Guardianship

Guardianship means the rights and duties of parents regarding the upbringing of their children. It is the duty to maintain and properly care for a child.

It includes and is not limited to the right to apply for a passport for the child and the right to make decisions about where a child will live, a child’s religious denomination, their education, medical decisions and requirements and their general welfare.

As previously stated, a married father is automatically his child’s guardian. Guardianship is presently governed by the Guardianship of Infants Act 1964 as amended by the Children Act, 1997. An application for Guardianship is made under Section 6A of the Guardianship of Infants Act 1964, as amended.

It obliges the mother of the child to involve the father of the child in important decisions concerning the child’s welfare. When a father is appointed a guardian of the child the mother of that child cannot leave the country without the father’s consent. If she does so and fails to return, this is considered the criminal offence of child abduction and she can be subject to criminal sanctions.

There are two ways which a natural (unmarried) father can be appointed guardian of the child:

• Appointment of guardian by Statutory Declaration – This can be drafted and signed in our office if the mother of the child agrees to the father of the child being appointed guardian and access is agreed between them. This is a Declaration which states that the mother and father are not married to each other, that they have agreed access arrangements for the child and the mother consents to the father being appointed guardian. It is a straightforward and cost effective process.

• Appointment of guardian by the District Court – The natural (unmarried) father must issue a Summons in the District Court. This can be done by attending at your local District Court Office directly or by attending with us. It should be noted that the father merely has the right to apply for guardianship of the child and that if the mother contests his application the Court will decide whether or not the father should be appointed joint guardian. In our experience, this application is rarely refused by the Court. When the summons is issued, a return date will be allocated for the hearing of the case. If on the day of Court, the mother of the child consents to the father being appointed joint guardian, the Judge can be informed of this and he/she will make the Order without hearing sworn evidence.

While dealing with an application for guardianship, the Court will decide whether or not it is in the child’s best interests to have the natural father appointed guardian of the child. In our experience this application will rarely be refused by the Court. However, in certain cases the Court will refuse this. The Law Reform Commission has prepared a report and are recommending that all natural (unmarried) fathers are automatically guardians of their child. This has yet to be implemented in Irish law but may be done so in the future.