Atypical Guardians

Guardians

The Child and Family Relationships Acts 2015 amends the Guardianship of Infants Acts to allow the court to appoint step-parents, civil partners and cohabiting partners as guardians; to allow a parent or guardian with custody of a child to nominate a temporary guardian; and to enable wider categories of persons to apply for custody and access.

The definition of ‘father’ was amended to exclude the donor of a gamete. The definition of ‘parent’, in relation to a donor-conceived child, includes the spouse, civil partner or cohabiting partner of a birth mother, where the person concerned is recognised as a second parent under the Child and Family Relationships Act.

A ‘qualifying guardian’ (a guardian who can nominate a temporary guardian in relation to the child) is defined as one who is either the parent of the child and has custody or who, if not the parent, has sole custody of the child.

An unmarried father is to be guardian of his child automatically where he has cohabited with the child’s mother for 12 consecutive months, including three months with the mother and child following the child’s birth. The 12 consecutive months need not be before the birth of the child.

The best interests of the child are the paramount consideration for the Court in proceedings on guardianship, custody, upbringing of or access to a child, or in relation to the administration of any property belonging to, or held in trust for, a child.

The District Court and Circuit Court thresholds for maintenance have been increased. The District Court or the Circuit Court, on appeal from it, may make maintenance orders of up to €200 per week in respect of a child and lump sum orders of up to €15,000.

Parties who May Qualify

Civil partners or a cohabiting couple who jointly adopt a child are to be guardians jointly. Where one member of the couple dies, the surviving member can act as guardian alone or jointly with a testamentary guardian appointed by his or her partner.

The court may appoint a parent as a guardian of a child. This does not affect any prior appointment of any person as the child’s guardian.

The following parents, other than the birth mother, have the below mentioned rights of guardianship of a child:

• the married husband of the birth mother who has provided the gamete for a donor-conceived child;
• the civil partner of the birth mother, who was recognised as a parent under The Child and Family Relationships Act;
• the unmarried father who has cohabited with the child’s mother for 12 consecutive months and with the child for three months following the child’s birth;
• the cohabiting same-sex partner, recognised as a parent under The Child and Family Relationship Act, who has cohabited with the child’s mother for 12 consecutive months, including with the child for at least three months following the child’s birth;
• the unmarried father or cohabiting same-sex partner recognised as a parent under The Child and Family Relationship Act, who has made a statutory declaration with the birth mother agreeing to the former’s appointment as guardian.

The Court may appoint a person other than a parent as a guardian where the person is married to, is in a civil partnership or has cohabited with a child’s parent for over three years, and in each case has shared responsibility for the child’s day-to-day care for more than two years.

A person can also be appointed as a guardian if he has provided for the child’s day-to-day care for more than 12 months or where there is no parent or guardian willing to exercise the rights and responsibilities of guardianship in respect of the child. In the latter case, Tusla will be on notice of the application and may give its view.

In determining whether to appoint someone as guardian, the Court is required to ascertain the child’s views, having regard to the child’s age and maturity. The Court will also have to consider the number of persons already guardians of the child and the degree to which they are involved in the child’s upbringing.

Limited Rights of Guardianship

Where a person other than a parent is appointed as guardian, that person generally enjoys limited rights of guardianship. The Court may extend the following rights of guardianship to a person other than a parental guardian only where it is in the best interests of the child to do so, taking account of the relationship between the person and the child:

• the right to make decisions on the child’s place of residence;
• the right to make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;
• the right to decide with whom a child is to live;
• the right to consent to medical, dental or other health-related treatment;
• the right to consent to the issue of a passport to the child;
• the right to place the child for or to consent to the child’s adoption.

Where a person has rights and responsibilities equivalent to guardianship arising from a judgment under the Brussels Regulation (Judgments Regulation), the Hague Convention on Parental Responsibility and Measure for the Protection of Children or from a measure under the Hague Convention, he or she will be recognised as a guardian under Irish law. Similarly, a person will be recognised as a guardian under Irish law, where he or she has been given rights and responsibilities equivalent to guardianship by the law of another state.

Temporary Guardians

A qualifying guardian (either a parent who has custody of a child or a person other than a parent who has sole custody of a child) may nominate another person as a temporary guardian where the qualifying guardian becomes incapable through illness or injury of exercising the rights and responsibilities of guardianship. The qualifying guardian can specify limitations on the rights and responsibilities to be exercised by the temporary guardian.

In order to be appointed as a temporary guardian, either the person nominated or the qualifying guardian can apply to Court if either of them considers that the qualifying guardian is unable to exercise the rights of guardianship. The application must be on notice to any parent or guardian of the child and to Tusla.

The Court may appoint the person as a temporary guardian where it considers that the qualifying guardian is incapable of exercising guardianship, the proposed temporary guardianship is a fit and proper person to exercise guardianship and that it is in the best interests of the child to do so.

The Court may impose limitations on the rights and responsibilities of guardianship which the temporary guardian can exercise, having regard to limitations specified by the qualifying guardian.

It may impose conditions on the appointment which it considers necessary in the child’s best interests. A temporary or qualifying guardian can apply to the Court where he believes that the qualifying guardian is once again capable of exercising guardianship. This must be on notice to any parent and/or guardian of the child and to Tusla.

The Court may

• confirm the continuing appointment of the temporary guardian;
• revoke it;
• specify that certain guardianship rights and responsibilities can be exercised by the qualifying guardian, and require the temporary guardian to act jointly with the qualifying guardian on the other rights and responsibilities of guardianship.

The Court must enable the child to give his or her views, taking account of the child’s age and maturity.

A parent may appoint a testamentary guardian to be guardian of the child in the event of that parent’s death.  A testamentary guardian is a guardian appointed by a person in his or her will. That guardian acts jointly with the surviving guardian.

Removing Guardians

Where the surviving guardian objects to the testamentary guardian acting jointly or where the testamentary guardian considers the surviving guardian to be an unfit guardian, the surviving parent or the testamentary guardian may apply to Court for an order.

The Court may make an order revoking the appointment of the testamentary guardian; requiring the testamentary guardian to act jointly with the surviving parent; or giving the testamentary guardian the right to act as sole guardian. It may make certain orders in respect of custody and maintenance.

The Court may remove a non-parent guardian in particular circumstances:

• where there is another guardian in place or about to be appointed;
• where it is in the best interests of the child to do so;
• for substantial reasons that the Court considers makes it desirable or necessary to do so;
• where the guardian consents to his or her removal;
• where the guardian is unwilling or unable to exercise the rights and responsibilities of guardianship;
• where the guardian has failed in his or her duty to the child so that the welfare and safety of the child could be affected if the guardian were not removed.

These provisions do not apply to guardians who are the child’s birth mother or marital father who have a constitutional right to guardianship.

A guardian, except where removed by the Court, will continue to be the child’s guardian until the guardian dies, the child reaches 18 or marries; whichever happens first.

Best Interests Criteria

The Guardianship of Infants Act was amended in 2015 to restate the provisions regarding the best interests of the child. It sets out a list of factors that the Court may take into account when determining the best interests of the child. The factors include:

• the benefit to the child of having a meaningful relationship with each parent;
• the child’s views, where ascertainable;
• the physical, psychological or emotional needs of the child;
• the child’s religious, spiritual, cultural and linguistic upbringing and needs;
• the child’s social, intellectual and educational upbringing and needs;
• proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child;
• the capacity of each person for whom an application is made under the Act to care for or meet the child’s needs.

The Court is to have regard to family violence and the impact or likely impact on the safety of the child and on other members of his family and the child’s personal wellbeing.

Court Appointed Expert

The Court has the option to seek a report in writing from an expert on the welfare of the child. It may appoint an expert to determine and convey the child’s views. When considering whether to seek a welfare report or the child’s views, the court will have regard to the age and maturity of the child, the nature of the issues at dispute in the proceedings, any previous report, the best interests of the child and whether this will assist the child in conveying his or her views.

The expert appointed to ascertain a child’s views has the role of ascertaining the maturity of the child and of assessing whether the child is sufficiently mature to be capable of forming views on the issues at dispute in the proceeding. Where the expert considers the child to be capable of forming views, the expert will have the role of ascertaining those views and of preparing a report on them. The Department/Minister may make regulations. In most circumstances, the spouse’s conduct is not relevant to the obligation to pay maintenance. Conduct is only relevant where it’s such that in the opinion of the court, it would be repugnant to justice to disregard it.

The above provisions do not apply to maintenance paid for the benefit of the dependent’s children.