grandparents

The Rights of Grandparents Bill 2013 is currently passing through the Oireachtas and if enacted will provide for significant changes to the legal status of grandparents under Irish Family Law.

Currently as it stands under the Guardianship of Infants Act 1964, grandparents have no automatic right to apply to the Court for access to see their Grandchildren.

There is a two stage process whereby grandparents or indeed any other person in loco parentis must firstly apply to the Court for permission to bring an application for access and thereafter if permission is granted there is a further application and hearing whereby the Courts make a determination in relation to the issues. In dealing with these applications, the Court has regard to the following issues:

* The relationship and connection with the child

* Any risks that the application would present to the child

* Furthermore the wishes of the child’s parents and indeed the child’s wishes

Given the current recessionary times, grandparents often play a more pivotal role in respect of their grandchildren. This is particularly so in circumstances where many grandparents care for their grandchildren to allow their own children to go out to work to pay mortgages and bills. In many cases, without such assistance from the grandparents, many parents would have no other option but to relinquish their work given that the cost for childcare remain so high.

This new Bill appears to reflect the current societal roles and provides for greater protection and easier access to the Courts in respect of grandparents. This Bill if enacted, will provide for the first time in Irish Family Law a definition of a Grandparent. Pursuant to Section 2 of Bill, a grandparent in relation to a child means:-

“a grandparent whether of the whole blood, half blood, or by affinity and includes the spouse of any such person, a parent of a child’s adoptive parent, an adoptive parent of a child’s parent”.

The interpretation therefore given by the Act is quite broad and attempts to cover all models of modern families.

The Bill, if introduced removes the obligations of the grandparents of the child to first apply and obtain leave before exercising the right to apply for access to a grandchild and to regularise the day-to-day care of children in order to facilitate the development of a relationship or a bond between a grandparent and their grandchildren and persons in loco parentis where appropriate.

In the event that the parents or Guardians are unwilling or unable to act, the Bill provides that a grandparent or a relative or a person who acts in loco parentis or indeed any person who has a bona fide interest in the welfare of the child, may apply to Court for an Order granting that person custody of the child. In deciding whether or not to grant an application, the Court will have regard to the same criteria as heretofore namely:

* The Applicant’s connection with the child;

* The risk, if any, of the application disrupting the child’s life to the extent that the child would be harmed by it;

* The wishes of the parents

* The wishes of the child.

Studies have shown that grandparents, in cases of matrimonial breakdown, can often be “forgotten”. Particularly grandparents where their child is a non-custodial parent frequently experience difficulties in maintaining the bond with their grandchildren whereas it appears that grandparents of a custodial parent in fact enjoy increased access to their grandchildren. This Bill therefore may provide for greater security for the grandparents and reflects how modern society has evolved in circumstances where grandparents now play a significant role in their grandchildren’s lives.

The Bill is currently passing through the houses of the Oireachtas and it may be some time before, if ever, it will be enacted. It is however a positive development in Irish Law recognising that children have a right to see their grandparents and as always access should be considered as the right of the child.

Annette Sheehan is a solicitor in FitzGerald Solicitors specialising in Family Law. Fitzgerald Solicitors is located at 6 Lapps Quay Cork.

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