Guardianship of Infants Act 1964


Number 7 of 1964


GUARDIANSHIP OF INFANTS ACT 1964

REVISED

Updated to 2 November 2017


This Revised Act is an administrative consolidation of the Guardianship of Infants Act 1964. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including Mediation Act 2017 (27/2017), enacted 2 October 2017, and all statutory instruments up to and including Children and Family Relationships Act 2015 (Commencement) (No. 2) Order 2017 (S.I. No. 474 of 2017), made 2 November 2017, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 7 of 1964


GUARDIANSHIP OF INFANTS ACT 1964

REVISED

Updated to 2 November 2017


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was passed.

Related legislation

Guardianship of Children Acts 1964 to 1997: this Act is one of a group of Acts included in this collective citation, to be construed together as one ( Children Act 1997 (40/1997), s. 1(5)). The Acts in this group are:

Guardianship of Infants Act 1964 (7/1964)

Children Act 1997 (40/1997), except Part III

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations.

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1993, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

Mediation Act 2017 (27/2017)

Marriage Act 2015 (35/2015)

Children and Family Relationships Act 2015 (9/2015)

Child and Family Agency Act 2013 (40/2013)

Adoption Act 2010 (21/2010)

Health Act 2004 (42/2004)

Protection of Children (Hague Convention) Act 2000 (37/2000)

Children Act 1997 (40/1997)

Family Law (Divorce) Act 1996 (33/1996)

Family Law Act 1995 (26/1995)

Child Care Act 1991 (17/1991)

Judicial Separation and Family Law Reform Act 1989 (6/1989)

Status of Children Act 1987 (26/1987)

Courts (No. 2) Act 1986 (26/1986)

Age of Majority Act 1985 (2/1985)

Courts Act 1981 (11/1981)

Health Act 1970 (1/1970)

Succession Act 1965 (27/1965)

All Acts up to and including Mediation Act 2017 (27/2017), enacted 2 October 2017, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

Supreme Court, Court of Appeal and High Court (Fees) Order 2014 (S.I. No. 492 of 2014)

Circuit Court (Fees) (No. 2) Order 2014 (S.I. No. 491 of 2014)

Supreme Court and High Court (Fees) Order 2014 (S.I. No. 24 of 2014)

Circuit Court (Fees) Order 2014 (S.I. No. 23 of 2014)

District Court (Fees) Order 2014 (S.I. No. 22 of 2014)

Supreme Court and High Court (Fees) Order 2013 (S.I. No. 466 of 2013)

District Court (Fees) Order 2013 (S.I. No. 241 of 2013)

Circuit Court (Fees) Order 2013 (S.I. No. 240 of 2013)

Supreme Court and High Court (Fees) Order 2013 (S.I. No. 239 of 2013)

Supreme Court and High Court (Fees) Order 2012 (S.I. No. 110 of 2012)

Circuit Court (Fees) Order 2012 (S.I. No. 109 of 2012)

District Court (Fees) Order 2012 (S.I. No. 108 of 2012)

District Court (Fees) Order 2011 (S. I. No. 408 of 2011)

Circuit Court (Fees) Order 2011 (S.I. No. 407 of 2011)

Supreme Court and High Court (Fees) Order 2011 (S.I. No. 406 of 2011)

Guardianship of Infants (Statutory Declaration) Regulations 1998 (S.I. No. 5 of 1998)

All statutory instruments up to and including Children and Family Relationships Act 2015 (Commencement) (No. 2) Order 2017 (S.I. No. 474 of 2017), made 2 November 2017, were considered in the preparation of this revision.


Number 7 of 1964.


GUARDIANSHIP OF INFANTS ACT 1964

REVISED

Updated to 2 November 2017


ARRANGEMENT OF SECTIONS

Part I

Preliminary and General

Section

1.

Short title.

2.

Definitions.

2A.

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

3.

Welfare of child to be paramount.

3A.

Proof of paternity in certain proceedings.

4.

Repeals.

Part II

Guardianship

5.

Jurisdiction in guardianship matters.

6.

Rights of parents to guardianship.

6A.

Power of court to appoint parent as guardian.

6B.

Right of certain parents to guardianship.

6C.

Power of court to appoint person other than parent as guardian.

6D.

Rights and responsibilities equivalent to guardianship arising in another state.

6E.

Power of court to appoint temporary guardian.

6F.

Declaration that person is guardian.

7.

Power of parents to appoint testamentary guardians.

8.

Appointment and removal of guardians by court.

8A.

Duration of guardianship.

9.

Provisions where two or more guardians appointed.

10.

Powers and duties of guardians.

11.

Applications to court.

11A.

Custody may be granted to father and mother jointly.

11B.

Relatives may apply for access to child.

11C.

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

11D.

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

11E.

Relatives and certain persons may apply for custody of child.

12.

Variation and discharge of court orders.

12A.

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

Part III

Enforcement of Right of Custody

13.

Definitions for Part III.

14.

Power of court as to production of child.

15.

Power to court to order repayment of costs of bringing up child.

16.

Court in making order to have regard to conduct of parent.

17.

Power of court as to child’s religious education.

18.

Custody where parents are separated.

18A.

Enforcement orders.

18B.

Person presumed to have seen order of court.

18C.

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

18D.

Enforcement of custody or access order.

Part IV

Safeguarding Interests of Children

19.

Definitions for Part IV.

20.

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

21.

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

22.

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

23.

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

24.

Orders in respect of custody or access.

25.

Wishes of child.

26.

Social reports.

27.

Power to proceed in absence of child.

28.

Appointment of guardian ad litem for a child and provision for separate representation.

29.

Cost of mediation and counseling services.

30.

Jurisdiction.

Part V

Best Interests of Child

31.

Determination by court of best interests of child.

32.

Power of court to maker certain orders.

SCHEDULE


Acts Referred to

Adoption Act, 1952

1952, No. 25.

Courts (Supplemental Provisions) Act, 1961

1961, No. 39.

Guardianship of Infants Act, 1886

1886, c. 27.

Wills Act, 1837

1837, c. 26.

Health Act, 1947

1947, No. 28.

Health Authorities Act, 1960

1960, No. 9.

Health Act, 1953

1953, No. 26.


Number 7 of 1964.


GUARDIANSHIP OF INFANTS ACT 1964

REVISED

Updated to 2 November 2017


AN ACT TO CONSOLIDATE WITH AMENDMENTS THE ENACTMENTS RELATING TO THE CUSTODY AND GUARDIANSHIP OF INFANTS. [25 th March, 1964.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

Annotations:

Modifications (not altering text):

C1

Jurisdiction to award costs under Act provided (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 43, commenced as per s. 1(2).

Cost of mediation and counselling services.

43.— The cost of any mediation services or counselling services provided for a spouse who is or becomes a party to proceedings under this Act, the Act of 1964 or the Act of 1989 or for a dependent member of the family of such a spouse shall be in the discretion of the court concerned.

C2

Power to order report under Act provided (1.08.1996) by Family Law Act 1995 (26/1995), s. 47(1) and (6)(a), S.I. No. 46 of 1996.

Social reports in family law proceedings.

47.—(1) In proceedings to which this section applies, the court may, of its own motion or on application to it in that behalf by a party to the proceedings, by order give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from —

(a) such probation and welfare officer (within the meaning of the Child Abduction and Enforcement of Custody Orders Act, 1991) as the Minister for Justice may nominate,

(b) such person nominated by a health board specified in the order as that board may nominate, being a person who, in the opinion of that board, is suitably qualified for the purpose, or

(c) any other person specified in the order.

...

(6) Subsection (1) applies to proceedings —

(a) under the Act of 1964,

...

C3

Enforcement of orders under Act (12.07.1986) provided by Courts (No. 2) Act 1986 (26/1986), s. 5, commenced on enactment; as amended (9.01.1998) by Children Act 1997 (40/1997), s. 14(a) and (b), commenced as per s. 1(2). The Fines Act 2010 (8/2010). ss. 3 and 6, table, ref. no. 1 applies to the fine in subs. (2).

Enforcement of certain orders under Guardianship of Infants Act 1964.

5.—(1) In this section “the Act of 1964” means the Guardianship of Infants Act, 1964, as amended by the Courts Act, 1981, [the Age of Majority Act, 1985, the Status of Children Act, 1987, and the Children Act, 1997 ].

(2) Without prejudice to the law as to contempt of court, where the District Court has made an order under [section 7, 11 or 11B ] of the Act of 1964 containing a direction regarding—

(a) the custody of an infant, or

(b) the right of access to an infant,

any person having the actual custody of the infant who, having been given or shown a copy of the order and—

(i) having been required, by or on behalf of a person to whom the custody of the infant is committed by the direction, to give up the infant to that person, or

(ii) having been required, by or on behalf of a person entitled to access to the infant in accordance with the direction, to allow that person to have such access,

fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [£1,500 ] or, at the discretion of the Court, to imprisonment for a term not exceeding [twelve months ] or to both such fine and such imprisonment.

...

C4

Construction of certain references to 21 years not affected (1.03.1985) by Age of Majority Act 1985 (2/1985), s. 2(4), commenced as per s. 9(2).

Reduction of age of majority.

2.— ...

(4) (a) This section does not affect the construction of any reference to the age of twenty-one years, or of any word or expression to which subsection (2) relates, in any statutory provision to which this subsection applies.

(b) This subsection applies to— ...

(viii) any provision of the Illegitimate Children (Affiliation Orders) Act, 1930, the Guardianship of Infants Act, 1964, or the Family Law (Maintenance of Spouses and Children) Act, 1976, that provides for payments to be made for maintenance or support of children up to the age of twenty-one years,

...

C5

Jurisdiction to make orders under Act restricted (12.05.1982) by Courts Act 1981 (11/1981), s. 15(2), commenced as per s. 33(3).

Jurisdiction under Guardianship of Infants Act 1964.

15. — ...

(2) (a) Subject to paragraph (c) of this subsection, nothing in the Guardianship of Infants Act, 1964, as amended by subsection (1) of this section, shall be construed as conferring on the District Court jurisdiction to make an order under Part II or III of that Act in relation to which the High Court or the Circuit Court (except on appeal from the District Court) has made an order under the said Part II or the said Part III.

(b) Subject to paragraph (c) of this subsection, nothing in the Guardianship of Infants Act 1964, as amended by subsection (1) of this section, shall be construed as conferring on the Circuit Court jurisdiction to make an order under Part II or III of that Act in relation to which the High Court has made an order under the said Part II or III.

(c) The District Court and the Circuit Court may vary or revoke an order made by the High Court under the said Part II or the said Part III before the commencement of this section if—

(i) the circumstances to which the order of the High Court related have changed other than by reason of such commencement, and

(ii) in the case of a variation or revocation of such an order by the District Court, the provisions of the order would have been within the jurisdiction of that Court if this section had been in operation at the time of the making of the order.

Editorial Notes:

E1

Prospective affecting provision: Act included in definition of family law proceedings by Mediation Act 2017 (27/2017), s. 2, not commenced as of date of revision.

E2

Provision for no fees being payable in proceedings under this Act made (30.10.2014) by Supreme Court and High Court (Fees) Order 2014 (S.I. No. 492 of 2014), art. 6(1).

E3

Provision for no fees being payable in proceedings in family law proceedings, any matrimonial cause or matter or proceedings brought by the Health Service Executive in any matter relating to minors made (30.10.2014) by Circuit Court (Fees) (No. 2) Order 2014 (S.I. No. 491 of 2014), art. 3, in effect as per art. 2.

E4

Provision made for the Circuit Court to be known as the Circuit Family Court when exercising its jurisdiction to hear and determine family law proceedings or, where provided for, when transferring family law proceedings to the High Court (19.10.1989) by Judicial Separation and Family Law Reform Act 1989 (6/1989), s. 31, commenced as per s. 46(2).

E5

Provision for separate hearing of proceedings under Act made (19.10.1989) by Judicial Separation and Family Law Reform Act 1989 (6/1989), s. 32, commenced as per s. 46(2).

E6

Provision for conduct of proceedings under Act in the Circuit and High Courts to be informal made (19.10.1989) by Judicial Separation and Family Law Reform Act 1989 (6/1989), s. 33, commenced as per s. 46(2).

E7

Provision for conduct of proceedings under Act in the District Court to be informal made (19.10.1989) by Judicial Separation and Family Law Reform Act 1989 (6/1989), s. 45, commenced as per s. 46(2).

E8

Jurisdiction of local courts in cases under Act provided (12.05.1982) by Courts Act 1981 (11/1981), s. 16, commenced as per s. 33(3).

E9

Previous affecting provisions: provision for no fees being payable in proceedings under this Act made:

• (3.02.2014) by Supreme Court and High Court (Fees) Order 2014 (S.I. No. 24 of 2014), art. 6(1); revoked (30.10.2014) by Supreme Court and High Court (Fees) Order 2014 (S.I. No. 492 of 2014), art. 11.

• (3.12.2013) by Supreme Court and High Court (Fees) (No. 2) Order 2013 (S.I. No. 466 of 2013), art. 5(1); revoked (3.02.2014) by Supreme Court and High Court (Fees) Order 2014 (S.I. No. 24 of 2014), art. 11.

• (3.12.2013) by Supreme Court and High Court (Fees) Order 2013 (S.I. No. 239 of 2013), art. 6(1); revoked (3.12.2013) by Supreme Court and High Court (Fees) (No. 2) Order 2013 (S.I. No. 466 of 2013), art. 10.

• (10.04.2012) by Supreme Court and High Court (Fees) Order 2012 (S.I. No. 110 of 2012), art. 6(1); revoked (10.07.2013) by Supreme Court and High Court (Fees) Order 2013 (S.I. No. 239 of 2013), art. 13.

• (22.08.2011) by Supreme Court and High Court (Fees) Order 2011 (S.I. No. 406 of 2011), art. 6(1); revoked (10.04.2012) by Supreme Court and High Court (Fees) Order 2012 (S.I. No. 110 of 2012), art. 11.

E10

Previous affecting provisions: provision for no fees being payable in family law proceedings, any matrimonial cause or matter or proceedings brought by a health board, health authority or Health Service Executive in any matter relating to minors made:

• (10.07.2013) by Circuit Court (Fees) Order 2014 (S.I. No. 23 of 2014), art. 3; revoked (30.10.2014) by Circuit Court (Fees) (No. 2) Order 2014 (S.I. No. 491 of 2014), art. 6.

• (10.07.2013) by District Court (Fees) Order 2012 (S.I. No. 241 of 2013), art. 3; revoked (3.02.2014) by District Court (Fees) Order 2014 (S.I. No. 22 of 2014), art. 5.

• (10.07.2013) by Circuit Court (Fees) Order 2012 (S.I. No. 240 of 2013), art. 3; revoked (3.02.2014) by Circuit Court (Fees) Order 2014 (S.I. No. 23 of 2014), art. 6.

• (10.04.2012) by Circuit Court (Fees) Order 2012 (S.I. No. 109 of 2012), art. 3; revoked (10.07.2013) by Circuit Court (Fees) Order 2013 (S.I. No. 240 of 2013), art. 6.

• (10.04.2012) by District Court (Fees) Order 2011 (S.I. No. 108 of 2012), art. 3; revoked (10.07.2013) by District Court (Fees) Order 2013 (S.I. No. 241 of 2013), art. 5.

• (22.08.2011) by Circuit Court (Fees) Order 2011 (S.I. No. 407 of 2011), art. 3; revoked (10.04.2012) by Circuit Court (Fees) Order 2012 (S.I. No. 109 of 2012), art. 5.

• (22.08.2011) by District Court (Fees) Order 2011 (S.I. No. 408 of 2011), art. 3; revoked (10.04.2012) by District Court (Fees) Order 2011 (S.I. No. 108 of 2012), art. 5.