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.