As the Deputy will be aware, there has been extensive reform of family law in recent years to place a greater emphasis on recognising the rights of the child to the society of both his or her parents. The Children and Family Relationships Act 2015 is a child–centred Act which addresses the rights of children to legal security, to the care of their parents and important adults in their lives, and to equality before the law. 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. If the father is not married to the mother of the child, he will not automatically become a guardian of the child. The issue of automatic guardianship was considered during the passage of the Children and Family Relationships Bill through the Oireachtas. However, the automatic extension of guardianship to a father who is not involved and is not participating in his child’s life would have consequences for the child and the child’s mother, for example, if he does not consent to the issue of a passport or to the placement of a child for adoption.
There are provisions in place to facilitate non-marital fathers who have an ongoing relationship with their children to become guardians of their children. Section 2(4A) of the Guardianship of Infants Act 1964 (as inserted by section 43(c) of the Children and Family Relationships Act 2015) now provides for joint guardianship by a man who was not married to the mother of the child and was cohabiting with the mother for not less than 12 consecutive months. This 12 month period must include a period, occurring at any time after the birth of the child, of not less than 3 months during which both the mother and father have lived with the child. In addition, a father who is not married to the child's mother and does not satisfy the cohabitation requirements may become a guardian if the parents jointly make a statutory declaration appointing him as a guardian. It is also open to the father at any stage to make an application to court for guardianship of the child under section 6A of the Guardianship of Infants Act 1964.
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 (inserted by section 58 of the Children and Family Relationships Act 2015) 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. It is a matter for the courts when making orders under the 1964 Act in relation to matters such as the guardianship, custody or upbringing of, or access to, a child to determine the best interests of the child and to consider whether or not any conditions should be attached to such orders.
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.
Court orders in relation to guardianship, custody and access are of course a matter for the courts, which are, subject to the Constitution and the law, independent in the performance of their functions.