Irish family law places an emphasis on recognising the rights of a child to the society of both his or her parents. Very significant modernisation of the law in this area was brought about in 2015 with the enactment of the Children and Family Relationships 2015, which amended extensively the Guardianship of Infants Act 1964.
The reforms in family law provided for in that Act recognise the crucial role of parents and the need for a child to maintain meaningful relationships with both parents.
Married parents of a child are automatically joint guardians and have joint custody of their children. Where married parents separate or divorce, they can decide between themselves on custody arrangements for their children or apply to the courts to decide on the matter.
The Deputy will be aware that Article 42A.4 of the Constitution requires that provision be made by law that in the resolution of all proceedings concerning the guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration. Section 3 of the Guardianship of Infants Act 1964 provides that the best interests of the child shall be the paramount consideration for the court in any proceedings where guardianship, custody or upbringing of, or access to, a child is in question. Section 31 of the 1964 Act sets out a wide range of factors that the court is required to take into account when determining the best interests of the child in such proceedings. These factors include the benefit to the child of having a meaningful relationship with each of his or her parents. The courts shall have regard to all of these factors or circumstances that it regards as being relevant to the child concerned and his or her family and make its decision accordingly.
Section 11 of the Guardianship of Infants Act 1964 provides that either parent of a child, whether or not he or she is also a guardian of the child, may apply to court for a direction regarding the custody of a child or the right of access to the child. Section 11D of the 1964 Act obliges the court in proceedings under section 11 to consider whether the child's best interests would be served by maintaining personal relations and direct contact with each of his or her parents on a regular basis.
Section 25 of the 1964 Act also requires the court, as it thinks appropriate and practicable, to take into account the child's wishes in guardianship, custody and access matters, having regard to the age and understanding of the child.
Section 12A of the 1964 Act provides that in making any order under the Act, the court may impose such conditions as it considers to be necessary in the best interests of the child.
The Children and Family Relationships Act 2015 made provision to assist parents who need to return to court because the other parent has breached a court order in relation to custody of, or access to, a child. Section 56 of the 2015 Act inserted a new section 18A into the Guardianship of Infants Act 1964. This provides that where a parent or guardian of a child has been granted custody of or access to the child under the 1964 Act, but he or she has been unreasonably denied such custody or access by another guardian or parent, that person may apply to court for an enforcement order.
I have no role in the making of court orders in relation to guardianship, custody and access to children. This is a matter for the courts, which are, subject to the Constitution and the law, independent in the performance of their functions.
While there are no plans at present for further amendment of the Guardianship of Infants Act 1964 in relation to custody and access, the operation of the law in this area is kept under ongoing review by my Department.
I aim to publish proposals early in 2019 for a new approach to handling family law cases in Ireland at District, Circuit and High Court levels. This will be done by legislation to create a new dedicated Family Court within the Circuit and District Courts which will sit with dedicated Family Court judges and deal only with family law business. These courts will have new procedures aimed at less adversarial resolution of disputes, and facilities and case management aimed at helping litigants and seeking to resolve issues between the parties short of having to bring them before the courts.