Categories
Non Marital Family

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.

Categories
Maintenance

How to Apply for Maintenance in the District Court

maintenance-family-law

You can apply for maintenance in the District Court where either party to the proceedings ordinarily resides or carries on any profession, business or occupation.

The application will be heard in private-only officers of the Court, the parties and their legal representatives, witnesses (subject to the provisions of Order 8 rule 2 of these Rules) and such other persons as the Judge in his or her discretion shall allow, shall be permitted to be present at the hearing.

An application for a maintenance order shall be preceded by the issue and service upon the respondent of a summons in the Form 54.1 or 54.2 or in the Form 54.3 or 54.4 Schedule C, as appropriate.

Application to discharge maintenance

An application by a maintenance debtor for the discharge of a maintenance order shall be preceded by the issue and service upon the maintenance creditor of a summons in the Form 54.9 Schedule C. The order of the Court granting the application shall be in the Form 54.10 Schedule C.

Application to discharge or vary order

An application by either party to the proceedings to discharge or vary a maintenance order shall be preceded by the issue and service upon the other party of a summons in the Form 54.11 Schedule C. The order of the Court granting the application shall be in the Form 54.12 Schedule C.

Interim order

An interim order made by the Court under section 7 of the Act shall be in the Form 54.13 Schedule C.

Payments to Clerk

Where the Court directs that payments under a maintenance order, a variation order or an interim order shall be made to the Clerk, such Clerk shall send a notice in the Form 54.18 Schedule C by prepaid ordinary post to the maintenance debtor indicating the place at which and the days and hours during which payments under the order should be made.

The Clerk shall give a receipt to the maintenance debtor for each payment made by him or her and shall transmit such payment to the maintenance creditor or, if authorised in writing by the maintenance creditor so to do, the Clerk may transmit the payment to the competent authority.

Recovery of arrears by Clerk

Where payments to the Clerk under a maintenance order, a variation order or an interim order are in arrears, and such Clerk receives a request in writing in the Form 54.21 Schedule C from the maintenance creditor to take such steps as he or she considers reasonable to recover such arrears, such Clerk may make application under section 10 of the Act for an attachment of earnings order or under section 8 of the Enforcement of Court Orders Act, 1940 (in accordance with the provisions of Order 56 or 57, as the case may be of these Rules)

Service of summonses

A summons required by this Order to be served 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 (21 days if by registered post) before the date of the sitting of the Court to which the summons is returnable.

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

Orders to secure payments

Where the Court has made an order providing for periodical payments by way of support or maintenance by a maintenance debtor to a maintenance creditor, an application may be made to the Court on a date subsequent to the date to secure the said payments to the maintenance creditor. Such application shall be preceded by the issue and service of a notice in the Form 54.22 Schedule C. The order of the Court granting such application shall be in the Form 54.23 Schedule C.

Categories
Maintenance

Maintenance Applications in Dublin District Court Without a Solicitor

 

family-law-maintenance

The Legal Aid Board has published a handy guide to maintenance applications in Dublin District Court.

It tells you what to expect if you are making the application yourself and you are not using a solicitor.

It also includes the Statement of Means form which you should fill out and have ready to hand into Court, or exchange with the other party, if necessary.

You can download the guide here.

Categories
Civil Partnership

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 in Plain English

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 came into law in Ireland on 1st January, 2011.

Civil Partnership

It gave new rights to

  1. Civil partners and
  2. Cohabitants and Qualifying Cohabitants.

Civil partnerships, involving two people of the same sex, were now permitted to be registered under the Civil Registration Act, 2004.

What are Civil Partners?

Section 3:

3.— For the purposes of this Act a civil partner is either of two persons of the same sex who are—
(a) parties to a civil partnership registration that has not been dissolved or the subject of a decree of nullity, or
(b) parties to a legal relationship of a class that is the subject of an order made under section 5 that has not been dissolved or the subject of a decree of nullity.

 

To register a civil partnership

You need to

  1. Give 3 months notice to the Registrar
  2. Sign a declaration at the Registrar’s office not less than 5 days before the date on which the Civil Partnership is to be registered stating that there is no impediment to the registration
  3. Complete the Civil Partnership registration form in the presence of the Registrar and two witnesses over the age of 18.

The Act also makes provision for the recognition of foreign registered Civil Partnerships or similar legal arrangements.(See Statutory Instrument 649/2010).

Rights of Civil Partners

  1. The shared home of the Civil Partners will be protected in a similar way to the protection enjoyed by married couples in respect of the family home
  2. Maintenance orders can be made by Courts in favour of one Civil Partner against the other
  3. Civil partners are given succession rights to the property of the other Civil Partner in a similar way to the rights enjoyed by married couples
  4. Civil Partners enjoy certain tax exemptions in respect of gifts/inheritances and transfers of property.

Dissolution of a Civil Partnership

A Court can dissolve a Civil Partnership provided

  1. The Civil Partners have lived apart for at least 2 of the previous 3 years and
  2. Proper provision has been made for the Civil Partners.

The Court has wide powers to make ancillary orders such as enjoyed by married couples in respect of property, finances, maintenance, pension adjustment orders, etc.

Cohabitants

The act also provides rights and obligations on cohabitants.

The definitions of a cohabitant and a qualified cohabitant under the act are important and can be found in section 172

A cohabitant:

172.— (1) For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

A qualified cohabitant:

(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—
(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and
(b) of 5 years or more, in any other case.

Only a qualified cohabitant can seek financial orders against the other cohabitant.

A Qualified Cohabitant can also apply to Court for a range of order and reliefs similar to a married couple on separation or divorce. These reliefs would include for maintenance, property adjustment orders, pension adjustment orders, etc.

The Act also provides for cohabitants entering into a cohabitants agreement to provide for financial matters during and after their cohabitation.

This agreement will only be valid if each party has had independent legal advice, the agreement is in writing and signed by both, and the law of contract is complied with.

These agreements can also provide that neither party can apply for orders in respect of maintenance, property, or pensions against the other. A Court may vary a cohabitants’ agreement in exceptional circumstances.

As can be seen, certain rights accrue to Qualified Cohabitants unless the parties exclude the operation of the Act by sighing a cohabitants’ agreement stating their agreement on financial matters.

Categories
Children and Family Relationships Act 2015

Children and Family Relationships Act 2015-Read the Full Act

Click on the link to access the Children and Family Relationships Act, 2015.

Part 2 deals with parentage in cases of donor assisted human reproduction

Part 3 deals with donor assisted human reproduction

Part 4 deals with amendments to Guardianship of Infants act, 1964

Part 5 amends the Succession Act, 1965

Part 6 amends the Family Law (Maintenance of Spouses and Children) Act, 1976

Part 7 amends the Status of Children Act, 1987

Part 8 amends the Family Law Act, 1995

Part 9 amends the Civil Registration Act, 2004

Part 10 amends the Passports Act, 2008

Part 11 amends the Adoption Act, 2010

Part 12 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

Part 13 amends some other miscellaneous acts.

Categories
Civil Partnership

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

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

Head 72: Amendment of Section 2, Interpretation

Head 73: Amendment of Part 4, Shared home

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

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

Head 74: Amendment of Part 5, Maintenance

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

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

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

Categories
Child Care Law Non Marital Family Separation

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.

Categories
Child Care Law

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.

Categories
Surrogacy

Children and Family Relationships Bill, 2015-Surrogacy Arrangements

Part 5 deals with surrogacy arrangements.

surrogacy-law-ireland

Head 17: Surrogacy arrangements

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

Head 18: Prohibition on payment for surrogacy

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

Head 19: Prohibition on surrogacy advertisements

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

Head 20: Minimum age for surrogate mother

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

Head 21: Minimum and maximum ages for parenting through surrogacy

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

Head 22: Legal advice relating to surrogacy

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

Head 23: Offences and penalties

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

Categories
Non Marital Family Parentage

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).