Guardianship
GOIA S.8- Legal responsibility of parents to make decisions for the child, regarding health, welfare, religion, education etc., and perform duties, in relation to their child’s upbringing.
Custody
The day-to-day care, residency and upbringing of children who are regarded as “dependent” children- U18 and/or special needs and/or in full time education
Access
Right of a child to maintain direct contact with the parent whom the child does not ordinarily reside with
Automatic Guardians: GOIA 1964 AND CFRA 2015
- Unmarried mother (S.6)
- Married mother and father (S.6)
- Civil Partners/ Same Sex Marriage- legally and jointly adopted child
- Both parties to cohabitation- legally and joint adopted child
-Both parties to DAHR- Natural parent and partner
Unmarried Father, Obtaining Guardianship
- Application to court
- Statutory Declaration with consent of mother
- 12mth cohabitation with mother, 3mth of which post-birth (but pre 18)
Cohabitants/ Partners, Obtaining Guardianship- S.6
They have lived with the parent and the child for at least 3 years, and
They have shared day-to-day care of the child for at least 2 years.
Individual, Obtaining Guardianship, Expedited Process
Have been responsible for the day-to- day care of the child for the last 12 months, and no other parent/ guardian is willing/able to take on child.
S.49- CFRA 2015- Rights of Guardian
Decide child’s location of residence
Decide child’s religious, cultural, spiritual, and linguistic upbringing
Decide with whom the child shall live (to a degree)
Consent to all health, medical and dental treatments for child
Decide matters concerning child’s education
Decide if to place child for adoption
S.50? Responsibilities of the Guardian
- Provide for the child financially
- Protect the child
- Provide for the child’s education
What happens when guardians disagree on a long-term decision for the child?
Apply to District Court- Resolve dispute- child’s welfare and best interests paramount
What, according to the CFRA S.31, does the child’s best interests revolve around?
- Child’s P,P,I,M,S welfare
- Views of child, given due weight according to age and maturity
- Child’s history and any risk of harm
“FN V. CO”- discretion and paramountcy of welfare
The court’s discretion in determining these disputes is wide, but the child’s welfare is paramount
“MCD”- Biological link vs. welfare
‘Whilst biological connection is important, it is not determinative, a child’s welfare trumps all’
“A v. B”- Hogan J.- Education
Ask, where is the child’s educational welfare and best interests served
“COS”
No Constitutional Veto for mother with regard to child’s welfare, best interests paramount
Can Guardianship Be Stripped? S.8(4)
YES
- Parent- very difficult due to constitutional rights
- Non- Parent- easier- statutory rights- still very rare- proportionate restriction more likely
Why may a proposed guardianship be refused?
1) Proposed guardian is unwilling, or unable, in eyes of court.
2) Proposed guardianship is not in child’s Best Interests
“FN V. CO (2004)”- Why was guardian rejected in this case?
Unmarried father- sought G and A- Practically no contact/ relationship with the child over 10 years- mother unconsenting- application rejected.
“FN V. CO (2004)”- List of Factors
- Lack Of Relationship With Child
- History of Violent Conduct/ Neglect
- History of Substance Abuse/ Mental Health Problems
- History of Instability, with regard to Housing, Employment, etc.
- General Opposition by Child if Deemed “Mature Enough”
“MCD V. L” - Lesbians and Sperm Donor Case- Quote
“Guardianship is not a reward for paternity”
“BO”- Guardianship denied, why?
Domestic Abuser
Custody- Who Gets It?
Unmarried mother- Automatic Right
Married Couple- Automatic Right
Unmarried Father- May Apply under S.11 GOIA- Legally Recognised as Parent in this Regard
Non-Parent- May Apply under 2015 CFRA
“B v. B” on Guardianship and Custody
‘A parent so deprived of their right to custody may still continue to exercise the rights of the guardian’ - Walsh J.
Custody Orders and Marital Breakdown
COMB
