Guardianship of Infants Act , 1964

PART I Preliminary and General

1. Short title.

1.—This Act may be cited as the Guardianship of Infants Act, 1964.

2. F1[Interpretation.

2.—(1)In this Act, unless the context otherwise requires—

"the Act of 1987" means theStatus of Children Act, 1987;

F2["Act of 2010" means theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

F3["Act of 2015" means the Children and Family Relationships Act 2015;]

F4["adoption order" has the same meaning as it has in theAdoption Act 2010;]

"child" means a person who has not attained full age;

F2["civil partner" shall be construed in accordance with section 3 of the Act of 2010;

"cohabitant" shall be construed in accordance with section 172(1) of the Act of 2010;

F3["donor-conceived child" has the meaning it has in Part 2 of the Act of 2015;]

"enactment" means a statute or an instrument made under a power conferred by statute;

"enforcement order" shall be construed in accordance with section 18A(1);]

F4["father" includes a male adopter under an adoption order but subject to section 11(4), does not include the father of a child who has not married that child’s mother unless—

(a) an order under section 6A is in force in respect of that child,

(b) the circumstances set out in subsection (3) of this section apply,

(c) the circumstances set out in subsection (4) of this section apply,

(d) the circumstances set out in subsection (4A) of this section apply, or

(e) the father is a guardian of the child by virtue of section 6D;]

"maintenance" includes education;

F2["Minister" means the Minister for Justice and Equality;]

"mother" includes a female adopter under an adoption order;

F3["parent" means—

(a) subject to paragraph (b), a father or mother as defined by this subsection, and

(b) in relation to a donor-conceived child, the parent or parents of that child under section 5 of the Act of 2015;]

F2["qualifying guardian", in relation to a child, means a person who is a guardian of that child and who—

(a) is the parent of the child and has custody of him or her, or

(b) not being a parent of the child has custody of him or her to the exclusion of any living parent of the child;

"relative", in relation to a child, means a grandparent, brother, sister, uncle or aunt of the child;]

"testamentary guardian" means a guardian appointed by deed or will;

"welfare", in relation to a child, comprises the religious, moral, intellectual, physical and social welfare of the child.

(2)A reference, however expressed, in this Act to a child whose father and mother have not married each other shall, except in a case to which subsection (3) relates, be construed in accordance with section 4 of the Act of 1987.

(3)(a)The circumstances referred to in paragraph (b) of the definition of "father" in subsection (1) are that the father and mother of the child concerned have at some time gone through a ceremony of marriage and the ceremony resulted in—

(i)a voidable marriage in respect of which a decree of nullity was granted after, or at some time during the period of 10 months before, the birth of the child, or

(ii)a void marriage which the father reasonably believed (whether or not such belief was due to a mistake of law or of fact) resulted in a valid marriage—

(I)where the ceremony occurred before the birth of the child, at some time during the period of 10 months before that birth, or

(II)where the ceremony occurred after the birth of the child, at the time of that ceremony.

(b)It shall be presumed for the purposes of subparagraph (ii) of paragraph (a), unless the contrary is shown, that the father reasonably believed that the ceremony of marriage to which that subparagraph relates resulted in a valid marriage.

(4)The circumstances referred to in paragraph (c) of the definition of "father" in subsection (1) are that the father and mother of the child concerned, not being a father or mother to whom the circumstances set out in subsection (3) apply—

(a)have not married each other,

(b)declare that they are the father and mother of the child concerned,

(c)agree to the appointment of the father as a guardian of theF5[child, and]

(d)F6[…]

(e)have made a statutory declaration to that effect as may be prescribed by the Minister for Justice, Equality and Law Reform.

F7[(4A) The circumstances referred to in paragraph (d) of the definition of "father" in subsection (1) are that the father and mother of the child concerned—

(a) have not married each other, and

(b) have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child.]

(5)In this Act—

(a)a reference to a Part or section is a reference to a Part or section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b)a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c)a reference to any enactment shall be construed as a reference to that enactment as amended by or under any subsequent enactment.]

2A. F8[References in enactments to guardians appointed under section 6C or 6E

2A.(1) Subject to subsection (2), a reference in a provision of an enactment specified in section 6C(12) to a person who is a guardian of a child pursuant to this Act shall include a reference to a person who is appointed as guardian of the child under that section if the court so appointing the person orders that he or she is to enjoy the rights and responsibilities of a guardian under the provision concerned.

(2) Subsection (1) shall apply subject to such limitations (if any) as may be specified under section 6C(9) in the order of the court under that section appointing the person concerned as guardian of the child concerned.

(3) A reference in a provision of an enactment to a person who is a guardian of a child pursuant to this Act shall, in the case of a temporary guardian appointed under section 6E, be construed subject to such limitations (if any) as are imposed under subsection (6) or (11) of that section on the exercise by him or her of the rights and responsibilities of a guardian under the provision.]

3. Welfare of F9[child] to be paramount.

F10[3.—(1) Where, in any proceedings before any court, the—

(a) guardianship, custody or upbringing of, or access to, a child, or

(b) administration of any property belonging to or held on trust for a child or the application of the income thereof,

is in question, the court, in deciding that question, shall regard the best interests of the child as the paramount consideration.

(2) In proceedings to which subsection (1) applies, the court shall determine the best interests of the child concerned in accordance with Part V.]

3A. Proof of paternity in certain proceedings.

F11[3A.—Where in any proceedings before any court on an application for an order under this Act (other than so much of any proceedings assection 15of the Act of 1987 relates to) in respect of aF12[child]whose father and mother have not married each other, a person (being a party to the proceedings) is alleged to be, or alleges that he is, the father of theF12[child]but that allegation is not admitted by a party to the proceedings, the court shall not on that application make any final order which imposes any obligation or confers any right on that person unless it is proved on the balance of probabilities that he is the father of theF12[child]:

Provided that this section applies only where the fact that that person is or is not the father of theF12[child]is material to the proceedings.]

4. Repeals.

4.—Each enactment specified in the Schedule is hereby repealed to the extent indicated in the third column of the Schedule.

PART II Guardianship

5. Jurisdiction in guardianship matters.

F13[5.—(1)Subject to subsection (2) of this section, the jurisdiction conferred on a court by this Part may be exercised by the Circuit Court or the District Court.

(2)The District Court and the Circuit Court, on appeal from the District Court, shall not have jurisdiction to make an order under this Act for the payment of a periodical sumF14[at a rate greater than€150 per week towards the maintenance of a child or a lump sum order greater than€15,000 for the benefit of a child].

(3)The jurisdiction conferred by this Part is in addition to any other jurisdiction to appoint or remove guardians or as to the wardship ofF15[children]or the care ofF15[children]’s estates.]

6. Rights of parents to guardianship.

6.—F16[(1)The following persons shall be guardians of a child jointly:

(a) the father and mother of the child, or

(b) where a married couple of the same sex have jointly adopted a child under an adoption order, each of the married couple.]

F17[(1A) Where civil partners or a cohabiting couple have jointly adopted a child under an adoption order the civil partners or cohabiting couple, as the case may be, shall be guardians of the child jointly.]

(2)On the death of the father of a F18[child] the mother, if surviving, shall be guardian of the F18[child], either alone or jointly with any guardian appointed by the father or by the court.

(3)On the death of the mother of a F18[child] the father, if surviving, shall be guardian of the F18[child], either alone or jointly with any guardian appointed by the mother or by the court.

F17[(3A) (a) On the death of a civil partner who has jointly adopted a child with their civil partner, the other civil partner, if surviving, shall be guardian of the child, either alone or jointly with any guardian appointed by the deceased civil partner or by the court.

(b) On the death of one cohabitant of a cohabiting couple who have jointly adopted a child, the other cohabitant, if surviving, shall be guardian of the child, either alone or jointly with any guardian appointed by the deceased cohabitant or by the court.]

F19[(3B) On the death of a spouse who has jointly adopted a child with his or her spouse of the same sex, the other spouse, if surviving, shall be guardian of the child, either alone or jointly with any guardian appointed by the deceased spouse or by the court.]

F20[(4) Subject to subsection (1A), where the mother of a child has not married the child’s father, and no other person is, under this Act, the guardian of the child, she, while living, shall alone be the guardian of the child.]

F21[(5) In this section, "cohabiting couple" has the same meaning as it has in theAdoption Act 2010.]

6A. F22[Power of court to appoint parent as guardian

6A.—(1) The court may, on an application to it by a person who, being a parent of the child, is not a guardian of the child, make an order appointing the person as guardian of the child.

(2) Without prejudice to other provisions of this Act, the appointment under this section of a guardian shall not, unless the court otherwise orders, affect the prior appointment (whether under this or any other enactment) of any other person as guardian of the child.]

6B. F23[Rights of certain parents to guardianship

6B.(1) AF24[person]who—

(a) is, undersection 5(1)(b) of the Act of 2015, the parent of the child, and

(b) has married the mother of the child,

shall be a guardian of the child.

(2) A person, other than a person to whom subsection (1) applies, who, along with the mother of the child is, undersection 5of the Act of 2015, the parent of a child shall be a guardian of the child where—

(a) the person has entered into a civil partnership with the mother,

(b) the circumstances in subsection (3) apply, or

(c) the circumstances in subsection (4) apply.

(3) The circumstances referred to in subsection (2)(b) are that the person and the mother of the child concerned have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and the person have lived with the child.

(4) The circumstances referred to in subsection (2)(c) are that the person and the mother of the child concerned—

(a) declare that they are the parents, undersection 5of the Act of 2015, of the child concerned,

(b) declare that they agree to the appointment of the person as a guardian of the child, and

(c) have made a statutory declaration to that effect in a form prescribed by the Minister.]

6C. F25[Power of court to appoint person other than parent as guardian

6C.—(1) The court may, on an application to it by a person who, not being a parent of the child, is eligible under subsection (2) to make such application, make an order appointing the person as guardian of a child.

(2) A person is eligible to make an application referred to in subsection (1) where he or she is over the age of 18 years and—

(a) on the date of the application, he or she—

(i) is married to or is in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the child, and

(ii) has shared with that parent responsibility for the child’s day-to-day care for a period of more than 2 years,

or

(b) on the date of the application—

(i) he or she has provided for the child’s day-to-day care for a continuous period of more than 12 months, and

(ii) the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.

(3) An application under subsection (1) shall be on notice to each person who is a parent or guardian of the child concerned.

(4) Where a person to whom subsection (2)(b) applies makes an application under subsection (1), the court shall direct that the Child and Family Agency be put on notice of the application, and have regard to the views (if any) of the Agency in deciding whether or not to make an order under subsection (1).

(5) Without prejudice to other provisions of this Act, the appointment under this section of a guardian shall not, unless the court otherwise orders, affect the prior appointment (whether under this or any other enactment) of any other person as guardian of the child.

(6) Subject to subsection (7), an order under subsection (1) shall not be made under this section without the consent of—

(a) each guardian of the child, and

(b) the applicant concerned.

(7) The court may make an order dispensing, for the purposes of this section, with the consent of a guardian of the child, if it is satisfied that the consent is unreasonably withheld and that it is in the best interests of the child to make such an order.

(8) In deciding whether or not to make an order under this section, the court shall—

(a) ensure that the child concerned, to the extent possible given his or her age and understanding, has the opportunity to make his or her views on the matter known, and have regard to those views, and

(b) have regard to the number of persons who are guardians of the child concerned, and the degree to which those persons are involved in the upbringing of the child.

(9) Where the court appoints under this section a person as guardian of a child, and one or both of the parents of that child are still living, the person so appointed shall enjoy the rights and responsibilities of a guardian specified in subsection (11) only—

(a) where the court expressly so orders, and

(b) to the extent specified in the order and in the case of the rights and responsibilities specified in any of paragraphs (a) to (e) of that subsection, subject to such limitations as are specified in the order.

(10) In deciding whether to exercise its power under subsection (9), the court shall have regard to—

(a) the relationship between the child concerned and the person appointed as guardian of the child, and

(b) the best interests of the child.

(11) The rights and responsibilities referred to in subsection (9) are the rights and responsibilities of a guardian:

(a) to decide on the child’s place of residence;

(b) to make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;

(c) to decide with whom the child is to live;

(d) to consent to medical, dental and other health related treatment for the child, in respect of which a guardian’s consent is required;

(e) under an enactment specified in subsection (12);

(f) to place the child for adoption, and consent to the adoption of the child, under theAdoption Act 2010.

(12) The enactments referred to in subsection (11)(e) are:

(a) section 2A(2) of theFirearms Act 1925;

(b)section 5of theProtection of Young Persons (Employment) Act 1996;

(c)sections 50and 50A of theInternational Criminal Court Act 2006;

(d)sections 79, 79A and 79B of theCriminal Justice (Mutual Assistance) Act 2008;

(e)section 14of thePassports Act 2008;

(f) theCriminal Justice (Forensic Evidence and DNA Database System) Act 2014.]

6D. F26[Rights and responsibilities equivalent to guardianship arising in another state

6D.—(1) Subject to this section, a person shall be the guardian of a child where he or she has—

(a) pursuant to aF27[decision, authentic instrument or agreement]that is entitled to recognition in accordance with the provisions of the Council Regulation or the Convention,

(b) pursuant to a measure that is entitled to recognition in accordance with the provisions of the Convention, or

(c) by operation of the law of a state other than the State as provided for in Chapter III of the Convention,

acquired, in respect of the child, rights and responsibilities that are equivalent to guardianship.

(2) The court may, in accordance with this Act and, where applicable, the Council Regulation and the Convention, remove, vary or enforce the rights and responsibilities of a guardian to whom subsection (1) applies.

(3) In this section—

F28["agreement" has the same meaning as it has in Article 2 of the Council Regulation;]

F28["authentic instrument" has the same meaning as it has in Article 2 of the Council Regulation;]