The Children and Family Relationships Bill 2015 was passed in the Seanad on Monday, 30th March, after no less than 122 amendments. This legislation is well overdue. Previous legislation in this area -the Guardianship of Infants Act is over fifty years old and reflects the family structure at the time in 1964. This article will review just some of the amendments the Bill proposes to introduce to our family law system, in particular, highlighting the changes to the laws governing guardianship, custody, access and adoption.
The principal changes are in relation to Guardianship, Access, Custody and Adoption.
The current laws provide that, where the parents of a child are not married, the natural mother only is an automatic guardian of that child. Further legal steps, must be taken by an unmarried father such as a court order to have him appointed as a joint guardian of the child. The Bill proposes to afford enhanced rights in respect of guardianship to fathers, spouses, cohabitants and civil partners. Under the Bill an unmarried fathers who have co-habited with the mother of the child for a period of 12 months, including three months after the child’s birth, will now automatically be Guardians. Difficulties may arise, where a relationship breaks down in terms of what evidence would be required by the Court. Unmarried fathers who do not satisfy the co-habitation criteria can still apply to the Court for Guardianship. In Ireland having a child’s father named on the birth certificate does not give rise to any legal rights whatsoever. In contract in the UK where a father named on a birth certificate has joint parental rights.
In terms of access under the Bill, the wider family can now apply for access without having to seek the permission of the Court to bring the application. The Bill proposes to afford improved rights of custody and access to a wider range of family members. In particular, grandparents and other relatives are expected to be afforded easier access to the courts to have access to children in the context of relationship breakdown, and to apply for custody if there is no parent willing or able to take responsibility for caring for the child.
Relatives will now also be able to apply for custody including step-parents, civil partners and co-habiting parents. Furthermore, any person who has acted in a parental role in respect of a child for a year can now also apply for custody it that child has no other parent or guardian who is willing to assume this responsibility. This is significant in terms of grandparents and the role that they play in a child’s life.
In respect of Adoption, previously only married couples and single people could adopt. While gay/lesbian people were not excluded they could only adopt as a single person and not as a couple. Under this Bill, civil partners and cohabiting couples who have lived together for three years or more will be afforded the right to jointly adopt as a couple. The Bill provides that such couples are to be subject to the same eligibility criteria and assessments as those applicable to married couples.