Legal Column, South Tipp Today, 2nd January 2014
As we begin 2014 today I will discuss significant developments in the area of Family Law that we have seen over the last year. Traditionally, the Courts viewed the “family unit” as the conservative family model based on marriage, as
enshrined in the Constitution.
More recently, we have seen a movement towards a more modern model, reflecting the reality of family units in today’s society.
There is now a much stronger emphasis on the best interests of the child, rather than the focus being on the right of the father or the right of the mother.
We have seen particularly interesting developments in Family Law, such as:
1. A non-biological parent who was in loco parentis was awarded Guardianship.
A judgement of Mr Justice Henry Abbott in MR v paves the way for a man with no biological connection to a child, but acting in loco parentis, to be given guardianship of a child in certain ‘exceptional’ circumstances – despite the opposition of the natural unmarried mother. In these circumstances the children had been abandoned by the mother and brought up by the applicant at his expense, and in the circumstances the mother had failed to satisfy the court that she was a fit and proper person to have custody. He was in loco parentis, but needed guardianship to deal with certain organisations, for example, schools, passports offices and hospitals.
2. At Lynch Solicitors, we have had a number of cases where fathers were granted custody.
We have also seen an increasing willingness on the Courts to take a more child centred approach to family arrangements post separation. The voice of the child seems to becoming more and more preeminent in the mind of judges.
3. The role of the extended family is also becoming recognised as an important factor in family life.
We saw the introduction of the Rights of Grandparents Bill 2013 which seeks to recognise that grandparents play a central role in the lives of their grandchildren and are frequently at the core of the modern family unit by adding them to the category of person who can apply for custody of a child.
4. Parentage and Citizenship: The issue of legal parentage and citizenship was also addressed in the High Court in March 2013 when an Irish man won the right to be declared the father of a child, born in India, via a surrogacy arrangement.
The surrogacy arrangement involved the surrogate mother, the man and the man’s partner. The man and his partner were both named as the child’s parents on her birth certificate, which was issued in India.
Noting that the interests of the child were of the utmost importance under the Guardianship of Infants Act, Justice Abbot ruled that the child was entitled to Irish citizenship and to an Irish passport.
In the case of M.R, the surrogate mother was the sister of commissioning (genetic) mother and had not objected to the application to have the birth certificate of the babies, who were twins, amended to her sister’s name. The Registrar of Births, Deaths and Marriages had, however, refused to register the genetic mother on the birth certificate and an application to court became necessary.
The High Court ruled that the genetic mother had the right to be legally recognised as their mother on their birth certificates.
6. New Family Court System: The Minister for Justice, Alan Shatter, is currently in the process of making changes to the family law system in Ireland and it is intended that a Referendum to establish a new Family Court will be held this year.
Under the new proposals Judges with a specialisation in family law will preside over all proceedings. This is a very important and welcome development. It is important that the judiciary have special skills, so when individuals go to family court, they know there’s going to be a degree of consistency.
Minister Shatter hopes that the new system “should be more user friendly and should make things less costly”. It is hoped that the new regime will be a less intimidating and a more welcoming environment for families in personal difficulties.
We, at Lynch Solicitors, specialise in all areas of Family Law including Custody, Access and Guardianship, Domestic Violence applications, Maintenance for spouses and children, Judicial Separation, Separation Agreements, Divorce, Pensions, Recognition of Foreign Divorces, and applications for annulment.
John M. Lynch heads up the Family Law and Childcare Department of Lynch Solicitors, having developed a special interest in this area over the years. John’s knowledge and use of Mediation, along with the objective yet compassionate way we try to deal with every case at Lynch Solicitors, have helped our clients in this delicate area.