Sarah Ryan looks at the reforms introduced by the Children and Family Relationships 2015 Act in terms of guardianship, custody and access. Sarah Ryan is an Associate Solicitor in our Family Law Unit.
The Children and Family Relationships Act 2015 has reformed the areas of guardianship, custody and access. Children’s Alliance has described the reforms introduced as “representing the most important reform of child and family law for a generation.”
The Act has increased the rights of unmarried fathers and extended rights of guardianship, custody and access to relatives and non-relatives. As such, this Act recognises the increasing diversity of family life in Ireland today.
Guardianship Applications – Who can now apply?
The Act firstly requires that the child’s best interests are to be the paramount consideration in any decision on guardianship, custody and access.
A step parent, civil partner or a person who has cohabited with a parent for not less than three years is now permitted to apply to the Court to become a guardian where he or she has co-parented the child for more than two years.
In addition, any person e.g. a grandparent, other relative, individual or foster carer, who has provided for the child’s day to day care for a continuous period of one year may now apply for guardianship if the child has no parent or guardian who is willing to or able to exercise the rights and responsibilities of guardianship.
If the Court appoints a guardian to a child where one or both parents are alive, the guardian will not generally have the right to make certain major decisions in respect of the child unless that right is expressly granted by the Court. The main decisions involved are:
Where the child should live and with whom
Decisions about the child’s religious, cultural and linguistic upbringing
Consent to medical, dental and other health related treatment
It is now possible for a guardian to nominate a substitute guardian, entitled a ‘temporary guardian’, where a parent is suffering from a significant illness or injury and is prevented from exercising guardianship responsibilities in respect of the child.
Unmarried fathers and Guardianship
Unmarried fathers now automatically become guardians if they live for twelve months with the child’s mother, including three months following a child’s birth. The period of co-habitation can occur at any time before the child turns 18 years of age.
A parent’s spouse or civil partner, or a parent’s co-habitant of not less than three years, can apply for custody where he or she has shared parenting of the child for two years.
A person can apply for custody if he or she has parented and cared for the child from day to day for at least twelve months and there is no parent/guardian willing or able to exercise the powers and responsibilities of guardianship.
Grandparents, relatives, and other persons can now apply directly to the Court for an Order in respect of access without first having to seek the Court’s permission, as was previously the case. This reform is much welcomed as the previous two stage process mainly only resulted in increased costs and delays for applicants.
The Court can impose enforcement orders where a guardian is denied access, requiring he or she obtain compensatory time with the child or that he or she is reimbursed for any expense
incurred in attempting to enforce their rights or that one or both parties attend mediation or counseling.
View of the Child
In all cases, the views of the child must be taken into account if the child is in a position to express views. The Court can provide for expert reports (Section 32 reports) to be carried out on any question affecting the welfare of the child and to ensure the views of the child are heard.
The Children and Family Relationships Act 2015 now provides relatives and non-relatives with the right to apply for and obtain Guardianship, Custody and Access Orders under certain circumstances. The Children and Family Relationships Act 2015 has therefore introduced much needed reform in order to formally recognise the modern family unit in Ireland today.
About the author: Sarah Ryan is an Associate Solicitor at Dermot G. O'Donovan's office.