| | | | | | | Children overlooked in civil union Bill | | | The Irish Times - Thursday, July 8, 2010
By Emily Logan | | | | OPINION: The proposed legislation fails to protect the rights and interests of minors | | | IT IS worth reminding ourselves of the context in which the Civil Partnership Bill is being debated.
The Government made it clear during the Oireachtas debates on the Adoption Bill, 2009, that it has no difficulty in principle with same-sex couples being parents or minding children.
Same-sex couples can and do act as foster parents at present. Gay and lesbian parents are currently able to adopt children, though only as individuals rather than as couples. This is the reality; children are being reared by same-sex couples in this State. It is clear that the situation of children was considered at length in the drafting of the Bill; it is unclear why that resulted in a Bill that did not prioritise the rights and interests of children as a paramount consideration. Although the situation of same-sex couples will be improved considerably by the enactment of the Civil Partnership Bill, the situation of children with same-sex parents will remain largely as it is.
The failure to provide adequately for children in the Civil Partnership Bill is particularly concerning as no argument based primarily on the interests of children has been advanced by the Government to support this approach.
Provisions from other areas of the law that acted as templates for the Civil Partnership Bill – such as legislation relating to maintenance, family home protection, and divorce – include references to the need to provide for dependent children of the family. When those provisions were adapted for the Civil Partnership Bill, the requirement to have regard to the needs of the dependent children of the family was removed.
This in effect means that the protections afforded to children of marital families will be greater than those afforded to children with same-sex parents in a civil partnership. How could it be said to be in children’s best interests to remove the requirement to consider their needs in these situations?
The children of civil partners are entitled to the same protections as other children if the courts are deciding on maintenance; the children of civil partners are entitled to the same protections as other children if the courts are determining what should be done with the family home; the children of civil partners are entitled to the same protections as other children if their parents’ relationship ends.
This is because, first and foremost, they are children.
Their parents’ civil status and sexual orientation should not be allowed to eclipse that fact or provide a ground on which the subordination of children’s rights can be justified.
It is also unfortunate that there is no provision in the Bill to allow for special guardianship orders to be made – this is a form of guardianship that would give the special guardian parental responsibility without extinguishing the parental rights of the non-custodial biological parent and would be appropriate in situations where full adoption is not deemed to be in a child’s best interests.
During the debates in the Oireachtas on the Adoption Bill, the Minister for Children and Youth Affairs indicated the possibility of providing in law for a form of special guardianship without the legislation being vulnerable to constitutional challenge, and that the Civil Partnership Bill was a potential vehicle for such a provision.
It should be borne in mind that the problems identified above are not hypothetical. The omission of protections for the children of civil partners ignores their reality and will have real consequences for the young people who are being raised by same-sex parents now and in the future.
It is encouraging that there has been a broad recognition in the Houses of the Oireachtas that the issues raised with respect to children’s rights in the Civil Partnership Bill should be dealt with more comprehensively.
I appreciate that the matters relating to the rights and welfare of children in the Bill are complex and interact with areas of the law beyond the scope of the Civil Partnership Bill.
I hope that, whatever means are chosen, the deficiencies will be remedied as soon as possible.
Emily Logan is the Obmudsman for Children
| | | | |  For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
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