Written answers

Thursday, 13 May 2010

Department of Justice, Equality and Law Reform

Guardianship of Children

5:00 pm

Photo of Kathleen LynchKathleen Lynch (Cork North Central, Labour)
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Question 45: To ask the Minister for Justice, Equality and Law Reform his plans to update the laws on guardianship having regard to the changes in society since the principal piece of legislation governing this area was enacted in 1964 and particularly the findings of a judgment given in the High Court on 28 April 2010; and if he will make a statement on the matter. [19620/10]

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)
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The code of law contained in the Guardianship of Children Acts 1964 to 1997 already provides comprehensive provisions on guardianship with significant updating. Under the law as it stands - section 6A of the 1964 Act, as inserted by section 12 of the Status of Children Act 1987 - an unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the 1964 Act, as inserted by section 4 of the Children Act 1997, conferring on the father the status of guardian. Under section 11 of the 1964 Act, a guardian may apply to the court for its direction on any question affecting the welfare of the child, including directions as to custody and access. In addition, the section provides that the unmarried father of a child, even if he is not a guardian, may apply to the court for orders on custody and access. Section 3 of the Act provides that, in deciding on an application relating to the custody, guardianship or upbringing of a child, the court shall regard the welfare of the child as the first and paramount consideration.

Where appropriate and practicable, the court will also take into account the child's wishes in the matter having regard to the age and understanding of the child. In addition, the law now places an emphasis in terms of recognising the rights of the child to the society of both his or her father and mother: Section 11D of the 1964 Act (inserted by the Children Act 1997) obliges the court in proceedings relating to the welfare of a child to consider whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.

These legislative provisions permit the court in cases of disagreement to decide on arrangements for the child's care and upbringing having regard to the child's best interests.

In the child abduction case referred to by the Deputy (J. McB. v L.E. 2010 IEHC 123) it is of some significance that the Judge of the High Court indicated that had the applicant made an application to our courts for guardianship or custody orders the outcome of the case could well have been radically different.

As part of its Third Programme of Law Reform 2008-2014, the Law Reform Commission published in September 2009 a consultation paper 'Legal Aspects of Family Relationships', in which it makes provisional recommendations on the rights and duties of fathers in relation to guardianship, custody of and access to their children. The Commission has invited submissions on its provisional recommendations as part of the consultation process. The Commission's final report and recommendations, expected to be published later this year, will help to inform the formulation of any proposals for reform of the law in this area.

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