THE MINISTER FOR Justice signed a Statutory Instrument on the 18 January 2016 commencing certain provisions of The Children and Family Relationships Act 2015.
It brings some big changes. This Act radically overhauls the existing Guardianship of Infants Act which is the underpinning legislation in bringing applications before the District Court seeking access, custody and guardianship.
The most significant change contained in the Act as it relates to fathers has to be that automatic guardianship can now be granted to a father who can prove he has cohabited with the child’s mother for at least 12 consecutive months including at least 3 months after the birth of the child.
Previously, where a child was born to unmarried parents, only the child’s mother was automatically a guardian and a child’s natural father only had the right to apply to court for guardianship.
Guardianship involves the right to have an input into the higher level decisions surrounding a child’s upbringing such as medical issues, education, religion and travel outside the jurisdiction.
However, it is unclear as to what evidence would be required by the court in order to satisfy the threshold in respect of cohabitation particularly when there may be a dispute between the parents as to when the cohabitation commenced. Furthermore it is important to note that the Act is not retrospective which means this provision only applies to children born after the commencement of the Act.
For those fathers who do not qualify under the cohabitation provision, the usual right to apply to court remains.
There is now also a provision whereby upon registering the birth of the child, unmarried parents have the option to sign a Statutory Declaration at the Civil Registration Office and the Registrar is empowered to witness this declaration.
Previously this declaration had to be witnessed by a solicitor or a Commissioner for Oaths. This will assist with the execution of these declarations.
However, unfortunately there is no provision for a Central Register to record these important documents.
There is also a new section in the Act which entitles a father to seek a declaration confirming that he is a guardian where he has received rights and responsibilities equivalent to guardianship in another state.
For instance, in the United Kingdom, a father’s name on the birth certificate gives rise to guardianship style rights. This provision entitles those fathers to seek a declaration from the Irish courts recognising the father as guardian.
Breaching a court order
There have been significant changes in respect of enforcement provisions which will be of assistance to fathers or non-custodial parents. Previously the main remedy available from the courts was a summons for a breach of an order with the ultimate sanction being imprisonment.
In extreme cases where there was an ongoing history with regard to denial of access, a court could order transfer of custody to the non-custodial parent. This was however very rare.
Clearly the new enforcement orders have to be welcomed. These provide for a more holistic range of remedies whereby a parent or a guardian who is being denied custody or access of a child may now get compensatory time with the child. A parent’s expenses may be ordered to be reimbursed by the other parent or that one or both of the parents would be compelled to attend parenting programs, family counselling sessions or receive information on mediation.
The most important provision however throughout the Act is that the principle of the best interests of the child prevails in respect of all applications to be made in relation to the child.
The Act sets out statutory criteria for the best interests principle dealing with a number of issues such as the physical, emotional, psychological, educational, and social needs of the child including the child’s need for stability having regard to the child’s age and stage of development.
More importantly for fathers and non-custodial parents, it also provides that the views of the child will be ascertained in any applications concerning the child. The Act also sets out that the court shall ensure that the manner in which such views are provided to the court facilitates the child freely expressing such views and are not as the result of undue influence of another including the parent of a child.
This is significant particularly in terms of the concept of parental alienation which is becoming ever more frequent in family law today. This will at least ensure that the child’s voice is heard and the court will not just hear from the two parents who would have very conflicting positions.
There may be a difficulty however with regard to the implementation of the best interests principle and the voice of the child. Generally the voice of the child may be brought to the court by way of a child psychologist being appointed. This may prove a difficulty for parents who are going through a separation where there are limited funds and parents may not be able to afford the costs of a psychologist.
Overall this Act has to be welcomed. It is a significant move in the right direction and recognises the modern blended family of today. It could be argued that an opportunity has been lost to appoint all fathers as guardians. However it remains to be seen whether the Act will be effective in respect of automatic guardianship where difficulties will arise in proving the cohabitation threshold.
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. FitzGerald Solicitors (021) 427 9800 www.fitzsols.com.