Legal brief

Wednesday, 6th June 2012

Legal Guardianship of Children

Guardianship of a child is the right to have a say in important decisions which affect a child's life. Such decisions may concern the child's education, religious upbringing, choosing the best course of treatment in the event of the child being ill and in making decisions affecting the child's general welfare.

Under the Guardianship of Infants Acts 1964 to 1997 all mothers and married fathers have automatic guardianship. Unmarried fathers do not have automatic guardianship even though their name may be on the child's birth certificate. Therefore the unmarried father remains in an inferior position to both the child's mother and other married fathers. There are two ways to make a guardianship application. Where the mother agrees that the unmarried father may be appointed guardian this can be achieved by both parents signing a statutory declaration. Where there is more than one child a separate statutory declaration should be signed for each. If the mother does not agree to sign the statutory declaration the father can apply to the District Court to be appointed a joint guardian.

In making its decision the court will as far as practicable take into account the child's wishes. However Section 3 of the Act provides that in making its decision as regards guardianship, custody or the upbringing of the child the court shall regard the welfare of the child as the first and paramount consideration. In contentious cases most fathers will be granted guardianship indeed nearly seventy percent of fathers who now apply for guardianship are so granted.

In a recent High Court case known as J.McB v L.E. 2010 the issue of guardianship arose. In this an Irish father and an English mother were unmarried and had three children. Having lived in various places they moved to Ireland in 2007. Relations between the parties deteriorated and in January 2009 the father moved out of the family home following an interim barring order being served. In April they reconciled but the following July the mother moved to England bringing the three children with her. The father took proceedings under the Hague Convention seeking a declaration that the children had been wrongfully removed and he sought joint guardianship and custody. In giving his decision Justice MacMemamin said that the removal by the mother of the children was “reprehensible” but that also there could be an objective and reasonable justification for the difference in treatment between married and unmarried fathers. He went on to say that the father as unmarried had no constitutionally recognised rights of guardianship, custody and access but only the right to apply to the court. In this instance prior to the issuing of these proceedings the father had not made an application for guardianship of his children and the Court found that he having not exercised this right, the habitual residence of the children was now England and the father would now have to institute any proceedings there.

This article does not constitute legal advice