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Discharge from wardship of court and assisted decision-making

by | Jan 14, 2025 | Enduring Powers of Attorney, Public Law and Judicial Review, Trusts and Estate Planning

Discharge from wardship of court and assisted decision-making

On 26th April 2023 the Assisted Decision Making (Capacity) Act 2015, as amended  (“the ADMA”) commenced, with provision being made for a ruling on all non-minor Wards of Court within 3 years of commencement. As such, all Wards over the age of 18 will be discharged from wardship and alternative arrangements will be made for them where necessary with the Decision Support Service supervising such arrangements.

It is intended that all Wards will be discharged by April 2026. Given the application process takes some time to complete, including a medical assessment by a medical examiner appointed through the Wards of Court Office, we recommend that those impacted by the changes take action as soon as possible. The cost of the application is legally aided and can be arranged through the Legal Aid Board.

“With all adult Wards expected to be discharged by April 2026, it’s crucial for those affected to initiate the application process promptly, ensuring compliance with the new legal framework.”

What is a Ward of the Court?

Under the antiquated legislation of the Lunacy Regulation (Ireland) Act 1871  where a person lacked capacity to make decisions, they were made a Ward of Court following an application to the High Court. Unfortunately, the 1871 Act did not consider the actual needs of the person to be so appointed. This legislation has long been regarded as a “blunt instrument”  and a blanket response to often complex and individualised circumstances.

“The Assisted Decision Making (Capacity) Act 2015 represents a significant shift from the antiquated Lunacy Regulation (Ireland) Act 1871, focusing now on individualized decision-making support rather than blanket measures.”

A Ward was not legally permitted to make decisions about their personal and financial affairs and every day life events. The result was that the High Court and a Committee became responsible for these decisions on behalf of the Ward.

Once made a Ward, a Committee was appointed by the High Court to work in conjunction with the Wards of Court Office and to manage the affairs of the Ward. A Committee could be made up of person or persons who were usually a relative of the Ward, but in circumstances where no relative was able to or willing to act, the General Solicitor for Minors and Wards of Court could be appointed to act as the Committee. The Committee would become responsible for the management of the Ward’s financial and personal affairs, with money to which the Ward was entitled and held in bank accounts in the name of the Ward being lodged in the Court.

Following commencement of the ADMA in April 2023, it is no longer possible for a person over the age of 18 to enter wardship. The updated legislation now focuses on decision-making support arrangements for the individual.

Discharging A Ward

In recognition of the need for alternatives, and on foot of the United Nations Convention on the Rights of Persons with Disabilities  ratified in 2018, under the ADMA wardship has been discontinued and all Wardships over the age of 18 will be reviewed in order to put in place an appropriate decision-making alternative for the individual.

The Ward, their committee or a relative, friend or another appropriately placed individual may seek a review of the capacity of the Ward before the relevant wardship court, i.e. the court that took them into wardship, usually the High Court.

Under Section 55 (1) of the ADMA the court will make a declaration following review of the Ward’s individual circumstances and declare that the Ward:

  1. does not lack capacity, resulting in the immediate discharge from wardship and return of the person’s assets; or
  2. lacks capacity unless a co-decision-maker is available to them to make decisions; or
  3. lacks capacity even if the assistance of a person as a co-decision-maker were made available to them.

In all circumstances, the property of the Ward will be returned to them, their decision-making assistant, or their decision-making representative.

Assistance Options

If the Ward is deemed to require assistance following a Section 55 declaration, appropriate assistance is offered with the oversight of the Decision Support Service.  The assistance options aim to support individuals who may lack capacity but maintaining their personal decision-making power to an appropriate extent.

A decision-making assistant, a co-decision maker and a decision-making representative are the three options open to former Wards. The basic function of a person who adopts any such role, where possible:-

  • assist the individual to obtain and more easily understand information relevant to the decision to be made;
  • ascertain the wishes and preferences of the individual and assist them in expressing such wishes;
  • ensure the individual’s decisions are implemented as intended.

Decision-Making Assistant

A Decision-Making Assistant is a person who is appointed by the former Ward to help them make decisions in respect of their personal welfare and affairs.

A Decision-Making Agreement will be made in writing, signed by both parties (and witnessed) and include relevant details of the types of decisions that assistance may be required for. The maximum term of a decision-making agreement is three years. The agreement must be registered with the Decision Support Service in order to be deemed legally effective.

There are certain types of people who cannot be appointed as a decision-making assistant such as those who have been convicted of an offence in relation to the individual to whom they ought to be providing assistance.

Co-Decision Maker

A Co-Decision Maker  may be appointed by the former Ward who will make decisions jointly with one another in respect of their personal welfare and affairs. Where a co-decision maker is appointed and a decision is in scope of their agreement, the decision must be made jointly.

A Co-Decision-Making Agreement will be made in writing and registered with the Decision Support Service within 5 weeks from the date the agreement is signed. A medical doctor must confirm that the former Ward has capacity to enter into the Co-Decision-Making Agreement.

Again, there are certain types of people who cannot be appointed as a co-decision-maker.

Decision-Making Representative

A Decision-Making Representative is appointed by the court to make relevant decisions on behalf of the former Ward. A Decision-Making Representative may be appointed in circumstances where:

  • the individual lacks capacity
  • there is no suitable person to act as a co-decision-maker with the individual
  • where a suitable co-decision-maker is available but the co-decision-making agreement was not properly registered.

The decision-making representative acts as an agent for the individual who lacks capacity.

There are certain restrictions on decision-making representatives such as a restriction of disposing of the property of the individual as a gift, entering into settlement agreements on behalf of the individual without consent of the court and refusal of consent for life-sustaining medical treatment.

The Role of The Solicitor

Once appointed, your solicitor will lodge legal documents to start the Discharge from Wardship process with the Office of Wards of Court (“OWC”). A medical visitor will be appointed by the OWC who will conduct a review of the capacity of the relevant individual and draft a report. It is worth noting that there are only a limited number of medical examiners available and many applications to process, therefore we encourage that the application process is started as soon as possible.

Your solicitor will compile documentation and legal papers and serve same on relevant parties such as the Ward and their Committee and the relevant Court. The Court will fix a date for the discharge application to be heard at which a judge will discharge the wardship and put in place a form of assistance as required. The appointed solicitor will assist throughout the entirety of the discharge application process and the cost is legally aided, therefore the Committee will not bear the cost of the application.

For more information regarding the Assisted Decision Making (Capacity) Act 2015, please contact Mark Felton mark@amoryssolicitors.com , telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com .

Please note whilst every effort has been made to ensure the accuracy of the contents of the above article it is not to be construed as legal or taxation advice nor does it purport to be so. Specific tailored advice is required for every specific scenario. Amorys Solicitors LLP is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
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Concurrent wrongdoers and debt recovery

by | Feb 24, 2023 | Commercial Property, Company and Commercial Law, Public Law and Judicial Review

Concurrent wrongdoers and debt recovery

A concurrent wrongdoer in Ireland is defined in s. 11 of the Civil Liability Act 1961 as “one of two or more people responsible to a plaintiff for the same damage” (“Concurrent Wrongdoer/s”).  Concurrent Wrongdoers are jointly and severally liable for the damage sustained by a plaintiff[1].

A recent Court of Appeal decision[2] has clarified that in terms of a debt secured by a mortgage over a property, a valuer who produced a negligent valuation and a borrower who was contractually obliged to repay the debt are NOT Concurrent Wrongdoers for the purposes of the Civil Liability Act 1961 (the “Act”).

The significance of the foregoing lies in the way in which a Court is required to ascertain the extent of the liability of one Concurrent Wrongdoer when a plaintiff has reached a settlement agreement with another pursuant to s. 17 (2) of the Act.

The decision will be of particular interest to lenders and professional valuers.

The Law

S. 17 (2) of the Act provides that where a plaintiff (“P”) has reached an accord or agreement with one Concurrent Wrongdoer (CW1) to release him/ her from liability, unless the agreement/ accord expressly or by implication releases the other Concurrent Wrongdoer/s (CW2) from liability, the liability of the other Concurrent Wrongdoer/s (CW2) will be released by the greater of :-

  • The amount of the settlement between P and CW1; or
  • Any amount stipulated in the settlement agreement between P and CW1; or
  • The extent by which it can be said that CW1 was liable to contribute to CW2 if CW2 had paid the entire claim.

S. 35 (1) (h) and s. 17 (2) of the Act also require, (in the case of an agreement reached between P and CW1 WITHOUT the intention to release CW2) a plaintiff to “identify” with CW1 in any proceedings it issues against CW2. Identification is a legal term, and in this case is employed here so that P does not recover on the double and enjoy a windfall from CW2. Identification provides that in the foregoing instance P be deemed to be responsible for any acts of CW1 in those proceedings by way of contributory negligence.

Executive Summary

In the case in question, the borrowers (ie CW2) alleged[3] that the valuer (ie CW2 due to allegedly negligent provision of a property valuation), as Concurrent Wrongdoer with them, would have been required to contribute to them some or all of the loan outstanding and that consequently the borrowers’ liability to the bank should be reduced or set at nought pursuant to s. 17 (2) of the Act.

The borrowers’ argument was ultimately rejected by the Court of Appeal on the basis that a borrower and a valuer that provided a negligent valuation of property that induced a bank to lend to the borrower, were not Concurrent Wrongdoers. The Court held that any windfall to the bank by reason of its claims against both the valuer (for damage caused by an alleged negligently drafted report) and the borrowers (for the amount of the loan unpaid), was to the detriment of the valuer only and not the borrowers.  Therefore, the Court held that the borrowers could not rely on any settlement reached by the bank with the valuer to relieve the borrowers of having to repay the full amount of the unpaid loan.

The Case and Background/ Facts

The appellants in this case, Ulster Bank Ireland Limited & Others, Plaintiffs/ Respondents -v- Brian McDonagh & Others, Defendants/ Appellants, IEHC 2022 87, were three brothers (the “Borrowers”) who borrowed €21.5 million from Ulster Bank Ireland Limited (“the Bank”) to part fund the acquisition of a site at Kilpedder, Co. Wicklow in 2008.  The Borrowers secured planning permission for a data centre, but the development did not go ahead and the Borrowers were not able to repay the loan.  The Bank and the Borrowers entered into a Compromise Agreement and the Borrowers had to disclose all their respective assets in a Statement of Affairs. The Borrowers were alleged to have breached the Compromise Agreement and the Bank looked for summary judgment for €21.5m against the Borrowers. The Bank issued professional negligence proceedings against its valuer, CBRE for allegedly failing to properly value the Kilpedder lands. This claim was settled for €5 million which, (at the election of the Bank) was applied against the Borrowers’ loan in reduction of the debt. As set out in the decision of the Court of Appeal, there was no apparent legal basis for the Bank to reduce the Borrowers’ liability by the amount paid by CBRE.

High Court decision

Two broad issues were contested before the High Court. The first centred on whether or not the Borrowers/ defendants had breached the Compromise Agreement and secondly, whether CBRE was a Concurrent Wrongdoer with the Borrowers/defendants and thus whether or not the Bank was precluded from pursuing the Borrowers/defendants for the debt under section 17(2) of the Act in full or in part.

Mr. Justice Twomey delivered two judgments on behalf of the High Court. The first judgment[4]  was delivered on 6 April 2020 and determined that the Borrowers/defendants were jointly and severally liable to the Bank for the full amount of the outstanding debt. It was determined that the Borrowers had breached the Compromise Agreement and the Bank was entitled to pursue its claim for monies against the Borrowers/defendants.

With respect to the Act, the Court determined in its second judgment[5] that if some defendants in an action are alleged to be in breach of a contract for failing to pay a debt, and there were others responsible for that same debt on the basis of their wrongful conduct, then they were Concurrent Wrongdoers and s. 17 (2) of the Act applies.

However, the High Court concluded in its second judgment[6] that as no evidence was available to the Court to establish that the valuer was negligent in relation to the issue of its valuation report and that the report was the cause of the non-repayment of the loan by the Borrowers the Borrowers were found to be liable for the full amount of the debt outstanding in the amount of c. €22m. The Borrowers/ defendants appealed the case to the Court of Appeal.

The decision of the Court of Appeal relating to the Act

The Court of Appeal comprising the Honourable Mr Justice Brian Murray, Mr Justice Maurice Collins and Ms Justice Teresa Pilkington, delivered its judgment on the 6th of April 2022 and held that the Act is concerned with apportioning responsibility between wrongdoers facing legal proceedings for the recovery of “damages”[7]. The Court concluded that a claim for the recovery of a debt is not an action for the recovery of damages but for the enforcement of a primary contractual right. Even if a claim for a debt could be construed as a claim for “damages” as defined by the Act, the Court of Appeal held that a claim for damages for professional negligence and a claim for repayment of a debt were not actions for the “same damage”, as required by the Act[8]. The Court went on to say that a debtor would be liable for the entire debt, whereas the maximum amount for which the valuer could be held liable was a figure representing the amount of the loan which the lender could not recover from the debtor. Therefore, it was held that the liability of the debtor and valuer were not concurrent as required by s. 17 (2) of the Act.

Ultimately, the Court dismissed the Borrowers’ case on the matter of the application of the Act to proceedings for the recovery of debt and found the Borrowers liable for the full amount of the debt outstanding.  The Court of Appeal found absolutely no basis on which it could be suggested that the valuer, CBRE, could have any liability to contribute to the debt of the defendants, as required by s. 17 (2) of the Act. The Bank was not obliged to have deducted the €5m received from CBRE on foot of the settlement from the debtors’/Borrowers’ liability but as it had elected to do so, the Borrowers’ liability was reduced in that amount.  Therefore, the Borrowers were found to be liable for the full amount of the loan (€27m) less the settlement sum received from CBRE and applied to their loan account (€5m) with interest thereon. The effect of the second judgment of the High Court was upheld and the judgment of c. €22.9m against the Borrowers on a joint and several basis remained.

Further, the Court held that proofs critical to establish negligence – including a professional report confirming that the valuer failed in meeting its standard of care by adhering to general accepted and approved practice – were not present and the Borrowers’ argument was bound to fail for that reason, even if the Court held that the valuer/CBRE and the Borrowers were Concurrent Wrongdoers (which, as above, was not the case).

The Court of Appeal made clear[9] that the case is not concerned with the manner in which liability as between joint debtors or debtors and guarantors should be determined. In its decision, the Court emphasised that its findings do not in any sense have the consequence that in either of these situations a creditor is entitled to effect double recovery nor does it mean that a compromise with one debtor in these circumstances has no implications for another party liable on the debt. Instead, the relevant common law rules and applicable equitable principles (in particular of recoupment and contribution) continue to operate, the court held.  In the case of joint debtors this means that the release of one co-debtor in an agreement which did not expressly or impliedly reserve the creditors’ rights against the others will wholly extinguish the creditor’s rights. In the case of the relationship between guarantors and debtors issues as to whether and if so at what point of time in the context of a particular guarantee the guarantor has a right to indemnity or contribution from the principal debtor, those rights, the guarantor’s rights to subrogation, and indeed its rights against co-sureties fall to be determined in accordance with those equitable principles developed ‘to ensure that the person primarily liable should bear the whole burden in relief of others’ (Re Eylewood Ltd. [2011] 1 ILRM 5 at para. 35 per Finlay Geoghegan J.)[10].

Conclusion

The decision, insofar as it relates to the application of the Act to cases where it appears more than one person is or may be responsible for loss sustained by a plaintiff, is an important one as it clarifies the fundamental steps to take when examining the relationship between two parties to ascertain if they are Concurrent Wrongdoers.  The decision will be welcomed by banks and lending institutions as it makes it clear that the full amount of a loan remains outstanding even in situations where the lender was induced to lend on foot of an allegedly negligently prepared valuation report.

Further reading – see “The Blame Game”, by John Kennedy SC in the Law Society Gazette, 01 July 2022 and for wider background “Appeals court upholds €22m judgment against brothers over data centre lands”  Anthea McTeirnan of the Irish Times dated 06 April 2022.

[1] S. 12 of the Act

[2] Ulster Bank Ireland Limited, Paul McCann and Patrick Dillon, Plaintiffs/ Respondents -v- Brian McDonagh, Kenneth McDonaghj and Maurice McDonagh, Defendants/ Appellants. 2022 IECA 87

[3] amongst other arguments that will not be addressed in this article

[4] Ulster Bank Ireland Limited & Others, Plaintiffs -v- Brian McDonagh & Others, Defendants, 2020 IEHC 185

[5] Ulster Bank Ireland Limited & Others, Plaintiffs -v- Brian McDonagh & Others, Defendants 2020 IEHC 311 delivered on 20 June 2020

[6]  Ulster Bank Ireland Limited & Others, Plaintiffs -v- Brian McDonagh & Others, Defendants 2020 IEHC 311 delivered on 20 June 2020

[7] As defined in s. 2 of the Act

[8] S. 17 (2) of the Act

[9] Para 104,pg 63 & 64 of the Court of Appeal judgment

[10] These principles, the Court found were summarised before in Breslin and Corcoran, Banking Law (4th Ed 2019) at paras. 14-19 – 14-27.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “Concurrent Wrongdoers and Debt Recovery ”, please contact Deirdre Farrell, Partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

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Transfer of Personal Data – The Max Schrems and Facebook case

by | Jun 20, 2017 | Company and Commercial Law, Data Protection & Privacy Law, Public Law and Judicial Review

Privacy Rights Campaigner Max Schrems claims the transfer of his personal data by Facebook from Europe to its US parent company is unlawful and in breach of his right to privacy under article 7 and 8 of the EU Charter of Fundamental Rights. Individuals in the European Union have a specific right to privacy under European law. Individuals in the US do not have the same protections. In the US personal data is subject to mass State surveillance which is a breach of European citizen’s rights. The Irish Data Protection Commissioner refused to investigate Mr. Schrems complaint, this was overturned by Court Order and the Data Protection Commissioner was directed to investigate Mr. Schrems’s complaint.

The complaint was then investigated by the Irish Data Protection Commissioner. A draft decision on this complaint was then issued by the Irish Data Protection Commissioner, who then issued High Court proceedings seeking to refer a number of questions to the European Court. The key question raised is whether standard contractual clauses approved by the EC to be used by parties when they are arranging for the transfer of personal data of individuals to other countries outside the EU provide sufficient protection for EU citizens.

Ten parties applied to be joined as amici curiae (parties who have an interest in the proceedings) to assist the High Court in relation to this case. The High Court ordered that the USA Business Software Alliance, Digital Europe and the Electronic Privacy Information Centre be joined as amici curiae on the basis that this will have significant economic and commercial consequences for companies and individuals. The USA BSA were joined as restrictions on transfer of data would have considerable adverse effects on US commerce. Business Software Alliance is a not for profit international trade association of global technology providers. EPIC is a public interest, not for profit organisation with expertise in privacy, freedom of information, and government surveillance and has appeared frequently in the US as amici curiae and before the European Court of Human Rights. EPIC is a member of the advisory panel of Mr. Schrems. Digital Europe is the principal representative body for Europe for the Digital Technology Industry and is a not for profit association. The US Government were also represented in the case.

The case was heard in the High Court in Dublin in March 2017 before Ms. Justice Costello for a number of weeks. Judgment has been reserved and will issue shortly.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Transfer of Personal Data- the Max Schrems and Facebook case”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.
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The Monkey Selfie Lawsuit in the US – how would the High Court of Ireland decide a similar case?

by | Sep 30, 2016 | Commercial Litigation and Disputes, Company and Commercial Law, Public Law and Judicial Review

“Monkey Sees, Monkey Sues”

Last month a federal court* in San Fransisco, California held that a macaque monkey who took several selfies could not be declared the owner of the images’ copyright either under Unites States legislation or its Constitution.

The case

The case** arose out of a dispute between the animal rights organisation the People for Ethical Treatment for Animals (PETA) and wildlife photographer David Slater whose camera the monkey used to take the images.

In 2011, Slater went to a nature reserve on Sulawesi Island, Indonesia to study a family of macaque monkeys.   There, Slater set up his camera on a tripod and deliberately left the remote trigger for the camera accessible to the macaque who subsequently took two famous monkey selfies. The selfies were later published in a book by Slater’s publishing company, Blurb.

PETA issued proceedings on behalf of the monkey against Slater and Blurb seeking a declaration from the US federal court that the macaque monkey was the owner of the selfie and an order granting the assignment of the copyright in the images to the monkey.  The organisation also sought the equivalent of an order appointing it as trustee of the income generated by the images so that it could administer same for the benefit of all of the macaque monkeys on the reserve on the Indonesian island.

The photographer’s copyright not at issue

Slater’s entitlement to the copyright in the images was not at issue in this instance.   The US federal court had to decide as a preliminary issue (i.e. before a hearing of the full trial) whether an animal could own copyright in an image in the United States.  If the court held in the affirmative on that question (which it did not), the case could have then proceeded to a full hearing of the issues between the parties.

Decision in the United States

Unsurprisingly the US federal judge held that US legislation and its Constitution did not extend copyright protection to animals and dismissed the case accordingly.

In Ireland

Unremarkably the monkey and/or PETA are likely to be unsuccessful in any attempt by PETA to establish that the monkey owns the copyright in the images in Ireland.

The law of copyright in this jurisdiction is governed by the Copyright and Related Rights Act 2000 (“the Act”).  Section 23 of the Act states that an “author” of a work shall be the owner of copyright therein and section 21 of the Act states that the “author” means “person” who creates the work which in the case of a photograph means a photographer (i.e. the monkey in this case).  Whilst the Act does not specifically state that a person means an individual or a body corporate section 18 (c) of the Interpretation Act 2005 does so, unfortunately, the monkey and/or PETA on its behalf would not be successful in an argument under the Act.

Similarly an argument that copyright protection should be extended to animals on the basis that such a protection is an unenumerated right guaranteed by our Constitution is likely to fail as the relevant article (40.3) refers to “personal rights” of “citizens” and an animal is not a citizen.

But what about the photographer, would he own copyright in the image in Ireland?

If a court accepted a broader definition of ‘photographer’ to include Slater (as he purposefully left the camera with the monkeys and orchestrated the shot) Slater could have difficulty in proving that the image or work was “original”.

In order for copyright to subsist in a work in Ireland and in member states of the European Union same must be ‘original’ (section 17 (2) (a) of the Act and EU Directive 2001/29/EC) and a work is considered original if it is the result of the author’s own intellectual creation***.

Whilst the answer to this question could be the subject of an article itself, in brief, it is submitted that Slater would be in a weak position trying to assert copyright in the monkey selfies as leaving a camera amongst a family of monkeys would not be a sufficient expression of his intellect to render the images ‘original’.  If Slater used particular photographic techniques or computer software to manipulate the images in some way, it is submitted that he would be in a better position to prove originality in them and that he owned the copyright.

This case highlights the legal difficulties in establishing ownership of copyright in an image and how difficult it is for a monkey to make it in the media industry.  Great story.

NB: In publishing the above image we are availing of the ‘fair dealing’ exemption from infringement set out in section 51 of the Act.

* A federal court in the United States, is a court that has jurisdiction to decide on claims that fall to be determined on the interpretation of the laws, treaties or Constitution of the United States as opposed to internal State laws.

** US District Court, Northern District of California, San Fransisco Division, case reference 15-cv-4324-WHO

*** This is accepted as the harmonised definition of originality in the European Union -see Infopaq International A/S –v- Danske Dagblades Forening C5-08 Court of Justice of the European Union (4th Chamber)

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “The Monkey Selfie Lawsuit in the US”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.
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Paternity Leave Rights for Fathers Commence 1st September 2016

by | Sep 5, 2016 | Employment and Industrial Relations, Public Law and Judicial Review

The Paternity Leave and Benefit Act 2016 gives 2 weeks paternity leave to fathers or the spouse, civil partner or cohabitee of children born on or after 1 September 2016, or to a spouse, civil partner, cohabitee, of an adopting mother or sole male adopter adopting a child on or after 1st September 2016.

  • Paternity leave can be taken from the date of birth or adoption of the child at any time prior to the expiry of 26 weeks after the date of birth or adoption.
  • Notification to the Employer of the employee or contractor’s paternity leave should be given as soon as reasonably practicable, but no later than 4 weeks before the expected week of confinement of the mother or the adoption placement.
  • Paternity leave is given in a single block of 2 weeks. This is to enable the parent to provide or assist in caring for the child and to support the other parent.
  • Only one parent is entitled to paternity leave in relation to the birth or adoption of a child even where there is a multiple birth or adoption of 2 or more children at the same time.
  • If an employer has reasonable grounds for believing an employee on paternity leave is not using the paternity leave for caring or support for the child, the employer may terminate the leave. The employer can serve a notice containing the grounds for termination of leave requiring the employee to return to work.
  • Records of paternity leave dates must be kept for a period of 8 years or an employer, risks being found guilty of an offence, and a fine of up to €4,000.
  • While on paternity leave the employee is protected from unfair dismissal, penalisation, including selection for redundancy, unfavourable changes in terms or conditions or employment as a result of paternity leave. The employee can make a complaint to the Workplace Relations Commission of a breach of the Act.
  • Employees or self-employed contractors are entitled to paternity benefit where the Claimant has qualifying contributions.
  • Employers should update their Contracts of Employment and Employee Handbooks to incorporate this change.

This is a summary of recent changes and specific legal advice should be obtained. If you have any comments or queries, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
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Children and Family Relationships Act 2015 Update

by | Sep 17, 2015 | Family Law, Public Law and Judicial Review

 

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he will automatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to day care for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.
Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Children and Family Relationships Act 2015”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.
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