Children can often be left in limbo by the complexity of modern family relationships but their position has been hugely strengthened by a High Court decision in favour of a non-biological father. The case, which concluded at the end of last year, drew little public attention beyond legal circles but deserves closer examination because of its potential impact on future guardianship applications.
The case involved two children whose mother had effectively abandoned them to the care of her boyfriend. He had been acting as their parent, although neither of the children were his biologically, and the law gave him no visible route to confirm his role as their legal guardian.
In the ground-breaking High Court decision, Judge Henry Abbott, ruled that the court had an implied power to appoint a person with no legal link to the children as their guardian. In stricter legal terms, he decided this was an implied power under the Guardianship of Infants Act, 1964, enabling any court in Ireland to appoint a person who has no legal or biological connection to a child, as a guardian, as long as certain circumstances exist. Critical to the decision in this case, were the following facts:
- The man had acted in loco parentis to the children
- The court found the children had been abandoned by their mother and had allowed the man to bring up the children, at his expense
- The mother had failed to satisfy the court that she was a fit and proper person to have custody of the children.
- The order for guardianship was appropriate in the interests of the children
It is also likely that the decision was in some way influenced by the Child and Family Relationships Act, 2015 – although it had not commenced at the time of the Judgement. This act, which was brought into force on 18 January 2016, extended the category of persons who can apply for legal guardianship of a child to the following:
- Step parents who are in a Civil Partnership or co-habiting with the child’s other parent
- Persons who have been responsible for a child’s day to day care, where no parent or guardian has been willing to assume that responsibility.
Because the judgement came out in the busy run-up to Christmas, it was largely missed, although the Law Society Gazette did draw attention to it. But the judgement’s significance must not be overlooked. Yes, the case was a welcome outcome for the two children involved in this particular case; but it also has potentially major implications for other individuals seeking guardianship of children with whom they have no biological connection.
But most of all, this case is a wonderful example of a Judge placing the interests and welfare of children first, and working creatively with the existing law, to create a beneficial outcome. Let’s hope it is a taste of things to come….
For further information, you can contact me at Deirdre.Burke@dmburke.ie