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The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which for the first time in Ireland provides legal recognition for same-sex couples, was signed into law last month, meaning that same-sex couples can avail of legally-binding civil partnerships from next year. The Bill extends benefits to gay and lesbian couples that are similar to those attained by married couples in the areas of property, social welfare, succession, maintenance, pensions and tax. The rights and needs of children in relation to such families, however, are largely ignored. There is no legal recognition of any relationship between children of one partner and the other partner; nor does the Act enable same-sex couples to jointly adopt children. Another significant omission is an obligation to consider children’s interests in the instance of the breakdown of a relationship.

Children in Ireland are already being parented by same-sex couples, and children can be adopted by same-sex couples, albeit by one of the partners as an individual. Considering this current reality, the discounting of children’s rights and needs in the Act seems to constitute an example of a sidelining of the rights of children in order to pander to the narrow-mindedness of some sections of the Irish population. There has been no attempt to make the case that the omission of the rights of children from the Bill is in their interests. How could it possibly be in children’s best interests to overlook current living and care arrangements, and to omit an obligation for courts to consider those interests in the instance of the breakdown of a relationship?

The ignoring of children’s rights in the Act is in contrast to provisions for children in corresponding legislation elsewhere. In England and Wales, for example, the Civil Partnership Act 2004 contains a number of provisions pertaining to children of same-sex couples. Where there is a child in the family, the Court must consider if it should exercise its powers under the Children Act 1989 when dealing with an application for dissolution, nullity or separation. The 2004 Act also gives same-sex couples the ability to attain parental responsibility for the children of a partner, as well as responsibility for maintenance of a partner and the children of that partner. Under Section 72 of the 2004 Act, civil partners are also able to acquire parental responsibilities as a stepparent, and same-sex couples may apply for residence or contact orders. The right to apply for financial provision for children under schedule 1 of the Children Act was also extended to civil partners. Same-sex couples in England and Wales, whether or not they have entered into a ‘civil partnership’, can jointly adopt children, as can unmarried opposite-sex couples, under the Adoption and Children Act 2002.

It is also worth considering relevant international human rights law. The UN Convention on the Rights of the Child recognises that every child “for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding” and contains a number of references to the family. It does not define what exactly constitutes a family for this purpose. However one point on which the Convention on the Rights of the Child is quite clear is that the best interests of the child shall be a primary consideration in all matters affecting them (Article 3), and that states have an obligation to take legislative measures for the implementation of this principle (inter alia) in domestic law (Article 4). Therefore it seems unacceptable to omit references to their interests in relation to matters which clearly concern them.

The fact that the rights of children in same-sex relationships have been ignored in the civil partnership scheme is set in the broader context of the sidelining of the rights of children more generally in Ireland. An amendment to the Constitution to explicitly include the rights of children has been considered but, to date, resisted. Without such an amendment, and the requirement that the best interests of children are seriously considered when legislation which affects them is being drafted, it is likely that the trend of sideling the interests of children will continue. In order to ensure improved protection for children’s rights and interests, Ireland should move to rectify the shortcomings of the Bill in relation to this vulnerable and often hidden group of individuals. More broadly, an amendment to the Constitution would undoubtedly create a context where increased consideration is given to children’s interests in such legislation in the future.

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Written by Máiréad Enright

Máiréad Enright lectures at Kent Law School. She is also a PhD candidate in the Centre for Criminal Justice and Human Rights, University College Cork. Her research interests are in gender and the law, law and religion, citizenship and the political dimensions of private law. You can contact her at M.Enright[at]kent.ac.uk or (+44) 1227 827996.