FLCL, GCA

Question 1

Guardianship

Answer 1

GOIA S.8- Legal responsibility of parents to make decisions for the child, regarding health, welfare, religion, education etc., and perform duties, in relation to their child’s upbringing.

Question 2

Custody

Answer 2

The day-to-day care, residency and upbringing of children who are regarded as “dependent” children- U18 and/or special needs and/or in full time education

Question 3

Access

Answer 3

Right of a child to maintain direct contact with the parent whom the child does not ordinarily reside with

Question 4

Automatic Guardians: GOIA 1964 AND CFRA 2015

Answer 4

• Unmarried mother (S.6)
• Married mother and father (S.6)
• Civil Partners/ Same Sex Marriage- legally and jointly adopted child
• Both parties to cohabitation- legally and joint adopted child
  -Both parties to DAHR- Natural parent and partner

Question 5

Unmarried Father, Obtaining Guardianship

Answer 5

• Application to court
• Statutory Declaration with consent of mother
• 12mth cohabitation with mother, 3mth of which post-birth (but pre 18)

Question 6

Cohabitants/ Partners, Obtaining Guardianship- S.6

Answer 6

They have lived with the parent and the child for at least 3 years, and
They have shared day-to-day care of the child for at least 2 years.

Question 7

Individual, Obtaining Guardianship, Expedited Process

Answer 7

Have been responsible for the day-to- day care of the child for the last 12 months, and no other parent/ guardian is willing/able to take on child.

Question 8

S.49- CFRA 2015- Rights of Guardian

Answer 8

Decide child’s location of residence
Decide child’s religious, cultural, spiritual, and linguistic upbringing
Decide with whom the child shall live (to a degree)
Consent to all health, medical and dental treatments for child
Decide matters concerning child’s education
Decide if to place child for adoption

Question 9

S.50? Responsibilities of the Guardian

Answer 9

• Provide for the child financially
• Protect the child
• Provide for the child’s education

Question 10

What happens when guardians disagree on a long-term decision for the child?

Answer 10

Apply to District Court- Resolve dispute- child’s welfare and best interests paramount

Question 11

What, according to the CFRA S.31, does the child’s best interests revolve around?

Answer 11

• Child’s P,P,I,M,S welfare
• Views of child, given due weight according to age and maturity
• Child’s history and any risk of harm

Question 12

“FN V. CO”- discretion and paramountcy of welfare

Answer 12

The court’s discretion in determining these disputes is wide, but the child’s welfare is paramount

Question 13

“MCD”- Biological link vs. welfare

Answer 13

‘Whilst biological connection is important, it is not determinative, a child’s welfare trumps all’

Question 14

“A v. B”- Hogan J.- Education

Answer 14

Ask, where is the child’s educational welfare and best interests served

Question 15

“COS”

Answer 15

No Constitutional Veto for mother with regard to child’s welfare, best interests paramount

Question 16

Can Guardianship Be Stripped? S.8(4)

Answer 16

YES
- Parent- very difficult due to constitutional rights
- Non- Parent- easier- statutory rights- still very rare- proportionate restriction more likely

Question 17

Why may a proposed guardianship be refused?

Answer 17

1) Proposed guardian is unwilling, or unable, in eyes of court.
2) Proposed guardianship is not in child’s Best Interests

Question 18

“FN V. CO (2004)”- Why was guardian rejected in this case?

Answer 18

Unmarried father- sought G and A- Practically no contact/ relationship with the child over 10 years- mother unconsenting- application rejected.

Question 19

“FN V. CO (2004)”- List of Factors

Answer 19

• Lack Of Relationship With Child
• History of Violent Conduct/ Neglect
• History of Substance Abuse/ Mental Health Problems
• History of Instability, with regard to Housing, Employment, etc.
• General Opposition by Child if Deemed “Mature Enough”

Question 20

“MCD V. L” - Lesbians and Sperm Donor Case- Quote

Answer 20

“Guardianship is not a reward for paternity”

Question 21

“BO”- Guardianship denied, why?

Answer 21

Domestic Abuser

Question 22

Custody- Who Gets It?

Answer 22

Unmarried mother- Automatic Right
Married Couple- Automatic Right
Unmarried Father- May Apply under S.11 GOIA- Legally Recognised as Parent in this Regard
Non-Parent- May Apply under 2015 CFRA

Question 23

“B v. B” on Guardianship and Custody

Answer 23

‘A parent so deprived of their right to custody may still continue to exercise the rights of the guardian’ - Walsh J.

Question 24

Custody Orders and Marital Breakdown

Answer 24

COMB

Question 25

"EP V. CP (1998)"- McGuinness J.

Answer 25

'Joint custody cannot work satisfactorily for the child if there is a high level of conflict between the parents and opportunity for fights around every corner as it were. If people cannot work together sensibly and happily ... joint custody would not seem particularly suitable"

Question 26

Walsh J. >1

Answer 26

'The court will seek to make joint custody orders wherever possible'

Question 27

Walsh J. >2

Answer 27

"Joint custody orders are, by their nature, interlocutory"

Question 28

"DMCA V. KMCA (2002)"

Answer 28

Where the order of a JC is not possible, the BI of the child will be determinative

Question 29

GOIA-S.16-Abandonment/ Desertion

Answer 29

Where a parent has abandoned or deserted a child... or has allowed the child to be brought up by another at their expense... the court will not make an action for custody... unless the court is satisfied that they are fit to have custody of that child'

Question 30

Access- "MD V. GD (2011)"

Answer 30

As per S.11 of the 1964 Act, the court is enabled to make an access order allowing a child access to persons other than that of their natural parents'

Question 31

"MD V. GD (2011)"- Carrol J, ROC

Answer 31

"In terms of access, it is the right of the child with which the court is concerned, not the right of the adult"

Question 32

"MCD V. P & L"- Sperm Donor and Lesbian Case

Answer 32

Access granted on basis of a priorly constructed, informal arrangement- no guardianship granted- best interests of child to know their identity

Question 33

"MR V. DR (2016)"

Answer 33

-Court very willing to grant access orders that serve the child's best interests -Court may order support/ supervision services to assist in these orders

Question 34

S.11.B- Key Factors Governing Access By Non-Parents

Answer 34

- Connection with child - Risk, if any, in disrupting child's life - Wishes of child's guardians - Views of child (A & M) - Necessity of further orders to facilitate such access

Question 35

S.11.B- KEY KEY FACTOR

Answer 35

BI and welfare of child paramount

Question 36

Daly:

Answer 36

Most access orders generally succeed, unless there are serious concerns

Question 37

"OD V. OD"

Answer 37

Strong Judicial Policy Of Granting

Question 38

"B v. B"

Answer 38

Access may be granted with conditions attached, such as mandatory supervision.

Question 39

"Gleeson"

Answer 39

If allegations are made against applicant, investigations will take place before access is granted.