Parental Failure

Parents & Third Parties

The Guardianship of Infants Act applies to custody disputes between parents and third parties. The former Constitutional protection of the family and parental rights was such that it was only in very exceptional circumstances that an outsider would be preferred to a parent. However, exceptionally, where the welfare of the child so requires custody may be given to a third party.

The parent may, for example, have abandoned or deserted the child. The legislation provides that if a parent has abandoned or deserted a child, or let him or her be brought up at another’s expense (including that of an institution) the court shall not make an order that the child be delivered to that person unless it is satisfied that the parent is a fit person to have custody.

A third party cannot simply apply for custody of another child. A child would have to be made a ward of court.

The courts will be reluctant to hold that a parent has abandoned or deserted a child if the separation has been due to circumstances outside his or her control.

Children’s Referendum

Articles 41 and 42 as they formerly stood, provided a strong presumption that the welfare of the child was best found in the natural family founded on marriage. Only exceptional and compelling circumstances would justify a finding to the contrary.

There must be compelling reasons why the child’s welfare cannot be established inside the family unit. Evidence must be brought forward to show that the parents have failed in their duties. As such, the reasons must be compelling.

The Thirty-first Amendment of the Constitution (Children) Act 2012 amended the Constitution of Ireland by inserting clauses relating to children’s rights and the right and duty of the state to take child protection measures. It was approved at a referendum on 10 November 2012.

Parental Failure

The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws, protect and vindicate those rights.

2.1º      In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2º        Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

2º        Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1º of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

The amended Article 42A.1 recognises that all children have rights and pledges to protect those rights by law. It allows the courts to identify rights for children on a case-by-case basis. This allowed the courts to break with past decisions.

It shifts the trigger of intervention from the parents’ failure to the impact of that failure on the child. It provides a foundation for the child protection system, by providing the State with the power to act when the “safety or welfare” of a child “is likely to be prejudicially affected”.

Adoption

The Adoption Act 1988 permits the adoption of the children of married parents in highly exceptional circumstances only. It must be determined that the child’s parents have for physical and moral reasons failed in their duty towards the child. The failure must amount to an abandonment on the part of the parents of all parental rights.

Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

Article 42A approved by Referendum in 2012, provides

4.1º      Provision shall be made by law that in the resolution of all proceedings—

i) brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii) concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2º       Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1º of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

Orders for custody are not final. They may be varied or discharged from time to time as circumstances change. There must, however, be some new basis for the application.