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Dublin: 13 °C Wednesday 23 April, 2014

Column: A review of guardianship, adoption and surrogacy law is underway, but what can we expect?

The Children and Family Relationships Bill is proposing a sweeping and comprehensive review of an area of law that touches all of our lives, writes Katherine Irwin.

Katherine Irwin

ONE OF THE most important things in a child’s life is stability.

A secure and stable home life and family unit is the base for happy, confident children. Certainty for all members of the family is the rock on which stability is built.

Families can take many forms and children can be brought up and loved by many different people, who quite often are not the child’s biological parent. It could be a grandmother, a step parent, a civil partner or spouse of a parent.

A guardian

To date, none of these people have the right to become a guardian of a child to whom they might be closely linked in a family unit. These are some of the situations that are being tackled by the new Children and Family Relationships Bill soon to be published and made law in 2014.

The new Act will not only deal with the issue of guardianship but will actually repeal the existing law which is the Guardianship of Infants Act, 1964 and create a new Act, reformed and enhanced.

The new law will continue the underlying emphasis on the best interests of the child.

The three main areas of change are

  1. Guardianship for parents and non parents

  2. Adoption

  3. Surrogacy and Assisted Human Reproduction (AHR) – while the Department of Health will have responsibility for the development of a comprehensive policy for AHR, the Bill proposes a mechanism to allow parents to apply for a Declaration of Parentage where their child is born using their own genetic material or otherwise.

Guardianship

One of the most common questions asked by parents in relation to guardianship is what does guardianship mean. It gives a guardian the right to be consulted in relation to all decisions relating to the main events and elements of a child’s life, such as medical, educational, social and emotional and religious questions. This is to be expanded upon and explained more clearly in the new Act.

This area of Irish law has long been in need of an overhaul.

One of the most significant issues the Act will address is the situation for unmarried fathers. They will automatically be guardians of their child where they have lived with the children’s mother for one year before the child’s birth, ending less than ten months before the birth.

  1. Non parents may also apply for Guardianship where:

  • a person has had shared responsibility for two years

  • a person is the spouse or civil partner of the child’s parent

  • a person has lived with the child’s parent for three years.

  • a person has had responsibility for the child for a year and there is no other guardian willing to care for the child.

All of these are subject to there being no more than two guardians in existence. A person who has been in loco parentis – that is treating the child as their own despite not being related may apply for custody of that child.

Adoption

The confusing contradiction where a single gay person can apply for adoption but a same sex couple cannot is to be remedied. This is driven by the decision of the European Court of Human Rights that such a policy is in breach of the Human rights of the individual. The Department of Children and Youth Affairs will retain responsibility for the area of adoption.

The situation where a mother would have to apply to adopt her own child if she wished her husband to be recognised as father will be remedied by giving that husband rights of guardianship as mentioned above. It will not be necessary to adopt in that context.

These provisions will all help to provide stability for children and parents and control for parents where they have the care of a child who might be in their care because of a difficult early history. Without the status and recognition of the law, it can be very difficult to effectively parent a child.

The child, similarly, has the security of knowing who plays what role in his or her life, and does not have the knock on effect of anxiety -which the person caring for them may feel where their status is not established.

In a move that will be welcomed by grandparents, the act will provide recognised status for grandparents who step in as carers. This is important  in situations such as dealing with the child’s school and applying for passports..

Surrogacy

Modernisation of the law in this area has been necessary for many years.

The Department of Health will deal with the broader issues around Assisted Human Reproduction (“ADH”), but there will be provision for a declaration of parentage. The decision of the High Court allowing the amendment of a birth cert to record the biological mother’s name where her “genetic material” was used in a surrogacy birth has been appealed to the Supreme Court and a decision is expected in 2014.

Non -Commercial surrogacy will be provided for but any advertising of surrogacy will be prohibited. Clarity in this area is expected to be welcomed.

Other proposed changes

The bill proposes to introduce penalties for parents who do not comply with maintenance or access orders. The enforcement of access orders has traditionally been a problem area. The only penalty has been imprisonment for breach of an order. This is not used as to jail the parent of a child can never be seen as a solution to access or custody issues.

The system for Guardian ad Litems in conveying the voice of the child in private law proceedings is to be reviewed and a comprehensive review is being undertaken by the Department of Children and Youth Affairs.

To date, the husband of a woman is presumed to be the father of their child. This is an anomaly in many situations, particularly where we have a four year separation requirement for divorce. A negative presumption of paternity where a period of ten months has elapsed since the mother had contact with her husband is to be introduced.

Debate

These proposals will be the subject of debate in the Dáil and no doubt many and varying opinions relating to parenting will be expressed. The opening up of the debate in this area is to be welcomed.

This represents a sweeping and comprehensive review of an area of law that touches all of our lives.

Which it is hoped will shore up some glaring gaps in the law, in this new Ireland of diversity and changing family units.

Katherine Irwin is a partner and head of Private Client and Family Law at Beauchamps Solicitors.

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