Independent: The need for a sensitive civil union legislation on the position of children

http://www.independent.com.mt/articles/2013-06-12/opinions/the-need-for-a-sensitive-civil-union-legislation-on-the-position-of-children-1804992514/
Wednesday, 12 June 2013, 08:09 , by Martin Scicluna

The welcome determination of the government to enact legislation for the introduction of civil unions in Malta is a long over-due step in publicly accepting stable, same-sex relationships. Civil unions will provide a frame-work for homosexual couples to acknowledge their responsibilities, manage their financial affairs together and achieve legal recognition as civil partners. The creation of this new legal relationship will play an important role in increasing social acceptance of gay men and lesbians, removing discrimination and thus building a more inclusive and fairer society.

The fundamental premise on which such legislation should be built is that the rights, duties and remedies that arise as a result of same-sex couples opting in to a civil union should in general mirror as closely as possible those applicable to married couples. The aim should be that civil unions will deliver a significant majority of the rights and obligations that marriage confers.

It is inevitable, however, that in enacting such legislation law-makers will have to take into account some very difficult issues. Legislators will have to weigh up such key matters as succession arrangements, pensions, the dissolution of civil unions and others. But perhaps the most difficult test of legislators' judgment and compassion will concern civil union arrangements for children, including rules on their adoption.

How should children of civil partners be treated? Apart from the possibility of adoption, some same-sex partners may come with children from a previous, heterosexual marriage. Single mothers, or sometimes single fathers, may subsequently enter into a same-sex relationship. Lesbians may deliberately conceive a child with a man, then become same-sex partners in a civil union. The likelihood of same-sex partners having children with them as part of the new, same-sex family unit cannot be ignored by legislators and they must aim to frame the legislation accordingly.

But the science about the best parenting structure for a child’s upbringing is still in its infancy. Some studies argue that there is no scientific evidence to show that the effectiveness of good parenting is directly related to the parents’ homosexual or heterosexual orientation. Others argue that the ideal environment for raising children is with a stable biological mother and father. No other parenting arrangement, it is contended, affords as many emotional advantages as being raised by a biological mother and father joined in a life-time commitment.

What is abundantly clear, however, is that the existing scientific research does not provide definite answers or solid empirical evidence for or against same-sex parenting. In such a sensitive area, it would seem sensible that a longitudinal scientific study should be established specifically examining this issue before irrevocable long-term decisions under a law are taken.

Based on the outcome of such a study, however, all other factors being equal, the legislation should seek to cater for same-sex couples with children. It should give due regard to any children who may reside with same-sex civil partners. While marriage legislation generally requires the courts to have regard to children in a family unit as well as the adults, the equivalent provisions under a civil union law should address the position of children.

It is becoming increasingly evident that many homosexual couples do in fact live with children normally from previous relationships. In maintenance and dissolution cases, therefore, the court must take into account a civil partner's obligations towards his or her own biological children. In deciding the amount of maintenance to be awarded or in considering the remedies on dissolution of a civil union, the courts should also take into account these obligations. While this falls far short of requiring support for the child by the non-biological partner, it may indirectly lead to such a result. A dissolution of a civil union should not be obtained without having regard to whether proper provision has been made for any dependent children.

It would seem fair to lay down that a child living with civil partners will not be able to claim maintenance from the partner who is not the biological parent. Nor will the child have any legal right to claim from that partner’s estate on death (unless the latter made a will in the child’s favour). The law should also have clear provisions for access to the children of any former marriage. The protections afforded in respect of the civil partners’ shared home should make reference to the accommodation needs of dependent children as a relevant criterion.

As to the vexed issue of adoption, the Convention on the Rights of the Child, Article 3(1) states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This should be the overriding criterion guiding Malta's own civil union legislation.

Sexual orientation should not influence whether a person is allowed to adopt a child or not. The suitability of a person cannot be determined by sexual orientation or marital status. Maltese law allows single people to adopt. The criterion in deciding adoption should be the best interests of the child regardless of whether the person doing the adopting is homosexual or heterosexual.

While in the eyes of some it might seem preferable for children to be adopted by married couples, it would be wrong to deprive a child of a loving home with a homosexual couple. All prospective adoptive parents, whether a couple or single, gay or heterosexual, should undergo the same process and be allowed to adopt if they show themselves to be suitable parents.

Appogg lays down that all adoption applications are treated equally “ensuring that the applicant(s) can provide an environment that ensures the physical, emotional and psychological well-being of the minor to be adopted”. The civil union scheme should in principle reflect the same approach and specific conditions.

To argue, as one columnist who is also a priest argued in another newspaper that “the best environment for bringing up children means that one judges marriage to be the only institution that serves to connect children with their father and mother together in a stable home” and therefore legislators should not allow adoption “by default” is really to undermine the golden principle which has hitherto always guided adoption decisions: the best interests of the child. We know of heterosexual parents who are appalling parents and homosexual couples or single mothers who make outstanding parents.

Homosexuality is not a threatening social reality, but one to be accepted and accommodated. Gay couples have the same need and capacity for love, partnership and companionship as heterosexual couples. Adoption should continue to be decided on a case by case basis for gays, lesbians, married couples or single people based on an assessment of their capacity to provide the best environment and home for the child.

Strengthening same-sex couple relationships not only benefits the couples themselves, but also other relatives they support and, in particular, their children as they grow up and become the couples and parents of tomorrow. Lawmakers will have to frame the legislation carefully to ensure the position of children is addressed as sensitively as possible.