The Irish Constitution affords protection to the family based on marriage but does not recognise or provide legal protection against discrimination for a wide range of different family forms including unmarried cohabiting couples, grand-parents’ parenting, blended families, lone parent families or same-sex couples and their children. This is despite family forms being more diverse; according to Census 2011, there were 834,396 families living with children, comprising: 522,959 married couples; 54,911 unmarried cohabiting couples; 186,284 lone mothers, 29,031 lone fathers1 and 230 same-sex couples rearing children.2
An increasing number of children are being cared for by step-parents, civil partners and others in loco parentis. Nonetheless, the law does not provide a mechanism whereby their relationship with the child is recognised. In the main, legal guardianship is confined to biological parents, either automatically through marriage, or for unmarried fathers through an administrative or legal process, or through testamentary guardianship.3 This position impacts on their day-to-day parenting role, for example consenting to medical treatment. This lack of legal clarity can be particularly detrimental to a child in the context of family breakdown or the death of a person whom is or whom the child regards as a parent. These issues have become especially acute in recent times due to the increase in cohabiting parents and children born outside marriage.
Cohabiting opposite-sex and same-sex couples cannot apply to adopt a child together. Only married couples have this right. However, individuals can adopt a child on their own regardless of sexual orientation. This has resulted in situations where adopted children are being raised by two parents but only one has the legal relationship to the child.
Over 1500 lesbian and gay couples have entered a civil partnership,4 which provides almost all the rights and obligations of marriage. However, lesbian and gay couples cannot marry, and therefore do not have the same constitutional status and protection for their relationships. Children being parented by civil partners are mostly unrecognised in civil partnership, and thus do not have the protections including maintenance, inheritance and family home protections afforded to children in other families.5 Civil partners cannot adopt as a couple and there is no mechanism to extend guardianship to non-biological parents except in very limited circumstances.6 The Ombudsman for Children has noted the lack of ‘robust protections for the children of civil partners’ warning that this would have ‘real consequences for the young people concerned’.7
There is currently no provision for legal recognition of transgender persons in their preferred gender. The Government has recently published draft Gender Recognition legislation8 which would require transgender persons who are already married to divorce as a pre-condition for recognition. Under Irish law this would require the spouses to live apart for four years and to state to a court that their marriage has irretrievably broken down. This would cause great hardship to couples who wish to stay together and to their children.
At present there is no statute law regulating assisted human reproduction in Ireland.9 There is also no law regulating surrogacy.10 The failure to clarify the law in both instances has resulted in significant litigation, often creating a legal limbo around the parentage of the child and leading to custody battles.11
In 2014, the Government published draft legislation which will extend certain legal protection to and recognise different family forms. These include lone parent families, blended families, families headed by civil partners as well as to children born of Assisted Human Reproduction.12 The proposed legislation is a welcome development and is considered to reflect many of the rights enshrined in the UN Convention on the Rights of the Child.13
The Government has pledged to hold a referendum on same-sex marriage in 2015 following a recommendation by the Constitutional Convention. However, the Government has no plans to hold a referendum on the definition of the family in the Constitution and this continues to be a gap.
FLAC urges the Committee to recommend that the State:
Hold a referendum on the definition of the family to ensure that it protects all families and not just families based on marriage.
Enact the Children and Family Relationships Bill as a matter of urgency to ensure that all families are afforded the widest possible protection and assistance under domestic law.
1 Government of Ireland (2012) Census 2011 Profile 5 Households and Families – Living Arrangements in Ireland, Dublin: Stationery Office.
2 Marriage Equality (2013) Love, Commitment, Family, Equality - The case for Marriage Equality in Ireland. Marriage Equality’s submission to the Constitutional Convention, Dublin: Marriage Equality.
3 A testamentary guardian is appointed by a child’s parent or guardian in his or her will in case he or she dies.
4 Gay and Lesbian Equality Network (2014) Submission to Joint Oireachtas Committee on Justice, Defence and Equality on the Heads of the Children and Family Relationship Bill 2014, Dublin: GLEN, p.1.
5 P. Fagan (2011) Missing Pieces: A comparison of the rights and responsibilities gained from civil partnership compared to the rights and responsibilities gained from civil marriage in Ireland, Dublin: Marriage Equality, pp.25-28.
6 Irish Council for Civil Liberties & Gay and Lesbian Equality Network (2012) Know Your Rights: The Rights and Obligations of Civil Partners and other Same-Sex Couples, Dublin: ICCL & GLEN, p.41.
7 Ombudsman for Children’s Office (2010) Advice of the Ombudsman for Children on the Civil Partnership Bill 2009, Dublin: OCO, p.2.
8 (Revised) General Scheme of Gender Recognition Bill 2014.
9 Department of Health and Children (2005) Report of the Commission on Assisted Reproduction, Dublin: DOHC.
10 Currently, if a child is born to a surrogate in Ireland, the surrogate is legally considered the mother of the child, irrespective of any genetic link. If the surrogate mother is married, then under Section 46 of the Status of Children Act 1987, the surrogate mother's husband is presumed by law to be the father of the child, unless the contrary is proven. If she is not married, she is the sole guardian. Some intending parents have adopted the child in order to have a legal relationship with it. If the child is being adopted, this must be done through the Adoption Authority of Ireland, and there is no guarantee that the child of a surrogate mother would be placed with the intending parents as private adoptions are prohibited in Ireland.
11 McD v L [2010] 2 I.R. 199; [2010] 1 I.L.R.M. 461; MR & Anor v An tArd Chlaraitheoir & Ors [2013] 1 I.L.R.M. 449 – judgment in the Supreme Court challenge is expected.
12 The Children and Family Relationships Bill 2014.
13 Children’s Rights Alliance (2014) Initial Submission on the Children and Family Relationships Bill 2014, Dublin: Children’s Rights Alliance.
Last Updated: 22/01/2015 ^ back to top