We are lucky to live in a time when popular discourse revolves around the language of equality. There is now a widely shared aspiration to put an end to discrimination, labelling and stereotyping. It wasn’t always so.

Never has there been so much interest in, and constructive expression around, the well-being and health of men, women, and non-binary citizens alike. The safeguarding and happiness of our children also continues to be recognised as a priority.

All of this is uplifting, empowering and hopefully bodes well for future generations in an increasingly challenging world. However, as progressive as Ireland presents itself to be in so many ways, there still exists a lingering and entrenched attachment to outdated stereotypes and traditions.

Poet Paul Durcan described family as ‘the basic unit of society’ and although the traditional family structure that held sway in Ireland through most of the 20th Century has been altered significantly in recent decades, this assertion still rings true. However, despite clear changes in what family means to us nowadays, the law has failed to evolve to meet this new reality.

Let me explain how.

SECOND CLASS CITIZENS

When divorce was introduced in 1996 it was a breakthrough moment for people involved in cold, unloving, or even violent, relationships. On the flip-side when same sex marriage was passed into law in 2015, it offered, finally, proper recognition by the State that gay men and women are entitled to aspire to creating their own loving, long-term family bonds under the binding protection of the law.

However, I believe that those involved, from politicians to activists, failed to consider the long-term implications of these monumental legislative changes in Irish law or to place them in the wider context of the vital need for a review of family law in Ireland.

The reality is that no proper provision was made in the legislation for those left in the middle of failed relationships – the children.

It is important that there is no misunderstanding here. It is not that these changes to the treatment of families created a problem. It is that they highlighted the fact that there has always been a problem, but they have shifted the ground from under it, making it even more out of joint than ever.

The Irish judicial system and the family law courts have a default position which is fundamentally discriminatory. If a relationship between a woman and man breaks down in Ireland, and they have had children together, the mother is automatically given priority in relation to both primary access to, and the rearing of, those children.

Why is that the case? And how does it sit with the fundamental principle that all citizens should be treated equally under the law? It doesn’t.

This prioritisation of women over men is based on nothing other than outdated gender roles and the lazy stereotyping of both men and women – labels which, on the face of it at least, society is no longer comfortable with.

In April 2021, the Citizens’ Assembly correctly recommended that we remove from our 1937 constitution the text in Article 41.2 which spoke of the important role of a woman’s ‘life within the home’ referring to the language as ‘sexist and outdated’. However, the logic of that recommendation was not applied to daily life, nor, in particular, was it applied to the family court system.

As a result, in 2022, if a father (married or otherwise) wants equal access to his children following a separation or divorce, it has to be either granted by the mother of the children, or he has to go to court – and fight for it. No matter how you spin it, this is not equality.

If both parents are contributing equally to the financial costs of rearing their children, the child benefit still goes directly and only to the mother – this is not equality.

The single parent tax supplement automatically goes to the mother too – this is not equality.

The law attempts to uphold a father’s equal responsibility to financially support his children, but it offers no rights in return – this is not equality.

What the State is effectively doing is establishing a battleground, an intentional binary opposition between fathers and mothers, by declaring its preference for one parent over another – instead of supporting them both and encouraging them to raise their children equally.

It is human nature that, with the end of relationships, tensions can run high, and the sad truth is that children are often used as pawns to exact revenge on one parent by another. Paternal access to children is often left at the discretion of the mother, because the State has in fact, and by default in law, conferred this responsibility and authority on her. This leaves many fathers and children isolated, and apart from one another, which is not in anyone’s best interests, least of all the children.

UNFIT FOR PURPOSE

Furthermore, by not automatically granting fathers the same rights as mothers, the government is making a clear statement that fathers are second class parents, and by extension, second class citizens.

This deplorable treatment of fathers by successive governments, and by the society that has tolerated it, is its own bleak chapter in the untold history of Ireland.

It is true that many couples reach amicable solutions following their separation, when it comes to access and finances in relation to the care of their children. This is, of course, the ideal scenario and it should be both encouraged and applauded – these individuals know their respective circumstances and they are best placed to make informed decisions that protect their children and their own broader family dynamic.

However, in instances where agreement cannot be reached and both parents seek to care for their children equally, the State should facilitate this – for the benefit of the children and of their parents.

The State can do this by ensuring that equality of treatment is the default legal position towards the role of parents in Irish society; and by sharing the child and tax ‘benefits’ equally so that both parties can equally afford to raise and provide for their children. Mothers and fathers should be treated as equal citizens, with equal rights and responsibilities under the law. How difficult is that to legislate for?

And yet, right now, there is a tragic apathy in Ireland where this topic is concerned. Despite the fact that the legislation is as offensive to women as it is to men, and that it has fractured relationships between children and their parents for decades, there seems to be a casual acceptance of the flawed logic that underpins our treatment of fathers in Ireland.

Irish people have been conditioned to accept that women are best suited to looking after children and running a household, and that men are more disposed to working and providing financial support. The truth is that this is frequently not the case at all.

An additional challenge and one that must be called out, is the arbitrary nature of family court deliberations. On the morning of a family court date, disputing parents discover who their presiding judge is. Their solicitor or barrister is then instantly in a position to tell them how this apparently random factor augurs for their case. You hear it all the time: “This is good news, that judge is very pro-fathers”; or the corollary: “This isn’t good news, that judge is a traditionalist.”

Before even a word has been uttered in court, before any evidence is heard, the outcome of your case can be predicted, on the basis of the historical decisions made by, and the personal belief system of, the judge who will hear your case.

This has to change. If the world is moving forward, it is the responsibility of the government and the Department of Justice to ensure that the court system, and those who preside over it, also evolve in a way that affords mothers and fathers equal treatment – and children the best possible, most supportive, most holistic, and most loving outcome.

There is one other issue which cannot be ignored.

In 2022, this discussion is no longer just about mothers and fathers. It is also about mothers and mothers; fathers and fathers; and biological parents and surrogates. So where does the current default position of the State leave us where these families are concerned? In this light, the existing legislation suddenly looks even more woefully unfit for purpose. Therefore, immediate change is needed before the family court system is overrun with parents who do not ‘fit’ the myopic parameters of last century’s legislation.

INACTION AND SILENCE

I have been in touch with TDs and Irish MEPs on this issue. Their replies all reached the same conclusion – to paraphrase: “We recognise that the system is unfair towards fathers and needs to change, but the Citizens’ Assembly has been established to examine constitutional issues such as this one and they are engaging with all stakeholders, including children, to identify what amendments need to be brought about in our legal system when it comes to family law.”

To save them time and money, I can confirm unequivocally: it is utterly wrong to discriminate against any citizen, on the basis of gender. Can you imagine the public reaction if it were announced that the Citizens’ Assembly was to debate whether or not it is acceptable to discriminate in family law, based on ethnicity, skin colour or sexual orientation, for example?

It just wouldn’t happen. So why should it be entertained where gender is concerned?

This is why I am appealing, here and now, to leaders of politics, culture, education, sport, industry, entertainment, the arts – you have influence, you have a voice. Remind yourselves that equality is not an à la carte concept: you cannot claim it with one hand and take it away with the other. You cannot demand equality for yourself – and deny it to others. The very definition of citizenship in a republic is that we are all equal. And that must be reflected in both the law and in the legal apparatus.

And so, I will go further.

By failing to speak out, by not supporting those around you who are being treated unfairly, by acquiescing in the daily imposition of the kind of injustice that blights people’s lives forever, you are failing in your own duty as a citizen of Ireland.

Your inaction and your silence have ramifications for society as a whole.

The opportunity must now be taken to end the many years of hurt, loneliness and division experienced by thousands of families at the hands of legislation that is fundamentally discriminatory and unjust. It is time for us all to make a statement to parents and children alike: We All Matter, Equally.