In certain scenarios, where the law in Ireland fails to explicitly outline the rights of the parent, the judicial adjudication in relation to guardianship, custody and access is fundamental to ensuring that the well-being of the child remains secure. Although there is some sense of legal certainty in respect of married parents and their children, this is not consistent with the situation that non-marital parents sometimes face due to the outdated legislation of the Guardianship of Infants Act 1964(1964 Act) as amended. This uncertainty has been a catalyst for the drafting of the Children and Family Relationship Bill 2013 (2013 Bill). The 2013 Bill aims to establish a legal framework which can support the many divergent family dynamics which are present in twenty first century Ireland. It is hoped that such a framework will provide legal pellucidity in regards to the rights and duties of parents within a non-traditional family model.
This submission will outline the law in Ireland today, while simultaneous highlighting the flaws and issues that are present within our legal framework in relation to parental uncertainty in cases of guardianship, custody and access. The 2013 Bill and its implications will also be addressed, accompanied by a critique of the relevant sections.
Although the 1964 Act provides guidance and clarity in some circumstances, it fails to provide a definition of the precise nature or range of responsibilities that arise from being a guardian. However, the courts have accepted guardianship to mean the rights and duties of parents in relation to the raising of their child. More notably, this piece of legislation is also quite restrictive on who can achieve automatic guardianship of a child. Under s.6 a married mother and father of a child enjoy an automatic guardianship right, which illustrates the influence of the traditional marriage based family. This influence was also recognised by O Dalaigh CJ in the B v B case, where he stated that s.6 merely reaffirms the meaning of Article 42 of the Constitution. However, where a mother is granted automatic guardianship, regardless of her marital status, a father does not enjoy the same privilege. It could be argued that an unmarried father has similar rights to that of a non-parent as under s9 of the 1964 Act a relative of the child in question or an individual who has functioned as a loco parentis to that child can also apply for access, just as an unmarried father can. S.10 of the 1964 Act also outlines that an unmarried mother holds the position as custodian of her child. However, the father’s right to custody, like his right to access and guardianship is not automatic and can only be attained if an application is made to the courts. This was praised in State (Nicolaou) v An Bord Uchtala by Henchy J, as he regarded the mother’s right to automatic guardianship as in accordance with Article 40.3 of the Constitution.
Given the difficulties and tensions that may surround cases involving separated or unmarried parents, S11 of the 1964 Act provides that a guardian may apply to the court for its direction on any question in relation to the custody or access of a child. In making such decisions the court must, in accordance with s3, always hold the welfare of the child as the first and paramount consideration. S2 of this Act provides a broad definition of the word “welfare”, which encompasses the religious, moral, intellectual, physical and social welfare of the child. This broad interpretation has expanded throughout the years, as can be seen in the Irish case law, such as the Supreme Court case of MacD v. MacD , where Henchy J quoted with approval, the dicta of of MacDermott L.J. in the English case of J v C. Section 3 of the 1964 was then claimed to have been granted constitutional protection by Finaly Geoghengan J in the case of F.N v. E.B. the C.O., H.O., and E.K. While this provision has been interpreted widely it has been argued that it falls short of the UN definition of the best interest’s principle.
As a result of such short fallings, this Bill proposes to make many changes. Although most of the Heads within Part 7 of the Bill reproduce pre-existing provisions, it also includes notable changes, primarily in relation to unmarried parents which are evidently necessary. Part 7 of the 2013 Bill has proposed many changes which will undoubtedly be beneficial to many families who are presently living within a legal vacuum.
Due to theses beneficial changes many organisations and groups have praised the 2013 Bill as a genuine advancement towards satisfying an important commitment in the Programme for Government 2011-2016. This attempt at improving our legal system was in response to many reports from the Law Reform Commission, such as the Report of the Commission on Assisted Human Reproduction 2005 and the Legal Aspects of Family Relationships 2010. The Commission acknowledged the intricacy of many family situations in modern day Ireland, and more importantly it recognised the problems that these families are faced with when dealing with the issues of guardianship, custody and access. The 2013 Bill aims to do this while also mirroring the implications of the 31st constitutional amendment to uphold the best interest of the child.
It is submitted that one of the most crucial rights that a child is entitled to is the right to have their best interests held as a fundamental element in the reasoning of any legal decision making process which will affect them. Although this is not the only factor which is accounted for, its influence cannot be underrated. It can also be stated that the idea of holding a child’s interest in a high regard is not radical, yet the 2013 Bill does offer a new definition of “best interests”, which is essential for legal clarity. Head 32(3), of the 2013 Bill states that in order to decipher what are the best interests of a child the physical, emotional, psychological, educational and social needs of the child, as well as the child’s requirement for stability with regards to their age and capacity should be accounted for.
These provisions are in harmony with Article 3 of the United Nation’s Conventions of the Rights of Children, (UNCRC), which declares that “in all actions concerning children … the best interests of the child shall be a primary consideration.” The General Comment No. 14 (2013) on the Right of the Child reiterated this point and defined this principle as a three pronged structure. It held that the best interest principle consisted of a substantive right, a fundamental, interpretative principle and a rule of procedure. This resulted in member states having a number of obligations in regards to upholding this right for children.
Ireland attempted to implicate the “best interests” principle within its domestic law through the 31st Constitutional Amendment, which resulted in the insertion of Article 42A. However, it is argued that the principle is not completely enshrined within Irish policy. The UN Committee’s requirement that a child’s best interest must be always taken in to consideration is not always complied with in Ireland. Evidently this has profound effects on the welfare of a child. However, this principle is indeed included throughout the 2013 Bill. This is seen as a positive step taken by the Irish legislator; however criticism has been made that it could have been implemented in other Heads of this Bill. Although the 2013 Bill has received some criticism, it has mainly been praised for the clarity it brings to the law in this area. Head 32(3) decreases the ambiguity that previously surrounded the issue of how the best interests of a child are to be determined. Perhaps the most powerful provision within this Bill, is Head 32(1) which stipulates that the best interests of the child must be the prime consideration in cases relating to guardianship, custody and access. This raises the question as to why this right is not the prime consideration of all issues relating to children.
Although the majority of these changes seem to be positive, it is claimed by some organisations that the Oireachtas must be more considerate of the duty to respect family life under Article 7 Charter of Fundamental Rights and Article 8 European Convention on Human Rights. These provisions are primarily functional in their nature and therefore any other provisions which hinder the functionality of the family may be declared as incompatible with these laws. This illustrates that the proposed Bill still contains some flaws.
Collier also perceives this Bill as imperfect and states that the model adopted by the Irish legislator held the father as predominately an economic provider, and subordinately a carer. He claims that this seemingly gender-neutral welfare and best interest principle is theoretically “anti-feminist”. It is submitted that a rights-based model, which moves away from the traditional family structure could encourage the recognition of the caring role of fathers. Perhaps one of the most interesting perspectives on the welfare and best interest principle of the 1964 Act and 2013 Bill, originates from the submissions of Bainham and Fortin. They claim that a “child-centred” principle is dysfunctional. Bainham’s theory is based on the ideal that children and parents simultaneously accept obligations to consider the interests of others. In an attempt to facilitate this model, he identifies parents’ or childrens’ interests as primary or secondary. An ultimate category of “collective family interest” is also provided for in this theory which submits that every interest should be balanced against another. This seems to be consistent with the Strasbourg “balancing” stance that was seen in the approach taken in Johansen v Norway . Eekelaar dismisses the welfare principle of the 1964 Act entirely on the basis that it does not give adequate recognition to the rights of children or of others. Instead, he offers a substitute ideal that concentrates on individual’s well-being. Under this model the interests of the children would be deemed privileged, but not paramount as they are now in guardianship, custody and access cases and all circumstances of a case would be considered, suggesting that this is a proportionality based ideal and not solely an ideal that follows ss6 and 3 of the Human Rights Act 1998. This dismissal of the convention based approach to the interest of a child was also advocated by Eekelaar. It is claimed that the objectives sought by Bainham and Eekelaar can be materialised by utilising the “parallel analysis” approach which is advocated by Choudhry. This approach is founded upon the reasoning used in the European Court of Human Rights, which considers all parties rights and interests, while concurrently providing for a special consideration of the interests of the child. This approach initially doesn’t seem that far-removed from what the 2013 Bill is advocating, yet these academic figures are paving the way towards a more transparent reasoning framework, which would ensure that the best interests of a child remained paramount and the perspective of others would be recognised. This call for change is hinged on the concept of individuality, which is in opposition to the concealed grounds which form the paramouncy principle.
Impact on Society
This Bill seems to advocate for an improved society as it aims to establish a greater equality between mothers and fathers. Smart has emphasised the prejudice that is enshrined in the 1964 Act. He claims that the dangers of this inequality are not rights-based; instead they are solely founded on the distinctiveness of motherhood and the “natural” connection a mother has with her child. Since the birth of their children, women are treated as if child-rearing is their imperative. As said by Vice-President of the European Commission Viviane Reding at the Citizens’ Dialogue in Dublin, “In Ireland, women become mothers but men do not become fathers”. As a result fathers are not granted the same privileges as women are, while mothers are not accounted for without speaking the “language of welfare”.
By making improvements in the law relating to unmarried parents this Bill will be beneficial to the child, parents and subsequently society. The improvements in relation to cohabiting parents and the rights of unmarried fathers will have an extensive impact on society as it will affect so many people. In 2013, according to the Central Statistics Office, out of the 17,729 births, there were 6,243 births registered as outside marriage. This accounted for 35.2% of all births. There were also 3,545 births to unmarried parents with the same address, 20% of all births.
Possible Improvements to the 2013 Bill
This rejection of the best interest principle, as it is proposed, is not the only change that is encouraged. There have been a number of recommendations made by organisation, charities and legal advisory bodies. Some of these recommendations are based solely on the opinions of the authors, while others are based on inconsistency with other legal statements. For example, it has been claimed that the proposed age limit of 12 years within the 2013 Bill, is inconsistent with the first National Goal of the National Children’s Strategy which explicitly outlines that a child’s voice shall be heard when dealing with cases that have an effect on them. It is also claimed that this is incompatible with Article 12 of the UN Convention on the Rights of the Child, which was ratified by Ireland in 1992.
Another alteration that is requested is in relation to Head 37 of the 2013 Bill. This Head provides for the Cohabitation Condition, which seems beneficial. However, the problematic elements of this Head outweigh its benefits in some circumstances. Although it is true that this provision will ensure that more unmarried fathers can receive the right to guardianship through cohabiting with the child’s mother for a period of at least 12 months, it is defective in practise. This provision does aims to help fathers in this situation; however it fails to provide a functioning procedure in which a father can verify that he has cohabitated with the child’s mother for the required time. In a situation where the relationship discontinues the parents may no longer be cordial with one another. This can result in conflict and disagreement as to how long they did in fact cohabitate. The absence of such a procedure may result in a substantial number of cases coming before the courts in order to determine if the father cohabited with the mother for the required amount of time. It is submitted that such uncertainty would not be in the best interest of the child.
Traditionally, parents were the only ones usually granted with the right of guardianship over a child. However, Head 39 broadens the group of individuals who have to the authority to apply to the court to be given the right of guardianship of a child. This means that, under the 2013 Bill, a child may have a number of guardians. While this does not seem to be detrimental to a child’s best interest in every situation, it is submitted that perhaps the number of possible guardians of a child, should have a maximum number. By allowing an excessive number of guardians, a child’s best interest may be injured as it is possible that many of the child’s guardians will have conflicting opinions and views. It seems blatant that it is more attainable for two conflicting guardians to come to an agreement, than for example, six conflicting guardians. Treoir even claims that there are frequently huge difficulties in attempting to convince just two guardians to agree. This potential chaos and conflict that unlimited guardianship may bring to a child’s life is most certainly not in the best interests of the child.
It is submitted that this Bill does not completely enshrine the “best interest” principle in Irish law; however it does ensure that our approach to guardianship, custody and access cases are much more protective of the child than that of some states. An example of state which mirrors Ireland’s slow legal developments in this area is Bangladesh. Within the jurisdiction of Bangladesh traditional Islamic Law is applied, therefore the mother is not acknowledged as a guardian. Under subsection (1) of section 17 of Guardian and Wards Act 1890 the welfare of a child is considered, yet the case of Md. Abu Bakar Siddique v. S.M.A Bakar it held to only be a determining factor and is not held to be paramount in cases of guardianship, custody and access. Appellate Division held, “In case involving the question of guardianship their decision are seen to be influenced by the concept of welfare of the minor child concerned.” However, through the influence of other jurisdictions and demand for improvement , the Bangladesh legal stance now echoes that of Ireland. This can be seen in the case of Abdul Jalil v. Sharon Laily Begum. The plaintiff in this case filed an appeal to the Appellate Division proclaiming the mother had a Constitutional right to automatic custody of her children where it was in the interest and welfare of the children. This was based on section 17 of the Guardian and Wards Act 1890 , which stated that in cases concerning custody the rights of the parties are superseded by the rights of the child. In this decision the Court acknowledged the ideals advocated by the General Assembly of the United Nations. These principles granted the child a particular protection by law in order to ensure that the best interests of the child shall be the paramount consideration in cases of this nature.
It is obvious that the “best interests of a child” is a complex and intricate concept that consist of many aspects, which are constantly evolving. Although, today’s legal framework provides a general structure for addressing and identifying a child’s best interests , it is submitted that the new Bill will provide a more stable and fitting “contemporary legal architecture” on guardianship, custody, access and the upbringing of children in diverse family forms. Although the proposed laws may not be welcomed by all, they are arguably a necessity to ensure that the Irish legislation is providing a legal framework that is in step with the reality of the diverse and evolving family structures that we see today.
Adoption Act 2010
Guardian of Infants Act 1964
Health Act 2004
Protection of Children (Hague Convention) Act 2000
Children Act 1997
Human Rights Act 1998.
Family Law (Divorce) Act 1996
Family Law Act 1995
Child Care Act 1991
Judicial Separation and Family Law Reform Act 1989
Status of Children Act 1987
Courts (No. 2) Act 1986
Age of Majority Act 1985
Courts Act 1981
Health Act 1970
Succession Act 1965