This bill is intended to be passed into law before the referendum on same sex marriage on 22 nd May Extensive reform of family law Bill is described as the greatest reform of family law in a generation Civil Partnership amp Cohabitants Act was hailed as same ID: 244718
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Slide1
Child and Family Relationships Bill 2015
This bill is intended to be passed into law before the referendum on same sex marriage on 22
nd
MaySlide2
Extensive reform of family law
Bill is described as the greatest reform of family law in a generation (Civil Partnership & Cohabitants Act was hailed as same!)
Contains 13 parts and amends 24 separate pieces of legislation
Designed to address diverse nature of family relationships and to give greater rights to those living in non-marital family units
Also intends to protect children by allowing a greater range of persons to apply for guardianship, custody and access
Bill changes those traditional terms to ‘parental responsibility’, ‘day to day care’ and ‘contact’ Slide3
Assisted Human Reproduction
Concept of ‘second parent’ created. This gives parental rights to the non-biological ‘parent’ partner of the child’s actual biological parent. The donor will have no rights in respect of the child. Donors may make a ‘directed donation’ to a specific mother or couple
A spouse, civil partner or cohabitant may become the second parent (and thereby a guardian) of their partner’s donor conceived child with the consent of the mother. The ‘second parent’ must have given their consent prior to the partner undergoing the procedure
Allows for the registration of the second parent as parent on the child’s birth certificate
Anonymous donations are prohibited and a national donor conceived person register will be created in order to allow such a person to trace his/her identity
Donor Assisted Human Reproduction facilities are required to register and to retain specified information in respect of donors and users of its serviceSlide4
Intended mother and her spouse, civil partner or cohabitant must be 21 years of age before consent to this treatment can be given. Both can withdraw their consent in writing
Where more than one embryo is created during the process, this embryo can be donated on the consent of both intended parents and it can be a ‘directed donation’. No payment can be made for an embryo
Bill allows for the retrospective recognition of parentage of children conceived in this manner prior to the commencement of this legislation. Second parent must be able to demonstrate that s/he intended to be a parent to the conceived child at the time the procedure took place. This procedure cannot apply where the donor was known to the mother/partner
District Court empowered to make declarations of parentage in respect of children conceived before the commencement of the legislation. Application can be made by mother or second parent and on notice to the child if s/he is over 18 years. Attorney General may be joined to these proceedings. Circuit Court also has jurisdiction in this regardSlide5
Guardianship
New definition of father to exclude donor of a ‘gamete’
New definition of a parent in cases of a donor conceived child to include: spouse, civil partner or cohabiting partner of the birth mother
New provisions are inserted into section 6 of the 1964 Act. Section 6A is amended and sections 6 B – E are inserted.
Section 6A is essentially re-enacted. Allows court to appoint a parent as a guardian but such appointment will not affect the prior appointment of any person as the child’s guardian.Slide6
Automatic guardianship
Section 6B provides for a list of parents, other than the birth mother, who will have guardianship rights in respect of a child (automatic rights, no need to apply to court):
Married husband of a birth mother who has provided a gamete for a donor conceived child
Civil partner of a birth mother
An unmarried father who has cohabited with the mother for 12 consecutive months including for 3 months with the child after the birth of the child
A co-habiting same sex partner who has cohabited with the mother of the child for 12 consecutive months including for 3 months with the child after the birth of the child
An unmarried father or cohabiting same sex partner where the mother has executed a statutory declaration appointing such person as guardianSlide7
Persons who may apply to be guardians
Section 6 C allows following persons, other than a parent, to be appointed as guardians:
Person who is married to the parent of the child
Person in civil partnership with parent of the child
Person cohabiting with parent of the child for over 3 years and has had ‘shared day-to-day responsibility’ for the child for over 2 years
Person who has had day-to-day responsibility for a child for 12 months where no parent or guardian is willing to exercise their guardianship responsibilities.
Tusla
must be on notice of this application and are entitled to express a view
Non parental guardians will have more limited guardianship rights than parental guardians – set out in section 45 of the Bill
Section 6D allows for recognition as guardianship by the State of rights granted in another jurisdiction (under Brussels II or the Hague Convention) where the rights granted in the other jurisdiction are equivalent Slide8
Temporary guardianship
Section 6E provides that a ‘qualifying guardian’ can nominate a temporary guardian where s/he becomes incapable, through illness or injury, of exercising the rights and responsibilities of guardianship. The qualifying guardian or the person nominated can apply to the court in this instance. Must be on notice to
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and/or any other guardian/parent
‘Qualifying guardian’ is defined a parent who has custody of a child or a person other than a parent who has sole custody of a child
Q
ualifying guardian can specify limitations on rights and responsibilities to be exercised by the temporary guardian
Factors to be considered in making the appointment: if nominated person is capable of exercising role, if s/he is a fit and proper person to do so, and if it is in best interests of the child
Court can later continue or revoke the temporary guardianship or can order that temporary guardian continue in role to act jointly with qualifying guardianSlide9
Testamentary guardians
Section 46 of the Bill amends section 7, 1964 Act
A guardian (including a parent and another person, not being a parent, who has sole custody of a child to the exclusion of a living parent) may appoint a testamentary guardian to act jointly with any surviving guardian
The testamentary guardian may apply to court to have the surviving guardian removed as guardian being an person unfit to have such a role
The surviving guardian may also apply to court objecting to the appointment of the testamentary guardian
The court can make the following orders: revoke the appointment of the testamentary guardian, order that the testamentary guardian act to the exclusion of the surviving guardian or order that both guardians act jointly in respect of the child
Court may make additional orders re maintenance and access under this sectionSlide10
Removal of persons as guardians
Section 8, 1964 Act amended by section 47 of the Bill
Court can remove a testamentary guardian, court-appointed guardian and certain parents (birth mother and marital father cannot be removed)
Can do so where: there is another guardian in place or about to be appointed; it is in the best interests of the child to do so; for substantial reasons that the court considers makes it desirable or necessary to do so; where the guardian consents to his/her removal; where the guardian is unable or unwilling to exercise the rights and responsibilities of guardianship; where the guardian has failed in his/her duty to the child so that the welfare and safety of the child could be affected if the guardian were not removedSlide11
Custody and access
Section 11B of the 1964 Act is amended to abolish the two step process that currently exists for relatives or persons with whom the child resides to apply for access (Grandparent access)
Section 11E is inserted and it expands the persons who can apply for custody of a child. These are:
(1) a relative of a child (2) a spouse or civil partner of the parent who has shared responsibility with the parent for the child’s day-to-day care for more than 2 years (3) a person who has cohabited with the child’s parent for over 3 years and has shared responsibility with the parent for the child’s day-to-day care for more than 2 years or (4) an adult who has provided day-to-day care for the child for more than 12 months where there is no parent or guardian willing or able to assume guardianship rights and responsibilities in respect of the child
Court cannot make an order without the consent of each guardian of the child unless it is in the best interests of the child to dispense with consent
Court may also granted custody jointly between a parent and one of the categories of person above and may specify the residential arrangements for the child including any access issues
Section 12A is inserted giving the courts the power to make additional orders including allowing the court to hold a child’s passport or order that a person retain the passport Slide12
Maintenance
Section 42 amends section 5(2) of the Guardianship of Infants Act 1964 by providing that periodical payments of €150 per child may be ordered in addition to lump sums of €15,000 for the benefit of a child
Expanded definition of persons who can be ordered to pay maintenance for a dependant child: the cohabitant of another cohabitant who is the parent of a dependant child (or in loco parentis of a dependant child) can be ordered to pay maintenance in respect of that child. The maintenance debtor must be a guardian of the child before such an application can be made. A person other than a parent who is caring for a child may also apply for maintenance from the cohabitant. Note maintenance payments end at 18 years of age in this context.
A civil partner may apply for maintenance from the other civil partner for a dependant child (even in cases where the child has not been adopted by both parties) – section 129 BillSlide13
Adoption
Categories of persons who can adopt now includes civil partners and co-habiting couples (whether of the same or opposite sex) who have lived together for more than 3 years (note
not
the same definition of co-habitant that is contained in 2010 Act)
Definition of ‘father’ includes a person who has been recognised as the parent of a donor conceived child
Definition of ‘guardian’ includes guardians who are not the parents of a child (unless right to consent to adoption was excluded as one of the rights attaching to their guardianship)
Same sex female couples can place a child for adoption so Bill provides a definition of a ‘second female parent’ who is not the mother of the child but who is recognised as the parent of a donor conceived child. This second parent must be informed on the same basis as a father of the placing of a child for adoptionSlide14
Declarations of parentage
Status of Children Act 1987 amended to allow for change in procedure for declaration of parentage
Categories of person that can apply are broader: the person whose parentage is in question; a person alleging that s/he is the parent; a person alleging that s/he is not the parent. In the case of the latter two categories, the person whose parentage is in question must be put on notice of the application
Court no longer has discretion to refuse to hear such an application and it can make a declaration that a person is or is not the parent of a child
NB: the term parent in this context excludes ‘donor’ within the meaning of the Act
Terms ‘blood test/blood sample’ are replaced by ‘DNA sample’ and ‘bodily sample’
Presumptions of parentage: Husband of a woman will no longer be presumed to the father of her child if child is born more than 10 months after the date of separation (includes date of judicial separation or any other clear evidence of date of separation from the woman)Slide15
Miscellaneous provisions
New section 18A, 1964 Act refers to enforcement of orders
Enforcement orders where a parent or guardian of a child where access with the other parent/guardian has been unreasonably withheld
Court can order extra time for denied parent/guardian in order to ‘re-build’ relationship; can order parent in default to reimburse denied parent for any expenses incurred and can order that parties attend post separation counselling, mediation etc.
Section 18D also allows parent/guardian who has custody of child to seek reimbursement of expenses (including travel expenses and remuneration) from parent/guardian where the other parent/guardian fails to exercise court ordered rights
NB: section 23, 1964 amended whereby an admission of abuse (or risk of abuse) made during mediation will now be admissible in later court proceedings. This includes an admission by a child or by one of the parties to the mediationSlide16
Conclusion
Surrogacy specifically excluded from legislation but is intended to be regulated in separate, specific legislation
This Bill is not at the final stages and significant changes may be made yet, most notably in two areas: granting automatic guardianship to ALL fathers (regardless of whether they ever lived with the mother or child) and creating a national register of ‘guardianship agreements’
ie
where the mother agrees to appoint the father as
guardian.
Link to the
Bill:
http
://
www.oireachtas.ie/documents/bills28/bills/2015/1415/b1415d.pdf
Explanatory
memorandum:
http://
www.oireachtas.ie/documents/bills28/bills/2015/1415/b1415d-memo.pdf
(Warning there are some mistakes in the Explanatory Memorandum!)