Tipp FM Legal Slot – 17th February 2015 – Family Law – Children and Family Relationships Bill
On Tipp FM, Gillian O’ Mahony spoke to Seamus Martin on ‘Tipp Today’ about the Children and Family Relationships Bill 2014.
Listen to Gillian’s discussion:[soundcloud id=’191588871′]
This morning the Minister for Justice and Equality Frances Fitzgerald will bring the Children and Family Relationships Bill, which sets out parental rights for different kinds of families, to Cabinet.
Taoiseach Enda Kenny has described the bill as the most important change in family legislation since the foundation of the State.
The Children and Family Relationships Bill 2014 seeks to clarify the law on children in all families and reflects the social reality of family life in Ireland in the 21st century.
The Constitution is the bedrock legal document in the country and sets out the fundamental legal principles. One of the provisions in the Constitution gives special recognition to the family. Article 41 refers to the family as the marital family. The courts have interpreted the family to date as being the marital family.
Cultural and societal changes have meant that in a lot of cases the family is not always the marital family.
The Children and Family Relationship Bill 2014 is the legal system playing catch up and giving recognitions to some of those modern families.
So what is the Children and Family Relationship Bill going to change?
Automatic guardianship to non-marital fathers co-habiting with the child’s mother.
At the moment non marital fathers don’t have any automatic rights when it comes to guardianship. If any dispute arises then it has to be settled in court.
One of the provisions of the Bill means that if the child’s parents are unmarried and have been living together for 12 months, then non-marital father would get recognised as a guardian.
Guardianship means the rights and duties of parents in the raising of their children. A guardian has the right to make all decisions affecting the child’s upbringing.
Currently if the biological father of a child is in a co-habiting relationship but is not married, he does not have automatic guardianship rights over his child.
Ways to make parenting work and to have penalties for parents who refuse to comply with access and maintenance orders.
The Bill sets out a procedure for court enforcement orders where a guardian or parent of a child has been held to have unreasonably denied access to a child.
It gives the Court the power to require one party to reimburse the other for expenses in attempting to exercise access, if their access has been frustrated.
At Lynch Solicitors we would advise separating couples to devise a Parenting Plan to help post separation parenting and reduce the possibility of any of these issues arising.
The Best Interests of the Child is the key!
It has long been the case that the Courts take the best interests of the child in account when dealing with applications on issues that concern them. The new Bill make this principal the corner stone on any issues affecting children.
Factors which are usually relevant in considering “best interests” can include:
(a) the benefit to the child of having a meaningful relationship with both parents;
(b) the views of the child concerned depending on their age and maturity;
(c) the physical, psychological and emotional needs of the child;
(d) the history of the child’s upbringing and care, including the nature
of the relationship between the child and each of their parents;
(e) the child’s religious, spiritual and cultural upbringing and needs;
(f) the child’s social, intellectual and educational upbringing and needs;
(g) the child’s age and any special characteristics;
(h) any harm which the child suffered or is at risk of suffering.
Mediation as a real option.
Mediation is the process where the two parties, with the help of an independent third party, meet (usually with their solicitors) and try to agree how to separate. This is done with the help of professional mediator. This is a much more preferable option than going to court and the costs associated with court.
The Bill here seeks to promote mediation as a way of resolving issues around children and mandates solicitors to advise their clients of these options before taking legal proceedings.
Revise maintenance payments to ensure no disadvantage to a child born outside the married family.
This revision under the Bill provides that if a child is deemed to be “dependent” then the civil partner, spouse or co-habitant of the child’s parent may be liable to support the child even though they are not the biological parent themselves.
This is a real change reflecting the reality of second family life.