GUARDIANSHIP OF INFANTS... WHAT DOES IT MEAN AND WHO CAN OBTAIN IT?
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Guardianship of infants is a very topical issue in the current society. What does it mean? Who is a guardian of a child? Who is entitled to apply for guardianship of a child? What happens when there is no guardian of a child? Whose concerns are paramount before the Courts? How does one obtain guardianship?
My goal in putting this piece together is to answer the above questions and to address certain areas not specifically provided for in legislation.
According to the Guardianship of Infants Act, 1964, a guardian shall:
“… 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,
for damages for any injury to or trespass against the person of the infant,”
The same Act lists the rights and responsibilities of a guardian as including the rights to:
“a. decide on the child’s place of residence.
b. to make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing.
c. to decide with whom the child is to live.
d. to consent to medical, dental and other health related treatment for the child, in respect of which a guardian’s consent is required.
e. to place the child for adoption and consent to the adoption of the child under the Adoption Act 2010."
Before proceeding, it is important to highlight who is automatically entitled to be appointed as a guardian of a child:
The father and mother of an infant in a married relationship shall be guardians of the infant jointly
Where civil partners or a cohabiting couple have jointly adopted a child under an adoption order the civil partners or cohabiting couple, as the case may be, shall be guardians of the child jointly.
Where the mother of a child has not married the child’s father, and no other person is, under this Act, the guardian of the child, she, while living, shall alone be the guardian of the child.
A man who is the parent of a child and has married the mother of the child shall be a guardian of the child.
A person who has entered a Civil partnership with the mother of the child and is living with the mother of the child for not less than 12 consecutive months shall be entitled to guardianship where the person and the mother on the condition of the necessary declarations being made as set out in the Child and Family Relationships Act, 2015.
The above scenarios are relatively clear and generally arise upon the consent of the mother of the child. However, there is also a Court’s power to appoint a person other than the parent as a guardian and Section 6C of the Children and Family Relationships Act 2015 explores a range of scenarios in this area. A person who is eligible to make such application is someone who is over the age of eighteen and must:
Be married to or in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the child and
Have shared with that parent responsibility for the child’s day-to-day care for a period of more than 2 years
Or
Have provided for the child’s day-to-day care for a continuous period of more than 12 months and
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.
Section 6C allows, for the first time, applications to be made to court for guardianship of children by persons other than the natural father in circumstances where the child has a guardian or guardians who are living.
If it is the case that the applicant makes their application under the grounds of providing for the child’s day-to-day care and have not been in a relationship with the mother of the child, the Child and Family Agency (Tusla) must be put on notice of the application. This opens up the issue of foster parents as potential applicants for guardianship of children under their care.
The first test to be satisfied would be that the necessary day-to-day care has been provided. Unfortunately, this term is not defined anywhere in Irish legislation but it is closely connected with “custody” which has been defined as “the physical day to day care and control of a child.” It is also possible for day-to-day care to be shared between more than one party as part of a joint custody arrangement. In circumstances where one party is responsible for a significant portion of the care of the children on every single day, it would seem incorrect to make a decision that they have not exercised day to day care.
The central consideration at all times is what is in the best interest of the child.
If a child is the subject of a Care Order, the Child and Family Agency is, by virtue of the order, a “parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.” This gives the Child and Family Agency like control over the child as if it were their parent and gives the Child and Family Agency a number of rights and obligations that are encompassed by guardianship but not all the rights encompassed by guardianship. The position is, therefore, that the Child and Family Agency is not the guardian of a child the subject of a care order.
The Child and Family Agency does not have the right to determine a child’s religious upbringing or the right to consent to adoption. The right to determine a child’s religious upbringing or to place a child up for adoption remains with a child’s guardians. The Child and Family Agency may apply to the High Court for an Order dispensing with the consent of the guardians under the Adoption Act 2010 but may not consent to the adoption themselves.
Therefore, a care order does not equate to an order for guardianship and does not make the Child and Family Agency a parent or guardian willing to exercise the rights and responsibilities of guardianship in respect of the child.
The existence of a care order is not a bar to an application for guardianship, though the Child and Family Agency must be put on notice of the application and the Court shall have regard to their views in deciding whether or not to make an order for guardianship, the consent of the Child and Family Agency is not a precondition to making an order for guardianship.
It therefore appears that once a foster parent has given the necessary day-to-day care for the required period of time, the option is open to them to make an application for guardianship of the children in their care who are the subject of a care order, once the Child and Family Agency are put on notice.
So what about the views of the children in Section 6C of the Children and Family Law Relationships Act 2015? According to The Constitution, the paramount consideration must be at all times; what is in the best interests of the child?
The UN Convention on the Rights of the Child, 1989, provides that;
“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.”
The Court is therefore required to ascertain the views of the child and then to give those views their due weight.
The option is also there for the Court to appoint a child expert to ascertain a child’s view and to guide the Court on what weight should be applied to any such views. A Court may direct that an expert give a report on any questions affecting the welfare of a child or may appoint an expert to determine and convey the child’s views.
A decision is yet to be made on whether foster parents can make a successful application for guardianship. The legislation does not appear to say otherwise.
While much thought will be given to the legislation and procedures, it must not be forgotten that the paramount consideration of any Court must always be what is in the best interest of the child in question.