A REVISED SCHEME for The Children and Family Relationships Bill was published by the Department of Justice on 23 September, 2014. This Bill, if enacted, will provide for a radical overhaul in respect of family law issues and will repeal the Guardianship of Infants Act, 1964.
The Guardianship of Infants Act, 1964 is the underpinning legislation in bringing applications before the District Court seeking access, custody and guardianship. This Bill will fully repeal this Act and provide for sweeping changes in respect of the law in this area; the Act will, to a degree, recognise the blended family in modern society today.
Fundamental changes are proposed in respect of guardianship whereby automatic guardianship will be extended to non-marital fathers who have lived with the child’s mother for at least 12 months including three months following the child’s birth.
The scheme will also introduce a two-tier structure of guardianship whereby a person who is in loco-parentis or a parent’s co-habiting partner will be in a position to apply to become a child’s guardian if they have shared caring responsibilities for two years. These guardians will not have the same rights as the parents of the child but they will be in a position to take day-to-day decisions on behalf of a child.
Changes to adoption law
Furthermore, the law on adoption will be significantly changed whereby co-habiting couples as well as civil partners will be in a position to apply to adopt jointly. In the cases of co-habiting partners, they will have to be living together for three years to satisfy the criteria to apply for a declaration of suitability to adopt.
In respect of access, significant changes will be introduced by this Bill whereby members of the wider family can apply for access to a child. Furthermore, penalties for non-compliance with custody and access orders are introduced; as the law stands, the only application available is for committal to prison of the party in breach of a Court Order. The focus on this scheme will require a parent to give the other parent compensatory time, a refund of the parent’s expenses and require a parent to participate in a post-separation parenting scheme.
Still no legislation for surrogacy
The new Bill will also provide for parentage to be assigned in cases of assisted reproduction and establishes a right of the child to know his or her identity. The Bill does not legislate for surrogacy, however.
The Bill will provide for a child expert to be appointed to make known the views of the child in proceedings for guardianship, custody or access. It will put the power of the District Court to appoint such an expert to determine and convey the child’s views on a statutory footing – this would bring Irish legislation in line with the European legislation and the requirement to have the voice of the child known in any proceeding which may affect the child.
The scheme is now being drafted formally as a Bill. An overhaul of this area is badly needed as society has progressed beyond the model of the family envisaged by the legislators in 1964. The current law can cause inequalities, particularly in relation to non-marital fathers. This Bill, if enacted, will herald extensive changes to family law in Ireland and may address some of the inadequacies in the existing legislation.
Annette Sheehan is a solicitor specialising in Family Law who has worked in the Family Law and Child Care Department of FitzGerald Solicitors in Cork for over 10 years.
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