The Child and Family Relationships Act 2015 which has been passed by the Oireachtas [but is not yet commenced into law which means it does not come into force until it is commenced] introduces some New Rights for unmarried fathers

this is a paper delivered by Keith Walsh at the Law Society Conference in June 2015, if you have any questions or queries please contact him on 01 455 4723 or keith@kwsols.ie

 

Introduction

 

The history of the rights accorded to the unmarried or natural father in Irish law is not a happy one. Unlike unmarried mothers they are not automatically guardians of their children unless they subsequently marry the mother or are appointed guardian by the court, appointed as testamentary guardian by will or appointed by statutory declaration. In this paper I set out the current situation as regards the unmarried father’s rights to be recognised as a father and as a guardian under the 1964 Act and examine the changes to these rights which will come into effect on the commencement of the Child and Family Relationships Act 2015.

 

The new act permits unmarried fathers to apply for custody and access without being made a guardian. I also look at how the creation of new rights for others which will impact on the rights of unmarried fathers following the commencement of the new act.

 

 

Unmarried fathers rights to be considered a ‘father’ of their child

 

CURRENT SITUATION UNDER THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED

 

Fathers married to the mothers of their children are automatically guardians and fathers of their children – section 6(1) of the 1964 Act.

 

Section 2 of the Guardianship of Infants Act 1964 defines a ‘father’  as including  a male adopter under an adoption order. It currently does not include the unmarried father of the child unless:

 

The unmarried father marries the mother of his child. 
The unmarried father was appointed guardian by the Court
The unmarried father was party to a voidable marriage to the mother and a decree of nullity was granted after, or at some time during the period 10 months before, the birth of the child or a void marriage which the father reasonably believed resulted in a valid marriage. Father but not a guardian.
The unmarried father and mother have made a statutory declaration that the unmarried father is the guardian.
The mother appoints the unmarried father testamentary guardian in her will then he will become a testamentary guardian (possibly with other guardians) on her death. His right to become a guardian arises from the will and not his position as a father as the mother can appoint whomsoever she wishes as testamentary guardian.  

 

Note:         The Protection of Children (Hague Convention) Act 2000 section 3(2)(e) provided that the definition of “father” in section 2 (inserted by the Children Act, 1997) of the Guardianship of Infants Act, 1964, shall include the father of a child who has, by virtue of Article 16, acquired parental responsibility corresponding to guardianship in relation to the child by operation of the law of a state other than the State, and section 8(4) (which provides that certain guardians may be removed from office only by the court), as so inserted, of that Act shall apply in relation to such a father.

 

 

The definition of ‘father’ is expanded in Section 11 to include unmarried fathers, for that section only, which deals with applications to court by parents or guardians for its direction on any question affecting the welfare of the child. Thus an unmarried father may apply to court for a direction regarding the custody or access of his child even if he is not a guardian (and not a ‘father’ according to Section 2).

 

 

CHILD AND FAMILY RELATIONSHIPS ACT

 

All the current rights to be called a ‘father’ are maintained. The new act defines father as follows:

 

‘father’            includes a male adopter under an adoption order but subject to section 11(4), [which permits the father who is not a guardian to apply for access and custody] does not include the father of a child who has not married that child’s mother unless—

an order under section 6A is in force in respect of that child, [Court appointed guardian]
the circumstances set out in subsection (3) of this section apply,[void/voidable marriage]
the circumstances set out in subsection (4) of this section apply, [statutory declaration]
the circumstances set out in subsection (4A) of this section apply, [12 months cohabitantst] or
the father is a guardian of the child by virtue of section 6D; [rights equivalent to guardianship in another state

New situations in which an unmarried father is a ‘father’ following the commencement of the Child and Family Relationships Act 2015

 

the unmarried father and mother have been cohabitants for not less than 12 consecutive months after the date of commencement of Section 2(4A) of the new act. This period must include a minimum of three months after the birth of the child.

 

It is interesting to note that the unmarried father in this situation automatically becomes the ‘father’ of the child.

 

But the new Section 6A inserted by the new act envisages situations where a parent may not be a guardian (a father or mother as defined by section 2 of the 1964 act is a parent):

Power of court to appoint parent as guardian

6A. 

(1)  The court may, on an application to it by a person who, being a  parent of the child, is not a guardian of the child, make an order appointing the person as guardian of the child.

(2) Without prejudice to other provisions of this Act, theappointment under this section of a guardian shall not, unless the courtotherwise orders,affectthepriorappointment(whetherunderthisoranyother enactment) of any other person as guardian of thechild.

 

Section 6(3) of the 1964 Act [which was not deleted or amended by the new act]

 

‘on the death of a mother of the child the father, if surviving shall be guardian of the child, either alone or jointly with any guardian appointed by the mother or by the court.’

 

While lawyers may appreciate the difference between being a father or a parent in fact and in law, it will be more difficult to explain this to a client. 

 

           

The unmarried father has obtained rights and responsibilities equivalent to guardianship in another state which are entitled to recognition- section 6D of the 1964 as inserted by the new act

in accordance with a judgement under the Hague Convention or Brussels II bis- or
where such rights and responsibilities are entitled to recognition by the Hague Convention or
by operation of the law of a state other than the State as provided for in Chapter III of the Hague Convention.

 

In addition under the new act the parent or parents of a donor conceived child as defined in section 5 of the new act is also a parent. This may include a cohabitant where both the mother and her cohabitant consent to the parentage (see section 5 and section 11 of the new act).  

 
 
 
Parentage of child born as a result of DAHR procedure

            5(1) The parents of a donor-conceived child who is born as a result of a DAHR  procedure to which subsection (8) applies are—

the mother, and
the husband, civil partner or cohabitant, as the case may be, of the mother.

Where a donor-conceived child is born as a result of a DAHR procedure, other than a DAHR procedure to which subsection (8) applies, the mother alone shall be the parent of that child.
Where a person is, under subsection (1) or (2), the parent of a child, he or she shall have all parental rights and duties in respect of the child.
In deducing any relationship for the purposes of any enactment, the relationship between every donor-conceived child and his or her parent or parents shall be determined in accordance with this section and all other relationships shall be determined accordingly.
A donor of a gamete that is used in a DAHR procedure—

is not the parent of a child born as a result of that procedure, and
has no parental rights or duties in respect of the child.

A donor of an embryo that is used in a DAHR procedure—

is not the parent of a child born as a result of that procedure, and
has no parental rights or duties in respect of the child.

On and after the coming into operation of this section, a reference in any enactment to—

a mother or parent of a child shall be construed as not including a woman who is the donor of a gamete or embryo that was used in a DAHR  procedure that resulted in the birth of the child, and
a father or parent of a child shall be construed as not including a man who is the donor of a gamete or embryo that was used in a DAHR procedure that resulted in the birth of the child.

This subsection applies to a DAHR procedure in relation to which—

the intending mother has consented under section 9 to the parentage under subsection (1) of the child born as a result of the procedure, where her declaration under section 9(1)(c) includes a statement referred to in section 9(3)(d) in respect of her husband, civil partner or cohabitant, as the case may be, and
the husband, civil partner or cohabitant of the intending mother referred to in paragraph (a) has consented under section 11  to the parentage under   subsection of the child referred to in that paragraph.

 

Section 11 Consent of husband, civil partner or cohabitant of intending mother
 
(1) A person, being the husband, civil partner or cohabitant of the intending mother concerned, consents under this section to be the parent, under section 5(1)(b), of a child born as a result of a DAHR procedure where, before that procedure is performed—

the person has attained the age of 21 years,
the intending mother has consented under section 9 to a DAHR procedure, and her declaration under section 9(1)(c) includes a statement referred to in section 9(3)(d) in respect of the person,
the person has received the information referred to in section 13, and
the person makes a declaration in accordance with subsections (2) and (3).

A declaration under subsection (1)(d) shall be made before the DAHR procedure is performed and shall be in writing, dated, and signed by the person in the presence of a person authorised in that behalf by the operator of the DAHR facility where  the DAHR procedure is to be performed.
A declaration under subsection (1)(d) shall be in such form as may be prescribed and shall include the following statements:

that the person is the husband, civil partner or cohabitant, as the case may be, of the intending mother;
that the person has received the information referred to in section 13;
that, in the event that a DAHR procedure is performed, the person—

consents to the provision to the Minister of the information referred to in

section 28(3)(b) in respect of him or her, and

agrees to comply with his or her obligations under section 27;
that the person is aware that—

the donor of a gamete or embryo used in the DAHR procedure shall not be the parent of any child born as a result of that procedure, and
by consenting in accordance with this section, he or she shall, under this Act, together with the mother of the child, be the parent of such a child;

 

that, in the event that a child is born as a result of the DAHR procedure, the person—

consents to the recording on the Register of the information specified in section 33(3)(c) in respect of him or her,
consents to the recording on the Register of the information specified in paragraphs (a) and (b) of section 33(3) in respect of the child, and
understands that the child may, in accordance with section 35, access the information specified in section 33(3)(d) in respect of a person who is, in relation to the child, a relevant donor and seek to contact him or her.

 

Right of the unmarried father to be appointed guardian 

 

CURRENT SITUATION UNDER THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED

 

The married parents of children are both automatically guardians of their children. Only the mother of a child born outside marriage is automatically a guardian of children with the non marital father. The non marital or natural father may become a guardian as follows:

 

He marries the mother

 

He applies to Court under section 6A of the 1964 Act to be appointed guardian.

 

He is not automatically appointed as guardian see J.K v V.W. [1990] 2 I.R. 437 and analysis in Child Law, 2nd ed., Shannon, 2010 p.725 et seq.

 

Finlay C.J. stated in J.K v V.W.

 

‘the discretion vested in the Court on the making of such an application [pursuant to section 6A of the 1964 Act which grants the court the power to appoint the unmarried father  as guardian– my insertion] must be exercised regarding the welfare of the infant as the first and paramount consideration. The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by and the society of its father is one of the many factors which may be viewed by the court as relevant to its welfare….’

 

Not a very heartening judgement for unmarried fathers. But the Constitution states:

 

Article 41.3.1              The State promises to ‘guard with special care the institution of marriage, on which the family is founded and to protect it against attack’. 

 

Article 42A.2.1           In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

 

                                    [note: it is interesting to observe that the constitutional amendment appears to equalise marital and non marital parents, if only for the purpose of making it easier to remove children from married parents who fail in their duty to their children].         

 

Article 42A.4.1           Provision shall be made by law that in the resolution of all proceedings -

(i) brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

 

(ii) concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration

 

Article 42A.4.2           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.

 

 

Prior to the passing into force of the new constitutional provisions, the court had to regard the welfare of the child as the first and paramount consideration when dealing with applications for guardianship, custody and access under the 1964 Act.

 

According to the latest available Annual Report of the Courts Service for the first quarter of 2013 2,261 (76%) orders granting guardianship for unmarried fathers were made in the District Court, 71 (2 ½ %) were refused and 654 (22%) were withdrawn or struck out.

           

Only an unmarried father can (prior to the introduction of the new act) be appointed guardian by the Court where both the mother and father are alive.

 

The unmarried father was party to a voidable marriage to the mother and a decree of nullity was granted after, or at some time during the period 10 months before, the birth of the child or a void marriage which the father reasonably believed resulted in a valid marriage.

 

Both the mother and father agree to execute a statutory declaration pursuant to section 2(4) of the 1964 Act. An obvious difficulty arises where the mother does not agree to execute the statutory declaration. Only an unmarried father can be appointed guardian using the statutory declaration.

 

Testamentary guardian – section 8 of the 1964 Act, if the unmarried mother dies and appoints the umarried father guardian of his child or children in her will. The unmarried mother is free to appoint whomsoever she wishes as testamentary guardians and testamentary guardians must act jointly with the surviving parent. The surviving ‘parent’ may object to the testamentary guardian and if so then an application can be made to Court to determine the matter. 

 

 

Section 7 Guardianship of Infants Act 1964

(1)The father of an infant may by deed or will appoint a person or persons to be guardian or guardians of the infant after his death.

(2) The mother of an infant may by deed or will appoint a person or persons to be guardian or guardians of the infant after her death.

 

(3) A testamentary guardian shall act jointly with the surviving parent of the infant so long as the surviving parent remains alive unless the surviving parent objects to his so acting.

 

(4) If the surviving parent so objects or if a testamentary guardian considers that the surviving parent is unfit to have the custody of the infant, the testamentary guardian may apply to the court for an order under this section.

 

(5) The court may—

 

(a) refuse to make an order (in which case the surviving parent shall remain sole guardian), or

 

(b) make an order that the testamentary guardian shall act jointly with the surviving parent, or

 

(c) make an order that he shall act as guardian of the infant to the exclusion, so far as the court thinks proper, of the surviving parent.

 

(6) In the case mentioned in paragraph (c) of subsection (5) the court may make such order regarding the custody of the infant and the right of access to the infant of the surviving parent as the court thinks proper, and the court may further order that the surviving parent shall pay to the guardian or guardians, or any of them, towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the surviving parent, the court considers reasonable.

 

(7) A person under the age of twenty-one years shall be entitled to appoint guardians by will notwithstanding section 7 of the Wills Act, 1837.

 

(8) An appointment of a guardian by deed may be revoked by a subsequent deed or by will.

The Protection of Children (Hague Convention) Act 2000 section 3(2)(e) provides that the definition of “father” in section 2 (inserted by the Children Act, 1997) of the Guardianship of Infants Act, 1964, shall include the father of a child who has, by virtue of Article 16, acquired parental responsibility corresponding to guardianship in relation to the child by operation of the law of a state other than the State, and section 8(4) (which provides that certain guardians may be removed from office only by the court), as so inserted, of that Act shall apply in relation to such a father.

 

CHILD AND FAMILY RELATIONSHIPS ACT

 

The old means of becoming guardian remain and the following additional ways for the unmarried father to become a guardian of his child are introduced :

 

Section 49 of the Child and Family Relationships Act inserts a number of sections into the 1964 Act which create new classes of guardians.

 

Adoption:

 

Where civil partners or a cohabiting couple have jointly adopted a child under an adoption order the civil partners or cohabiting couple shall be joint guardians of the child. Section 47 of the new act inserts this provision into section 6(1A) of the 1964 Act.

 

2 adults who are cohabitants of each other and who have been living together as cohabitants for a continuous period of not less than 3 years.’

 

Section 6(3A) as inserted into the 1964 Act by the new act states that on the death of a civil partner or one cohabitant of a cohabiting couple who have jointly adopted a child with the other then the surviving civil partner or cohabitant shall be guardian of the child either alone or jointly with any other guardian appointed by the deceased civil partner or cohabitant or by the court.

 

Unmarried DAHR fathers

 

Section 49 of the new act inserts a new Section 6B into the 1964 Act which inter alia deals with the father who is a parent of a child as defined in section 5(1)(b) of the new act. Section 5(1) states

 

The parents of a donor conceived child who is born as a result of a DAHR procedure to which subsection (8) applies are-

the mother and,
the husband, civil partner or cohabitant, as the case may be, of the mother.

 

Section 6B states that a man who is the parent pursuant to section 5(1)(b) shall be a guardian where he has married the mother. A parent who has entered into a civil partnership with the DAHR mother shall be the guardian. In addition the parent pursuant to section 5(1)(b)  may apply for  declaration that they are a guardian under section 6F of the 1964 Act as inserted by section 49 of the new act where the DAHR parent has been a cohabitant with the mother (and lived with the child) for not less than 12 consecutive months following the commencement of this section, of which at least 3 months must be after the birth of the child.

 

Cohabitant fathers –section 2(4A)

 

An unmarried father who has been a cohabitant with the mother for not less than 12 consecutive months after section 2(4A) comes into force, which period must include at least 3 months after the birth of the child, is considered a father of the child according to section 43 of the new act which inserts a new section 2(4A) into the 1964 Act.

 

This same unmarried father can then apply to the Court for a declaration that they are or are not a guardian pursuant to section 6F of the 1964 Act [once commenced] ‘by virtue of the circumstances set out in section 2(4A). A guardian can make this application for the same declaration. All applications must be made on notice to any guardians.

 

Section 6F(5) of the 1964  as inserted by the new act when commenced states:

 

‘where on an application for a declaration under this section it is proved on the balance of probabilities that a person named in the application is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of the child concerned, the court shall make the declaration accordingly. ‘

 

This section appears to be an attempt to limit the court’s investigation to whether or not the applicant comes within cohabitation period and seems at odds with the recent constitutional amendment re: voice of the child and the new section 3 of the 1964 Act as inserted by section 45 of the new act

 

Where, in any proceedings before any court, the-

 

Guardianship, custody or upbringing of, or access to, a child, or
Administration of any property belonging to or held on trust for a child or the application of the income thereof,

is in question, the court, in deciding that question, shall regard the best interests of the child as the paramount consideration.

In proceedings to which subsection (1) applies, the court shall determine the best interests of the child in accordance with Part V.’

or the person seeking the declaration.

                       

Cohabitant fathers on the death of the mothers- what happens to cohabitant fathers in circumstances where they were not declared guardians by the Court and the mother has died. Do they automatically assume guardianship rights as ‘fathers’ under section 6 of the 1964 Act or must they apply to court for a declaration of guardianship pursuant to section 6F?  

           

Section 6(1) of the 1964 Act

6(1)       The father and mother of a child shall be guardians of the child jointly.

Section 6A as inserted by the new act states:
Power of court to appoint parent as guardian

6A.  (1)     The court may, on an application to it by a person who, being a  parent of the child, is not a guardian of the child, make an order appointing the person as guardian of the child.

Without prejudice to other provisions of this Act, the appointment under this section of a guardian shall not, unless the court otherwise orders, affect the prior appointment (whether under this or any other enactment) of any other person as guardian of the child.”

 

 

3.   Rights of unmarried fathers to apply for custody and access where not a guardian

      This right is continued in the new act. However the new act substitutes the word ‘parent’ for ‘father and mother’ in section 11A of the 1964 which when combined with the definition of parent for section 11 only to include ‘a parent who is not a guardian of the child’ means that the new section 11A in the 1964 as amended by the new act will read as follows:

     

      11A           Custody may be granted to parents jointly

‘For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if it thinks appropriate, grant custody of a child to the child’s parents jointly’.

 

The issues arising from the new act for unmarried fathers are not so much the new rights granted to them but the new rights not granted to them but granted to others. The unmarried father must coexist with the holders of such rights which could be considered adverse to their rights:

 

Section 6C – the new power of the court to appoint a person other than a parent as guardian. This will adversely impact on unmarried fathers rights where the mother of their child or  children marries or is in a civil partnership or is a cohabitant for over 3 years with another person and has shared responsibility for the child’s day to day care for more than 2 years, as this new person will be entitled to apply for guardianship.

 

Alternatively a person who has provided for the child’s day to day care for a continuous period of more than 12 months and where the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child may also apply. When a person applies in this situation the CFA must be put on notice by the Court.  

 

An order for guardianship cannot be made without the consent of the guardians except where this consent is unreasonably withheld and it is in the best interests of the child to make such an order. The court must ensure that the child concerned to the extent possible given their age and understanding has the opportunity to make their views known to the court and the court must have regard to the guardian or guardians existing and to their role in the child’s upbringing.

 

Where the court appoints a guardian in this case and one or more guardians is still living then a limited number of rights and responsibilities can be vested in the guardian by the court as follows:

 

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, in respect of which a guardian’s consent is needed
particular enactments including the passports act
to place the child for adoption and consent to the adoption of the child, under the Adoption Act, 2010.

 

Section 6E of the 1964 Act as inserted by the new act permits the court to appoint a temporary guardian on the nomination of a qualifying guardian.  

 

‘qualifying guardian’, in relation to a child, means a person who is a guardian of that child and who—

is the parent of the child and has custody of him or her, or
not being a parent of the child has custody of him or her to the exclusion of any living parent of the child;

Power of court to appoint temporary guardian

6E. (1) A qualifying guardian may nominate a person to be, in the event that the qualifying guardian becomes incapable through serious illness or injury of exercising the rights and responsibilities of guardianship, temporary guardian of the child concerned.

The nomination under subsection (1) of a person to be a temporary guardian shall—

be in writing, in such form as may be prescribed, and
specify such limitations (if any) as the qualifying guardian  wishes to impose on the rights and responsibilities of guardianship that the temporary guardian, if appointed under this section, may exercise.

Where a qualifying guardian who has nominated a person under subsection (1), or a person so-nominated (in this section referred to as the ‘nominated person’), is of opinion that the qualifying guardian is incapable through serious illness or injury of exercising the rights and responsibilities of guardianship, that guardian or nominated person may apply to the court for an order under this section.
An application under subsection (3) shall be on notice to—

each guardian of the child, including, where the application is made by the nominated person, the qualifying guardian concerned,

 

where the application is made by the qualifying guardian concerned, the nominated person,
a parent (if any) of the child who is not the child’s guardian, and
the Child and Family Agency.

The court, on hearing an application under subsection (3), and having regard to the views (if any) of the persons referred to in subsection (4), may make an order appointing the nominated person to be a temporary guardian of the child concerned where, and only where, it is satisfied that—

the qualifying guardian concerned is incapable through serious illness or injury of exercising the rights and responsibilities of guardianship,
the nominated person is a fit and proper person to exercise the rights and responsibilities specified in subsection (8), and
it is in the best interests of the child concerned for the nominated person to become the temporary guardian of the child.

An order under subsection (5) may impose—

such limitations on the exercise by the temporary guardian of the rights and responsibilities of guardianship, and
such conditions relating to the periodic review by the court of the appointment of the person as temporary guardian,

as the court considers necessary in the best interests of the child concerned.

In imposing limitations or conditions under subsection (6), the court shall have regard to the limitations specified by the  qualifying guardian under subsection (2).
Subject to the terms of the order concerned under subsection (5), a person appointed to be temporary guardian—

may exercise the rights and responsibilities of guardianship in respect of the child concerned,
shall take custody of the child concerned, and
shall act jointly with any other guardian of the child concerned, including the qualifying guardian concerned.

A temporary guardian shall, and the qualifying guardian concerned may, where he or she is of opinion that the qualifying guardian is no longer incapable of exercising the rights and responsibilities of guardianship, apply to the court for an order under subsection (11).
An application under subsection (9) shall be on notice to—

each guardian of the child concerned, including, where the application is made by a temporary guardian, the qualifying guardian concerned,
any parent of the child who is not the child’s guardian, and
the Child and Family Agency.

The court, on hearing an application under subsection (9), may make an order—

confirming that the appointment of the temporary guardian shall continue in force,
to the effect that the qualifying guardian is capable of exercising the rights and responsibilities of guardianship and revoking the appointment of the temporary guardian, or
to the effect that the qualifying guardian shall have specified rights and responsibilities of guardianship and that the other rights and responsibilities of guardianship shall be exercised by the qualifying guardian and temporary guardian jointly.

An order under subsection (11) may—

specify the period for which it shall remain in effect,
impose such conditions relating to the periodic review by the court of the order as the court considers necessary in the best interests of the child concerned, and
provide for such additional matters as the court considers necessary in the best interests of the child concerned.

In considering an application under subsection (3) or (9), the court shall ensure that the child concerned, to the extent possible given his or her age and understanding, has the opportunity to make his or her views on the matter known, and the court shall take account of those views.

 

each guardian of the child concerned, including, where the application is made by a temporary guardian, the qualifying guardian concerned,
any parent of the child who is not the child’s guardian, and
the Child and Family Agency.

The court, on hearing an application under subsection (9), may make an order—

confirming that the appointment of the temporary guardian shall continue in force,
to the effect that the qualifying guardian is capable of exercising the rights and responsibilities of guardianship and revoking the appointment of the temporary guardian, or
to the effect that the qualifying guardian shall have specified rights and responsibilities of guardianship and that the other rights and responsibilities of guardianship shall be exercised by the qualifying guardian and temporary guardian jointly.

An order under subsection (11) may—

specify the period for which it shall remain in effect,
impose such conditions relating to the periodic review by the court of the order as the court considers necessary in the best interests of the child concerned, and
provide for such additional matters as the court considers necessary in the best interests of the child concerned.

In considering an application under subsection (3) or (9), the court shall ensure that the child concerned, to the extent possible given his or her age and understanding, has the opportunity to make his or her views on the matter known, and the court shall take account of those views.

 

When it comes to responsibility for maintenance the unmarried father is now to be considered a ‘parent’ under the act while when it comes to rights of guardianship he is still not considered either a ‘father’ or a ‘parent’. Section 53 of the new act amends section 11 of the 1964 Act by the insertion of 11(4)

 

                        In the case of a child whose parents have not married each other-

 

a reference in subsection (2)(b) [which deals with ordering a ‘parent’ to pay maintenance] to a parent of that child shall be construed as including a parent who is not a guardian of the child.

 

 

 

The following categories of person can now apply for custody pursuant to a new section 11E of the 1964 as inserted by section 57 of the new act (when commenced) :

A relative of a child (defined in section 2 of the 1964 Act as inserted by section 43 of the new act as a grandparent, brother, sister, uncle or aunt of the child)

         

A person who was married to  or in civil partnership with or was for over 3 years the cohabitant of the parent of the child and who also shared responsibility with that parent for the child’s day to day care.

 

An adult who has for more than 12 continuous months provided the child’s day to day care and where the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in relation to the child.