CHILDREN AND FAMILY RELATIONSHIPS ACT 2015

29. The Minister may require the operator of a DAHR facility to provide him or her with any information that he or she needs to determine whether the operator is in compliance with his or her obligations under section 28.

30. Authorised persons

30. (1) The Minister may appoint such and so many persons as he or she considers appropriate to be an authorised person or authorised persons for the purposes of ensuring compliance by the operator of a DAHR facility with his or her obligations under section 28.

• (2) A person appointed to be an authorised person under this section shall on his or her appointment be furnished by the Minister with a warrant of his or her appointment, and when exercising a power conferred by this Act shall, if requested by any person thereby affected, produce such warrant to that person for inspection.

31. Powers of authorised persons

31. (1) For the purposes of this Act, an authorised person may—

• (a) subject to subsection (3), enter and inspect at all reasonable times any premises—

• (i) which he or she has reasonable grounds for believing are being used as a DAHR facility, or

• (ii) at which he or she has reasonable grounds for believing records or documents relating to a DAHR facility are being kept,

• (b) at such premises inspect and take copies of, any books, records or other documents (including books, records or documents stored in non-legible form), or extracts therefrom, that he or she finds in the course of his or her inspection,

• (c) remove any such books, documents or records from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,

• (d) require—

• (i) the operator of the DAHR facility, or

• (ii) any person at the premises concerned, including the owner or person in charge of that place or premises,

to give the authorised person such information and assistance as the authorised person may reasonably require for the purposes of his or her functions under this Act,

• (e) require—

• (i) the operator of the DAHR facility, or

• (ii) any persons at the premises concerned, including the owner or person in charge of that place or premises,

to produce to the authorised person such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s possession or procurement, or under that person’s control, as he or she may reasonably require for the purposes of his or her functions under this Act, and

• (f) examine with regard to any matter under this Act any person whom the authorised person has reasonable grounds for believing to be—

• (i) the operator of a DAHR facility, or

• (ii) to be employed at a DAHR facility,

and require the person to answer such questions as the authorised person may ask relative to those matters and to make a declaration of the truth of the answers to those questions.

• (2) When performing a function under this Act, an authorised person may, subject to any warrant under subsection (4), be accompanied by such number of other authorised persons or members of the Garda Síochána as he or she considers appropriate.

• (3) An authorised person shall not enter a dwelling, other than—

• (a) with the consent of the occupier, or

• (b) pursuant to a warrant under subsection (4).

• (4) Upon the sworn information of an authorised person, a judge of the District Court may—

• (a) for the purposes of enabling an authorised person to carry out an inspection of premises that the authorised person has reasonable grounds for believing are being used as a DAHR facility, or

• (b) if satisfied that there are reasonable grounds for believing that information, books, documents or other records (including information, books, documents or records stored in non-legible form) required by an authorised person under this section is or are held in any place or premises,

issue a warrant authorising a named authorised person accompanied by such other authorised persons or members of the Garda Síochána as may be necessary, at any time or times, before the expiration of one month from the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised person under subsection (1).

• (5) A person commits an offence if he or she—

• (a) obstructs or interferes with an authorised person or a member of the Garda Síochána in the course of exercising a power conferred on him or her by this Act or a warrant under subsection (4) or impedes the exercise by the person or member, as the case may be, of such power, or

• (b) fails or refuses to comply with a request or requirement of, or to answer a question asked by, the person or member pursuant to this section, or in purported compliance with such request or requirement or in answer to such question gives information to the person or member that he or she knows to be false or misleading in any material respect.

• (6) Where an authorised person believes, upon reasonable grounds, that a person has committed an offence under this Act, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.

• (7) A statement or admission made by a person pursuant to a requirement under subsection (1)(d) or (f) shall not be admissible as evidence in proceedings brought against the person for an offence (other than an offence under subsection (5)).

• (8) A person who commits an offence under this section is liable—

• (a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, and

• (b) on conviction on indictment to a fine not exceeding €70,000 or imprisonment for a term not exceeding 2 years or both.

32. Enforcement of obligations of DAHR facility under section 28

32. (1) Where the Minister is satisfied that the operator of a DAHR facility is not in compliance with his or her obligations under section 28, the Minister may—

• (a) issue to the operator a direction requiring him or her to comply with such of the obligations as are specified in the direction, or

• (b) apply to the Circuit Court for an order under subsection (3).

• (2) Where the Minister is satisfied that the operator of DAHR facility to which he or she has issued a direction under subsection (1)(a) is not in compliance with that direction, the Minister may apply to the Circuit Court for an order under subsection (3).

• (3) The Circuit Court, on an application under subsection (1)(b) or (2), as the case may be, where satisfied that the operator of the DAHR facility concerned is not in compliance with his or her obligations under section 28, may make an order directing the operator to comply with those obligations.

• (4) Where the Minister is satisfied that the operator of a DAHR facility who is the subject of an order under subsection (3) is not in compliance with the order, the Minister may apply to the Circuit Court for an order under subsection (5).

• (5) The Circuit Court, on an application under subsection (4), where satisfied that the operator of the DAHR facility is not in compliance with an order under subsection (3), may make an order prohibiting or restricting the performance at the DAHR facility of DAHR procedures until such time as the operator of the DAHR facility satisfies the Court of his or her ability to comply with his or her obligations under section 28.

• (6) The operator of a DAHR facility may, within 21 days from the date of the order, appeal an order of the Circuit Court under subsection (5) to the High Court on a point of law and the determination of the High Court on such an appeal in respect of the point of law shall be final and conclusive.

33. National Donor-Conceived Person Register

33. (1) The Minister shall cause to be established and maintained a register to be known as the National Donor-Conceived Person Register.

• (2) The Minister shall make an entry in the Register in respect of each child born in the State as the result of a DAHR procedure.

• (3) An entry under subsection (2) shall contain the following particulars:

• (a) the name, date and place of birth and sex of the child;

• (b) the address of the child;

• (c) the information in respect of the parent of the child, as provided to the Minister under section 28;

• (d) the information in respect of the donor concerned, as provided to the Minister under section 28;

• (e) the date on which the DAHR procedure that resulted in the birth of the child was performed;

• (f) the name and address of the DAHR facility at which the DAHR procedure referred to in paragraph (e) was performed.

• (4) The Minister may prescribe the manner in which the information specified in subsection (3) is to be recorded on the Register.

34. Access to certain information from Register

34. (1) A donor-conceived child who has attained the age of 18 years, or the parent of a donor-conceived child who has not attained the age of 18 years, may request the Minister to provide him or her with the following information from the Register:

• (a) information other than the relevant donor’s name, date of birth and contact details, that is recorded on the Register in respect of the relevant donor;

• (b) the number of persons who have been born as a result of the use in a DAHR procedure of a gamete donated by the relevant donor, and the sex and year of birth of each of them.

• (2) A donor may request the Minister to provide him or her with information from the Register on the number of persons who have been born as a result of the use in a DAHR procedure of a gamete donated by the donor, and the sex and year of birth of each of them.

• (3) The Minister shall comply with a request made in accordance with subsection (1) or (2).

35. Information in respect of relevant donor to be provided to donor-conceived child

35. (1) A donor-conceived child who has attained the age of 18 years may request from the Minister the name, date of birth and contacts details of a relevant donor, as recorded in the Register.

• (2) Where the Minister receives a request under subsection (1), he or she shall send to the relevant donor a notice informing him or her that—

• (a) a request under subsection (1) has been made by the donor-conceived child, and

• (b) the Minister shall, 12 weeks from the date on which the notice is sent, release to the donor-conceived child the information requested, unless the relevant donor makes representations to the Minister setting out why the safety of the relevant donor or the donor-conceived child, or both, requires that the information not be released.

• (3) Where a relevant donor to whom subsection (2) applies makes representations to the Minister in accordance with that subsection, the Minister shall consider those representations, having regard to the right of the donor-conceived child to his or her identity, and—

• (a) if satisfied that sufficient reasons exist to withhold the information concerned from the donor-conceived child, shall refuse the request under subsection (1) and notify the donor-conceived child of the refusal and, in doing so, may inform him or her of the content of the representations of the relevant donor under subsection (2), or

• (b) if not so satisfied, shall release the information to the donor-conceived child concerned.

• (4) Where a relevant donor to whom subsection (2) applies does not make representations in accordance with that subsection, the Minister shall release the information to the donor-conceived child concerned.

• (5) A donor-conceived child may, within 21 days of receipt of the notification under subsection (3)(a), appeal to the Circuit Court against the Minister’s refusal of his or her request under subsection (1).

• (6) An appeal under subsection (5) shall—

• (a) be on notice to the Minister, and

• (b) be heard otherwise than in public.

36. Information in respect of donor-conceived child to be provided to relevant donor

36. (1) A donor-conceived child who has attained the age of 18 years may request the Minister to record on the Register a statement of his or her name, date of birth and contact details and confirming that he or she consents, on the making by the relevant donor of a request under subsection (2), to the release, in accordance with this section, to the relevant donor of that information.

• (2) A donor may request from the Minister the name, date of birth and contact details of a donor-conceived child who has attained the age of 18 years and in relation to whom he or she is a relevant donor.

• (3) Where the Minister receives a request under subsection (2), and a statement under subsection (1) by the donor-conceived child is recorded on the Register, the Minister shall send the donor-conceived child a notice informing him or her that—

• (a) a request under subsection (2) has been made by the relevant donor, and

• (b) unless he or she informs the Minister, within 12 weeks from the date on which the notice is sent, that he or she objects to the release to the relevant donor of the information contained in the statement under subsection (1), the Minister shall release that information to the relevant donor.

• (4) Where a donor-conceived child to whom a notice under subsection (3) has been sent does not, in accordance with that subsection, object to the release of the information concerned, the Minister shall release that information to the relevant donor concerned.

37. Information in respect of other persons to be provided to donor-conceived child

37. (1) A donor-conceived child who has attained the age of 18 years may request the Minister to record on the Register a statement of his or her name, date of birth and contact details and confirming that he or she consents, on the making by a person of a request under subsection (2) , to the release, in accordance with this section, to that person of that information.

• (2) A donor-conceived child who has attained the age of 18 years (in this section referred to as a “requesting person”) may request from the Minister the name, date of birth and contact details of a relevant person.

• (3) Where the Minister receives a request under subsection (2), and the donor-conceived child to whom the requested information relates has made a statement under subsection (1) that is recorded on the Register, the Minister shall send the donor- conceived child a notice informing him or her that—

• (a) a request under subsection (2) has been made by the requesting person, and

• (b) unless the donor-conceived child informs the Minister, within 12 weeks of the date of the sending of the notice, that he or she objects to the release to the requesting person of the information contained in the statement under subsection (1), the Minister shall release that information to the requesting person.

• (4) Where a donor-conceived child to whom a notice under subsection (3) has been sent does not, in accordance with that subsection, object to the release of the information concerned, the Minister shall release that information to the requesting person.

• (5) In this section, “relevant person” means, in relation to a requesting person, a donor-conceived child in relation to whom a relevant donor is also a relevant donor in relation to the requesting person.

38. Additional provision in relation to sections 33 to 37

38. (1) Where information relating to a person is, in accordance with sections 33 to 37, recorded on the Register, that person (or, in the case of a person who has not attained the age of 18 years, his or her parent or guardian) may request the Minister to update the information concerned.

• (2) The Minister shall not—

• (a) record on the Register a statement made by a person under section 36(1) or 37(1), or

• (b) release information to a person in response to a request under section 35, 36, or 37,

unless the Minister is satisfied that the person has received counselling on the implications of his or her recording such a statement or, as the case may be, receiving such information.

39. Interaction of Register and register of births

39. (1) Where the Minister makes an entry under section 33(2), he or she shall notify an tArd-Chláraitheoir that the Minister holds a record in the Register in respect of the child concerned.

• (2) Where an tArd-Chláraitheoir receives a notification under subsection (1), he or she shall note in the entry in the register of births in respect of the child that the child is a donor-conceived child and that additional information is available from the Register in relation to the child.

• (3) A note referred to in subsection (2) shall be released only to the child concerned, when he or she has attained the age of 18 years.

• (4) Where a person who has attained the age of 18 years applies for a copy of his or her birth certificate, and the register of births contains a note referred to in subsection (2), an tArd-Chláraitheoir shall, when issuing a copy of the birth certificate requested, inform the person that further information relating to him or her is available from the Register.

40. Jurisdiction (Parts 2 and 3)

40. (1) The jurisdiction conferred on the District Court by section 21 shall be exercised by—

• (a) a judge of the District Court who is assigned to the district court district in which an applicant under that section ordinarily resides or carries on any profession, business or occupation, or

• (b) where no applicant under that section ordinarily resides or carries on any profession, business or occupation in the State, a judge who is assigned to the Dublin Metropolitan District.

• (2) The jurisdiction conferred on the Circuit Court by sections 22 and 35 shall be exercised by—

• (a) the judge of the circuit in which an applicant under the section concerned ordinarily resides or carries on any profession, business or occupation, or

• (b) where no applicant under the section concerned ordinarily resides or carries on any profession, business or occupation in the State, by a judge of the court for the time being assigned to the Dublin Circuit.

• (3) The jurisdiction conferred on the Circuit Court by section 32 shall be exercised by the judge of the circuit in which the DAHR facility concerned is located.

41. Regulations (Parts 2 and 3)

41. (1) The Minister may make regulations prescribing any matter or thing which is referred to in Part 2 or this Part as prescribed or to be prescribed.

• (2) Regulations under Part 2 or this Part may contain such incidental, supplementary and consequential provisions as the Minister considers necessary or expedient for the purposes of the regulations.

• (3) Regulations made under Part 2 or this Part shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling those regulations is passed by either such House within the next 21 days on which that House has sat after the regulations are laid before it, the regulations shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

41A. F32[Delegation by Minister to AHRRA

41A. ...]

42. Service of documents (Parts 2 and 3)

42. (1) A notice or other document that is required to be served on or given to a person under Part 2 or this Part shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

• (a) by delivering it to the person;

• (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or

• (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

• (2) For the purpose of this section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

42A. F33[Savings - sections 34 to 38

42A. ...]

PART 4 Amendments to Guardianship of Infants Act 1964

43. Amendment of section 2 of Act of 1964

43. Section 2 of the Act of 1964 is amended—

• (a) in subsection (1) by—

• (i) the substitution of the following definition for the definition of “adoption order”:

“ ‘adoption order’ has the same meaning as it has in the Adoption Act 2010;”,

• (ii) the substitution of the following definition for the definition of “father”:

“ ‘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;”,

• (iii) the substitution of the following definition for the definition of “parent”:

“ ‘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;”,

and

• (iv) the insertion of the following definitions:

“ ‘Act of 2010’ means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

‘Act of 2015’ means the Children and Family Relationships Act 2015;

‘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;

‘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);

‘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;

‘Minister’ means the Minister for Justice and Equality;

‘relative’, in relation to a child, means a grandparent, brother, sister, uncle or aunt of the child;”,

• (b) in subsection (4) —

• (i) in paragraph (c), by the deletion of “child,” and substitution of “child, and”, and

• (ii) by the deletion of paragraph (d),

and

• (c) by the insertion after subsection (4) of the following:

• “(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.”.

44. References in enactments to guardians appointed under section 6C or 6E

44. The Act of 1964 is amended by the insertion of the following section after section 2:

“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.”.

45. Best interests of child to be paramount

45. The Act of 1964 is amended by the substitution of the following section for section 3:

“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.”.

46. Amendment of section 5(2) of Act of 1964

46. Section 5(2) of the Act of 1964 is amended by the substitution of “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”, for “at a rate greater than €150 per week towards the maintenance of a child”.

47. Amendment of section 6 of Act of 1964

47. Section 6 of the Act of 1964 is amended—

• (a) by the insertion of the following subsection after subsection (1):

• “(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.”,

• (b) by the insertion of the following subsection after subsection (3):

• “(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.”,

• (c) by the substitution of the following subsection for subsection (4):

• “(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.”,

and

• (d) by the insertion of the following subsection after subsection (4):

• “(5) In this section, ‘cohabiting couple’ has the same meaning as it has in the Adoption Act 2010.”.

48. Amendment of section 6A of Act of 1964

48. The Act of 1964 is amended by the substitution of the following section for section 6A:

“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.”.

49. Insertion in Act of 1964 of sections 6B to 6E

49. The Act of 1964 is amended by the insertion of the following sections after section 6A:

“Rights of certain parents to guardianship

6B. (1) A man who—

• (a) is, under section 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, under section 5 of 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, under section 5 of 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.

  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 the Adoption Act 2010.

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

  • (a) section 2A(2) of the Firearms Act 1925;

  • (b) section 5 of the Protection of Young Persons (Employment) Act 1996;

  • (c) sections 50 and 50A of the International Criminal Court Act 2006;

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

  • (e) section 14 of the Passports Act 2008;

  • (f) the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014.

  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 a judgment 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—

‘Convention’ means the Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, signed at the Hague on the 19th day of October, 1996;

‘Council Regulation’ means Council Regulation (EC) No. 2201/2003 of 27 November 2003 ¹ concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000;

‘judgment’ means a judgment as defined in Chapter I of Article 2 of the Council Regulation;

‘measure’ means a judgment or decision which is made in accordance with Chapter II of the Convention;

‘person’ includes a person, institution or other body.

Power of court to appoint temporary guardian

6E. (1) A qualifying guardian may nominate a person to be, in the event that the qualifying guardian becomes incapable through serious illness or injury of exercising the rights and responsibilities of guardianship, temporary guardian of the child concerned.

• (2) The nomination under subsection (1) of a person to be a temporary guardian shall—

  • (a) be in writing, in such form as may be prescribed, and

  • (b) specify such limitations (if any) as the qualifying guardian wishes to impose on the rights and responsibilities of guardianship that the temporary guardian, if appointed under this section, may exercise.

• (3) Where a qualifying guardian who has nominated a person under subsection (1), or a person so-nominated (in this section referred to as the ‘nominated person’), is of opinion that the qualifying guardian is incapable through serious illness or injury of exercising the rights and responsibilities of guardianship, that guardian or nominated person may apply to the court for an order under this section.

• (4) An application under subsection (3) shall be on notice to—

  • (a) each guardian of the child, including, where the application is made by the nominated person, the qualifying guardian concerned,

  • (b) where the application is made by the qualifying guardian concerned, the nominated person,

  • (c) a parent (if any) of the child who is not the child’s guardian, and

  • (d) the Child and Family Agency.

• (5) The court, on hearing an application under subsection (3), and having regard to the views (if any) of the persons referred to in subsection (4), may make an order appointing the nominated person to be a temporary guardian of the child concerned where, and only where, it is satisfied that—

  • (a) the qualifying guardian concerned is incapable through serious illness or injury of exercising the rights and responsibilities of guardianship,

  • (b) the nominated person is a fit and proper person to exercise the rights and responsibilities specified in subsection (8), and

  • (c) it is in the best interests of the child concerned for the nominated person to become the temporary guardian of the child.

• (6) An order under subsection (5) may impose—

  • (a) such limitations on the exercise by the temporary guardian of the rights and responsibilities of guardianship, and

  • (b) such conditions relating to the periodic review by the court of the appointment of the person as temporary guardian,

  as the court considers necessary in the best interests of the child concerned.

• (7) In imposing limitations or conditions under subsection (6), the court shall have regard to the limitations specified by the qualifying guardian under subsection (2).

• (8) Subject to the terms of the order concerned under subsection (5), a person appointed to be temporary guardian—

  • (a) may exercise the rights and responsibilities of guardianship in respect of the child concerned,

  • (b) shall take custody of the child concerned, and

  • (c) shall act jointly with any other guardian of the child concerned, including the qualifying guardian concerned.

• (9) A temporary guardian shall, and the qualifying guardian concerned may, where he or she is of opinion that the qualifying guardian is no longer incapable of exercising the rights and responsibilities of guardianship, apply to the court for an order under subsection (11).

• (10) An application under subsection (9) shall be on notice to—

  • (a) each guardian of the child concerned, including, where the application is made by a temporary guardian, the qualifying guardian concerned,

  • (b) any parent of the child who is not the child’s guardian, and

  • (c) the Child and Family Agency.

• (11) The court, on hearing an application under subsection (9), may make an order—

  • (a) confirming that the appointment of the temporary guardian shall continue in force,

  • (b) to the effect that the qualifying guardian is capable of exercising the rights and responsibilities of guardianship and revoking the appointment of the temporary guardian, or

  • (c) to the effect that the qualifying guardian shall have specified rights and responsibilities of guardianship and that the other rights and responsibilities of guardianship shall be exercised by the qualifying guardian and temporary guardian jointly.

• (12) An order under subsection (11) may—

  • (a) specify the period for which it shall remain in effect,

  • (b) impose such conditions relating to the periodic review by the court of the order as the court considers necessary in the best interests of the child concerned, and

  • (c) provide for such additional matters as the court considers necessary in the best interests of the child concerned.

• (13) In considering an application under subsection (3) or (9), the court shall 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 the court shall take account of those views.

Declaration that person is guardian

6F. (1) A person specified in subsection (2) may apply to the court for a declaration under this section that a person named in the application is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of a child named in the application (in this section referred to as the ‘child concerned’).

• (2) An application for a declaration under this section may be made, in relation to a child concerned, by—

  • (a) a guardian of the child concerned, or

  • (b) a person seeking a declaration that he or she is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of the child concerned.

• (3) An application for a declaration under this section shall not be made in relation to a child concerned other than—

  • (a) where the application is made by a person referred to in subsection (2)(a), on notice to each other guardian of the child and the person named in the application in relation to whom the declaration is sought, and

  • (b) where the application is made by a person referred to in subsection (2)(b), on notice to each guardian of the child.

• (4) The court may direct that notice of any application for a declaration under this section shall be given to such other persons as the court thinks fit and where notice is so given or where notice is given under subsection (3) to any person the court may, either of its own motion or on the application of that person or any party to the proceedings, order that that person shall be added as a party to those proceedings.

• (5) Where on an application for a declaration under this section it is proved on the balance of probabilities that a person named in the application is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of the child concerned, the court shall make the declaration accordingly.”.

50. Power of parents to appoint testamentary guardians

50. The Act of 1964 is amended by the substitution of the following section for section 7:

“Power of parents to appoint testamentary guardians

7. (1) On the death of the guardian (‘deceased guardian’) of a child, a guardian (‘surviving guardian’) surviving the deceased guardian, if any, shall be guardian of the child jointly, where applicable, with—

• (a) any other surviving guardian, and

• (b) any person or persons appointed testamentary guardian by the deceased guardian in accordance with this section.

• (2) A guardian who is—

  • (a) the parent of a child, or

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

  may by deed or will appoint a person or persons to be guardian (‘testamentary guardian’) of the child after his or her death.

• (3) On the death of a guardian referred to in subsection (2), the testamentary guardian appointed by the deceased guardian shall, subject to subsections (4) and (5), act jointly with a surviving guardian of the child so long as that surviving guardian remains alive.

• (4) Where subsection (3) applies and—

  • (a) a surviving guardian referred to in that subsection objects to a testamentary guardian acting jointly with him or her, or

  • (b) the testamentary guardian considers that a surviving guardian is unfit to have the custody of the child,

  the surviving guardian or the testamentary guardian, as the case may be, may apply to the court for an order under this section.

• (5) On an application under subsection (4), the court may make an order providing that—

  • (a) the appointment of the testamentary guardian is revoked and the surviving guardian shall remain guardian of the child concerned,

  • (b) the testamentary guardian shall act jointly with the surviving guardian, or

  • (c) the testamentary guardian shall act as guardian of the child to the exclusion, insofar as the court thinks proper, of the surviving guardian.

• (6) Where the court makes an order under subsection (5)(c), it may make all or any of the following orders:

  • (a) such order regarding the custody of the child and the right of access to the child of the surviving guardian as it thinks proper;

  • (b) an order that a parent of the child shall pay to the guardian or guardians, or any of them, towards the maintenance of the child such weekly or other periodical sum as, having regard to the means of the surviving parent, it considers reasonable.

• (7) An appointment of a testamentary guardian by deed may be revoked by a subsequent deed or by will.”.

51. Amendment of section 8 of Act of 1964

51. Section 8 of the Act of 1964 is amended by—

• (a) the substitution of the following subsection for subsection (4):

• “(4) A guardian—

  • (a) appointed by will or deed,

  • (b) appointed by order of the court,

  • (c) holding office by virtue of the circumstances set out in subsection (4) or (4A) of section 2, or subsection (3) or (4) of section 6B, or

  • (d) holding office by virtue of section 6D, and subject to subsection (2) of that section,

  may be removed from office only by the court.”,

and

• (b) the insertion of the following subsections after subsection (5):

• “(6) The court may, on application by a guardian or a proposed guardian make an order removing from office a guardian (including a guardian who is the applicant)—

  • (a) appointed pursuant to section 6A, 6C, 7 or subsection (1) or (2), or

  • (b) who holds office by virtue of the circumstances set out in subsection (4) or (4A) of section 2, or subsection (3) or (4) of section 6B, or

  • (c) who holds office by virtue of section 6D.

• (7) The court shall remove a guardian from office under subsection (6) only where—

  • (a) there is another guardian in place or about to be appointed,

  • (b) the court is satisfied that it is in the best interests of the child that the guardian be removed from office,

  • (c) for substantial reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so, and

  • (d) the guardian who is to be removed from office—

    • (i) consents to the removal,

    • (ii) is unable or unwilling to exercise the powers, responsibilities and entitlements of guardianship in respect of the child, or

    • (iii) has failed in his or her duty towards the child to such extent that the safety or welfare of the child is likely to be prejudicially affected if he or she is not removed from office.”.

52. Insertion of section 8A in Act of 1964

52. The Act of 1964 is amended by the insertion of the following section after section 8:

“Duration of guardianship

8A. Subject to section 8, a person continues to be a guardian of a child until whichever of the following occurs first—

• (a) the guardian dies,

• (b) the child attains the age of 18 years, or

• (c) the child marries.”.

53. Amendment of section 11 of Act of 1964

53. Section 11 of the Act of 1964 is amended by—

• (a) the substitution of the following subsection for subsection (2):

• “(2) The court may by an order under this section—

  • (a) give such directions as it thinks proper regarding the custody of the child and the right of access to the child of each of his or her parents, and

  • (b) order a parent of the child to pay towards the maintenance of the child such weekly or other periodical sum as, having regard to the means of the parent, the court considers reasonable.”,

• (b) the substitution of the following subsection for subsection (4):

• “(4) In the case of a child whose parents have not married each other—

  • (a) a reference in subsection (2)(b) to a parent of that child shall be construed as including a parent who is not a guardian of the child, and

  • (b) the right to make an application under this section regarding the custody of the child and the right of access thereto of each of his or her parents shall extend to a parent who is not a guardian of the child, and for this purpose references in this section to the parent of a child shall be construed as including such a parent.”,

and

• (c) the insertion of the following subsection after subsection (9):

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

54. Amendment of section 11A of Act of 1964

54. Section 11A of the Act of 1964 is amended by the substitution of “parents” for “father and mother”.

55. Amendment of section 11B of Act of 1964

55. Section 11B of the Act of 1964 is amended—

• (a) in subsection (1), by the substitution of the following paragraph for paragraph (b):

• “(b) is a person with whom the child resides or has formerly resided,”,

• (b) by the deletion of subsection (2), and

• (c) in subsection (3) —

• (i) in paragraph (c), by the substitution of “guardians,” for “guardians.”, and

• (ii) by the insertion of the following paragraphs after paragraph (c):

• “(d) the views of the child, and

• (e) whether it is necessary to make an order to facilitate the access of the person to the child.”.

56. Amendment of section 11D of Act of 1964

56. Section 11D of the Act of 1964 is amended by the substitution of “each of his or her parents” for “both his or her father and mother”.

57. Relatives and certain persons may apply for custody of child

57. The Act of 1964 is amended by the insertion of the following section after section 11D:

“Relatives and certain persons may apply for custody of child

11E. (1) The court may, on application by—

• (a) a person who is a relative of a child, or

• (b) a person to whom subsection (2) applies,

make an order giving that person custody of the child.

• (2) This subsection applies to a person with whom the child concerned resides where the person—

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

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

    or

  • (b) (i) is an adult who has, for a continuous period of more than 12 months, provided for the child’s day-to-day care, 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) Subject to subsection (4), the court shall not make an order under subsection (1) without the consent of each guardian of the child.

• (4) The court may make an order dispensing with the consent of a guardian if satisfied it is in the best interests of the child to do so.

• (5) The court, in making an order in respect of a person to whom subsection (2) applies, may grant custody of a child to the child’s parent and such person jointly and, in doing so, shall—

  • (a) where these are not agreed as between the person and the parent of the child, specify the residential arrangements that are to apply in respect of the child, and

  • (b) where the residential arrangements that are to apply in respect of the child provide that, for any period, the child will not reside with one of his or her parents, specify the contact (if any) that is to take place between the child and that parent during that period.”.

58. Additional powers of court in relation to applications under this Act

58. The Act of 1964 is amended by the insertion of the following section after section 12:

“Additional powers of court in relation to applications under this Act

12A. (1) In making any order under this Act, the court may impose such conditions as it considers to be necessary in the best interests of the child.

• (2) The court may, where it considers it necessary and appropriate in order to protect the best interests of the child, including his or her right to the care and custody of both of his or her parents, impose conditions in relation to the holding of the passport of a child.

• (3) The conditions referred to in subsection (2) include that a passport may be retained by the court or held by a specified person and may be released subject to such further conditions as may be determined by the court.

• (4) Where, in any proceedings pursuant to this Part, it appears to the court that it may be appropriate for a care order or a supervision order to be made with respect to a child concerned in the proceedings, the court may, of its own motion, or on the application of any person, adjourn the proceedings and make such directions under section 20 of the Child Care Act 1991 as the court may deem appropriate.”.

59. Amendment of section 18(2) of Act of 1964

59. Section 18(2) of the Act of 1964 is amended by the substitution of “parents” for “father and mother”.

60. Insertion in Act of 1964 of sections 18A to 18D

60. The Act of 1964 is amended by the insertion of the following sections after section 18:

“Enforcement orders

18A. (1) A guardian or parent of a child who has been—

• (a) granted, by order of the court made under this Act, custody of, or access to, that child, and

• (b) unreasonably denied such custody or access by another guardian or parent of that child,

may apply to the court for an order (‘enforcement order’) under this section.

• (2) An application under subsection (1) shall be on notice to each guardian and parent of the child concerned.

• (3) Subject to subsection (4), the court, on an application under subsection (1), shall make an enforcement order only where it is satisfied that—

  • (a) the applicant was unreasonably denied custody or access, as the case may be, by the other parent or guardian,

  • (b) it is in the best interests of the child to do so, and

  • (c) it is otherwise appropriate in the circumstances of the case to do so.

• (4) An enforcement order may provide for one or more than one of the following:

  • (a) that the applicant be granted access to the child for such periods of time (being periods of time in addition to the periods of time during which the applicant has access to the child under the order referred to in subsection (1)(a)) that the court may consider necessary in order to allow any adverse effects on the relationship between the applicant and child caused by the denial referred to in subsection (1) to be addressed;

  • (b) that the respondent reimburse the applicant for any necessary expenses actually incurred by the applicant in attempting to exercise his or her right under the order referred to in subsection (1)(a) to custody of, or access to, the child;

  • (c) that the respondent or the applicant, or both, in order to ensure future compliance by them with the order referred to in subsection (1)(a) do one or more than one of the following:

    • (i) attend, either individually or together, a parenting programme;

    • (ii) avail, either individually or together, of family counselling;

    • (iii) receive information, in such manner and in such form as the court may determine on the possibility of their availing of mediation as a means of resolving disputes between them, that adversely affect their parenting capacities, between the applicant and respondent.

• (5) An enforcement order shall not contain a provision referred to in subsection (4)(a) unless—

  • (a) the child, to the extent possible given his or her age and understanding, has had the opportunity to make his or her views on the matter known to the court, and

  • (b) the court has taken the views (if any) of the child referred to in paragraph (a) into account in making the order.

• (6) Where the court, on an application under subsection (1), is of the opinion that the denial of custody or access was reasonable in the particular circumstances, it may—

  • (a) refuse to make an enforcement order, or

  • (b) make such enforcement order that it considers appropriate in the circumstances.

• (7) This section is without prejudice to the law as to contempt of court.

• (8) In this section—

‘family counselling’ means a service provided by a family counsellor in which he or she assists a person or persons—

- (a) to resolve or better cope with personal and interpersonal problems or difficulties relating to, as the case may be, his, her or their marriage, civil partnership, cohabitation or parenting of a child, or

- (b) to resolve or better cope with personal and interpersonal problems or difficulties, or issues relating to the care of children, where the person or persons is or are affected, or likely to be affected, by separation, divorce, the dissolution of a civil partnership or the ending of a relationship of cohabitation;

  ‘family counsellor’ means a person who has the requisite skill and judgment to provide family counselling;

  ‘parenting programme’ means a programme that is designed to assist (including by the provision of counselling services or the teaching of techniques to resolve disputes) a person in resolving problems that adversely affect the carrying out of his or her parenting responsibilities.

  **Person presumed to have seen order of court**

  **18B.** A person shall be deemed to have been given or shown a copy of an order made under this Act if that person was present at the sitting of the court at which such order was made.

  **Power of court to vary or terminate custody or access enforcement order**

  **18C.** (1) The court may, on application by a person granted by order of the court made under this Act, custody of, or access to a child, make an order varying or terminating an enforcement order or any part of that order.

• (2) The court may, in proceedings to vary or terminate a custody or access order, in those proceedings vary or terminate an enforcement order that relates to that custody or access order.

Enforcement of custody or access order

18D. (1) Where a guardian or parent of a child—

- (a) has been granted, by order of the court made under this Act, custody of, or access to that child, and

- (b) fails, without reasonable notice to another guardian or parent of the child, to exercise the right concerned,

  the other parent or guardian of the child may apply to the court for an order requiring the first-mentioned guardian or parent to reimburse to the second-mentioned guardian or parent any necessary expenses actually incurred by that guardian or parent as a result of the failure of the first-mentioned guardian or parent to exercise that right.

• (2) In this section, and section 18A, ‘necessary expenses’ include the following:

  • (a) travel expenses;

  • (b) lost remuneration;

  • (c) any other expenses the court may allow.”.

61. Amendment of section 23 of Act of 1964

61. Section 23 of the Act of 1964 is amended by—

• (a) designating the section as subsection (1), and

• (b) by inserting the following subsections after subsection (1):

• “(2) Subsection (1) does not apply to—

  • (a) an admission by a party that indicates a child has been abused or is at risk of abuse, or

  • (b) a disclosure by a child that indicates the child has been abused or is at risk of abuse.

• (3) In this section, ‘abuse’ means physical, sexual or emotional abuse.”.

62. Amendment of section 27 of Act of 1964

62. Section 27 of the Act of 1964 is amended in subsection (1) by the substitution of “section 6A, 6C, 6E, 11, 11B or 11E” for “section 6A, 11 or 11B”.

63. Insertion of Part V in Act of 1964

63. The Act of 1964 is amended by the insertion of the following after Part IV: