Powers to be given to gardaí to forcibly enter a home and remove a child when there has been a breach of an order for access or custody are “disproportionate”, the Government Special Rapporteur on Child Protection has said.
Geoffrey Shannon described the Children and Family Relationships Bill as the "most significant change in family law in a generation" with reforms to "significantly benefit families in Ireland while increasing the recognition and implementation of children's rights". But parts of the Bill, published in January, should be reconsidered, he said.
Remedy
At present, shared custody and access arrangements made in court are often not complied with, and the only remedy has been to bring an action of contempt of court.
The legislation allows a parent or guardian to apply for an enforcement order if custody or access is unreasonably denied. Breaching an enforcement order becomes a criminal offence with penalties of a fine (up to €5,000) and/or community service.
A parent or guardian can ask for the help of a garda to enforce the order. The proposed legislation gives power to a garda to forcibly enter a home and “take all reasonable steps to find the child to whom the enforcement order relates and to bring the child to the applicant”. Mr Shannon said a forceful entry of a home might be a “disproportionate reaction to the breach of an enforcement order” and might “not be appropriate in proceedings involving children”.
Minor disputes
As drafted, gardaí "must assist" in enforcing an order at the request of a parent or guardian. "This may involve An Garda Síochána in relatively minor disputes between parents," he said, adding that it would be better if a court first heard the nature of the alleged breaches of the order.
Under the provisions on assisted human reproduction, Mr Shannon said it would arguably be easier for a person with no biological connection to a child to achieve parent status than it would be for the unmarried biological father to do so. He also said consideration should be given to allowing a child access to information on a sperm or egg donor for development and health reasons.
Arbitrary
Mr Shannon said guardianship requirements that an unmarried couple cohabit for at least 12 months before a child's birth for the man to be considered the child's father were "arbitrary" and could prove difficult to satisfy.
He also said a provision that a child over the age of 12 must consent before a court can appoint a guardian should be revisited, as research showed children should be “relieved of the burden of having to choose”.
The Bill is currently being considered by the Oireachtas Joint Committee on Justice.
