Changing a Child’s Surname in Ireland-What You Need to Know

change childs name ireland

If you want to change a child’s surname there is three ways this can happen:

  1. In the Birth Register
  2. By Deed Poll
  3. By Common Usage

Birth Register-Re-Registration

If the child has been registered in the mother’s name alone the birth can be re-registered in the Register of Births to include the father’s name. This can be done in the following ways:

  • Both parents register the birth together using form CRA9
  • The mother can name the father and bring along an acknowledgement from the father that he is the father
  • The father can bring along a declaration form acknowledging he is the father and a declaration from the mother confirming he is the father
  • The mother and father can make a written request on production of a court order which names the father.

The Registrar in your local office or the hospital will have the necessary forms.

Birth Register-Changing the Child’s Name

If the parents marry, and they both agree, the surname can be changed in the Birth Register. Both names, however, must have already been on the Birth Register.

Changing Child’s Name by Deed Poll

This will not change the child’s name on the Birth Register. Changing by Deed Poll involves presenting the Deed Poll and the child’s birth certificate in the deed poll section of Central Office of the High Court.

Children between the ages of 14 and 18 can sign a Deed Poll themselves, provided they have consent of both parents. Children under 14 will need to have the Deed Poll executed (signed) on their behalf by a guardian with the consent of the other guardian (if any).

Generally, the father will need to agree to the change of name, and he will have to sign a form confirming agreement.

If the father’s consent is not available all is not lost. The mother will have to swear a grounding affidavit.

This grounding affidavit of the mother must set out the reasons why the change is being sought, the father’s last address (if known), confirmation that the parents were or were not married, whether they lived together as a family unit, why consent is not available, the last date of contact with the father, and whether the mother is sole guardian or not.

If the father’s name does not appear on the child’s birth certificate the mother will have to swear a supplemental affidavit confirming there are no courts orders in place in relation to guardianship, access, custody or maintenance and setting out what role, if any, the father has in the child’s life.

The deed poll will have to be printed on deed paper and it will state that the mother wishes that the child be called by his/her new surname from now on.

The documents that need to be submitted to the Deed Poll section of Central Office of the High Court will be

  • Birth certificate
  • Deed poll
  • Affidavit of witness
  • Grounding affidavit of mother that father is not consenting
  • Certified copies of birth cert, passport and court orders relating to guardianship

A solicitor can send in the necessary documents, but the Deed Poll Section will not accept the documents directly from the applicant by post.

You can then enrol the Deed Poll on a publicly accessible register in the Central Office of the High Court, although this is not necessary and you can use the Deed Poll and the child’s birth certificate together for administrative purposes. The National Driving Licence Service (NDLS), however, requires the deed poll be registered for the purposes of getting a driving licence.

Changing Child’s Name by Common Usage

You can change a name by common usage, and use this for official purposes. You need to show 2 pieces of formal identification in which you use this name.

If you are the sole guardian of a child you can do this without any difficulty; if you are joint guardian you will need the consent of the other guardian.

Conclusion

Changing a child’s surname is easier with the agreement of the other parent.

But it is not fatal if the other parent does not agree or cannot be contacted, and applications can be made to the Deed Poll section of Central Office of the High Court and the Senior Registrar will decide based on the circumstances of the case.

Children and Family Relationships Act,2015-Changes Come Into Law,January,2016

children and family relationships act 2015

Parts of the Children and Family Relationships Act 2015 have come into law from 18th January, 2016.
These deal with
1. guardianship
2. custody
3. access.

Guardianship and Unmarried Fathers

Unmarried fathers will automatically become guardians of their children if they meet a cohabitation requirement.

An unmarried father who cohabits for 12 months with the child’s mother, including 3 months following a child’s birth, will automatically become the child’s guardian.

This provision is not retrospective, so guardianship will only be acquired automatically where the parents live together for at least 12 months after 18 January 2016.

Other Provisions

-A person other than a parent may become the child’s guardian, if married to or in a civil partnership with the child’s parent or if s/he has cohabited with the child’s parent for over 3 years and if the person has shared responsibility for child’s day-to-day care for more than 2 years.

It will also be possible for the court to appoint a person as a child’s guardian if that person has been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.

The powers of court-appointed guardians will generally be limited to decisions on day-to-day matters. The decisions reserved to full guardians are decisions on the child’s place of residence, his / her religious, spiritual and cultural upbringing and on medical matters, placement for or consent to adoption of a child and on the issue of a passport for a child.

It will be possible for a guardian parent to nominate a temporary guardian for his / her child through a court-based process if the parent is suffering from serious illness or injury which would prevent him or her from exercising his or her guardianship responsibilities. The court will appoint the temporary guardian and will have the power to limit that person’s responsibilities, taking account of any limitations imposed by the parent.

-A parent’s spouse, civil partner or cohabitant of not less than 3 years will be able to apply for custody where s/he has shared parenting of the child for 2 years. A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

-Relatives of a child such as grandparents or those acting in loco parentis will be able to apply to have access to children more easily in the context of relationship breakdown.

-A child’s best interests will be the paramount consideration for the court in proceedings on guardianship, custody or access.

-The court can impose enforcement orders where a parent or guardian has been denied custody or access. These may include requiring that he or she get compensatory time with the child, that his or her expenses be reimbursed or that one or both parties attend parenting programmes, family counselling or receive information on mediation.

-A child co-parented by civil partners will have the same protections as are enjoyed by a child of a family based on marriage. The court will also be able to order a civil partner to pay maintenance for the support of a dependent child of the civil partners, including where the child is the child of only one of the civil partners.

-A maintenance responsibility may be imposed on a cohabiting partner for a partner’s child where the partner is a guardian of the child.

The relevant commencement order is the Children and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016.

The relevant act is the Children and Family Relationships Act, 2015.

How to Apply for Custody, Guardianship, and Access in the District Court

custody guardianship access

Do you need to apply for guardianship or custody of a child, or access?

You can bring the application in the District Court where either party to the proceedings resides or carries on any profession, business or occupation.

Your hearing will be heard in private.

Guardianship applications and Court orders

An application to the Court  by the father of a child whose father and mother have not married each other and have not made a statutory declaration, for an order appointing him to be a guardian of the child shall be preceded by the completion by the applicant of a notice in the Form 58.1 Schedule C.

Such notice shall be served upon the mother and upon any other guardian of the child. The order of the Court granting such application shall be in the Form 58.2 Schedule C.

Applications to appoint or remove a guardian can also be made in other circumstances, for example where a child has no guardian or where a surviving guardian objects to the appointment of a testamentary guardian.

Application seeking Court’s direction

An application to the Court can be made for the court’s direction as to access, custody, or guardianship by a person who is a relative of a child, or has acted in loco parentis to a child and shall be preceded by the issue and service of a notice in the Form 58.15 Schedule C upon each guardian of the child. The order of the Court thereon shall be in the Form 58.16 Schedule C.

Application to vary/discharge

An application under section 12 of the Act for an order varying or discharging a previous order shall be preceded by the issue and service of a notice in the Form 58.21 Schedule C upon each of the other guardians or each of the guardians of the child as the case may be. The order of the Court thereon shall be in the Form 58.22 Schedule C.

Application for production of child

An application for the production of a child shall be preceded by the issue and service of a notice in the Form 58.23 Schedule C upon the person having custody of the child.

Custody/right of access -non compliance with direction

Where complaint is made to a Judge alleging an offence of failure or refusal to comply with the requirements of a direction given in an order the summons which may be issued and served upon the person against whom the offence is alleged shall be in the Form 58.28 or 58.29 Schedule C, as appropriate.

Service and lodgment of documents

Documents may be served upon the person to whom it is directed in accordance with the provisions of Order 10 of these Rules at least fourteen days or, in the case of proceedings certified as urgent under rule 2(2) hereof, at least two days, before the date of the sitting of the Court to which it is returnable.

The original of every such notice or order served shall, together with a statutory declaration as to service thereof, be lodged with the Clerk at least two days before the date of the said sitting.

Clerk to supply copies of orders

Where the Court makes an order under the Act, the Clerk shall give, or send by ordinary post, a copy of such order to each person in whose favour or against whom the order was made.

 

What’s set out above is an abbreviated version of the rules involved.

Always check the full version of the appropriate rules or get legal advice or representation.

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-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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The Non Marital Family-Guardianship, Access, Custody, Maintenance Essentials

The Irish Constitution envisages the ‘family’ as one based on marriage alone. Clearly this leads to huge difficulties for the many non-marital families in Ireland. (This article should re bead in conjunction with this one which deals with changes in January, 2016).

However it has been held that non marital children have the same ‘natural and imprescriptible rights’ as marital children under article 42 of the Constitution.

Unlike the rights of the family under article 41 of the Constitution, the rights of the non-marital mother to the custody and care of her child can be transferred or lost if she abdicates her rights and duties to the child.

However, the non-marital father has no such constitutional rights and has no natural rights to the custody of the child (unlike the non-marital mother).

Before the Status of Children Act, 1987 a  non-marital child was ‘illegitimate’ and could not be legitimated even if the parents married. The Status of Children Act, 1987 provides that the ‘illegitimate’ child becomes legitimate once the parents marry.

Guardianship

Prior to the Status of Children Act, 1987 the guardian of a non-marital child was the natural mother. After the passing of this act, a father can now apply to be made a joint guardian with the natural mother under section 12.

A father can also become a guardian under an informal procedure provided by the Children Act, 1997 provided the mother agrees. This involves a statutory declaration signed by both parties.

Guardianship means that a guardian must be consulted in relation to all aspects of the child’s upbringing.

All applications for guardianship will be considered in the light of the welfare of the child as set out in the Guardianship of Infants Act, 1964.

The non-marital father can apply to Court to become a guardian under section 6 A of the Guardianship of Infants Act, 1964.

However the Children Act, 1997 provides for a simpler way of the father becoming a guardian by way of a statutory declaration of both parents agreeing to the appointment of the father as a guardian. (S.I. No. 5/1998 — Guardianship of Children (Statutory Declaration) Regulations, 1998) This does away with the need to attend Court to be appointed a guardian.

Once the father has been appointed, he can only be removed by the Court.

Custody and Access

Custody is the date to day physical care and control of the child.

Access is the right to see and communicate with the child.

As outlined above, the natural mother has a constitutional right to the custody of the child but the natural father does not in a non-marital family.

However, the father can apply to Court for a custody and access order under the Guardianship of Infants Act, 1964, section 11(4).

The most common applications by fathers is for an access order but he may also seek custody where the child is not being looked after by the mother.

Maintenance

An unmarried man or woman has no legal entitlement to seek maintenance from the other party for him/herself. However, he/she can seek maintenance for the support of the children (Family Law (Maintenance of Spouses and Children) Act, 1976)

The Status of Children Act, 1987 provides that a maintenance order cannot be made against a person unless it is proved on the balance of probabilities that the person is the parent.

Succession

Since June, 1988, thanks to the Status of Children Act, 1987 children born outside of marriage have the same succession rights as marital children.

This means that a child born outside marriage can bring legal proceedings challenging a parent’s will if s/he is disappointed and can claim a share of the parent’s estate where there is no will.

It is strongly advisable for a single mother to make a will nominating guardians in the event of her death. If she doesn’t, the child will have no guardian.

The Status of Children Act, 1987 also provides for declarations of parentage. These types of declarations are important in probate cases.

Where parentage is in question, Courts can order the taking of blood tests or DNA tests.

The Status of Children Act, 1987 also introduced a presumption of paternity. This means that it is presumed that the father of a married woman’s children is her husband. However, this presumption can be rebutted with the appropriate evidence.

Provisions for the registration of births are set out in section 49 of the Status of Children Act, 1987.

The Domestic Violence Act, 1996 extended the protection of barring and protection orders to cohabitees.

An unmarried person does not enjoy the protection of the Family Home Protection Act, 1976. Property disputes between an unmarried couple cannot be pursued within the family law Courts.

Cohabitation agreements and non-marital contracts are not recognised in Irish law as they are seen as contrary to public policy. However agreements regulating financial and property matters are enforceable as long as they are not conditional on the parties performing ‘marital duties’.

By Terry Gorry
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