CONSULTATION
PAPER
LEGAL ASPECTS OF
FAMILY RELATIONSHIPS
(LRC cp 55 − 2009)
© Copyright
Law
Reform Commission
FIRST PUBLISHED
September
2009
LAW REFORM COMMISSION’S ROLE
The Law Reform Commission is an independent statutory body established
by the Law Reform Commission Act 1975. The Commission’s principal role is
to keep the law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernise the law.
Since it was established, the Commission has published over 140 documents
(Consultation Papers and Reports) containing proposals for law reform and these
are all available at www.lawreform.ie. Most of these proposals have led to
reforming legislation.
The Commission’s role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission
following broad consultation and discussion. In accordance with the 1975 Act, it was approved
by the Government in December 2007 and placed before both Houses of the
Oireachtas. The Commission also works on specific matters
referred to it by the Attorney General under the 1975 Act. Since 2006, the
Commission’s role includes two other areas of activity, Statute Law Restatement
and the Legislation Directory.
Statute Law Restatement involves the administrative consolidation of all
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Under the Statute Law (Restatement) Act 2002, where this text is certified by the
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Statutes - is a searchable annotated guide to legislative changes. After the
Commission took over responsibility for this important resource, it decided to
change the name to Legislation Directory to indicate its function more clearly.
Membership
The Law Reform Commission consists of a President, one full-time
Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
The Hon Mrs Justice
Catherine McGuinness
Former Judge of the
Supreme Court
Full-time
Commissioner:
Patricia T.
Rickard-Clarke, Solicitor
Part-time
Commissioner:
Professor Finbarr
McAuley
Part-time
Commissioner:
Marian Shanley,
Solicitor
Part-time
Commissioner:
Donal O’Donnell,
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Law Reform Research Staff
Director of
Research:
Raymond Byrne BCL, LLM
(NUI),
Barrister-at-Law
Legal Researchers:
Chris Campbell B Corp Law, LLB, Diop Sa Gh
(NUI)
Siobhan Drislane BCL, LLM (NUI)
Claire Murray BCL (NUI), Barrister-at-Law
Gemma Ní Chaoimh BCL, LLM (NUI)
Bríd Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI)
Jane O’Grady BCL, LLB (NUI), LPC (College of Law)
Gerard Sadlier BCL (NUI)
Joseph Spooner BCL (Law with French Law) (NUI), Dip. French and
European Law (Paris II), BCL (Oxon)
Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)
Statute
Law Restatement
Project Manager for
Restatement:
Alma Clissmann, BA
(Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal Researchers:
John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law
Catriona Moloney BCL (NUI), LLM (Public Law)
Legislation
Directory
Project Manager for
Legislation Directory:
Heather Mahon LLB
(ling. Ger.), M.Litt, Barrister-at-Law
Legal Researchers:
Margaret Devaney LLB, LLM (TCD)
Rachel Kemp BCL (Law and German), LLM (NUI)
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Legal Information
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Dip LIS
Cataloguer:
Eithne Boland BA
(Hons), HDip Ed, HDip LIS
Clerical Officers:
Ann Browne
Ann Byrne
Liam Dargan
Sabrina Kelly
Principal
legal researcher for this CONSULTATION PAPER
Claire Murray BCL (NUI),
Barrister-at-Law
CONTACT DETAILS
Further information can be obtained from:
Head of
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Commission
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Telephone:
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Fax:
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Email:
info@lawreform.ie
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ACKNOWLEDGEMENTS
The Commission would like to thank the following people who provided
valuable assistance:
Hilary Coveney, Partner, Matheson Ormsby Prentice Solicitors
Margot Doherty, Assistant CEO, Treoir, the National Federation
of One Parent Families
Margaret Dromey, CEO, Treoir, the National Federation for One
Parent Families
Kieran Feely, Registrar General, General Register Office
Sinead Kearney, Partner, BCM Hanby Wallace Solicitors
Emily Logan, Ombudsman for Children, Ombudsman for
Children’s Office
Sophie Magennis, Head of Policy and Research, Ombudsman for
Children’s Office
Bernard McDonald, Assistant Ombudsman for Children, Ombudsman for
Children’s Office
Pat Patterson, Assistant Registrar, General Register Office
Carmel Stewart, Senior Counsel
Muriel Walls, Partner, McCann Fitzgerald Solicitors
Full responsibility for this publication lies, however, with the
Commission.
TABLE OF CONTENTS
Table of Legislation xi
Table of Cases xiii
C The current legal position 2
E Outline of this Consultation Paper 8
G The current Irish terminology 12
(1) Background to the terminology 13
(2) An overview of current Irish legal terms
relating to family relationships 16
(a) Parental Rights and Duties 16
(e) Parental Responsibility 20
H The influence of international legal
instruments on the appropriate terminology 21
(1) Council of Europe Conventions and
Recommendations 21
(a) European Convention on Human Rights 21
(b) Protocol 7 to the European Convention on
Human Rights 22
(c) 1984 Recommendation on Parental
Responsibilities 22
(d) 2002 Convention on Contact concerning
Children 23
(2) United Nations 1989 Convention on the
Rights of the Child 24
I A brief overview
of the terminology used in other common law jurisdictions 25
(1) Parental Responsibility/Guardianship 25
(2) Residence/Day-to-day care/Custody 28
(1) Possible formats for introducing a
statutory definition of parental responsibility in Ireland 31
(2) Statutory definitions of day-to-day
care and contact 39
registration of
the birth of a child 42
registration of
the birth of a child 42
L The current procedure for registering a
birth in Ireland 42
(1) Registering the birth of a child where
the parents are not married 45
(1) Possible options to encourage joint
registration of the birth 51
(c) The introduction of compulsory
registration of the names of both parents 54
N The operation of the presumption of
paternity in relation to married couples 56
(1) Statutory exceptions to the presumption
of paternity 59
the
responsibilities and rights of non-marital fathers 62
the
responsibilities and rights of non-marital fathers 62
P Previous recommendations by the
Commission 62
R Automatic parental responsibility for all
parents 71
S Joint registration of the birth as a
means of securing guardianship/parental responsibility 74
(2) Scotland and Northern Ireland 75
The responsibilities and rights of members
of the extended family 78
The responsibilities and rights of members
of the extended family 78
U Current legal position of members of the
extended family in Ireland 79
(2) Guardianship/Parental responsibility
and custody/day-to-day care 80
V Applications for access/contact 82
(1) Discussion of the statutory scheme in
Ireland 84
(a) Comparative analysis of the leave
requirement 88
(3) The role of the child in applications
for access/contact 93
(a) Right of the
child to apply for access/contact 93
(b) Statutory requirement to take account
of the views of the child 95
(1) The linking of residence and parental
responsibility 100
(2) The allocation of guardianship/parental
responsibility to step-parents 103
(a) Special guardians in England and Wales
104
(b) Additional guardians in New Zealand 105
(c) Court orders
granting parental responsibility to step-parents in Scotland 106
TABLE OF LEGISLATION
|
No. 25/1952 |
Irl |
|
|
Adoption Act 1976 |
1976, c. 36 |
Eng |
|
Adoption Act 1988 |
No. 30/1988 |
Irl |
|
Adoption and Children Act 2002 |
2002, c. 38 |
Eng |
|
Births and Deaths Registration (Northern Ireland) Order 1976 |
1976, No. 1041 (N.I. 14) |
NI |
|
Births and Deaths Registration Act 1953 |
1953, c. 20 |
Eng |
|
Births, Deaths, Marriages and Relationships Registration Act 1995 |
1995, No. 16 |
NZ |
|
Births, Deaths, Marriages and Relationships Registration Amendment Act 2008 |
2008, No. 48 |
NZ |
|
Care of Children Act 2004 |
No. 90/2004 |
NZ |
|
Child Care Act 1980 |
1980, c. 5 |
Eng |
|
Child Care Act 1991 |
No. 17/1991 |
Irl |
|
Children (Northern Ireland) Order 1995 |
1995 No. 755 (N.I.2) |
NI |
|
Children (Scotland) Act 1995 |
1995, c. 36 |
Scot |
|
Children Act 1975 |
1975, c. 72 |
Eng |
|
Children Act 1989 |
1989, c. 41 |
Eng |
|
Children Act 1997 |
No. 40/1997 |
Irl |
|
Children and Adoption Act 2006 |
2006, c. 20 |
Eng |
|
Children, Young Persons and their Families Act 1989 |
1989, No. 24 |
NZ |
|
Civil Registration Act 2004 |
No. 3/2004 |
Irl |
|
Custody of Children Act 1839 |
1839 (2 & 3 Vict.) c. 54 |
Irl |
|
Custody of Infants Act 1873 |
1873 (36 Vict.) c. 12 |
Irl |
|
European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 |
SI No. 112/2005 |
Irl |
|
European Convention on Human Rights Act 2003 |
No. 20/2003 |
Irl |
|
Family Law (Divorce) Act 1996 |
No. 33/1996 |
Irl |
|
Family Law (Scotland) Act 2006 |
2006, asp 2 |
Scot |
|
Family Law Act (Northern Ireland) 2001 |
2001, c. 12 |
NI |
|
Family Law Act 1995 |
No. 26/1995 |
Irl |
|
Family Law Reform Act 1995 |
No. 167/1995 |
Aus |
|
Guardianship Act 1973 |
1973, c. 29 |
Eng |
|
Guardianship of Children (Statutory Declarations) Regulations 1998 |
SI No. 5/1998 |
Irl |
|
Guardianship of Infants Act 1886 |
1886 (49 & 50 Vict.) c. 27 |
Irl |
|
Guardianship of Infants Act 1964 |
No. 7/1964 |
Irl |
|
Human Fertilisation and Embryology Act 2008 |
2008, c. 22 |
UK |
|
Judicial Separation and Family Law Reform Act 1989 |
No. 6/1989 |
Irl |
|
Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870 |
1870 (33 & 34 Vict.) c. 110 |
Irl |
|
Mental Capacity Act 2005 |
2005, c. 9 |
Eng |
|
Parental Responsibility Agreement Regulations 1991 |
SI 1991/1478 |
Eng |
|
Social Welfare (Consolidation) Act 1981 |
No. 1/1981 |
Irl |
|
Social Welfare (Consolidation) Act 1993 |
No. 27/1993 |
Irl |
|
Status of Children Act 1987 |
No. 26/1987 |
Irl |
TABLE OF CASES
|
ECtHR |
||
|
G v An Bord Uchtála |
[1980] IR 32 |
Irl |
|
Gillick v West Norfolk and Wisbech Area Health Authority |
Eng |
|
|
Hollywood v Cork Harbour Commissioners |
[1992] IR 457 |
Irl |
|
In re Cullinane, an Infant |
[1954] IR 270 |
Irl |
|
In re Kerr, an Infant |
(1889) 24 LR Ir 59 (Appeal) |
Irl |
|
In re Tamburrini |
[1944] IR 508 |
Irl |
|
J v C |
Eng |
|
|
J.K. v V.W. |
[1990] 2 IR 437 |
Irl |
|
Johnston v Ireland |
(1986) 8 EHRR 214 |
ECtHR |
|
Keegan v Ireland |
ECtHR |
|
|
M v M (Child: Access) |
[1973] 2 All ER 81 |
Eng |
|
M.D v G.D |
High Court (30 July 1992) |
Irl |
|
M.N v R.N |
Irl |
|
|
Marckx v Belgium |
(1979-1980) 2 EHRR 330 |
ECtHR |
|
McD v L |
Irl |
|
|
McMichael v United Kingdom |
ECtHR |
|
|
O'D v O'D |
[1994] 3 Fam LJ 81 |
Irl |
|
R.C v I.S |
Irl |
|
|
Russell v Russell |
Eng |
|
|
S v S |
[1983] IR 68 |
Irl |
|
State (Nicolaou) v An Bord Uchtála |
[1966] IR 567 |
Irl |
|
W v R |
FC NAP FP 041/055/89 |
NZ |
|
W.O'R. v E.H. and An Bord Uchtála |
[1996] 2 IR 248 |
Irl |
This
Consultation Paper forms part of the Commission’s Third Programme of Law
Reform 2008-2014,1 and involves an examination of the
rights and duties of fathers in relation to guardianship, custody and access to
their children; and of the rights and duties (if any) of grandparents.2
The project involves a continuation of the
Commission’s long-standing work on reform of family law. The Commission has
previously examined the rights and duties of cohabitants,3
family law courts,4 and the implementation in Ireland
of a number of Hague Conventions in the family law area.5 In
its 1982 Report on Illegitimacy6
the Commission recommended the abolition of the status of illegitimacy, under
which non-marital children could not inherit in the same manner as marital
children. This was implemented in the Status of Children Act 1987.7
Of particular relevance to this Consultation Paper, the Commission had also
recommended in the 1982 Report that automatic guardianship rights should be
granted to all fathers, regardless of marital status. This recommendation,
which was not implemented in the Status of Children Act 1987,8 is re-examined in this Consultation
Paper in the light of developments in Ireland and in other common law
jurisdictions.
As
in all matters concerning children, the Commission regards the welfare and the
best interests of the child as the primary consideration in the context of this
Consultation Paper. To this end the Commission refers to the UN 1989 Convention
on the Rights of the Child throughout the Consultation Paper as a benchmark
against which to measure any proposals and recommendations. The Commission
recognises that children have rights and that these rights must be respected
and protected in so far as is possible. However, the Commission is also aware
that the Constitution and other legal instruments accord rights and
responsibilities to parents as well. Therefore any discussion on the legal
aspects of family relationships requires a balancing of those rights.
When
the best interests of the child are placed at the centre of a consideration of
the law on guardianship, custody and access it is significant that all of the
current terminology in use is framed in terms of the rights of the parents. The
Commission proposes to refocus the terminology to emphasise the welfare of the
child as the primary consideration. This is consistent with the proposed use of
the terms parental responsibility, day-to-day care, and contact. Placing the
child at the centre of the legal framework also allows scope to broaden the
categories of persons who can apply to take care of the child. The allocation
of guardianship/parental responsibility should not be confined to balancing the
competing rights of parents, but should also be influenced by who is in the
best position to care for the child. The Commission is of the opinion that in
most cases this will be the parents of the child, but where that is not
possible, the child’s welfare should be a prime consideration.
The
law currently regulates who can be a guardian of a child, and who can apply for
custody of and access to a child. Each of these concepts is briefly explained
below.
Where the parents of a child are married to
each other both parents are automatic joint guardians of the child.9
This status is not affected by any subsequent breakdown in the marriage.10
Guardianship permits a person to make all major decisions relating to the
child, for example where the child will live, the right to apply for a passport
for the child and in what religion the child will be raised. These parental
rights and responsibilities flow from the Constitutional protection of the
family set out in Article 41 and Article 42. However, the courts have held that
these do not extend to the non-marital family.11
In this situation the mother and father do not have equal rights in relation to
their child. Where a child is born outside marriage the mother is the sole
automatic guardian of the child.12
This relationship between mother and child has been held to be protected under
Article 40.3 of the Constitution.13
This is generally considered to be a weaker form of constitutional protection
than that accorded to the marital family, but it is nonetheless significant. In
contrast, the father and child relationship, where the parents are not married
to each other, is afforded no constitutional protection.14
A non-marital father can acquire guardianship rights in relation to his child,
either by agreement with the mother,15
or by court order.16 Where a non-marital father has
acquired such rights both parties are joint guardians of the child. However a
non-marital father can be removed as a guardian by court order.17
This is not possible where the father concerned is a marital father. This is a
clear illustration of the different approach the law takes to different
categories of fathers. There are a number of justifications offered for this
approach which are discussed in greater detail in the Consultation Paper.18
The
distinction between marital and non-marital fathers in Irish law has been
challenged before the European Court of Human Rights (ECtHR) as a breach of the
right to private and family life in Article 8 of the European Convention on
Human Rights (ECHR). The understanding of family life within Article 8 includes
de facto families and this was confirmed in Johnston v Ireland19 and in Keegan v Ireland.20 In Keegan the ECtHR found that the fact
that the couple had lived together for two years before the relationship ended
went some way towards establishing the necessary family ties to bring the
situation within Article 8. Article 14 of the ECHR also prohibits
discrimination on grounds of birth.21 Given that the rights in the ECHR have been incorporated into Irish law
through the European Convention on Human Rights Act 2003, it is
important to re-examine the current Irish position on the allocation of
guardianship rights.
Guardianship
rights and responsibilities usually vest in the married parents of a child, in
the unmarried mother of a child, and in the unmarried father of a child once
certain criteria are met. However, other people can also be appointed guardian
of a child. This usually occurs when a person is appointed a testamentary
guardian or is made a guardian of a child by order of the court.22
The Commission considers that the law relating to testamentary guardians and
court appointed guardians is satisfactory. There is an issue, however, where
grandparents or other relatives are in the position of de facto guardians
of a child during the lifetime of the child’s parents. Where a grandparent or
relative is exercising all the responsibilities of raising a child, he or she
is not entitled to any of the rights associated with guardianship if the
child’s parents are still alive.23
This can lead to difficulties, for example in the context of consent to medical
treatment, or application for a passport to take the child on a holiday abroad.
This is discussed in greater detail in Chapter 4.
Custody refers to the day to day care and
control of the child.24 In this respect, custody is an
exclusive right and responsibility of a guardian or guardians. Generally the
parent or guardian with whom the child lives has custody rights and
responsibilities in relation to the child. In the case of a marital family both
parents will usually have joint custody of the child. If the married parents of
a child are not living together, the parent with whom the child ordinarily
resides is deemed to have custody of the child. The courts are empowered to
make custody orders in respect of a child where there is a dispute about with
whom the child should live.25
In general it is only guardians of a child who can apply for custody. There is
an exception, in that non-marital fathers who have not been appointed guardian
may apply to court for a custody or access order in respect of a child.26
The effect of this is that a grandparent or relative who is caring for a child
on a full time basis is not entitled to apply for a custody order in respect of
that child. It is important to be aware, however, that custody rights merely
allow the person to have the child live with them and to care for the child. It
does not include any of the significant decision making rights, as these are
associated with guardianship.
Provision is also made in Irish family law for
access rights.27 Where one party has custody of the
child it is generally considered to be in the child’s interest to have contact
with the other parent. This is the case even where one parent is deemed to be
unsuitable to have custody of the child, and therefore there is provision in
the legislation for the court to order conditional or supervised access.28
Access rights allow the party having access to take the necessary steps to care
for the child while he or she is with them, but the party with access must not
usurp the position of the parent with custody of the child. Initially access
was seen as a right of the parent. However, it is now considered more
appropriate to describe access as the right of the child to have contact with
the parent. Nonetheless, there is a perception that, where custody is awarded
to one parent, access is often seen as a “consolation prize.” However
inappropriate this perception is, the reality is that this can result in poor
uptake of access rights in certain circumstances. The Commission discusses
possible options to overcome this difficulty in Chapter 1.
Access
is not limited to parents. There is provision for third parties, including
grandparents, to be granted access to children under section 11B of the Guardianship
of Infants Act 1964 as inserted by section 9 of the Children Act 1997.29
This is a two stage process. The initial stage is an application for leave
(permission) to apply for access. If the party making the application is
granted leave, there is a substantive hearing in relation to access. The
purpose of the two stage process is to filter out unmeritorious claims.30
The necessity of the two-stage process has been questioned in other
jurisdictions where similar provisions exist.31
The Commission discusses the issue of access by members of the extended family
to children in Chapter 4.
Having
briefly outlined the current structure of the law in Ireland in respect of
family relationships, the Commission turns to describe the scope of this
Consultation Paper.
This
Consultation Paper has two distinct elements. The first deals with the law as
it relates to fathers and their children and the second deals with the law
applying to members of the extended family. This has the potential to be
extremely broad and therefore it is important to describe the scope of this
Consultation Paper, including those areas not within the remit of this project.
As
to the rights and responsibilities of fathers, the focus of the Consultation
Paper is on modernising the law relating to non-marital fathers. As already
mentioned, the Commission recommended extending automatic guardianship rights
to all fathers in the 1982 Report on Illegitimacy.32
This was not implemented in the Status of Children Act 1987, although
the Oireachtas did introduce a mechanism by which a non-marital father could
apply for guardianship rights. This was further extended by the Children Act
1997 under which non-marital fathers could obtain guardianship rights by
agreement with the mother. This Consultation Paper re-examines this area. The
Consultation Paper does not examine the current legal provisions relating to
custody and access disputes in the context of marital breakdown. The Commission
considers that the current legislative provisions in place are adequate to
address this.33
The
various Hague Conventions on Children’s Rights have been examined by the
Commission previously on a number of occasions.34
They are discussed to the extent that they impact on guardianship and custody.
The
law on adoption has also been examined by the Commission in the past.35
The Adoption Bill 2009, which proposes to consolidate and reform the law
in this area, is currently before the Oireachtas. Therefore, adoption law does
not form a core element of this Consultation Paper.
In
Chapter 1 the Commission discusses the need to update the terminology currently
in use in Ireland in the context of family relationships. The focus is on the
terms guardianship, custody and access. The Commission examines the origins of
the current terminology and the interpretation of those terms by the courts.
The Commission then discusses the updated terminology in, for example, England
and Wales, Scotland and New Zealand. The Commission also examines the
terminology in the Council of Europe’s 1984 Recommendation on Parental
Responsibilities36 and in the EU Brussels
II bis Regulation.37 The Commission then makes
provisional recommendations as to the terminology that would be most
appropriate in Ireland, namely, parental responsibility (in place of
guardianship), day-to-day care (in place of custody) and contact (in place of
access). The remainder of the Consultation Paper utilises this recommended
terminology.
In
Chapter 2 the Commission examines the law on registering the birth of a child.
At present the birth of a child can be registered by the non-marital mother
alone and there is no requirement for the name of the father to be included on
the birth certificate or the general register of births. The Commission
understands that there are significant numbers of children born each year in
Ireland in respect of whom there is only a mother’s name on the birth
certificate. The Commission explores various options to improve this situation.
In this context it questions whether linking the registration of the birth of
the child to guardianship/parental responsibility, as now occurs in the UK,38 is appropriate. This chapter also explores the continuing operation of
the statutory presumption that a woman’s husband is the father of the child.
While in most cases the presumption causes no difficulties, there are
situations where it results in a legal fiction. To this end the Commission
examines various options for reform.
In
Chapter 3 the Commission revisits the issue of the allocation of
guardianship/parental responsibility rights to non-marital fathers. The chapter
begins with a discussion of the Commission’s 1982 Report on Illegitimacy
where it recommended that non-marital fathers be granted full automatic
guardianship rights.39 The chapter then examines in
detail the current methods by which a non-marital father in Ireland can obtain
guardianship/parental responsibility rights in respect of his child. Any
shortcomings with this will be identified and discussed. The chapter then sets
out the law in Australia (where all fathers automatically have parental
responsibility) and other States where non-marital fathers do not have
automatic parental responsibility, but where different thresholds are used to
identify when non-marital fathers should be allocated parental responsibility.
This discussion indicates that Ireland is not the only jurisdiction to have
recommended automatic guardianship in the past but to have retained the
distinction in law.40 The Commission then sets out a
number of possible options for further reform in this area.
In
Chapter 4 the Commission examines the law in respect of members of the extended
family. This begins with a discussion on the current provisions for access to
children by members of the extended family. The core issue is whether it is
necessary to retain the current leave stage in such applications. The second
part of the chapter is focused on circumstances where the parents of a child
are unwilling or unable to care for the child and a relative or other person is
in the position of a de facto parent. As the law currently stands the
person caring for the child in these circumstances is unable to apply for
guardianship and therefore cannot access all the rights associated with this
status. It is also not possible in these circumstances to make an application
for a custody order in respect of the child. The Commission explores the
possibility of extending some form of guardianship/parental responsibility
rights in this situation. This chapter also explores reform in the context of
the position of step-parents.
Chapter
5 contains a summary of the provisional recommendations made in the
Consultation Paper.
This
Consultation Paper is intended to form the basis of discussion and therefore
all the recommendations made are provisional in nature. The Commission will
make its final recommendations on the subject of the legal aspects of family
relationships following further consideration of the issues and further
consultation with interested parties. Submissions on the provisional
recommendations included in this Consultation Paper are welcome. To enable the
Commission to proceed with the preparation of its final Report, those who wish
to do so are requested to make their submissions in writing by post to the
Commission or by email to info@lawreform.ie by 31 December 2009.
1.
In
this chapter, the Commission discusses the need to review the terminology
currently in use in Ireland in relation to parental rights and
responsibilities. In Part B the Commission sets out the current Irish
terminology, principally guardianship, custody and access in legislation such
as the Guardianship of Infants Act 1964. The discussion begins with a
brief overview of the history of these terms. It then moves on to examine the
terms which currently form part of Irish law. The Commission notes that there
is no statutory definition of the terms guardianship, custody or access at
present in Ireland. It also draws attention to the fact that the 2003 EU
Regulation Brussels II bis introduced the term “parental responsibility”
into Irish law. This has resulted in two distinct terms being used in Irish law
to describe the rights and responsibilities associated with raising a child. In
Part C the Commission examines the terminology used by the Council of Europe
and the United Nations. The term parental responsibility has gained widespread
acceptance throughout Europe and the Commission believes it is important to
ensure the terminology used in Ireland is consistent with the European standard
where appropriate. Part D briefly sets out the terminology used in other common
law States to demonstrate the move away from the terms guardianship, custody
and access. This includes the Commission’s provisional recommendation that the
terms parental responsibility, day-to-day care and contact should be adopted in
this State. In Part E, the Commission concludes the chapter with a discussion
of the most appropriate format for a statutory definition of each term.
2.
In
this part of the chapter the Commission examines the development of the current
terminology before discussing each of the terms that form part of Irish family
law in this area.
3.
At
present the terms used to describe family relationships in Ireland are
guardianship, custody and access. This terminology pre-dates the formation of
the State in 1922 and is, therefore, language inherited from English common
law. Significantly, the legislatures in England and Wales, Scotland, and
Northern Ireland have recognised the changing nature of family relationships
and the growing emphasis on the interaction between rights and responsibilities
and have altered the terminology used accordingly. This is also evident in
other jurisdictions which share a common legal heritage, such as Australia and
New Zealand. These are discussed in greater detail below. Irish law continues
to use the terms guardianship, custody and access to describe the role of
caring for and protecting a child within a family structure. Significantly,
there is no statutory definition of any of these terms, although they appear to
be well understood among practitioners and academics working in the family law
field.
4.
Before
setting out the current understanding of each of the terms it is useful to
examine briefly the history of the terminology. At common law the father was
the sole guardian of a legitimate child.41 The right to guardianship at the time also meant that the father had
almost exclusive rights to custody of the child until the age of 21 in the
absence of grave misconduct on the part of the father. According to Shatter the
paternal right to custody was a corollary of the paternal duty to maintain
legitimate offspring. However, he notes that “…whereas the former right was
enforceable by the father, the machinery for enforcing the duties was almost wholly
ineffectual.”42 Equity emphasised the welfare of
the child to a greater extent with the result that courts exercising an
equitable jurisdiction were more likely to deprive a father of custody in
circumstances where there was no evidence of misconduct.43 However, the father remained a
guardian of the child. During the father’s lifetime, the mother of a marital
child had no powers in relation to the child. If a father died without
appointing a testamentary guardian, the mother was entitled to the custody of
the child and all the father’s rights and responsibilities. If a testamentary
guardian was appointed by the father, the mother had no rights.
5.
During
the 19th century a number of legislative changes were introduced giving mothers
rights in respect of their children. The Custody of Children Act 1839
allowed a mother to seek custody of children under seven. However, the 1839 Act
specifically provided that the mother was not to be granted custody if she had
committed adultery. This highlights that the criteria for obtaining custody
were not so much the welfare of the children as the good behaviour of the
parent. Custody was seen as a reward for good marital behaviour and as such was
denied as a form of reprobation. The Custody of Infants Act 1873 removed
the provision in relation to adultery and allowed the court to award custody of
a child up to the age of 16 to the mother. The Guardianship of Infants Act
1886 stated that a mother could be awarded custody of children up to the
age of 21 and for the first time required that the decision to award custody
was to be decided having regard to the welfare of the child, as well as the
conduct and wishes of both parents. The 1886 Act also provided that a
testamentary guardian appointed by a father was to act jointly with a mother,
rather than usurping her position. The 1886 Act empowered a mother to appoint a
testamentary guardian on her death to act jointly with the father, but only “if
it be shown to the satisfaction of the court that the father is for any reason
unfitted to be the sole guardian of his children.” Therefore, the 1886 Act did
increase the rights of married mothers, but not to the extent that they had
equal rights to those of the father. Guardianship remained the sole preserve of
the father.
6.
At
common law a child born to parents who were not married was described as
illegitimate. The effect of this was that the legal rights and duties
associated with being a family were not accorded to the child or his or her
parents. According to Shatter “natural parents were
neither the guardians of their child nor did they have any right to its
custody.”44 This began to alter in the 19th
century, and the rights of the natural mother were acknowledged. These rights
were initially seen as a corollary of the duty imposed on mothers to provide
maintenance for their children by the Poor Laws.45 A mother of an illegitimate child was not a guardian of the child, but
it was accepted that there was a natural relationship between a mother and a
child that gave rise to custody rights. This resulted in the mother’s wishes in
respect of the child being followed unless they were contrary to the child’s
welfare.46 Significantly, this prioritisation
of the wishes of the mother only lasted for the lifetime of the mother and, if
she was survived by the natural father, he was entitled to custody of the child
as against any guardian appointed by the mother.47
7.
The
Guardianship of Infants Act 1964 altered this and provided that the
mother of an illegitimate child was the guardian of that child.48 She was also entitled to appoint a
testamentary guardian to care for the child on her death. Guardianship rights
were not extended to non-marital fathers in the original provisions of the 1964
Act. However, it did provide for a non-marital father to apply for custody and
access in relation to his child.49 This was significant as generally applications for custody and access
were confined to guardians of the child.
8.
The
Status of Children Act 1987 amended the 1964 Act to introduce a
statutory mechanism whereby a non-marital father could be appointed a guardian
by court order.50 This was introduced in response to
the Commission’s 1982 Report on Illegitimacy.51 The Children Act 1997 further
updated the legal framework in Ireland to facilitate non-marital fathers
becoming guardians. This can now also be achieved if the mother and father of
the child agree to be joint guardians and complete a statutory declaration to
this affect.52 The adequacy of the current
provisions on guardianship for non-marital fathers will be discussed in detail
in Chapter 3. It is now necessary to examine the general understanding of the
terms guardianship, custody and access.
9.
The
terminology used to describe family relationships in Ireland comes from a
variety of sources. These include the Constitution, domestic legislation and
also EU Regulations. The most widely recognised terms in use are guardianship,
custody and access. However, the term parental responsibility is also already
in use within the framework of Irish family law.
10.
The
term “parental rights and duties” is used in the Constitution with reference to
the family. Article 42.1 recognises the family as the “primary and natural
educator of the child” and goes on to note that the State:
“guarantees
to respect the inalienable right and duty of parents to provide,
according to their means, for the religious and moral, intellectual, physical
and social education of their children.”53
This reference to
right and duty appears to amount to a constitutional acknowledgment that
parental rights do not exist without concomitant duties or responsibilities.
11.
The
term “parental rights and duties” is also used in section 24 of the Adoption
Act 1952, which states that on the making of an adoption order “the mother
or guardian shall lose all parental rights and be freed from all parental
duties with respect to the child.” The correlative effect of this is that the
adoptive parents assume all the parental rights and duties in relation to that
child.
12.
Guardianship
is the term used to describe the rights and responsibilities associated with
raising a child. Shatter describes guardianship as encompassing:
“the duty to maintain and properly care for a
child and the right to make decisions about a child’s religious and secular
education, health requirements and general welfare.”54
Similarly, Shannon
describes guardianship as entailing:
“both rights and duties, in particular the duty
to ensure that a child is properly cared for and that decisions relating to the
child are made with the latter’s best interests at heart.”55
It therefore appears
that the general understanding of guardianship is that it includes both rights
and responsibilities and allows a guardian to make important decisions relating
to the child. As noted in the Introduction to this Paper, guardianship is often
associated with the right to decide where the child will live, the right to
apply for a passport and the right to decide in what religion the child will be
raised. Unfortunately, these indicative examples are not set down in
legislation. Section 10(2)(a) of the Guardianship
of Infants Act 1964 sets out the role of the guardian and states:
“as guardian of the
person [the guardian] shall, as against every person not being, jointly with
him, a guardian of the person, be entitled to the custody of the infant and
shall be entitled to take proceedings for the restoration of his custody of the
infant against any person who wrongfully takes away or detains the infant and
for the recovery, for the benefit of the infant, of damages for any injury to
or trespass against the person of the infant.”
Kilkelly is of the view that Irish law on family relationships, as it is
recorded in existing legislation “reflects an outdated concept of parenting,
one that focuses on the rights of parents, particularly in relation to the
custody of their child, rather than their responsibilities towards their child.”56
13.
Custody
is generally understood as the right of a parent to exercise care and control
over the child on a day-to-day basis.57 Again, however, there is no statutory definition of what is entailed in
having custody of a child. As noted above, a guardian is entitled to custody of
a child as against all other persons who are not also a guardian of the child.
Therefore married parents are entitled to shared
custody of their child as joint guardians. The mother of a non-marital child is
entitled to sole custody of the child if the father has not been made a
guardian of the child. However, a non-marital father who is not a guardian can
also apply for custody of and access to the child.58 The absence of a statutory
definition of custody has led to confusion between the rights associated with
guardianship and those associated with custody. Often joint custody orders are
made by the courts or agreed between parties,59 but the reality is that the child
will generally have his or her primary residence with one party and spend time
with the other. The right to custody of the child does not amount to the
authority to make significant decisions affecting the child, as this is covered
by guardianship. However, as Shannon notes “it is hard to shake the perception
that custody is an ‘all or nothing’”.60 This can result in acrimonious custody disputes based on a
misunderstanding of what is involved in having custody of a child. This has led
to calls for reform of the law to “ensure that all parties are clear about the
orders being sought and ultimately made by the courts.”61 The Commission also notes that the
term “custody” is often associated with the criminal law and this is unhelpful
in the context of the law regulating family relationships.
14.
Access
is generally understood as a right to visit with and spend time with the child.
It is usually granted to the party who does not have custody of the child. In
cases where joint custody is awarded, it may also be necessary to put access
arrangements in place to facilitate contact between the child and the person
that the child does not live with on a daily basis. Again, there is no
statutory definition of access. Traditionally it was understood as a right of
the parent. Kilkelly notes that:
“[a]lthough
the law required such decisions to be based around what was consistent with the
welfare of the child, both the language and the approach of the courts made it
clear that the decision was being taken from a parent’s perspective.”62
The term “access”
gives the impression that the parent with custody of the child is in a position
of power and can regulate the amount of contact between the child and the
non-custodial parent. This terminology is not helpful in the context of family
relationships. It is more helpful to consider access, or contact, as a right of
the child. This approach was adopted by Carroll J in M.D v G.D.63 This awareness of the importance of
continued contact between children and their parents, and other close
relatives, is reflected in the statistics on access which suggest that the vast
majority of applications are granted. In 2006 there were 3,281 court
applications for access, and 79 were refused.64 In 2007 there were 3,475 applications and 75 were refused.65 In 2008 there were 3,491
applications and 175 were refused.66 Recognising access as being in the best interests of the child is in
accordance with Article 9 of the 1989 UN Convention on the Rights of the Child,
which provides that the state should respect:
“the
right of the child who is separated from one or both parents to maintain
personal relations and direct contact with both parents on a regular basis,
except if it is contrary to the child’s best interests.”67
Kilkelly suggests that
recognition of a right of the child to have contact with his or her parents
would be a welcome addition to Irish law in this area.68 The discussion here has focused on
contact between children and their parents. However, access by other relatives
is also an issue that comes within the scope of this Consultation Paper and
will be discussed in greater detail in Chapter 4.
15.
The
2003 EU Regulation commonly known as Brussels II bis,69 Council Regulation (EC) No
2201/2003 concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and in matters of parental responsibility, repealed
and replaced the previous 2000 Council Regulation (EC) No 1347/2000 on matrimonial
matters, Brussels II.70 As can be seen, the title of the 2003 Regulation uses the term parental
responsibility, and the term is defined in Article 2 as:
“all
the rights and duties relating to the person or the property of a child which
are given to a natural or legal person by judgment, by operation of law or by
an agreement having legal effect. The term shall include rights of custody and
rights of access.”
Rights of custody are
defined in Article 2(9) of the 2003 Regulation as including “rights and duties
relating to the care of the person of a child, and in particular the right to
determine the child’s place of residence.” Article 2(10) defines rights of
access as including “in particular the right to take the child to a place other
than his or her habitual residence for a limited period of time.” The European
Communities (Judgments in Matrimonial Matters and Matters of Parental
Responsibility) Regulations 200571 facilitate the operation of the provisions of Brussels II bis in
Ireland.
16.
Kilkelly
notes that there are difficulties with Brussels II bis from a children’s
rights perspective, as the 2003 Regulation is very parent focused. She points
out that the draft version of Brussels II bis contained a recognition of the right of the child to maintain contact
with his or her parents and the child’s right to be heard on matters of
parental responsibility “but this was dropped due to concerns that the
Regulation would impose on member states substantive change regarding
children’s rights.”72
17.
For
the purposes of this Consultation Paper it is important to note the use of the
term parental responsibility in Brussels II bis as this has the effect
of introducing the concept directly into Irish family law. Therefore at present
parental responsibility and guardianship are terms that exist within Irish law
to describe the legal rights and responsibilities associated with raising a
child. The Commission believes that where appropriate it is helpful to ensure
consistency in the terms used. In this respect, the Commission notes that the
term parental responsibility is growing in general acceptance internationally,
and further examples of this are discussed in Part C. The Commission
acknowledges the continued use of the terms custody and access in Brussels II bis
but the Commission believes there are other compelling reasons for modernising
these terms in Ireland and these are discussed below.
18.
This
chapter explores the possibility of modernising the current terminology in use
in Ireland. Therefore, it is helpful to examine the terms used in international
law provisions to which the State is party. The Commission now turns to these
with a view to assisting in exploring suitable options for reform.
19.
The
rights in the European Convention on Human Rights (ECHR) were incorporated into
Irish law by the European Convention on Human Rights Act 2003, under
which the provisions of the ECHR must be taken into consideration by the Irish
courts.73 While the ECHR as originally
drafted does not have a specific provision referring to children’s rights,74 Article 8 guarantees respect for family life.75 Kilkelly states that the case law
of the European Court of Human Rights (ECtHR) “has long-since viewed contact
between parent and child as integral to the maintenance of their family life
relationship.”76
20.
Article
5 of Protocol No.7 to the European Convention on Human Rights (1984), which
forms part of the Convention Rights incorporated into Irish law by the 2003
Act, states that:
“Spouses shall enjoy
equality of rights and responsibilities of a private law character
between them, and in their relations with their children, as to marriage,
during marriage and in the event of its dissolution. This Article shall not
prevent States from taking such measures as are necessary in the interests of
the children.” (italics added)
21.
The
1984 Council of Europe Recommendation No. R (84)477
on Parental Responsibilities states that the aim of the Council of
Europe is to ensure greater unity between member states by promoting the
adoption of common rules in legal matters. For the purpose of this Consultation
Paper it is important to note that the Recommendation uses the term parental
responsibility. Principle 1 states:
“For the purpose of
this recommendation: a) parental responsibilities are a collection of duties
and powers which aim at ensuring the moral and material welfare of the child,
in particular by taking care of the person of the child, by maintaining
personal relationships with him and by providing for his education, his
maintenance, his legal representation and the administration of his property;”.
The Recommendation
does not examine the issue of custody or access to any significant extent,
although Principle 8 does state that:
“[t]he parent with who
the child does not live should have at least the possibility of maintaining
personal relationships with the child unless such relationships would be
seriously harmful to the interests of the child.”
22.
In
2002, the Council of Europe adopted a Convention on Contact concerning
Children.78 The use of the term contact is
significant as it highlights the move away from the terminology that remains in
place in Ireland. The aim of the 2002 Convention is to improve the right of
children to maintain regular contact with both parents. This includes an
attempt to develop safeguards to ensure proper exercise of contact and to
establish co-operation between central authorities and other bodies involved in
the implementation of contact orders. At the time of writing (September 2009),
Ireland is not a state party to the Convention and has not signed or ratified
it.79 Kilkelly notes that “there is much
to be done to bring law and practice into line with its provisions.”80 Nevertheless it is worth briefly
mentioning the core provisions of the Convention. The Convention states that
children and parents have a right to contact with each other and that this
should only be restricted where it is in the interests of the child to do so.
Where unsupervised access is not possible other forms of contact should be
considered. The Convention requires judicial authorities to ensure that parents
are informed of the importance of maintaining regular contact and to ensure
that they have sufficient information when making decisions in the best
interests of the child. The views of the child are also to be given due weight,
provided that the child is considered to have sufficient understanding, unless
that would be manifestly contrary to the child’s best interests. The Convention
does not deal with situations where the contact arrangements have been
breached, and in these circumstances other applicable international Conventions
and EU law would apply.81
23.
Although
the provisions of the 2002 Convention do not have legal force in Ireland it is
worth noting, in the context of this discussion on terminology, that the term
“contact” is the accepted term used by the Council of Europe. This is in
accordance with a more child centred approach to family law, and the Commission
supports this approach.
24.
The
terms parental responsibility and contact are also to be found in other
international law provisions that impact on Irish law. Ireland has yet to
incorporate the UN 1989 Convention on the Rights of the Child into domestic
law, although Ireland has signed and ratified the Convention.82 Nevertheless, it is worth briefly
mentioning the relevant sections of the Convention. Article 5 provides that:
“States Parties shall
respect the responsibilities, rights and duties of parents…to provide, in a
manner consistent with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of the rights recognised in
the present Convention.”
Article 9 of the
Convention refers to the need to respect the right of the child to ongoing
contact with both parents.83 This highlights that the terminology used in Irish law is not in line
with the language used in another key international instrument in this area.
25.
In
addition to looking at the terms in use in international instruments it is also
helpful to consider the terminology used in other common law jurisdictions with
a similar legal framework. The following discussion focuses on the terms
parental responsibility, guardianship, residence, day-to-day care, and contact.
26.
Section
3(1) of the English Children Act 1989 introduced the concept of parental
responsibility rights into English law and defined it as “all the rights,
duties, powers, responsibilities and authority which by law a parent has in
relation to the child and his property.”84 This was first mooted and recommended in the English Law Commission’s
1988 Report on Family Law, Review of Child Law, Guardianship and Custody.85 The Law Commission noted that the
statute book contained a number of different terms to describe the role of
parents in respect of their children, such as “parental rights and duties”,86 “powers and duties”,87 or “rights and authority.”88 However, it was felt that “to talk
of parental “rights” is not only inaccurate as a matter of juristic analysis
but also a misleading use of ordinary language.”89 The decision of the UK House of Lords in Gillick v West Norfolk and
Wisbech Area Health Authority90 was cited in support of the understanding that the powers that parents
have to make decisions for their children are merely the “necessary concomitant
of their parental duties.”91 In light of this the English Law Commission recommended the
introduction of a new concept of “parental responsibility” into the law. It was
stated that this “would make little difference in substance but it would
reflect the everyday reality of being a parent and emphasise the
responsibilities of all who are in that position.”92 The English Law Commission
highlighted that the term parental responsibility would also be applied to a
child in the care of the local authority.
27.
The
English Law Commission decided against providing a detailed definition of what
would be entailed in the concept of parental responsibility. It stated that it
would be impractical to do so, given that the list would have to change to meet
different needs and circumstances depending on the age and maturity of the
child.93 It did, however, note that parental
responsibility would refer to all “rights, claims, duties, powers,
responsibilities or authority, which statute and common law for the time being confer upon parents.”94 The English Children Act 1989, which
was the legislative response to the Law Commission’s 1988 Report opted not to adopt a detailed
definition of the term. As discussed below, other jurisdictions have provided a
more detailed definition of the concept of parental responsibility.
28. Scottish law has also opted for the
terms parental responsibility, residence and contact. The Children
(Scotland) Act 1995 includes a very detailed definition of parental
responsibilities and rights. This is discussed in greater detail in Part E of
this chapter. The shift in terminology in Scotland followed extensive
consultation and a 1992 Report by the Scottish Law Commission.95 The Scottish Law Commission
concluded that a statutory definition of both parental responsibilities and
rights would be advantageous for the following reasons:
“it would make
explicit what was already implicit in the law, it would counteract any
impression that a parent had rights but no responsibilities, and it would
enable the law to make it clear that parental rights were not absolute or
unqualified, but were conferred in order to enable parents to meet their
responsibilities.”96
This reasoning appears
to be consistent with the principles in the UN 1989 Convention on the Rights of
the Child.
28.
Australia
is another common law country that has adopted the term “parental
responsibility.” This is defined in section 61B of the Family Law Reform Act
1995 (Commonwealth) as “all the duties, powers, responsibilities and
authority which, by law, parents have in relation to children.” This definition
is similar to that in the English Children Act 1989 in that it is very
broad. Again, there is clear emphasis on the duties and responsibilities of
parenthood in addition to the rights.
29.
New
Zealand is unusual among the common law States examined in this chapter in that
it has retained the term guardianship rather than opt for the term parental
responsibility. The New Zealand Parliament has included a statutory definition
in the Care of Children Act 2004. This is an extremely detailed
definition and refers not only to guardianship rights, but also emphasises the
responsibilities inherent in the role of guardian. Therefore, the responsibility
element of caring for a child is given due recognition, even if this is not
explicitly contained in the term used. The definition of guardianship in New
Zealand is discussed in greater detail in Part E of this chapter in the context
of proposals for statutory definitions of the terminology in Ireland.
31. The use of custody orders was also
examined by the English Law Commission in its 1988 Report and, as in other
jurisdictions (including Ireland), it became apparent
that there were difficulties with the use of this term. The English Law
Commission noted that “parents not unnaturally think that a sole custody order
puts the custodial parent in sole control.”97 The Law Commission also noted that in practice, parental
responsibilities “run with the child” and for the most part are
exercised when the child is with that parent. There was a feeling that by
focusing on rights the issue became how one parent could control what the other
was doing when the child was not with them, rather than focusing on properly
meeting his or her responsibilities when the child was with him or her.98 Therefore, the English Law
Commission proposed replacing custody and access orders with a variety of
orders to include a “residence order” and a “contact order.”99 The English Commission stated that
the effect of a residence order would merely be to settle where the child is to
live. If any other conditions were needed, they would have to be specified.100
However, there were a number of core exceptions to this. The Law Commission
specifically recommended that it would be a condition of all residence orders
that the child’s surname should not be changed without either the written
consent of both parties with parental responsibility or the leave of the court.101
Also, the child could not be taken outside the jurisdiction for more than a
month without the consent of those with parental responsibility or the leave of
the court. The English Law Commission also recommended that if a non-marital
father obtained a residence order in his favour in circumstances where he did
not already have parental responsibility by court order or by agreement, then
the effect of the residence order would also be a parental responsibility
order.102
These provisions were enacted in the English Children Act 1989 and are
discussed in greater detail below.
32. It is clear from the 1992 Report of
the Scottish Law Commission that the reasoning behind the shift in terminology
from “custody” to “residence” in that jurisdiction was similar to the
difficulties faced in Ireland; namely, a lack of understanding among the
general public as to the effects of an award of custody.103 It
was felt that parents who were given sole custody appeared to think that this
gave them all the parental rights in respect of the child, to the
exclusion of the other parent, when in fact this was not the legal position.
The confusion was not helped by the fact that there was no statutory definition
of “custody” within Scottish law. In light of this, the Scottish Law Commission
recommended the introduction of a “right of a parent to have the child living
with him or her, or otherwise to regulate the child’s
residence.”104 This
highlights that this right relates solely to the child’s residence and does not
affect the continued operation of the rights and responsibilities of the
non-resident parent. This was enacted in the Family Law (Scotland) Act 1995.
33.
Australia
has also moved from the concept of custody orders and the Family Law Reform
Act 1995 refers to “parenting orders” which determine where the child shall
live and who the child will have contact with.
34.
While
New Zealand has retained the term guardianship, the concept of the “custody
order” has been replaced with the “parenting order” and custody is now referred
to as the “day-to-day care” of the child. A parenting order comprises
directions in relation to where the child will live, and with whom, and also
the arrangements for contact between parents and children. The legislative
detail on this is contained in the Care of Children Act 2004.
35.
In
England and Wales the proposed contact order was distinguished from the access
order on the basis that an access order allowed the non-custodial parent to
“have access”, whereas a contact order would allow for the child to visit and
possibly stay with the parent. During the time the child was having contact
with the non-resident parent, that parent would be in a position to exercise
all parental responsibilities necessary to care for the child. From the above
discussion it is clear that the purpose of the English Law Commission in
recommending a change in terminology was to ensure that it was clearer and in
accordance with international best practice.
36.
Continued
use of the term “access” was rejected by the Scottish Law Commission as it was
felt that it “seemed to suggest something like access to property and which did
not indicate that what was involved was continued parenting.”105 In
place of “access” it recommended that there be a right to maintain personal
relations and direct contact with the child on a regular basis. The Scottish
Law Commission noted that they received a number of suggestions that the right
of contact should also be a right of the child. This would be in accordance
with the provisions of the UN 1989 Convention on the Rights of the Child. While
not explicitly providing for such a right, the Scottish Law Commission stated
“we have attempted to meet this suggestion by recommending above that the
maintenance of personal relations and direct contact should be a parental
responsibility as well as a parental right.”106 It could be argued that while it is useful to include the concept of
contact within the definition of parental responsibilities as well as rights,
this is still very far removed from being a right of the child to contact with
both parents.
37.
As
noted above in the discussion on the change from custody to residence or
day-to-day care, both Australia and New Zealand have opted to have a single
“parenting order” which determines not only who will have care of the child on
a daily basis but also the contact arrangements in respect of the child. The
generally accepted term is contact, rather than access.
38.
On
the basis of this review of relevant international instruments and comparative
analysis of the law in other comparable States, the Commission has
provisionally concluded that the terms parental responsibility, day-to-day care
and contact should be used in relevant Irish family law legislation in place of
the terms guardianship, custody and access. The terms recommended are a more
accurate reflection of what is entailed in each of the concepts and would,
therefore, ensure greater clarity in the law. Their use would also ensure that
the terminology used in Ireland is consistent with that used in EU legislation,
by the Council of Europe, and in the various international instruments to which
Ireland is a party.
39.
The Commission provisionally recommends that, to ensure greater
accuracy, clarity and consistency, the terms “parental responsibility,”
“day-to-day care” and “contact” should be used in relevant Irish family law
legislation in place of “guardianship,” “custody” and “access”.
40.
At
present the Commission considers that there is confusion among members of the
public as to the distinction between guardianship and custody, with many
interpreting an order for joint custody as a joint parenting order. The
proposed change in terminology will make it clear that those with
guardianship/parental responsibility have a central role to play in making key
decisions relating to the child, regardless of whether or not they are caring
for the child on a daily basis. Similarly, the use of the term day-to-day care
in place of custody is a more accurate description of what is involved. An
order for day-to-day care of the child will mean that the child will live with
the person in whose favour the order is made and he or she will be responsible
for caring for the child on a daily basis. Important decisions regarding the
child can be made by all parties with guardianship/parental responsibility. The
use of the term contact in place of access is also a more positive term and
places greater emphasis on contact as a right of the child as well as a right
of the parent. The Commission hopes that the new terminology will go some way
towards making the operation of the family law system more accessible to those
who use it.
41.
As
noted throughout this chapter there are currently no statutory definitions of
the terms guardianship, custody and access in Ireland. As part of the
Commission’s recommendations to clarify the terminology used in this area, the
Commission also proposes to include statutory definitions of the suggested new
terms, namely parental responsibility, day-to-day care and contact.
Consideration must be given to the most appropriate format that the statutory
definitions should take. From the survey of other jurisdictions it is clear
that Scotland and New Zealand have opted for a very detailed definition of
parental responsibility and guardianship, while England and Wales and Australia
decided to adopt a broader definition, leaving the detailed interpretation to
the courts. It is helpful to look at these different styles and to analyse the
reasoning behind them before considering a format for the statutory definition
in Ireland.
42.
Section
3(1) of the English Children Act 1989 defines parental responsibility as
“all the rights, duties, powers, responsibilities and authority which by law a
parent has in relation to the child and his property.” As noted above in Part
D, the English Law Commission had recommended that a more detailed definition
should not be included, to allow for flexibility. Kilkelly suggests that this
is a “somewhat circular definition,” but is still preferable to the concept of
guardianship which it replaced.107 Section 3(5) of the 1989 Act also states that:
“A person who–
(a) does
not have parental responsibility for a particular child; but
(b)
has care of the child,
may (subject to the provisions of this
Act) do what is reasonable in all the circumstances of the case for the purpose
of safeguarding or promoting the child´s welfare.”
This is a child
focused approach in that it prioritises responsibility towards the child even
in circumstances where the person who has care of the child is not formally
entitled to parental responsibility.
43. The English Law Commission, in its
1988 Report addressed the issue of the requirement to consult between
persons with parental responsibility.108 It noted that at the time the law was not clear on whether there was a
right to act independently. The Law Commission was of the opinion that it was
important to recognise the equal status of both parents and the power to act
independently unless a court ordered otherwise. The Law Commission rejected the
suggestion that a duty to consult on major matters affecting the child would
result in increased co-operation between parents. It stated:
“a
legal duty of consultation seems both unworkable and undesirable. The person
looking after the child has to be able to take decisions in the child’s best
interests as and when they arise.”109
The Law Commission
identified that the child’s interests may be placed at risk if a parent is
delayed in making decisions due to the disapproval of the other parent, or if
there are difficulties contacting him or her. The issue of what is or is not a
major decision relating to the child would also have the potential to become a
source of tension between the parties.110 The English Law Commission therefore recommended that:
“the
equal and independent status of parents be preserved and, indeed, applied to
others (principally guardians) who may share parental responsibility in
future.”111
The Law Commission did
specifically clarify, however, that this would not affect the requirement for
the consent of each parent in the context of the adoption of the child. This
recommendation was given effect to in section 2(7) of the 1989 Act which
states:
“Where more than one
person has parental responsibility for a child, each of them may act alone and
without the other (or others) in meeting that responsibility; but nothing in
this Part shall be taken to affect the operation of any enactment which
requires the consent of more than one person in a matter affecting the child.”
44.
While
the inclusion of parental responsibility in the English 1989 Act is an attempt
to place greater emphasis on the responsibility element of parenting, the
statutory definition does not provide effective guidance as to what is required
of a person exercising parental responsibility in respect of a child. Therefore,
it is useful to examine a statutory definition which attempts to do this, while
still allowing scope for the fact that parenting must be tailored to the
specific circumstances that prevail in a particular family.
45.
The
Children (Scotland) Act 1995 includes a very detailed statutory
definition of parental responsibilities and rights. The statutory framework
adopted is based to a significant extent on the recommendations in the Scottish
Law Commission’s 1992 Report discussed above in Part D. The definition places
responsibilities to the forefront, and includes the responsibility to maintain
contact with the child within the definition of parental responsibility. It is
worth noting that the definition specifically states that the parent has the
responsibility to provide direction and guidance to the child in an age
appropriate manner.112 This is an attempt to deal with the objections raised in England and
Wales to a detailed statutory definition, namely that what would be appropriate
parental behaviour in respect of a young child would not be the same as what
would be required in relation to an older child.113
Section 1 of the Children (Scotland) Act 1995, headed “Parental
Responsibilities,” states:
“(1)
Subject to section 3(1)(b) and (3) of this Act, a
parent has in relation to his child the responsibility-
1.
to
safeguard and promote the child’s health, development and welfare;
2.
to
provide, in a manner appropriate to the stage of development of the child-
i.
direction;
ii.
guidance,
to the child;
3. if the child is not living with the
parent, to maintain personal relations and direct contact with the child on a
regular basis; and
4. to act as the child’s legal
representative,
but only
in so far as compliance with this section is practicable and in the interests
of the child…”
46.
The
use of the term “development” in the definition of parental responsibility and
the omission of the term “care” was the result of discussion in the Scottish
Law Commission’s 1992 Report. It was felt that a reference to care in the
definition might convey the impression that the parent with whom the child was
not living and therefore not being cared for by on a daily basis somehow had
less responsibility in respect of the child.114 Section 1(d) of the 1995 Act refers to the responsibility to act as the
child’s legal representative. This was seen as replacing the traditional
function of a legal guardian. The Scottish Law Commission noted that “it was
odd to define the parent’s role in terms of the guardian’s role, given that
parenthood was the primary relationship. Guardians are substitute parents, not
the other way around.”115 The effect of this is that parenthood is the primary concept, and
distinctions are then drawn between parents and those acting in loco
parentis.
47.
The
definition is also very clear in stating that any rights that parents possess
in respect of a child are in order to fulfil their responsibilities. This is
indicative of a much more child centred approach than the current terms used in
Ireland. Section 2 of the 1995 Act, headed “Parental Rights,” states:
“(1)
Subject to section 3(1)(b) and (3) of this Act, a
parent, in order to enable him to fulfil his parental responsibilities in
relation to his child, has the right-
1. to have the child living with him or
otherwise to regulate the child’s residence;
2. to control, direct or guide, in a
manner appropriate to the stage of development of the child, the child’s
upbringing;
3. if the child is not living with him,
to maintain personal relations and direct contact with the child on a regular
basis; and
4. to act as the child’s legal
representative.”
48.
As
can be seen from the above discussion many of the rights are corollaries of the
responsibilities. Section 2(a) provides a right to have the child reside with
the parent. Section 2(b) states that the parent has a right to “control,
direct, or guide” the child in an age appropriate manner. This can be
contrasted with section 1(b) which states that the parent has a responsibility
to provide “direction and guidance.” The reason for this apparent discrepancy
is connected to the fact that what is appropriate parenting depends on the age
of the child. Therefore, younger children may have to be controlled, but
perhaps direction and guidance would be more fitting for an older child. The
difference is also attributable to the different age limits that apply to
parental responsibilities and parental rights in Scotland. Parental rights only
apply to children under the age of 16. Parental responsibilities apply to
children under the age of 16, with the exception of section 1(b)(ii), which is the responsibility to provide guidance,
which applies to persons under the age of 18. The Scottish Law Commission
acknowledged in its 1992 Report that the existence of different age limits had
the effect of making the law less tidy. However, it stated “we think that the
reality of family life is that certain parental responsibilities of a
supportive, protective or advisory nature continue after the child attains the
age when he or she has considerable legal capacity and freedom of action.”116 This
appears to this Commission to be fully in accord with the UN 1989 Convention on
the Rights of the Child.
49.
Finally,
it is worth noting section 2(2) of the Scottish 1995 Act which states that
where two or more persons have parental rights in respect of a child:
“each
of them may exercise that right without the consent of the other or, as the
case may be, of any of the others, unless any decree or deed conferring the
right, or regulating its exercise, otherwise provides.”
The exception to this
is the decision to remove a child from the jurisdiction, which requires
consent.117 The
Commission is of the opinion that there are other matters, outside of removing
the child from the jurisdiction that would come within the terms of parental
responsibility which ought not to be done without consulting with any other
party with parental responsibility. Examples of this would be a decision to
change the child’s name or religion or to move the child to another school.
Failure to require some consultation with the other party in the exercise of
significant aspects of parental responsibility could create unnecessary
tension.
50.
Scotland
is not alone in adopting a very detailed definition of parental rights and
responsibilities. As noted above in Part D of this chapter New Zealand has
retained the term guardianship. However, the statutory definition of the term
included in the Care of Children Act 2004 is extremely detailed, and
highlights the corollary between rights and responsibilities in the context of
parenting. For this reason it is briefly set out at this point.
51.
Section
15 of the Care of Children Act 2004 states:
“For the
purposes of this Act, guardianship of a child means having (and therefore the
guardian of a child has), in relation to the child,-
1. All duties, powers, rights and
responsibilities that a parent of a child has in relation to the upbringing of
the child;
2. Every duty, power, right, and
responsibility that is vested in the guardian of a child by any enactment;
3. Every duty, power, right, and
responsibility that, immediately before the commencement, on 1st of January
1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by
an enactment or rule of law.
Section 16 of the 2004 Act states:
“(1) The duties, powers, rights, and responsibilities of a
guardian of a child include (without limitation) the guardian’s—
(a) having the role of providing day-to-day care for the child
(however, under section 26(5), no testamentary guardian of a child has that
role just because of an appointment under section 26); and
(b) contributing to the child’s intellectual, emotional,
physical, social, cultural, and other personal development; and
(c) determining for or with the child, or helping the child to
determine, questions about important matters affecting the child.
(2) Important matters affecting the
child include (without limitation)—
(a) the
child’s name (and any changes to it); and
(b) changes to the child’s place of residence (including, without
limitation, changes of that kind arising from travel by the child) that may
affect the child’s relationship with his or her parents and guardians; and
(c) medical treatment for the child (if that medical treatment
is not routine in nature); and
(d) where,
and how, the child is to be educated; and
(e) the child’s culture, language, and religious denomination
and practice.
(3) A
guardian of a child may exercise (or continue to exercise) the duties, powers,
rights, and responsibilities of a guardian in relation to the child, whether or
not the child lives with the guardian, unless a Court order provides otherwise.
(4) Court
order means a Court order made under any enactment; and includes, without limitation, a Court order that is made
under this Act and embodies some or all of the terms of an agreement to which
section 40(2) or section 41(2) applies.
(5)
However, in exercising (or continuing to exercise) the duties, powers, rights,
and responsibilities of a guardian in relation to a child, a guardian of the
child must act jointly (in particular, by consulting wherever practicable with
the aim of securing agreement) with any other guardians of the child.”
52.
This
definition of guardianship is even more detailed than the definition of
parental responsibility included in the Scottish 1995 Act. It is notable that
section 16(5) specifically mentions the requirement to consult with other
guardians of the child where it is practical to do so. This is not included in
the other statutory definitions examined. As noted above the Commission is of
the opinion that a consultation requirement in appropriate. However this should
not operate to stifle the exercise of guardianship/parental responsibility by
either parent.
53.
Having
examined the various approaches taken in other jurisdictions, the Commission
has provisionally concluded that a broad statutory definition of parental
responsibility should be adopted in Ireland. In terms of the specific elements
that would be associated with this term, the Commission invites submissions on
whether this should include a requirement to consult with other parties who
have parental responsibility for the child where it is practical to do so. The
Commission also invites submissions on whether there should be a single
parenting order to determine who should have day-to-day care of the child and
who should have contact with the child.
54.
The Commission provisionally recommends that a broad statutory
definition of parental responsibility should be adopted in Ireland. The
Commission invites submissions on whether this should include a requirement to
consult with other parties who have parental responsibility for the child where
it is practical to do so. The Commission also invites submissions on whether
there should be a single parenting order to determine who should have
day-to-day care of the child and who should have contact with the child.
55.
At
present a custody order determines who will be responsible for the day-to-day
care of the child. The proposed change in terminology from “custody” to
“day-to-day care” is intended to make this clear and to remove any current
confusion between custody and guardianship. As noted above there is currently
no statutory definition of the term “custody” in the family law context. The
Commission is of the opinion that it would be beneficial to include a statutory
definition of “day-to-day care” within the legislative framework.
56.
The Commission provisionally recommends that a statutory definition of
day-to-day care should be adopted in Ireland. The Commission invites
submissions on the precise wording of the definition.
57.
There
is currently no statutory definition of “access.” In line with the provisional recommendations
set out above the position of the Commission is that it would be beneficial to
include a statutory definition of the proposed replacement term, namely
“contact.” A statutory definition of contact should give effect to the current
understanding of contact as a right of the child rather than of the parent. It
may also be helpful for the purpose of clarity if the definition of contact
clearly stated that contact included both direct and indirect contact between
the child and the parent without day-to-day care.
58.
The Commission provisionally recommends that a statutory definition of
contact should be adopted in Ireland. The Commission invites submissions on the
precise wording of the definition.
59.
In
light of the above discussion on the need to update the terminology in use in
Ireland and the requirement to introduce a statutory definition of parental
responsibility, day-to-day care and contact into Irish law, the Commission
notes that the Guardianship of Infants Act 1964 has already been amended
a number of times, notably by the Status of Children Act 1987 and the
Children Act 1997. This has resulted in a complex legislative framework,
which would benefit from the enactment of a single Act that would incorporate
the terminology changes made in this Paper. In these circumstances the
Commission has provisionally concluded that it would be beneficial if the
recommendations made in the Consultation Paper were incorporated into a
consolidated Children Act, which would replace the Guardianship of
Infants Act 1964, as amended. This would contribute to the aim of making the
law governing the legal aspects of family relationships more accessible.
60.
The Commission provisionally recommends that the changes recommended in
this Consultation Paper be incorporated into a consolidated Children Act, which
would replace the Guardianship of Infants Act 1964, as amended.
61.
All
births in Ireland must be registered with the General Register Office under the
Civil Registration Act 2004. This ensures that there is an independently
verifiable record of all children born in the State. Birth registration serves
a number of purposes. The first is to ensure that the State has accurate data
on the numbers of people living in the country and their details. This is
useful for planning purposes. The second is to ensure that people know who
their parents are, and therefore have a sense of identity. This also has
implications for succession law. Linked to this is an understanding that an accurate
register of births ensures that people are aware of their relatives, which
assists to prevent people within the prohibited degrees entering into
relationships with each other. Entry of details onto the register of births is
also a trigger for a number of other factors, such as the payment of child
benefit allowance.118 A birth certificate is also required to apply for a passport. Part B of
this chapter examines the current procedure for registering the birth of a
child in Ireland. Part C discusses possible amendments to the process of birth
registration which would promote the right of the child to know his or her
identity and simplify the current procedure. Part D examines the operation of
the presumption of paternity in the case of a married couple. The Commission
notes that, at present, the relevant statutory provision is drawn too narrowly
with the result that inaccurate information is on occasion knowingly entered
into the register of births.
62.
Under
the Civil Registration Act 2004, the birth of every child in Ireland
must be registered within three months.119 The primary duty to do so rests with the parents, but if the parents
are dead or unable to register the birth due to ill health, a qualified
informant can provide the necessary information.120
Registration requires attendance in person at the office of a Registrar of
births, deaths and marriages, to give the necessary information, and to sign
the register in the presence of the Registrar.121 The Commission understands that certain preliminary details are taken
from the mother in the hospital, such as her name and the sex of the child.122
These are passed on to the office of the Registrar and operate as an
independent verification of the birth of the child and that the woman
registering the birth in fact gave birth to the child.
63.
The
Civil Registration Act 2004 contains the details to be recorded in the
register of births. These include the name, address and occupation of the
mother and the father, and any former surname(s) of both parents. It also
requires that the Personal Public Service (PPS) numbers of the child, the
mother and the father be recorded.123 While the details of both parents are listed in the schedule as
information to be recorded, the mother’s details do come first in the list and
there is no legal requirement to record the details of both parents. If a woman
who is not married wishes to register the birth of her child and chooses not to
provide information in relation to the father, there is no requirement for her
to do so. The Commission understands that in these circumstances a woman is
asked no questions in relation to the father of the child, on the basis that to
do so would be an invasion of her privacy. Whether this practice requires
reform is examined further in Part C.
64. Once the birth of a child is
registered an entry appears on the register of births. It is from this general
register that the information on birth certificates is taken. In the past it
was only possible to obtain a copy of a birth certificate in the county where
the birth was originally registered. However, following the centralisation and
computerisation of the register of births, it is now possible to obtain a copy
of a birth certificate from the office of any local Registrar. However, the
procedure is somewhat different in relation to children who have been adopted.
Original copies of a birth certificate are not issued to persons who have been
adopted.124 Instead
a certificate is issued which provides the information entered on the Adopted
Children Register. For legal purposes this has the same status as a birth
certificate125 and
provides the date of birth and the names and addresses of the adoptive parents
of the child. The Adopted Children Register is maintained by the General
Register Office in accordance with section 22 of the Adoption Act 1952.126 A
certified copy of an entry into the Adopted Children Register can only be
obtained from the General Register Office and not from any other local
Registrar’s office. Concerns have been raised that this operates to
discriminate against people who are adopted, as they alone are required to make
an application to the central office.127 However, the rationale for this position is that the security and
confidentiality of the information contained in the register is paramount and
this can best be guaranteed by continuing the statutory scheme whereby the
Registrar General has sole responsibility for this information.128 The
Commission notes that the Adoption Bill 2009 is currently
(September 2009) before the Oireachtas and therefore proposes not to make any
recommendation on this matter at present.
65.
Where
the parents of a child are married there is a statutory presumption that the
husband is the father of the child. The operation of this presumption is
discussed in greater detail below in Part D of this chapter. In these
circumstances either the mother or the father of the child, or both together,
can attend at the office of the Registrar to register the birth and to provide
the necessary information. Due to the operation of the presumption, most
marital births registered include the names of both parents.
66.
A
more complicated procedure applies where the parents of the child are not
married and wish to include the names of both parents on the birth certificate
and in the register of births. Section 22(1) of the Civil Registration Act
2004 states that a father who was not married to the mother of the child
“at the date of his or her birth or at any time during the period of 10 months
before such birth shall not be required to give information under this Act
about the birth.”
67.
If
a person129
wishes to be registered on the birth certificate of a child as the father there
are four options available. The first is for the mother and the person to
jointly register the birth.130 The request for joint registration must be made to the Registrar in
writing and the person must sign a declaration that he is the father of the
child. The second is for the mother to request in writing that the person be
registered. This must be accompanied by a written declaration of the mother
that the person is the father of the child and a statutory declaration by the
person that he is the father of the child.131 The third option is for the person to make an application in writing to
the Registrar, accompanied by a declaration that he is the father and a
statutory declaration from the mother stating that he is the father of the
child.132 The
fourth option arises if the mother or the person request in writing that the
person be registered as the father of the child on foot
of a court order finding that the person is the father, in which case the
person will be registered as such.133 This provision states that the court order must relate to proceedings
referred to in section 45 of the Status of Children Act 1987. This
primarily relates to applications for guardianship or maintenance.134 The
party making the application must produce a certified copy of the court order
to the Registrar. In these circumstances the Registrar is required to notify
the other party of the application.135 The Commission understands that the practice currently in place is to
allow a 28 day period for the other party to make submissions before the birth
is re-registered with the additional details of the other parent.136 Such
submissions may be to the effect that the decision of the court is under
appeal. If the birth of the child is registered in accordance with one of the
above mentioned procedures, then the register is to be signed by the mother if
she has made, or joined in the making of the application, and the father, if he
has made or joined in the making of the application.137
68.
The
effect of these provisions is that it is logistically complicated to register a
birth to include the names of both parents in circumstances where the parents
are not married. Either both parents must be available to attend at the
Registrar’s office, or both must to be in a position to write and sign the
necessary declarations. This may explain in part the significant numbers of
non-marital births in Ireland which are not registered with the names of both
parents. This is discussed in further detail in Part C.
69.
The
above provisions apply where the father wishes to be registered as such at the
point of initial registration of the birth. It is also possible for a birth to
be re-registered to include the details of the father where this information
was not provided when the birth was first registered. This may occur if, for
example, the mother initially registered the birth alone in order to ensure
prompt payment of social welfare because the father was not available to attend
the Registrar’s office, and subsequently the couple wish to include his details
on the register. Re-registration is provided for in section 23 of the Civil
Registration Act 2004. The procedures are the same as those where a birth
is initially registered by parents who are not married. However, a
re-registration requires the approval of a Superintendent Registrar. The
Commission understands that where a birth is re-registered the original entry
in the register remains, but all copies of birth certificates are written from
the new entry with the names of both parents, and possibly also the new surname
of the child.
70.
If
a birth is re-registered in accordance with section 23 of the 2004 Act it
cannot be further re-registered. The one exception to this is where the child
is legitimated as a result of the parents getting married. This is provided for
in section 24 of the 2004 Act, which also allows for a re-registration of the
birth if the birth was previously registered solely with the mother’s name.
There is a duty on the parents to provide the Registrar with the information
necessary to re-register the birth within three months of the date of the
marriage.138 The
Registrar must be satisfied that he or she has sufficient information to
re-register the birth, and any such re-registration must be with the consent of
a Superintendent Registrar. If the parent or parents fail to re-register the
birth following the marriage, the Registrar can require them to attend at the
office of the Registrar within 14 days of receipt of notification to
re-register the birth where he or she believes that the child has been
legitimated.139
However, section 24(6) specifically states that a failure by the parents to re-register
the birth will not affect the legitimation of the child. The effect of
legitimation for the father is that he would then have automatic
guardianship/parental responsibility rights in relation to the child, although
this is in no way connected to the act of re-registering the birth to include
his name on the birth certificate.
71.
Having
set out the legal requirements for registering the birth of a child and noting
some of the difficulties with the procedure in place, the Commission turns to
examine these difficulties in greater detail and to explore some possible
options to improve the current provisions.
72.
There
is a significant level of confusion surrounding the consequences of registering
the birth of a child. In the context of non-marital births there continues to
be a belief that placing the name of the father on the birth certificate will
result in the father being made guardian (having parental responsibility) in
respect of the child. Although this is not accurate, the Commission understands
that in many cases it is the reason why mothers, and also some fathers, elect
not to put the father’s name on the birth certificate. Some mothers do not wish
the father to have guardianship rights/parental responsibility in relation to
the child, believing that it weakens their rights, and some fathers do not wish
to take full responsibility for the child, in particular financial
responsibility. The Commission is of the view that neither of these reasons is
sufficient to deny the child the right to know his or her identity.
73.
There
is also a belief that putting the father’s name on the birth certificate will affect
social welfare payments to the mother. In fact, however, child benefit
allowance will be paid to the mother of the child with or without the father’s
name on the birth certificate. The potential impact on social welfare payments
appears to be an area of concern in many cases when parents are registering the
birth of a child. The Commission understands that there are situations where
neither parent has any objection to the father’s name being recorded on the
birth certificate, but that this is not done when the birth is initially
registered because the father is not present at the time, and the mother wishes
to complete the registration as soon as possible in order to activate social
welfare payments, such as child benefit. In these circumstances it may well be
the intention of the parties to register the father’s name at a later date, but
they never do so. One-parent family allowance is payable to a parent bringing
up a child alone without the support of a partner. If a couple is co-habiting
there is no entitlement to one-parent family allowance. If a couple is not
co-habiting there is a requirement that the parent with day-to-day care of the
child seeks maintenance from the other parent before qualifying for one-parent
family allowance. The presence of the name of the father on the birth
certificate of the child will not in itself mean that a parent will not obtain
one-parent family allowance.
74.
The
numbers of births registered in Ireland without the father’s name appearing on
the birth certificate is quite high. In 2008 76,113 births were registered in
total and 4,102, or 5.4%, of these did not include the name of the father.
However, these figures refer to all births registered, and so include births
registered by married parents, where it is less common for the father’s name
not to be on the birth certificate. On average in Ireland 30% of all births are
to non-marital parents and the Commission understands that among this group the
numbers of birth certificates without the father’s name is much higher, although
statistics on the exact numbers are not available. The Commission understands
that the figure is generally estimated at 20% of non-marital births which are
registered with only the name of the mother. This is a significant number of
children who do not have all the information in relation to their heritage.
75.
The
Commission considers that a child has a right to know his or her identity and
part of this is being aware of who his or her parents are. In order to ensure
that as many children as possible have this opportunity it is necessary to
encourage people to include both the name of the mother and the
father on the birth certificate of a child when registering the birth.
76.
Recent
legislative developments in family law in England and Wales,140
Scotland141 and
Northern Ireland142 have
resulted in the introduction of a link between the registration of the birth of
a child and parental rights and responsibilities. In each of the UK
jurisdictions if both parents who are not married jointly register the birth of
the child, the father will have automatic parental responsibility rights and responsibilities.
The detail of the relevant statutory schemes in operation is discussed in
Chapter 3 in the context of a discussion on the responsibilities and rights of
non-marital fathers. It is worth noting that these provisions were introduced
in recognition of the fact that most non-married couples in the UK were already
jointly registering the birth of a child in the understanding that this
conferred rights on the father. The aim was to bring the law in line with what
was happening in practice. For example, the numbers of births registered with
only the mother’s details in England and Wales is approximately 7%, which is
considerably lower than the estimated 20% in Ireland.
77.
The
Commission understands concerns that any move to link birth registration with
guardianship/parental responsibility in Ireland could result in even greater
numbers of sole registrations. At present the unfounded belief that
registration is linked to rights and responsibilities is one of the primary
reasons that both names are not placed on the birth certificate. This is
undesirable as it is not in the best interests of the child and does not
respect the right of the child, as expressed in international instruments, to
know his or her identity. In this context the Commission is of the opinion
that, for the time being at least, it is appropriate to retain the distinction
between birth registration and the allocation of guardianship/parental
responsibility.
78.
The Commission provisionally recommends that the distinction between
birth registration and the allocation of guardianship/parental responsibility
should remain.
79.
As
already indicated, the Commission’s justification for retaining a distinction
between birth registration and the allocation of guardianship/parental
responsibility is a pragmatic one, to prevent greater numbers of births in
Ireland being registered with only the mother’s details. The Commission is of
the view, however, that if the distinction is to remain, greater efforts must
be made to encourage joint registration of the birth of a child in order to
provide some practical expression of the right of the child to know his or her
identity. Three proposals to achieve this are set out below.
80.
In
Ireland the presence of the name of the father of the child on the birth
certificate confers no rights or responsibilities on him. Guardianship/parental
responsibility is allocated to non-marital fathers by
court order143 or
by agreement with the mother and the signing of a statutory declaration.144 This
is discussed in greater detail in Chapter 3. However, there is no requirement
for the father’s name to be on the birth certificate of the child prior to
making an application to court for guardianship/parental responsibility or
before signing a statutory declaration.
81.
The
Civil Registration Act 2004 is silent on the fact that the registration
of the birth of the child does not result in guardianship/parental
responsibility. The General Register Office provides an information leaflet,
which is also available online, setting out the procedure involved in
registering a birth and the function of a birth certificate.145 The
leaflet does not contain any statement that the joint registration of the birth
of the child does not lead to automatic guardianship/parental responsibility
for the non-marital father. Equally, there is no statutory requirement for the
Registrar to inform a person of the consequences of the registration of a birth
and the Commission understands that there is no practice in place requiring a
Registrar to provide this information to a parent registering the birth of a
child.
82.
In
the context of significant numbers of births being registered without the
father’s name on the birth certificate, the Commission considers that it may be
helpful to include a clarification in the statutory provisions to the effect
that there is no link between joint registration of a birth and the allocation
of guardianship/parental responsibility. It is not unusual for a statute to
contain such statements and clarifications. Section 47 of the Status of
Children Act 1987 includes a clarification that a spouse can give evidence
that sexual intercourse did not take place for the purpose of rebutting the
presumption of paternity. This was included as the common law previously did
not allow for such testimony. Similarly, section 11A of the Guardianship of
Infants Act 1964, inserted by section 9 of the Children Act 1997,
states:
“For the avoidance of
doubt, it is hereby declared that the court, in making an order under section
11, may, if it thinks it appropriate, grant custody of a child to the child’s
father and mother jointly.”
1.
If
there was a statutory statement to the effect that joint registration of a
birth did not give rise to guardianship/parental responsibility, this could
also be included in information leaflets. The inclusion of such a statement in
the legislation may also draw attention to it as an issue to be addressed by
Registrars when a parent comes in to register the birth of a child. The Commission
therefore invites submissions on whether this clarification should be put in
place.
2.
The Commission invites submissions on the development of a statutory
clarification that joint registration of a birth does not give rise to
automatic guardianship/parental responsibility rights in relation to the child.
1.
At
present a birth to a married couple can be registered by either parent alone,
or both jointly. A birth to a couple who are not married can be registered by
both jointly, or by one or the other, provided there is written evidence of the
consent of the other party. A non-marital mother can register the birth of a
child on her own, and without entering the details of the father on the birth
certificate. A non-marital father cannot do this. There is no requirement for a
mother to provide information on the father of the child. In some cases the
mother may not be aware of who the father is, or may not be able to provide all
the necessary information required by Schedule 1 of the Civil Registration
Act 2004. However, in most cases the mother of the child is aware of who
the father of the child is.
2.
Given
that the statutory provisions allow a non-marital mother to register the birth
on her own, there is no requirement for the Registrar to make enquiries in
relation to the details of the father. The Commission understands that there is
also no practice in place within the General Register Office to the effect that
a mother would be asked if she wished to record the father’s name on the birth
certificate. The Commission understands that this is on the basis that to do so
would be an invasion of the mother’s right to privacy. The Commission considers
that there is, in fact, a need to balance the privacy rights of the mother with
the right of the child to know his or her identity. On this basis, the
Commission is of the view that asking a mother who comes in alone to register
the birth if she wishes to include the father’s details on the birth
certificate would not involve skewing the balance too far in favour of the
rights of the child to the detriment of the privacy rights of the mother. If
this question was coupled with a brief explanation of the consequences of
registration, namely that it will not result in parental responsibility rights
but that it is in the best interests of the child to know both parents, it may
operate to encourage greater numbers of joint registrations.
3.
At
present it is possible for a birth that was initially registered with only the
mother’s name to be re-registered subsequently to include the name of the
father.146 The
Commission understands that this provision is not brought to the attention of a
mother who is registering the birth alone at the time of initial registration.
In 2008 4,102 births were registered without the details of the father. In the
same year 1,003 births were re-registered to include the father’s details,
although 508 of these re-registrations were births that had originally been
registered pre-2008. Therefore 495 births which were originally registered with
just the mother’s details were re-registered within the same year to include
the father’s details. The Commission understands that in many instances couples
are informed of the importance of including the father’s name on the birth
certificate by, for example, public health nurses or groups such as the
Citizen’s Information Board, Treoir (the National Federation of Services for Unmarried
Parents and their Children) and the Free Legal Advice Centres (FLAC). The
Commission understands that the General Register Office does not send a follow
up letter to the parent of a child who has only one name on the birth
certificate reminding them of the possibility of re-registering the birth.
4.
In
this respect, the Commission considers that it may be appropriate to impose new
duties on the General Register Office but, at this point, has not reached a
view on these matters and therefore invites submissions on them.
5.
The Commission invites submissions on whether it would be appropriate to
impose a statutory duty on a Registrar to make enquiries of a mother who comes
in alone to register the birth of a child if she wishes to include the father’s
details on the birth certificate. The Commission also invites submissions on
whether there should be a statutory duty on a Registrar to inform the mother of
the option of re-registering the birth at a later stage to include the father’s
details.
1.
There
are currently proposals in England and Wales to introduce compulsory joint
registration of a birth. This was first set out in a 2008 Government White
Paper Joint birth registration: recording responsibility147 and
has since been incorporated into Part 4 of the Welfare Reform Bill 2009.148 The
2009 Bill has not yet been enacted, but the core provisions are briefly set out
below.
2.
The
2008 White Paper states that every year in England and Wales up to 45,000, or
7%, of birth registrations do not contain the name of the father.149 In
order to increase the numbers of joint registrations it was proposed that joint
registration would be a legal requirement for all unmarried parents unless this
was deemed to be “impossible, impracticable, or unreasonable.”150 The
reasoning behind this proposal was a belief that joint registration promotes
child welfare and parental responsibility.151 However, it was emphasised that sole registration would still be
permitted and that the concerns of vulnerable mothers and children would be
taken into consideration. It is important to be aware that the consequences
flowing from joint registration in England and Wales are more significant than
in Ireland. Joint registration of the birth of a child in England and Wales
leads to automatic parental responsibility for the father.
3.
The
existing legislation in England and Wales provides for non-marital fathers to
be registered on the birth certificate with the co-operation of the mother or
with a court order confirming paternity.152 This is similar to the situation in Ireland. The expectation is that
the majority of births will continue to be joint registrations where the
parents are co-operating.153 However, in recognition of the fact that this is not always possible,
the Welfare Reform Bill 2009 would expand the ways a non-marital father
could be registered without the consent of the mother, including where a paternity
test carried out by an accredited body confirms that he is the father.154 The
2009 Bill proposes that a mother will generally be required to provide the
father’s details to the Registrar, the Registrar will then contact the father
and confirm that he is the father and register his details.155 The
2009 Bill would also allow a non-marital father to independently provide his
details to the Registrar, and subject to the mother acknowledging that he is
the father his details would be entered on the register. The detail of the
operation of the procedure is to be included in regulations.
4.
The
2009 Bill continues to allow for sole registration by the mother where the
father has died, where she does not know the identity of the father of the
child, or his whereabouts. The Bill also provides for sole registration by the
mother where the father lacks capacity within the meaning of the Mental
Capacity Act 2005 and also where she fears that her safety or the safety of
her child would be compromised were the father to be contacted.156
There is also a provision for a sole registration where the child is deemed to
have no father within the meaning of section 41 of the Human Fertilisation
and Embryology Act 2008. The Commission has not, as yet, reached a view on
this matter but invites submissions on whether it would be appropriate to
introduce compulsory joint registration of the birth of a child in Ireland; and
on whether a non-marital father should be able to provide his details
independently to the Registrar, to be registered once it is confirmed that he
is the father.
5.
The Commission invites submissions on whether it would be appropriate to
introduce compulsory joint registration of the birth of a child in Ireland. The
Commission also invites submissions on whether a non-marital father should be
able to provide his details independently to the Registrar, to be registered
once it is confirmed that he is the father.
1.
Most
of the discussion in this chapter has focused on the procedure to register both
parents on the birth certificate where they are not married to each other. As
noted at the beginning of the chapter, the legal requirements are more
straightforward where the parents are married to each other. However,
complications arise where the mother is married, but not to the father of the
child. The law in Ireland operates a presumption that where a couple is married
and the wife has a child, the husband is the father of that child. In the
majority of cases this is an accurate reflection of the facts. The detail of
the statutory presumption is provided for by section 46(1) of the Status of
Children Act 1987 which states that:
“Where a woman gives
birth to a child-
1.
during
a subsisting marriage to which she is a party, or
2.
within
the period of ten months after the termination, by death or otherwise, of a
marriage to which she is a party,
then the husband of the marriage shall
be presumed to be the father of the child unless the contrary is proved on the
balance of probabilities.”
The meaning of a
“subsisting marriage” is further clarified in section 46(4) of the 1987 Act
which states:
“For the purpose of subsection
(1) of this section “subsisting marriage” shall be construed as including a
voidable marriage and the expression “the termination, by death or otherwise,
of a marriage” shall be construed as including the annulment of a voidable
marriage.”
1.
The
effect of this provision is that if a child is born one month after a couple
get married the husband is presumed to be the father. This will be the case
even where the married couple did not know each other when the child was
conceived. If the child is born more than ten months after the husband dies or
the couple divorce, the presumption will not apply. In this situation the
mother can register the birth in the same way as a non-marital mother,157 but the Registrar will require that she produce the death certificate
of her husband or a certified copy of her decree of divorce.158
2.
The
presumption can be rebutted using the civil standard of proof, the balance of probabilities.
Prior to this the common law required proof “beyond a reasonable doubt” that
the husband was not the father.159 The presumption can be rebutted in two ways. First, if the mother can
produce a statutory declaration signed by her husband stating that he is not
the father of the child. Second, if the mother signs a statutory declaration
stating that she comes within one of the statutory exceptions and this
declaration is accompanied by the necessary documentation.160
3.
Section
46(3) of the Status of Children Act 1987 provides that where the name of
a man is recorded in the register of births as the father of the child then he
is presumed to be the father. Shatter states that this presumption will prevail
even where the mother is married and a person other than her husband is named
as the father.161 This
could occur where the marital presumption was satisfactorily rebutted. The
presumption that the man listed on the birth certificate as the father of the
child is in fact the child’s father will operate unless “the contrary is proved
on the balance of probabilities.”162
4.
There
are benefits to the operation of the presumption of paternity, chief among
these being that it removes the necessity for a man to prove he is the father
of a child. This would be an extremely costly and time consuming process and
for the most part it would merely serve to confirm that the husband, in the
context of the marital presumption, is in fact the father of the child.
Therefore, the Commission is not of the view that the presumption should be
abolished completely. However, the operation of the marital presumption raises
difficulties due to the narrow nature of the exceptions as they currently
apply.
1.
The
statutory exceptions, set out in section 46(2) of the Status of Children Act
1987, provide that the presumption will not apply where:
“a
married woman, being a woman who is living apart from her husband under-
1.
A
decree of divorce a mensa et thoro163 or
2.
A
deed of separation,164
gives birth to a child more than ten
months after the decree was granted or the deed was executed, as the case may
be, then her husband shall be presumed not to be the father of the child unless
the contrary is proved on the balance of probabilities.”
100.
Both
of the statutory exceptions set out above are no longer in widespread use
following the introduction of divorce165 and judicial separations.166 In recognition of this section 22(3)(b) of the Civil Registration
Act 2004 states that a person can be registered as the father of the child
even if the mother is married to another person at the time, or was married
during the period of ten months before the birth, where the mother produces to
the Registrar:
“a statutory
declaration of the mother, in a form standing approved for the time being by an
tArd-Chláraitheoir [General Registrar], that she has been living apart from the
person who is or any person who formerly was her husband during the period of
ten months ending immediately before the birth of the child by virtue of a
decree of divorce, a decree of divorce a mensa et thoro, a decree of
nullity or a deed of separation.”
102.
The
existence of a barring order will not trump the presumption, although the
effect of this is intended to ensure that there is no contact between the
parties. If a married couple are living separate and apart with the intention
of obtaining a decree of divorce,167 but
the divorce has not yet been granted, the presumption that the husband is the
father of a child will apply. If the woman’s husband has deserted her, is in
prison, or has been abroad for a ten month period he will nevertheless be
presumed to be the father. The Commission understands that it is currently the
practice that, where the mother of the child informs the Registrar of Births
that her husband is not the father and that another man is in fact the father,
the Registrar will enter the husband’s name on the birth certificate unless the
presumption is rebutted in accordance with the statutory exceptions or where
the husband signs a statutory declaration that he is not the father.
103.
The
Commission understands that there are situations where a married couple have
been separated for considerable periods, as long as 20 years, and the woman may
not even know where her estranged husband is. Yet, if there is still a legally
subsisting marriage, and the husband has not signed a statutory declaration
stating that he is not the father,168 the
presumption applies and the husband’s name will be entered on the birth
certificate and into the register of births as the father of the child. This
results in a situation (a legal fiction) which denies the child the right to
know his or her identity. It also denies the biological father of the child his
right to apply for guardianship/parental responsibility in respect of the
child. In many of these cases the Commission understands that the biological
father of the child is involved in the child’s life. Furthermore, the current
operation of the presumption attaches guardianship/parental responsibility to a
man who has no connection to the child and may not even be aware of the
existence of the child. None of the above consequences can be said to be in the
best interests of the child. The Commission has provisionally concluded in this
respect that the presumption of paternity in the context of married couples
should be retained, but that the existing statutory exceptions should be
extended, and invites submissions on the detailed nature of the extensions.
104.
The Commission provisionally recommends that the presumption of
paternity in the context of married couples should be retained, but that the
existing statutory exceptions should be extended, and invites submissions on
the detailed nature of the extensions.
105.
As
noted in the Introduction, Irish family law confers different rights and
responsibilities on marital fathers and non-marital fathers. A marital father
automatically has guardianship/parental responsibility rights in respect of his
child. These rights and responsibilities remain even if the father is no longer
married to the mother of the child. In contrast, a non-marital father is not
entitled to automatic guardianship/parental responsibility. There are
provisions in place to extend guardianship/parental responsibility to non-marital
fathers: by court order169 or by agreement with the mother in the form of a signed statutory
declaration.170 The
retention of this distinction between marital and non-marital fathers is a
fundamental issue in the context of a discussion on family relationships, and
the Commission examines the core arguments for and against this below. Part B
of this chapter briefly sets out the previous work of the Commission which made
recommendations on the rights of non-marital fathers. In Part C the Commission
discusses the current provisions for non-marital fathers to obtain
guardianship/parental responsibility in Ireland. Following this, the Commission
examines possible options for extending guardianship/parental responsibility to
non-marital fathers. Part D discusses the Australian system of automatic
parental responsibility for all parents. Part E examines joint registration of
the birth of the child as a means of securing guardianship/parental
responsibility. This has been adopted in a number of common law jurisdictions
in recent years.
106.
The
Commission’s 1982 Report on Illegitimacy recommended that the concept of
illegitimacy should be removed from Irish law and, as already mentioned, this
was implemented through the enactment of the Status of Children Act 1987. The
Commission noted that there was a body of case law confirming that illegitimate
children were entitled to constitutional protection as children.171 This
existed even though an illegitimate child and his or her natural parents did
not form a family within the meaning of Article 41 of the Constitution.172 The
Commission concluded:
“that, so far as the rights of children are
concerned, it is unjust for the law to distinguish between children on the
basis of the marital status of their parents.”173
The Commission recognised
that the effect of this would be to impact on the law relating to guardianship
as it was then formulated. The Commission recommended that a legal relationship
should arise between parent and child regardless of the circumstances of
conception174 and
“should not be subject to any exceptions or prior conditions.”175 The
Commission also noted that if the abolition of the concept of illegitimacy was
to be meaningful “rather than cosmetic” it was necessary to enact a provision
by which a non-marital father would automatically become a joint guardian of
the child with the child’s mother.176 The Commission acknowledged the counter-arguments177 but
ultimately recommended that “both parents of children should be joint guardians
of the children, whether they are born within or outside marriage.”178 This
was a very strong declaration in favour of the rights of non-marital fathers
and was recognised by the Commission as a radical proposal.179
107.
While
the Commission’s key recommendations in the 1982 Report on ensuring equal
treatment for children born to parents who were not married were enacted
in the Status of Children Act 1987,180 the recommendation on automatic guardianship rights for all parents has
not been. This reluctance to extend full parental rights and
responsibilities to all fathers regardless of marital status has been echoed in
other countries. Both the English and Scottish Law Commissions recommended
automatic guardianship rights for non-marital fathers in the past, but to date
these recommendations have not been implemented.181 The
view underpinning this was articulated in the 2005 Report of the New Zealand
Law Commission New Issues in Legal Parenthood. It notes that:
“a
marriage, civil union or a statutorily defined de facto relationship has
a level of commitment assumed within it, which distinguishes it from other
sexual relationships. Their greater permanence suggests more commitment and
fidelity, and hence reliance can be placed on a presumption (of paternity).”182
108.
Thus,
many countries have adopted various thresholds to identify fathers with an
intention to parent for the purposes of allocating parental responsibility.
England and Wales,183 Scotland,184
Northern Ireland185 and
New Zealand186 have
opted for joint registration of the birth of the child. New Zealand has also
extended the automatic guardianship that applies to married parents to fathers
in heterosexual civil partnerships and to fathers in a statutorily defined de
facto relationship with the child’s mother.187 Australia is an exception in that it provides for automatic parental
responsibility for all parents,188 and
therefore does not distinguish between fathers or operate a threshold
requirement. Each of these is discussed in greater detail below. The issue
under discussion by the Commission in this chapter is whether Irish law should
continue to distinguish between categories of fathers for the purpose of
parental responsibility and, if so, what criteria must a non-marital father
satisfy in order to obtain legal rights and responsibilities in respect of his
child.
109.
There
are currently two procedures in place to secure guardianship/parental
responsibility for a non-marital father. Where both parents are in agreement
they can sign a statutory declaration. If the issue of guardianship/parental
responsibility is contentious, the father can apply to court for an order
granting him guardianship rights. Guardianship rights arising from either of
these procedures can be revoked by court order. This is another distinction
between marital and non-marital fathers. The guardianship rights of a marital
father cannot be removed even if he has been shown to be unsuitable to have
custody/day-to-day care of the child or to have unsupervised contact/access.
This distinction also exists in England and Wales. The UK Lord Chancellor’s
Department, in the course of recommending automatic parental responsibility for
all fathers, questioned whether a procedure should also be introduced to allow
parental responsibility to be removed from marital parents. It was argued that
as long as this distinction remained there would continue to be discrimination
against non-marital fathers. However, this suggestion was rejected as being
undesirable.
110.
The
right to apply to court for an order of guardianship is set out in section 6A
of the Guardianship of Infants Act 1964, as inserted by section 12 of
the Status of Children Act 1987. It is important to highlight that this
is a right to apply for guardianship and does not amount to a right to be appointed
a guardian of the child. This was confirmed by the Supreme Court in J.K. v
V.W.189 The
court will take a number of matters into consideration when deciding whether to
grant an order of guardianship. In W.O'R. v E.H. and An Bord Uchtála190 the
Supreme Court considered the importance of the genetic link between the father
and the child, but concluded that this alone would not give rise to an order of
guardianship. However, the Court suggested that where the birth resulted from a
stable relationship and the child was cared for by both parents the father was
in a strong position in respect of an application for guardianship. Shannon
states that:
“[t]he blood link, combined with the interest and concern that arose
from the father’s close connection to the child, might give rise to more
substantial rights in respect of the child.”191
Among the factors that
the court will consider in an application for guardianship are: “the
circumstances surrounding the birth of the child; the relationship between the
parents; the way in which parental responsibilities have been shared to date;
and the history of access up to the date of the application.”192
However, Shannon notes that there are no clear statutory guidelines in place to
inform non-marital fathers or their legal advisers of the factors that will be
taken into account by the court in deciding whether or not to make a
guardianship order.193
110.
In
2008, there were 2,448 applications for guardianship by non-marital fathers.194 This
was up from 1,962 such applications in 2007.195 Of those 2,448 applications 1,802 were granted. Of the 646 remaining
applications, 363 were withdrawn or struck out by the court. The figure for
applications which were refused by the court stands at 283 or 11.56% of all
applications by non-marital fathers for guardianship.196 This
is an increase on the figures for 2007 where only 51 or 2.59% of applications
were refused, and in 2006 the figure for applications refused was 42 or 3.31%.
It is not clear why there were a greater percentage of refusals in 2008.
Nevertheless the general trend illustrates that although there is not an
absolute right on the part of non-marital fathers to guardianship of a child,
for the most part where a non-marital father does indicate a desire to parent
the child and to play a significant role in the life of the child, this will be
possible even if the mother objects.
111.
It
would therefore seem that in practice the courts operate a presumption that a
non-marital father who makes an application for a guardianship order should be
successful, unless there are strong reasons why he should not be in the
position of a guardian. The Commission suggests that it would be helpful to
place this operational presumption on a statutory footing. In New Zealand
section 19(4)(a) of the Care of Children Act 2004 provides that where a
non-marital father makes an application for guardianship:
“the
Court must appoint the father as a guardian of the child, unless to do so would
be contrary to the child’s welfare and best interests.”
This reflects the
statement of Inglis J in the New Zealand Family Court in W v R that a
father whose relationship with the mother:
“has been more than
fleeting and who wishes to play a part in the child’s life can ordinarily be
expected to be appointed as a guardian unless he is for some grave reason unfit
to be a guardian or unless he is unwilling to exercise the responsibilities of
a guardian and subject to the paramount considerations of the welfare of the child.”197
This judicial
pronouncement from New Zealand appears to describe the practice in the Irish
courts in relation to this matter. The Commission has accordingly provisionally
concluded that a statutory presumption that a non-marital father be granted an
order for guardianship/parental responsibility should be introduced, unless to
do so would be contrary to the best interests of the child or would jeopardise
the welfare of the child
112.
The Commission provisionally recommends the introduction of a statutory
presumption that a non-marital father be granted an order for
guardianship/parental responsibility unless to do so would be contrary to the
best interests of the child or would jeopardise the welfare of the child.
114.
Where
the couple are in agreement that the father should have guardianship/parental
responsibility, there is a straightforward system in place to secure this
status. Section 2(4) of the Guardianship of Infants Act 1964, as
inserted by section 4 of the Children Act 1997, provides for the making
of a statutory declaration conferring guardianship rights on the non-marital
father. The procedures for making the declaration are set out in the Guardianship
of Children (Statutory Declarations) Regulations 1998.198 The
parties are required to have made arrangements in relation to the custody of
and access to the child.199 The statutory declaration must be signed and witnessed by a practicing
solicitor, a Peace Commissioner, a Commissioner for Oaths or a Notary Public.
If there is more than one child of the relationship it is necessary to make a
separate statutory declaration in respect of each child.200
115.
At
present there is no central register of statutory declarations conferring
guardianship rights. On the face of the statutory declaration, attention is
drawn to the fact that it is “an important document and on completion should be
kept in a safe place.” However, there is no independently verifiable process to
discover if a non-marital father has guardianship of his child by virtue of an
agreed statutory declaration. This could cause difficulties in situations where
there is a dispute between the parties as to the status of the father, and it
is not possible to locate a copy of the signed declaration. The absence of such
a register also means that there are no statistics recording the numbers of
statutory declarations agreeing guardianship in existence.
116.
In
2009, the Courts Service’s Family Law Reporting Project Committee recommended
the development of a central register for joint guardianship agreements.201 The
Committee stated that a central repository of these agreements would serve
three purposes. First, it would ensure that an official copy of the agreement
could be obtained when necessary. Second, it would provide proof that such an
agreement was made and that the non-marital father had guardianship/parental
responsibility if the parents’ copy was lost or destroyed. Thirdly, it would be
a useful source of information for policy makers on the number of fathers who
obtain guardianship/parental responsibility through making a statutory
declaration.202
Therefore the Committee recommended that the Civil Registration Act 2004 be
amended so that such a register could be created. The Committee also suggested
that this register would be maintained by the General Register Office.
117.
The
Commission understands that some concern may arise if the General Register
Office was to be given responsibility for a central register of statutory
declarations agreeing guardianship/parental responsibility if the system was an
optional one. The primary purpose of the General Register Office is to keep an
independent record of facts relating to births, deaths and marriages and there
may be a difficulty in confirming the evidential basis of an optional register
of statutory declarations.
118.
England
and Wales also operates a system of parental responsibility agreements. This is
provided for by section 4(1)(b) of the Children Act
1989. The agreement must be in a prescribed form and it must be recorded in
a prescribed manner as set out in the Parental Responsibility Agreement
Regulations 1991.203 Initially the system was relatively informal, merely requiring that the
agreement be signed by both parents, witnessed, and filed in the Principal
Registry of the Family Division. However, it was noted that there were
difficulties with this, with some agreements being filed with forged
signatures.204
Therefore a new procedure was introduced by which the parents must take the
completed form to a local family proceedings court, or a county court, or to
the Principal Registry. At this point a justices’ clerk or an authorised court
officer will witness the parents’ signatures and will sign the certificate of
the witness. The completed form, with two copies, must then be submitted to the
Principal Registry. Sealed copies of the form are returned to the parents, and
the record is open to public inspection. There is no fee for the formal
recording of the statutory agreement, but there is a fee for those who wish to
inspect the record.
119.
The
Commission believes it is important to encourage as many non-marital parents as
possible to make a statutory declaration agreeing guardianship/parental
responsibility. This is in the best interests of the child and also confirms
the rights of the father in relation to his child. Therefore the Commission is
hesitant to recommend any measure which would have the effect of making it more
difficult for parents to do so. The procedure currently in place in England and
Wales appears to be extremely formal, which might operate as a disincentive to
many parents. This is probably not a matter of concern in England and Wales
following the introduction of joint registration of the birth as a means of
securing parental responsibility.205 However, the existence of a central register of such agreements has
much to recommend it.
120.
The
Commission has provisionally concluded that a central register should be
established in Ireland to keep account of the existence of statutory
declarations agreeing guardianship/parental responsibility. The Commission also
considers that the development of a targeted awareness programme would assist in
increasing the numbers of parents making statutory declarations agreeing
guardianship/parental responsibility. In this respect, the Commission has
already provisionally recommended (see Chapter 2) an increased role for
Registrars of Births in providing information to new parents seeking to
register the birth of a child. Information on the existence of and effects of
making a statutory declaration could also usefully be provided at this point.
The Commission invites submissions on whether the proposed register should be
managed by the General Register Office and also whether it should be publicly
available to search.
121.
The Commission provisionally recommends that a central register should be established in
Ireland to keep account of the existence of statutory declarations agreeing
guardianship/parental responsibility. The Commission invites submissions on
whether the proposed register should be managed by the General Register Office
and also whether it should be publicly available to search.
122.
As
noted in part A of this chapter, the Commission previously recommended
extending automatic guardianship rights and responsibilities to all parents in
Ireland, regardless of marital status. The reasoning underpinning this was that
all fathers, and by extension all children, should be treated equally under the
legal framework. Automatic guardianship for all parents was also seen as the
logical next step following the abolition of the status of illegitimacy. This
recommendation met with considerable opposition at the time, and was not
enacted. It is worth noting that, in Australia, reform of the law relating to
family relationships began with the removal of the status of illegitimacy.
Virtually alone among common law States, Australia has also enacted legislation
providing for automatic parental responsibility for all parents. Section 61C of
the Family Law Reform Act 1995 (Cth) states:
“(1)
Each of the parents of a child who is not 18 has
parental responsibility for the child.
(2)
Subsection (1) has effect despite any changes in the nature of the
relationships of the child's parents. It is not affected, for example, by the
parents becoming separated or by either or both of them marrying or
re-marrying.
(3)
Subsection (1) has effect subject to any order of a court for the time being in
force (whether or not made under this Act and whether made before or after the
commencement of this section).”
123.
The
existence of automatic parental responsibility for all parents in Australia is
now well established. The consequence of this is that there is very little
current literature on the subject of the rights of non-marital fathers in
Australia.206 That
is not to suggest that there are no difficulties in the operation of this
aspect of family law in Australia. In a review of the operation of the Family
Law Reform Act 1995 three years after implementation, significant
difficulties were identified with the practical operation of joint parental
responsibility between married parents who had separated.207
However, the fact that all parents automatically had parental responsibility
did not feature as a significant concern. It will become apparent from the
discussion in the rest of this chapter that the issue of the extent of the
rights of non-marital fathers and how best to secure those rights is a
recurring concern in a number of other common law jurisdictions.
124.
One
of the reasons given for not extending automatic guardianship/parental
responsibility to non-marital fathers in Ireland and in other common law
countries is a concern that this would guarantee rights to genetic fathers who
play no role in the child’s life following conception. The existence of these
automatic rights, however, would ensure that the genetic father had an
effective veto on decisions that the mother might wish to make with regard to
the child in the future.208 This could become an issue, for example, in circumstances where the
mother was in a new relationship and wished her new partner to adopt the child,
as the father could refuse consent to the adoption even where he had had no
contact with the child or the mother following conception. It is important to
note the distinction between non-marital fathers who have no connection with
the child from conception or birth and who play no role in the child’s
upbringing, and fathers who, although not married to the mother, are in a
committed relationship with the mother of the child and play a significant role
in raising the child. In the former situation the extension of automatic rights
and responsibilities might be seen as not being in the best interests of the child.
However, where the child is born into a stable family unit, it seems reasonable
that the father would be entitled to significant rights, and that the existence
of such rights would be in the best interests of the child. The issue for
consideration is whether such rights should accrue automatically to fathers in
these circumstances. While the Commission acknowledges that its previous
recommendations on this issue were not implemented by the Oireachtas, and that
the provisions in the Australian 1995 Act represent an exception to the
statutory arrangements in many common law jurisdictions, it nonetheless seems
worthwhile to invite submissions in the context of this project as to whether
it would be appropriate to introduce automatic guardianship/parental responsibility
for all fathers in Ireland.
125.
The Commission invites submissions on whether it would be appropriate to
introduce automatic guardianship/parental responsibility for all fathers in
Ireland.
126.
In
spite of the reluctance to introduce absolute equality between all fathers,
most States wish to accord parental responsibility as efficiently as possible
to fathers who have demonstrated an intention to parent. This has resulted in
parental responsibility rights being linked to joint registration of the birth
of the child in a number of States. The various provisions giving effect to
this are discussed below. Northern Ireland, England and Wales, and Scotland
operate similar systems, but the precise statutory provision introducing the
system in each jurisdiction is set out below. In Chapter 2 the Commission
examined the law relating to the registration of the birth of a child in
Ireland and this included a brief discussion on the procedure for
joint-registration in England and Wales. The discussion in this Part expands on
the brief outline in Chapter 2.
127.
Section
4 of the Children Act 1989, as amended by section 111 of the Adoption
and Children Act 2002 provides that where a non-marital father jointly
registers the birth of the child with the mother, he will obtain parental
responsibility.209 The
amendment applies to fathers who jointly registered the birth of a child after
1st December 2003.210 Lowe and Douglas211 note that although parental responsibility is conferred automatically
on registration, it does not put unmarried fathers in exactly the same position
as married fathers. This is because parental responsibility will only date from
the time of registration, rather than the time of birth. If the mother dies
before the birth is jointly registered the non-marital father can only acquire
parental responsibility by court order, or by being appointed guardian, as he
cannot register the birth alone. In addition, parental responsibility acquired
by joint registration can be removed by the court and there is no provision to
remove parental responsibility from a married father.212 At
the time the 2002 Act was introduced in England and Wales 80% of births outside
of marriage were jointly registered, with 75% of those parents living at the
same address.213 It
was therefore hoped that the majority of non-marital fathers would acquire
parental responsibility through joint registration. Pickford notes that many
non-marital fathers believed that by having their name on the birth certificate
they were entitled to significant rights in respect of their children.214
Thus, the legislative amendment gave effect to what many already believed was
the situation.
128.
Section
23 of the Family Law (Scotland) Act 2006 introduced parental
responsibility on joint registration of the birth.215 As
in England and Wales this is not retrospective. In Scotland most births
occurring outside marriage were already jointly registered and therefore, as in
England and Wales, the legislation reflected the common held belief among
non-marital fathers that this gave them rights.216
129.
Section
1 of the Family Law Act (Northern Ireland) 2001 amended section 5 of the
Children (Northern Ireland) Order 1995 to ensure that a non-marital
father could obtain parental responsibility for his child following the joint
registration of the birth. The registration must be in accordance with the
provisions of the Births and Deaths Registration (Northern Ireland) Order
1976.
130.
Section
17 of the Care of Children Act 2004 in New Zealand provides for
automatic guardianship rights for the majority of parents.217
However, not all parents are covered by the automatic scheme.218
Therefore, section 18 of the Care of Children Act 2004, as substituted
by section 47 of the Births, Deaths, Marriages and Relationships
Registration Amendment Act 2008, states that a father who is not a guardian
by operation of section 17 becomes a guardian of his child if “his particulars
are registered after the commencement of this section as part of the child’s
birth information because he and the child’s mother both notified the birth as
required by section 9 of the Births, Deaths, Marriages and Relationships
Registration Act 1995.” Section 9 of the 1995 Act states that both parents
of a child born in New Zealand are required to jointly notify a
Registrar of the birth. A sole registration is only permissible where:
“(a) the child has only one parent at law; or (b) the other
parent is unavailable; or (c) requiring the other parent to sign the form would
cause unwarranted distress to either of the parents.”219
This linking of birth
registration to guardianship in a system where there is a legal requirement to
jointly register the birth of the child aims to ensure that the vast majority
of non-marital fathers in New Zealand will be guardians.
130.
The
Commission recognises the difficulties surrounding linking registration of the
birth of a child to the allocation of legal rights and responsibilities, as there
is a concern that this would discourage people from providing as much
information as possible at the time of registration. However, in circumstances
where a couple who are not married are jointly registering the birth of the
child, the Commission considers that the registration form could contain an optional
additional section which would replicate the statutory declaration form.
This would allow the parents to register the birth of the child and confirm the
legal rights and responsibilities of the father at the same time, if they so
wished. This would be a more efficient system for parents who are in agreement
in relation to both registration of details of the birth and the sharing of
parental responsibility. This could only occur where a couple jointly registers
the birth and attends at the Registrar’s office together, as the signature of
both parties must be witnessed for the purposes of the statutory declaration.
This would complement the provisional recommendation in Chapter 2 that the
General Register Office would maintain a central register of all statutory
declarations securing guardianship/parental responsibility to non-marital
fathers.
131.
In
conclusion, the Commission does not consider that linking joint registration of
the birth of the child to guardianship/parental responsibility rights is
desirable in Ireland at this time. This is consistent with the discussion and
conclusions reached in Chapter 2 on the low number of non-marital fathers whose
names are recorded on birth certificate in Ireland. In order to ensure that the
right of the child to know his or her identity is respected, therefore, the
Commission has provisionally concluded that it is better to maintain a
distinction between birth registration and the allocation of guardianship/parental
responsibilities.
132.
The Commission provisionally recommends that there should be no link
between joint registration of the birth of a child and guardianship/parental
responsibilities. However, the Commission invites submissions on this issue.
134.
In
this chapter, the Commission turns to the rights and responsibilities of
members of the extended family, including step-parents and grandparents.220 In
this respect, the Commission deals with two issues: first continuing
access/contact221
between children and other family members in circumstances where the
relationship between the parents has broken down; and, secondly, the possible
extension of guardianship/parental responsibility222 or
custody/day-to-day care223 to a person other than the parent of the child where that person is in
the position of a de facto parent. This chapter examines a very broad
range of situations where persons other than the biological parents of a child
may be enabled to apply for rights in relation to a child. This broad scope
reflects the growing diversity of families in Ireland. It is also in line with
the underlying principle of the Consultation Paper that the best interests of
the child are the primary concern. In Part B, the Commission outlines the
current legal position of extended family members in Irish family law. In Part
C, the Commission examines whether the existing process concerning contact
should be amended. In Part D, the Commission discusses whether the law on
guardianship/parental responsibility and custody/day-to-day care requires reform
as it applies to step-parents and members of the extended family.
135.
This
chapter deals with two issues concerning the position of members of the
extended family. The Commission begins by examining the current legal position
in relation to contact by extended family members. The Commission then
discusses the circumstances in which extended family members are currently
given guardianship/parental responsibility or custody/day-to-day care of
children where the parents are unwilling or unable to exercise their
responsibilities.
136.
Access/contact
by members of the extended family is currently provided for in Ireland by
section 11B of the Guardianship of Infants Act 1964.224
Section 11B applies to:
Step-parents
Grandparents
A
partner of the parent where the partner was in loco parentis to the
child
Aunts
and uncles, and
Siblings
137.
The
Commission understands that access/contact is granted to step-parents and
grandparents by the courts. In respect of grandparents the Commission
understands that the numbers applying for access/contact are quite small, as in
most cases if the parent without custody/day-to-day care of the child is
granted access/contact, the court will presume that contact with the
grandparents will be facilitated during these periods. Often stand alone
applications by grandparents only become necessary if the relationship between
the parent with access/contact and his or her extended family has broken down.
It may also be appropriate if the parent of the child no longer resides in the
jurisdiction, is in prison, in hospital or otherwise unable to provide a
connection through which his or her family members can have contact with the
child. The Commission also understands that an even smaller number of
applications under this provision are made by other relatives, such as aunts,
uncles and siblings.
138.
The
context in which an application for access/contact is made by a person who has
been in loco parentis to the child, for example a step-parent or
previous partner of the parent of the child, is very different to an
application by a grandparent or other relative. In these circumstances the
process contained in section 11D of the 1964 Act is the only mechanism
available for the person to have contact with the child if the parent is
refusing. A common scenario is where a couple get married, but one or other
partner has a child from a previous relationship. In these circumstances the
child is usually being raised as a child of the family, with both adults taking
responsibility for the child. If the relationship between the couple
subsequently ends the non biological parent has very limited rights in relation
to the child. Despite the significant parental role he or she may have played
in the life of the child up until that point, he or she is now treated the same
as all other relatives of the child. The Commission understands that
applications for access/contact by step-parents and previous partners of
parents are becoming more frequent due to the increasingly diverse nature of
families in Ireland.
139.
The
application under section 11B of the 1964 Act is in the form of a two stage
process. Applicants must first satisfy a leave stage before the substantive
application for access/contact is heard. This is discussed in greater detail in
Part C.
140.
The
second element of the chapter is a discussion on the extension of
guardianship/parental responsibility or custody/day-to-day care to a person
other than the parent of the child where that person is in the position of a de
facto parent. There are two distinct issues to be discussed. The first is
where a parent is unwilling or unable to exercise guardianship rights. In this
circumstance a person who is caring for the child on a full time basis during
the lifetime of the parent has no legal rights in respect of that child. This
is because the court can only appoint a guardian where a child has no existing
guardian, which would rarely be the case while one or both parents are alive.225
141.
The
Commission understands that there are situations where grandparents and
relatives are caring for a child because the parent with guardianship is unable
or unwilling to care for the child, for example as a result of drug addiction
or because he or she has a mental disorder. In these circumstances the relative
in the position of a de facto parent has no legal right to consent to
medical treatment for the child or to apply for a passport for the child. It is
clear, however, that there are grandparents and relatives in Ireland who are
guardians of the children in their care. This can occur in two ways. First, if
a parent dies and appoints the relative as a testamentary guardian. Second, if
the parent dies and either does not appoint a testamentary guardian, or
appoints a person as testamentary guardian who is dead or who refuses to act.
In this circumstance where the child has no guardian the court can appoint a
guardian.226 Once
the relative is a guardian of the child he or she has custody/day-to-day care
of the child to the exclusion of everyone but another guardian. This
demonstrates that there is currently a procedure in place to allocate
guardianship/parental responsibility to persons other than parents in Ireland.
However, it is very limited in scope.
142.
The
second issue arises where a step-parent enters a family. In this context the
non-biological parent has no parental rights in respect of the child. There is
no provision to allow a step-parent to make an application for
guardianship/parental responsibility or for the biological parent or parents of
the child to confer guardianship/parental responsibility on the step-parent.
The Commission understands that there are couples who adopt the child in order
to ensure that both parents are guardians of the child. However this is not
satisfactory as it requires the biological parent of the child to adopt his or
her own child and it severs all legal connection between the other biological
parent and the child. This procedure also cannot be used where the child is a
marital child.227
143.
Traditionally
in Ireland “access” was seen as the right of the parent. In fact in many cases
it was looked upon as a consolation prize for the parent who was not awarded
“custody” of the child. However, this is no longer the position and
access/contact is now understood as the right of the child. Article 9(3) of the
UN 1989 Convention on the Rights of the Child recognises:
“the right of the
child who is separated from one or both parents to maintain public relations
and direct contact with both parents on a regular basis unless it is contrary
to the child’s best interests.”
144.
While
the provisions of the Convention on the Rights of the Child have not been
incorporated in Irish law, this remains an important benchmark against which to
measure the progression of Irish family law. The introduction of procedures to
facilitate contact between a child and members of the extended family is also
in accordance with the right to family life protected by Article 8 of the
European Convention on Human Rights (ECHR) which has been held not to be
confined to the traditional nuclear family.228 In Marckx v Belgium229 the European Court of Human Rights (ECtHR) held that:
“‘family
life’, within the meaning of Article 8, includes at least the ties between near
relatives, for instance those between grandparents and grandchildren, since
such relatives may play a considerable part in family life.”
145.
The
shift in focus to a more child centred approach is also reflected in the
decisions of the courts in Ireland in the context of parental applications for
access/contact. In M.D v G.D230 Carroll J. stated that the court was concerned with the right of the child
to “access”, not the right of the adult. This was because the welfare of the
child was the paramount consideration of the court. This was reinforced by
section 11D of the Guardianship of Infants Act 1964, as inserted by
section 9 of the Children Act 1997, which states:
“In considering
whether to make an order under section 6A, 11, 14 or 16 the court shall have
regard to whether the child’s best interests would be served by maintaining
personal relations and direct contact with both his or her father and mother on
a regular basis.”
146.
When
access/contact is recognised as a right of the child, it is appropriate that
this right should extend beyond a right of contact with the child’s parents.
The reasoning behind this is that, particularly in circumstances where the
relationship between the parents has broken down, the child can benefit from a
stable relationship with another family member.231 Ideally this would be achievable without recourse to an application to
court, but this is not always possible. To this end the Children Act 1997 introduced
a legislative provision to facilitate access/contact with members of the
extended family. The procedure requires that leave of the court be obtained
prior to the application on the substantive matter.
147.
Viewing
access/contact as the right of the child also raises considerations in relation
to the role of the child within applications for access/contact. If the child
has a right to access/contact, should he or she be able to make an independent
application for access/contact with family members? This is closely linked to
the right of the child to be heard in proceedings which concern him or her as
set out in Article 12 of the UN Convention on the Rights of the Child.
148.
The
Commission now turns to examine, first, the current provisions in Ireland on
applications for access/contact and the ongoing need for a two stage process;
and, secondly, the place of the child in applications for access/contact.
149.
As
noted above the term currently in use in Ireland is “access” which is generally
understood as a right and duty of visitation. Contact, the proposed replacement
term, is a more accurate description of what is involved - it is the right of
the child to have contact with his or her family members. The use of the term
contact also highlights the central position of the child in the process.
150.
The
current provisions in relation to access/contact between parents and children
have been set out in the Introduction to the Paper and in Chapter 1. An
application for access/contact is generally made by the parent who does not
have custody/day-to-day care of the child.232 A non-marital father is entitled to apply for access/contact even if he
does not have guardianship/parental responsibility in respect of the child.233 This
was significant at the time it was introduced in 1964, as prior to that only
guardians of a child could apply for access.
151.
Section
11B of the Guardianship of Infants Act 1964234
provides that:
“(1) Any person who-
1.
is
a relative of a child, or,
2.
has
acted in loco parentis to a child,
and to whom section 11235 does
not apply may, subject to subsection (3), apply to the court for an order
giving that person access to the child on such terms and conditions as the
court may order.
2.
A
person may not make an application under subsection (1) unless the person has
first applied for and has been granted by the court leave to make the
application.
3.
In
deciding whether to grant leave under subsection (1), the court shall have
regard to all the circumstances, including in particular-
1.
the
applicant’s connection with the child,
2.
the
risk, if any, of the applicant disrupting the child’s life to the extent that
the child would be harmed by it,
3.
the wishes of the child’s guardians.”
152.
This
provision is quite broad, in that it covers not only relatives of the child,
including step-parents and grandparents, but also any adult who has been in
loco parentis in respect of that child. This covers a situation where the
non-biological parent of a child of a same-sex couple wishes to apply for
access/contact. It would also cover foster parents. Section 11B (1) provides
that the court may order access/contact in such terms and conditions as it sees
fit. This allows the court to make an order for indirect access/contact. This
could consist of phone calls, emails, letters, cards or online video
communication. This is important, as in certain circumstances there may be a
difficult relationship between the parent of the child and the person applying
for access/contact. The ability to order indirect access/contact may be the
best way of ensuring that a relationship continues between the child and the
other party while causing the minimum amount of tension between the other
parties involved. This respects the right of the child to such contact while at
the same time recognising that children do not exist in a vacuum and that,
particularly in relation to young children, the co-operation of the parent may
be required to facilitate contact with other relatives.
153.
Section
11B(2) of the Guardianship of Infants Act 1964
provides that an application for access/contact under this provision is a two
stage process. A family member or a person who has been in loco parentis to
the child cannot apply for access/contact without first applying for leave of
the court to make the substantive application. The rationale behind the
inclusion of a leave stage appears to be to ensure that frivolous or vexatious
applications are identified as early as possible in the process. The Commission
understands that the application for leave in these matters is very rarely
refused which raises questions on the continuing necessity for a leave stage.
Presumably the court would be equally capable of identifying a frivolous
application during the course of the substantive hearing, and could refuse the
application on that basis. The practical effect of the leave stage may be to
increase the expense, complexity and duration of the application. There is a
possibility that this reduces the numbers of genuine applications made under
this provision. The Commission has been unable to determine the breakdown
between parental applications and applications by members of the extended
family for access/contact.
154.
Section
11B(3) of the 1964 Act sets out the criteria that the
court must take into account in deciding whether to grant leave to apply. These
are the applicant’s connection to the child, any risk posed to the child, and
the wishes of the guardian. The requirement to have regard to the applicant’s
connection to the child assists in establishing that there was a family life in
existence within the meaning of Article 8 of the ECHR. The Commission is of the
opinion that these are the factors that would also be considered by the court
in determining the substantive application for access/contact. The Commission
understands that a practice developed following the introduction of the two
stage procedure that the substantive matter would be heard in the course of the
application for leave. If this remains the case, it again raises the issue of
whether there is in fact a need for the initial leave stage.
155.
There
is a separate statutory scheme in place in Ireland to facilitate contact with
children who have been taken into care by the Health Service Executive (HSE).
This is set out in section 37 of the Child Care Act 1991 which provides:
“(1) Where a child is
in the care of a health board whether by virtue of an order under Part III or
IV or otherwise, the board shall, subject to the provisions of this Act,
facilitate reasonable access to the child by his parents, any person acting in loco
parentis, or any other person who, in the opinion of the board, has a bona
fide interest in the child and such access may include allowing the child
to reside temporarily with any such person.
(2) Any person who is
dissatisfied with arrangements made by a health board under subsection (1) may
apply to the court, and the court may-
(a) make
such order as it thinks proper regarding access to the child by that person,
and
(b) vary
or discharge that order on the application of any person.
(3) The court, on the
application of a health board, and if it considers that it is necessary to do
so in order to safeguard or promote the child’s welfare, may-
(a) make
an order authorising the board to refuse to allow a named person access to a
child in its care, and
(b) vary
or discharge that order on the application of any person.”
156.
The
categories of person entitled to apply for access/contact in the 1991 Act are
broader than those contained in section 11B of the Guardianship of Infants
Act 1964. Although relatives are not explicitly included in the 1991 Act,
they clearly come within the scope of bona fide persons with an interest
in the child. However, this is also broader than relatives and so could include
a close family friend or a neighbour who had been caring for the child. The
Commission understands that this broader category has proved useful in ensuring
that where possible there is consistency in the arrangements put in place to
care for a child and that the child is not unnecessarily taken away from a familiar
environment.
157.
The
statutory scheme contained in section 37 of the Child Care Act 1991 also
does not include a leave stage for applications for access/contact. The
Commission understands that this has not resulted in significant numbers of
vexatious applications being heard by the court and practitioners appear to
regard the section as operating efficiently.
158.
It
is worth briefly noting that there is no statutory definition of what amounts
to being in loco parentis, yet the term is used in both section
11B of the 1964 Act and in section 37 of the 1991 Act. There is,
however, a common understanding of what amounts to being in loco parentis in
respect of child, which is:
“a
person who is not the parent of a particular child but takes on himself parental
offices and duties in relation to the child.”236
The Commission considers that there is probably little to be gained from
including a statutory definition of this term in the legislative provisions,
and that there is in fact a benefit to having a flexible understanding of what
amounts to being in loco parentis. It may not be in the best interests
of the child if the category of those who are considered to be in loco
parentis for legal purposes was drawn too narrowly. The Commission
nonetheless invites submissions on this matter.
159.
The Commission invites submissions on whether it would be appropriate to
include a statutory definition of the term in loco parentis in the legislation
governing family relationships.
160.
The
existence of a leave stage in applications for access/contact is not unique to
Ireland. England and Wales and New Zealand also operate a leave requirement in
applications for contact by certain categories of person. In England and Wales
the requirement for leave is intended to act as a filter to ensure that the
child and his or her parents are not subject to unnecessary interference while
at the same time protecting the rights and interests of the child. The English
Law Commission stated that leave would prevent outsiders with no obvious
connection with the child from impacting on the exercise of parental
responsibility. Generally, the closer the link between the applicant and the
child the easier it will be to obtain leave. This is reflected in the 1988
Report of the English Law Commission where the leave requirement was
characterised as being “scarcely a hurdle at all to close relatives such as
grandparents, uncles and aunts, brothers and sisters who wish to care for or
visit the child.”237 In
accordance with this statement there appears to be a judicial presumption in
place that leave ought to be granted to grandparents.238
161.
Those
who have argued in favour of reform of the law in respect of grandparents in
England and Wales have nevertheless argued for the removal of the leave
requirement on the basis that it causes delay and increases costs. To date this
has not occurred, the reasoning being that while most applications would be
genuine, it would be naïve to assume that all such applications would be so.239 It
is also the case that an application may be genuine and well intentioned, but
that does not necessarily mean that the impact on the child would be positive.
The leave stage was designed to provide some level of protection against such
consequences. However, in March 2005 the Constitutional Affairs Committee
examining the workings of the Family Courts in England and Wales recommended
the abolition of the leave requirement.240 Kaganas suggests that while campaigns by grandparents’ groups may not
have succeeded in increasing the legal rights available they have resulted in
the development of a non-legal policy norm favouring contact between
grandparents and grandchildren.241
162.
Kaganas
and Piper suggest that were the leave stage to be challenged as an interference
with Article 8 of the ECHR such a challenge would most likely fail. This is
because the leave stage could be justified as necessary to protect the rights
of the nuclear family and the welfare of the child. The procedure is a
proportionate measure to achieve the aim of identifying vexatious applications.
Given that the ECtHR has upheld the differential treatment of marital and
non-marital fathers as in accordance with Article 8242 it
would be extremely difficult for grandparents or other family members to
successfully argue that they should have the same right to apply for contact as
parents and guardians.
163.
New
Zealand also has a leave stage in applications for contact. The role of the
extended family is particularly important in Māori culture and there is a
strong recognition of this in the legislative provisions in place. Section 5 of
the Care of Children Act 2004 sets out the principles that are relevant
in determining the child’s welfare and best interests. Section 5(b) states:
“there should be continuity in arrangements for the child’s care,
development, and upbringing, and the child’s relationships with his or her
family, family group, whānau,243 hapu,244 or
iwi,245
should be stable and ongoing (in particular, the child should have continuing
relationships with both of his or her parents).”246
164.
A
parenting order empowers the court to make an order “determining the time or
times when specified persons have the role of providing day-to-day care for, or
may have contact with, the child.” A parenting order determining contact may
specify the nature of the contact (direct or indirect), the duration of the
contact, and any arrangements necessary to facilitate the contact.247 A
parenting order determining day-to-day care may specify “that the person has
that role- a) at all times or at specified times; and b) either alone or
jointly with one or more persons.”
165.
An
application for a parenting order can be made by an “eligible person.” This is
defined in section 47(1) of the Care of Children Act 2004 and includes
parents, guardians, and the spouse or partner of a parent of the child. For the
purpose of this discussion the most relevant categories are:
“d) any other person
who is a member of the child’s family, whānau, or other culturally
recognised family group, and who is granted leave to apply by the Court, and
e) any
other person granted leave to apply by the Court.”
Section 47(1)(d) of the New Zealand Care of Children Act 2004 is
similar to the provisions in Ireland and England and Wales in that it provides
for family members and persons who were in loco parentis to apply for
leave to apply for contact. Given the particular cultural conditions and
Māori heritage in New Zealand the understanding of the extended family is
broader than in the other jurisdictions discussed. However, section 47(1)(e) of the 2004 Act is extremely broad, in that it allows
“any other person” to apply for leave to apply for contact with a child. It is
unclear if this would cover the child as an applicant for contact.248
166.
Section
47(2) of the Care of Children Act 2004 removes the leave requirement for
grandparents, aunts and uncles and siblings of a child in certain specified
circumstances. These are where the parent of the child has died or has been
refused contact with the child by a Court, or where a parent who is entitled to
have contact with a child is making no attempt to exercise that contact. Where
this happens the parents of that parent, the siblings of that parent, and the
siblings of the child concerned become eligible persons and do not have to
obtain leave from the court prior to making an application for a parenting
order. This reflects an understanding that where there is contact between a
child and a parent, that should be sufficient to ensure contact with family
members. It is for this reason that a leave requirement is in place to prevent
vexatious applications which may conflict with the wishes of the parent.
However, where there is not a functioning relationship between parent and
child, the legislature in New Zealand is more open to applications by members
of the extended family, as reflected in the removal of the leave stage. This
appears to be in accordance with what occurs in practice in many cases in
Ireland.
167.
Having
reviewed the various regimes in place in different jurisdictions, the
Commission has reached the provisional view that the leave stage provided for
by section 11B(2) of the Guardianship of Infants
Act 1964, as inserted by section 9 of the Children Act 1997, should
be removed. While it was enacted to prevent frivolous or vexatious
applications, the Commission notes that the absence of such a requirement in
the other jurisdictions reviewed here has not given rise to such frivolous or
vexatious applications. As to whether the categories of persons who can apply
for access/contact should be expanded to include persons with a bona fide
interest, as is currently provided for by section 37 of the Child Care Act
1991, the Commission has decided at this point to invite submissions on the
matter.
168.
The Commission provisionally recommends the removal of the leave stage
provided for by section 11B(2) of the Guardianship of
Infants Act 1964, as inserted by section 9 of the Children Act 1997. The
Commission invites submissions as to whether the categories of persons who can
apply for access/contact should be expanded to include persons with a bona fide
interest as is currently provided for by section 37 of the Child Care Act 1991.
169.
There
are two core considerations when examining the role of the child in
applications for access/contact. First, that contact is the right of the child.
As the Commission has already noted, this is set out in Article 9 of the UN
1989 Convention on the Rights of the Child and it has been declared as such in
the Irish courts. Second, that the child has a right to be heard in
applications concerning him or her. Article 12 of the UN Convention on the
Rights of the Child provides that:
“1. States Parties
shall assure to the child who is capable of forming his or her own views the
right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and
maturity of the child.
2. For this purpose,
the child shall in particular be provided the opportunity to be heard in any
judicial and administrative proceedings affecting the child, either directly,
or through a representative or an appropriate body, in a manner consistent with
the procedural rules of national law.”
170.
Currently
there is no provision in Ireland to allow a child to apply for access/contact
with a relative. Given that access/contact is expressed as a right of the
child, it may be worth considering if such a provision ought to be introduced.
As discussed below, there are procedures in place in England and Wales and
Scotland to allow a child to make such an application. However, the right of
the child to be heard in matters concerning him or her can be protected without
extending the right to apply for access/contact to the child. There are
provisions to require the court to take account of the wishes of the child in a
number of jurisdictions which are discussed below.
171.
Section
8 of the English Children Act 1989 introduced a variety of orders
regulating family relationships. These are collectively known as “section 8
orders” and include contact orders, prohibited steps orders, residence orders
and specific issue orders.249 A contact order requires “…the person with whom the child lives, or is
to live, to allow the child to visit or stay with the person named in the
order, or for that person and the child otherwise to have contact with each
other.” Lowe and Douglas state that by providing for the child to visit or stay
with the person named in the order the emphasis is on the child rather that the
adult.250 As
in Ireland, the English courts regard contact as the right of the child.251
172.
Section
10(1)(a) of the English Children Act 1989 provides for parties other
than the parents of a child to seek leave of the court to apply for any section
8 order.252
Relatives, a body, authority or organisation professionally concerned with the
child, and the child him or herself, require leave of the court to make an
application for contact.253 The inclusion of the child in this category reflects the provisions of
Article 12 of the UN Convention on the Rights of the Child. Section 10(8) of
the 1989 Act sets out the criteria for leave where the applicant is the child
concerned,254 and
states that “the court may only grant leave if it is satisfied that he has
sufficient understanding to make the proposed application for a section 8
order.” Where leave is being sought by a child the application must be made to
the High Court.255 The
function of the leave stage in this context is very different to the leave
stage in applications by other family members and this is why different
criteria apply. The leave stage in respect of the child is to determine the
capacity of the child to make the application, as opposed to identifying if the
application is merely frivolous or vexatious.
173.
The
law in England and Wales has further strengthened the right of the child to
contact by the inclusion of contact enforcement provisions in the Children
and Adoption Act 2006. Section 11J of the Children Act 1989, as
inserted by section 4 of the Children and Adoption Act 2006, provides
that a person who has failed to comply with a contact order, without reasonable
excuse, can be required to perform unpaid work or to pay compensation to
another person for losses incurred as a result of the breach. The application
for such an order can be made by the person the child lives with, the person
with whom the child should have contact, and the child concerned. If the child
is making the application, the court must first grant leave on the basis that
the child has sufficient understanding to make the application. In making an
enforcement order the court must have regard to the welfare of the child who is
the subject of the order.256 The effectiveness of such a mechanism is open to question, as indeed is
the benefit to be obtained from forcing people to have contact with each other.
174.
Section
11(5) of the Children (Scotland) Act 1995 provides that the child
concerned is qualified to apply for a contact order as a person with an
interest. As in England and Wales the inclusion of such a provision is in
keeping with the requirements of Article 12 of the UN Convention on the Rights
of the Child.
175.
In
Ireland, section 11B(3) of the Guardianship of Infants Act 1964 sets out
the criteria to be considered in granting leave to apply for access/contact
with a child. Section 11B(3)(c) specifically states
that the wishes of the child’s guardian be considered. This could in some
circumstances conflict with the court’s duty to make a decision in the best
interests of the child. This is because the wishes of the guardian and the
interests of the child may not always be compatible. The wishes of the child
were not listed as a factor to be given particular attention under section 11B(3) of the 1964 Act. Section 11 of the Children Act
1997 inserted a number of new provisions into the Guardianship of
Infants Act 1964. Section 25 of the Guardianship of Infants Act 1964,
as inserted by section 11 of the 1997 Act, states:
“In any proceedings to which section 3 applies, the court shall, as
it thinks appropriate and practicable having regard to the age and
understanding of the child, take into account the child’s wishes in the
matter.”257
Section 3 of the Guardianship of Infants Act 1964 refers to
proceedings before a court concerning the “custody, guardianship or upbringing
of an infant.” It could be argued that the reference to upbringing of the
infant would cover applications for access/contact by members of the extended
family. However, given that the wishes of the child’s guardian are explicitly
mentioned as a factor to be considered in applications for access/contact by
members of the extended family, it may be more consistent with a child-centred
approach to provide clearly the requirement to consider the wishes of the child
in proceedings under section 11B.
1.
The
age and maturity of the child are factors to be considered by the court in
taking the views of the child into account, as the older the child the more
weight that should be given to his or her wishes. In M.N v R.N,258 in the context of an application for the return of a child under the
provisions of the 1980 Hague Convention on Child Abduction,259
Finlay Geoghegan J stated that there was a distinction between the decision of
a court to hear a child and the weight to be given to the views expressed by
the child.260 In
that case Finlay Geoghegan J found that there was a mandatory requirement to
hear the child under Article 11(2) of Council Regulation 2201/2003, the
Brussels II bis Regulation on Matrimonial Matters, unless “this appears
inappropriate having regard to his or her age or degree of maturity.” The court
held that the primary consideration of the court in determining whether to hear
the child was if, on the available evidence, the child appeared prima facie to
be “of an age or level of maturity at which he is probably capable of forming
his own views.”261 On
the facts of the case it was found that the six year old child was capable of
forming his own views and therefore should be heard by the court.
1.
In
England and Wales where the application for leave is not made by a child,
section 10(9) of the Children Act 1989 lists the criteria to be
considered in granting leave. The court is required to have regard to: the
nature of the proposed application for a section 8 order, the applicant’s
connection with the child, any risk that the application would disrupt the
child’s life to such an extent that the child would be harmed, and where the
child is being looked after by a local authority, the authority’s plans for the
child’s future and the wishes and feelings of the parents of the child. The
welfare of the child is a factor to be considered in determining whether to
grant leave, but at the leave stage it is not the paramount consideration.262 The
wishes and opinions of the child are not referred to. Lowe and Douglas state,
however, that the criteria set out in section 10(9) of the Children Act 1989
are not to be considered as exclusive guidelines and therefore the court is
not prevented from considering the views of the child.263 It
would be more in keeping with the spirit of Article 12 of the UN Convention on
the Rights of the Child if the wishes of the child were explicitly included as
a factor to be considered by the court, particularly when the wishes of the
parents or guardians are mentioned. Scotland and New Zealand have included
statutory provisions to this effect.
1.
Section
11 of the Children (Scotland) Act 1995 provides that a court may make a
range of orders regulating rights and responsibilities in respect of a child.
Section 11(2)(d) allows for an order:
“regulating the
arrangements for maintaining personal relations and direct contact between a
child under that age [16] and a person with whom the child is not, or will not
be, living (any such order being known as a “contact order”).”
2.
An
application for an order under section 11 of the 1995 Act can be made by a
person with parental responsibility, but also by a person who “not having, and
never having had, parental responsibilities or parental rights in relation to
the child, claims an interest.” Most relatives of a child and a person that was
in loco parentis would qualify as a person with an interest and
therefore can apply for contact or residence.
3.
In
deciding whether to make a contact or residence order the court is obliged to
have regard to a number of factors. These are set out in section 11(7) of the
1995 Act and include the welfare of the child as the paramount consideration.
Significantly, section 11(7)(b) of the 1995 Act states that the court:
“taking
account of the child’s age and maturity, shall so far as is practicable-
i) give him an opportunity to
indicate whether he wishes to express his views;
ii) if
he does so wish, give him an opportunity to express them; and
iii) have regard to such views as he may express.”264
This is followed by
section 11(10) of the 1995 Act which provides that, without prejudice to the
above, a child over the age of twelve shall be presumed to be of sufficient age
and maturity to form a view for the purposes of making a decision in relation
to an order under section 11. This is a clear commitment to respect the right
of the child to be heard.
1.
Section
48(1) of the Care of Children Act 2004 provides for the making of
parenting orders. These include directions relating to day-to-day care and
contact. Section 6 of the 2004 Act states that in any decision relating to
guardianship, day-to-day care, or contact, a child must be given reasonable
opportunities to express his or her views, and these views, which can be given
directly or through a representative, must be taken into account.
2.
Section
7 of the 2004 Act provides that the court may appoint a lawyer to act for a
child who is the subject of, or who is a party to, proceedings under the Care
of Children Act 2004. The section goes on to state that:
“unless
it is satisfied the appointment would serve no useful purpose, the Court must265 make an appointment under subsection
(1) if the proceedings-
1.
involve
the role of providing day-to-day care for the child, or contact with the child;
and
2.
appear likely to proceed to a hearing.”
This ensures that the
right of the child to be heard in accordance with Article 12 of the UN
Convention on the Rights of the Child is respected while not going so far as
the legislatures in England and Wales and Scotland and extending the right to
apply for such orders to children.
1.
In
conclusion, the Commission sees some merit in the view that it may be
appropriate to extend the right to apply for access/contact to include the
child, as this could further strengthen the position that access/contact is a
right of the child. The Commission intends to invite discussion on this and on
whether it would be necessary to include a leave stage to determine the
capacity of the child. The Commission also invites submissions on the inclusion
of a specific requirement that the wishes of the child be considered in making
a decision on an application for access/contact by a member of the child’s
extended family
2.
The Commission invites submissions on the possibility of extending the
right to apply for (or to apply for leave to apply for) access/contact to
include the child. The Commission also invites submissions on whether it would
be necessary to include a leave stage to determine the capacity of the child;
and to include a specific requirement in Irish law that the wishes of the child
be considered in making a decision on an application for access/contact by a
member of the child’s extended family.
1.
As
already noted, there are two distinct situations where it could be in the best
interests of the child to make provision for persons other than parents to
exercise guardianship/parental responsibility and custody/day-to-day care. The
first of these is where the parent is unwilling or unable to care for the child
and another person, usually a member of the extended family, is already
exercising these functions in practice. The Commission understands that this
occurs quite frequently. The second situation is where a step-parent is caring
for a child, and to all intents and purposes is a social parent for the child.
Presently there is no provision to allow a step-parent to have
guardianship/parental responsibility for the child unless the child is jointly
adopted by the biological parent and the step-parent. Adoption of a child in
these circumstances is also unsatisfactory as it ends the relationship between
the child and the other biological parent. However, even this option is not
available where the child is a marital child and the biological parents are no
longer together as a result of divorce or the death of one parent. In England
and Wales, Scotland and New Zealand, provisions are in place to ensure that
persons caring for a child on a full time basis, either in the position of
step-parents or as de facto parents, are able to access and therefore
exercise the associated rights. There are two core mechanisms used to achieve
this. These are the linking of parental responsibility to residence or
day-to-day care and the allocation of parental responsibility to a step-parent
by agreement or on application to court. The various schemes in place are
discussed in greater detail below.
1.
In
England and Wales the legal rights associated with caring for a child are not
limited to parents and guardians. Section 8 of the Children Act 1989
also provides for the court to make an order setting out where the child is to
live. “Residence” was the term chosen in the UK to replace custody, and
therefore a person with a residence order is also responsible for the
day-to-day care of the child. Applications for a residence order are not
confined to the parents of the child. Parents, special guardians266 and
certain other persons are eligible to apply for a residence order without
leave. Eligible persons include any person that the child has lived with for a
period of three years, any party to a marriage (whether subsisting or not)
where the child is a child of the family, and any person who has the consent of
those with parental responsibility for the child.267 If
the child is in the care of the local authority then any person who has the
consent of the local authority can apply for a residence order in respect of
the child. This removes the requirement for a leave stage in applications for a
residence order where there is agreement with those who have responsibility for
the child that he or she should be in the care of the person making the
application. Outside of those who satisfy the criteria as an eligible person an
application for a residence order must be preceded by an application for leave.
The criteria for the granting of leave are the same as those set out above in
the context of applications for contact.268
2.
Section
12(2) of the Children Act 1989 states that where a residence order is
made in favour of a person who is not a parent or guardian of the child, then
that person shall also have parental responsibility in respect of the child for
the duration of the residence order. However, section 12(3) of the 1989 Act
provides that if a person who is not a parent or guardian has parental
responsibility by virtue of a residence order, he or she cannot consent or
refuse consent to an application for the adoption of the child, consent or
refuse consent to an adoption order, or appoint a guardian for the child. This
provision ensures that a person with the legal responsibility for caring for
the child also has the necessary rights to fulfil those responsibilities
appropriately, but he or she cannot make certain key decisions which could have
the effect of alienating the parental responsibility rights of the parent or
guardian. Nevertheless the extension of the general parental responsibility
rights would be important in situations where consent was required for medical
treatment for the child and the child is residing with a person who is not a
parent or guardian. This extension of parental responsibility to a person with
a residence order in respect of a child does not affect the existence of
parental responsibility on the part of the parents of the child.269
Where a non-marital father who would not otherwise have parental responsibility
is granted a residence order then section 12(1) states
that the court must also make an order under section 4 of the 1989 Act granting
him parental responsibility. Again this recognises that a person who is
providing for and caring for a child requires the necessary legal rights to
enable him or her to do so effectively.
3.
The
legislative framework in Scotland also links parental responsibility to
residence. Section 11(12) of the Children (Scotland) Act 1995 provides
that where a residence order is made in favour of a person who does not have
all the parental responsibilities and rights provided for in the statute in
respect of the child,270 then that person:
“shall,
subject to the provisions of the order or of any other order made under
subsection (1) above, have the relevant responsibilities and rights while the
residence order remains in force.”
The linking of the
exercise of parental responsibility with the day-to-day care of a child for
persons who are not parents or guardians of the child appears to be an attempt
to balance the reality of the situation with a desire to ensure that, for the
most part, parents have the primary responsibility for caring for their
children.
4.
The Commission provisionally recommends extending the right to apply for
custody/day-to-day care to persons other than parents or guardians of the child
where the parents are unwilling or unable to exercise their responsibilities.
The Commission also provisionally recommends that guardianship/parental
responsibility should be linked to an order granting custody/day-to-day care in
these circumstances. The Commission provisionally recommends that such rights
would be extended to the same category of persons who can currently apply for
leave to apply for access/contact.
5.
The Commission invites submissions on whether the category of persons
who can apply for custody/day-to-day care should be widened to include bona
fide persons with an interest as currently provided for in section 37 of the
Child Care Act 1991 in the context of applications for access/contact.
1.
The
English Law Commission Report on Family Law Review of Child Law,
Guardianship and Custody271 noted that a tentative proposal in the Law Commission Working Paper
on Guardianship272 to the effect that parents would be able to appoint step-parents as
guardians to share parental responsibility had attracted little support. This
suggests that the concept of a child having more than two persons with parental
responsibility was not acceptable at the time. This was reflected in the Children
Act 1989 where step-parents had no special status, and step-parents
were required to apply for a joint residence order to secure parental
responsibility. A similar situation was introduced in Scotland with the
Scottish Law Commission stating the:
“availability
of a non-exclusive package of parental responsibilities and rights, conferred
in a way which is as non-threatening to the absent parent as possible, could be
particularly useful for step-parents.”273
2.
Rather
than requiring the step-parent and biological parent to apply to adopt the
child, with the effect that all ties with the other biological parent are
severed, this provision allowed for an application confirming that the child is
to reside with the parent and step-parent. This conferred parental
responsibilities and rights on the step-parent while maintaining parental
responsibility on the part of the non-resident biological parent.274
However, if the residence order in favour of the step-parent is subsequently
removed he or she will no longer have parental
responsibility. The Scottish Law Commission recognised that this may not be the
perfect solution for all step-parents but felt that it would be a sufficient
answer to the problems faced in many cases.275 This is no longer the position in England and Wales following the
introduction of a procedure for the appointment of special guardians, without
always having recourse to the courts. New Zealand has also introduced
provisions for the appointment of additional guardians. To date Scotland has
not introduced provisions specifically directed towards securing parental
responsibility for step-parents without the need for a court order.276
1.
Section
112 of the Adoption and Children Act 2002, inserted section 4A into the Children
Act 1989, which states that a person who is married to or in a civil
partnership with a parent who has parental responsibility for the child can
obtain parental responsibility by agreement or with a court order. Section
4A(1) of the Children Act 1989 provides:
“Where a child’s
parent (‘parent A’) who has parental responsibility for the child is married to
or is a civil partner of a person who is not the child’s parent (‘the
step-parent’)-
1.
Parent
A or, if the other parent also has parental responsibility for the child, both
parents may by agreement with the step-parent provide for the step-parent to
have parental responsibility for the child; or
2.
The
court may, on the application of the step-parent, order that the step-parent
shall have parental responsibility for the child.”
194.
It
is not open to a person who is co-habiting with the parent of the child to make
an application under this provision. Lowe and Douglas note that the purpose of
the procedure is to provide an alternative to adoption of the child by the
step-parent and the parent.277 The Explanatory Notes accompanying the 2002 Act clarify that the
special guardian procedure was favoured because it does not remove parental
responsibility from the other biological parent nor does it prevent the child
retaining contact and a legal relationship with the members of the extended
family of the other parent.278
195.
Most
parents of a child in New Zealand are guardians of that child.279
However, guardianship is not limited to biological parents and a child can have
more than two guardians. The Care of Children Act 2004 makes provision
for the appointment of an eligible spouse or partner of a parent as an
additional guardian of a child. In order to be eligible for appointment the
spouse or partner must have shared responsibility for the day-to-day care of
the child for a least one year.280 If both parents of the child are guardians an additional guardian can
only be appointed by both parents. If the mother is a sole guardian merely
because the father was not married to, in a civil union with, or living with
the mother for any period between the conception and birth of the child, then
the appointment of an additional guardian requires the consent of the father.
If a parent is a joint guardian of the child along with a testamentary guardian
then the appointment of an additional guardian must be made by both the parent
and the testamentary guardian. When appointing an additional guardian the
guardian(s) of the child and the proposed additional guardian must make a
statutory declaration to the effect that he or she is of the opinion that it is
in the best interests of the child, and that he or she has taken all reasonable
steps to ascertain and consider any views expressed by the child on the matter.281 The
appointment of an additional guardian requires the approval of a Registrar of
the Family Court in New Zealand.
196.
It
was stated above that Scotland has not yet introduced procedures for allocating
parental responsibility to step-parents by agreement. However section 11 of the
Children (Scotland) Act 1995 provides that a court may make an order
granting parental responsibility, and applications for such an order are not
limited to the parents of a child. It also includes a person who:
“not
having, and never having had, parental responsibilities or parental rights in
relation to the child, claims an interest.”
This
allows for applications to court by step-parents who wish to secure parental
responsibility for the child. The advantage that this has over an application
for a joint residence order is that the step-parent will continue to have
parental responsibility for the child if the joint residence order is no longer
in effect. The distinction between the Scottish provisions and those in
operation in England and Wales and New Zealand is that there is no mechanism
for agreeing parental responsibility for a step-parent without recourse to the
courts. The proposals to introduce a procedure to agree parental responsibility
for step-parents were rejected in Scotland on the grounds that it would be
difficult to ensure that any such agreement was in the best interests of the
child. It was also felt that if the authority to extend parental responsibility
to step-parents was to lie solely with the court there would be a greater
likelihood of the wishes of the child being given due consideration.
197.
The
ability to appoint a special guardian or an additional guardian recognises the
increasingly common situation where a child is born to a couple who are not
married, and subsequently one or both parents form new relationships. When this
happens the child is often part of two family units and may well be cared for primarily by a person who is not a biological
parent. The Commission understands that this can cause difficulties for the
spouse or partner of the biological parent who is fulfilling the role of a
parent without the associated rights. A very clear example of this is where a
step-parent wishes to apply for a passport for a child but is not legally
entitled to sign the application form. Irish law to date has not been open to
the possibility that a child may have more than two active guardians at any
stage. The Commission is of the view that, in light of the changing nature of
family relationships in Ireland and the growth in the numbers of second
families, it is appropriate to consider the possibility that more than two
people could have guardianship/parental responsibility for a child and invites
submissions on this.
198.
The Commission invites submissions on whether it would be appropriate to
develop a procedure to extend guardianship/parental responsibility to a
step-parent. The Commission also invites submissions on whether there should be
a minimum time period and whether the appointment would only be by agreement or
if it should be possible for a step-parent to make an independent application
to court for guardianship/parental responsibility.
The Commission’s
provisional recommendations in this Consultation Paper may be summarised as
follows:
198.
The
Commission provisionally recommends that, to ensure greater accuracy, clarity
and consistency, the terms “parental responsibility,” “day-to-day care” and
“contact” should be used in relevant Irish family law legislation in place of
“guardianship,” “custody” and “access”. [Paragraph 1.39]
199.
The
Commission provisionally recommends that a broad statutory definition of
parental responsibility should be adopted in Ireland. The Commission invites
submissions on whether this should include a requirement to consult with other
parties who have parental responsibility for the child where it is practical to
do so. The Commission also invites submissions on whether there should be a
single parenting order to determine who should have day-to-day care of the
child and who should have contact with the child. [Paragraph 1.54]
200.
The
Commission provisionally recommends that a statutory definition of day-today
care should be adopted in Ireland. The Commission invites submissions on the
precise wording of the definition. [Paragraph 1.56]
201.
The
Commission provisionally recommends that a statutory definition of contact
should be adopted in Ireland. The Commission invites submissions on the precise
wording of the definition. [Paragraph 1.58]
202.
The
Commission provisionally recommends that the changes recommended in this
Consultation Paper be incorporated into a consolidated Children Act, which
would replace the Guardianship of Infants Act 1964, as amended. [Paragraph
1.60]
203.
The
Commission provisionally recommends that the distinction between birth
registration and the allocation of guardianship/parental responsibility should
remain. [Paragraph 2.18]
204.
The
Commission invites submissions on the development of a statutory clarification
that joint registration of a birth does not give rise to automatic
guardianship/parental responsibility rights in relation to the child. [Paragraph
2.24]
205.
The
Commission invites submissions on whether it would be appropriate to impose a
statutory duty on a Registrar to make enquiries of a mother who comes in alone
to register the birth of a child if she wishes to include the father’s details
on the birth certificate. The Commission also invites submissions on whether
there should be a statutory duty on a Registrar to inform the mother of the
option of re-registering the birth at a later stage to include the father’s
details. [Paragraph 2.29]
206.
The
Commission invites submissions on whether it would be appropriate to introduce
compulsory joint registration of the birth of a child in Ireland. The
Commission also invites submissions on whether a non-marital father should be
able to provide his details independently to the Registrar, to be registered
once it is confirmed that he is the father. [Paragraph 2.34]
207.
The
Commission provisionally recommends that the presumption of paternity in the
context of married couples should be retained, but that the existing statutory
exceptions should be extended, and invites submissions on the detailed nature
of the extensions. [Paragraph 2.44]
208.
The
Commission provisionally recommends the introduction of a statutory presumption
that a non-marital father be granted an order for guardianship/parental
responsibility unless to do so would be contrary to the best interests of the
child or would jeopardise the welfare of the child. [Paragraph 3.09]
209.
The
Commission provisionally recommends that a central register should be
established in Ireland to keep account of the existence of statutory
declarations agreeing parental responsibility/guardianship of children. The
Commission invites submissions on whether the proposed register should be
managed by the General Register Office and also whether it should be publicly
available to search. [Paragraph 3.17]
210.
The
Commission invites submissions on whether it would be appropriate to introduce
automatic guardianship/parental responsibility for all fathers in Ireland. [Paragraph
3.21]
211.
The
Commission provisionally recommends that there should be no link between joint
registration of the birth of a child and guardianship/parental
responsibilities. However, the Commission invites submissions on this issue.
[Paragraph 3.29]
212.
The
Commission invites submissions on whether it would be appropriate to include a
statutory definition of the term in loco parentis in the legislation
governing family relationships. [Paragraph 4.26]
213.
The
Commission provisionally recommends the removal of the leave stage provided for
by section 11B(2) of the Guardianship of Infants
Act 1964, as inserted by section 9 of the Children Act 1997. The
Commission invites submissions as to whether the categories of persons who can
apply for access/contact should be expanded to include persons with a bona fide
interest as is currently provided for by section 37 of the Child Care Act
1991. [Paragraph 4.35]
214.
The
Commission invites submissions on the possibility of extending the right to
apply for (or to apply for leave to apply for) access/contact to include the child.
The Commission also invites submissions on whether it would be necessary to
include a leave stage to determine the capacity of the child; and to include a
specific requirement in Irish law that the wishes of the child be considered in
making a decision on an application for contact by a member of the child’s
extended family. [Paragraph 4.51]
215.
The
Commission provisionally recommends extending the right to apply for
custody/day-to-day care to persons other than parents or guardians of the child
where the parents are unwilling or unable to exercise their responsibilities.
The Commission also provisionally recommends that guardianship/parental
responsibility should be linked to an order granting custody/day-to-day care in
these circumstances. The Commission provisionally recommends that such rights
would be extended to the same category of persons who can currently apply for
leave to apply for access/contact. [Paragraph 4.56]
216.
The
Commission invites submissions on whether the category of persons who can apply
for custody/day-to-day care should be widened to include bona fide persons with
an interest as currently provided for in section 37 of the Child Care Act
1991 in the context of applications for access/contact. [Paragraph 4.57]
217.
The
Commission invites submissions on whether it would be appropriate to develop a
procedure to extend guardianship/parental responsibility to a step-parent. The
Commission also invites submissions on whether there should be a minimum time
period and whether the appointment would only be by agreement or if it should
be possible for a step-parent to make an independent application to court for
guardianship/parental responsibility. [Paragraph 4.65]
1 Report on the
Third Programme of Law Reform 2008-2014 (LRC 86-2007), Project 23.
2 Ibid at
15.
3 Report on the Rights and Duties
of Cohabitants (LRC 82-2006).
4 Report on Family Courts (LRC
52-1996).
5 Report on Aspects of Inter
Country Adoption Law (LRC 89-2008); Report on the Hague Convention on
Protection of Children and Co-operation in Respect of Inter Country Adoption
1993 (LRC 58-1998); Report on the Hague Convention on the Civil Aspects
of International Child Abduction and Some Related Matters (LRC 12-1985).
6 Report on Illegitimacy (LRC
4-1982).
7 The Status of Children Act 1987
provides that, since 1988, non-marital children are to inherit in the same
manner as marital children.
8 The Status of Children Act 1987 inserted
section 6A into the Guardianship of Infants Act 1964, which
empowers a court to make an order awarding guardianship to a non-marital father
on foot of an application. This was further extended by section 4 of the Children
Act 1997, but these changes stopped short of introducing automatic
guardianship rights for all fathers.
9 Section 6(1) of the Guardianship
of Infants Act 1964.
10 Section 10(2) of the Family Law (Divorce) Act 1996 states that
the granting of a decree of divorce does not in itself affect the right of
either parent to act as a joint guardian.
11 State (Nicolaou) v An Bord Uchtála [1966]
IR 567 (SC); G v An Bord Uchtála [1980] IR 32 (SC); JK v VW [1990]
2 IR 437 (SC).
12 Section 6(4) of the Guardianship of Infants Act 1964.
13 In G v An Bord Uchtála [1980] IR 32, at
55 O’Higgins CJ stated: “As a mother she has the right to protect and care for
and to have the custody of her infant child… This right is clearly based on the
natural relationship which exists between a mother and child.”
14 In State (Nicolaou) v An Bord Uchtála [1966] IR 567 Walsh
J at 643 stated “It has not been shown to the satisfaction of this court that
the father of an illegitimate child has any natural right as distinct from
legal rights, to either the custody or society of that child and the court has
not been satisfied that any such right has ever been recognised as part of
natural law.”
15 Section 2(4) of the Guardianship of Infants Act 1964, as amended
by, section 4 of the Children Act 1997.
16 Section 6A(1) of the Guardianship of
Infants Act 1964, as inserted by, section 12 of the Status of Children
Act 1987.
17 Section 8(4) of the Guardianship of Infants Act 1964, as
inserted by, section 7 of the Children Act 1997.
18 One of the core reasons offered for the distinction between marital and
non-marital fathers is the fact that a child born outside marriage can be
fathered in circumstances of rape or incest and there is a belief that in these
circumstances it is reasonable not to automatically accord the father
significant rights in relation to the child. There are difficulties with this
argument, in that children born to marital parents could also be the result of
rape. This is discussed further in Chapter 3.
19 (1986) 8 EHRR 214. Here the ECtHR held that family
life within the meaning of Article 8 existed between a heterosexual couple who had cohabited for approximately 15 years.
20 (1994) 18 EHRR 342. The ECtHR held that a child born to
a non-marital couple was a part of a family unit from the moment of birth.
21 Article 14 states “The enjoyment of the rights and freedoms set forth
in this Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth or
other status.”
22 Sections 7, 8, and 9 of the Guardianship of Infants Act 1964 set
out the rules in relation to the appointment of testamentary guardians and
court appointed guardians.
23 In this situation the grandparent is entitled to apply for child
benefit or lone parent allowance. This is a recognition that the grandparent is
in the position of a parent and exercising the necessary responsibilities. This
is discussed in greater detail in Chapter 4.
24 J v C [1970] AC 668; [1969] 1 All ER 788 cited with approval in W
O’R v EH [1996] 2 IR 248.
25 Section 11(2) of the Guardianship of Infants Act 1964 states
“The court may by an order under this section a) give such directions as it
thinks proper regarding the custody of the infant and the right of access to
the infant of his father or mother”. Section 6 of the Family Law Act 1995 and
section 5 of the Family Law (Divorce) Act 1996 also provide for the
making of custody orders in the context of other matrimonial proceedings
without the necessity to make a separate application under section 11 of the
1964 Act.
26 Section 11(4) of the Guardianship of Infants Act 1964.
27 Section 11(2) of the Guardianship of Infants Act 1964: see fn Error: Reference source not found above.
28 In O’D v O’D [1994] 3 Fam LJ 81 the High Court ordered that the
father have supervised access to his child in circumstances where there was a
reasonable suspicion that he had sexually abused the child. See Shannon Family
Law Practitioner (Thomson Roundhall 2001) at I-058.
29 Section 9 of the Children Act 1997, states that an application
for access may be made by the relative of a child, or a person who has acted in
loco parentis in respect of a child.
30 Shannon Family Law Practitioner (Thomson Roundhall 2003) at I31. See also the
discussion in Kaganas and Piper “Grandparents and Contact: ‘Rights v Welfare’
Revisited” (2001) 15 International Journal of Law, Policy and the Family 250
at 254.
31 See Kaganas “Grandparents’ rights and grandparents’ campaigns” (2007)
19(1) Child and Family Law Quarterly 17 at 20.
32 Law Reform Commission Report on
Illegitimacy (LRC 4-1982).
33 Applications for custody and access by parents and guardians are
governed by section 11 of the Guardianship of Infants Act 1964, which
also empowers the court to make orders in relation to maintenance. The court
must consider the welfare of the child when making such an order. The
Commission recognises that there may be difficulties with the operation of some
of these provisions in practice, but these have been addressed by the
Commission previously in its Report on Family Courts (LRC 52-1996) and
therefore are not examined again in this Consultation Paper.
34 Report on the Hague Convention on the Civil Aspects of International
Child Abduction and Some Related Matters (LRC 12-1985); Report on the
Hague Convention on Protection of Children and Co-operation in Respect of Inter
Country Adoption 1993 (LRC 58-1998); Report on Aspects of Inter Country
Adoption Law 2008 (LRC 89-2008).
35 Report on Aspects of Inter Country
Adoption Law 2008 (LRC
89-2008); Report on the Recognition of Foreign Adoption Decrees (LRC
29-1989).
36 Council of Europe, Parental
Responsibilities, Recommendation No. R(84)4, adopted by
the Committee of Ministers of the Council of Europe on 28th February 1984.
37 Council Regulation (EC) No 2201/2003.
38 See Chapters 2 and 3 for further discussion.
39 Law Reform Commission Report on
Illegitimacy (LRC 4-1982).
40 See Scottish Law Commission Report on Family Law (Scot Law Com
No. 135 of 1992); English Law Commission Family Law, Review of Child Law,
Guardianship and Custody (Law Com No. 172 of 1988); Lord Chancellor’s
Department Consultation Paper on Court Procedures for the Determination of
Paternity and the Law on Parental Responsibility for Unmarried Fathers (March
1998); New Zealand Law Commission New Issues in Legal Parenthood (Law
Com, Wellington, 2005); Ministry of Justice Discussion Paper,
Responsibilities for Children, especially when parents part- The Laws About Guardianship,
Custody and Access (Wellington, New Zealand, 2000).
41 The concept of legitimacy was removed from Irish law by the Status
of Children Act 1987. For further discussion of this see
below in Chapter 3.
42 Shatter Family Law (4th ed Butterworths
1997) at 534.
43 The parens patriae jurisdiction of the courts, derived from the
prerogative of the Crown, allowed the equitable courts to act as supreme parent
to all children. Shatter notes that while the father’s rights were to be
enforced, if they could be clearly shown to be contrary to the child’s welfare,
they were not implemented. Shatter ibid at 535.
44 Shatter Family Law (4th ed Butterworths
1997) at 980.
45 Shatter ibid at 981.
46 In re Tamburrini [1944] IR 508 (HC); In re Cullinane, an
Infant [1954] IR 270 (HC).
47 In re Kerr, an Infant (1889) 24 LR Ir 59 (Appeal)
48 Section 6(4) of the Guardianship of Infants Act 1964.
49 Section 11(4) of the Guardianship of Infants Act 1964.
50Section 6A of the Guardianship of Infants
Act 1964, as inserted by section 12 of the Status of Children Act 1987.
51 Law Reform Commission Report on Illegitimacy
(LRC 4-1982).
The Commission recommended automatic joint guardianship rights for non-marital
fathers. This recommendation was not adopted, but the provisions of the Status
of Children Act 1987 did improve the position of non-marital fathers.
52 Section 4(4) of the Children Act 1997.
53 Emphasis added.
54 Shatter Family Law (4th ed Butterworths
1997) at 532. This was approved by Finlay Geoghegan J in R.C v I.S [2003] IEHC 86; [2003] 4 IR 431.
55 Shannon Family Law Practitioner (Thomson Roundhall 2003) at I-034.
56 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 115.
57 R.C v I.S [2003] IEHC 86; [2003] 4 IR 431.
58 Section 11(4) of the Guardianship of Infants Act 1964, as
inserted by section 13 of the Status of Children Act 1987.
59 This was explicitly provided for in section 11A of the Guardianship
of Infants Act 1964 as inserted by section 9 of the Children Act 1997.
60 Shannon Family Law Practitioner (Thomson Roundhall 2003) at I-052.
61 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 126.
62 Kilkelly ibid at 149.
63 M.D v G.D High Court (30 July 1992).
64 See the Courts Service Annual Report 2006 at 130.
65 See the Courts Service Annual Report 2007 at 114.
66 See the Courts Service Annual Report 2008 at 79.
67 Ireland ratified the UN Convention on the Rights of the Child on 28th
September 1992 without reservation. However, the Convention has not been
incorporated into Irish law and therefore it has no direct legal standing in
Ireland, because of Article 26 of the Constitution.
68 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 150.
69 “Bis” refers to the 2003 Regulation being the second version of a
previous 2000 Regulation on the same topic.
70 In relation to Council Regulation (EC) No 1347/2000, Kilkelly ibid
at 51, notes that Brussels II only dealt with parental
responsibility in the context of matrimonial matters, and therefore only
applied to marital children. This created a hierarchy, with non-marital
children being excluded from the protection of the Regulations. Brussels II bis
remedies that, as it applies to all children.
71 SI No. 112 of 2005.
72 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 52.
73 Section 2(1) of the European Convention on Human Rights Act 2003
requires that in so far as is possible the Irish courts should interpret and
apply statutory provisions and rules of law in a Convention-compatible manner.
Section 4 provides that judicial notice shall be taken of the Convention
provisions and of the case law of the European Commission of Human Rights and
of the European Court of Human Rights.
74 Article 1 of Protocol 12 to the European Convention on Human Rights
(2000) prohibits discrimination in the enjoyment of rights set forth by law,
and specifically mentions discrimination on the grounds of birth status. See
also the discussion below of Protocol 7 to the Convention.
75 Article 8 states: “1. Everyone has the right
to respect for his private and family life, his home and his correspondence.
2.
There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.”
76 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 150. See Andersson
v Sweden (1992) 14 EHRR 615, para 72.
77 This was adopted by the Committee of Ministers of the Council of Europe
on 28th February 1984.
78 ETS No 192. The Convention came into force on 1st
September 2005.
79 The list of signatories is available on www.coe.int.
80 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 159.
Kilkelly suggests that “it would appear to be the absence of any mechanism to
facilitate and enforce the implementation of contact arrangements… that is
impeding the ratification process” at 160.
81 For example the 1980 Hague Convention on Civil Aspects of
International Child Abduction (implemented by the Child Abduction and
Enforcement of Custody Orders Act 1991) and the 2003 Brussels II bis Regulation.
82 GA res 44/25, annex, 44 UN GAOR Supp (No 49) at 167, UN Doc A/44/49
(1989), entered into force 2nd September 1990. Ireland ratified the 1989
Convention on the Rights of the Child on 28th September 1992 without
reservation.
83 Article 9 states “State parties shall respect the right of the child
who is separated from one or both parents to maintain personal relations and
direct contact with both parties on a regular basis, except if it is contrary
to the child’s best interests.”
84 This is discussed in greater detail below in Part E.
85 English Law Commission Family Law, Review
of Child Law, Guardianship and Custody (Law Com. No. 172 of 1988).
86 Section 85(1) of the Children Act 1975; Section 12(1) and (2) of
the Adoption Act 1976; section 3(1) of the Child Care Act 1980.
87 Section 10(2) of the Child Care Act 1980.
88 Section 1(1) of the Guardianship Act 1973.
89 This was stated by the Law Commission in the Report on Illegitimacy (No.
118) of 1982 at para. 4.18, and reiterated in the Report on Family
Law at 5, para 2.4.
90 Gillick v West Norfolk and Wisbech Area
Health Authority [1986] AC 112; [1985] 3 All ER 402.
91 Law Commission op cit fn Error:
Reference source not found at 5.
92 Law Commission op cit fn Error:
Reference source not found at 6. It was also seen as bringing English law in
line with the 1984 recommendation of the Council of Europe on Parental
Responsibilities discussed above.
93 English Law Commission Family Law, Review
of Child Law, Guardianship and Custody (Law Com. No. 172 of 1988) at
6.
94 Law Commission ibid at 6.
95 Scottish Law Commission Report on Family
Law (No. 135 of 1992).
96 Scottish Law Commission ibid at 3.
97 Law Commission Family Law, Review of Child
Law, Guardianship and Custody (Law Com. No. 172 of 1988) at 22.
98 Law Commission ibid at 24.
99 Law Commission op cit fn Error:
Reference source not found at 24. There would also be a specific issues order
and a prohibited steps order.
100 Law Commission op cit fn Error:
Reference source not found at 25.
101 Law Commission op cit fn Error:
Reference source not found at 25.
102 Law Commission Family Law, Review
of Child Law, Guardianship and Custody (Law Com. No. 172 of 1988) at 26.
103 Scottish Law Commission Report
on Family Law (No. 135 of 1992) at 9.
104 Scottish Law Commission ibid at 10.
105 Scottish Law Commission op cit fn
Error: Reference source not found at 11.
106 Scottish Law Commission op cit fn
Error: Reference source not found at 11.
107 Kilkelly Children’s Rights in Ireland (Tottel 2008) at 115.
108 Law Commission Report on Family
Law, Review of Child Law, Guardianship and Custody (Law Com. No. 172 of
1988) at 7.
109 Ibid at 7.
110 Law Commission op cit fn Error:
Reference source not found at 7.
111 Law Commission op cit fn Error:
Reference source not found at 7.
112 The Scottish Law Commission’s 1992 Report on Family Law (No. 135
of 1992) was attuned to the importance of an awareness of the age and maturity
of the child, and the effect that this has on the relationship between parent
and child. See pages 5-6 and 11 of the 1992 Report.
113 Law Commission Report on Family
Law, Review of Child Law, Guardianship and Custody (Law Com. No. 172 of
1988) at 6.
114 Scottish Law Commission Report
on Family Law (No. 135 of 1992) at 4.
115 Scottish Law Commission ibid at 8. Footnotes omitted.
116 Scottish Law Commission Report
on Family Law (No. 135 of 1992) at 6.
117 Section 2(3) and section 2(6) of the Children (Scotland) Act 1995.
118 When the birth of a child is registered this triggers a claim for child
benefit in the Department of Social and Family Affairs. The parent is contacted
automatically in respect of this payment following registration.
119 Section 19(1) of the Civil Registration Act 2004.
120 In addition to the parents of a child other qualified informants are: a
guardian of the child, a person present at the birth, a person having charge of
the child, if the birth occurred in a dwelling, any other person who was in the
dwelling at the time, and if the birth occurred in a hospital or institution,
the chief officer of that institution: see section 19(6) of the Civil
Registration Act 2004.
121 Section 19(1) of the Civil Registration Act 2004.
122 This is referred to as a Birth Notification Form (Form BNF/01) and is
completed by a doctor or midwife in the case of a home birth. See the
information leaflet provided by the General Register Office Information for
Parents on the registration of a birth and a guide to the content of a Birth
Certificate, which is available in the office of the Registrar and also
online at www.groireland.ie.
123 Part 1 of the First Schedule to the 2004 Act sets out the other
particulars to be recorded including the date and place of the birth, the time
of birth, the sex of the child, the forename and surname of the child, the date
of birth and marital status of both parents, and the birth surname of the
mother’s mother and of the father’s mother. The name, qualification, address
and signature of the informant must also be recorded. The register must then be
signed and dated by the Registrar.
124 However, the Commission understands that in most cases the birth of the
child would have been registered in the usual way prior to the child being
placed for adoption and therefore it would be possible to obtain a birth
certificate for the person provided he or she had the relevant details, such as
the name of the biological mother.
125 Section 22(11) of the Adoption Act 1952.
126 Section 22(5) of the Adoption Act 1952 requires the General
Register Office to maintain an index to ensure traceability between each entry
in the Adopted Children Register and the corresponding entry in the register of
births.
127 Vol. 685 Dáil Debates No. 4 (24 June 2009, Written Questions).
128 In response to the parliamentary question referred to ibid fn Error: Reference source not found, the Minister for
Social and Family Affairs set out the governing legislation and the role of the
Registrar General in maintaining the Adopted Children Register. She also stated
“[w]hile it is appreciated that this may cause a degree of inconvenience in
certain instances, the security and confidentiality of the Adopted Children
Register is of paramount importance and it is for this reason only that the
restriction on availability exists. For this reason also, there are no plans to
amend the legislation to change the current arrangements in relation to this
matter.”
129 The term “person” is used here to ensure clarity and to avoid excessive
repetition of the term “father”. “Person” is also the term used in section 22
of the Civil Registration Act 2004 in this context.
130 Section 22(2)(a) of the Civil Registration Act 2004 states “if
the mother of the child (“the mother”) and the person jointly so request the
registrar in writing and give to him or her a declaration in writing of the
person that he is the father of the child.”
131 Section 22(2)(b) of the 2004 Act.
132 Section 22(2)(c) of the 2004 Act.
133 Section 22(2)(d) of the 2004 Act.
134 Section 45 of the Status of Children Act 1987 also makes
reference to section 215 of the Social Welfare (Consolidation) Act 1981.
This provides for the recovery of contributions by the Department of Social
Welfare from persons liable to maintain a person granted supplementary welfare
allowance. The information leaflet provided by the General Register Office also
refers to a court order under the Social Welfare (Consolidation) Act 1993 naming
the man as the father of the child as being sufficient for the registrar to
re-register the birth. The 1981 and 1993 Acts have been replaced by the Social
Welfare Consolidation Act 2005.
135 Section 22(4) of the Civil Registration Act 2004.
136 The 28 day period is not a statutory period but an internal practice
within the General Register Office. At one point, the period for submissions
was 21 days, but this was altered to ensure consistency in the practices of the
General Register Office, as section 65(2) of the Civil Registration Act 2004
provides for a 28 day period for the giving of information to the Registrar.
137 Section 22(5) of the Civil Registration Act 2004.
138 Section 24(4) of the Civil Registration Act 2004.
139 Section 24(5) of the Civil Registration Act 2004.
140 Section 111 of the Adoption and Children Act 2002 amended
section 4 of the Children Act 1989 to provide that where a non-marital
father jointly registers the birth of the child with the mother, he will obtain
parental responsibility.
141 Section 23 of the Family Law (Scotland) Act 2006 introduced
parental responsibility on joint registration of the birth.
142 Section 1 of the Family Law Act (Northern Ireland) 2001 amended
section 5 of the Children (Northern Ireland) Order 1995 to ensure that a
non-marital father could obtain parental responsibility for his child following
the joint registration of the birth.
143 Section 6A(1) of the Guardianship of
Infants Act 1964, as inserted by, section 12 of the Status of Children
Act 1987.
144 Section 2(4) of the Guardianship of Infants Act 1964, as amended
by, section 4 of the Children Act 1997.
145 General Register Office Information for Parents on the registration
of a birth and a guide to the content of a Birth Certificate at
www.groireland.ie.
146 Section 23 of the Civil Registration Act
2004.
147 Department for Work and Pensions Joint birth registration: recording
responsibility (June 2008, CM 7293).
148 At the time of writing (September 2009), the Welfare Reform Bill
2009 has passed the House of Commons and completed Committee stage in the
House of Lords on 7th July 2009. The Report Stage in the House of Lords is
scheduled for the 22nd, 27th and 29th October 2009.
149 This can be contrasted with Ireland where the figure is estimated at
20%.
150 White Paper Joint birth registration: recording responsibility (June
2008, CM 7293) at 3.
151 White Paper Joint birth registration: recording responsibility (June
2008, CM 7293) at 3.
152 Births and Deaths Registration Act 1953 and the Children Act
1989.
153 This is stated in the explanatory memorandum accompanying the Welfare
Reform Bill 2009.
154 This is contained in section 2 of schedule 6 of the Bill as a proposed
amendment to the Births and Deaths Registration Act 1953.
155 This is contained in section 4 of schedule 6 of the Bill, which
proposes to insert section 2B into the Births and Deaths Registration Act
1953.
156 The detail of the exceptions are to be inserted into section 2B(4) of the Births and Deaths Registration Act 1953.
157 See the discussion above.
158 Information leaflet provided by the General Register Office available
at www.groireland.ie.
159 Shatter Family Law (4th ed Butterworths
1997) at 430. This was further complicated by the rule in Russell v Russell [1924] AC 687 (HL) which prevented spouses
giving evidence about their sexual relationship that would have the effect of
rendering a marital child illegitimate. The continuing application of this rule
in Irish law was questioned in S v S [1983] IR 68. Section 47 of the Status
of Children Act 1987 now expressly provides for the giving of such
evidence.
160 Information leaflet provided by the General Register Office available
at www.groireland.ie.
161 Shatter Family Law (4th ed Butterworths
1997) at 430.
162 Section 46(3) of the Status of Children Act 1987 provides that:
“Notwithstanding subsection (1) of this section, where-
1.
the
birth of the child is registered in a register maintained under the Births
and Deaths Registration Acts, 1863 to 1987, and
2.
the
name of a person is entered as the father of the child on the register so
maintained,
then the person whose name is so entered
shall be presumed to be the father of the child unless the contrary is proved
on the balance of probabilities.”
163 A divorce a mensa et thoro (a divorce
“from bed and board”), in effect a judicial separation order rather than a
dissolution of marriage, was available under the Matrimonial Causes and
Marriage Law (Ireland) Amendment Act 1870. It was a fault-based decree,
granted on the grounds of adultery, cruelty or unnatural practices.
164 This was how most separations were given effect to prior to the
introduction of judicial separation in the Judicial Separation and Family
Law Reform Act 1989.
165 Section 5 of the Family Law (Divorce)
Act 1996.
166 Judicial separations were introduced in Ireland in the Judicial Separation
and Family Law Reform Act 1989, as amended by the Family Law Act 1995.
Generally an application for judicial separation will be made under Part I of
the 1989 Act and the ancilliary orders will be in accordance with the
provisions of the 1995 Act.
167 Section 5 of the Family Law (Divorce) Act 1996 provides that in
order to obtain a divorce in Ireland the couple must be living separate and
apart for a period of 4 years out of the preceding five.
168 The Commission understands that in some situations the mother does not
wish to inform her estranged husband that she has had a child with another man
due to concerns for her safety. In other cases the mother may not know where
her husband is or how to contact him in order to get him to make a declaration
in relation to paternity. The Commission also understands that there are
situations where the estranged husband may refuse to sign the statutory
declaration when requested to do so.
169 Section 6A(1) of the Guardianship of
Infants Act 1964, as inserted by, section 12 of the Status of Children
Act 1987.
170 Section 2(4) of the Guardianship of Infants Act 1964, as amended
by, section 4 of the Children Act 1997.
171 For example G v An Bord Uchtála [1980] IR 32 and W O’R v EH
and An Bord Uchtála [1996] 2 IR 248. These rights
can arise under either Article 40.3 or Article 42 of the Constitution.
172 Article 41.3.1 states “The State pledges itself to guard with special
care the institution of Marriage, on which the Family is founded, and to
protect it against attack.” Shannon Family Law Practitioner (Thomson
Roundhall 2003) at para A-029 notes that “[t]he pre-eminence of the family
based on marriage… is not so much asserted as assumed. However, true such an
assumption may have been in 1937, more recent social trends have diluted the pre-eminence
of marriage.”
173 Report on Illegitimacy (LRC 4-1982) at 85.
174 Ibid at 88. The Commission gave the examples of
children born as a result of adulterous or incestuous unions. The Commission
stated that the “law should face the reality of the child’s origins in such
cases: the proper solution does not appear to be for the law to deny the
reality of the relationship.”
175 Op cit fn Error: Reference source not
found at 88.
176 Op cit fn Error: Reference source not
found at 145.
177 That it would not be in the best interests of the child or the mother
of a child born as a result of rape or incest for the father to have automatic
rights in respect of that child. There would also be practical difficulties in
the context of adoption if all fathers had automatic guardianship where the
father was unknown or could not be contacted.
178 Law Reform Commission Report on
Illegitimacy (LRC 4-1982) at 147.
179 Law Reform Commission ibid at 1.
180 Such as the abolition of the concept of illegitimacy. This was given
effect to by sections 3 and 4 of the Status of Children Act 1987.
181 English Law Commission Family Law, Review of Child Law, Guardianship
and Custody (Law Com. No. 172 of 1988); Scottish Law Commission Report
on Family Law (Scot Law Com No. 135 of 1992); See also the Lord
Chancellor’s Department Consultation Paper on Court Procedures for the
Determination of Paternity and the Law on Parental Responsibility for Unmarried
Fathers (March 1998).
182 New Zealand Law Commission New Issues in Legal Parenthood (Law
Com. Report 88 of 2005) at 30. The English Lord Chancellor’s Consultation Paper
on The Law on Parental Responsibility for Unmarried Fathers (March 2008)
also notes at 16 that there is “a fundamental issue as to whether an unmarried
father needs to be accepted as a ‘meritorious’ parent before being able to
acquire parental responsibility for his children. There is no such requirement
for mothers, or for married fathers, who in practice may or may not be
‘responsible’ parents.”
183 Section 111 of the Adoption and Children
Act 2002 (England and Wales).
184 Section 23 of the Family Law (Scotland)
Act 2005.
185 Section 1 of the Family Law Act
(Northern Ireland) 2001.
186 Section 19 of the Care of Children Act
2004 (New Zealand).
187 Section 17 of the Care of Children Act
2004 (New Zealand).
188 Section 61C of the Family Law Reform Act 1995 (Commonwealth).
189 [1990] 2 IR 437. Finlay C.J. at 447 noted that “…[t]he discretion vested in the Court on the making of such
an application must be exercised regarding the welfare of the infant as the
first and paramount consideration.”
190 [1996] 2 IR 248.
191 Shannon Family Law Practitioner (Thomson Roundhall 2003) at para
I-038.
192 Shannon ibid at para I-038.
193 Shannon op cit fn Error: Reference
source not found at para H-045.
194 Courts Service Annual Report
2008 at 79, available at www.courts.ie.
195 Courts Service Annual Report
2007 at 28, available at www.courts.ie. These figures were also produced in Family
Law Matters Vol 2, No. 3, Winter 2008.
196 Courts Service ibid at 114. In 2006 there were 1,742 applications.
1,268 of these were granted, 432 were withdrawn or struck out, and 42
applications were refused. This amounts to 3.31% of applications which were
refused.
197 (5th April 1989) FC NAP FP 041/055/89, cited at 17 of New Issues in
Legal Parenthood.
198 SI No. 5 of 1998.
199 Section 2(4)(d) of the Guardianship of
Infants Act 1964 as inserted by section 4 of the Children Act 1997.
200 This is stated in paragraph 2 of the explanatory note accompanying the
1998 Regulations.
201 Report of the Family Law
Reporting Project Committee (2009) at 32. The Committee was chaired by Kearns J.
202 Report of the Family Law
Reporting Project Committee at 33.
203 SI 1991/1478, as amended by the Parental Responsibility Agreement
(Amendment) Regulations 1994, SI 1994/3157. The Regulations were also
amended by SI 2005/2088 to apply to agreements with step-parents.
204 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 413.
205According to Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 411 the understanding was that the numbers of
non-married couples making statutory agreements conferring parental
responsibility would reduce significantly following the introduction of
automatic parental responsibility on joint registration of the birth.
206 Truex “Why Just ‘Parental’
Responsibility?
Why Not ‘Family’ Responsibility? Musings from a multi cultural family lawyer,”
A paper presented at the 10th Australian National Family Law Conference,
Melbourne, March 2002, available at
www.internationalfamilylaw.com.
207 Rhoades, Graycar, and Harrison The
Family Law Reform Act, the first three years (University of Sydney and the
Family Court of Australia 2000).
208 See McD v L [2008] IEHC 96; [2008] 1 IR 417 (SC). This case involved a
lesbian couple who had conceived a child through the use of a sperm donor known
to them. The agreement between the parties stated that the applicant donor
would be known to the child and would be in the role of an uncle. Following the
birth of the child the applicant sought to increase his role, and the
respondent couple attempted to distance him. The respondent couple then decided
to move to Australia for a year with the child, and the applicant applied for
guardianship of the child and an injunction preventing the couple from
travelling. The injunction was granted pending the decision in the substantive
matter, namely the guardianship application. The applicant was not successful
in his application, and the case was decided in the best interests of the
child, but the case indicates the consequences which could possibly flow from
automatic rights based solely on a genetic link.
209 This was in response to the Lord Chancellor’s Department Consultation
Paper on Court Procedures for the Determination of Paternity and the Law
on Parental Responsibility for Unmarried Fathers (March 2008).
210 Registration for the purpose of the Act must be in accordance with
either section 10(1)(a)-(c) or section 10A(1)(a)-(c)
of the Births and Deaths Registration Act 1953.
211 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 411.
212 Lord Chancellor’s Department, op cit fn
Error: Reference source not found.
213 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 411.
214 Pickford “Unmarried Fathers and the Law” in Bainham, Day Sclater and
Richards (eds) What is a Parent? A
Socio-Legal Analysis (Hart Publishing 1999).
215 The birth must be registered in accordance with section 18(1)(a)-(c) and section 20(1)(a) of the Births, Deaths and
Marriages (Scotland) Act 1965.
216 Dey “Mixed Messages: Parental Responsibilities, Public Opinion and the
Reforms of Family Law” (2006) 20 International Journal of Law, Policy and
the Family 225.
217 Section 17(1) states that “The father and
mother of a child are guardians jointly of the child unless the child’s mother
is the sole guardian of the child because of subsection (2) or subsection (3).”
These subsections provide that the mother will be sole guardian if she was not
married to or in a civil union with the father at anytime between the
conception of and birth of the child, nor was she living with the father in a de
facto relationship at the time the child was born.
218 If the father was not married to, in a civil union with, or living with
the mother of the child in a de facto relationship for any period
between the conception and the birth of the child he will not be automatically
entitled to guardianship.
219 Section 9(2) of the Births, Deaths, Marriages and Relationships Act
1995 (New Zealand).
220 This is in line with a particular policy focus on grandparents’ rights
to contact and parental responsibility in England and Wales and Scotland. For
further discussion on the positive and negative aspects of this approach see
Kaganas “Grandparents’ rights and grandparents’ campaigns” (2007) 19(1) Child
and Family Law Quarterly 17.
221 Currently the legislative term in place is “access”. As the Commission
has provisionally recommended in Chapter 1 altering the term to contact, both
terms are used throughout the chapter.
222 Currently the term in use in the legislative provisions is
“guardianship”. However, the Commission provisionally recommends altering the
term to parental responsibility, and therefore both terms are used in the
chapter. For a more detailed discussion on the issue of terminology see Chapter
1.
223 The Commission provisionally recommends replacing the term “custody” as
it is currently used with the term day-to-day care. Both terms are, therefore,
used in the chapter.
224 Section 11B of the Guardianship of Infants Act 1964, as inserted
by section 9 of the Children Act 1997.
225 It could occur where the non-marital mother of the child died without
appointing a testamentary guardian and the non-marital father had not secured
guardianship rights either by agreement or court order. However, in those
circumstances the non-marital father could still secure the necessary rights.
The situation would be more complicated where the non-marital mother died without
appointing a testamentary guardian and the non-marital father had been
appointed guardian on foot of an application under section 6A of the Guardianship
of Infants Act 1964 but was subsequently removed in accordance with section
8 of the Guardianship of Infants Act 1964, as amended by section 7 of
the Children Act 1997. In this situation there would be a parent alive
but he would not be a guardian of the child, and it is unlikely he would be
successful in another application.
226 Section 8 of the Guardianship of Infants
Act 1964.
227 When adoption was first introduced in Ireland a marital child could not
be adopted. Sections 2 and 3 of the Adoption Act 1988 provided that a
marital child could be adopted but only in circumstances where the court finds
that the parents “for physical or moral reasons...failed in their duty towards
the child.”
228 Article 8 states that:
“1)
Everyone has the right to respect for his private and
family life, his home and his correspondence.
2)
There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.”
229 (1979-1980) 2 EHRR 330 at para 45.
230 High Court, 30th July 1992.
231 See Kaganas “Grandparents’ rights and grandparents’ campaigns” (2007)
19(1) Child and Family Law Quarterly 17 for a discussion on the
inadequate research in relation to the benefits associated with contact between
grandparents and grandchildren. She notes that in spite of this the rhetoric
that contact with grandparents is beneficial to a child has become part of the
family law policy in the UK. She suggests this is in part because the
grandparents “movement” has allied itself with the fathers’ rights movement,
and also because an increased role for family members is in line with
government objectives because it removes some financial and care-giving burdens
from the State.
232 Section 11(2)(a) of the Guardianship of
Infants Act 1964.
233 Section 11(4) of the Guardianship of Infants Act 1964.
234 Section 11B of the Guardianship of Infants Act 1964, as inserted
by section 9 of the Children Act 1997.
235 Section 11 of the 1964 Act provides a right to apply for access to
parents and guardians of a child.
236 Murdoch Murdoch’s Dictionary of Irish Law (4th ed Lexis-Nexis 2004) at 543. This is consistent with a
number of sources, including Stroud’s Judicial Dictionary of Words and
Phrases (Sweet & Maxwell 2000), Vol.2, pp.1496-7. Murdoch also cites
O’Hanlon J in Hollywood v Cork Harbour Commissioners [1992] IR 457 at
465 where being in loco parentis was described as “Any situation where
one person assumes the moral responsibility, not binding in law, to provide for
the material needs of another.”
237 English Law Commission Report on Family Law Review of Child Law,
Guardianship and Custody (Law Com. No. 172) at 33, para 4.41.
238 Kaganas “Grandparents’ rights and
grandparents’ campaigns” (2007) 19(1) Child and Family Law Quarterly 17 at
21.
239 Lord Mackey LC (503 HL Official Report (5th series) col 1342)
referenced in Lowe and Douglas Bromley’s Family Law (10th ed Oxford University Press 2007) at 547.
240 House of Commons Constitutional Affairs Committee Family Justice:
The operation of the family courts Fourth Report of Session 2004-5 Vol 1
(TSO, 2005).
241 Kaganas “Grandparents’ rights and grandparents’ campaigns” (2007) 19(1)
Child and Family Law Quarterly 17 at 18 refers to the requirement in
parenting plans in use in England and Wales and Scotland that parents give
serious consideration to contact with grandparents. There is also a charter for
grandchildren in Scotland which promotes contact between grandparents and
grandchildren.
242 McMichael v United Kingdom (1995) 20 EHRR 205.
243 The whānau is “the extended family, which has been the basic
social unit of Maori society. It usually includes grandparents or
great-grandparents and their direct descendants.” This definition appears in
the report of the Law Commission of New Zealand on New Issues in Legal
Parenthood (Report No 88 of 2005).
244 A hapu is a sub-group within an iwi (tribe) made up from a number of
whānau groups.
245 An iwi is “a regionally based kin group, which claims descent from a
single distant ancestor; a tribe.” Law Commission of New
Zealand on New Issues in Legal Parenthood (Report No 88 of 2005).
246 This is further reinforced by section 5(d) which states that
“relationships between the child and members of his or her family, family
group, whānau, hapu, or iwi should be preserved and strengthened, and
those members should be encouraged to participate in the child’s care,
development, and upbringing.”
247 Section 48(3) of the Care of Children Act 2004 (New Zealand).
248 For further discussion see below in relation to applications for contact
by a child.
249 In making an order under section 8 the court also has supplemental
powers under section 11(7) to make directions or attach conditions to an order
under section 8. This ensures maximum flexibility in the operation of the
orders provided for. Lowe and Douglas Bromley’s Family Law (10th ed Oxford University Press 2007) at 514.
250 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 521.
251 This was expressed by Wrangham J in M v M (Child: Access) [1973]
2 All ER 81.
252 A parent, guardian or a person with a residence order in his or her
favour are entitled to apply for contact without leave.
253 An exception to this is a person who is or was, for a period of six
months prior to the application, a local authority foster parent. Such a person
requires the consent of the local authority prior to making an application for
leave. According to Lowe and Douglas Bromley’s Family Law (10th ed Oxford University Press 2007) at 544 this additional
requirement was introduced to ensure that an application by such a foster
parent would not interfere with the local authority’s plans to promote
stability in the child’s life.
254 There is some discussion as to whether section 10(8) or section 10(9)
of the Children Act 1989 applies if the applicant is a child other than
the child concerned. See Lowe and Douglas Bromley’s Family Law (10th ed Oxford University Press 2007) at 545.
255 Practice Direction (Application by Children: Leave) [1993] 1 FLR
313.
256 There are further conditions attached to the making of an enforcement
order set out in sections 11K and 11L of the Children and Adoption Act 2006.
257 The new section 25 of the Guardianship of Infants Act 1964 came
into force on 9th January 1998.
259 Hague Convention on the Civil Aspects of International Child Abduction
1980, which was implemented in Irish law by the Child Abduction and
Enforcement of Custody Orders Act 1991.
260 Op cit fn Error: Reference source not
found at 437.
261 Op cit fn Error: Reference source not
found at 438.
262 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) and Kaganas and Piper “Gandparents and Contact:
‘Rights v Welfare’ Revisited” (2001) 15 International Journal of Law, Policy
and the Family 250 at 254.
263 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 546.
264 Emphasis added.
265 Emphasis added.
266 See below for a discussion on special guardians.
267 Section 10(5) of the Children Act 1989.
268 The criteria are: the nature of the proposed application for a section
8 order, the applicant’s connection with the child, any risk that the
application would disrupt the child’s life to such an extent that the child
would be harmed, and where the child is being looked after by a Local
Authority, the Local Authority’s plans for the child’s future and the wishes
and feelings of the parents of the child.
269 Section 2(6) states that a person with parental responsibility “shall
not cease to have that responsibility solely because some other person
subsequently acquires parental responsibility for the child.”
270 See Chapter 1 for a discussion on the detailed definition of parental
responsibility contained in the Scottish legislative provisions.
271 (Law Com. No. 172) at 34, para 4.45.
272 (1985) No. 91 at paras 4.15-4.19.
273 Scottish Law Commission Report on Family Law (Scot Law
Com No. 135) at 58, para 5.39.
274 This would also be useful in Ireland in a situation where one spouse in
a married couple died and the surviving spouse remarried. In these
circumstances there is no option for the parent and step-parent to jointly
adopt the children as they are marital children. If the court was in a position
to make an order that the couple were to have joint day-to-day care of the
child, which in turn ensured parental responsibility for the step-parent, there
would at least be a procedure in place to strengthen the position of the
step-parent in respect of the children.
275 Scottish Law Commission Report on Family Law (Scot Law
Com No. 135) at 58, para 5.39.
276 For a discussion of proposals that were considered in Scotland in
relation to this issue, but not ultimately included in the legislative
provisions, see Dey “Mixed Messages: Parental Responsibilities, Public Opinion
and the Reforms of Family Law” (2006) 20 International Journal of Law,
Policy and the Family 225.
277 Lowe and Douglas Bromley’s Family Law (10th ed
Oxford University Press 2007) at 423.
278 Explanatory Notes to the Adoption and Children Act 2002 at para
268.
279 See Chapter 3 on the responsibilities and rights of non-marital fathers
for a discussion on the allocation of guardianship in New Zealand.
280 The person must also never have been a respondent in domestic violence
proceedings, have been convicted of an offence involving harm to a child, or
have been involved in previous proceedings under the Care of Children Act
2004, or a former corresponding act, or Part II of the Children, Young Persons , and their Families Act 1989 involving the
child concerned.
281 The guardian must also declare that to the best of his or her knowledge
the proposed additional guardian has not been convicted of an offence of the
kind referred to in section 23(2)(d) of the Care of Children Act 2004
and that there is no other reason why the proposed additional guardian is not
eligible.