The Minister for Justice signed a Statutory Instrument on the 18th January 2016 commencing certain provisions of The Children and Family Relationships Act 2015.  This Act radically overhauls the existing Guardianship of Infants Act which is the underpinning legislation in bringing applications before the District Court seeking access, custody and guardianship.


This legislation is clearly well overdue.  The Guardianship of Infants Act was enacted in 1964 and at that time the concept of family was based on the traditional marital unit.  However currently over a third of children are born outside of marriage and The Children and Family Relationships Act 2015 recognises the blended family and the modern family unit of today.


Unfortunately it appears that the provisions in the Act in relation to adoption together with the sections on donor assisted human reproduction have not yet been commenced and will take some time for the Department to commence this.


In relation to guardianship there is a significant change in relation to unmarried fathers whereby automatic guardianship can now be granted to a father who can prove he has cohabited with the child’s mother for at least 12 consecutive months including at least 3 months after the birth of the child.  However it is unclear as to what evidence would be required by the Court in order to satisfy the threshold in respect of cohabitation particularly when there may be a dispute between the parents as to when the cohabitation commenced.


There are also now new provisions in respect of guardianship in relation to the modern blended family that exists in society today. The Court can now appoint a guardian whereby a person who is not a parent to the child, has either been in a civil partnership or was cohabiting for over 3 years in an intimate and committed relationship with the child’s parent and has shared with the parent responsibility for the child’s day to day care for a period of more than 2 years.  The Court can also appoint a person who has provided for a child’s day to day care for a continuous period of more than 12 months where the child has no parent or guardian who is willing and able to exercise the powers, rights, and responsibilities of guardianship in respect of that child.  This is  of significant relevance to foster parents who would now be able to become guardians together with grandparents who may have assumed a parental role.  It also provides for step-parents to apply for guardianship.  This would enable step-parents who may assume a very significant parental role in respect of children to liaise with schools, doctors, etc. The Court can however limit the power of the court appointed guardians to day to day matters if so required.


It is now possible for a guardian to nominate a substitute guardian, where a parent is suffering from a significant illness and is prevented from exercising guardianship responsibilities.


Furthermore there have been significant changes in respect of custody whereby now a step-parent, a civil partner, or a cohabitant of not less than 3 years would be able to apply for custody where they have shared parenting of the child for 2 years.  A person can also apply for custody if they have exercised those duties for one year and if there is no parent or guardian willing to exercise the powers and responsibilities of custody.  This is again a significant development in respect of grandparents and relatives’ rights.


Furthermore there has been a removal of the two stage process in respect of applications for access for the wider family.  Now grandparents, relatives and any other persons can apply directly to the Court for an order in respect of access without first having to seek the Court’s permission to bring such an application.


There have been significant changes in respect of enforcement provisions.  Previously the only remedy available from the Courts was a summons for a breach of an order with the ultimate sanction being imprisonment.  Clearly this was a very draconian approach and the new enforcement orders have to be welcomed.  These provide for a more holistic range of remedies whereby a parent or a guardian who is being denied custody or access of a child may now get compensatory time with the child.  A parent’s expenses may be ordered to be reimbursed by the other parent or that one or both of the parents would be compelled to attend parenting programs, family counselling sessions or receive information on mediation.


There have been significant changes in respect of maintenance whereby if a cohabiting partner has been appointed as a guardian of a child, that partner may then have a liability for maintenance.


The most important provision however throughout the Act is that the principle of the best interests of the child prevails in respect of all applications to be made in relation to the child.  The Act sets out statutory criteria for the best interests principle dealing with a number of issues such as the physical, emotional, psychological, educational, and social needs of the child including the child’s need for stability having regard to the child’s age and stage of development.  It also provides that the views of the child will be ascertained in any applications concerning the child. The Act also sets out that the Court shall ensure that the manner in which such views are provided to the Court facilitates the child freely expressing such views and are not as the result of undue influence of another including the parent of a child.  This is significant particularly in terms of the concept of parental alienation. The best interests principle also sets out that the Court has a mandatory obligations to have regard to any family violence. There may be a difficulty however with regard to the implementation of the best interests principle and the voice of the child.  Generally the voice of the child may be brought to the Court by way of a child psychologist being appointed.  This may prove a difficulty for parents who are going through a separation where there are limited funds and parents may not be able to afford the costs of a psychologist.


Overall however this Act has to be welcomed.  It is a significant move in the right direction and recognises the modern blended family of today.  It could be argued that an opportunity has been lost to appoint all fathers as guardians.  However it remains to be seen whether the Act will be effective in respect of automatic guardianship where difficulties will arise in proving the cohabitation threshold.


This a copy of an article which appeared in the Evening Echo on the 21st of January 2016. Annette Sheehan is a solicitor specialising in Family Law with FitzGerald Solicitors.


Please note the foregoing article does not constitute legal advice. You should contact your solicitor for specific legal advice tailored to your circumstances. 

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