WIDE RANGING CHANGES TO FAMILY LAW INTRODUCED FOLLOWING THE PART COMMENCEMENT OF THE CHILD AND FAMILY RELATIONSHIPS ACT 2015 on the 18th January 2016                                                 

Very important modernising changes to the practice of family law, particularly in the area of

guardianship, access and custody were introduced following the commencement of part of the Child and Family Relationships Act 2015 on 18th January 2016 by the Minister for Justice & Equality Frances Fitzgerald. Unmarried fathers, civil partners, cohabiting couples, grandparents and other relatives as well as those in loco parentis were given new rights relating to applications for guardianship, custody and access. Changes to the District, Circuit and Superior Court Rules were introduced on the same day in order to give effect to the changes in the Act.

 

The recognition of parentage in cases of donor assisted human reproduction will have to wait as these parts of the 2015 Act have not yet been commenced. New rights for civil partners and cohabiting couples to adopt jointly have not yet been introduced. Sections which would amend the Adoption Act 2010 have not yet been introduced although contained in the Act.

 

A SUMMARY OF THE MAIN CHANGES TO GUARDIANSHIP, CUSTODY, ACCESS & MAINTENANCE EFFECTIVE FROM 18 JANUARY 2016

1. Best interests of child to be paramount

In dealing with applications for guardianship, custody or access regarding  a child, or dealing with the administration of any property belonging to a child or held on trust for a child or the application of the income thereof, the court must regard the best interests of the child as the paramount consideration. The best interests principle was inserted into the constitution as part of the 31st referendum and is given effect in legislation by Section 45 of the 2015 Act which inserts a new Section 3 into the Guardianship of Infants Act 1964.

 

2.How the court must determine the best interests of the child and the importance of hearing the voice of the child

 

The court must have regard to any factors or circumstances which it considers relevant to the child and his or her family.  A non- exhaustive list of factors which might be included in this consideration are provided but no indication is given as regards the weight to be given to each individual factor.  One of the factors mentioned is the ascertainable views of the child concerned. This factor will be very significant as it also has a constitutional basis following the passing of the 31st referendum and the insertion of the new article 42A into the constitution which states in subsection  1° inter alia ‘provision shall be made in law that in the resolution of all proceedings concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration’ and ‘provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.’

 

 

 

Other factors include

The benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child’s upbringing and, except where such contact is not in the child’s best interests, of having sufficient contact with them to maintain such relationships;
The physical, psychological and emotional needs of the child concerned taking into account the child’s age, stage of development and the likely effect on him or her of any change in circumstance
The history of the child’s upbringing,
The child’s religious, spiritual, cultural and linguistic upbringing and needs
The child’s age and any special characteristics
Any harm which the child has suffered or is likely to suffer and the protection of the child’s physical and psychological well being
Proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent and to maintain and foster relationships between the child and his or her relatives.
The capacity of each person in respect of whom an application is made under the Act to care and meet the needs of the child, to communicate and co-operate on issues relating to the child and to exercise relevant powers, responsibilities and entitlements to which the application relates.

Section 63 of the 2015 Act inserts a new part V into the 1964 Act which deals with best interests of the child and this new part contains a new section 31 which sets out the above factors.

 

3.How will the views of the child be ascertained ?

The court must facilitate the free expression by the child of their views and must ensure that  those views are free from undue influence. The court can make an order appointing an expert to prepare a report regarding any matter affecting the child’s welfare and/or to determine and convey to the court the views of the child. The expert may be called as a witness by either party or by the court.  Section 63 of the 2015 Act inserts a new section 32 into the new part V of the 1964 Act which deals with appointment of experts and their reports.  

 

4.Guardianship defined

Prior to this Act, guardianship was understood to entitle the guardian to have a say in the major decisions in a child’s life – where they reside, go to school, healthcare issues. Section 44 of the Act inserts a new section 6C(11) into the 1964 Act which sets out the rights and responsibilities of a guardian:

To decide on the child’s place of residence
To make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;
To decide with whom the child is to live
To consent to medical, dental and other health related treatment for the child
Miscellaneous issues including passport formalities
To place a child for adoption and consent to an adoption of the child

 

5.‘Automatic’ guardianship for unmarried fathers but time only starts to run from 18 January 2016

The natural father for the first time can automatically become the guardian of his child if he lives with the child’s mother for at least 12 consecutive months, 3 of which must be after the birth. The earliest date this living together can start is the 18 January 2016. Although the father in this situation is a guardian they can (and should) seek a formal declaration from the court and if the court finds, on the balance of probabilities, that the living together test has been satisfied then the court must make a declaration that they are a guardian of the child. Section 49 of the 2015 Act inserts new sections 6B(2) & (3) and  a new section 6F into the Guardianship of Infants Act, 1964.

 

6.Persons who are not parents can now apply for guardianship

A person can now apply to court for guardianship if they are not the parent of the child in any one of the following circumstances:

The applicant is married to or is in civil partnership with the parent of the child
The applicant has cohabited with the child’s parent for over 3 years and they have shared responsibility for the child’s day to day care for more than 2 years.
The applicant has been responsible for the child’s day to day care for over a year and no parent or guardian is willing to assume the responsibilities of guardianship.

Section 49 of the 2015 Act inserts section 6C into the 1964 Act.

 

7.New temporary guardians can be appointed by the court

A guardian may nominate a temporary guardian for their child if they are suffering from a serious illness or injury which effectively stops them from exercising their guardianship role. This temporary guardian would be appointed by the court and the court may limit the responsibilities the temporary guardian could exercise, presumably based on the input of the guardian and the circumstances of the particular case.

Section 49 of the 2015 Act inserts section 6E into the 1964 Act.

 

8.Relatives and other persons can now apply for custody

If the child’s parent’s spouse, civil partner or cohabitant has shared parenting of the child for more than 2 years they may apply for custody of the child. The cohabitant must in addition be a cohabitant for at least 3 years in order to be eligible to apply for custody.
An adult who has been in loco parentis for more than one year in a situation where no parent or guardian is willing or able to take on the powers and responsibilities of guardianship.
A grandparent, brother, sister, uncle or aunt of the child (defined in the act as a ‘relative’) can apply for custody where they are an adult and they have had day to day care of the child for at least 12 months and there is no parent or guardian  willing or able to take on the powers and responsibilities of guardianship.
The consent of all guardians of the child are necessary before a court will grant an order for custody but this consent can be dispensed with by the court if it is satisfied it is in the best interests of the child to do so.

Section 57 inserts section 11E into the 1964 Act.

 

9.A relative can apply for access and custody, someone who resides with or who has resided with the child can apply for access and custody to the child and the spouse, civil partner and cohabitant (of the parent) may apply for custody

Previously, apart from the parent, only a grandparent could apply for access to the child and this was a two stage process where the grandparent first had to seek and obtain the leave of the court to make an application for access. The new Act has included brother, sister, uncles and aunts as well as grandparents in the category of those who can now apply for access and has expanded this to now also include a right to apply for custody and has simplified the procedure by abolishing the requirement to seek leave.
A person with whom the child lives or formerly lived may apply for access to the child. A person may apply for custody if they have provided for the child’s care for more than 12 months in circumstances where the child has no guardian or parent who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.  
The court in deciding whether to grant access to relatives or those in loco parentis must examine the applicant’s connection with the child, the risk of the application disrupting the child’s life to the extent that the child would be harmed by it, the wishes of the child and whether it is necessary to make an order for access.
The spouse or civil partner of the parent as well as cohabitants who have lived with the parent for more than 3 years may apply for custody provided they have shared day to day responsibility for the child’s care.  
The court cannot make an order for custody for the above categories of person without the consent of each guardian of the child but the court may dispense with this consent if it is satisfied it is in the best interests of the child to do so.

Section 55 of the 2015 Act inserts a new section 11B into the 1964 Act(re: access)

Section 55 of the 2015 Act inserts a new section 11E into the 1964 Act(re: custody)

 

10.Additional enforcement orders where there is a denial of access or custody (where an order for access or custody has been made)

The court has been given new powers of enforcement such as to order compensatory time with the child, to reimburse expenses and to compel one or more parties to attend parenting programmes, family counselling or receive information on mediation where one of the parties unreasonably denies the other access or custody rights. An order for custody or access must be made before any enforcement order can be made. 

Section 60 of the 2015 Act inserts sections 18A to 18D into the 1964 Act dealing with enforcement.

 

11.Maintenance responsibility of a cohabiting partner for their partner’s child

In cases where a cohabiting partner is guardian of the other partner’s child then the court can, on application to it, make an order for maintenance in respect of the child against the partner who is a guardian of the child (but not the parent).

Section 73 of the 2015 Act inserts section 5B into the Family Law (Maintenance of Spouses and Children) Act 1976.

 

12.More rights for dependent child of civil partners 

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 has been amended principally to give the dependent child of civil partners similar legal protections to those enjoyed by a child born to married parents and this includes a maintenance obligation where the child is not the child of one of the partners. 

Section 135 of the 2015 Act inserts a definition of ‘dependent child’ into section 2 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the 2010 Act).

Section 140 of the 2015 Act inserts an amendment to section 45 of the 2010 Act which permits maintenance orders to be made in respect of dependent children as well as the civil partner.  Sections 135-150 and 151-172 of the 2015 Act deal with amendments to the 2010 Act.

 

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PANEL 1:

RESOURCES YOU SHOULD LOOK UP IF YOU HAVE A MATTER INVOLVING GUARDIANSHIP, CUSTODY, ACCESS OR MAINTENANCE:

The Child and Family Relationships Act 2015
The Child and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016 , S.I.  12 of 2016,
The new District, Circuit and Superior Court Rules available on the Irish Statute Book website under 2016 statutory instruments. Also due to be published on courts.ie under ‘rules’ section.
The revised version of the Guardianship of Infants Act, 1964 as produced by the Law Reform Commission and which was updated with amendments after the part commencement of the 2015 Act. It greatly facilitates understanding of how the law will work in practice and is available on their website under the ‘revised acts’ headings.

 

Panel 2

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PART COMMENCEMENT OF THE CHILD AND FAMILY RELATIONSHIPS ACT 2015 as and from 18th January 2016                                                 

Commencement order:                Child and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016 , S.I.  12 of 2016,

Changes to the District, Circuit and Superior Court Rules were introduced on the same day in order to give effect to the changes in the Act.

As of the 18th January 2016, the following provisions of the Act come into effect

Part 1                            Preliminary and General

Part 4                            Amendments to Guardianship of Infants Act 1964

Except the following parts of the 2015 Act- section 43(1)(iii), parts of 43(a)(iv), section 47, part of section 49, part of section 51

Part 5                            Amendments to Succession Act 1965

Only two of the seven sections in this part are brought into effect 68,70.

Part 6                            Amendments to Family Law (Maintenance of Spouses and Children) Act 1976

Except part of section 79, part of section 80 and part of section 81

Part 8                            Amendments to the Family Law Act 1995

Part 10                          Amendment to Passports Act 2010 [this part has only one section and was commenced pursuant to an earlier commencement order in 2015]

Part 12                          Amendments to Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010     

Except part of section 135, section 151

Part 13                          Miscellaneous Consequential Amendments to Other Acts

Except sections 176 and 177.

5.What is not commenced [save as already set out above]

Part 2                            Parentage in Cases of Donor-Assisted Human Reproduction

Part 3                            Donor-Assisted Human Reproduction

Part 5                            Amendments to Succession Act 1965

sections 64-67,69 not commenced,

Part 9                            Amendments to Civil Registration Act 2004

Part 11                          Amendments to Adoption Act 2010