In certain scenarios, where the law in Ireland fails to explicitly outline the rights of the parent, the judicial adjudication in relation to guardianship, custody and access is fundamental to ensuring that the well-being of the child remains secure. Although there is some sense of legal certainty in respect of married parents and their children, this is not consistent with the situation that non-marital parents sometimes face due to the outdated legislation of the Guardianship of Infants Act 1964(1964 Act) as amended. This uncertainty has been a catalyst for the drafting of the Children and Family Relationship Bill 2013 (2013 Bill). The 2013 Bill aims to establish a legal framework which can support the many divergent family dynamics which are present in twenty first century Ireland. It is hoped that such a framework will provide legal pellucidity in regards to the rights and duties of parents within a non-traditional family model.
This submission will outline the law in Ireland today, while simultaneous highlighting the flaws and issues that are present within our legal framework in relation to parental uncertainty in cases of guardianship, custody and access. The 2013 Bill and its implications will also be addressed, accompanied by a critique of the relevant sections.
Although the 1964 Act provides guidance and clarity in some circumstances, it fails to provide a definition of the precise nature or range of responsibilities that arise from being a guardian. However, the courts have accepted guardianship to mean the rights and duties of parents in relation to the raising of their child. More notably, this piece of legislation is also quite restrictive on who can achieve automatic guardianship of a child. Under s.6 a married mother and father of a child enjoy an automatic guardianship right, which illustrates the influence of the traditional marriage based family. This influence was also recognised by O Dalaigh CJ in the B v B case, where he stated that s.6 merely reaffirms the meaning of Article 42 of the Constitution. However, where a mother is granted automatic guardianship, regardless of her marital status, a father does not enjoy the same privilege. It could be argued that an unmarried father has similar rights to that of a non-parent as under s9 of the 1964 Act a relative of the child in question or an individual who has functioned as a loco parentis to that child can also apply for access, just as an unmarried father can. S.10 of the 1964 Act also outlines that an unmarried mother holds the position as custodian of her child. However, the father’s right to custody, like his right to access and guardianship is not automatic and can only be attained if an application is made to the courts. This was praised in State (Nicolaou) v An Bord Uchtala by Henchy J, as he regarded the mother’s right to automatic guardianship as in accordance with Article 40.3 of the Constitution.