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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