The main consideration in relation to such Applications is theWelfare of the child.
In determining questions regarding Custody, Guardianship or upbringing of an infant, the Court shall regard the “welfare of the infant as the first and paramount consideration”.
Guardianship relates to the duties of a person as to the welfare, care and upbringing of a child. Guardianship is not dependent on custody, i.e. a Guardian does not need to have custody of a child. The following is a summary of positions regarding those parties who can be appointed Guardians and the manner of such appointments.
The father and mother of an infant shall be Guardians of that infant jointly.
Non Marital Children
The following relates to children born of parents who are not married at the time of birth. In those circumstances only the natural mother is automatically deemed to be a Guardian. The natural father can become a Guardian by a number of means:
a. Subsequently marry the natural mother.
b. Apply to the Courts to be appointed a Guardian. It is important to note there is no automatic right to be appointed a Guardian, rather it is merely a right to apply to be appointed, refer to the decision of Keegan –v- Ireland which changed the Law in that respect.
c. Reach an agreement with the natural mother to be appointed a Guardian. This agreement must be given effect to by the making of a Statutory Declaration.
Following the death of the natural mother or other Guardian, the natural father may be appointed Guardian. If he is so appointed, he is referred to as a “Testamentary Guardian”. Up until 20 years ago, the issue of Guardianship rights of unmarried fathers was quite simple. There were no such rights. It was not until the Status of Children’s Act 1987 that natural fathers could apply to Courts to be appointed a Guardian. It was made very clear by the Supreme Court in the decision of JK –v- VW that this was merely a right to apply and was not a right to be automatically be appointed Guardian. Natural mothers have an automatic right to Guardianship, natural fathers do not.
Custody is concerned with the day to day care and control of a child. Guardians have an automatic right of custody to a child as against all non Guardians.
Having failed to obtain Guardianship and Custody a person may apply for access to a child. Access essentially permits a parent to meet and/or communicate with a child. In general the attitude of the Irish Courts to Guardianship, Custody and Access is that these rights are viewed as rights of a child. This is in keeping with sentiments expressed in the European Convention on Human Rights which is now part of our legal system pursuant to the European Convention on Human Rights Act 2003. It has also been held that access is a right of the child and it should only have been allowed if it’s not in the best interests of the child.
Why engage MC Solicitors?
Marion Campbell has 30 years' experience in family law, a proven track record with precedent setting landmark cases. She is ex-Chair of the Family Lawyers Association of Ireland and is a member of the International Academy of Matrimonial Lawyers. She has lectured in the Law Society on Family Law and has published several articles. She provides a personal and caring service on an individual basis to every client.
Ex chair Family Lawyers Association of Ireland.
Member Family Lawyers Association.
Member International Academy of Matrimonial Lawyers.
Member Dublin Solicitors Bar Association.
Member American Bar Association Section.
Member ART Section Family Law Committee American Bar Association.
Lecturer - Law Society of Ireland.