the physical restraint of a child.
We realise that many cases involve babies and young children who will not be able to voice their views and feelings but older children do become involved in these disputes. We would like to ensure that the child's right to physical integrity as enshrined under Article 8 ECHR is not breached by testing against a child's will where the court has not been able to evaluate what is in the best interests of the child concerned. The child also has a right to a fair hearing under Article 6 ECHR and a right to freedom from inhuman and degrading treatment under Article 3 ECHR and it is important that these rights are protected in any proposed legislation.
Finally it is essential that the identity of testers is carefully regulated and controlled. The position in England is that the Lord Chancellor holds an approved list of testers. All testers carrying out tests on children should be PECS checked. The tests carried out should be strictly regulated and should relate only to the child's parentage. The arrangements for storage and retention of DNA samples should be made clear to all parties concerned and transfer of information between agencies should be prohibited.
We recommend that the child should have a right to participate in the decision making process, in relation to blood testing and DNA testing.
We recommend that if the child refuses consent to a test, the matter should be referred immediately to a court, which should make a decision on the principles of the best interests of the child. The legislation should make explicit reference to the refusal of consent by a child and to the Article 3 checklist of The Children (NI) Order 1995. This would ensure compliance in terms of Article 6 ECHR as incorporated and Article 12 UNCRC.
We recommend that the child should have the benefit of separate legal representation in cases where consent is withheld.
the acquisition of parental responsibility
The UNCRC states at Article 18 that recognition should be given to the principle that both parents have common responsibilities for the upbringing and development of their children.
Article 18 requires that services be provided by the State to ensure that parents and guardians of children can look after children properly and, in this regard; Article 18 is linked to Article 27, which requires the State to ensure that children have an adequate standard of living. It presupposes a level of commitment and care for the child concerned and looks at how the State can help parents/guardians in a caring role to provide for and support their child's health and development.
The Explanatory Notes accompanying The Family Law Bill at paragraph 5 point out that from a child centred point of view the low take up of parental responsibility orders and agreements by fathers means that there are many children who do not have a legal relationship with their fathers in N Ireland.
In our view the meaning of the UN Convention provision is much wider than a "legal relationship". It means that parents should be assisted to bring up their children in a meaningful way and that family ties should be respected. This envisages a positive contribution, not a passive one from the parents themselves.
A legal relationship can, as we know unfortunately be meaningless to a child if they are not cared for properly. It is also a very adult perception of the relationship between parent and child. Whilst we appreciate the importance of a legal relationship between parents and children, we would prefer to see the emphasis of any legislation, affecting children to be grounded in the best interests of the child and the care, development and protection of the child.
An emphasis should be placed on the need to provide services such as contact centres and family support services to help parents have a meaningful relationship with their children, particularly in relation to facilitating contact arrangements, where it may be necessary to have a third party present. This would require additional resources for social services to be able to develop services in this respect.
In relation to the low take up of parental responsibility orders and agreements, many parents may not be aware of the fact that they do not have parental responsibility and an awareness-raising programme about the need to apply for an order or enter into an agreement would perhaps have been helpful in this regard. Consultation with solicitors dealing with applications for parental responsibility on a daily basis would be necessary to ascertain whether there are particular difficulties arising in relation to the granting of parental responsibility orders by the courts.
The primary concern in decisions about parental responsibility must be the best interests of the child. Children should have the right to separate legal representation in contentious proceedings
Ideally, of course, children have the right to family life with parents/carers/relatives with whom they have close personal ties pursuant to Article 8 ECHR and Article 9 UN Convention. The definition under the ECHR of family life does not relate solely to parents, but is much wider encompassing all those with whom the child has close personal ties. Children also have the right however, to be protected from harm and from interference with their family and private life. The position in relation to parental responsibility may be particularly complex in family situations where there has been domestic violence or abuse.
It is important that any change to the law on parental responsibility recognises that a balance must be struck and that there are effective safeguards to protect children in place.
In relation to the ECHR, we agree with the conclusion in the Explanatory Notes that the domestic law as it stands, which requires unmarried fathers to apply for leave from the court for parental responsibility or to draw up a parental responsibility agreement is not incompatible with either Article 6 or Article 8 ECHR. For unmarried fathers who wish to proceed with an application for parental responsibility, the mechanism of accessing a court and lodging an application under the Children (NI) Order 1995 is usually straightforward for an applicant although there may be issues in relation to entitlement of legal aid in this regard. The European Court when examining the issue of leave stated in the case of McMichael v UK;
"It is axiomatic that the nature of relationships of natural fathers with their children will inevitably vary from ignorance and indifference at one end of the spectrum to a close and stable relationship indistinguishable from the conventional matrimonial family based link at the other. The aim of the relevant legislation is to provide a mechanism for protecting the interests of the child and the mother. In the court's view, this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality.".
We do not have, however, any research as to the success or failure of such applications or difficulties in the court process itself encountered by unmarried fathers and as stated above it would be essential in terms of the equality debate for the Committee to obtain information about this, which would be relevant to Article 8 and Article 6 rights.
The acquisition of parental responsibility is not a matter which can be taken lightly. As stated by Ward L J in Re S (parental responsibility) 1993 1 FCR 85,
"It is wrong to place undue and therefore false emphasis on the rights and duties and the powers comprised in parental responsibility and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood."
Parental responsibility gives a parent automatic rights in relation to decision-making processes in relation to their child's name, health, religion and education.
It is for this reason that we are concerned that proper consultation and debate takes place about the amendments to the acquisition of parental responsibility, which the Family Law Bill proposes. It is essential that women and women's groups, groups representing fathers and fathers themselves be properly consulted about the effects of the proposed changes. It is also essential that consultation take place with the legal profession dealing with these issues on a day-to-day basis.
Most importantly, however, we would like to see consultation with children and young people themselves about the important issues raised in this consultation document, about their views on family, responsibility and consent. We would have thought that the question of whether a legal relationship exists with their parents/carers would be secondary to the importance of the care, support and commitment they receive.
We recommend that consultation takes place with children and young people about their perception of family life, care, responsibility and consent.
We recommend that any decisions about the care of a child should be made in the child's best interests, using the welfare checklist at Article 3 Children (NI) Order 1995. The central issue in this Bill should be the appropriate care of and responsibility for children. In the context of any equality debate between fathers and mothers, which appears to be the basis for these proposals, the child's needs should be central and any decisions should be firmly grounded in the paramountcy principle.
We recommend that the child should have separate legal representation in contentious cases.
We recommend that a holistic approach be taken to support for a child's family life, with a review of family support services available for both parents with whom the child resides and non-residential parents.
The research referred to in the Explanatory Notes is in our view inconclusive and further research should be carried out as to the reason for the low numbers of parental responsibility orders and ways in which this could be helped. It may be that unmarried fathers do not have the information they need to apply for an order or agreement or may not be aware of the necessity to make an application. We recommend that some awareness raising should take place with unmarried fathers about the need to enter into a parental responsibility agreement or obtain a court order.
We recommend that a full impact assessment be carried out on these proposals for reform.
WRITTEN SUBMISSION BY:
BELFAST FAMILY PROCEEDINGS COURT STANDING COMMITTEE
With the passage of the Children Act 1989 in England and Wales and the Children (Northern Ireland) Order 1995, the legislature sought, amongst other things, to move from the old concept of "parental rights" to that of "parental responsibility" that is, that parents not only have rights over their children but also that they should have responsibilities and duties towards them. Few people would disagree with that as an ideal, upon which the family should be grounded.
We take it that some of the prime purposes of parental responsibility are to safeguard and protect the best interests of the children, to encourage parents to think and act responsibly towards their children and to realise that they have a duty to ensure that their children are properly brought up to be responsible citizens and parents.
By Article 6 of the Children (Northern Ireland) Order 1995 (hereinafter "the Order") "parental responsibility" means "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
By Article 5 of the Order unmarried fathers do not automatically have parental responsibility but can acquire it in one of two ways, laid out in Article 7. All mothers and fathers married to the child's mother at the time of the birth have parental responsibility.
By Article 7 of the Order the unmarried father can acquire parental responsibility, either, by entering into a "Parental Responsibility Agreement" with the mother, or, by making application to the Court and the Court acceding to that application.
It is also worthy of note that by Article 7(4), parental responsibility acquired by either means may be brought to an end by order of the Court made on the application of "any person who has parental responsibility for the child or, with the leave of the court, of the child himself".
All mothers and married fathers, automatically vested with parental responsibility, can only lose parental responsibility where the child is made the subject of an adoption order. There is no mechanism within the Order to divest them of it.
So the end result is that even where an unmarried father acquires parental responsibility it is not indefeasible, as the mother's and married father's is. At any time, application can be made, most probably by the mother, seeking to take away that was given by her or granted by the court. Where the unmarried father may well have had to go through the demeaning process of process of proving to the Court that he was a father suitable to acquire parental responsibility, he may well have to go through the process a second time to ensure that he does not lose that which was so dearly acquired. The thoroughly unworthy married father (or, for that matter, mother) does not have to face such a prospect.
On any reading of the Order, unmarried fathers are treated differently to the mothers of their children on the grounds of gender.
Equally, unmarried fathers are treated differently to married fathers on the grounds of their marital status.
Perhaps most importantly, the children of unmarried parents are treated differently to legitimate children on grounds, which are completely beyond their control, namely their parents' lack of marital status.
We are of the view that this is threefold discrimination, which has no reasonable justification.
Any legislative body enacting legislation and any court interpreting that legislation must now ensure that it is acting compatibly with the European Charter on Human Rights and Fundamental Freedoms, as given effect to by the Human Rights Act 1998.
Within the area of family law it is primarily the Article 8 - "Everyone has the right to respect for his private and family life, his home and his correspondence" - that is of concern.
"Family life" has been considered by the European Court on many occasions and it is clear that an ever widening interpretation is being given to it.
In Soderback -v- Sweden [1998] an unmarried father and his child were found to enjoy "Family Life", notwithstanding the fact that they have never lived together or had had regular contact. In Boughanemi -v- France [1996] the Court held that "the concept of family life, on which Article 8 is based, embraces, even when there has been no co-habitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate".
In X, Y and Z -v- UK, a case relating to a transsexual couple, the Court said that "when deciding whether a relationship can be said to amount to 'family life' a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means".
The European Court of Human Rights recently considered the issue of parental responsibility in the case of B -v- UK [2000]. In that case, an unmarried father was seeking to compel the return of his child from Italy, whence the mother had gone. He failed before the domestic courts, considering the case before the Human Rights Acts was in force, because, as an unmarried father without parental responsibility, he did not have "rights of custody".
On appeal to the Strasbourg Court, it concluded that "the different treatment under domestic law of the applicant and a father with parental responsibility does not disclose an appearance of a violation of Article 14 in conjunction with Article 8 of the Convention". Put simply, had "B" been married to the mother and therefore vested with parental responsibility, the Court would have required mother and child to return to the United Kingdom; since he was not a married father, he had to be treated differently but, by some sleight of hand, this different treatment was not discrimination, nor a denial of his Article 8 right to "family life".
In coming to this decision the Court said it "has considered that the relationship between unmarried fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit". It is unclear on what basis the Court came to make this statement but any experienced family law practitioner or judge would, we are sure, agree that the characteristics of paternity described by the Court are as commonly found in married as unmarried fathers.
The decision in B -v- UK is manifestly wrong and we are by no means alone in that view. If it is a correct interpretation of the law and that incorporating the European Charter on Human Rights and Fundamental Freedoms, we have to ask why the Northern Ireland Assembly is seeking to amend Article 5 of the Order at all? Further, we are led to believe that an identical amendment is being effected to the Children Act 1995.
If we are correct in concluding that Article 5 of the Order is discriminatory and in breach of Article 8 rights to private and family life, does the proposed change to be effected by the Family Law Bill remedy things?
That change proposed by the Family Law Bill and contained in Article 1(2) is that an unmarried father acquires parental responsibility "if he becomes registered as the child's father"; (the existing means of acquisition, namely by parental responsibility agreement or application to the Court are preserved).
At present, registration of birth has no great significance, save that it is a statutory requirement. If the law is amended in this way, the new importance of registration will have to be brought to public attention and kept there. Thus, both prospective unwed mothers and fathers will have to be aware that the act of jointly registering the birth of their child has consequences for them and they will have to be in agreement on that.
If the mother, knowing that the father will acquire parental responsibility, refuses to allow joint registration or goes behind his back and registers the child herself, has the position of the unmarried father been improved to any degree? Before this amendment, he had to get her consent to enter into a "parental responsibility agreement", after it, she has to consent as described above. Either way, the unmarried father is dependent on the consent of the mother as to whether or not he can have parental responsibility for his child.
Since the legislation will not have retrospective effect, all manner of anomalies are created - the pre-amendment unmarried father who does not have parental responsibility, the pre-amendment unmarried father, who jointly registered the birth with the child's mother but still does not have parental responsibility, the post-amendment father, who does not register the birth, is prevented by the mother from registering the birth or is otherwise unable to register the birth and, therefore, does not have parental responsibility and so on. Perhaps worst of all, the unmarried father of a number of children, who has always registered the births of his family, some of those children being pre-amendment and some post.
Where the Courts now deal with an application for the acquisition of Parental Responsibility, the test is threefold, firstly, is there a degree of attachment between the father and the child, secondly, has the father shown a commitment to the child and finally, is there evidence of any improper motive on his part. This is a demeaning process for any father, as he is really being asked to prove to the Court that he is a worthy parent. The married father, no matter how awful a scoundrel, has nothing to prove - his marriage vows somehow invest him with all that is desirable as a parent - this is palpable nonsense, as any practitioner in our family courts or judicial officer will testify.
At present, on unmarried fathers' applications to the Courts for Parental Responsibility, the chief objection raised by mothers is that this will be used as a means of objectionable interference with the way in which they bring up their children.
This has not proved to be the case with married fathers, who automatically have parental responsibility, and where there is inappropriate meddling by any parent, the Courts are well equipped to deal with the same by way of Specific Issues Orders and Prohibited Steps Orders.
We are satisfied that the amendment to the Order contained in Article 1(2) of the Family Law Bill is an unfortunate half-way house, which fails to rectify a flaringly discriminatory piece of pre-Human Rights Act legislation.
We are quite satisfied that the legislation should be amended to give parental responsibility to both fathers and mothers, whether married or otherwise and equally to amend the Children (NI) Order to allow the Courts, on application of either parent, to divest a parent, whether father or mother, of the same.
Clearly it is undesirable that the convicted rapist should be clothed in parental responsibility for the child, which his offence created; should it not be equally so for the mother (or father) who abandons the children and takes no further interest in them, instead setting up home with another partner and often that person's family? Do any deserve to have the privilege of Parental Responsibility?
The present state of the law on parental responsibility and this proposed amendment discriminate not only against unmarried fathers but also their children. The child of a married couple has two parents, who are "parentally responsible", an illegitimate child has only one. Surely that is unjust and out of step with the rationale of the Children Order, which tries to minimise state intervention in the family ("the No Order principle") and place the responsibility for children on their parents, both of them.
We suspect that the law, as it stands and as it may become in this Bill, breaches Article 7 and 8 of the United Nations Convention on the Rights of the Child 1989.
By Article 1(3) of the Bill "a child's step-parent shall acquire parental responsibility for the child if the court, on application of the step-parent, orders that he shall have parental responsibility for the child".
We are divided as to this amendment.
Some of our numbers welcome it as conferring parental responsibility on married partners who have entered into their marriages, accepting not only the responsibility of their new partner but also of that person's child or children. Frequently, such new married partners are fully deserving of being vested with parental responsibility; equally clearly, there will be exceptions.
Others take the view that this is an inherently dangerous route to take. Practitioners and judges are all too familiar with the scenario where the parent with residence of the children will seek to marginalize the other parent in favour of the new partner.
We take the view that applications by stepparents under this provision will be made with the full support of the natural parent, with whom the children are living. The opposition is most likely to come from the non-resident parent but he or she is not going to be best-placed to challenge the united front of the step-parent and spouse, with whom the children are resident.
There is also a real possibility of ridiculous anomalies. The unmarried mother, having residence of the children, marries and her new partner, the stepfather applies for parental responsibility. At the same time, the unmarried father, not having parental responsibility, applies for contact with his children and parental responsibility. Not having "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child", has he a right to object to the step-father's application? The only person with those is the mother and she is consenting to her new husband's application. The unmarried father without parental responsibility might well find himself being no more than a notice party to such proceedings - an interested but impotent spectator to a process, which further undermines his position as the children's father.
If the courts apply the same tests to the granting of step-parental responsibility, as those previously established, then few of these applications can fail. In the cited example above, doubtless the mother will give glowing testimony as to his credentials. We only have to wonder how we can hope to establish the children's wishes and feelings on the matter and whether such applications will be in their best interests?
On balance we, as a body, are opposed to this amendment.
In conclusion, both of these proposed amendments to the Children (Northern Ireland) Order 1995 are flawed.
The first fails to recognise that very significant numbers of people are choosing not to marry and that of those who do, the failure rate, by way of separation and divorce, is growing year upon year. It seeks to suggest that those who make a public gesture of recognition of their children, namely registration of birth, are in some way more responsible and committed than those who, for whatever reason, do not. In doing so, it simply adds to the list of the discriminated unmarried fathers.
Where the legislation being amended sought to give some greater status to those who went through a ceremony of marriage, now largely without religious significance, and all to often without any degree of permanence, this amendment fails to meet the challenge of a changing society.
The Northern Ireland Assembly has an opportunity in this Bill to meet that challenge and to assert that both the parents of a child are entitled to be regarded equally as parents, irrespective of protocol or bureaucratic actions.
The second amendment, whilst having superficial attractiveness, has all the potential for proving that the unmarried father is truly a second-class citizen and not worthy of our further consideration. It compounds the injustice done by Article 5 of the Order and its present proposed amendment and lends itself to supplanting the natural father, whether married or not, with the mother's latest choice of mate.
DESMOND PERRY, RM
CHAIRMAN
WRITTEN SUBMISSION BY:
COMMITTEE ON THE ADMINISTRATION OF JUSTICE
WHAT IS THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE (CAJ)?
CAJ is an independent non-governmental organisation which is affiliated to the International Federation of Human Rights (IFHR). CAJ monitors the human rights situation in Northern Ireland and works to ensure the highest standards in the administration of justice. We take no position on the constitutional status of Northern Ireland, seeking instead to ensure that whoever has responsibility for this jurisdiction respects and protects the right of all. We are opposed to the use of violence for political ends.
CAJ has since 1991 made regular submissions to the human rights organs of the United Nations and to other international human rights mechanisms. These have included the Commission on Human Rights, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, the Human Rights Committee, the Committee Against Torture, the Committee on the Rights of the Child, the Committee on the Elimination of Racial Discrimination, the Special Rapporteurs on Torture, Independence of Judges and Lawyers and Extra judicial, Summary and Arbitrary Executions, the European Commission and Court of Human Rights and the European Committee on the Prevention of Torture.
CAJ works closely with international NGOs including Amnesty International, the Lawyers Committee for Human Rights and Human Rights Watch.
Our activities include publication of human rights information; conducting research and holding conferences; lobbying; individual casework and legal advice. Our areas of expertise include policing, emergency laws, children's rights, gender equality, racism and discrimination.
Our membership is drawn from all sections of the community in Northern Ireland and is made up of lawyers, academics, community activists, trade unionists, students and other interested individuals.
CAJ was awarded the Council of Europe Human Rights Prize in 1998 in recognition of our work in defence of rights in Northern Ireland. Previous recipients of the award have included Medecins Sans Frontieres, Raoul Wallenberg, Raul Alfonsin, Lech Walesa and the International Commission of Jurists.
INTRODUCTION
CAJ welcomes the opportunity to comment on the Family Law Bill. We commend the extension of the right to acquire parental responsibility to step-parents. We are concerned however that in seeking to clarify and facilitate the acquisition by unmarried fathers of parental responsibility the Bill may not provide adequate protection for children and women. We believe that the text as proposed fails to take account of the range of situations which need to be addressed in what is a complex and sensitive area.
In particular we have some serious concerns about the consultation process and the potential impact of certain clauses in the Bill. Most of these reflect the apparent failure to consider the impact the Bill is likely to have on the rights of women and children. In this regard we are concerned that, according to the explanatory notes to the Bill, while the consultation process took into account the views of men's groups, there is no mention either of women's or children's groups. Such an omission, in the context of a consultation process on a piece of family legislation is unfortunate.
Parental Responsibility
Clause 1 of the Bill proposes to amend the Children (NI) Order 1995 (the Order) to facilitate the acquisition of parental responsibility by unmarried fathers. The explanatory notes state that this is the "primary purpose" of the Bill.
Article 6(1) of the Order defines parental responsibility as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." These are clearly considerable powers of control over a child's life.
CAJ would welcome efforts to ensure that unmarried fathers who have agreed to found a family are not disadvantaged in their legal position vis a vis married fathers. However the Bill proposes no mechanism to distinguish between persons who have agreed to found a family (whether married or unmarried) and those who have not. To protect the rights of women, it is essential that they are not effectively forced to found a family where there was no agreement to do so. This could potentially constitute discrimination (Article 14, ECHR) in relation to the unmarried mother's right to found a family (Article 12, ECHR) and/or infringe her right to privacy and family life (Article 8, ECHR). The absence of a mechanism to consider the circumstances and the potential for abusive partners to force women to co-operate in jointly registering the child's birth could infringe her right to a fair hearing (Article 6, ECHR).
McMichael v UK (1995) 20 EHRR 205 is relevant in this regard. In this case the applicant, an unmarried father, complained that he had been discriminated against contrary to article 14 of ECHR taken together with article 6 (right to a fair trial) and article 8 (privacy and family life). The court held that there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers as follows:
"It is axiomatic that the nature of relationships of natural fathers with their children will inevitably vary from ignorance and indifference at one end of the spectrum to a close and stable relationship indistinguishable from the conventional matrimonial based family unit at the other. The aim of the relevant legislation is to provide a mechanism for identifying 'meritorious' fathers who might be accorded parental rights thereby protecting the interests of the child and the mother. In the Court's view this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality."
CAJ believes that the new mechanism proposed - that the father would register the birth with the mother is not capable of providing protection to the mother and certainly not the child. There is no requirement whatsoever for the unmarried father to provide or intend to provide any emotional or practical care to the child or the mother in order to acquire joint authority with her over the child. This does not address the disadvantageous position of women in relation to stereotypical gender roles and may place unmarried women in a more subordinate position than is the case at present within their families. Equality is not being promoted if a women carries all the burden of caring for the child but only half of the authority to take decisions in relation to him or her. (See Appendix)
Nevertheless, in circumstances where the partners have agreed to found a family, there does seem to be a discrepancy in the rights of married and unmarried people, which would usefully be addressed. In relation to adult heterosexual relationships, the Mental Health (NI) Order 1986, article 32, accords unmarried partners the status of 'next of kin' for the purposes of decisions regarding compulsory detention of a partner if they have been living together for a period of six months. It may be useful to explore whether a similar residency period with the mother and child would be sufficient to protect the child's interests and establish the unmarried fathers parental rights automatically at the same time and in the same way as both adult partners acquire responsibility for each other in respect of mental health issues. The potential impact of this and any other proposal would, however, need to be properly researched to ensure that there was no foreseeable negative impact on the rights of the mother and child.
This does not deal with circumstances where an unmarried father does not live with the child's mother but would wish to contribute to the child's upbringing and development. Nor does it deal with the situation where an unmarried father does not live with the child's mother but is equally involved in caring for him or her. These are complex matters and the legislation in this area needs to be sufficiently flexible to deal with them. For example it may be useful to consider drawing a distinction between promoting contact and kinship relationships and acquiring control.
Article 3 of the UN Convention on the Rights of the Child stipulates that the best interests of the child shall be "a primary consideration" in all actions concerning children. We do not believe that the automatic granting of parental responsibility to an unmarried father who plays no constructive role in caring for the child is necessarily in the best interests of the child. The Convention also asserts that control should only be exercised over a child to the extent necessary to provide him or her with necessary care and support and should diminish as the child develops and is able to take his or her own decisions independently. No one should have a right to a say in matters affecting him or her and government must ensure that law and policy do not make a child more vulnerable to abuse. (See Appendix)
The concepts of care and control need to be closely allied in order to protect the child's best interests, particularly in private law cases (that is, disputes between individuals). We are concerned that no link has been made in the Bill between the acquisition of parental responsibility and caring for the child.
A fundamental issue is that although the term 'parental responsibility' is used, what is being described is parental authority. The law does not require a person with parental responsibility to be engaged in any way in the child's social and emotional life. An absence of malice is presumed. Those who acquire parental responsibility automatically (ie married parents and unmarried mothers) retain it permanently regardless of their behaviour towards the child. There is no distinction made between people who provide care and those who simply exercise control, once they have the legal right to do so. There are no criteria for the courts to use in deciding who shall acquire parental responsibility. Higgins, J (in Re E (T26/99/OCP) notes that case law in England and Wales refers to the fact that the welfare of the child is the court's paramount consideration and
"suggest that three factors are relevant, but they are not an exhaustive list.
These factors are -
1. the degree of commitment by the father towards the child;
2. the degree of attachment between the father and the child;
3. the reasons why the father is applying."
Elsewhere in his judgement, however, he states that
"For my part, I doubt very much whether a court when considering whether or not to make a parental responsibility order is determining any question with respect to the upbringing of a child."
CAJ accepts that Mr Justice Higgins is probably making an accurate observation about the current decision making process in the courts. It is, however, difficult to see how courts can be acting in a child's best interests if decisions about who acquires control are not based on an examination of whether the person needs authority to provide care and contribute to the child's upbringing. On such sensitive family matters, courts can usefully be provided with appropriate criteria, which would resolve these matters on the basis of applying the relevant international standards.
Finally, while we commend the extension of a right to acquire parental responsibility to stepparents, it will be important that the child's best interests are the primary consideration, that the stepparent is providing care for the child; and that the child's wishes and feelings in the matter have been given due weight. This can usefully be made explicit - preferably in the Bill, but if not, then in the rules of the court accompanying them.
TESTS FOR DETERMINING PARENTAGE
This is a very specialist area and CAJ has no expertise in the potential impact of the legislation proposed. It would be important, however, to ensure that the best interests of the child be a primary consideration in decisions to make such a test. This stipulation could easily be added to the Bill. The child's view and that of the mother should be sought although no child should be forced to express a view. Decisions should then be taken within the context of the child's best interests.
FINANCIAL IMPLICATIONS
The explanatory notes suggest that the costs of implementing the Bill will be minimal. CAJ believes this to be unrealistic. According to the explanatory notes approximately 4000 unmarried fathers annually, who do not currently have parental responsibility for children, will acquire it in respect of those children whether or not they intend providing any care and support to them. There are likely to be a substantial number of applications for removal of parental responsibility in cases where the mother is the sole carer and/or in other circumstances where she believes it is not in her or the child's interests that the natural father have a control over the child's life. Therefore it is likely that there will be an increase in the workload of the legal aid department, the court and the social services with consequent strains on financial and other resources.
RECOMMENDATIONS
1. Research should be carried out into the current situation and the impact of any proposed changes.
2. The principles set out in international standards should underpin the legislation. For example, the best interests of the child should be a primary consideration in all matters affecting him or her. Children's wishes and feelings should be taken into account and given due weight in matters affecting them.
3. The Assembly should reconsider its proposal to automatically grant parental responsibility to unmarried fathers and replace them with proposals which take account of the range of situations which exist.
4. The law in relation to the concept of parental responsibility should be reviewed to ensure that no one exercises control over children's lives, except to the extent necessary to provide care and contribute constructively to their upbringing.
5. It may be useful to make a distinction in law between promoting contact and kinship and acquiring or retaining control. The concepts of care and control need to be closely linked to protect the child's interests. This is not currently the case.
6. Unmarried fathers do need to be facilitated to provide care and support to their children. This should be done in such a manner as to recognize the rights of the mother and the children as well as those of the father. This matter could usefully be further explored in conjunction with women's and children's rights groups as well as men's and professional groups.
7. In relation to mental health issues, the law accords unmarried partners the status of 'next of kin' for some purposes if they have been living together for a period of six months. It may be useful to explore whether a similar residency period with the mother and child would be sufficient to protect the child's interests if it established the unmarried fathers parental rights automatically thereafter.
8. Courts can usefully be provided with specific criteria to use in relation to determining who should acquire parental responsibility and when they should lose it.
Appendix
relevant international human rights standards
In addition to the European Convention on Human Rights the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 and the UN Convention on the Rights of the Child (UNCRC) 1989 have specific relevance.
The UK government is signatory to both Conventions. CEDAW asserts that signatories acknowledge that despite various international instruments "extensive discrimination against women continues to exist". It also sets out some important commitments and rights in relation to gender equality and family life. These are as follows:
Signatories are ". Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women.".
"State Parties condemn discrimination against women in all its forms." (Article 2)
"State parties shall take all appropriate measures:
a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on the stereotyped role for men and women;
b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children; it being understood that the interest of the children is the primordial consideration in all cases." (Article 5)
"1. State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:.
d) "the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children, in all cases the interests of the children shall be paramount,".
f) "the same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount." (article 16)
(our emphasis)
In light of the above the Assembly should in formulating legislation:
a) Take all appropriate measures to end discrimination against women in public and family life
b) Educate the public with a view to promoting more equal gender roles in public and family life
c) Promote an understanding of maternity as a social function and the recognition of a common responsibility of men and women in the upbringing and development of their children, irrespective of their marital status and
d) Only undertake a) to c) in a way which will protect children and is consistent with acting in their best interests.
It is our view and consistent with CEDAW that, while the promotion of gender equality is essential the acquisition of parental responsibility by any person is primarily a children's rights issue.
United Nations Convention on the Rights of the Child (UNCRO)
The UNCRC does not define parents. For simplicity in making this response, however, CAJ will discuss all married and unmarried mothers and fathers as 'parents' within the meaning of the UNCRC.
The general principles which the Convention establishes are:
Article 2 - Non-discrimination
Government ".shall respect and ensure the rights set forth in the present Convention to each child .without discrimination of any kind irrespective of his or her parents' or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, birth, or other status".
As with CEDAW, UNCRC makes it clear that it would not be appropriate to disadvantage a child, in making decisions about them, solely on the basis of the marital status of their parents. In relation to parental responsibility, the desire of a parent to have the control which this legal status gives could not, however, provide definitively that a child would be disadvantaged if the parent did not acquire it. This would depend on the function of 'parental responsibility', the purpose of the parent acquiring control, and the likely effect on the child's life of such control being exercised in the child's particular circumstances. (see below: Parental Responsibility)
Article 3 - Best interests of the Child
This article requires that "In all actions concerning children . the best interests of the child shall be a primary consideration ." and that government " .shall ensure the child such protection and care as is necessary for his or her well being."
The best interests principle must underpin consideration of all other rights and responsibilities set out in the Convention. No one should acquire or continue to exercise parental responsibility unless it is in the child's best interests that they do so. Similarly no one should seek to establish that a person is or is not a biological parent unless this is in the child's interests. The 'best interests principle' has been omitted from key clauses of the bill and is not discussed in the explanatory notes.
Article 12 - The Child's Opinion
Government ".shall assure to the child who is capable of forming his or her own view the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child ."
Although most of the children who would be affected by the Bill in relation to acquisition of parental responsibility are too young to express a view, this may be less certain in relation to paternity testing. In both instances, all children who are able to express an opinion should have their views taken into account in the matters affecting them. No law should force children to express opinions on any matter when they do not wish to do so. The current experience of children in various sorts of families could reasonably be taken into account in considering the impact of current law and the potential impact of changes to it. Children who cannot express a view require additional protection.
Article 19 - Protection from Abuse and Neglect
Government ".shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment or exploitation including sexual abuse while in the care of parent(s), legal guardian(s), or any other person who has care of the child."
Government cannot ignore the potential for people who should provide care and protection to a child to abuse the child. The Assembly should be reasonably satisfied that the law does not facilitate persons who currently exercise parental responsibility in using this status to act maliciously, irresponsibly or abusively towards the child.
Nor can they give control over a child's life to people who do not provide care to him or her unless they can be reasonably sure that such persons can be relied upon to act in the child's interests.
Other articles in UNCRC have specific relevance in considering the raising of children in families and in communities.
State Parties must ".use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern." (article 18)
The equality principle is reiterated here in the context of both parents engaging in caring for and raising the child and acting in the child's best interests.
A child has a ".right to know and be cared for by his or her parents." (article 7)
While most of this article deals with the child's right to a name and nationality, this part of the article seems to go some way to recognising the importance of kinship and biological connection. It must, however, be read in conjunction with the general principles outlined above. This applies equally to all parents.
Government is also required to ".respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians, or other persons legally responsible for the child in a manner consistent with the evolving capabilities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the convention." (article 5)
The rights and responsibilities of parents and others to control the child's life should only be exercised in a manner which is consistent with the child's own evolving capacity to take his or her own decisions. The importance of the contribution of the child's extended family and community are also recognised.
In short, to comply with UNCRC the Assembly should in formulating legislation:
a) Ensure no child is disadvantaged because of the marital status of the child's parents.
b) Ensure the child's best interests are a primary consideration in all matters affecting him or her.
c) Give due weight to the child's views when he or she can express them.
d) Ensure the child's protection and safety, whether or not he or she is able to express a view.
e) Respect the importance of parents, extended family and community to the child and help the child maintain kinship connections where possible.
f) Promote the principle of equality in both parents caring for and raising their child.
g) Ensure that control is only exercised, by any person, to the extent necessary to provide care for the child and not when the child's developing capabilities enable him or her to take decisions for him or her self.
WRITTEN SUBMISSION BY:
THE BAR COUNCIL
FAMILY BAR ASSOCIATION OF NORTHERN IRELAND
1. Acquisition of parental responsibility by father or step-parent:-
It is noted that the Family Law Bill amends the Children (Northern Ireland) Order 1995 and provides that an unmarried father who jointly registers the birth of his child with the child's mother shall have parental responsibility for that child. Further, that the Bill provides that a step-parent may apply to a court for an order conferring parental responsibility on a step-parent in relation to a child of his or her spouse. The Bill provides for parental responsibility to be terminated only by court order.
It is stated in the Memorandum supplied with the Draft Bill that
"[t]these proposals go further than the present law which uses marriage or the seeking of a parental responsibility agreement or order as the means by which a father demonstrates commitment to his child. The new law requires all fathers to take some step, either by marriage, by jointly registering the child's birth, or by making a parental responsibility agreement or applying for a parental responsibility order."
First, it is noted that any amendments made to the Children (Northern Ireland) Order 1995 are minor. The law appears to take a very conventional view of family life allowing for putative fathers or married step-parents only being those who are envisaged as acquiring parental responsibility. This portrays a most conservative and conventional vision of family life.
Society is rapidly changing as is the composition of the family.
There may be many family units in which the main carers for a child would not be in a position to acquire a parental responsibility order pursuant to Article 7 of the Children (Northern Ireland) Order (as amended).
However, this can often be remedied by application for a residence order and with reference to Article 12(2) of the Children (Northern Ireland) Order 1995
"Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force".
Providing, of course, that the provisions of Article 10 of the Children (Northern Ireland) Order 1995 are met.
It is also noted that under Article 6(4) of the Children (Northern Ireland) Order 1995 remains unaltered The fact that a person has, or does not have, parental responsibility for a child shall not affect -
(a) any such obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or
(b) any rights which, in the event of the child's death, he (or any other person) may have in relation to the child's property.
However, it is often argued by Counsel that maintaining a child demonstrates a commitment to that child in keeping with in D-v- Hereford & Worcester County Council [1991] Fam 14, [1991] 1 FLR 205: see also Re C and V (Parental Responsibility) [1997]Fam Law 583, whereby, in cases where one can demonstrate commitment, attachment and no improper motive a parental responsibility order is generally granted.
It is noted that the Memorandum provided to accompany the Draft Bill states that there are few applications brought for a written agreement with the child's mother which is registered in the High Court or by order of the court.
The majority of applications for parental responsibility are made in the Family Proceedings Court (Magistrates level). Parental responsibility applications regularly and frequently accompany private law contact applications. It is the norm for these applications to be made, and granted, in accordance with arguments consistent with D-v-Hereford & Worcester County Council. Such applications are normally granted.
2. Presumption of parentage:-
It is noted that the Bill introduces a statutory presumption of paternity in certain cases, namely if (a) a man is married to the child's mother; or (b) he has been registered as the child's father in the Register of Births.
This proposal merely puts a common law presumption into statutory form and does not substantively alter the present situation in law. This appears to be a modest reform in the current legal situation.
3. Tests for determining parentage:-
It is noted that the Bill amends the Family Law Reform (Northern Ireland) Order 1977 and extends the power of the court from directing the taking of blood samples alone to the taking of bodily samples.
This appears to be a sensible extension of the power of the court in keeping with advances in scientific methods of determining paternity. Further, with regard to recent advances in DNA testing and non-intimate samples such testing may prove less distressing for the child who is subject matter of a parentage dispute rather than the taking of blood samples.
Top
LIST OF WITNESSES THAT GAVE ORAL EVIDENCE
Wednesday, 7 March 2001
Belfast Family Proceedings Standing Court Committee
Ms Karen Fox
Ms Colette Bowman-McAlister
Office of Law Reform
Ms Christine Archbold
Mr Neil Lambe
Wednesday 21, March 2001
Office of Law Reform
Ms Christine Archbold
Mr Neil Lambe
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MINUTES OF EVIDENCE
Wednesday 7 March 2001
Members present:
Dr Hendron (Chairperson)
Mr Gallagher (Deputy Chairperson)
Ms Armitage
Mr Berry
Ms Hanna
Mr J Kelly
Mr McFarland
Ms McWilliams
Ms Ramsey
Mrs I Robinson
Witnesses:
Ms K Fox ) Belfast Family Proceedings
Ms C Bowman-McAlister ) Court Standing Committee
1.
The Chairperson: You are both very welcome. Please begin your presentation.
2.
Ms Bowman-McAlister: We feel that the written submissions are relatively straightforward and, as we said to a member of Dr Hendron's staff, the ten-minute presentation may not be necessary. However, if you prefer, we will give a summary.
3.
Dr Hendron: We need a summary for the recording.
4.
Ms Bowman-McAlister: With the passage of the Children Act 1989 in England and Wales and the Children (Northern Ireland) Order 1995, the legislators sought, among other things, to move from the old concept of parental rights to that of parental responsibility. That is that parents not only have rights over their children but responsibilities and duties towards them as well. Few people would disagree that that is an ideal upon which the family should be grounded.
5.
We need to safeguard and protect the best interests of the children and to encourage parents to think and act responsibly towards them. Parents should also realise that they have a duty to ensure that their children are brought up to be responsible citizens and parents.
6.
Under article 6 of the Children (Northern Ireland) Order 1995, which we will refer to now as the Order, parental responsibility means all the rights, duties, powers and authority which, by law, a parent of a child has in relation to that child and his property.
7.
Under article 5 of the Order, unmarried fathers do not automatically have parental responsibility, but they can acquire it in one of two ways, laid out in article 7. All fathers married to the child's mother at the time of the birth have parental responsibility.
8.
By article 7 of the Order, an unmarried father can acquire parental responsibility either by entering into a parental responsibility agreement with the mother, or by making an application to the court to which the court accedes. It is also noteworthy that under article 7(4), parental responsibility, acquired by either means, may be brought to an end by a court order. That can be made on the application of any person who has parental responsibility for the child or, with the leave of the court, of the child himself.
9.
All mothers and married fathers automatically vested with parental responsibility can only lose that responsibility where a child is made the subject of an adoption order. There is no mechanism in the Order to divest them of that. The end result is that, unlike the mother's and married father's responsibility, where an unmarried father acquires parental responsibility, it is not indefeasible.
10.
Application can be made at any time, most probably by the mother seeking to remove that which was granted to her by the court.
11.
An unmarried father may have to go through the demeaning process of proving to the court that he is the father and therefore a suitable person to acquire parental responsibility. He may have to go through the process a second time to ensure that he does not lose that which was so dearly acquired.
12.
The thoroughly unworthy married father, or for that matter mother, does not have to face such a prospect. On any reading of the Order, unmarried fathers are treated differently from mothers on the grounds of gender. Equally, unmarried fathers are treated differently from married fathers on the grounds of their marital status. Perhaps, and this is most important, the children of unmarried fathers are treated differently from legitimate children on grounds which are completely beyond their control, namely the fact that their parents are not married. We are of the view that this is three-fold discrimination which has no reasonable justification. Any body enacting legislation and any court interpreting that legislation must now ensure that it is acting compatibly with the European Convention on Human Rights and Fundamental Freedom, which was given effect by the Human Rights Act 1998.
13.
Within the area of family law it is primarily article 8 - everyone has the right to respect for his private and family life, his home and his correspondence - that is of concern. Family life has been considered by the European Court on many occasions, and it is clear that an ever widening interpretation has been given to it. In Soderback -v- Sweden, 1998, an unmarried father and his child were found to enjoy family life, notwithstanding the fact that they never lived together or had regular contact. In Boughanemi -v- France, 1996, the court held that the concept of family life on which article 8 is based embraces, even when there has been no cohabitation, the tie between a parent and his or her child regardless of whether or not the latter is legitimate. In X, Y and Z -v- United Kingdom, a case relating to a transsexual couple, the court said
"when deciding when a relationship can be said to amount to family life a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having the children together or by any other means."
14.
The European Court of Human Rights recently considered the issue of parental responsibility in the case of B -v- United Kingdom, 2000. In that case an unmarried father was seeking to compel the return of his child from Italy, where the mother had gone. He failed before the domestic courts, which considered the case before the Human Rights Act was given effect. As an unmarried father without parental responsibility, he did not have the right to custody.
15.
On appeal, the Strasbourg court concluded that
"the different treatment under domestic law of the applicant and a father with parental responsibility did not disclose an appearance of the violation of article 14 in conjunction with article 8 of the convention."
16.
Put simply, had B been married to the mother and therefore vested with responsibility, the court could have required the mother and child to return to the United Kingdom. Since he was not a married father he had to be treated differently but, by some sleight of hand, this different treatment was not discrimination or denial of his article 8 right to family life.
17.
In coming to this decision the court said
"the relationship between unmarried fathers and their children there is from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit."
18.
It is not clear on what basis the court came to make this statement, but any family law practitioner would, we are sure, agree that the characteristics of paternity described by the court are as commonly found in married as in unmarried fathers.
19.
The decision in B -v- United Kingdom is manifestly wrong, and we are by no means alone in having that view. If it is the correct interpretation of the law and that incorporating the European Convention on Human Rights and Fundamental Freedom, we have to ask why the Northern Ireland Assembly is seeking to amend article 5 of the Order at all. We are further led to believe that an identical amendment is being effected to the Children Act 1995. If we are correct in concluding that article 5 of the Order is discriminatory and in breach of the article 8 rights to private and family life, does the proposed change to be effected by the Family Law Bill remedy things?
20.
The change proposed by the Family Law Bill, contained in article 1(2), is that an unmarried father should acquire parental responsibility "if he becomes registered as the child's father" - the existing means of acquisition, namely by parental responsibility agreement or application to a court, are preserved.
21.
At present, registration of birth has no great significance, save to say that it is a statutory requirement. If the law is amended in this way, the new importance of registration will have to be brought to the attention of the public and kept there. Thus, both prospective unwed mothers and fathers will have to be aware that the act of jointly registering the birth of their child has consequences for them and they will have to be in agreement on that.
22.
If the mother, knowing that the father will want to have parental responsibility, refuses to allow joint registration or goes behind his back and registers the child herself, will the position of the unmarried father have been improved to any degree? Without this amendment he has to get her consent for a parental responsibility agreement as described above. Either way an unmarried father is dependent upon the consent of the mother for acquiring parental responsibility for his child.
23.
Since the legislation will not have retrospective effect all manner of anomalies will be created: the pre-amendment unmarried father who does not have parental responsibility; the pre-amendment unmarried father who jointly registered the birth with the child's mother but still has no parental responsibility; the post-amendment father who is prevented by the mother from registering the birth or is otherwise unable to register the birth and therefore does not have parental responsibility; and so on. Perhaps, worst of all, is the unmarried father of a number of children who has always registered the births of his family, some of those children being pre-amendment and some post.
24.
Where the courts deal with an application for the acquisition of parental responsibility the test is three-fold. First, is there a degree of attachment between the father and the child? Secondly, has the father shown a commitment to the child? Finally, is there evidence of an improper motive on the part of the father?
25.
This is a demeaning process for any father because all he is being asked is to prove to the court that he is a worthy parent. A married father, no matter how awful a scoundrel, has nothing to prove. His marriage vows somehow invest him with all that is desirable as a parent. This is a palpable nonsense, as any judicial officer or practitioner in our family court will testify.
26.
At present, the chief objection raised by mothers over an unmarried father's application to the courts for parental responsibility is that this will be used as a means of objectionable interference with the way in which they bring up their children. This may not prove to be the case with married fathers who automatically have parental responsibility and, where there is inappropriate meddling by any parent, the courts are well equipped to deal with this by way of specific issue orders and prohibitive steps orders. We are satisfied that the amendment to the Order contained in clause 1 (2) of the Family Law Bill is an unfortunate halfway house which fails to rectify a glaringly discriminatory piece of pre-Human Rights Act legislation. We are satisfied that the legislation should be amended to give parental responsibility to both fathers and mothers, whether they are married or not.
27.
Equally, the Children (Northern Ireland) Order 1995 should also be amended to allow the courts, on application of either parent, to divest a parent of the same responsibilities - whether that is the father or the mother. Clearly, it is undesirable that a convicted rapist should be clothed with parental responsibility for a child, which is an offence created. Should it not be equally so for the mothers or fathers who abandon their children and take no interest in them, preferring instead to sit at home with another partner and, in many cases, with that person's family? Do they deserve the privilege of parental responsibility? Clause 1 (3) of the Bill states
"a child's step-parent shall acquire parental responsibility for the child if the court, on application of the step-parent, orders that he shall have parental responsibility for the child."
28.
We are divided on this amendment. Some of our number welcome it as conferring parental responsibility on married partners who have entered into marriages accepting not only responsibility for their new partners, but also responsibility for those people's children. Frequently such newly-wed partners are fully deserving of being vested with parental responsibility.
29.
Equally, there will be exceptions. Others take the view that this is an inherently dangerous route to take. Practitioners and judges are all too familiar with the scenario in which a parent with residence of the children seeks to marginalize the other parent in favour of the new partner. We take the view that applications by step-parents under this provision will be made with the full support of the natural parent with whom the children are living. The opposition is most likely to come from the non-resident parent, but he or she will not be best placed to challenge the united front of step-parent and spouse with whom the children are resident. There is a real possibility of ridiculous anomalies, such as where an unmarried mother with residence of the children marries and her new partner and stepfather both apply for parental responsibility. What about the unmarried father without parental responsibility? What happens if he applies for contact with his children and for parental responsibility? Not having all the rights, duties, powers, responsibilities and authority which, by law, the married parent of a child has, has he the right to object to the stepfather's application? The only person to have those rights is the mother, and she is consenting to the new husband's application.
30.
The unmarried father without parental responsibility may well find himself being no more than a novice party to such proceedings - an interested but impotent spectator to a process which further undermines his position as the children's father. If the courts apply the same test to the granting of step-parental responsibility as those previously established, few of these applications will fail. In the example cited above, it is doubtless that the mother will give glowing testimony about his credentials. We have only to wonder how we can hope to establish the children's wishes and feelings on the matter and whether these applications will be in their best interests. On balance, we as a body are opposed to this amendment.
31.
In conclusion, both of these proposed amendments to the Children (Northern Ireland) Order 1995 is flawed. It fails to recognise that significant numbers of people are choosing not to marry and that for those who do, the failure rate by way of separation and divorce is growing year upon year. It seeks to suggest that those who make a public gesture in recognition of their children, namely registering their births, are in some way more responsible and committed than those who, for whatever reason, do not. This will simply add to the discrimination against unmarried fathers. Amending legislation to give some greater status to those who go through the ceremony of marriage -now largely without religious significance and all too often without a degree of permanence - is failing to meet the challenge of a changing society.
32.
The Northern Ireland Assembly has an opportunity in this Bill to meet that challenge and to assert that both the parents of a child are entitled to be regarded equally as parents, irrespective of protocol or bureaucratic actions. Despite having a superficial attractiveness, the second amendment has the potential to prove that an unmarried father is truly a second-class citizen and not worthy of our further consideration. It will compound the injustice done by article 5 of the Order. Lastly, this proposed amendment levels itself to the supplanting of the natural father, whether married or not, by the mother's latest choice of mate.
33.
The Chairperson: Certainly it is a complex problem, but it is important. Have you or your people discussed this subject with the Office of Law Reform?
34.
Ms Bowman-McAlister: We have not discussed it with the Office of Law Reform.
35.
The Chairperson: Have you plans to do so?
36.
Ms Bowman-McAlister: No date has been arranged as yet. I suppose we could if that were found to be necessary. The timescale within which we were told to make these submissions was relatively short - only five days.
37.
Ms Fox: The first notification that we got about this was when we received the Family Law Bill from this office. Thereafter we submitted our written representations on the Bill.
38.
The Chairperson: Were you or your organisation consulted by the Office of Law Reform?
39.
Ms Bowman-McAlister: No. I do not believe that we were.
40.
The Chairperson: It said that it consulted widely, but you were not part of that consultation.
41.
Ms Bowman-McAlister: No. I spoke to Ms Archbold from the Office of Law Reform this afternoon and it seems that it was in contact with the Courts Service, which did not forward our name. We are a relatively new group in the Family Proceedings Court process, so it may just have been through an oversight that we were not referred to it.
42.
The Chairperson: There is a lot of detail in your document, which is very important. I would appreciate it if you could give us, in your own words, the main points in the Bill that you object to or have difficulty with.
43.
Ms Bowman-McAlister: If you look at the third page of the document, you will see in the second, third and fourth paragraphs that unmarried fathers are treated differently from mothers on the grounds of their gender; that unmarried fathers are treated differently from married fathers on the grounds of their marital status; and that children of unmarried parents are treated differently from legitimate children on grounds of their parents' marital status, which is completely beyond their control. These are our three points.
44.
In relation to gender, it appears on our reading - and we are subject to correction - that if an unmarried father seeks to have parental responsibility, he has to get the permission of mother. We cannot see any great distinguishable grounds for allowing that difference other than the fact that she is female and we know that she is the mother. We do not think that this is a good enough reason to disbar - and we hope that the Committee agrees with us - what may well be a very good father from having a right to a say in his child's life.
45.
The Chairperson: That is a fair point.
46.
Ms Bowman-McAlister: The next point deals with being treated differently on the grounds of marital status. An unmarried father has to seek the permission of a court, or at least the permission of the mother, to acquire parental responsibility. Only when he receives parental responsibility does he have a say. However, there are situations in which a mother goes off, finds a new partner and decides that the new partner should take on the everyday practical duties of fatherhood and have a say in the child's life. The natural father is, by and large, sidelined. In that instance, we have a father who, having acquired parental responsibility, may be in the position of having to justify that each time the mother changes partner.
47.
A married father's position is different - simply because of his band of gold there is an impression that he will be a perfect father. In most cases I am glad to say that he is. However, unfortunately there are cases in which a married father does not accept the everyday practicalities of bringing up his child and does not carry out the normal duties of care, control, love and concern. Nobody can divest him of his parental responsibility, even if he behaves in the most shameless fashion. You have a married man who does not have to justify his position at all, as opposed to an unmarried man who seems to be constantly having to persuade people to let him get parental responsibility and, if he gets it, to let him keep it.
48.
The Chairperson: That is a very fair point. I will open the discussion up to my colleagues.
49.
Mr McFarland: I am not well up on legal matters. You are a committee from the Family Proceedings Court in Belfast?
50.
Ms Bowman-McAlister: Yes.
51.
Mr McFarland: Is this a democratically elected standing committee brought into being by all those involved in the court? Is it official and recognised?
52.
Mrs Bowman-McAlister: We are a group that was set up by the resident magistrate in the Family Proceedings Court, Mr Desmond Perry, about 18 months to two years ago. Legal practitioners, social workers, members of the Courts Service and various lay panel members are all represented on the group and all views are expressed.
53.
This document in front of the Committee is based on the type of thing we see daily in practice. Ms Fox and I are practitioners with a large children/matrimonial practice. Our views have been compiled through discussion with our colleagues and in this group - which is a concentrated version of the great number of practitioners out there - and the same views are expressed over and over again, given what we see daily, particularly in the area of parental responsibility.
54.
Mr McFarland: So this is the view of the Family Court, which would normally deal with this sort of thing?
55.
Ms Bowman-McAlister: Yes.
56.
Mr McFarland: I am very confused about how we have got to this stage. A Bill is being produced by the Office of Law Reform. It has given us a list as long as your arm of the people it has consulted on this, yet your organisation was somehow left out of the loop. Were you aware that it was drafting such a Bill? If you were aware of this, and it has been going on for some time, was it not reasonable to expect your organisation to have made a submission? My understanding is that you did not, although the Courts Service itself was invited to do so. Do you know if it made a submission in?
57.
Ms Bowman-McAlister: No, I am not aware of that.
58.
Mr McFarland: I am confused about how we have come so far down the road, and yet only now does the Belfast Family Proceedings Court Standing Committee suddenly come over the horizon full-tilt at the Bill. The Bill is very far down the road.
59.
The Chairperson: This is its Committee Stage.
60.
Mr McFarland: Is there a ready explanation for that?
61.
Ms Bowman-McAlister: No, I do not have a ready explanation. We made our submission upon invitation. We have been voicing concerns among ourselves for a long time. We did not make a submission until we were invited to do so. I cannot say why, but it is apparent that we were not invited to do so before February.
62.
The Chairperson: We will, certainly, be asking the Office of Law Reform why your organisation was not included in the consultation.
63.
Mr J Kelly: That is the question I was going to ask. What are you proposing to do to counteract this?
64.
Ms Bowman McAlister: The view of the group is that this is an all-or-nothing situation. Everyone - mothers and fathers, married or unmarried - should receive parental responsibility. The legislation allows for that, with a clause that allows for an unreasonable parent to have that parental responsibility taken away following application from any interested party. Or, alternatively, absolutely no one gets it - mothers, fathers, married or unmarried alike - though if circumstances prove to be exceptional, an application can be made to a court for parental responsibility.
65.
Mr J Kelly: I agree that the natural father ought to have rights over a child that he has fathered.
66.
Ms Fox: Or responsibility.
67.
Mr J Kelly: Yes, responsibility in addition to rights. Responsibility is perhaps the overriding issue.
68.
Ms Fox: Yes, we would take that view.
69.
Mr J Kelly: I agree also that where there is responsible unmarried parent, he should have a right in law. I wonder how that would be developed? For example, I understand that there is no difficulty with a natural child's having succession rights, even if he was born outside of wedlock. How would you approach this issue mechanically? It is an important issue.
70.
Ms Fox: Let us consider the matter from the child's point of view. A child has a right to family life, and that right needs to be protected and safeguarded. It includes a right to a legal relationship, not only with his or her mother but with his or her father. At the moment legislation is discriminating against illegitimate children, which is unacceptable. Children are being penalised because of the behaviour or the status of their parents.
71.
The human rights legislation is now in force, and we must remember that the legislation applies to children as well as to adults. The main focus and purpose of the Children Order is to look after the welfare of the child and to safeguard and protect his best interests. The only way in which the child's right can be safeguarded is by granting parental responsibility to his natural parents.
72.
Mr J Kelly: Would you say that an unmarried natural father should have equal rights to the mother? Would you go so far to say that in cases of pregnancy termination, for example, the natural father should have an equal say in the matter?
73.
Ms Bowman-McAlister: Why not? If we succeed in introducing legislation and operating the courts in the interests of our children - who have the right to their identities and to as much love, care and concern in their upbringing as can reasonably be expected from people who, we hope, will behave like adults - why should a father be excluded from a child's existence? I know there are plenty of arguments about when exactly a child comes into existence, but let us be general about it and consider that period from pre-birth stage until after the birth. Care and concern for a child does not start the moment it is in rerum natura: it can be part and parcel of how a child is looked after during pregnancy as well. If that caring includes an argument about whether a child should exist or not, why should an unmarried father not - or a married father - have a say in that?
74. Ms Ramsey: I want to follow up Mr McFarland's point. I am shocked that the Belfast Family Proceedings Court Standing Committee did not have any input into the consultation exercise.
75.
Can you estimate how many of these cases you deal with? I suppose you deal with the majority of them?
76.
Ms Bowman-McAlister: On a slow day there might be an average of 10 cases passing through the Family Proceedings Court - [Interruption]
77.
The Chairperson: Excuse me, Ms Bowman- McAlister and Ms Fox, we would appreciate it if you would speak up please as this is being recorded. Thank you.
78.
Ms Bowan-McAlister: Yes, of course. To repeat then, on a very slow day in the Family Proceedings Court we might have 10 cases - that would be exceptional. On the other hand, we could have as many as 50. Not all of those involve parental responsibility. We have never done an exact head count. I can only base this on my experience in my practice. As I move further away from the inception of the Children (Northern Ireland) Order, I am seeing more and more applications for parental responsibility.
79.
Ms Ramsey: I am trying to get this into perspective. Is Belfast one of the main courts?
80.
Ms Bowman-McAlister: Yes, although I am fortunate enough to work in Newtownards, Belfast, Lisburn, Craigavon and Newry. I must say that Newry and Newtownards, in particular, can compete with Belfast in applications numbers; it is not purely a Belfast.
81.
Ms Ramsey: Are there standing committees in Newtownards or Newry?
82.
Ms Bowman-McAlister: There is a committee in Newtownards. I am not aware of one in Newry. I can only speak for those groups that I am a member of, and I am not in any other group.
83.
Ms Ramsey: Are you are aware if the other groups are going to ask for an input into this?
84.
Ms Bowman-McAlister: I am not aware of that, no.
85.
Ms Ramsey: I am shocked that you did not have an input. I am sure we are all aware of different cases in which a small percentage of fathers, whether married or unmarried, could use this to their advantage. I am starting to agree with what you say, whereas previously I argued against it. I can understand that whether a father is married or not he should have the same rights and responsibilities. Why should unmarried fathers have to provide proof of emotional or practical care for a child, when married fathers do not? There is no requirement in the Bill, and I am concerned about that.
86.
Ms Bowman-McAlister: If you are married you are immediately invested with parental responsibility. You will never have to prove anything to a court. If, on the other hand, you are unmarried you can only get parental responsibility with the leave of a court.
87.
Ms McWilliams: You hope that the many people who come through your courts will act as adults. I am very taken by that view. Given the number of people I have supported in relation to parental responsibility and its abuse, I must dispute it. I am sure you would not dispute the figure of 15,000 incidents of domestic violence, and at least 3,000 cases of common assault. Many of those never get near your courts. This is a very contentious issue. Mature adulthood tends to go out the window, and there is so much litigation as a consequence. We have heard from other solicitors, who would probably take a somewhat different view.
88.
One issue which comes up in the research literature is that of care and responsibility v authority. Have you anything to say on that? Or do you believe that authority has to be written into legal statute for care and responsibility to follow? Can there not be care and responsibility without authority's being attached through a legal statute?
89.
Ms Bowman-McAlister: If all couples - married or unmarried - were able to agree, I would be out of business. When I said "if adults could behave in an adult fashion" I was being facetious. I represent adults who act like children, and I see children who have become adults because of the behaviour of their parents. They become older than their years. That is entirely unnecessary; a child should always have his or her childhood.
90.
Prof McWilliams asked if we did not experience any difficulty in a situation in which one parent felt obstructed by the other and therefore required an order for parental responsibility. I believe I also speak for my colleague, Ms Fox. Perhaps I misunderstood, but in many instances, and in my experience, parental responsibility does not mean asserting authority over a child; it is merely a matter of being involved, to be known to the child as a parent. That is what it is really about in our courts.
91.
Ms McWilliams: If I could take you a step further, is it your experience that where marriages have ended - or in the case of an unmarried mother who has severed her relationship -there may be abuse if there is an attempt to exert authority where no responsibility has been taken?
92.
Ms Bowman-McAlister: We had anticipated a question of that nature. Having spoken to my friend, and to other practitioners specifically before this meeting, I should tell you that it is our common experience once a parental responsibility matter has been settled - which, in nine out of ten cases, I assure you is heatedly fought - it never returns to court. This argument that somehow parental responsibility is only an excuse for you to abuse me as an adult, and that it is not really about the children at all, seems to disappear into thin air.
93.
From my experience of practice and that of those colleagues whom I have asked, I am not so sure of the notion that seeking parental responsibility is merely an attempt by one adult to continue what might loosely be described as a programme of harassment against a former partner. I do not believe that that is so.
94.
Ms McWilliams: I am very surprised to hear that. Perhaps we deal with two different sets of cases. In my experience, based on a great many interviews, people will grasp any attempt to exert authority, particularly if they can use the courts to do so. Perhaps they do not come back to you through the courts, or you cannot follow through the aftercare - in other words, the evaluation and monitoring.
95.
Ms Bowman-McAlister: That is possible. I can only speak for my own practice, but I usually find that clients return to me. A matrimonial break-up is not something resolved in a single court appearance. I am sure it is your experience too that a matrimonial - or, indeed, non-matrimonial - break up can pan itself out over anything between a year and two years. On some extreme occasions, it may extend to three. People return to court and fight all the time, and I find I am constantly representing the same client. As we attempt a settlement or a particular course of action only for it to break down, he or she returns to court, and I get brought back into the case again. My experience is that matrimonial clients have a degree of loyalty to their representatives, returning to the same solicitors and barristers.
96.
Ms Fox: We must remember that parental responsibility defines a relationship between a parent and the child, not between the parents. That is something which should not be forgotten. It is a matter of parental responsibility towards that child rather than a matter of authority or rights. If a parent abuses parental responsibility, there should be provision in the legislation to divest him or her of it, whether it be the mother, a married father, or an unmarried father.
97.
The Chairperson: Is it correct that the Children (Northern Ireland) Order 1995 does not define parental responsibilities clearly? In front of me I have the Children (Scotland) Act 1995, which does so. Were it possible - which I am sure it is - would it be helpful if an amendment were made to give a fuller definition of parental responsibilities to the Children Order? Have you any familiarity with the Scottish legislation?
98.
Ms Bowman-McAlister: No. I have only spoken to my friends.
99.
Ms McWilliams: The final question may already have been addressed. There have been conflicting representations to the Committee on this issue. If a stepfather has parental rights, which the natural father also pursues, do you not envisage a great deal of litigation as a consequence?
100.
Ms Bowman-McAlister: Yes. We are concerned that if the draft legislation is passed, it will create nothing but litigation. There will be many arguments, and we have pointed out to you in our document the number of anomalies which we feel have been created by the legislation as it stands. That can only increase the workload and add to the burden of stress which families may already be under. Undoubtedly, it can only affect the relationships children have with their parents. It will ultimately cause an undue amount of distress to children.
101.
Ms McWilliams: On which side do you come down?
102.
Ms Bowman-McAlister: As we have said, our own opinion is that either everyone should get parental responsibility or no one. As it currently stands, the format will only create an extra caseload.
103.
In answer to the specific question about a step-parent and a father competing, that is covered in our document. Families go to court with a clean slate, because the court knows nothing about them. The view presented to the court by the mother and the step-parent - who are obviously demonstrating a unified front to make the application - will be wonderful. However, the natural father in this instance is waiting once again for the mother of his child to give her permission and say either "All right, we will work with you" or "We are going to sideline and exclude you".
104.
Ms Fox: We are all aware that children are born into a wide variety of family circumstances. The situation is no longer one of only married parents or even of children being with either parent. We must deal with that situation, and my colleague and I are dealing with it everyday. We want to ensure that no matter what decision is taken, it is taken in a child's best interests.
105.
I would go further and say that where appropriate, an application should be made by any third party for parental responsibility. I come across many examples of children who are not with either parent but are perhaps with members of the extended family. In those circumstances it would be appropriate to grant parental responsibility to the main carer in order to safeguard the child's interests. We must deal with the situation as we find it on ground level. Unfortunately, it is no longer the case that children are born into a secure family unit - that is what we must deal with.
106.
The Chairperson: Ms Hanna is next. If you could quickly direct - [Interruption]
107.
Mr Kelly: I just wanted to clarify something, but you can go ahead.
108.
The Chairperson: I will take Ms Hanna first and then come back to you.
109.
Ms Hanna: Thank you for your submission. Page 7 discusses the acquisition of parental responsibility and the three-fold test: the degree of attachment between father and child; the father's showing commitment to the child; and evidence of improper motive. Is that not reasonable for any father seeking to acquire parental responsibility? You do not think that it is a fair test for an unmarried father. I think that it is a fair test for any father - married or unmarried.
110.
Ms Bowman-McAlister: That is exactly the point that we are making - it would be all right if it were a test for every parent, and not just fathers. I am stepping out on a limb and giving my own opinion, but we are coming to the stage where the word "parent" is becoming a definition of behaviour and not necessarily a matter of right first because a person fathered or gave birth to a child.
111.
Ms Hanna: However, you wrote that it is a demeaning process.
112.
Ms Bowman-McAlister: Yes. When you compare the existing legislation, an unmarried father must go to court and say "Please give me this, and I will prove the following things to you". He must convince the court. However, it does not matter if a married father is the greatest scoundrel on earth. He retains his parental responsibility as a right, and no one can take it away from him. Why is that?
113.
Ms Fox: That applies to mothers also. Believe it or not, there are bad mothers about too.
114.
Ms Hanna: I do not think that it is demeaning for a father or a mother to be asked that - married or unmarried.
115.
Ms Bownan-McAlister: We are not suggesting for a second that they should not be asked that. If every parent must ultimately demonstrate that he or she behaves as a parent should, I have no objection. However, to say that somebody must prove it because he is unmarried and another must prove it because he is, or that somebody else must prove it because he is male yet the mother has to prove nothing because she is female is unfair.
116.
Ms Hanna: You should not take good conditions away because you think that they are unfair. The good conditions should apply to the married and unmarried.
117.
Ms Bowman-McAlister: I want to be absolutely clear. We do not object to this test. However, we feel that if those questions are going to be asked, they should be asked across the board.
118.
Ms Hanna: Before you move on, are you aware of what consultation took place with women and children?
119.
Ms Bowman-McAlister: I am not aware of that.
120.
The Chairperson: Sorry, Ms Hanna. What was that question?
121.
Ms Hanna: It was about consultation with women and children. Most of this seems to deal with unmarried fathers.
122.
The Chairperson: We will definitely ask about that next time.
123.
Ms McWilliams: Perhaps I could partly answer that by referring to a related issue. I want to deal with the point about married fathers having automatic parental responsibility - you might say until they are divested of it.
124.
This is a contentious issue because Northern Ireland law differs from that in England, Scotland and Wales in that a clause was written into our Children Order to the effect that where there is proof of domestic violence, the mother does not have to allow access to the father. We recently had a conference on this issue, and the point was made that not many people in the judiciary know that that clause is part of the Children Order. It was for that reason that many women ended up being charged with contempt of court because of their refusal to allow access. That is a difference in our law that means that fathers do not always have automatic parental responsibility.
125.
Ms Bowman-McAlister: That seems to assume that in the greater number of cases domestic violence is being cited as the reason for a person's not having parental responsibility. It is not my experience in my or my colleagues' practices that the reason for not allowing parental responsibility is the allegation of domestic violence. In court it seems to be a blanket "No, I do not want you to have a say. I do not feel that you should have a say because you would use that as an opportunity to harass me as the mother of this child".
126.
Ms McWilliams: Why do you think they say that - do you think that they are not telling the truth when making accusations about the possibility of harassment?
127.
Ms Bowman-McAlister: I am not going to comment on whether my clients tell me the truth or otherwise. It is a suspicion that I cannot have throughout a case. Whatever facts they present to me, I will represent those facts. In every single case I have taken the opportunity to ask, where a mother has cited the possibility of harassment by the father, "Do you mean violence?" I always take the precaution of asking that question because there is recent case law in Northern Ireland which says that any allegation of domestic violence has to be heard at the outset of a case before any other issues pertaining to the child are looked at.
128.
When I ask "Do you mean violence?" the frequent answer is "No". The problem is that the father wants to be reconciled with the mother, and that is not violence. The relationship is over. The father cannot accept that fact, and the mother wishes to be out of the relationship.
129.
Ms Ramsey: In the absence of hitting someone a dig on the nose, is it playing mind games?
130.
Ms Bowman-McAlister: Possibly, and I am in no doubt that there are cases like that. I accept Ms McWilliams's statistics, but I am commenting on the cases that I am seeing day and daily. It is shocking and scandalous that there is domestic violence and people who do abuse parental responsibility. I do not believe, however, that we can tar everyone with the same brush. If someone is responsible for domestic violence, he will not get a parental responsibility order. Unless a person can prove that he is not committing domestic violence and that he is worthy to know the child, he will not get a parental responsibility order.
131.
Ms McWilliams: I am not suggesting that we are following that line of thinking. Rather I am making the point that Ms Hanna brought forward that the father has three tests, which seem to us to be reasonable.
132.
Ms Bowman-McAlister: As a group we do not object to those tests.
133.
Ms Fox: I can assure the Committee that the practice in the Belfast Court is that where there is an allegation of domestic violence and where a mother has issued non-molestation proceedings, initially that may come before the domestic proceedings court. If there are also going to be issues of contact with children, the two sets of proceedings are heard by the one court - the family proceedings court. The court decides whether there has been violence and if there has been, then the court's attitude towards the father's application for contact - if in that particular instance it is the father - is different from what it would be if it had not so decided.
134.
However we are diverging from the main issue before us today which is that of looking at parental responsibility.
135.
Ms McWilliams: No, not really because this goes back to the point that Ms Hanna raised about the three tests, which we think are reasonable. It was the issue of parental responsibility's always being assumed in married or unmarried cases.
136.
Ms Bowman-McAlister: We do not object to those tests. We simply say that they should apply to everyone.
137.
Mr J Kelly: I want to clarify that point. I presume that we are still talking about the issue of unmarried fathers as distinct from marital break-ups and the responsibilities arising from that.
138.
Ms Fox: The situation is that, given the provisions contained in the Children Order, a father who is married to the mother of his children or a mother automatically has parental responsibility and cannot be divested of it. An unmarried father at present has to make an application to the court for parental responsibility in the absence of a parental responsibility agreement being signed by both parties.
139.
Mr J Kelly: Thank you for that clarification. This is a very important issue for unmarried fathers. We find in society that we have a growing number of people who have a relationship that is not formalised and that can break up at any stage.
140.
We now have unmarried fathers around the neighbourhood. I agree that if an unmarried father has to make pleadings over and above those of a stepfather, it is unfair. I take your point that there should not be tests.
141.
We are not talking about seeking authority for the sake of seeking authority and without taking responsibility. We are not talking about unmarried fathers saying "I want to have authority over my child because I am the natural father, but I do not want to have any responsibility". We are not talking about that situation at all, are we?
142.
Ms Bowman-McAlister: No, we are not.
143.
Mrs I Robinson: I am coming from a different angle as a Christian, because it is viewed as being good for a child to have married parents. Some people may say that you are living in fairyland if you even express the view that the family unit is - as God intended it - a man and a woman who first get married and then have children. I know that in the real world this does not always happen.
144.
However, how can you convince me that a father in a relationship in which a child has been born but where there is no marriage should have rights equal to those of a father who has gone through the conventional route and is married despite all the ramifications? Marriage is on the increase - thank God! We are seeing more and more couples committing to wedlock. That is the best structure to bring a child up in. How would you convince me that the father outside of wedlock has as much right as the father who goes through marriage?
145.
Ms Bowman-McAlister: Marriage - the ceremony - is on the increase. However, the average life of a marriage today is an astounding seven years. That is the married life we are bringing our children into today. The number of second marriages is also on the increase, which, as I understand it, is being counted in with the number of overall marriages.
146.
It would be wonderful - and nobody would actually disagree with this - if happy marriage with 2·4 lovely children who behaved beautifully and grew up to have lovely jobs could be achieved. I am not being facetious. I do not think that anyone around this table, including me, would say that that is not our ideal and that we do not want to achieve that. Happy relationships, wonderful children: who would turn them down?
147.
But we are talking about legislation for a situation in which that ideal does not exist. Marriages break down, and we are trying to cater for the acrimony that frequently results from that. Are married relationships any more stable than unmarried relationships? I could not say.
148.
The Chairperson: Are you posing the question?
149.
Ms Bowman-McAlister: I am asking myself, and I could not answer.
150.
The Chairperson: As long as you are not asking me to answer.
151.
Ms Fox: It is preferable that children are born into secure family units, but unfortunately that is not happening.
152.
Discrimination does happen between married and unmarried fathers. If unmarried fathers are not given the same position as married fathers, the child is penalised. There is no justification in continuing to discriminate between illegitimacy and legitimacy. Ultimately the children suffer. If we focus on their right to family life and protect and safeguard that right, we can focus on the amendments to the legislation that are required.
153.
Ms Robinson: I am very blessed. I have been married for 31 years and would not change it for the world. I am just one of those rare cases possibly; I will be an old fossil at the end of it all.
154.
Children are born as a result of one-night stands. In some of those case there is ignorance and indifference from the young father. However, you are saying that they should have the same rights as responsible fathers. I return to the status of the married fathers who should have equal standing in the law.
155.
Ms Bowman-McAlister: The Belfast Family Proceedings Court Standing Committee did not look at the situation from the adults' viewpoint, but from the view of the child. We were unconcerned with the configuration of the relationship. It could be married or unmarried, heterosexual or homosexual. The standing committee took the view that a child should be brought up in a monogamous, loving, caring and considerate atmosphere rather than in a marriage relationship with bickering and arguments in the background. Having to grow up in that atmosphere must be devastating for any child. I am not certain that married couples achieve better loving and caring relationships than unmarried couples. However, the relationship probably lasts longer if it is a marriage.
156.
The average life span of a marriage is seven years, and a great many do not last that long. There are already children who, aged three and four, are part of a separated family. Where do we go from there? What is done for those children for the next 12 years of their lives until they are 16? What will they see in their short lives? That is the situation that the Children (Northern Ireland) Order 1995 and the Family Law Bill will cater for. The ultimate prize is happy and content children who are kept away from bickering.
157.
Married fathers are not necessarily responsible or unmarried fathers less responsible. I could not say that married fathers behave in a more adult fashion than unmarried fathers.
158.
Mrs I Robinson: I accept that.
159.
Ms Armitage: You say that you want to protect the interests of the child. How can you be sure that when a father seeks parental responsibility he is doing so because he wants to love and care for that child? Do you ever think that there is another side? Perhaps the father does not give a hoot for the child and his seeking responsibility only makes life more difficult for the mother. Ultimately, the child may not benefit one iota. The child may be much happier with a loving mother with no interference from a difficult father. That may not be case, but it could be a possibility. Have you looked at that?
160.
Ms Bowman-McAlister: We have looked at it, and it is a possibility. There are people who make applications for parental responsibility to the bane of someone else's life who is not the child of the family whom we are talking about in court. But we cannot tar everyone with the same brush. If, however, someone claims parental responsibility by painting himself with a halo and wings, we are taken in by it in court, and he turns out to be someone who is less than acceptable as an adult, let alone a parent, there must be an opportunity to come back to court. We should be able to tell him that he is no longer entitled to parental responsibility because he has abused the very trust that has been placed in him. We have also placed a child's trust in him, but he has abused that either because he ignores the child or he is using parental responsibility to upset what is a very stable situation.
161.
When parental responsibility is awarded we are not saying that it must continue forever. It can only be awarded to deserving people, and it can only be kept by deserving people. That is how we foresee the effects of the new legislation.
162.
Ms Armitage: You should ascertain the damage before you give parental control back to the parent. You have said that you can go back to court, but it is a bit late - the child may start to feel insecure, and there may be problems at home. As I read it, you would give every father the right to parenthood, and then you would decide if he was a good father.
163.
Ms Bowman-McAlister: We said that you either give it to everyone across the board or you give it to no one. I can foresee, from the reasonable point that you have just made, that if a father has been given parental responsibility, as of right, at the beginning of the child's life but he abuses that, it is a bit late in the day to come back to court - it is closing the stable door after the horse has bolted. If we do not give parental responsibility and someone feels that he is being excluded from a person's life, he should come to court to ask for parental responsibility, to have his say in the child's life or alternatively to exclude someone else from having a say. That would cater equally for everyone.
164.
I will compare it to adoption. Thankfully, we have grown in wisdom and we no longer think that adopted children must completely forget about their backgrounds. We are even talking about adopted children maintaining contact with their natural parents in certain circumstances. So they are not completely cut off from their backgrounds. A child needs to know who he is, where he came from, who his parents are, and who the new person is in his mother's life? A child is aware of the people who enter his life and his home. What about the people who are excluded from that home? Does a child have the right to know about that? If that is part and parcel of his development, should he not be able to find out about his roots? That is the stance that we are taking.
165.
Ms Fox: That viewpoint is also expressed by the European Court. I refer the Committee to a case before the European Court - Marckx v Belgium. In that case the court made a number of findings including the fact that the right to respect for family life under article 8 of the European Convention on Human Rights applies, as was stated previously, to illegitimate as well as to legitimate families. That article, that right to respect for family life may impose positive obligations on a state pursuant to respect for the family. In other words, doing nothing at all is not enough. There is an obligation on the state to protect a child's right to family life and to protect a child's right to his identity and that means formalising the relationship of a child with both parents. Most important of all, and this has been raised by members of the Committee, is the desire of a state to protect a child from the custody and authority of someone who may have no inclination to care. This does not justify breaching article 8, which gives the right to respect for family life, or article 14, which gives the right to non-discrimination. That is something that the Committee should also take on board.
166.
Ms McWilliams: We read about a Swedish case where the ruling was different. Representations have been made to us about what constitutes privacy and how that can put a question mark over cases. In the Swedish case the court ruled.
167.
Ms Bowman-McAlister: Are you referring to.
168.
Ms McWilliams: I am not referring to your paper. The case was in one of our papers.
169.
Ms Fox: Do you remember the name of the case?
170.
Ms McWilliams: I have no doubt that the clerk or someone will remind me of it. I was trying to find it but the gist of it is that the ruling was the opposite. The absent parent was pursuing this issue and the ruling was that the privacy of family life was to be protected. The child knew the identity of the father - to return to the adoption issue. In this case it was simply ruled that the parent did not need to have parental authority. So the courts in Europe have been ruling differently.
171.
Ms Fox: There may have been particular circumstances in that case. However, we cannot say because we do not know the name of the case. We would have to examine it. There may have been particular circumstances that made the court decide that it was appropriate for the father not to have a say.
172.
Ms McWilliams: I have just been reminded that the case is from one of your papers, but not the paper that you have presented today. The paper says
"In Soderback v Sweden [1998] an unmarried father and his child were found to enjoy family life notwithstanding that they had never lived together or had had regular contact"
and that
"'family life' is being given an ever-widening interpretation."
173.
I think that this is from the paper that you originally presented to the Committee.
174.
Ms Fox: It is clearly well established by European case law that family life exists between unmarried fathers and their children. We are saying that there is a positive obligation on the state to recognise that by granting parental responsibility and, therefore, according legal status to the relationship.
175.
Mr Gallagher: I apologise for arriving late and missing some of the very interesting submission. I have only one question about parental responsibility and entitlements, and I hope that it does not apply to many cases. Are you satisfied that parents of school-going age are not at any disadvantage in the Family Law Bill?
176.
Ms Bowman-McAlister: I am sorry but I do not understand your question.
177.
Mr Gallagher: Will parents who attend school be at a disadvantage over entitlements because they are still of school-going age?
178.
Ms Fox: We still have to consider the child's point of view. In such a case we would consider the child of the teenage mother. A child has the right to his identity and to have his family life respected regardless of the circumstances in which he was born. We can see what the issues are if we focus on the child.
179.
Ms Bowman-McAlister: All decisions that are taken on the behalf of children under the Children (Northern Ireland) Order 1995 are taken with the best interests of the child, as they are presented to us in court, in mind. The best interests of a child vary from one year of their life to another. We do not propose that the position should be static. Most people begin as acceptable parents but any mother or father can, unfortunately and for many reasons, become an unacceptable parent.
180.
I am not certain that a teenage parent will be disadvantaged in any way other than by age. The committee did not discuss this in detail - we took a wide-angle view of the matter and looked at it from the child's perspective. I agree with my colleague that if it is found to be in the interests of a child that he or she know his or her identity, the age of the father should not be a barrier, whether he be 35 years old or 15.
181.
Ms Ramsey: Page 3 of the explanatory memorandum says that an unmarried father who registers the birth of his child jointly with the child's mother will have parental responsibility for the child. Your submission says that
"unmarried fathers are treated differently to the mothers of their children.on the grounds of gender."
It also says:
"Equally, unmarried fathers are treated differently to married fathers on the grounds of their marital status. Perhaps most importantly, the children of unmarried parents are treated differently".
182.
It seems to me that if the parents jointly register the birth of the child, they will both have parental responsibility. However, in page 6 of the submission, it says: "prospective unwed mothers and fathers will have to be aware that the act of jointly registering the birth has consequences for them and they will have to be in agreement on that."
183.
That is confusing.
184.
Ms Fox: The Family Law Bill will not change the situation as it is at present. The consent of the mother is required if an unmarried father is to be registered on the birth certificate. There are such things as parental responsibility agreements, but they are also subject to the consent of the mother. An unmarried father can obtain parental responsibility only with the consent of the mother. That situation will not be changed.
185.
Ms Ramsey: Will it be a happy medium?
186.
Ms Fox: No, it will not, because the consent of the mother will still be required. I frequently act on behalf of mothers in cases in which there have been applications from unmarried fathers for contact orders. A mother can agree to substantial contact between an unmarried father and the child, but may have objections as far as parental responsibility is concerned. That happens in many cases, including cases in which it would be appropriate to grant parental responsibility to an unmarried father who has already proved himself to be a responsible father. Mothers may object if they perceive, wrongly, that parental responsibility will give the father's authority over them.
187.
Ms Ramsey: The submission refers to a situation in which
"the mother, knowing that the father will acquire parental responsibility, refuses to allow joint registration or goes behind his back and registers the child herself".
Are we talking about cases involving unmarried parents who have been together up until the children's births, or are we dealing with cases in which the fathers do a runner, after finding out that their partners are pregnant and, having left them to register on their own, come back on the scene later? Is that what we are talking about?
188.
Ms Bowman-McAlister: We are dealing with both types of case. We frequently discover that a father is named on the birth certificate, that he was aware that the mother was pregnant and that he was in the hospital during the mother's labour. However, it is after that that the dispute arises. Any amount of contact can be agreed, but when it comes to parental responsibility, there are objections. If we publicised the idea that parental responsibility was granted the moment that both parents registered a baby's birth, would a woman think differently about going to register with her boyfriend?
189.
It is our suspicion that a great many women would think differently about that.
190.
Ms Fox: That is supported by the fact that, at present, there are very few parental responsibility agreements in existence.
191.
The Chairperson: Thank you, Ms Bowman- McAlister and Ms Fox for your time. You have raised some very important points.
MINUTES OF EVIDENCE
Wednesday 7 March 2001
Members present:
Dr Hendron (Chairperson)
Mr Gallagher (Deputy Chairperson)
Ms Armitage
Mr Berry
Ms Hanna
Mr Kelly
Mr McFarland
Ms McWilliams
Ms Ramsey
Mrs I Robinson
Witnesses:
Ms Archbold ) Office of Law Reform
Mr Lambe )
192.
The Chairperson: You are welcome, and I apologise for keeping you waiting. Please make a short presentation on the Bill as you see it, following which my colleagues will ask questions. I then hope that we can look at the various clauses of the Bill.
193.
Ms Archbold: Thank you for asking us to attend today's meeting. I am a senior legal assistant in the Office of Law Reform, and my field is family law, human rights and equality. My colleague, Neil Lambe, is in charge of this project, and he will address the Committee on the Family Law Bill.
194.
I will clear up a matter that the previous witnesses referred to. The Belfast Family Proceedings Court Standing Committee was not consulted during the wide public consultation in July 1999. That committee said that it was formed recently - so in July 1999 we were not aware of its existence. However, we consulted with the Law Society, the Bar Council, all the local solicitors associations in Northern Ireland - including the Belfast Solicitors' Association - and all associations that represent the judiciary. We also contacted the Northern Ireland Court Service as part of our internal consultation.
195.
I know that the previous witnesses are not aware of this, but we received submissions from the Law Society, the Bar Council and from a number of other individuals - including Mr Desmond Perry, who is the magistrate for Belfast and the chairperson of the Belfast Family Proceedings Court Standing Committee. Therefore the people who are involved in the Belfast Family Proceedings Court Standing Committee were involved in our consultation, and we took careful note of the arguments that were put forward.
196.
We would like to assure you that we were aware of the arguments that were put to the Committee today. The arguments were fed into the public consultation, and we took them into account when we advised Ministers on the content of the Bill. Would it be of assistance if we briefly outlined the extent of parental responsibility?
197.
The Chairperson: Yes.
198.
Ms Archbold: Parental responsibility is not the same as residence, contact, custody or access. It gives a parent a legal relationship with their child. The law says that the person is the child's parent. I believe that the Children (Northern Ireland) Order 1995 defines it as all the responsibilities, duties, powers and rights that a parent has with that child.
199.
In cases where both parents have parental responsibility, a court can determine that one person should have residence of the children and that the other person should - or should not - have contact. That is a separate issue. The fact that another person, a stepfather or stepmother for example, gets parental responsibility does not mean that parental responsibility is taken away from anyone who already has it.
200.
Married or unmarried parents who have parental responsibility for a child - even if the child has been taken into care - retain that responsibility unless and until that child is adopted. Parental responsibility is lost in our law in that way. I hope that explains exactly what parental responsibility is and lets us know the limits of this legislation.
201.
Mr Lambe: It became clear during the Second Stage that the Health, Social Services and Public Safety Committee had an interest in the family law issues that are dealt with in this short but significant Bill. Officials from the Office of Law Reform have previously appeared before this Committee to speak more generally about the work that they do.
202.
I would like to reiterate the respective roles played by the Department of Finance and Personnel officials, through the work of the Office of Law Reform, and the Department of Health, Social Services and Public Safety, particularly in relation to issues that affect children. The Office of Law Reform is responsible for the development of policy for the private law aspects of family law. That covers issues dealing with the relationship between parents and children such as those dealt with by this Bill. The Office of Law Reform has a policy input, but not a policy lead, on issues such as adoption law.
203.
The Department of Health, Social Services and Public Safety is responsible for policy on care proceedings when dealing with the interface between family and the state authorities - the Adoption (Intercountry Aspects) Bill is already before the Assembly. Other more cross-cutting issues for which the Office of the First and the Deputy First Minister would perhaps be responsible include the establishment of the Children's Commissioner, which they announced on 29 January 2001. That initiative is being carried forward by an interdepartmental working group, and the Office of Law Reform is represented on that group to oversee any impact that the Children's Commissioner might have on the private law sphere.
204.
As the Minister of Finance and Personnel said in debate during the Second Stage, the Family Law Bill deals with few, but significant, law reform issues. The Office of Law Reform issued a consultation paper in July 1999. The legal profession, voluntary sector, health profession and other professions forwarded a substantial number of responses - the extent of that feedback is significant for Northern Ireland. These constituencies obviously have an interest in the welfare of children, which is the focus of the Bill. I ask the Committee to recognise that although the Bill deals with the rights of unmarried fathers, those rights are firmly rooted in the context of children's rights. As is made clear in the United Nations Convention on the Rights of the Child, children should have a legal relationship with their parents, both mother and father. The Bill deals with that legal relationship, not only with regard to who has parental responsibility for a child, but with the tests that a court can use to determine the biological parentage of a child.
205.
The Committee should note that the consultation in Northern Ireland followed similar consultation in England and Wales by the Lord Chancellor's Department that was carried out in March 1998. A similar consultation has also been undertaken in Scotland, and the Scottish Executive has announced to Parliament that they will take forward proposals similar to those in the Family Law Bill.
206.
As the Minister of Finance and Personnel said during the Second Stage debate, instead of following the lead of GB, Northern Ireland is ahead of the other jurisdictions in introducing legislation on this matter - the others will be catching up with us for a change.
207.
Through the responses that we received to consultation, we have been alerted to the concerns of certain groups that the issue is a question of balancing rights among children, mothers and their fathers - whether their fathers are married or unmarried. Those responses reflect the concerns of many different constituencies that have conflicting interests in establishing what the content of the legislation should be. The draft legislation strikes the balance between those conflicting interests.
208.
As I briefly go through the clauses of the Bill, I will provide more up-to-date statistics on the number of unmarried fathers and on joint registration.
209.
Clause 1 of the Bill amends the Children (Northern Ireland) Order 1995. The clause deals with two separate matters, and is the real substance of the Bill. From the earlier evidence you can appreciate that there is much disagreement about what it should or should not do.
210.
Clause 1 provides that unmarried fathers who jointly register the birth of the child along with the child's mother will acquire parental responsibility for that child. In 1999, the year for which the most recent figures are available, some 6,957 children were born outside of marriage. That represents 30.3% of all live births in Northern Ireland and is an increase on previous years. Of the births outside of marriage 4,487 were jointly registered by the unmarried mother and father. That represents 64.5% of all live births outside of marriage. Those figures are slightly lower than those for England, Scotland or Wales, but they are increasing annually. In the 1960s only 3% of children were born outside of marriage. We now have significant numbers. The Bill therefore is attempting to address a social reality.
211.
I hope that members appreciate that the Bill in no way attempts to undermine the institution of marriage. It simply tries to reflect the social reality that adults choose to live in different types of relationships and that children, by and large, should not be disadvantaged as a result. The Bill recognises changes in family structures over time and attempts to accommodate those.
212.
Clause 1 also deals with the issue of stepparents. Step-parents can already acquire parental responsibility by applying under article 12 of the Children Order for a residence order. The fact that a court would confer a residence order on a step-parent would automatically bring parental responsibility to that step-parent. The Bill offers a much more transparent process. Instead of artificially applying for a residence order in favour of a child who is living in your home, you apply to the court for what you really want - a parental responsibility order in your favour. As Ms Archbold pointed out, if a court grants a step-parent a parental responsibility order, that will in no way affect the parental responsibility of any other person who has it - be that an unmarried father who had previously applied for it or a former spouse of the husband or wife who has now remarried.
213.
Enabling step-parents to acquire parental responsibility through a transparent process recognises that in many second marriages a strong bond is formed between a step-parent and a child. With so many marriages ending at an early stage in people's lives, quite often they will remarry, with very young children. Those children might lose contact with the birth parent, but this process enables a legal relationship to be established between the step-parent and their "new" children. That is important for practical reasons. For example, they are able to give consent for medical treatment and take decisions along with the mother on the child's welfare and education. Parental responsibility for both an unmarried father and for a step-parent can be terminated by court order.
214.
Clause 2 creates a statutory presumption of parentage in two circumstances. First, it provides that if a man has been married to a woman at any time between the conception and birth of the child he will be presumed to be the father. That will be true in the vast majority of circumstances and is already a common-law presumption. What clause 2 seeks to do is simply put on a statutory footing what is already a common law presumptions. The clause also provides that any unmarried man registered as the father of a child is presumed to be the father of that child. Such joint registrations includes an implicit recognition and acceptance of the parentage of that child.
215.
Clause 3 is the technical measure. It provides for the courts in Northern Ireland to have additional powers in the future where civil proceedings are ongoing which involve determining the parentage of a child. That includes determining whether someone was, or is, the mother or father of a particular child. Committee members are already aware that there is an interface between that provision and provisions in the Child Support, Pensions and Social Security Act that the Committee has considered. The drafting and commencement of this clause is dependent on the child support measures being brought in. However, I am informed that it is intended that those provisions will come into force in April of this year.
216.
Clause 4 provides for the commencement of the substantive provisions of the Bill, and clause 5 deals with the short title of the Bill. To conclude, this is a short Bill. Its effect, however, has implications for many families in Northern Ireland. It forms part of a wider review of family law, that the Office of Law Reform is undertaking. We are also examining divorce law, matrimonial property and other related issues. Claire Archbold and I are willing to take any questions.
217.
The Chairperson: Thank you. Members will now ask questions.
218.
219.
Ms Archbold: I took some notes on the case law that the earlier witnesses cited. I noted that they did not cite McMichael. The importance of McMichael is that it is a case in which the European Court of Human Rights specifically looked at this issue. It has the advantage of being a United Kingdom case. An unmarried father - from Scotland, where the relevant law is similar - came to the European Court. Among other things, he asked whether his rights were being infringed by the fact that he did not have parental responsibility.
220.
In that case - which is as recent as 1996, I think - the United Kingdom's representative argued that his right to family life was not absolute. Article 8.2 allows interference with that right, if it can be justified. Article 14 allows different treatment of people in different categories, if it can be justified. The justification which was given in the McMichael case was that instead of just giving all fathers automatic parental responsibility, there had to be some test to protect mothers and children from unmeritorious fathers. The test was marriage. The married father got parental responsibility and the unmarried father did not.
221.
The court accepted that justification in the McMichael case. In subsequent domestic case law, Lady Justice Hale, who is one of the most eminent family judges in England, has said that the law in the United Kingdom - as it stands without the Family Law Bill - meets European standards. I note that the case B in the United Kingdom, which the earlier witnesses mentioned, appears to support that contention as well, although they said that B was manifestly wrong. That was a judgement of the European Court of Human Rights.
222.
Lady Justice Hale said that at present our law conforms to European human rights standards. However, that may not always be the case, because the European Convention is a living document, and it evolves as society evolves.
223.
The Family Law Bill, therefore, goes beyond current European jurisprudence. It does more for equality and non-discrimination than the present law, while still trying to maintain a balance between those families whose private lives require protection, under article 8 of the European Convention, and other families, in less happy circumstances, who require protection from someone who is unmeritorious - for example, where a child is conceived as a result of a rape. In such a case the mother and the child have a right to life and to be free from torture, inhuman and degrading treatment, under articles 2 and 3 of the Convention. Those rights also require protection. That is where we are coming from on a human rights perspective, and that is also why the McMichael case is so central to this argument.
224.
Ms McWilliams: Do you argue that the Bill, as it currently stands, meets the requirements of the European Convention on Human Rights?
225.
Ms Archbold: Yes. It meets those requirements and, arguably, goes beyond them.
226.
Ms McWilliams: That is contrary to evidence that we heard earlier which suggested that there are difficulties in regard to discrimination.
227.
Ms Archbold: I do not want to comment on that. The phrase per incuriam refers to instances where a court takes a decision without having taken into account a relevant piece of law. I am simply wondering why the McMichael case was not mentioned earlier.
228.
Mr Lambe: The consultation paper that we published in 1999 began by setting the context for human rights and equality issues. They were very much to the forefront of our minds from the very start of this process, and we were congratulated for taking such a positive and proactive approach to these issues.
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Ms McWilliams: A good deal of the discussion so far has centred around the child's mother making an agreement, which is dealt with in clause 1(2)(b). The child's father and mother must make an agreement. Under paragraph (c), the court, on the father's application, can grant him parental responsibility. Can you clarify what happens when the court grants him parental responsibility? We assume that in that case the child's father and mother have not made an agreement, and that the child's mother has not given her consent.
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Mr Lambe: Yes, that is the situation at present. However, the court will not make an order based solely on the application of the father; it will take into account full evidence relating to the interests and views of the child. The mother can disagree with the court's decision to make an application, and she can become a party to the proceedings. That is an existing provision; the Bill is not doing anything new in that respect. It is simply reformulating article 7 of the Children (Northern Ireland) Order 1995 to make it more comprehensible.
231.
Ms McWilliams: We got the impression from earlier evidence that there was some dispute over whether a mother should be allowed to give her permission. The evidence was that this was discriminatory and that, in the absence of the mother giving that permission, the father should have parental responsibility. What are your views on that?
232.
Ms Archbold: At present, the law is that registration has no legal effect. If an unmarried father wishes to have parental responsibility for his child, he has to make a parental responsibility agreement with the mother, whose consent is obviously needed. Or, if her consent is not forthcoming, he can apply to a court to be granted parental responsibility. The mother will be a party to those proceedings, and she is able to put forward her own arguments to the court about why the father should not have parental responsibility.
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However, at the end of the day, it is up to the court to decide. There was some discussion earlier about the criteria that the court uses to make that decision. Those provisions will still remain in place under this new law. This will provide an extra, more facilitative way by which the majority of unmarried fathers, who jointly register at present, will be able to get parental responsibility without having to take some extra step.
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If there is an earlier child for whom there was no assertion of parental responsibility, they can make a parental responsibility agreement in respect of that child if they so wish. Then in the difficult cases where the parents do not agree, the court can still come in and take a decision. It may be that there are also cases where it was a one-night stand, the father wants nothing to do with it, and he will not be making an order. In that case the mother will retain sole parental responsibility. That is the range of situations which will be covered under the new law.
235.
Ms McWilliams: The Committee on the Administration of Justice (CAJ) has made a submission. That submission proposes that before simply granting automatic parental responsibility some tests might be advisable, among them a residency test. The organisation also sees that it could be problematic, however.
236.
Ms Archbold: Families in Northern Ireland live in a wide range of situations. I know that a new term for families is those who are "living apart together", where perhaps one partner is living with an elderly parent and the other partner and the children are living at another address. People who are in that situation would not meet a residency test. Nor would those whose relationship has perhaps ended but who are agreed that they should both continue to have an input into the life of their child. A residency test would count some people in, but it would also count some people out. So that is an interesting proposal, but perhaps it would catch a slightly less wide category of those who might want to avail of an easier way of doing things.
237.
Mr Lambe: I have the figures for joint registration by unmarried parents who are not living at the same address. I mentioned earlier that there were 6,957 live births outside marriage in 1999. Of those which were subject to joint registration, 2,038 were registered to parents who had the same address, and for 2,449 the registration reflected different addresses. That is a fairly even split. What the figures do not show is why the unmarried parents are not living in the same household.
238.
Ms McWilliams: I have brought this up because, in the CAJ's submission, the point is made that equality is not being promoted if a woman carries all the burden of carrying and caring for a child but only half of the authority to take decisions on behalf of the child.
239.
Mr Lambe: That reveals a misunderstanding of what it is to have parental responsibility. Even if more than one person has parental responsibility, that authority can be exercised singly or jointly. You do not have to reach agreement with every person who has parental responsibility in relation to that child before you can make a decision. Conferring parental responsibility on an additional person does not take away the strength of what a person with existing parental responsibility can or cannot do in relation to that child.
240.
Ms Archbold: If, for example, someone had parental responsibility and were to leave the jurisdiction and never be heard of again, that would not prevent the mother taking decisions on her child's schooling, her child's religion or hospital treatment - all the big issues. It is unfortunate that some people do not wish to be associated in the upbringing of their children, but perhaps that is an issue for wider family law.
241.
Ms McWilliams: So your response to that piece from the CAJ is that the parent with parental responsibility who has custodial care on a daily basis can still go ahead and make major life decisions.
242.
Ms Archbold: Absolutely.
243.
Ms McWilliams: Thank you. That clears up many of the points which were made in that submission.
244.
Ms Ramsey: I have a number of questions on the consultation exercise. Monica McWilliams questions have covered some points, which were very confusing. You talked earlier about consultation, and the memorandum says that the consultation paper was sent out to 185 individuals and organisations representing local community and voluntary organisations. Do you have a list of those?
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Ms Archbold: We have a list of those who responded. The Office of Law Reform has a consultation data base, and all those registered on our database as having an interest in family law received a copy of the consultation paper - that is who the 185 are.
246.
Ms Ramsey: Can we get a copy of who it was sent to? I know that you will not have that with you, but perhaps you could forward it to us.
247.
Ms Archbold: I have checked this with our administrator, who says that, while it is possible to generate a list of the entire database, it is not possible to break it down by subject matter. That is an administrative problem.
248.
Mr Lambe: The reason is that we are constantly adding new names and addresses to the database. From July 1999 the database has been considerably expanded. If I look through the files I might be able to generate the pool.
249.
Ms Ramsey: It would be helpful if you could break it down to show the level of consultation with women's groups and children's organisations.
250.
Ms Archbold: In the explanatory and financial memorandum we specifically mention that we consulted with groups representative of men. We also consulted with groups representative of women and children, and we received some very useful comments from, among others, Women's Aid and the National Society for the Prevention of Cruelty to Children. We apologise for that typographical mistake.
251.
Mr Lambe: Gingerbread also made a response.
252.
Ms Ramsey: What are your views on the recommendation that children should have a right in the decision making process in relation to the blood test and DNA testing? Should there be an inbuilt requirement to take account of the views of the child, particularly of an older child, in relation to the proposals for parental responsibility by step-parents?
253.
Mr Lambe: We have been considering this issue. We thought that it might come up today, as it did during the debate on the Child Support, Pensions and Social Security Bill. We are not entirely convinced that it is necessary to impose that requirement on the face of the legislation. On a court making a declaration of parentage, we would regard the court as actually taking that type of consideration on board, especially in view of the age and understanding of the child.
254.
Ms Archbold: This is part of the factors that the court takes into account under article 3 of the Children (Northern Ireland) Order 1995 in any case regarding the upbringing of children - it is called the "best interests" test for short. The child being consulted is first on that list. Article 3(3)(a) of that Order says that when dealing with the "best interests" test the court shall have regard, in particular, to the ascertainable wishes and feeling of the child concerned, considered in the light of his age and understanding.
255.
Where the "best interests" test is used is in orders under the Children Order. It is part of general child law jurisprudence and is something that a family judge would be aware off. If there was a desire to include it in this Bill it might be in the context of the "best interests" test to allow the jurisprudence to develop in a coherent way. We looked at this issue previously - particularly in the light of the proposed amendment to the earlier child support legislation. This legal issue is not specifically about the upbringing of a child - it is a different legal issue. It may be that the "best interests" test is relevant, but it is a different issue and that was our decision.
256.
Mr Lambe: Just as a child under the UN Convention has a right to know who his or her biological father and mother are, parents also have an interest in this issue. They have an interest in determining who their children are, especially in view of the fact that they have significant financial obligations to those children.
257.
Ms Archbold: In some pieces of legislation, such as the Children (Northern Ireland) Order 1995, the child's best interests are paramount. In other legislation the child's best interests are a factor but are not paramount. In other pieces of legislation the interests of the child are not specifically considered but simply fall within all the circumstances of the case.
258.
Ms Ramsey: What about taking into account the views of the children or their step-parents?
259.
Ms Archbold: We would see that as part of the best interests test.
260.
Mrs I Robinson: I want to look at the acquisition of parental responsibility by the step-parent. There is concern that giving parental responsibility to step-parents may cause difficulties for the natural parents of the child. In some cases parental responsibility might be made available to three or more people. This could be destabilising and potentially cause emotional damage to the child. Do you agree therefore that we should be very cautious about extending parental responsibility to step-parents without the agreement of the natural parents?
261.
Mr Lambe: When a step-parent applies for parental responsibility, any other person who has parental responsibility will be a party to the proceedings and can alert the court to any objections that they have, and the Court will take those on board. We do not regard this provision as being one that is going to have a significant impact - we just think it is slightly more transparent than applying for a residence order for your spouse's children.
262.
Mr McFarland: I have to say that this is very confusing. We have received the same submissions that presumably you received. We seem to have as many, or more, arguments than there are clauses. I want to discuss some of the key aspects that the Belfast Family Proceedings Court Standing Committee talked about. First, there is the fact that the Bill gives mothers a veto over unmarried fathers. Parental responsibility can be withdrawn from unmarried fathers, yet it cannot be withdrawn from mothers or married fathers. Is there an inherent discrimination against unmarried fathers?
263.
Secondly, there is the question of discrimination between legitimate and illegitimate children. How does the Bill square with articles 7 and 8 of the UN Convention on the Rights of the Child, which recognise the rights of children to be known and cared for by their parents and their right to respectful family life? Finally, none of this is retrospective. If, for example, I was a wayward young lad, I might have two older children who would not be affected by this Bill, and I may have a couple of younger children who would. Therefore, I would have four children - two of whom I could have responsibility for, and two for whom I could not.
264.
There are many anomalies, and it strikes me that there is a degree of comfort in that some things seem to fit into other legislation easily. However, there are more fundamental issues involved. We must do what is right and not necessarily what is comfy for lawyers or the Office of Law Reform. It should not be about what fits easily into a Bill or what would cause more work than it is worth. We need to examine the Bill with a view to doing what is right for the children, because that is the object of the exercise. How does all of this square with what is in the Bill?
265.
Ms Archbold: I agree that there are complex issues. Although we are amending the law in small ways we are dealing with serious matters that will affect many people's lives. The key to this must be balance, because people find themselves in many different situations.
266.
You referred first to the discrimination between married and unmarried fathers and then to discrimination between - as you termed it - legitimate and illegitimate children. Those terms no longer exist in law; the terms used now are k"marital" and "non-marital" children.
267.
Mr McFarland: Wonderful, I am getting too old.
268.
Ms Archbold: I do not mean to correct you.
269.
Ms McWilliams: Do. It is important.
270.
Ms Archbold: When you examine human rights in families you must look at every right that everybody has. We try to maintain a child focus and keep the child in the centre when we deal with this. However, we also look at all the rights that every family member has in every situation that they might find themselves in.
271.
The unmarried father's right to family life is undoubtedly something that we were addressing. We have already noted that that right is not absolute. The state can interfere with that right if it does so proportionally and for one of a number of legitimate aims - one being to protect others' rights. Therefore there may be situations where rights must be balanced - for example, in the case of a woman who conceives a child as the result of rape. Automatic parental responsibility that treated unmarried fathers equally would not protect her or her child's right to safety.
272.
We received many submissions. Some emphasised the rights of the father and others stressed the needs of mothers and children who found themselves in less than ideal situations. Some submissions requested us to major on children's rights. We tried to find a balance among all of those, and the one that we arrived at meets, and goes beyond, the requirements of the European Convention on Human Rights.
273.
You also mentioned "retrospectivity". Take the case of a man who fathered two children early on in his career and now has a second family to whom this law might apply. He might not have jointly registered the earlier children with the intention of securing parental responsibility. It would be unfair to impose obligations on him that he was unable to take into account at the time when he registered them. We considered "retrospectivity", but it is a legal principle to avoid it if at all possible. With regard to earlier families, it may help you to know that it is possible to make a parental responsibility agreement that gives all your children the same status.
274.
We can have law that is comfy for lawyers, but it will not affect people until we tell them about it. That is why a major information campaign, which Mr Durkan referred to in the Second Stage debate, is part of our strategy. With the help of the General Register Office we will undertake to leaflet those registering the births of children, and run a media campaign.
275.
The Chairperson: I want to ask a question in relation to the evidence that Ms Fox and Ms Bowman-McAlister gave. Did you say that Mr Desmond Perry had made a presentation to the Office of Law Reform?
276.
Mr Lambe: Yes, he responded to the July consultation.
277.
The Chairperson: The reason I ask is that Ms Fox and Ms Bowman-McAlister said that they did not speak to you. I understand your explanation.
278.
You heard the points they made. Mr Desmond Perry feels passionately about these matters. He wrote to us on at least two occasions when we were conducting our investigation into children in care. As chairperson, Mr Perry signed the document that was passed on to us. In his paper to the Office of Law Reform does he make the same points as are in the document that was passed on to us today?
279.
Mr Lambe: I do not have magistrate Desmond Perry's response before me, and I cannot recall off hand what his views on the consultation proposals were. However, the Committee staff should have a copy.
280.
The Chairperson: I understand that. Reference has been made to some of these points. The ladies from the Belfast Family Proceedings Court Standing Committee stated that they had talked to a number of legal organisations - but did not specify which organisations - and gave the impression that most informed people, especially lawyers, would be in agreement with them. I am not saying whether that is right or wrong - I do not know - but I am sure that they said that in good faith. I presume that Mr Perry made the same points to you. What comment have you to make about those points, apart from the fact that you have explained that you did not consult them because they were not available as an organisation at that time?
281.
Mr Lambe: The comments made by the witness earlier this afternoon are not reflective of the broad swathe of response which we received to these proposals back in the summer of 1999. There was recognition that there was a need for some change in the law, but people differed as to the extent of that change.
282.
The Chairperson: Concern has been raised by some organisations that the Bill, as currently worded, does not link the acquisition of parental responsibility with any requirement by unmarried fathers to provide emotional or practical care for the child. Some advocate redefinition of parental responsibility in the Children (Northern Ireland) Order 1995 to achieve a greater balance in relation to the caring and controlling aspects of parenting. The Scottish approach in the Children (Scotland) Act 1995 has been cited as a substantial improvement on the Children Act 1989 for England and Wales. What are your views on this matter and would the Children (Northern Ireland) Order 1995 be the proper legislative vehicle do carry this out?
283.
Ms Archbold: We have a copy of the Children (Scotland) Act 1995. We have given thought to the English and Scottish definitions of parental responsibility and also the recent Australian legislation. It seems that there are strong arguments on both sides. When faced with a major social problem, or social issues, it can be easy to try to solve everything at once. One other area of the Office of Law Reform's work which is relevant to encouraging parents to be good parents is the family information and support provision, which we discussed in our 1999 consultation document "Divorce in Northern Ireland: a better way forward".
284.
There are strong arguments on both sides for having a legislative definition of parental responsibility. It may be that this is not the right legislative vehicle because it will have knock-on effects outside the remit of this small piece of legislation. Legislation is one thing, but giving people practical help where they need it, enables people to be better parents rather than merely stating that they must be better parents.
285.
Mr Lambe: The issue of whether parental responsibility should be more closely defined was raised by Mr Nigel Dodds during the Second Stage debate. The Minister responded that he was concerned that legislating on what a person with parental responsibility can or cannot do in relation to a child would be unduly restrictive No list of decision-making powers would ever be exhaustive. It was therefore felt that it would be better to keep the legislation flexible and to let the courts - the experts in this area - take the matter on board and develop the law.
286.
Ms Archbold: A senior professional whom we know has described legislating as putting something that is developing into aspic - you are freezing it at a particular point in time once you write the definition down. There are arguments on both sides.
287.
Mr McFarland: We are dealing with rapidly expanding numbers in this area. The numbers of children born outside of marriage are increasing fairly rapidly. It is becoming the norm in society. Our children are being targeted by magazines which encourage them to experiment - you ought to see what my daughters are reading. Your defence against having an automatic right concerns rape cases.
288.
What would happen if there were to be an automatic right subject to a court objection by the mother? A case involving rape or a violent husband could, of course, prevent that right. The Child Support Agency is spending a fortune chasing after errant young men who are not living up to their responsibilities. It finally gets hold of them and tells them to get their money out for the next 18 years. The young men are then expected to dole out the money to support the children, without having any rights at all. They do not even have a say in hospital treatment, yet they are paying for it. It is right that they pay, but I am uneasy about this. I am uneasy about the defence that somebody might get raped or somebody might be violent, when there are thousands of people who are living in perfectly happy relationships. They may be living together in a stable relationship, but the right is still not automatic. Why not have a system whereby there is an automatic right? In specific cases a mother could stop matters by saying "No. I was raped, I'm not prepared to have this" or "He is a violent git."
289.
Mr Lambe: We believe that the law as it currently stands - and as it would be improved by this Bill - creates a mechanism whereby every unmarried father can acquire parental responsibility for his child. That can be done through joint registration, which will cover most cases. It can be done by agreement with the mother - which rarely happens because people do not know about it - or by applying to a court. Where the mother does not agree to an agreement or to joint registration, or opposes an application to a court, you are, in those circumstances, creating systems whereby a decision can be made. That decision will reflect the best interests of the child, not the best interests of the unmarried father or the mother.
290.
The joint registration of a child's birth can only take place if the mother consents to it. There is a 42-day waiting period in which the registration can take place. A married father has gone through a process - he has gone through a marriage ceremony - and he has publicly demonstrated a commitment to his wife and subsequently the mother of the children. An unmarried father who jointly registers the birth of the child is also making a public commitment. An unmarried father who enters into a parental responsibility agreement with the mother - which has to be lodged with the High Court - or who makes the decision to apply to a court for an order, is going through a process.
291.
Mr McFarland: But you are entering the realm of moral judgements about who is fit or unfit. A mother could be a wayward young lady, yet she is automatically absolutely fit. We are trying to encourage young people who have children out of wedlock to accept some responsibility. You chase a young man through the courts to get his money and deliberately encourage him not to take any responsibility for his child. There is an argument that if you say to him, "Hang on, old chap, we want your money, and you are responsible for this" that he is more likely to react by accepting some responsibility than if you simply take the money. One could argue about "taxation without representation", the basis of modern democracy, numerous laws and the American constitution.
292.
Ms McWilliams: I feel that there is a heavy duty on us to protect the best interests of the child. That duty should not mean that the woman has to go to court first to contest a decision in every case - otherwise you put the onus on that person. As far as I am aware, where there are issues of abuse, or where the woman wishes protection, she does not have to declare the other parent's identity, meaning he need not make any child support payments. I am concerned that you have not written the best interests of the child into paragraph (c), although you have spent considerable time talking about the question. The Belfast Family Court Proceedings Standing Committee has also spent some time discussing it. Would you support an amendment reading "The court, on his application, orders that he shall have parental responsibility for the child where this is in the best interests of the child."? If you wish to make a cross-reference to the Children (Northern Ireland) Order 1995, so be it. I am not sure that we can automatically take it for granted as things stand - and, indeed, in view of the concerns raised in the submission - that the court takes the best interests of the child into account.
293.
Mr Lambe: It is important to bear in mind that clause 1 of the Family Law Bill inserts that amendment into the Children (Northern Ireland) Order 1995, so proceedings would be brought not under the Family Law Act 2001 but under article 7 of the Children (Northern Ireland) Order 1995. Article 3 of the Order automatically kicks in, and the child's best interests will be determined during the proceedings.
294.
Ms McWilliams: Are you saying that it can be taken as read? I am concerned that it leaps out as being very cold as it stands. I take what you say about its being in relation to the Children (Northern Ireland) Order 1995. However, what is to stop our repeating that "the court orders that he shall have parental responsibility for the child"? I am arguing that we should add "where this is in the best interests of the child."
295.
Ms Archbold: We certainly hear the argument you are making, and if you would like us to return to that at a later date we can. We would appreciate the opportunity to consider it in some detail.
296.
The Chairperson: I take your point that this amends the Children (Northern Ireland) Order 1995, but I should have thought that what Ms McWilliams was suggesting to strengthen it would be reasonable.
297.
Mr McFarland: If the child were older and able to reason, he might well wish his natural father to have some responsibility for his upbringing. What is the objection to that? I appreciate that, as that is not possible, we are trying to determine what is in the child's best interests. I fully understand your defence in relation to rape and violence, and the need for a mechanism to exclude fathers in those categories. However, aside from that, if the natural father is expected under the law to provide for the upkeep of the child and the mother under the child support system, why should he not, as well as the natural mother, have parental responsibility for that child? What is the argument that says that that is wrong?
298.
Ms Archbold: Several submissions during the consultation period made that point. Several made the point that is necessary to have strong, active measures not to expect a victim of abuse to go to court first. Other submissions came from different points of view. Our advice to Ministers - and it is in the Family Law Bill - is a balance. All unmarried fathers in Northern Ireland have some mechanism by which they can have legal recognition of their relationship to their child. We have reached that balance from the many arguments received. Your argument was one which we took into account. We are aware that the European Court of Human Rights accepted the necessity not to have automatic parental responsibility for all unmarried fathers, because of the need to protect in situations of abuse. In facilitating unmarried fathers, we have gone beyond what was deemed to be acceptable. It is a balancing act, and society is in a state of evolution.
299.
Mr McFarland: A balancing act! I might believe you should have your head cut off, whereas Sue Ramsey might not believe that. A balance would be to half chop it off.
300.
Ms Archbold: We will balance it in accordance with human rights.
301.
Mr McFarland: Forget the balance for a moment - is this something that is right to do? The argument is again being clouded by the question of abuse. I am slightly worried. In how many of the 4,000 cases you mentioned - 2,000 living together and 2,000 not - is abuse taking place? I understand there are rapes and abuse, but I suspect that most of those cases are young people getting together for one reason or another and producing a baby. Abuse or rape is not part of the vast majority of those issues. Is that correct?
302.
Ms Archbold: I am sorry that we cannot help you on that. We do not have statistics.
303.
Mr McFarland: On the balance of probability, given the level of abuse and rape cases before our courts, would you say that the majority of babies born out of wedlock were the products of rape situations?
304.
Ms Archbold: I would welcome the chance to check, but the international statistics show that between one in four and one in 10 relationships have domestic violence. Prof McWilliams may be able to assist with more accurate statistics that we can provide, but my understanding with regard to levels of domestic violence in Northern Ireland - whether they come before our courts or not - is that in 1999 there were 3,000 non-molestation orders sought in the Northern Ireland courts. Fifteen thousand violent incidents were reported to the police. We cannot therefore say that this a world in which the majority of unmarried parents are teenagers who got together after a disco. Occasionally there is a stranger rape among those cases.
305.
I know that it is rare for conception to occur after rape - at least I believe that to be the case from the research. However, there is evidence from other jurisdictions -England, for example - that while there is a high rate of teen pregnancy in the UK, there is also a high rate of unmarried women in their thirties having children - many of them in stable unmarried relationships, and some without there being a father around. I do not know what the position in Northern Ireland is, but I think that it is complicated. People in these statistics have many different life stories. It is very hard to get a "one-size-fits-all" rule which will cover all of them.
306.
Mr McFarland: We are legislating for what is clearly a problem but, I would argue, a minority problem. We are taking a worst case scenario and saying that all the unmarried fathers who are not involved in abusive relationships or rapes are to be penalised on the basis that some are. That seems to be a very dodgy basis upon which to start legislating.
307.
Ms Archbold: It may help to focus on the majority of cases. In the majority of cases, parents will be aware of what they are doing because of the publicity campaign. The parents who are together in a relationship and are trying to make things work will say "We will jointly register the birth. This is our baby. We are both taking responsibility for it." The fathers who are not getting parental responsibility by taking that step are the unmarried fathers who cannot agree with the child's mother that they are to have parental responsibility. In other words, you are filtering out the easy cases and leaving the hard cases for the courts to determine.
308.
Ms Armitage: I have a brief question. Alan McFarland seems to be concerned that the natural father pays maintenance and then is denied parental responsibility. Do we have any evidence that that actually happens, Mr McFarland, or are you just assuming that it does? Perhaps I have misunderstood you - and that is your fault because you have not explained it well enough. You say that some people are chased for their money and then have no parental responsibility. Are you assuming that that happens or do you have evidence?
309.
Ms Ramsey: It does happen.
310.
Mr McFarland: Our big problem in Northern Ireland is that we have got all these young men who go out and have a "wahoo" and have a few drinks with a few young ladies who have a few drinks as well, and you end up with teen pregnancies.
311.
Ms McWilliams: No you do not.
312.
Mr McFarland: You do in a lot of cases. For a long time the solution to this was that the young gentleman took the Holyhead boat, or went off to Heysham in England for a while until things were sorted out. The Child Support Agency system is designed to get these young men and say "You have a responsibility. This is your responsibility. You have been involved in this relationship. There is a baby - you take responsibility for it." We chase them through the courts. The message going out is that you have absolutely no responsibility as a parent unless you want to. If you want responsibility, you go to court. If most of them do not want it, we are saying that that is all right. I am saying that we are chasing them for their money. We should be giving them responsibility. Many of them would accept the responsibility if they were given it, but they will not accept it unless someone says "Listen, you have been responsible for this" -
313.
Ms McWilliams: It is a myth that that is a major cause of teenage pregnancy. We had the 'Myths and Realities' report in front of us, which says that most unmarried mothers are not the very young, and that pregnancy is not the consequence of one night.
314.
Secondly, a lot of research would show that even where they are paying - particularly if they are paying - the issue of responsibility is there. We are talking about extending this, not restricting it. All married fathers have it automatically. We are extending that right to all unmarried fathers in the future, where there is joint registration.
315.
The Chairperson: Are you agreeing with Alan McFarland?
316.
Ms McWilliams: No, I am not.
317.
Mr McFarland: But it is only if they apply. If a father does not want to accept his responsibility, then he simply does not bother to apply and the mother is left with it.
318.
Ms McWilliams: May I suggest that we will learn from the future monitoring and evaluating of those who choose to exercise their parental responsibility? As a result of your information campaign will there be a decrease or increase in joint registration? The individual now has authority over the property of that child, as stated in the Children Order. That might be a frightening future aspect of this, as it will not just be responsibility for upkeep. The mother may say that this person will also be able to make decisions about any property that this child has, or inherits, or that the mother buys for it.
319.
The information campaign will be crucial, because at the moment most people do not know what this legislation will entail. Fathers may choose to opt in or out, and mothers may do likewise. That will then leave research to ascertain whether cases go through the courts. In future, those parents may be divested of responsibility or may seek it. At this stage we do not have the answers. Given all that we have heard and seen in submissions, you think that this is the way forward in meeting the criteria of the European Convention on Human Rights and meeting some of the concerns and fears that are around.
320.
I do not like the view, taken by some, that this is a compromise. Legislation is never good if it is a compromise. If we do not legislate now we may be found guilty of discriminatory clauses in relation to the Convention on Human Rights. I think that this Bill may meet some of that. That is why I would suggest that some of the proposals should be based on the best interests of the child.
321.
The Chairperson: Before that is replied to, has Ms Armitage finished?
322.
Ms Armitage: I think so. I am not any wiser, but I think I will leave it for the moment.
323.
Ms Ramsey: Can you give me the figures again for the live births outside of marriage, and within that number, how many were jointly registered?
324.
Mr Lambe: Firstly, there were 22,957 children born in Northern Ireland in 1999. Of those, 6,957 were born to parents who were not married to each other. Of those 6,957 births, 64.5% were jointly registered by the mother and the unmarried father, either to the same address or to a different address.
325.
Mrs I Robinson: The ratio is therefore about one to three in relation to children born to married couples?
326.
Mr Lambe: Of all children born, 30.3% are born outside of marriage.
327.
Mrs I Robinson: I asked that because the other group of witnesses implied that the number of children being born within marriage was dwindling.
328.
Ms Ramsey: I want to go back to a point made earlier by Mr Lambe, and also something that came from the Belfast Family Proceedings Court Standing Committee witnesses. Mr Lambe said that the courts are the experts who will develop the law. If these people deal with these issues daily, why do you think that they have a lot of problems with this Bill?
329.
Ms Archbold: The people who submitted that report take that view. We have had other views from elsewhere in the legal profession and the judiciary.
330.
Ms Ramsey: Yes, but it is a Standing Committee from Belfast Family Proceedings Court. Unless I am wrong, they are dealing with those issues day and daily. If you are saying that the courts will develop the law then why do those people, who are developing the law, have such problems?
331.
The Chairperson: That is why I asked the question about Desmond Perry. He is the chairperson of that group, as you know.
332.
Ms Archbold: Belfast Family Proceedings Court, located in Belfast Magistrates' Court, represents the people who practice, and the magistrates who sit, on family proceedings in the magistrates' court. It says that that is an issue on which people have different views - even in the legal profession there are different views. We have attempted to strike a balance and to take people's concerns into account - not by way of compromise but by way of having a law that will fit the many diverse situations in which people find themselves.
333.
Ms McWilliams: It is your understanding, as it is my understanding, that there is a diversity of views within the group. Since Desmond Perry, the magistrate, signed off on that document, we have obtained views from others who would not sign up to the entire document.
334.
Ms Ramsey: That was not the impression given by the people who made the submission. They said that although there were different views within their group, they are all agreed on the document.
335.
The Chairperson: They did emphasise the number of people for whom they were speaking - within the legal profession and beyond.
336.
Ms McWilliams: However, it is important to add that in their earlier submission they said that they were satisfied that the legislation should be amended to give parental rights to both fathers and mothers - whether married or otherwise - and, equally, to amend the Children Order to allow the court, on application of either parent, to divest a parent - whether father or mother - of the same. Despite all their concerns, they came to that conclusion. That seems to read itself into the amendments that are proposed.
337.
Mr Lambe: That conclusion, on permitting the removal of parental responsibility from mothers or married fathers, is not a proposal that was put forward when we consulted.
338.
The Chairperson: It is a complicated matter. Of the five clauses, clause 1 is obviously problematic. We, as a Committee, are faced with a time-factor problem - and not just for this evening. We have to respond to the Finance Committee by the end of March. Perhaps we could look at clauses 2, 3, 4, and 5 to see whether we can pass or amend them. I do not think that we will agree on clause 1 as it stands - it may have to be amended.
339.
Ms McWilliams: For the record, I understand that we were going to return to clause 1(2)(c).
340.
The Chairperson: Yes, that point was made earlier.
341.
Ms McWilliams: I think that there could be agreement on the rest of the Bill.
342.
Mr McFarland: We need to examine clause 1, in its entirety, more slowly. Our researchers have advised us that there are a number of matters in clause 1 that need to be looked at. We should aim to tie up the rest of the clauses, if possible.
Clause 2 (Presumption of parentage)
343.
The Chairperson: Clause 2 deals with the presumption of parentage. Colleagues have had time to study it. Mr Lambe and Ms Archbold agree that there is nothing very controversial in clause 2.
344.
Mr Lambe: Yes. Clause 2 puts an existing common law presumption onto a statutory footing - that a man, married to a woman at any time between the conception and birth of the child, will be presumed to be the father of that child. It goes further, in creating a new statutory presumption that we think mirrors what most people would think in practice - that if a man agrees to have his name put on the birth certificate of the child, that that is an acknowledgement of parentage. These provisions mirror provisions that are already in place in Scotland.
345.
Mr McFarland: In clause (2) it states
"any presumption under this section may be rebutted by proof on a balance of probabilities".
346.
If you are tested can that be rebutted? Or does it mean that someone was not in the country at the time?
347.
Mr Lambe: In those circumstances a scientific test would not always need to be done to be able to rebut that presumption.
348.
Mr McFarland: Does it have the safeguard that it can be rebutted if there is a balance of probability?
349.
Mr Lambe: Yes. The scientific tests that determine parentage can be used in proceedings.
Clause 2 agreed to.
Clause 3 (Tests for determining parentage)
350.
The Chairperson: This clause amends the Family Law Reform (Northern Ireland) Order 1977. It enables courts to direct the taking and testing of bodily samples for the purpose of resolving questions of parentage. At present courts are confined to directing the taking and testing of blood only. Other amendments to this legislation are contained in the Child Support, Pensions and Social Security Act. Is there anything that you would like to draw our attention to?
351.
Mr Lambe: Clause 3 seeks to implement in Northern Ireland provisions which have been on the statute book in England and Wales for some years but which have never been brought into force. It will allow courts who are directing and dealing with parentage disputes to enable the testing to be done not on blood but on other bodily samples. It is generally regarded as a much less invasive procedure from the point of view not only of the child but of the mother and putative father.
352.
Ms Archbold: Mouth swabs can be taken.
353.
Mr McFarland: Who should pay for this? There is a school of thought that says that if you demand a parentage test you should pay for it - particularly if it comes up negative. With regard to the rights of the child recently there have been cases in England where there has been some doubt over whether a child is of the parents that it thought were its natural parents. The psychological effects of discovering that your daddy is not your daddy and that uncle Jimmy is your daddy can be serious. What rights do children, particularly teenagers, have to object to this sort of testing. It may turn out that the person whom they have known and loved as their father all their life is not their father. In some cases they may prefer not to know that. There are moral issues.
354.
Mr Lambe: As a child gets older and a question of parentage arises in civil proceedings the court will take into account the child's views if the child is adamant that he does not want to know whether someone is his parent. The court would take that into consideration when deciding whether to direct under the Family Law Reform (Northern Ireland) Order 1977 that tests should be carried out.
355.
Mr McFarland: Should a child have the right to object to it or to be consulted?
356.
Mr Lambe: A child has the right to be consulted on all occasions when the child's views are relevant.
357.
Ms Ramsey: They were not consulted about the Bill.
358.
Mr Lambe: With regard to payment, the vast majority of cases where parentage is in dispute are taken by the Child Support Agency. It very rarely occurs in other proceedings relating to children.
359.
Ms McWilliams: Who pays in those cases?
360.
Mr Lambe: I attempted yesterday and this morning to find out accurate information about that. My understanding is that if the Child Support Agency takes the case and successfully proves parentage then the cost would fall to the unsuccessful defendant. However, I cannot be sure that that is what happens.
361.
Ms McWilliams: We have received a submission saying that it is not the case. We do not know what the answer is. One group which made a submission to us said that in all cases the parents pay - successful or unsuccessful - and that they feel that this is unfair.
362.
Mr Lambe: I am happy to check that out and to get back to the Committee in writing with the answer.
363.
Ms Ramsey: I have to place on record that I have a concern for kids. We are all aware of a lot of cases where the children might not want to know and where they are not asked for their consent. In relation to samples, will they be destroyed right away?
364.
Mr Lambe: In most cases the sample will be a sample directed to be taken by the court, and it will be taken and tested by accredited laboratories. At present only two organisations carry out court-directed tests in Northern Ireland. I imagine that that situation will continue. I do not have the operational information on how long individual samples are kept. However, I can make enquiries again.
365.
The Chairperson: We cannot move on clause 3, so we will have to come back to it.
366.
Ms Archbold: It is possible that because those are operational matters, they are not contained in the wording of the clause. Members may wish to have assurances before they agree the clause. It may be that those matters can be talked about without their affecting the substance of this section.
367.
The Chairperson: Colleagues might want to put an amendment down at a later stage. There are a couple of small queries about this clause so we will leave it for the moment.
Clause 4 (Commencement)
368.
The Chairman: This clause provides that the Department of Finance and Personnel may bring into operation the provisions of the Bill on such day or days as it may by order appoint.
Clause 4 agreed to.
Clause 5 (Short title)
369.
The Chairperson: This clause provides for the short title to the Bill.
Clause 5 agreed to.
370.
Thank you very much. We look forward to returning to clauses 1 and 3 at a future meeting.
MINUTES OF EVIDENCE
Wednesday 21 March 2001
Members present:
Dr Hendron (Chairperson)
Mr Berry
Rev Robert Coulter
Ms Hanna
Mr J Kelly
Mr McFarland
Ms McWilliams
Ms Ramsey
Mrs I Robinson
Witnesses:
Ms C Archbold ) Office of Law Reform
Mr N Lambe )
371.
The Chairperson: We welcome Ms Claire Archbold and Mr Neil Lambe back to the Committee. You have received some documentation from us, and I ask you to please talk us through the letter that you sent us on 20 March.
372.
Mr Lambe: As a result of the evidence given by Claire Archbold and myself on 7 March, several members of the Committee raised points that they wanted clarified.
373.
First, the Office of Law Reform was asked to provide the Committee with a list of those with whom we had consulted. Members should now have that document before them. In particular I draw members' attention to the very wide range of groups representing women, children and fathers with whom we consulted.
374.
Secondly, the Committee also asked the Office of Law Reform to consider an amendment to clause 1(2)(c) of the Bill which would refer explicitly to a best interests test when a court is making an order for parental responsibility. With the Committee's approval, we could discuss that issue at greater length later.
375.
Thirdly, as regards clause 3, the Committee asked for information on who pays the costs for tests to determine parentage, and whether blood samples or bodily samples would be destroyed immediately.
376.
In relation to the first issue, a general principle in civil proceedings is that costs follow the event. By that I mean that if a parent with care institutes proceedings to obtain a declaration of parentage and is successful, then it is the parent who has disputed the parentage who will bear the costs.
377.
Similarly, if the Child Support Agency takes a case against an absent parent who disputes parentage and loses the case, the cost of obtaining the DNA tests, and the associated legal costs, would be borne by the Child Support Agency.
378.
As to the length of time for which samples are kept, both the Child Support Agency and the courts have a contract with Cellmark Diagnostics Ltd. The company has informed me that the terms of the contract require them to keep the samples for two months. They are destroyed after that period.
379.
The main reason for keeping the samples for that period is to enable further tests, or challenges in relation to the tests, to be made prior to the court making a decision in any case where parentage is disputed. That two-month period is not a statutory period - it is simply a matter of the contract between the various bodies.
380.
You also requested a copy of Mr Desmond Perry's response to the original consultation paper in 1999. You will know that he is currently the chairman of the Belfast Family Proceedings Court Standing Committee. Members should now have a copy of his response.
Clause 1 (Acquisition of parental responsibility by father or step-parent)
381.
The Chairperson: Thank you very much. You have already received our documentation. The first point relates to whether the Committee is content with the current definition of parental responsibility in the Children (Northern Ireland) Order 1995. The alternative is to consider putting down an amendment to give the definition greater balance as regards the caring and controlling aspects of parenting - vis-à-vis the Children (Scotland) Act 1995. Have you any comments to make on that?
382.
Ms Archbold: We have given careful consideration to this matter, and we have also done some reading in relation to it. It seems to us that the arguments are fairly finely balanced, but we would come down against a statutory definition for several reasons.
383.
The first reason relates to the views of the academic authorities. I refer in particular to Bromley and Lowe, who are the authors of one of the standard texts on family law. Even though they say that they prefer the Scottish way of doing things - other authors disagree - they have said that the English provision, which is like ours, works well and that there is no point changing something that works in practice.
384.
The Scottish definition is not making any new law - it is setting out in statute what is already known from the common law and from cases that the courts have decided. Those principles are part of the common law in this jurisdiction, so the fact that they are not set down in statute does not mean that there is not a significant jurisprudence in case law of what parental responsibility means. We wonder whether, to clarify the law to members for the public -
385.
The Chairperson: That is the key point because they would not be aware of that information.
386.
Ms Archbold: Is a statutory definition the best way of doing that? Alternatively, would the best way of doing that be, for example, through a public information brochure which could be given to new parents? The Scots have actually produced a brochure called 'Your Children Matter'. In it they set out not only the definition of parental responsibility in plain English - giving concrete examples that will help parents to understand them - but a user-friendly description of how you can obtain parental responsibility if you are an unmarried father.
387.
They also give the example of a little boy who lives with his grandparents because his parents are dead and the example of a little girl who lives with her auntie and uncle because her father is working away and her mother has gone to London. That is a very good way of bringing the matter to people's attention. This is the sort of thing that we had in mind when we mentioned a publicity campaign last week.
388.
There are two further points we want to make in relation to a statutory definition of parental responsibility. Although a statutory definition may define what parental responsibility is at the moment, it is an evolving issue, and the courts evolve what it means. If we set it down at one particular moment, we may be putting it in aspic and perhaps tying courts' hands at later date.
389.
The final point - which leads us to believe that it might be better not to look at this point on this occasion - is that the Family Law Bill is quite a small Bill. It is dealing with only some matters in the Children (Northern Ireland) Order 1995. If we redefine parental responsibility, that definition is not just going to affect article 7 cases. It is going to affect article 8 cases - contact and residence cases. It is also going to affect cases in the public care system.
390.
We have not consulted on this. If this is something that is going to be very wide-ranging, it may need consultation. Perhaps this Bill is not the right vehicle, given the stage that we are at. Those are the arguments that occur to us and we hope that they are helpful to the Committee.
391.
The Chairperson: Thank you very much. Have members any questions?
392.
Ms McWilliams: The Scots were able to produce that little pamphlet because of their legislation.
393.
Ms Archbold: They were able to produce the pamphlet - and we would be able to produce a pamphlet even though we do not have those principles set out in legislation.
394.
Ms McWilliams: I realise what you are saying, and that is what I was going on to say. It follows that the Scots should have a pamphlet to outline what is in the legislation. We are producing a pamphlet giving a definition that is not in the legislation. It actually has no legislative authority. A person cannot stand up in court and say "Your Honour, this little pamphlet says what responsibility is". It is only a public awareness campaign.
395.
Ms Archbold: It does have the authority. The principles that we would be setting down would be those that are in the common law. They have been decided by courts in cases, and they have the authority of case law. However, a publicity brochure is not going to cite specifically the case of J v C or Gillick v West Norfolk and Wisbech Area Health Authority.
396.
Those principles will be the principles which are set out in the legal textbooks, and which are derived from the common law. They are matters which lawyers argue about in court on the basis of the common law.
397.
Ms McWilliams: My final question is about someone taking parental responsibility. I suppose they go through a solicitor. However, they may not be familiar with what they are taking on. The unmarried mother may not be familiar with what she is giving. It can be either an encouraging or a discouraging mechanism, but at least it is in law and people know exactly what they are signing up to. If it were in a pamphlet quoting lots of precedents, it would not have the same effect. I am asking this because I am concerned that we should make better law. As you know, there is a campaign that is not going in that direction, led by those who are saying that this is giving too many rights. Others may say that it is not giving enough. We end up in a dispute about what rights it is giving.
398.
Ms Archbold: The point that you are making relates to clarity and simplicity in the law. That is something to weigh in the balance. Our analysis is that at this time - and in relation to this piece of legislation - there is work to be done to make people more aware of family law. However, to put a statutory definition of parental responsibility into this piece of legislation may not be the right thing to do. The timing might also not be right.
399.
The Chairperson: If we were to put an amendment down, would you take it to the Minister or would we have to proceed ourselves?
400.
Ms Archbold: That is not a matter which we have discussed with the Minister. If it were a matter that was contained in the Committee's report then clearly the Minister would have to consider it. However, we could not say any more than that.
401.
The Chairperson: Yes. I understand the reasons why you are saying that it should be left, but I also see Monica McWilliams's point.
402.
Mr McFarland: We have a new scenario here - a whole bunch of thrawn politicians whose job it is to make law. I appreciate that this is half-foreign from the good old days when lawyers spoke to lawyers and it was all sorted out according to plan. We took a stance on several occasions when we were considering the Health and Personal Social Services Bill. The Committee disagreed with what was produced in certain areas because we felt that it was not sufficiently simple. The draft used complicated and obtuse language and we managed to have matters clarified. We are trying to produce law here for ordinary people - not for lawyers - so that they can understand what they are supposed to be doing. I think that that is a good general principle. I appreciate that it is not always like that. It is handy for lawyers when issues are very confusing because the lawyers then require lots of money to explain them to the common man. However, if we can clarify such matters then we should.
403.
I have one concern. Is it going to embarrass you because you have not consulted widely on this? If you change the Children Order you were saying that several other pieces of legislation were affected and that this was going to embarrass you because you had not consulted on those. Is that a serious issue?
404.
Ms Archbold: It is not that it is going to embarrass us. It is the fact that this is a matter which is outwith the original terms of the consultation and remit of this Bill. It is a serious matter upon which we would be unhappy to proceed without further and wide-ranging consultation.
405.
Mr McFarland: This is the point that I am making. If it is going to cause enormous chaos by our changing the Bill and putting in an amendment -
406.
The Chairperson: We have consulted on these matters.
407.
Mr McFarland: - then clearly, regardless of how wise we might think it is, we must not do this because it is not possible, without further consultation, for us to take this decision. Is that what you are saying?
408.
Ms Archbold: It would not be for us to tell the Committee what it must or must not do. It is our view that to proceed to change the definition of parental responsibility in our law, or to set that down in statute, is something which would be a large undertaking. It would require further wide public consultation because it has effects outside the remit of the Family Law Bill.
409.
The Chairperson: We went to consultation ourselves on this, and the point that has been made is something that came back to us.
410.
Ms Archbold: Is this something that you specifically asked people about or did they bring it to you?
411.
The Chairperson: They brought it to us.
412.
Ms Archbold: We would want to bring it to the appropriate people for consultation and to give them an opportunity for discussion.
413.
Mr McFarland: It would have been useful to know this at the outset.
414.
The Chairperson: You have a list of the people we consulted.
415.
Mr McFarland: You had time to discuss this earlier today. If we had known it was a non-starter, we could have saved ourselves a lot of time.
416.
The Chairperson: We have a decision to make. We either accept this as it stands or we amend it. I understand the argument you are making, Ms Archbold, but there is also an argument - perhaps along the Scottish line - that there should be an amendment. Certainly with our consultations -
417.
Ms McWilliams: Could I ask one question that might clarify matters? Had the amendment only pertained to this Bill, without implications for other sections of the Children (Northern Ireland) Order 1995, could you have accepted it?
418.
Mr Lambe: I would be reluctant to take that line because it would be confusing to have a statutory definition of parental responsibility for one type of court order and also a common law which defines parental responsibility for other types of proceedings affecting children. A statutory definition of parental responsibility would not necessarily be a straightforward replication of the Scottish definition without further research into how that definition operates in Scotland, and on how the Scottish courts have interpreted it, and whether they have gone further and developed additional guidelines as to what parental rights and responsibilities have been in Scotland.
419.
The Chairperson: If this Bill was amended and passed, and there is a statutory definition, is the case law nullified? Does statutory law override case law? What is the difference between the two?
420.
Ms Archbold: In relation to our presumptions of parentage in this Bill, for example, the statute simply re-enacts the existing law. Previous case law will still be relevant and the courts can look to it when they are interpreting the statute.
421.
The Chairperson: But what if they are different?
422.
Ms Archbold: If they are different then the statute which is later in time (and is also superior to case law in our constitution) would take precedence. However, if there were an incompatibility, you would have to look at the previous case law to see if the statute addressed that point.
423.
Mr Lambe: I am not persuaded by the Scottish definition because it does not state what decisions a parent can or cannot make. Courts still make that decision.
424.
The Chairperson: Our amendment would be to include, not to exclude. This is a very complex issue and I am not sure what colleagues wish to do.
425.
Ms McWilliams: May I make one final point? I am concerned that the Explanatory and Financial Memorandum says
"the authority which by law a parent of a child has in relation to the child and his property".
The Scottish definition mentions nothing about property.
426.
The Committee Clerk: The Scottish Act has a subsection.
427.
Ms McWilliams: I see. It has been clarified that the issue of property is not a legislative problem because it is contained in the Children (Northern Ireland) Order 1995.
428.
Mr McFarland: We are being advised that we cannot put down an amendment because it affects another law. If we cannot do it, we should not discuss it any further.
429.
The Chairperson: I am conscious of the time. Are members agreed that we will accept this as it stands and that we cannot amend it?
Members indicated assent.
430.
The Chairperson: The Bill makes no provision for unmarried fathers to acquire parental responsibility automatically, as is the case with natural mothers and married fathers. Sorry, we have already agreed that.
431.
We will move on to the next point. The Bill gives courts the power to divest unmeritorious unmarried fathers of parental responsibility; no such provision exists for unworthy mothers or married fathers. Is there an equality/ human rights question here? The Committee considers that there should be provision for all or any parents to cease to have parental responsibility given the proper emphasis placed on the rights of the child by the Office of Law Reform officials when they gave evidence to us.
432.
Ms Archbold: In the case of married parents or the unmarried mother, any time there is a dispute about parental responsibility and the exercise of particular aspects of it - such as residence or contact - or if there is a need to make a prohibited steps order or a specific issues order, the case is brought before a court and the court decides about that area of parental responsibility.
433.
If there is concern about the way in which the child is being brought up, and it is felt that the child is suffering significant harm, the child will be taken into care, and parental responsibility, in addition to being with the parents, will be with Health and Social Services. Social workers will only apply to court to have the child adopted when a case is so bad that they think that no amount of work with the family would enable it to function and live together in such a way that the child would not suffer significant harm. Adoption divests married parents and unmarried mothers of parental responsibility. That is the mechanism by which our law does that.
434.
The Chairperson: Does the Committee agree that the Bill should be revised to enable a step-parent to acquire parental responsibility on the order of a court? Should there be an inbuilt requirement in the Bill to take account of the child's views of the step-parent?
435.
Ms Archbold: Is that related to the best interests test concerning the unmarried father obtaining parental responsibility? At the last meeting we said that the child's views and wishes are one of the factors that are taken into account in the best interests test. Are these two matters related?
436.
Ms McWilliams: That was a separate question. My understanding is that they may be related because we come to the best interests test later. That was simply a question about step-parents acquiring parental responsibility on the order of a court. It is simply a view - I think that it was Ms Ramsey's view. Should the child have some say in the matter if he or she is old enough?
437.
Mr Lambe: It may be appropriate to address the two issues together. The question relating to the best interests test is whether that should be a specific factor to be considered by the court when making an order in relation to an unmarried father. The only way that a step-parent can acquire parental responsibility is by a similar order of the court conferring parental responsibility.
438.
We considered the request to take forward an amendment on best interests in clause 1. We are minded to take forward such an amendment and the Minister has approved that approach. If a court makes an order conferring parental responsibility on an unmarried father or a step-parent, it is consistent that the best interests test should be applied explicitly. That test is set out in article 3 of the Children (Northern Ireland) Order 1995. The first requirement is that the court will take the wishes of the child into account, but the age and understanding of the child must also be considered.
439.
Ms Archbold: The Committee might consider that it would be advisable to use the same tests for both. That is why we think the points are related.
440.
Ms McWilliams: If we took the two together, would you agree with the proposal that the best interests of the child should be added to new paragraph (1A) of the Children (Northern Ireland) Order 1995?
441.
Ms Archbold: Yes.
442.
Mr Lambe: The exact location of the amendment would be a matter for legislative counsel. However, the court would be required to take into account the best interests checklist in article 3 of the Children (Northern Ireland) Order 1995.
443.
Ms Ramsey: Will the best interests of the child feature throughout the Bill?
444.
Mr Lambe: No. That will only apply to clause 1.
445.
The Chairperson: There will be scope for more than two people to have simultaneous parental responsibility for a child. How will that work in practice when there are disputes among the parties about decisions that will affect the child? Who would arbitrate in such circumstances?
446.
Ms Archbold: Where more than one person has parental responsibility for a child, a dispute may arise. Article 8 of the Children (Northern Ireland) Order 1995 provides the mechanism for the court to arbitrate in disputes about contact, residence, specific issues or prohibitive steps.
447.
The Chairperson: Committee members are agreed to clause 1, provided that the amendment is brought forward.
Clause 1 referred for further consideration.
Clause 3 agreed to.
