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.

Access, Custody and Guardianship of Children in Ireland-The Essentials

The Guardianship of Infants act,1964 is the principal piece of legislation governing the issues of access, custody and guardianship in Ireland.

Any guardian of a child can apply to Court to seek an order concerning these issues and the Court will be primarily guided by what is in the best interests of the child. An unmarried natural father can bring an application under the Guardianship of Infants Act, 1964 regarding custody and/or access.

Who is the guardian of the child?

The natural mother is automatically a guardian under Irish law; the father is also automatically a guardian if he is married to the mother at the time of birth or becomes a guardian on subsequent marriage after the birth.

However the natural father of the child, who is not married to the mother at the birth of the child, can apply to become a guardian under the Guardianship of Infants act,1964. (He can also become a guardian with the joint guardian with the consent and co-operation of the mother).

It is important to note that the unmarried father has the right to apply to become a guardian but not the right to be a guardian automatically.

The welfare of the child

Any application to Court in respect of guardianship, access or custody will be considered be having a look at what is in the best interests of the child. This welfare of child concept is necessitated by the 1964 act and welfare is looked at under a number of headings such as

  • The moral welfare (conduct of the parents is relevant only insofar as it affects the welfare of the child)
  • Religious welfare
  • Intellectual welfare (includes educational needs of the child)
  • Physical
  • Social (the capacity of the child to mix with and become part of the society in which they will be brought up)
  • Emotional
  • Capacity of the parent to care for the child
  • Wishes of the child but this will depend ont the age and level of understanding of the child and a Court is under no obligation to agree to the demands of a child in this respect
  • Keeping siblings together
  • Keeping siblings with the marital father where the mother is deceased.

Where there is a conflict between the welfare of the child and other considerations, the welfare of the child takes precedence.

Guardianship of children

Guardianship in Irish law is recognised as the duties and rights of the parent to make decisions in relation to the child’s upbringing, specifically in relation to education, religion and general global care/rearing, and decisions which must be made during the child’s lifetime relating to general lifestyle and development. It includes a duty to maintain and properly care for the child.

Who can be a guardian?

The natural mother is automatically  a guardian of the child.

Whether the father is a guardian or not will depend on his relationship with the mother-if they are married he is automatically a guardian.

If they are not married he is not a guardian.

However he can become a guardian in two ways:

  1. he can apply to Court under section 6A of the Guardianship of Infants Act, 1964 to be made a guardian or
  2. a statutory declaration, with the mother’s agreement, in accordance with the Children Act, 1997 (Section 4)

The Guardianship of Infants Act, 1964 also allows the father and mother to appoint testamentary guardians by will or deed to act as guardians in their place after death.

A guardian then has rights to custody of the child, subject to any court order, will, or deed, and can act on behalf of the child in relation to property of the child, legal proceedings and so on.


Unmarried fathers

Unmarried fathers are excluded from being automatic guardians of the child, unlike the natural mother. The Guardianship of Infants Act, 1964 gives the unmarried father the right to apply to Court to be appointed a guardian. This application will be judged on the circumstances of the case and the welfare of the child.

Custody

Custody is the right of a parent to exercise day to day care and control (physical) of the child. The married parents are automatically joint guardians and custodians of the child.

In the unmarried family, the mother is automatically the child’s guardian and sole custodian.

An unmarried father can apply for custody under the Guardianship of Infants Act, 1964 (Section 11(4)), even if he is not a guardian at the time.

The Children Act, 1997 makes provision for the father and mother to be appointed joint custodians. However, the reality is that the more likely scenario will be that one parent will have sole custody, generally the mother, and the other parent will have access. (Strictly speaking, the right to access is a right of the child in accordance with the UN Convention n the Rights of the Child)

In situations where married parents separate and sole custody is awarded to one parent, this does not mean that the non custodial parent is deprived of other rights that accrue as a guardian. The non custodial parent must still be consulted in relation to all aspects of the child’s welfare.

How to Apply for Custody

The application for custody is normally brought in the District Court and the procedure is the same as applying for maintenance or access (see further down the page for the procedure and the relevant form).

Basically, you use form 58.17 and serve it on the other party at least 14 days before the Court hearing date, unless the application has been certified by the District Court office as urgent. In this case, two days notice is required.

You then file the notice and a statutory declaration of service at least 2 days before the Court hearing date.

family-law-access

Access

The law considers that the right to access to a parent is in fact a right of the child; this is why an access to a child order will be decided by the Court whilst looking at what is in the best interests of the child.

Generally though it is very unusual for a Court to not grant a parent access to their child and may, where necessary, make a supervised access order to allow to this to happen where the circumstances demand it.

The Children Act 1997 gives rights of relatives to apply for access to a child. This includes grandparents and the extended family of the child as well as those who have acted in loco parentis to the child.

Access orders are not final and can be varied/changed on application to Court.

How to Obtain Access

The vast majority of access applications are made in the District Court.

The application involves filling out the appropriate form (form 58.17) and lodging it in the District Court office. They will issue the form and insert a date in the Notice for the Court hearing for your application.

You must serve this Notice of the application on the other party (the Respondent) at least 14 days before the Court date. However, if the application is certified as urgent by the District Court office, 2 days’ notice will be sufficient.

The Notice and a Statutory Declaration of Service (forms 10.1/10.2/10.3) must be lodged in the Court office at least 2 days before the Court hearing date.

You then attend Court to make your application. You may have instructed a solicitor to assist you or you can apply yourself if you feel comfortable doing so.

You may also be entitled to legal aid through the District Court Family Law Legal Aid scheme. If you are approved, you will have to make a small contribution to the cost of the solicitor. The solicitor will be paid directly by the Legal Aid Board a set fee set down in the family law scheme.


By Terry Gorry
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Child Care Law in Ireland-What You Need to Know

The principal law in Ireland in relation to the care of children is the Child Care Act, 1991. Incidentally a child is defined as a person under the age of 18 who has not married.

The Child Care Act provides that in any court proceedings concerning a child the Court must regard the welfare of the child as the principle guide in it’s decision making.

Depending on the age of the child, the Court will also have to have regard to the wishes of the child and the parents but the guiding principle is the welfare of the child.

The Child Care Act 1991 also sets out the role of the HSE in child care issues and under section 3 of Part III of the Act which places certain duties and obligations on the HSE in the whole area of child care. The HSE must also have regard to the wishes of the parents in carrying out it’s statutory duties.

High Court decisions have held that it is generally in the best interests of the child to be brought up in his own family so for this reason the intervention of the HSE to override the wishes of the parents has been limited to exceptional cases. Where the HSE feels intervention is necessary, it should first consider whether proper care could be given with the child staying within his/her family with the proper supports being provided by the HSE.

Voluntary care

Section 4 of the Child Care Act 1991 allows the HSE to take a child into voluntary care with the consent of the parents where the child’s care and protection requires it.

Section 5 of the Act obliges the HSE to deal with homeless children and provide them with “suitable accommodation”.

Children in emergency situations

Both the HSE and the Gardai have extensive powers to protect children in emergency situations. Section 12 allows the Gardai to remove a child to safety where there are reasonable grounds for thinking that there are immediate and serious risks to the welfare or health of the child. When this occurs and the child is not returned to his/her custodian/guardian,  the HSE is then obliged to make an application for an emergency care order in the District Court.

This emergency care order will see the child being placed in the care of the HSE for up to 8 days. An appeal to the making of an emergency care order does not stay the operation of the order made.

The HSE and care proceedings

Part IV of the Act covers the role of the HSE in situations where the child is thought to be in danger. If the HSE considers that a child is in need of care or protection it has a positive obligation to make an application to Court for either a care or supervision order.

Care orders

A care order places the child in the care of the HSE for so long as he remains a child or for a lesser period. The HSE then acts as a parent to the child and is obliged to promote the child’s welfare, health, and development.

Supervision order

A supervision order is a half way house measure-the Court can make a supervision order prior to deciding on the merits of making a care order and involves the HSE calling to the child’s house to check on the welfare of the child and to advise the parents about caring for the child.

A supervision order can only last for 12 months but further supervision orders can be sought by the HSE.

Parents can be guilty of a criminal offence if they do not comply with the supervision order.

Interim care order

An interim care order is a care order for a short period of time-up to 28 days-and is designed to protect the child in the short term. An interim order can be longer than 28 days if the parents or a person acting in loco parentis consents.

Guardian ad litem

The Child Care Act 1991 introduced into Irish law the “guardian ad litem” which is a court appointed person to represent the child’s interests in any proceedings under the Act; he/she is independent of both the HSE and the child’s parents.

The Accommodation and Care of Children in Care

The Child Care Act, 1991 sets out a number of options when a child has been placed in the care of the HSE.

These include:

  1. Placing the child with a foster parent in foster care
  2. Placing the child in residential care in a residential care home or children’s residential centre
  3. Placing the child in boarding school
  4. Placing the child for adoption.

Foster Care

The Child Care (Placement of Children in Foster Care) Regulations, 1995 (SI 260/1995govern the placing of children in foster care.

A foster parent is a person other than a relative of a child who is taking care of the child on behalf of the HSE. The HSE maintains a panel of prospective foster parents.

Before placing a child with foster parents, except in an emergency situation, the HSE is obliged to have an assessment of the child carried out to ensure that the child’s individual circumstances and needs are identified and appropriate care is provided.

The HSE is obliged to promote the welfare of the child in foster care and must have regard to the rights and duties of the parents.

The Child Care (Placement of Children in Foster Care) Regulations, 1995 (SI 260/1995) provide for

  • A panel of prospective foster parents to be created and maintained by the HSE
  • Assessment of the circumstances of the child
  • A contract between the foster parents and the HSE
  • The requirement for the HSE to prepare a care plan for the child, before placing her in care
  • A register containing details of children in care
  • An up to date case record of every child in foster care
  • A fostering allowance payable to foster parents
  • The duties of the foster parents
  • The supervision requirements placed on the HSE in respect of children in foster care
  • A regular review of each child care case and the plan for the care and upbringing of the child. This review must take place at least once a year and once every six months during the first two years of care. This review also requires the HSE to ascertain whether returning the child to the parents’ care would be in the child’s best interests. In carrying out such reviews, the HSE is obliged to take into account any views of the child, the parents, the foster parents, and any other person consulted in relation to the review
  • The removal of the child from foster care, either at the request of the foster parents or where the HSE intends reuniting the child with his parents

Residential Care

The placing of children in residential care is governed by the Child Care (Placement of Children in Residential Care) Regulations, 1995, statutory instrument 259/1995

These regulations cover

  • Standards in residential care
  • Monitoring of placements
  • Reviews
  • The promotion of the welfare of the child.

The decision as to whether to place the child in residential care or foster care must be taken in the light of the individual needs and the circumstances of the child. Regardless of whether the child is in residential care or foster care the HSE is obliged to facilitate reasonable access by the parents/guardians or anyone with a bona fide interest in the child (Child Care Act, 1991, section 37).

Access to Children in Care

Section 37 of the Child Care Act, 1991 states:

37.—(1) Where a child is in the care of a health board whether by virtue of an order under Part III or IV or otherwise, the board shall, subject to the provisions of this Act, facilitate reasonable access to the child by his parents, any person acting in loco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child and such access may include allowing the child to reside temporarily with any such person.
(2) Any person who is dissatisfied with arrangements made by a health board under subsection (1) may apply to the court, and the court may—
(a) make such order as it thinks proper regarding access to the child by that person, and
(b) vary or discharge that order on the application of any person.
(3) The court, on the application of a health board, and if it considers that it is necessary to do so in order to safeguard or promote the child’s welfare, may—
(a) make an order authorising the board to refuse to allow a named person access to a child in its care, and
(b) vary or discharge that order on the application of any person.
(4) This section is without prejudice to section 4 (2).

 

If someone is not happy with the arrangements in relation to access he/she can apply to Court for the appropriate directions.

Generally, in relation to access to children in care, two principles prevail:

  1. The welfare of the child
  2. Access to parents and other relatives should be considered to be in the best interests of the child, unless proved otherwise.

Termination of Care

Termination of a child in care occurs where:

  1. The child reaches the age of 18 years as he is no longer a child in accordance with the Child Care Act, 1991
  2. A child has been placed in care voluntarily by parents and they resume care and custody
  3. A Court discharges a care order
  4. Where a care order expires and is not renewed.

The HSE can also remove a child from a placement.

Any person may apply to the Court for directions where a child is in the care of the HSE.

After a child reaches the age of 18, even though he is no longer a child, the HSE can continue to make provision for a child formerly in its care until he reaches the age of 21. This can include making provision for visits to the child, arrangements for completion of the child’s education, placing the child in a trade, or arranging appropriate accommodation.

The Child Care Act, 1991 allows the family law Court to vary or discharge any care/supervision order. Any person can also apply to Court to have orders discharged or varied as set out in section 22 of the Child Care Act, 1991.
By Terry Gorry
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