CFA

The Government finally published the long-awaited Child and Family Relationships Bill this Thursday. It is a very significant and complex piece of legislation, which will radically alter the landscape of family law practice in Ireland.  There are over 172 sections in the Act, which substantially amends the Guardianship of Infants Act, 1964, the Adoption Act of 2010 and the Civil Partnership and Certain Rights and Duties of Co-Habitants Act, 2010.

It has to be said that this legislation is well overdue.  The Guardianship of Infants Act is over fifty years old and reflects the status of the family at the time it was enacted in 1964.  At that time, family was based on the traditional marital unit. However, presently, over a third of children are born outside of marriage and this Bill attempts to recognise the modern blended family of today’s society.

The principal changes are in relation to Assisted Human Reproduction, Guardianship, Access, Custody and Adoption. The Government has, however, failed to address the issue of surrogacy, which is disappointing.  It is anticipated, though, that this will be dealt with later in the year.  In respect of Assisted Human Reproduction, this Bill does provide for the right of the child to trace their genetic parents and a register is to be established for this purpose.

The legislation is very much child-centred and provides for the voice of the child to be heard in Court proceedings affecting the child. This will be done by way of an appointment of a child expert who will interview the child and report on their wishes to the Court. A difficulty arises, however, in respect of funding. These costs will be borne by the parents.  Many families may simply not be able to afford the costs of these reports and without a fundamental reform of the family law courts and the appointment of Court Welfare Officers similar to Cafcass Officers in the United Kingdom, it is difficult to envisage how this aspiration will be applied in practice given the costs involved for parents.  The Bill also provides that the “best interests” of the child is the paramount consideration for the Court in any decisions in respect of the child and a statutory definition is given to this principle for the first time.

There are radical changes proposed in relation to  Guardianship. Unmarried fathers who have co-habited with the mother of the child for a period of 12 months, including three months after the child’s birth, will now automatically be Guardians. A difficulty may arise, however, if the relationship breaks down in terms of what evidence would be needed by the Court to assess when the co-habitation commenced. Unmarried fathers who do not satisfy the co-habitation criteria can still apply to the Court for Guardianship. An opportunity may have been lost to grant automatic Guardianship rights similar to the system in the United Kingdom whereby a father has joint parental rights once he is named on the birth certificate. In Ireland it is now obligatory to have a child’s father named on the birth certificate.  However, this does not give rise to any legal rights whatsoever.

There will also now be a two-tier structure of Guardianship whereby a step-parent, civil partner or a co-habiting partner who has co-habited for three years with the child’s parent and shared in the upbringing of the child for two years can now also apply to be appointed a Guardian. Furthermore, a person who has had custody and day-to-day care of a child for 12 months, and where there is no other Guardian willing to assume responsibility, can also be appointed a Guardian. This will be of particular significance and importance to grandparents and to foster parents.  These kinds of Guardians will not have the same rights as the parent of the child but they will be in a position to take day-to-day decisions in respect of the child.

Furthermore, there is provision for the appointment of temporary Guardians in circumstances where a Guardian is unwell or injured. The Court can also limit the powers of a temporary Guardian as it sees fit.

This aspect of the legislation is to be welcomed in that it recognises the role that step parents, partners and grandparents play in a child’s life.  There is also no limit on the amount of Guardians that can be appointed.  However, the number of Guardians a child has will be a factor for the Court to consider.

In terms of access, the wider family can now apply for access without having to seek the permission of the Court to bring the application. This is relevant in terms of a family break down and attempts to enforce the links that a child will have with other members of the family such as grandparents, other relatives and people in loco parentis to a child.

Relatives will now also be able to apply for custody including step-parents, civil partners and co-habiting parents.  Furthermore, any person who has acted in a parental role in respect of a child for a year can now also apply for custody it that child has no other parent or guardian who is willing to assume this responsibility.  This is significant in terms of grandparents and the role that they play in a child’s life.

There is also now a practical and holistic approach to enforcing Access Orders. Previously the only remedy a parent had was to bring an application to commit the other parent to prison for breach of a Court Order. This clearly is a very draconian application and could have an effect on the relationship that parent would have with the child. Now the focus is on making these Orders work by way of granting the parent additional access in compensation, making the other parent liable for costs incurred in attempting to exercise the access and also directing that, either individually or together, the parents would attend at family counselling, a parenting programme and receive information on mediation.

In respect of Adoption, previously only married couples and single people could adopt. While gay / lesbian people were not per se excluded they could only adopt as a single person and not as a couple. This Bill seeks to introduce adoption rights for civil partners and co-habiting partners who have co-habited for over three years. The changes in Guardianship will also now mean that there will be no necessity for step-parent adoption, whereby the natural parent had to also adopt their child, as now a step-parent can be appointed a Guardian.

Overall these changes, if implemented, have to be welcomed in terms of addressing the realities facing the modern family unit in today’s society and putting the child’s interests at the forefront of any decisions to be made by the Court affecting that child.

This article appeared in the Evening Echo on the 24th of February 2015.

Annette Sheehan is a solicitor specialising in Family Law who has worked in the Family Law and Child Care Department of FitzGerald Solicitors in Cork for over 10 years.

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