Parental Equality - Current
legislative attempts to equalise
parental rights under Irish law
Dr Louise Crowley
Faculty of Law
Parental Equality – historical position
• Status of Children Act 1987 - s 3(1)
"...the relationship between every person and his father
and mother (or either of them) shall…be determined
irrespective of whether his father and mother are or
have been married to each other, and all other
relationships shall be determined accordingly.
• Removed the secondary status of non marital children
2
Rights of unmarried parents
• Natural father v natural mother
• Distinct legal treatment
• Differing automatic legal status by operation of law
3
Unmarried mother – sole guardian
• s.6(4) Guardianship of Infants Act 1964
• “The mother of an illegitimate infant shall be guardian of
the infant.”
• s.5 Children Act 1997 now provides that:
• “Where the mother of a child has not married the child’s
father, she, while living, shall alone be the guardian of
the child, unless the circumstances set out in section
2(4) apply, or there is in force under section 6A (inserted
by the Act of 1987) or a guardian has otherwise been
appointed in accordance with this Act.”
4
Unmarried mother – sole custodian
• S.10(2) Guardianship of Infants Act 1964
• As the sole automatic guardian of the child the mother
shall be entitled to the custody of the infant and shall be
entitled to take proceedings for the restoration of his
custody of the infant against any person who wrongfully
takes away or detains the infant and for the recovery, for
the benefit of the infant, of damages for any injury to or
trespass against the person of the infant;
5
Unmarried father
• Pre 1987
• No right to guardianship
• No right to seek or to agree guardianship
• 1964 Act mandated that a father is married to the
mother of the child
• Status of Children Act 1987
• Right to apply to the court for guardianship
• Children Act 1997
• Right to agree guardianship status with mother
6
Limited rights of unmarried father –
leading case law
• JK v VW [1990] 2 IR 437
• s.6A of the 1964 Act gives a natural father the right to apply to
be appointed a guardian but does not give him the right to be a
guardian; nor does it equate his position in law with the
position of a father married to the mother of his child.
“The discretion vested in the Court on the making of such an
application must be exercised regarding the welfare of the
infant as the first and paramount consideration. The blood link
between the infant and the father and the possibility for the
infant to have the benefit of the guardianship by and the
society of its father is one of the many factors which may be
viewed by the court as relevant to its welfare.” (Finlay CJ)
7
Determining application by father
• WO’R v EH and An Bord Uchtála [1996] 2 IR 248
• “Section 6A gives a right to the natural father to apply to be appointed
guardian. It does not give him a right to be a guardian, and it does not
equate his position vis-à-vis the infant as a matter of law with the position
of a father who is married to the mother of the infant.” (Hamilton CJ)
• Highlighted varying nature of the rights and duties of unmarried fathers
given the multitude of circumstances that could come before the courts.
• Although the basic issue for the trial judge is the welfare of the children,
consideration must be given to all relevant factors.
• The blood link between the natural father and the children will be one of
the many factors for the judge to consider, and the weight it will be given
will depend on the circumstances as a whole.
• Absent other factors beneficial to the children and in the presence of
factors negative to the children’s welfare, the blood link is of small weight
and can not be the determining factor.
• But where the children are born as a result of a stable and established
relationship and nurtured at the commencement of life by father and
mother in a de facto family as opposed to a constitutional family, the
natural father on application to the court under s.6(A) of the 1964 Act has
extensive rights of interest and concern.
8
Recent consideration of fathers’ rights
• JMcD v PL, BM and AG [2010] 2 IR 199
• Child born as a result of an arrangement between lesbian couple and
the applicant sperm donor
• Supreme Court unanimously recognised his statutory right to apply
for guardianship but each judge rejected his application, declaring
this determination to be in the best interests of the child
• Geoghegan J noted the limited rights of the natural unmarried father,
and the extent to which the task of securing the welfare of the child
will prevent the right to apply for guardianship from being elevated
to a constitutional or natural right to guardianship itself
• “...the degree (if any) to which rights might be conferred on the father
...will depend on the circumstances of the particular case and must
always, of course, be subject also to the principle that the welfare of
the child should be the first and paramount consideration.”
• By refusing to extend the rights of the father beyond access
arrangements, the child would be much better placed to establish the
solid relationship with the respondents
9
Concept of De Facto Family
• JMcD v PL, BM and AG [2010] 2 IR 199
• “I can find nothing in Irish law to suggest this family
composed of two women and a child has any lesser right
to be recognised as a de facto family than a family
composed of a man and a woman unmarried to each
other and a child. Indeed, it seems to me that the State
has a strong interest in the recognition, maintenance and
protection of all de facto families that exist since they are
inherently supportive units, albeit unrecognised by the
Constitution.” (Hedigan J HC)
10
De Facto Family
• Rejected by the Supreme Court
• Denham J was “satisfied that the learned High Court
judge erred in his analysis of the family under Irish law”
expressly rejecting the suggestion that the institution of
a de facto family exists under Irish law.
• Regarded the term as “...a shorthand method of referring
to the circumstances of a settled relationship in which a
child lives”
• Geoghegan J regarded a de facto family as a “rather
useful expression”....but it remains “merely a factual
situation and not a legal concept”
11
Civil Partnership and Certain Rights and
Obligations of Cohabitants Act 2010
• Children ignored by 2010 Act “main gap” in the
legislation – Fergus Ryan
• Ryan notes the failure to provide a “mechanism to secure
legal rights and impose obligations in respect of the child
of the civil partner who is not a biological parent of the
child.”
• Act has studiously avoided the legal relationship
between children and the civil partner unit by whom
they are being raised
12
Defence offered by Dermot Ahern
• “In formulating the civil registration scheme for samesex partners the Government was mindful of the
implications for children. On the advice of the Attorney
General, it concluded that it was not appropriate that the
Civil Partnership and Certain Rights and Obligations of
Cohabitants Bill should develop principles on children
that would have much wider implications than those on
same-sex partners. Apart from constitutional difficulties,
issues which arise with regard to children and their
welfare are so significant that it would not be
appropriate to address them on a piecemeal basis
without a thorough review of all of the implications such
changes might have for children and also for those who
might be affected by such changes.”
13
2010 Act - further observations
• Children not relevant to division of shared home
• No obligation to maintain the child by the non-biological
parent acting in loco parentis
• No succession rights vis-a-vis estate of non-biological
parent
• No capacity for civil partners to adopt
• 1964 Act, as amended still applies
14
Child and Family Relationships Bill 2014
• General Scheme published February 2014
• Automatic rights arising in the non-marital context
• First positive statement of automatic guardianship rights
for civil partners
• First provision for a right to apply for guardianship
status by civil partners
• Welcome statutory reflection of social changes
• Recognition of alternative family formations
• Do the proposals achieve formal equality??
15
Part 2 - Parentage
• Head 6(3) – identifies who is considered a parent
• Unmarried father has no automatic right to parentage
• Status as male parent is determined by relationship with
the mother of the child
• Presumes committed heterosexual relationship
• 12 months cohabitation pre birth
• Joint agreement with the mother
• Court order confirming parentage
• Query need for both parentage and guardianship status?
16
Part 3 – Assisted reproduction –
transfer of parentage
• Commission on Assisted Reproduction (2005)
recommended that the presumption of parentage should
apply to the commissioning parents
• Head 12 – transfer of parentage depends entirely upon the
consent of the surrogate mother
• Highlights the vulnerability of commissioning parents
• Commissioning parents, incl biological father must secure
a court order to attain parentage
• Not earlier than 30 days post birth
• One applicant must have a genetic link
17
Practical shortcomings
• In practical terms, when the baby is discharged from
hospital the intending parents will not have their
declaration of parentage, thus the hospital staff may not
discharge the baby into the care of these parents.
• If the baby is in the care of the intending parents and the
child becomes unwell, the commissioning parents will
have no right to consent to medical treatment for the
child. Only the birth mother can give consent and this is
problematic both if the surrogate is uncontactable and
also forces the surrogate to have extended contact with
the commissioning parents and the child which she may
not want.
18
New Hampshire model
• Requires surrogacy arrangement to be judicially preauthorised.
• Evaluations and counseling conducted prior to impregnation
of the surrogate.
• Allows for a judicial investigation to ensure no party is being
coerced or exploited
• Ensures the arrangement is appropriate in terms of the welfare
of the resulting child.
• Surrogacy agreement is validated by the court following
meeting with the parties, and consideration of all the factors as
noted above
• Need to secure consent of surrogate mother post birth of the
child does not arise.
• Parental rights of commissioning parents are established prebirth
19
Exclusion of traditional surrogacy
• Refers to an arrangement where the surrogate
mother uses her own egg
• Prevents exercise of freedom of choice by
surrogate mother
• “Compelling public policy reasons” cited
• Cannot permit a woman to contract out of her
parental responsibilities
• Consider proposed Article 42A and right to
voluntarily place child for adoption?
• Other legal frameworks and protections could
be utilised
20
Part 7 - Guardianship, Custody and
Access
• Equalisation of parental rights?
• Traditional terminology is maintained
• Guardianship
• Custody
• Access
• Recommendations of 2010 LRC report ignored
• Note use of ‘guardianship’ in Children's Referendum
21
Automatic guardianship status of
Father
• Father married to the mother of the child
• Male adopter of the child
• Father who is a party to an annulled marriage
• Father who is not married to the mother of the child but
has cohabited with her for 12 consecutive months prior
to the birth of the child, such cohabitation not ending
more than 10 moths prior to the birth of the child
22
Best practice in other jurisdictions
• 2010 LRC Report noted that the Australian legal
framework provides for automatic parental
responsibility for all parents, and has no gender based
distinction.
• In England and Wales Section 4 of the Children Act 1989,
as amended by section 111 of the Adoption and Children
Act 2002 provides that where a non-marital father
jointly registers the birth of the child with the mother, he
will obtain parental responsibility.
23
Best practice in other jurisdictions
• In New Zealand s17 of the Care of Children Act provides
for automatic guardianship rights for the majority of
parents.
• But a father who is not a guardian by operation of law
becomes a guardian of his child if his particulars are
registered as part of the child‘s birth information by the
mother and the father.
• S9 requires both parents to jointly notify a Registrar of
the birth.
• A sole registration is only permissible where:
(a) the child has only one parent at law; or
(b) the other parent is unavailable; or
(c) requiring the other parent to sign the form would
cause unwarranted distress to either of the parents.
24
Acquired guardianship status of
father
• Not married to the mother of the child but the mother
and father have agreed that the father has guardianship
status
• Court appointed guardian...
25
Court appointed guardians
• Head 39 – permits the court to grant an application for
guardianship to a person who is not a parent of the child
where the applicant is:
• Married to or is in a civil partnership with, or is cohabiting for
over 3 years in an intimate and committed relationship with
the parent of the child
• and has shared with that parent, responsibility for the child’s
day-to-day care for a period of more than 12 months
OR
• Is an adult who has provided day-to-day care for the child for a
continuous period of more than 12 months and
• the child has no parent or guardian willing or able to exercise
guardianship powers, rights and responsibilities in respect of
that child
26
Court appointed guardians/custodians
• Such a court appointed guardianship order can not be
made without the consent of:
• Each guardian of the child
• The child, if aged 12 years or older
• The proposed guardian
• However the consent of an existing guardian or of the
child as required can be dispensed with where the court
is satisfied that such consent is unreasonably withheld
and it is in the best interests of the child to make the
order sought.
• The same category of person can apply for custody
pursuant to Head 47 and are subject to the same
qualified consent requirements.
27
Powers of guardians
• Head 34 – first statutory statement of scope of
guardianship rights and duties; guardianship means
having in relation to the child: (a) all the duties, powers, rights and responsibilities that a
parent of the child has in relation to the upbringing of
the child;
(b) every duty, power, right and responsibility that is
vested in the guardian of a child by any enactment; and
(c) every duty, power, right and responsibility, that
immediately before the commencement of this Act was
vested in the guardian of a child by any enactment or
rule of law.
Guardianship also includes the rights, powers and
responsibilities which a guardian of the child’s estate has
in relation to the child and his property.
28
Responsibilities to the child
Head 36(5) - Except where otherwise limited by court
order or by law, each guardian has the following
responsibilities in respect of the child:
(a) to nurture the child’s physical, psychological,
emotional, intellectual, social and other personal
development; and
(b) to ensure the child is properly maintained and
supported and is provided with necessary medical
care, food, clothing, accommodation and access to
appropriate education.
29
Rights of a guardian vis-a-vis child
Head 36(6) - Except where otherwise limited by law or court order,
each guardian may:
(a) make day-to-day decisions affecting the child, including having
custody and the day-to-day care and control of the child and
supervising the child’s daily activities;
(b) decide the child’s place of residence and to change the child’s
place of residence;
(c) make decisions about the child’s education, including the nature,
extent and place of education and any participation in extra
curricular school activities;
(d) make decisions regarding the child’s religious, spiritual, cultural
and linguistic upbringing and heritage;
(e) decide with whom the child is to live and with whom the child is
to associate;
(f) consent to medical, dental and other health related treatment for
the child;
(g) grant or refuse consent where consent of a parent or guardian is
required by law in any application, approval, action, proceeding or
other matter;....
30
Rights of a guardian vis-a-vis child
• (h) receive and respond to any notice that a parent or guardian
is entitled or required by law to receive;
• (i) subject to the relevant and applicable statutory and
regulatory provisions, commence, defend, compromise or
settle any legal proceedings relating to the child and
compromise or settle any proceedings taken against the child;
• (j) receive from third parties health, education or other
information that may significantly affect the child;
• (k) ensure the child’s safety and protect the child from harm
• (l) appoint a person to act an behalf of the guardian in an
emergency
• or where the guardian is temporarily absence because of
illness or any other reason;
• (m)exercise any other powers reasonably necessary to carry
out the responsibilities of guardianship.
31
Making joint decisions
• Clarification required!
• Head 36(1) requires the guardians to act jointly in
relation to “significant decisions” affecting the child
• Head 36(4) – also right of both guardians to be
“informed..and consulted” in respect of all “significant
decisions”
• Unclear on whom the onus to inform and consult lies?
• But Head 36 fails to specify what the significant
decisions are in relation to the child.
• Briefing notes refer to a decision that could seriously
damage or cause a serious risk to the health and safety of
a child or is likely to have serious long term consequences
for the child
32
Scope of unilateral powers of a
guardian?
• Head 36(6) provides that each guardian “may” make
certain decisions
• Unclear whether these decisions can be made
unilaterally
• Clarity needed in relation to the right to make a decision
relating to medical, dental and other health related
treatment under Head 36(6)(f).
• Direction needed as to who it refers to how this should
be implemented and to what specific situations it applies
to.
• Requirement that guardians consult each other is
unclear – certainly seems to envisage possibility of
unilateral decisions.
33
Parental Equality?
• Welcome but limited proposals for reform
• Fact of automatic guardianship for unmarried
father
• Weakened by reliance upon adult relationship
• Capacity for application based on parental role
• Not equality!
• On going adjudicatory role for the courts
• Need for scope for inter parte consent
agreement
• Silent on number of guardians
34