Charles Flanagan (Laois, Fine Gael)
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Under section 11 of the Guardianship of Infants Act 1964, the guardian of a child may apply to the court for an order giving directions on any question affecting the welfare of the child, including the custody of, and access to, the child and the payment of maintenance. 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 custody of, or access to, the child. Section 11(5) of the Guardianship of Infants Act 1964 provides that the court may, of its own motion or on application, give directions to procure a report from such person as it may nominate on any question affecting the welfare of the child.

The Deputy will be aware that Article 42A.4.1 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. Article 42A.4.2 requires that provision be made by law for securing, as far as practicable, that in all such proceedings in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

The Children and Family Relationships Act 2015 contains provisions regarding the best interests of children in family law proceedings which have been in operation since 18 January 2016. Section 3 of the Guardianship of Infants Act 1964, as amended by section 45 of the 2015 Act, provides that the best interests of the child shall be the paramount consideration for the court in proceedings where the guardianship, custody or upbringing of, or access to, a child is in question.

The best interests of a child are to be determined in accordance with the new Part V of the 1964 Act, inserted by section 63 of the 2015 Act. Part V, entitled “Best Interests of the Child”, contains two important sections.

Section 31 sets out an extensive list of factors and circumstances to be taken into account by a court when determining the best interests of a child. These include the views of the child that are ascertainable (whether in accordance with section 32 or otherwise). The court can ascertain the views of the child in person or through an expert. Section 31(6) provides that in obtaining the ascertainable views of a child, the court shall facilitate the free expression by the child of those views and endeavour to ensure that any views expressed by the child are not expressed as a result of undue influence, and may make an order under section 32.

Section 32 facilitates the hearing of the voice of the child by enabling the court to appoint an expert to determine and convey the child’s views to the court, so that the child’s voice can be heard in the proceedings.

These provisions allow the courts to take account of the evolving capacity of children and also give the courts the flexibility to ensure that all children’s views can be heard.

As the Deputy will appreciate, the courts are, subject only to the Constitution and the law, independent in the exercise of their judicial functions. The conduct of any case relating to section 11 of the Guardianship of Infants Act 1964 and the arrangements made in such a case to enable the voice of the child to be heard are a matter for the presiding judge, subject to the legislative provisions set out above.