Children and Family Relationships Act 2015

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.”.

1O.J. No. L338, 23.12.2003, p. 1