Children Act 1997

PART I PRELIMINARY AND GENERAL

1 Short title, commencement and collective citation.

1.—(1) This Act may be cited as the Children Act, 1997.

(2) This Act, except section 11 (insofar as it inserts sections 20,21, 22, 26, 28 and 29 into the Act of 1964) and Part III shall come into operation one month after the date of its passing.

(3) Section 11 (insofar as it inserts sections 20, 21, 22, 26, 28 and 29 into the Act of 1964) and Part III shall come into operation on such day or days as may be fixed by the Minister by order or orders, either generally or with reference to a particular purpose or provision, and different days may be so fixed for different purposes and different provisions.

(4) An order under subsection (3) relating to section 11, insofar as that order relates to section 47(1)(b) of the Family Law Act, 1995, shall not be made without the consent of the Minister for Health and Children.

(5) The Act of 1964 (as amended by the Succession Act, 1965, the Courts Act, 1981, the Age of Majority Act, 1985, the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, the Child Care Act, 1991, and the Courts Act, 1991) and this Act (except Part III) may be cited together as the Guardianship of Children Acts, 1964 to 1997, and shall be construed together as one Act.

2 Interpretation.

2.—(1) In this Act—

“the Act of 1964” means the Guardianship of Infants Act, 1964;

“the Minister” means the Minister for Justice, Equality and Law Reform.

(2) 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.

3 Expenses.

3.—Any expenses incurred by the Minister, the Minister for Health and Children or the Minister for Social, Community and Family Affairs in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II GUARDIANSHIP, CUSTODY AND MAINTENANCE

4 Rights of certain fathers to guardianship.

4.—The Act of 1964 is hereby amended by the substitution for section 2 (inserted by the Status of Children Act, 1987) of the following section:

“Interpretation.

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

‘the Act of 1987’ means the Status of Children Act, 1987;

‘adoption order’ means—

(a) an adoption order made under the Adoption Acts, 1952 to 1991, or

(b) an order made or decree granted outside the State, providing for the adoption of a person, which is recognised by virtue of the law for the time being in force in the State,

and for the time being in force;

‘child’ means a person who has not attained full age;

‘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 either—

(a) an order under section 6A (inserted by the Act of 1987) is in force in respect of that child,

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

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

‘maintenance’ includes education;

‘mother’ includes a female adopter under an adoption order;

‘parent’ means a father or mother as defined by this subsection;

‘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 the child,

(d) have entered into arrangements regarding the custody of and, as the case may be, access to the child, and

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

(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.”.

5 Jurisdiction in guardianship matters.

5.—Section 6 of the Act of 1964 is hereby amended by the substitution for subsection (4) (substituted by the Status of Children Act, 1987) of the following subsection:

“(4) Where the mother of a child has not married the child's father, she, while living, shall alone be the guardian of the child, unless the circumstances set out in section 2(4) apply or there is in force an order under section 6A (inserted by the Act of 1987) or a guardian has otherwise been appointed in accordance with this Act.”.

6 Power of court to appoint certain fathers as guardians.

6.—Section 6A (inserted by the Status of Children Act, 1987) of the Act of 1964 is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) Where the father and mother of a child have not married each other and have not made a declaration under section 2(4), or where the father was a guardian of the child by virtue of a declaration under section 2(4) but was removed from office under section 8(4), the court may, on the application of the father, by order, appoint the father to be a guardian of the child.”, and

(b) by the deletion of subsection (3).

7 Appointment and removal of guardians by court.

7.—Section 8 of the Act of 1964 is hereby amended by the substitution for subsection (4) of the following subsection:

“(4) A guardian appointed by will or deed or order of court, or holding office by virtue of the circumstances set out in section 2(4) (inserted by the Children Act, 1997) applying to him, may be removed from office only by the court.”.

8 Age of dependency of child.

8.—Section 11 of the Act of 1964 is hereby amended by the substitution for subsection (5) (as inserted by the Age of Majority Act, 1985) of the following subsections:

“(5) A reference in subsection (2)(b) to a child shall include a reference to a person who—

(a) has not attained the age of 18 years, or—

(b) has attained the age of 18 years and is or will be, or if any order were made under this Act providing for payment of maintenance for the benefit of the person, would be, receiving full-time education or instruction at a university, college, school or other educational establishment, and who has not attained the age of 23 years.

(6) Subsection (2) (b) shall apply to and in relation to a person who has attained the age of 18 years and has a mental or physical disability to such extent that it is not reasonably possible for the person to maintain himself or herself fully, as it applies to a child.”.

9 New sections.

9.—The Act of 1964 is hereby amended by the insertion after section 11 of the following sections:

“Custody may be granted to father and mother jointly.

11 A.—For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if it thinks it appropriate, grant custody of a child to the child's father and mother jointly.

Relatives may apply for access to child.

11B.—(1) Any person who—

(a) is a relative of a child, or,

(b) has acted in loco parentis to a child,

and to whom section 11 does not apply may, subject to subsection (3), apply to the court for an order giving that person access to the child on such terms and conditions as the court may order.

(2) A person may not make an application under subsection (1) unless the person has first applied for and has been granted by the court leave to make the application.

(3) In deciding whether to grant leave under subsection (1), the court shall have regard to all the circumstances, including in particular—

(a) the applicant's connection with the child,

(b) the risk, if any, of the application disrupting the child's life to the extent that the child would be harmed by it,

(c) the wishes of the child's guardians.

(4) In this section, a relative of a child who is the subject of an adoption order includes—

(a) a relative of the child's adoptive parents,

(b) the adoptive parents of the child's parents, or

(c) a relative of the adoptive parents of the child's parents.

Operation of order not to be stayed pending appeal unless so ordered.

11C.—The operation of an order under this Act shall not be stayed pending the outcome of an appeal against the order unless the court that made the order or the court to which the appeal is brought directs otherwise.

Provision relating to orders under sections 6A, 11, 14 and 16.

11D.—In considering whether to make an order under section 6A, 11, 14 or 16 the court shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.”.

10 Amendment of section 17 of Act of 1964.

10.—Section 17 of the Act of 1964 is hereby amended by the deletion of subsection (2).

11 Insertion of new Part IV (Safeguarding Interests of Children).

11.—The Act of 1964 is hereby amended by the insertion after Part III of the following Part:

“PART IV

Definitions.

19.—In this Part—

‘the Act of 1976’ means the Family Law (Maintenance of Spouses and Children) Act, 1976;

‘the Act of 1989’ means the Judicial Separation and Family Law Reform Act, 1989;

‘the Act of 1995’ means the Family Law Act, 1995;

‘the Act of 1996’ means the Family Law (Divorce) Act, 1996.

Safeguards to ensure applicant's awareness of alternatives to custody, access and guardianship proceedings and to assist attempts at agreement.

20.—(1) In this section ‘the applicant’ means a person who has applied, is applying or proposes to apply to the court for directions under section 6A, 11 or 11B.

(2) If a solicitor is acting for the applicant, the solicitor shall, before the institution of proceedings under section 6A, 11 or 11B, discuss with the applicant the possibility of the applicant—

(a) engaging in counselling to assist in reaching an agreement with the respondent about the custody of the child, the right of access to the child or any other question affecting the welfare of the child and give to the applicant the name and address of persons qualified to give counselling on the matter,

(b) engaging in mediation to help to effect an agreement between the applicant and the respondent about the custody of the child, the right of access to the child or any question affecting the welfare of the child, and give to the applicant the name and addresses of persons qualified to provide an appropriate mediation service, and

(c) where appropriate, effecting a deed or agreement in writing executed or made by the applicant and the respondent and providing for the custody of the child, the right of access to the child or any question affecting the welfare of the child.

(3) If a solicitor is acting for the applicant—

(a) the original documents by which the proceedings under section 6A, 11 or 11B are instituted shall be accompanied by a certificate signed by the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions referred to in subsection (2),

(b) if the solicitor has complied with paragraph (a), any copy of the original document served on any person or left in an office of the court shall be accompanied by a copy of that certificate.

(4) The solicitor shall be deemed to have complied with subsection (3) in relation to the requirement of a certificate where the application under section 6A, 11 or 11B is made in proceedings for the grant of—

(a) a decree of judicial separation under the Act of 1989 and section 5(2) of that Act has been complied with by the solicitor, or

(b) a decree of divorce under the Act of 1996 and section 6(4) of that Act has been complied with by the solicitor.

Safeguards to ensure respondent's awareness of alternatives to custody, access and guardianship proceedings and to assist attempts at agreement.

21.—(1) In this section ‘the respondent’ means a respondent in proceedings in the court under section 6A, 11 or 11B.

(2) If a solicitor is acting for the respondent, the solicitor shall, as soon as practicable after receiving instructions from the respondent in relation to proceedings under section 6A, 11 or 11B discuss with the respondent the possibility of the respondent—

(a) engaging in counselling to assist in reaching an agreement with the applicant about the custody of the child, the right of access to the child or any other question affecting the welfare of the child and give to the respondent the name and addresses of persons qualified to give counselling on the matter,

(b) engaging in mediation to help to effect an agreement between the respondent and the applicant about the custody of the child, the right of access to the child or any question affecting the welfare of the child and where appropriate give to the respondent the name and addresses of persons qualified to provide an appropriate mediation service, and

(c) where appropriate, effecting a deed or agreement in writing executed or made by the respondent and the applicant and providing for the custody of the child, the right of access to the child or any question affecting the welfare of the child.

(3) If a solicitor is acting for the respondent—

(a) the memorandum or other documents delivered to the appropriate officer of the court for the purpose of the entry of an appearance by the respondent in proceedings under section 6A, 11 or 11B shall be accompanied by a certificate signed by the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions referred to in subsection (2),

(b) if the solicitor has complied with paragraph (a), any copy of the original document given or sent to the applicant or his solicitor shall be accompanied by a copy of that certificate.

(4) The solicitor shall be deemed to have complied with subsection (3) in relation to the requirement of a certificate where the application under section 6A, 11 or 11B is made in proceedings for the grant of—

(a) a decree of judicial separation under the Act of 1989 and section 6(2) of that Act has been complied with by the solicitor, or

(b) a decree of divorce under the Act of 1996 and section 7(4) of that Act has been complied with by the solicitor.

Adjournment of proceedings to assist agreement on custody or guardianship of or access to child.

22.—(1) Where, in proceedings under section 6A, 11 or 11B it appears to the court that agreement between the parties on the subject matter of the proceedings may be effected, it may adjourn or further adjourn the proceedings for the purpose of enabling attempts to be made by the parties, if they wish, to reach agreement, with or without the assistance of a third party, on some or all of the issues which are in dispute.

(2) If proceedings are adjourned pursuant to subsection (1), any party may at any time request that the hearing of the proceedings be resumed as soon as practicable and, if such a request is made, the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.

(3) The powers conferred by this section are additional to any other power of the court to adjourn proceedings.

(4) Where the court adjourns proceedings under this section, it may, at its discretion, advise the parties concerned to seek the assistance of a third party in relation to the effecting of an agreement between them on all or any of its terms.

Non-admissibility as evidence of certain communications relating to agreement.