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Family Law Solicitors

Welfare of the child is paramount in groundbreaking case

Sunday, 1 December 2013

Law Society Gazette

The recent judgment of Mr Justice Henry Abbott in MR v SB is a very important precedent for those practising in the area of guardianship law, write Yvonne Walsh (O’Leary Maher Solicitors) and Dónall Ó Laoire BL. The judgment 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 proceedings held in courts of local and limited jurisdiction.

The respondent, SB, was the natural mother of two children, J (aged 14) and C (11). The children had two different fathers, neither of whom was married to the mother and neither of whom had sought guardianship or exercised access to their child.

The applicant, MR, who was not the biological father of either child, sought to be appointed guardian of both children, of whom he had been held to be in loco parentis by the District Court and had custody by reason of orders of both the District Court and – under Hague proceedings – the courts of England and Wales. The latter incorporated undertakings by the applicant and respondent relating to the return of the children from England to Ireland in 2010, including that the children, who were Irish citizens, would not be removed from the jurisdiction without the consent of the applicant.

Parental duties

The application for guardianship in the High Court followed separate proceedings seeking similar orders in the District Court, the latter giving rise to concern that the District Court did not have jurisdiction to grant the orders sought by the applicant.

While section 6(4) of the Guardianship of Infants Act 1964 provides that, where the mother of a child has not married the child’s father, she, while living, shall alone be the guardian of the child, attention was also drawn to the other provisions of the act of 1964, which dealt with the circumstances under which a court could decide not to return a child to a parent.

Section 16 of the 1964 act provides that where a parent has: “(a) Abandoned or deserted an infant, or (b) Allowed an infant to be brought up by another person at that person’s expense, or to be provided with assistance by a health authority under section 55 of the Health Act 1953, for such a length of time and under such circumstances as to satisfy the court that the parent was unmindful of his parental duties, the court shall not make an order for the delivery of the infant to the parent unless the parent has satisfied the court that he is a fit person to have the custody of the infant.”

Implied power

Finding that the children had been abandoned by the respondent, that the respondent had allowed the children to be brought up by the applicant at his expense, and in circumstances where the respondent had failed to satisfy the court that she was a fit and proper person to have custody, the judge decided to make the applicant and the respondent joint guardians.

The court, he found, had an implied power to appoint another appropriate person as a guardian where the court had decided that it should not return the children to the mother.

This implied power arose under section 16 of the 1964 act “having regard to the general imperative of the Guardianship of Infants Act 1964 that the welfare of the child shall be paramount.

The circumstances in which the court refuses to make an order for delivery of the infant must be looked at and considered in the context of this imperative … The person who has resisted an application for delivery under section 16ff is, in effect, the parent of such a child and it would be a dereliction of the duty of the courts not to treat him as such to the detriment of the interests of the child.”

Desired consequences

In making its decision, the court found that, although an order for custody might be framed so as to give a person all the powers and rights of a guardian, in practice such a custody order when produced to various organisations, for example, schools, passports offices and hospitals, among others, might not bring about the desired consequences in the interests of the child. That being so, an order for guardianship was appropriate.

By reason of its determination that this order arose by implication of the act, the court then found that it is an order that could, in future, be made by any court of local and limited jurisdiction where exceptional circumstances, such as those that existed in the present case, warranted it.