Children and Family Relationships Bill, 2015: Amendment of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

Part 12 of the Bill deal with the amendment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Head 72: Amendment of Section 2, Interpretation

Head 73: Amendment of Part 4, Shared home

The changes to this part mirror the provisions which are made in the Family Home Protection Act 1976 to the needs of a dependent child of the family, defined in that Act so as to include a child who is not a child of the constitutional family based on marriage but who is treated by the other spouse as though he or she was a member of the family. When the provisions of the Family Home Protection Act 1976 were in large part replicated for civil partners in Part 4 of the 2010 Act, the references to the needs of dependent children of the family were not included as a result of a policy decision at the time. Section 29 of the 2010 Act refers to the requirement for the consent of a spouse to the conveyance of a family home. The court may dispense with this consent, only if it considers that the consent is unreasonably withheld having regard, among other factors, to the respective needs and resources of the civil partners. This factor is now modified so as to refer to the needs and resources of the civil partners and of any dependent children of the family. Section 30(1) allows the court to order a civil partner to stop behaviour which may make a home unsuitable for habitation by the civil partner. The proposed amendment extends this to behaviour rendering the home unsuitable for a dependent child of the family. Subsection (2) enables the court to order a civil partner who has deprived the other civil partner of his or her residence in the shared home to pay compensation. The proposed amendment allows the court also to order compensation if a dependent child is deprived of his or her home.

Section 34 allows the court to order a civil partner not to dispose of chattels without which it would be difficult to live in the shared home, and, if he or she does so (whether or not in breach of an order of the court), to order that civil partner to provide household chattels or to pay money to restore the position,. At present, only the needs of the other civil partner are taken into account; the proposed amendments would ensure that the court could also take into account the effects of any proposed or actual disposal of chattels on a dependent member of the family. The importance of these amendments is that the needs of a dependent member of the family may, depending on the circumstances, be impinged on without affecting the other civil partner. These amendments ensure that the court can take the needs of a dependent member of the family into account, and therefore that where only the child is seriously affected by a particular course of action by one of the civil partners, a case can be brought on behalf of that child to secure his or her interests.

Head 74: Amendment of Part 5, Maintenance

These are the changes necessary to bring Part 5 broadly into line with the provisions of the Family Law (Maintenance of Spouses and Children) Act 1976. The amendments to section 45 create a specific maintenance liability for each civil partner in respect of dependent children of the family – including in situations where the parent civil partner deserts the family or dies. The proposed substituted text will ensure that the other civil partner may be ordered to provide maintenance for a dependent child of the family. Section 48 of the 2010 Act allows an agreement between civil partners governing maintenance between them to be made a rule of court (and therefore to become an enforceable maintenance order). The proposed amendments would allow clauses relating to maintenance for any dependent children equally to become a rule of court and be enforceable, bringing the section into line with section 8 of the 1976 Act as amended.

Head 75: Amendment of Part 12, Dissolution of civil partnership

All of the changes proposed in this Head are intended to bring the law on dissolution of civil partnership more closely in line with the law on divorce, insofar as it relates to dependent members of the family. On divorce, particular care is taken to ensure that provision is made for dependent members oft he family. However, the definition of dependent members of the family in that context is not narrowly focussed on members of the constitutional family: it includes the child of either spouse who the other spouse, knowing he or she is not the child’s other parent, treats as a member of the family. Thus – and depending on the circumstances of the individual case – stepparents may have a responsibility to provide maintenance and accommodation for their step-children. 131 The policy intention of this Head is to ensure that children being raised by civil partners have not less than the level of protection a step-child is afforded. Elsewhere it is provided that the civil partners may jointly be legally parents of a child and it would be fundamentally inequitable that they would have a lesser responsibility than a spouse would for a step-child. We also consider that where a civil partner who is not legally recognised as a child’s parent has nonetheless fulfilled a parental role, he or she should continue to have responsibilities to the child in no less a way than a spouse would to a step-child. Subhead (1). Section 110 of the 2010 Act, Grant of decree of dissolution, provides that a dissolution of a civil partnership may be granted by the court if certain conditions are met – that the couple have been separated for 2 of the previous 3 years, and that proper provision exists or will be made for each of the civil partners. The proposed change at subhead (1) will modify the latter provision so that a civil partnership cannot be dissolved if proper provision has not also been made for any dependent children of the family. Subhead (2). Section 116 of the 2010 Act, Maintenance pending suit, allows the court to order maintenance pending suit for a civil partner – i.e. where a civil partner applies for the grant of a decree of dissolution, the court may order either of the civil partners to pay maintenance to the other until it determines that application and decides what ancillary orders to make on grant of dissolution. The proposed change at subhead (2) will enable the court to include provision for a dependent member of the family when making a maintenance order under section 116. Subhead (3). Section 117 of the 2010 Act, Periodical payments and lump sum payments, allows the court, on or after granting a decree of dissolution, to make a periodical payments order, a secured periodical payments order or a lump sum order directed to one civil partner for the maintenance of the other civil partner. The proposed changes at subhead (3) will enable the court to direct either of the civil partners to make or secure periodical payments or pay a lump sum towards the support of a dependent member of the family. As with section 13 of the Family Law (Divorce) Act 1996, provision is made in the amending text that, in addition to the civil partners, a person other than one of the civil partners may make the application and the court may direct payment to be made to that other person. This could happen if, for example, the child was being cared for by another member of the wider family. Subhead (4). Section 118 of the 2010 Act, Property adjustment orders, allows the court, on or after granting a decree of dissolution, to transfer a property from one civil partner to the other, to settle the property for the benefit of one, varying a settlement or changing the terms of a settlement. The proposed change at subhead (4) will allow such orders to be made for a dependent member of the family, as is currently the case under section 14 of the Family Law (Divorce) Act 1996. Subhead (5). Section 119 of the 2010 Act, Miscellaneous ancillary orders, allows the court to make a range of orders relating to the shared home of civil partners, including as to rights of residency in the shared home and exclusion from it, or for sale of the property and distribution of the proceeds. The proposed changes at subhead (5) refer particularly to rights of residency in the shared home, and the purpose of the amendments is firstly to allow a person make an application on behalf of a dependent member of the family if that is required, and secondly to mandate the court to take into account the position of a dependent member of the family, in deciding whether or not to make an order for a right of residence or sale of the property. This is in line 132 with the current provision on divorce, in section 15 of the Family Law (Divorce) Act 1996. Subhead (6). Section 120 of the 2010 Act, Financial compensation orders, allows the court to require a civil partner to put in place or to continue paying a life insurance policy for the benefit of the other civil partner. This is so where a civil partner dies, and the other civil partner has been wholly or partly dependent on him or her, the survivor’s financial needs will be partly met by the proceeds of the policy. The proposed changes set out in subhead (5) allow the court to require similar insurance provisions in relation to a dependent member of the family. This is in line with the current provision on divorce, in section 16 of the Family law (Divorce) Act 1996. Subheads (7)–(10). Sections 121-126 of the 2010 Act deal with pension adjustment orders. The amendments proposed in subheads (7) to (10) allow payments to be ordered in relation to dependent members of the family, in the same circumstances that payments may be ordered under the pension adjustment provisions in the Family Law (Divorce) Act 1996. Subhead (11). Section 129 of the 2010 Act, Provisions relating to certain orders, sets out factors the court must consider in deciding whether to make an order and determining its provisions. The amendments proposed in subhead (11) allow the court to consider the responsibilities of a civil partner in caring for a dependent member of the family when considering whether to make an order for that civil partner’s benefit. Factors are also provided for the court to take into account in relation to the needs of a dependent member of the family, where the court is considering making an order explicitly for the benefit of such a dependent. This is in line with the current provision on divorce, in section 20 of the Family Law (Divorce) Act 1996. Subhead (12). Section 131 of the 2010 Act, Variations etc., of certain orders, sets out what orders may be varied by the court on application to it, and particular considerations it must make where the orders to be varied concern property rights, especially in registered property. The amendments proposed in subhead (12) are consequential amendments reflecting that provision is being made for the court to make orders for the benefit of dependent members of the family, and, in relation to maintenance payments for a dependent member, the same termination of payments criteria are established as apply to other children and young adults in further education. This is in line with the current provision on divorce, in section 22 of the Family Law (Divorce) Act 1996. Subhead (13). Insertion of new section 131A of the 2010 Act, Restriction in relation to orders for the benefit of dependent members of the family. The purpose of this new section is to ensure that the behaviour of the civil partners towards each other is not a factor to be considered by the court in deciding whether or not to make an order for the benefit of a dependent member of the family. This is in line with section 23 of the Family Law (Divorce) Act 1996.

Children and Family Relationships Bill, 2015-Making Parenting Orders Work

Part 9 deals with making parenting orders work.

Head 62: Definitions

This Head provides definitions for the purposes of the Part. The aim of the Part is to provide a route to enforcing orders relating to parenting, particularly custody and access orders.

Head 63: Enforcement orders

The policy intention of this and related Heads are to allow for enforcement of access and of shared custody orders. There is a significant level of non-compliance with access and shared custody orders, and under the law as it stands, the remedy is most likely to be to find the non-compliant party in contempt of court. However, judges are understandably unwilling to go straight to contempt proceedings. This power conferred on the court here is to allow it to intervene, on application by the party whose rights have been breached (subhead (1)), by ordering any of a range of measures in an enforcement order, including that the respondent must allow the applicant compensatory access time, or must lodge a security with the court, or reimburse the applicant for expenses incurred in attempting to exercise custody or access; the court is also given a wide discretion in the directions it may give to the applicant and respondent, and may vary or discharge any custody or access order (subhead (2)). Subhead (3) specifies that the discretion of the court in subhead (2) includes the power to order the parties to engage, together or separately, in a parenting programme or in counselling or mediation insofar as that relates specifically to parenting. Subhead (4) allows the court to refuse to make an order where it considers the denial of custody or access was reasonable, but also allows it to make the enforcement order it considers reasonable – this will allow it to vary or discharge custody / access orders if it considers it appropriate in the circumstances. Subhead (5) allows a parent or guardian to apply for reimbursement of expenses in relation to the failure, without reasonable notice, by the other parent or guardian to exercise his or her custody / access rights. This might arise, for example, if the applicant incurs transport or child-minding costs due to the respondent’s failure. Subhead (6) clarifies that this provision does not affect the existing law on contempt of court. 107

Head 64: Supplementary enforcement orders where enforcement orders are breached

This Head gives the courts discretion to make supplementary orders where an enforcement order is itself breached (subhead (1)), with additional remedies including fining the respondent, requiring the respondent to undertake community service, or, in extreme cases and subject to the additional provisions of subhead (4) and (5), 108 directing a member of An Garda Síochána to assist in enforcing access in accordance with Head 66 (subhead (2)). The provisions of the Criminal Justice (Community Service) Act 1983 apply to any community service order under subhead (2)(b) as though it was an order under that Act.

Head 65: Power of court to vary or terminate custody or access enforcement order

This Head gives the court power to change an enforcement order or terminate the order or a part of it (subhead (1)), and to vary or terminate an enforcement order in the same proceedings that it varies or terminates a custody order or an access order in relation to which the enforcement order was made (subhead (2)).

Head 66: Assistance by an Garda Síochána pursuant to enforcement order

This Head confers on An Garda Síochána the function of assisting in enforcing access or custody, where a supplementary enforcement order under Head 64 specifically authorises them to do so (subhead (1)). It is envisaged that this remedy be available as a last resort where the access and custody rights of the applicant are persistently breached and the court considers that this is the only effective enforcement mechanism. Subhead (2) allows a Garda to apply for a court order authorising the Garda to enter the premises where s/he believes the child to be, in order to remove the child and bring her or him to the applicant. Subhead (3) gives the Garda some discretion to determine whether to bring the child to the applicant, where s/he believes it is not in 111 the child’s best interests in the circumstances – these could be circumstances relating to the applicant or to the child, A Garda who has obtained an order for entry under subhead (2) may obtain the necessary assistance and may use reasonable force in effecting entry, should that be necessary (subhead (4)), but unless specifically authorised to do so, only between 8 a.m. and 9 p.m. (subhead (5)). No-one may take an action against An Garda Síochána and the person giving assistance in accordance with subhead (4), acting in good faith in accordance with the Head (subhead (6)).

Head 67: Report by an Garda Síochána

Where a Garda assists in enforcing custody or access in compliance with Head 66, s/he is to prepare a written report, in a manner to be prescribed by regulations, of what happened in the course of providing assistance. If s/he decides to exercise the discretion conferred by Head 66(3) not to bring the child to the applicant, must explain why (subhead (1)). The report must be made available to the applicant, the respondent and the court (subhead (2)). Subhead (3) allows the report to be entered in evidence in any subsequent proceedings without proof of the signature or official character of the Garda making the report. Subhead (4) provides that the Garda is not required to attend proceedings relating to the enforcement order unless the court orders his or her presence, of its own motion or on application by the applicant or the respondent. Except where the account in the report is specifically in dispute, it is intended that the court will rely on the written report without requiring the Garda to be available to give evidence.

Children and Family Relationships Bill, 2015-Safeguarding the Interests of Children

Part 8 deals with safeguarding the interests of children.

Head 53: Safeguards to ensure applicant’s awareness of alternatives to custody, access and guardianship proceedings and to assist attempts at agreement

This Head reproduces the provisions of section 20 of the 1964 Act (as inserted by section 11 of the Children Act 1997) with minor amendments to cross references. It provides for a solicitor to inform an applicant of various possible alternatives to legal proceedings, and the certification of same.

Head 54: Safeguards to ensure respondent’s awareness of alternatives to custody, access and guardianship proceedings and to assist attempts at agreement

This Head reproduces the provisions of section 21 of the 1964 Act (as inserted by section 11 of the Children Act 1997) with only minor amendments to cross references. It provides for a solicitor to inform a respondent of various possible alternatives to legal proceedings, and the certification of same.

Head 55: Adjournment of proceedings to assist agreement on custody or guardianship of or access to children

This Head reproduces the provisions of section 22 of the 1964 Act (as inserted by section 11 of the Children Act 1997) with only minor amendments in cross references. It allows proceedings to be adjourned to allow the parties try to reach agreement.

Head 56: Non-admissibility as evidence of certain communications relating to attempts to reach agreement

Subhead (1) reproduces the provisions of section 23 of the 1964 Act (as inserted by section 11 of the Children Act 1997). It provides that communications in an attempt to reach agreement on custody, access or other dispute concerning a child are not admissible in court: the exemption is mandatory in order to allow for the most open possible dialogue between the parties and any mediator / adviser assisting the, Subhead (2) clarifies that this general and mandatory exemption of communications between the parties or either of them and third parties does not apply to any admission of abuse (or risk of abuse) or disclosure of abuse. This is to prioritise child protection and comply with the Children First guidelines.

Head 57: Orders in respect of custody or access agreements

This Head reproduces the provisions of section 24 of the 1964 Act (as inserted by section 11 of the Children Act 1997) with the small but important amendment that it refers to the best interests of the child. Essentially, an agreement concerning custody and access may, on application by one of the parties, be made a rule of court, provided the court is satisfied it protects the interests of the parties and is in the best interests of the child.

Head 58: Procuring by court of report on question affecting the welfare of a child

This provision is broadly analogous to section 47 of the Family Law Act 1995. The insertion of subhead (4) relates to the access a child who is the subject of the report may have to it and the factors the court must consider in determining whether to grant such access. The direct inclusion of this provision in the Scheme will have the effect of extending the court jurisdiction. At present, the circuit court may order a section 47 report, but the district court may not. The powers are provisionally conferred on the Child and Family Agency.

Head 59: Whether to proceed in the absence of the child

This Head mirrors section 27 of the 1964 Act and provides that a child is not required to attend proceedings but is entitled to do so on her or his request unless the court considers that attendance would not be in the child’s best interests.

Head 60: Power to appoint a guardian ad litem

This provision is broadly analogous to section 29 of the 1964 Act, which has not been commenced. There is an important difference in that provision is not made for legal representation of a guardian ad litem. The guardian ad litem is defined in subhead (6) as an independent officer of the court and is neither a party to nor the subject of proceedings. Accordingly, it is not considered necessary that the guardian ad litem have separate legal representation. Subheads (4) to (7) set out the functions of the guardian ad litem.

Children and Family Relationships Bill, 2015-Surrogacy Arrangements

Part 5 deals with surrogacy arrangements.

surrogacy-law-ireland

Head 17: Surrogacy arrangements

This Head provides that a surrogacy arrangement is not an enforceable contract except in relation to the payment of the birth mother’s reasonable expenses, and then only if the arrangement was made before the birth mother became pregnant – this is to ensure that commissioning parents cannot resile from any financial guarantee made to the birth mother after she becomes pregnant, and likewise that she cannot seek additional payment after becoming pregnant.

Head 18: Prohibition on payment for surrogacy

This Head prohibits people from making or receiving payments in relation to a surrogacy arrangement. It is intended to prevent an intending surrogate from receiving or agreeing to receive payment (other than the birth mother’s reasonable costs), to prevent intending parents from offering or making payments for someone to enter a surrogacy agreement with them, and to prevent any intermediaries from offering or making payments or receiving or agreeing to receive payments in relation to a surrogacy arrangement. It is not intended to preclude payments to legal practitioners for giving legal advice, or to medical practitioners for treating the intending parents and / or the surrogate in relation to assisted reproduction procedures, etc.

Head 19: Prohibition on surrogacy advertisements

This Head prohibits publication of advertisements concerning entering a surrogacy arrangement.

Head 20: Minimum age for surrogate mother

Legislation in some jurisdictions sets out minimum ages for a surrogate mother, to provide safeguards for any potential surrogate mother. The minimum age proposed here is 24: this is so that an intending surrogate is likely to have a reasonable degree of maturity and some life experience. More importantly, it is a requirement that the intending surrogate already have at least one child of which she has custody. This is to ensure that she is fully aware of the possible physical and emotional effects of pregnancy and child-birth and has the experience of bringing up her own child. Further, there is always some degree of risk associated with pregnancy (albeit usually very small, in Ireland), and it may be desirable to ensure that if complications should compromise the intending surrogate’s future fertility this should not have the effect of forcing her to be childless. Subhead (2) requires that for a pre-surrogacy arrangement, an intending surrogate shall have been no less than 18 years old, so that as a minimum she was an adult under Irish law when making the arrangement.

Head 21: Minimum and maximum ages for parenting through surrogacy

Legislation in some jurisdictions sets out minimum ages for intending parents under a surrogacy arrangement. The minimum age criterion is intended to ensure a certain minimum level of maturity. A maximum age is also suggested, to increase the likelihood that at least one intending parent will live well into the child’s adulthood.

Head 22: Legal advice relating to surrogacy

Subheads (1) and (2) provide that each party to a surrogacy arrangement must obtain legal advice before making the arrangement so that they will fully understand the consequences of the arrangement for them, and that the birth mother and the commissioning parents must obtain legal advice from separate and independent legal practitioners. This is to ensure that there is no conflict of interest which might result in a party to the arrangement being less well advised. Subhead (3) allows the court to consider as a factor that one of the parties did not obtain proper legal advice when making an order under the Act. 43 Subheads (4) and (5) make additional provision concerning applications under Head 13. Where only one intended parent makes an application for a declaration where the arrangement had included 2 intended parents, the court may have regard to that fact and the reasons for it – which could include break-up, death, incapacity – and may direct that the other party (if living) be put on notice of proceedings. This is a safeguard for the benefit of all parties, including the child, but particularly for an intending parent who is not a party to an application.

Head 23: Offences and penalties

Subhead (1) establishes that it is an offence to make or agree to make or receive or agree to receive any payment in relation to a surrogacy arrangement which is prohibited under Head 18. The following persons may be guilty of an offence: a surrogate or intending surrogate, intending / commissioning parents, and any intermediary. It is also an offence to publish or cause to be published certain advertisements relating to surrogacy prohibited by Head 19. Subhead (2) establishes the relevant penalties. 45 Subheads (3) to (5) make certain provisions in relation to where an offence is committed by a body corporate (such as an intermediary or a publisher). Subhead (6) is a standard provision relating to the timeframes within which proceedings are brought.

Children and Family Relationships Bill,2015-Parentage and Presumptions of Paternity

Part 2 deals with parentage and presumptions of paternity;
part 3 deal with parentage in cases of assisted reproduction;
part 4 makes further provisions in relation to part 2 and part 3.

Part 2

Head 5: Parentage

Provide along the following lines: (1) A person is the child of his or her parents. (2) The parents of a child are his or her birth mother and biological father unless the child has been adopted within the meaning of the Adoption Act 2010 or the child was born as a result of assisted reproduction, including through surrogacy. (3) Where a child is born as a result of assisted reproduction including through surrogacy, parentage of the child shall be determined in accordance with Part 3.

Notes This Head specifies who are considered to be the parents of a child, and the exceptions to the rule, which are – Ø where a child is adopted, in which case the provisions of the Adoption Act 2010 will apply and all parental responsibilities are transferred to the adopters; and Ø where a child is born through assisted human reproduction techniques, including where a child is born to a surrogate mother, in which case parentage is to be determined under Part 3 of the Scheme.

Head 6: Presumptions of paternity

This Head sets out the presumptions to be used in determining who the biological father of a child is. It is very similar to the rules set out in section 46 of the Status of 15 Children Act 1987, as amended, which is to be repealed. In general, where a married woman has a child during a subsisting marriage, her husband is presumed to be the father (subhead (2)). In other circumstances, a child’s father is presumed to be a man who cohabits with the mother for at least a year provided that the cohabitation does not end (if applicable) more than ten months before the child’s birth, or a man who jointly registers the birth with the mother, or a man who a court has found to be the father (subhead (3)). The presumption of paternity in relation to a husband may be rebutted if the child’s mother has a deed of separation, decree of separation or a separation agreement (subhead (4)). The modification of the current rules is set out in subhead (5). It is to take account of circumstances where a married woman gives birth to a child after she has been separated from her husband for more than 10 months, but does not have a decree of judicial separation, a deed of separation or a separation agreement in place. Subhead (5) expands the grounds for rebuttal of the presumption of paternity in relation to a husband. It would allow a married woman to rebut the presumption of paternity in relation to her child where she can affirm that she and her husband have been separated for more than 10 months. The modifications to the presumptions of paternity (and non paternity) are intended to help secure the right of the child to know his or her identity. This is considered to be in the best interests of the child concerned.

Head 7: Declarations of parentage other than in cases of assisted reproduction

This Head in intended to replace section 35 of the Status of Children Act 1987, which is to be repealed. The purpose of the Head is to allow the court state who, under the law, the legal parents of a child are. It should be noted that a declaration of parentage is not intended solely to be a statement of a child’s genetic origins. However, in the case of a child born other than through assisted reproductive technologies, the two naturally coincide. The Head includes a number of important modifications: unlike Section 35(4) of the 1987 Act, no discretion is given to the court to refuse to hear an application for a declaration of parentage. This is considered to be in the best interests of the child concerned on the grounds that even a well-intentioned decision not to hear a case facilitates the child’s true identity being concealed and may have other unintended negative consequences. Subhead (2) excludes from the scope any child who has been adopted and any child born through assisted reproduction. In the case of a child who has been adopted, the adopters are the legal parents under the Adoption Act 2010. In the case of a child born 18 through assisted reproduction other than surrogacy, legal parentage is assigned under Head 10 and a declaration of parentage may be sought under Head 11. In the case of a child born through surrogacy, parentage may be assigned by the court, subject to clear rules, in an order under Head 13. Subhead (4) provides for information to be provided directly to a minor child if the court considers it appropriate. This is in line with the public policy goal of ensuring that a child of sufficient age and maturity should be informed of, and, where relevant, consulted on, legal proceedings affecting important aspects of her or his life. Subheads (6) and (7) allow the court to require genetic testing under Part 6, and to adjourn proceedings until the testing is carried out. Subhead (8) specifies when the court has jurisdiction. Subhead (10) prevents the court from making a declaration which would result in a child having more than two legally recognised parents.

PART 3 PARENTAGE IN CASES OF ASSISTED REPRODUCTION

Head 8: Interpretation

This clarifies how terms are used in this Part. Where there are references to providing “human reproductive material” or an embryo, this refers only to provision of human reproductive material or an embryo created using that reproductive material for one’s own reproductive purposes. It further specifies that donating gametes or an embryo does not confer parenthood on the donor (subhead (2)). Finally, it disapplies presumptions as to parenthood in relation to the partner of a surrogate (subhead (3)).

Head 9: Deducing of relationships

This provision is to clarify that the relationships determined in accordance with this Part are not confined to the parent-child relationship: the child’s relationship with the broader family (grandparents, siblings, etc.) are also determined by reference to the parent child relationship established by the presumptions in Head 10 or under an order under Head 11 or 13.

Head 10: Parentage in cases of assisted reproduction other than surrogacy

This Head sets out how parentage is determined in the case of a child born through assisted reproduction other than surrogacy. The rule set out is that the birth mother is always considered the mother whether or not she has a genetic connection to the child. This is the same as the “mater semper certa est” principle which until a very recent High Court judgment was considered to apply in Ireland. (See M.R. & Anor-v- An tArd Chláraitheoir & ors [2013] IEHC 91; the case is under appeal to the Supreme Court.) The husband, civil partner or cohabitant of the mother is considered to be the other parent of the child if he or she has given a consent which remains valid at the time the procedure leading to implantation takes place. Subhead (2) specifies that where genetic material is provided by a man only, the child’s parents are the birth mother and the man. This refers to the situation where the embryo is created using a donor egg and the intending father’s sperm. Subhead (3) specifies that where genetic material is provided by a woman only, the child’s parents are the birth mother and a person who was married to, in a civil partnership with, or cohabiting with her and who also consented at the time of conception to becoming a parent of the child. This provision will apply where a woman gives birth to a child conceived using her own eggs and donor sperm. This provision may not be strictly required, as the intention is that the birth mother be recorded as the mother irrespective of genetic connection. It is retained to clarify the policy intention. Subhead (4) specifies that where a man and a woman have both provided genetic material for their own reproductive purposes, they are both the child’s parents. In this case, because there is a genetic link to both parents, there are no explicit conditions as to marriage / cohabitation. Subhead (5) specifies that where no intending parent has provided genetic material for their own reproductive purposes – that is, where an embryo is created using donor egg and donor sperm and implanted in the uterus of the intended mother – then the birth mother is the child’s mother and the child’s other legal parent (if any) is a person who was married to, in a civil partnership with, or cohabiting with the mother and who also consented at the time of conception to becoming a parent of the child 23 Subhead (6) creates a rebuttable presumption of consent on the part of the mother’s spouse, partner or cohabitant to becoming a child’s parent. Any dispute arising would have to be ruled on by a court of competent jurisdiction and evidence provided as to the validity of any consent relied on. Subhead (7) is intended to give these presumptions retrospective effect. With the exception of how the provisions would apply to same-sex couples, the presumptions created here do not differ from those which apply under current law. The birth mother is always presumed to be and is recorded as a child’s mother, her husband (if any) is presumed to be the child’s father – if not, a male partner or cohabitant may acknowledge the child through joint registration, even if he has no genetic connection. Subhead (8) allows the Minister to make regulations on the form that consent must take. This will enable the Minister to specify minimum criteria for a valid consent. The regulations may set out conditions under which consent is considered to be withdrawn. Subhead (9) specifies that a consent is not valid if the intending parent dies. It is not proposed to provide for posthumous conception within this Scheme. The key change this Head makes to current legal provisions is that, in conjunction with Head 11, this would allow an order to be made as to who the child’s legal parents are, which would not be rebuttable. The purpose of this is to ensure that in the event of a dispute between parents, a genetic parent cannot exclude the other parent by obtaining a declaration that s/he is not a parent of the child, nor may a parent repudiate her or his responsibilities to a child on the grounds that they are not genetically connected. This is to secure the best interests of the child by ensuring that he or she has legal links with his or her parents which cannot be undermined either by the parents in the event of dispute, or by any other person (such as in the event of a dispute over succession, for example). It is acknowledged that this could limit the rights of a “known donor” who wishes to establish a legal connection with a child. However, there is a balance of rights to be achieved and the best interests of the child are likely to be served by having legal certainty and security in his or her family unit

Head 11: Declarations of parentage in relation to assisted reproduction other than surrogacy

This proposed new Head is modelled closely on the provision on declarations of parentage generally. The intention is that it will not be necessary for parents to use these provisions. It may be used by the presumed parents to safeguard their roles in relation to the child, including in cases of a dispute between the parents. As indicated in the notes to Head 10, the presumptions set out in that Head are intended to have full retrospective effect since they generally reflect very closely the presumptions which currently benefit couples who have children through AHR other than surrogacy. The exception to the above is where the child is born to a woman cohabiting with or in a civil partnership with another woman. In such a case, the presumptions available under current law are not available to the couple: the mother’s partner cannot be registered as a parent. For these couples, it will be necessary to obtain a declaration of parentage to ensure both of them are assigned legal parentage of the child. It is important to note that subhead (3), where it mentions the possibility that a parent or alleged parent may not be alive, is not intended to apply to posthumous conception – only to the fact that at the time a dispute arises, a parent may have died. As there are complex ethical issues concerning posthumous conception, as well as potentially significant implications for succession / property rights (raising possible constitutional issues), these Heads do not provide for posthumous conception. See also Head 10(9). Subhead (7) proposes that a declaration will act as a blocking order in relation to any alternative attempts to determine the legal parentage of a child born through AHR. This is to ensure the child’s status as the member of a particular family is safeguarded. 26 Subhead (8) is intended as a safeguard for a “known donor” to ensure that he or she does not acquire responsibilities for the child solely by virtue of genetic connection, to the detriment of his or her own family,

Head 12: Parentage in cases of surrogacy

This Head sets out how parentage may be assigned by the court in cases of surrogacy. It sets out the presumptions where the surrogate consents to an order declaring her not to be a parent. The rule is that the parents of the child are a man who provides human reproductive material, and his spouse, civil partner or cohabitant if that person has consented to be a parent of the child (subhead (1)), or a woman who provides human reproductive material and her spouse, civil partner or cohabitant if that person has consented to be a parent of the child (subhead (2)), or a man and woman who have each provided human reproductive material (subhead (3)). If the surrogate does not consent, she will be the child’s mother.

Head 13: Applications to court relating to surrogacy

This Head sets out how the orders a court may make determining the parentage of a child born through surrogacy. The policy intention is that in a surrogacy case, the birth mother will be recorded as the child’s mother. No surrogacy arrangement will be enforceable against her. However, on application to the court by the birth mother or the commissioning parents, or all of them, the court may legally assign parentage to the intending parents. The court may assign parentage on the basis of genetic connection to one of the intending parents and to the spouse, civil partner or cohabiting partner of that person. The consent of any surrogate is essential and she will be the legal mother of the child if she does not consent. Subhead (1) sets out what the court may order, which is that the surrogate is not legally a parent of the child, and that each intending parent who has a genetic connection to the child is a parent, or, if only one intending parent has a genetic connection, then the consenting spouse, civil partner or cohabitant of that parent (if any) is also a parent of the child. Subhead (2) sets out that any of the surrogate or any intending parent may make the application – but each other party, and any other person the court considers appropriate, must be served with notice of the application (subhead (7)). Subhead (3) allows the making of an application even where any of the relevant parties has died. Where a man and a woman both provide the genetic material for their own reproductive purposes to create an embryo, only they and the surrogate may apply for a declaration as to parentage of the child (subhead (4)). Subhead (5) limits the timeframe for the making of an application to no earlier than 30 days after the child’s birth and not later than six months after. It is considered that a birth mother should have sufficient time to recover from the rigours of pregnancy and childbirth before participating in proceedings. Subhead (6) modifies this rule in relation to pre-commencement surrogacy arrangements so that an application may be made up to 2 years after commencement of the provision, and allows the court to accept an application even later than this if the court considers there are special circumstances which must be taken into account. An application must be accompanied by evidence of the genetic relationship of one of the intended parents to the child and evidence that the surrogate is not the genetic mother of the child (subhead (8)). “Traditional surrogacy”, in which a woman becomes pregnant using her own eggs with the intention of giving up the child to commissioning parents, is excluded from the scope of these legislative proposals. Subhead (9) mandates the court to make the order applied for if it is satisfied that the surrogate consents and that at least one of the intending parents has a genetic link to the child. Where the court makes a declaration, the parents named in that declaration are deemed to be the parents of the child from the date of the child’s birth. The declaration must name each person who is a parent of the child (subhead (13)), 32 Subheads (11) and (12) make certain provisions as to consent. Subhead (11) establishes that a surrogacy arrangement – which is entered into before the surrogate becomes pregnant – cannot be used as evidence of the surrogate’s consent. The consent of the surrogate is valid only if it is freely given when the application is made. However, it may be used as evidence of the consent of either of the intending parents. The court may waive the consent of a surrogate who is deceased or cannot be traced (subhead (12)). Subhead (14) confers jurisdiction if the child is born in the State or a parent is ordinarily resident in or a citizen of the State. Subhead (15) bans the making of a declaration where a child has been adopted. Subhead (16) restricts the court from making a declaration which would give a child more than two parents. Subheads (17), (18) and (19) ban the court from making any declaration under the section if the surrogate is not of at least the prescribed age (18 for pre-commencement, 24 for postcommencement), either of the intending parents has not attained the age of 21, or, in relation to an arrangement entered after the Scheme has legal effect, a payment forbidden under Head 18. Subhead (20) provides for rules of court on the information that must be contained in any application for a declaration under the Head.

PART 4 FURTHER PROVISIONS RELATING TO PARTS 2 AND 3

Head 14: Additional orders by the court

This provision is intended to streamline proceedings so that where a parent applies for a declaration of parentage and is not a guardian or entitled to lawful custody of the child, the court may, where appropriate, direct the person to make an application for guardianship and custody (subhead (1)). Subhead (2) requires the court to consider and determine such applications in the same proceedings as the application for the declaration. This is proposed as a mandatory requirement, on the grounds that the child’s best interests (and those of the parents or any other parties) will be served by having all relevant proceedings heard in the round and clarity provided as to who has the rights and duties to take case of the child. It would also promote efficiency by reducing the requirement for multiple proceedings and court hearings.

Head 15: Role of the Attorney General

Under present law, a determination by the court under section 35 of the Status of Children Act 1987 is binding on the State if the Attorney General is a party to proceedings. This Head is intended to have the effects section 35(5), (6) and part of (9) of the 1987 Act currently have. One proposed modification is that subhead (3) provides that a declaration shall be binding on the State where the Attorney General is a party to or is on notice of proceedings. The intention is that where the Attorney General, having been put on notice and reviewed the relevant material, determines that there is no overriding matter of public interest requiring that she be a party, the proceedings will be binding on the State without the requirement for further action on her part. This is in the interests of efficiency and reducing costs.

Head 16: Effect of declaration of parentage

This Head mirrors the balance of section 35(9) of the 1987 Act in subhead (1) including that the declaration is binding on parties to proceedings. Subhead (2) sets out the effect of the declaration. It is intentionally silent as to guardianship – a parent who would be entitled to guardianship by virtue of the provisions of Heads 30, 37 and 38 will have proof that s/he is so entitled on the making of the declaration, and a parent who would not be so entitled has all the rights and duties of a non-guardian parent – including the right to apply for guardianship if s/he wishes (if the court has not already directed her or him to apply, under Head 14).

Children and Family Relationships Bill, 2015-Testing to Establish Parentage

Part 6 of the Bill deals with testing to establish parentage.

parentage-paternity-family-law

Head 24: Definitions

This Head provides definitions for the purposes of the Part. It differs from the definitions in section 37 of the 1987 Act in referring specifically to DNA and DNA testing, as distinct from “blood tests”. This allows the omission of the definition of “excluded” as DNA tests should still give a high degree of certainty as to parentage even where some level of mutation naturally occurs. It also provides a definition of “non-intimate samples” because blood samples are not generally necessary for the purposes of DNA testing.

Head 25: Direction for the use of DNA tests

This Head mirrors section 38 of the 1987 Act with the modification that reference is made to DNA testing rather than solely to blood tests, and subhead (3) allows the court to decide whether to direct testing by means of blood sample or non-intimate sample, having regard to the overall circumstances and the best interests of the child.

Head 26: Consent to and taking of sample

The Head mirrors section 39 of the 1987 Act with the modification that it includes specific references to non-intimate samples and to DNA tests, and the reference in section 39(3)(b) to a medical practitioner having to certify that the taking of a blood sample will not be prejudicial to a person’s care and treatment is now omitted. This is because virtually all DNA samples will be non-intimate samples and taking such samples cannot prejudice a person’s care and treatment in any normal circumstances.

Head 27: DNA test and reports

This Head provides how DNA test results are to be reported to the court. It replicates section 40 of the 1987 Act with the modification that reference is made explicitly to DNA testing rather than “blood tests”, and to non-intimate samples.

Head 29: Failure to comply with direction on DNA tests

This Head allows the court to draw certain inferences where a person does not comply with a direction to undertake DNA testing. It replicates section 42 of the 1987 Act.
Head 30: Penalty for personation for DNA test purposes

Children and Family Relationships Bill,2015-the Guardianship, Custody and Access Changes

Part 7 of the Children and Family Relationships Bill, published in February, 2015 deals with the proposed changes in relation to guardianship, custody, and access.

children and family relationships bill

Here’s whats proposed:

PART 7 GUARDIANSHIP, CUSTODY AND ACCESS

Head 31: Definitions

This Head provides definitions for the purposes of the Part and the Act more generally. They are based in part of the definitions in section 2 of the Guardianship of Infants Act 1964 as amended, with the following key modifications: -definitions for “custody” and “access” are based on the proposed definitions for “day-to-day care” and “contact” in the Law Reform Commission Report on Legal Aspects of Family Relationships. In addition, the definition of “custody” reflects the possibility of joint / shared custody where parents are separated. The terms “guardianship”, “custody” and “access” are retained because these are used in the Constitutional amendment; – “mother” is defined as the woman who gives birth to a child, except in the cases of adoption, or where an order has been made under Head 13; – the definition of “father” from the 1964 Act (which is used for the purposes of assessing what fathers are automatically guardians of their children) now includes a category of non-marital fathers who cohabit with the child’s mother for at least 12 months prior to the child’s birth, where that cohabitation ends 57 (if applicable) not more than 10 months prior to the child’s birth. This will significantly expand the range of fathers who are automatically guardians of their children without the need to take any further action.

Head 32: Best interests of the child

This Head replicates, in subhead (1), section 3 of the 1964 Act with the modification that the “best interests” of the child, as distinct from the “welfare” are the first and paramount consideration in specified types of proceedings.

This change in language is to align with the language of the Constitutional amendment. Subhead (2) provides that 60 the court should have regard to the fact that unreasonable delay in proceedings may be contrary to the child’s best interests.

Subhead (3) sets out the factors to which a court should have regard when assessing a child’s best interests, including the child’s physical, intellectual and social needs, and further factors concerning the ability and willingness of the parents to cooperate in parenting and caring for the child.

Subhead (4) and (5) explicitly mandates the court to consider any history of family violence when assessing a child’s best interests. Subhead (6) seeks to limit the behaviour of a parent which may be considered by the court to behaviour affecting the child. This is to limit the extent to which proceedings may be used to air grievances between parents, rather than focus on the needs of the child and how the parents may best meet them. Subhead (7) specifies that the court should obtain the views of the child without – so far as is possible – putting the child in a position where s/he is subject to undue influence, including by a parent.

Head 33: Proof of paternity in certain proceedings

This Head replicates section 3A of the 1964 Act (inserted by section 10 of the 1987 Act) with the modification that subhead (1)(b) confers authority on the court to direct a person to make an application under Head 7 for a declaration of parentage and to adjourn the proceedings until the question of paternity is resolved.

Head 34: Powers, responsibilities and rights of guardianship

This Head provides a statutory interpretation for “guardianship” including providing an effective saver for the common law position in subhead (1)(c). It therefore includes all the rights and obligations of a parent (whether or not that parent is a guardian), all additional statutory powers, and any further powers under common law, including in relation to the child’s estate. It is, however, modified by the limitation in Head 36(8) which disapplies from a guardian who is neither a parent nor in loco parentis to a child any requirement to maintain the child from guardian’s own resources.

Head 35: Guardian to act in best interests of the child

Subhead (1) mandates a guardian to act in a child’s best interests. This is a new provision: current law does not expressly direct a guardian to act in the best interests of the child although it is generally assumed that a guardian will do so (particularly as most guardians are parents). However, it seems appropriate that as a directing principle, a guardian should be specifically required to act in a child’s best interest. Subhead (2) mandates a person to do what is reasonable in the best interests of a child of whom the person has custody or care, subject to the overall provisions of the scheme. This is not intended to confer additional guardianship-like powers on such a person, but to help clarify that having custody and care of a child is itself a responsibility and that the child’s best interests must be the legitimate concern of a person who has custody and care of the child.

Head 36: Guardians to act jointly

This Head sets out an obligation for guardians to act jointly (subhead (1)), unless the court limits the powers of a guardian by order (subhead (2)). Subhead (3) mandates the guardians to cooperate and to share information and provides that they may enter an agreement between them on the exercise of guardianship powers in relation to the child. Subhead (4) provides that except where the court otherwise provides, a guardian is entitled to information and to have sufficient access to the child to enable the guardian to properly exercise the function of guardianship. Subheads (5) and (6) set out the key responsibilities of guardianship in nurturing and providing for the child, and in making a range of decisions on behalf of the child including in relation to where and with whom the child lives, on the child’s general upbringing, education and medical treatment, etc. Subhead (7) requires the guardian to exercise those functions in a way which is consistent with the age and capacity of the child. Subhead (8) limits the responsibility for maintenance of the child so that a guardian who is not a parent and is not in loco parentis to a child is not required to maintain the child from the guardian’s own resources.

Head 37: Rights of parents to guardianship

This Head reproduces subsections (1) and (4) of section 6 of the 1964 Act as amended, with the modifications that Ø subhead (1) cross-refers to the exceptions made in subhead (2) and the different rule applying in Head 38 to assisted reproduction and surrogacy, and Ø subhead (2) refers to the additional category of cohabiting fathers who are automatically guardians of their children. Section 6(2) and (3), which refer to the surviving parent acting as sole guardian or together with any guardian appointed by the deceased or by the court, are substituted by Head 40. In addition, Head 44 now makes extensive provision on duration and termination of guardianship.

Head 38. Rights to guardianship in special cases of assisted reproduction and surrogacy

This Head makes special provision for the cases of assisted reproduction. Subhead (1) will cover the majority of cases: where a man and woman have a child together by means of assisted reproduction other than surrogacy, guardianship will be determined in the usual way by reference to whether they are married / cohabiting / make a statutory declaration. Subhead (2) deals with the case where the birth mother has a civil partner: if she is determined as the other parent of the child, then she shall also be a guardian: this treats her in the same way as a spouse who is determined to be the parent of a child born through AHR. Subhead (3) deals with the case of a cohabiting female partner of the birth mother who is determined to be the other parent of the child. Subject to meeting the cohabitation requirements that would apply to a father in the same circumstances, she is to be a guardian of the child. Subhead (4) sets out that where a surrogate gives birth to a child, she alone is the child’s guardian under the court declares she is not a parent and terminates her guardianship in accordance with Head 44, and declares another person or persons to be the child’s parents and appoints a guardian for the child. The intention is that the birth mother will be the child’s guardian until a new guardian is appointed, to ensure continuity of protection for the child.

Head 39: Court appointments of guardians

This Head specifies who may apply to court to be appointed as a child’s guardian. These are a parent (whether the natural father or a person declared to be a parent under Head 11 or Head 13) who is not otherwise automatically a guardian (subhead (1)), or the spouse, civil partner or cohabitant of the child’s parent, who shares responsibility for the day-to-day care of the child (subhead (3)(a)), or a person who has day-to-day care of the child and the child has no parent or guardian who is prepared to fulfill their responsibilities to the child (subhead (3)(b)). The appointment of a guardian under the section does not affect the previous appointment of any other guardian (subhead (2)). The consent of any guardian, the proposed guardian, and the child (if s/he is over 12) is required for the appointment of a guardian (subhead (4)), unless the court dispenses with the consent of an existing guardian or the child on the basis that it is in the best interests of the child to appoint the proposed guardian (subhead (5)).

Head 40: Power of parents to appoint testamentary guardians

This Head mirrors, in subhead (1), the provisions of section 6(2) and (3) of the 1964 Act although it refers to “guardian” rather than “mother” or “father” (this is not a policy change: “father” in the 1964 Act generally refers only to fathers who are guardians.) Subhead (2) allows the guardian parent of a child to appoint a 72 testamentary guardian to act on her or his behalf after her or his death (mirroring section 7(1) and (2) of the 1964 Act). Subheads (3) to (7) mirror the balance of section 7 of the 1964 Act.

Head 41: Power of guardian parent to appoint substitute guardians

This provision is intended to provide the framework for a type of “delegated guardianship”. It draws partly on the framework already established for testamentary guardianship and allows the court to intervene if there are disputes with another guardian. The facility to appoint a substitute guardian is proposed to be limited to a guardian parent who has custody of the child (and this includes shared custody). Appointment under subhead (2) is for a definite period and may be useful if, for example, a guardian will be out of the country for a specified duration and will be difficult to contact in case of any emergencies and unable to carry out normal functions such as signing consent forms or authorisations for a child to engage in particular activities. The nature of the appointment and the presumed ongoing capacity of the guardian parent justify allowing the appointment to be limited in its scope. Appointment under subhead (3) is intended to allow parents to appoint substitute guardians empowered to act in their stead should they be temporarily or permanently unable to exercise guardianship (through accident, physical or mental illness or extraordinary circumstances). 75 Subheads (4) to (6) are based on the provisions in relation to testamentary guardianship allowing a guardian parent to object to the appointment and conferring powers on the court to determine any dispute. Subhead (7) provides for the duration of an appointment as substitute guardian. Subhead (8) makes express provision for any dispute arising as to capacity of a guardian parent to resume exercise of his or her guardianship. This may be particularly useful in the case where a guardian whose capacity is compromised (through episodic mental illness / addiction issues, for example) wishes to resume guardianship duties while the substitute guardian does not consider that s/he is capable of doing so and that the child’s best interests may be compromised. Subheads (10) and (11) are safeguards so that the Child and Family Agency will be notified of the arrangement as though it were an emergency private foster care arrangement where the substitute guardian is someone other than a person normally living in a household with the child; this means that if any welfare concerns arise the Child and Family Agency will be informed and can act on them / activate care proceedings if necessary. The provision is intended to balance respect for the autonomy of the guardian parent and the family privacy of people normally living in a household with the best interests and welfare of the child.

Head 42: Appointment of guardians to replace deceased parent or guardian

This Head replicates section 8(2) to (5) of the 1964 Act as amended, and allows the court to appoint a guardian to a child if the child has no guardian. It is not considered necessary to replicate section 8(1) as the child cannot have no guardian in law unless the child’s mother, or both parents, have died, in which case the Head would have automatic effect. It is assumed that since a mother has a constitutional right to have guardianship of her child, her guardianship cannot be terminated by the court under Head 44 (although the court may still limit her exercise of guardianship powers).

Head 43: Powers and duties of guardians

This Head replicates the provision of section 10 of the 1964 Act and refers to the powers of a guardian to act for a child in a legal capacity and as manager of the child’s property. It is separate and distinct from the provisions in Heads 34-36 which are more focussed the physical, emotional, social and intellectual needs of the child, rather than the property and financial interests of the child.

Head 44: Duration and termination of guardianship

Subhead (1) elaborates the provision for removal by the court (referred to in Head 42(3)) of a guardian appointed under Head 39 or Head 40. An application may be made if there is a guardian to be appointed and the guardian to be removed consents to removal, or is unable, unwilling or has failed to exercise guardianship of the child, or the court otherwise considers it necessary or desirable. 79 Subhead (2) is intended to ensure that the child born through surrogacy always has a guardian – guardianship is vested in birth mother until the court both declares her not to be a parent and also appoints another guardian or guardians. This is to ensure protection for the child. For example, if intending parents before an application under Head 13 is determined, the court may declare the birth mother not to be a parent, declare (now deceased) intending parents to be parents, but, until it appoints guardians to act in place of the deceased, the birth mother remains the guardian. Subhead (3) provides for the duration of guardianship in all other cases.

Head 45: Applications to court concerning welfare of child.

This provision allows the court, on application to it, to review the decision of a child’s guardian where that decision may have long term consequences including as to the child’s health (subhead (1)). It extends to parties other than a child’s guardian access to court where the child’s well-being is in question but where it may not be appropriate to seek review in public law proceedings (subhead (2)). In addition, a guardian may always apply to court for direction on a matter concerning the welfare of a child (subhead (3) – based on section 11(1) of the 1964 Act).

Head 46: Applications to court by child’s parents concerning custody and access

This Head is based on certain of the provisions of section 11 of the 1964 Act. Subhead (1) is based on section 11(2)(a) which confers on the court power to rule on matters of custody and access. It is not proposed to replicate paragraph (b) of that subsection as maintenance payments are adequately dealt with in other legislation. Subhead (2) replicates section 11(3) of the 1964 Act as substituted by section 6 of the Age of Majority Act 1985. Subhead (3) is a simplified version of section 11(4) and is cast in gender-neutral terms given the potential for same-gender parents under the Scheme. Subhead (4) allows the court to determine the detailed residential arrangements of a child when granting joint custody – but only to the extent that they are not agreed between the parents – and to specify what contact the child is to have with the parent with whom, at any particular time, the child is not living (e.g. phone calls where the child is with one parent for most of the week or spends most of his or her holidays with one parent rather than the other).

Head 47: Application to a court for custody by relative of child or person acting in loco parentis

This Head allows certain persons other than a child’s parents to seek custody of the child, where the person is either a relative of the child or has been in loco parentis to the child and meets additional criteria (subhead (1)). These are reforms broadly in line with the recommendations of the Law Reform Commission. Subhead (2) sets out the additional criteria for an application on the basis of being “in loco parentis” as follows: (A) the person has been the spouse or civil partner of the child’s parent or cohabiting with the child’s parent for at least three years, and in each case has shared day-today care of the child with the child’s parent for at least two years, or (B) the person has taken care of the child on a day-to-day basis for at least 12 months and the child has no parent or guardian willing and able to exercise his or her guardianship responsibilities including taking day-to-day care of the child. In the case at (A), this would allow a person who has had a quasi-parental role in relation to a child to apply for custody, including shared custody, on the break-up of a relationship with the child’s parent; in the case at (B) where there may be problems in the child’s birth family, a person who has taken care of the child may be able to apply for legal custody. Subhead (3) restrains the court from making a custody order under the Head unless all the guardians and any subject child over the age of 12 consent to it, unless the court dispenses with the consent under subhead (4) on the basis that the child’s best interests are served by its making the order. Subhead (5) provides for the court to specify the detailed residential and contact and access arrangements, if it decides to grant joint custody of the child to a person who has been in loco parentis to a child, and the child’s parent.

Head 48: Application to court for access by relative of a child or person acting in loco parentis

This Head substitutes for the provisions under section 11B of the 1964 Act which allow certain persons to apply for access to a child. It implements a recommendation of the Law Reform Commission in removing the former “two step” process under which an applicant had first to seek leave to make the application. Subhead (1) 85 specifies that a relative or a person who has been in loco parentis may make an application. Subhead (2) specifies the factors the court must consider in deciding whether or not to make an order as they relate to the relationship between the applicant and the child, including the child’s own views. Subhead (3) additionally mandates the court to consider the best interests of the child and whether the denial of access by the child’s guardians is unreasonable.

Head 49: Additional powers of the court in relation to applications under this Part

Subhead (1) confers a general authority on the court to include conditions in orders it makes concerning guardianship, custody and access where it considers that necessary in the best interests of the child. This could include conditions as to sharing of custody, locations of access, limitations on the exercise of guardianship by one of a child’s guardians, etc. Subhead (2) and (3) are intended to place on a statutory footing a power that is sometimes used by the courts if they consider that a child’s parent may take the child to live in another country in breach of rights of custody or access of the child’s other parent. Subhead (4) does not confer any new function on the court, but is intended to serve as a clear signposting both to judges and to legal representatives of the powers already available to it under the Child Care Act 1991.

Head 50: Making of interim custody or access orders

Subhead (1) allows the court to make interim custody or access orders. This is to help address the problem that waiting lists can cause where there is a dispute about custody and access: an applicant may be denied access for a period of weeks or months, which can be very disruptive of his or her relationship with a child, particularly with a very young child. If the court has the facility to make interim orders, this can help maintain the relationship between the applicant and the child pending the full determination of the dispute. Subhead (2) provides that an interim order shall not be stayed on appeal unless the court that makes the order or the court to which the appeal is made specifically direct otherwise. A complete ban on staying an order would not be appropriate given that this would not allow the court to consider the best interests of the child concerned, but this gives a clear signal that lodging an appeal is not to constitute a stay on the order unless a stay is expressly granted.

Head 51: Power of court as to production of child

This is an updated version of section 14 of the 1964 Act. That section confers on the court the power to refuse to enforce an applicant’s rights of custody in respect of a child where it is of the opinion that the applicant has abandoned or deserted the child. The power granted under this Head varies somewhat in that if the court considers that the behaviour of a parent or guardian means it is contrary to the child’s best interests that the applicant parent have custody, it is required to refuse any right of custody to that parent. In addition, the court is given power to make whatever orders in considers appropriate in respect of guardianship, custody and access.

Head 52: Validity of separation or parenting agreements

Provide along the following lines: A provision contained in any separation or parenting agreement made between the parents of a child shall not be invalid by reason only of its providing that one of them shall give up the custody or care and control of the child to the other.

The Family Mediation Service

The Family Mediation Service is a free service run by the Family Support Agency.

It is a completely free service and provides mediation services to couples, both married and unmarried, who are separating or whose relationship has broken down.

Professional, trained mediators help the couple to negotiate their own agreement to deal with

  • The family home and property issues
  • The children
  • Pensions and
  • Any other issues that arise in a separation.

The accredited and professional mediator maintains a neutral position and does not take sides but seeks to help the couple to reach agreement for separation.

In order to avail of the service it is important that both parties are agreeable and contact the mediation service separately.

Mediation sessions

Generally a session will last for around 1 hour and there will be 3 to 6 sessions in the mediation. Ultimately a good outcome is to arrive at a written agreement concerning all of the issues which can then be brought to a solicitor who can draft a legally binding separation agreement.

Mediation is completely confidential and there are a number of full time and part time offices around the country.

Take a look at the legal aid board site to see where these are located and learn more about the mediation service.

 

The Family Mediation service publish a number of very helpful booklets which you can access on their website above which deal with many of the important issues of separation such as

  • Financial matters
  • Children
  • Parenting plans.

It is a statutory requirement (Judicial Separation and Family Law Reform Act, 1989, sect. 5 and 6) for a solicitor to advise couples who are separating and who wish to apply for a Judicial Separation to

  1. Discuss reconciliation and
  2. Discuss mediation and
  3. Coming to a negotiated settlement by way of a separation agreement or deed.

The Family Mediation Service, as well as being professional and free, can have the additional benefit of reducing your legal costs when it does come to having a separation agreement drafted or when seeking a Judicial Separation or divorce.

Being able to present to a solicitor with many of the major issues agreed can make life easier and more cost effective for all concerned.
By Terry Gorry
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How to Obtain a Declaration of Parentage

parentage-paternity-family-law

The Status of Children Act, 1987 makes provision for declarations of parentage.

This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.

The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order.

These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.

The relevant rule of the District Court is Order 61.

Proceedings to obtain a declaration of parentage are commenced with a Family Law Civil bill issued in the Circuit Court.

Presumptions of paternity

The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.

Unmarried parents

In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.

Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.

The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate

  • If both parents agree or
  • If there is a Court order naming him as the father.

However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.
By Terry Gorry
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How to Get a Divorce in Ireland-Divorce Law Basics

Divorce in Ireland is provided for by the Family Law (Divorce) Act 1996 which allows both the Circuit Court and High Court to grant decrees of divorce.

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The Circuit Court only has jurisdiction to grant a divorce decree where the property concerned has a market value of less than €3M.

Grounds for divorce

The grounds for divorce under the Family Law (Divorce) Act 1996 are threefold:

I.        When divorce proceedings commence, the parties must have lived apart for at least 4 of the previous 5 years (where this occurs and a couple have lived together for a short period(s) of time to attempt to reconcile, a divorce decree can still be granted)

II.      There is no reasonable prospect of reconciliation (the Court must be satisfied on this ground)

III.     The Court must make proper provision for the spouses and any dependent members of the family (a dependent member of the family includes children born to both spouses, or one spouse if adopted by both spouses or by one spouse, or to whom either parent is ‘loco parentis’)

You will see from the above conditions that “fault” on the part of one or other party is irrelevant and it is worth noting that “living apart” is possible in the eyes of the Courts even if the parties are living under the same roof.

This will require considerable proof for the Court though before a decree is granted and it is important when having deeds or agreements of separation drawn up that they specify when the parties have commenced living apart.

The notion of living apart has been considered in some detail by the Courts and it has been held by the High Court that where a couple claim to be living apart, even though under the same roof, the court will only decide this issue based on the circumstances of each case.

‘Living apart’ has been held by the Courts to be a ‘state of affairs’ rather than just a physical living apart and the converse is also true: a couple could be living apart even though living under the same roof.

It is important therefore that when couples are having deeds of separation drafted that it states clearly the date on which they started living apart.

It is noteworthy too that any correspondence, written or oral, involving attempts at reconciliation or mediation with a third party is not admissible as evidence in Court.

Effects of divorce decree

The principal effects of a divorce decree in Ireland are

i.        The marriage is dissolved and both parties are free to remarry

ii.       The rights of both parents to continue to be joint guardians of children of the union continues

iii.      A divorced person is no longer a spouse and does not continue to enjoy the benefits of the Succession Act 1965 or the Family Home Protection Act 1976

iv.      There are tax implications

v.       A decree of divorce does not prevent either spouse from being entitled to a widow/widower’s pension or the one parent family allowance or the deserted wife’s allowance and benefits.

Just as in Judicial Separation proceedings both parties must be advised by their solicitors to discuss the possibility of reconciliation, mediation and an agreement in writing between the parties rather than court proceedings.

These obligations on a Solicitor are legally binding and if not carried out neither a Judicial Separation decree or one of divorce will be granted by the Court.

Divorce and Judicial Separation Procedure in the Circuit Court

Both the Circuit Court and High Court have jurisdiction to hear applications for divorce and judicial separation. However any case where the assets are less than €5 million should be heard in the Circuit Court.

Family Law Civil Bill

All proceedings for divorce, judicial separation, relief after foreign divorce or separation outside the state, declarations of parentage, declarations of marital status, nullity are commenced by issuing a Family Law Civil Bill in the County Registrar’s office of the appropriate County. This choice of venue can be the county where either party to the proceedings ordinarily resides or carries on business.

Every Family Law Civil Bill must set out the relief being sought and the grounds relied on for seeking that relief. It must contain certain information such as the date and place of marriage, the length of time the parties are living apart, details about any children of the marriage, information about the family home and any other property, the occupation of the parties, etc.

The Family Law Civil Bill, along with a section 5 or 6 certificate, an affidavit of means and affidavit of welfare (where appropriate) are filed in the Circuit Court office and then served on the other party.

Appearance and Defence

The respondent then has 10 days within which to enter an appearance and a further 10 days to enter a defence as well as an affidavit of means and an affidavit of welfare. However these time limits are unrealistic and further time will be taken in practice.

Fast Track Divorce

The Circuit Court Rules do provide for a “fast track divorce” where both parties are agreed in relation to all of the reliefs being sought. This involves the respondent filing a “consent defence” and an application to Court for a judgment by consent.

There is also the possibility of simply obtaining a decree of divorce where no ancillary relief is sought.

Case Progression

A case progression summons will issue to both parties when the respondent files and serves a Defence to the Family Law Civil Bill.

Case progression is the management of a family law case, generally concerning divorce or judicial separation, before it goes to trial. The purpose is to attempt to keep costs down for all parties and to ensure the best use of the Court’s time by having the parties deal with issues before going to hearing.

Case progression generally takes place in the Circuit Court and is overseen be the County Registrar.

The County Registrar oversees the preparation of cases pre-trial and decides what steps need to be taken by the parties before the case can be heard in Court by a Judge.

The County Registrar can give a range of pre trial orders and directions to the parties such as

  • Vouching items in an affidavit of means
  • Identifying the issues in dispute between the parties.

How Does Case Progression Work?

Both parties, after proceedings have been issued and an appearance and/or defence entered, will be summonsed to a case progression hearing. At the same time they will be given a case progression questionnaire which must be completed before going before the County Registrar on foot of the case progression summons.

This questionnaire allows the County Registrar and the parties to identify the issues which are in dispute and which are agreed. This hearing before the County Registrar also helps identify whether further pleadings are needed and deals with discovery, pension relief notices, expert reports, and so on.

The purpose is to sort out as much as possible before the case goes to trial before a Judge.

Trial

Once all pleadings have been exchanged a notice  of trial is issued and served and a date will be fixed for the hearing of the case.

Affidavit of Means

Where financial relief is being sought by one of the parties, the rules provide for each party to file an affidavit of means.

However in Dublin in where no financial relief is being sought, an affidavit of means is not required by the Family Law office.

An affidavit of means is divided up into 5 schedules listing

  • The assets of the party
  • The income
  • Debts and liabilities
  • The outgoings of the party
  • Any pension scheme which exists.

Affidavit of Welfare

An affidavit of welfare must be sworn and filed where there are dependent children.

The affidavit of welfare must give details of children born to the applicant and the respondent or adopted by them and details of other children of the family or to which either of the parties stand in loco parentis.

Interim Applications

Interim applications can be made by either party by way of notice of motion and affidavit.

Costs

The Court can make any order it sees fit as regards costs.


By Terry Gorry
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