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FAMILY LAW - Homepage

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Guardianship

Relevant court forms

What is guardianship?

Guardianship means the rights and duties of parents in respect of the upbringing of their children. A guardian has the right to make all major decisions affecting the child's upbringing, including choice of school, medical treatment, religious matters, health requirements and decisions about leaving the country. Guardians are responsible for the welfare of the child. Welfare includes the moral, intellectual and physical wellbeing of the child and where there is property held on behalf of the child, it includes the proper administration of such property.

Who can be a guardian?

The natural mother of a child is automatically a guardian of the child. Whether the father of a child is an automatic guardian depends on his relationship with the mother.

The married mother and father of a child are the most common guardians and they are so entitled by virtue of section 6(1) of the Guardianship of Infants Act, 1964. However, for the father to have guardianship status, the parties must be married at the time of the birth of the child. Alternatively, he can acquire guardianship status if the parties marry after the birth of the child.

Can a father who is not married to the mother of his child become a guardian?

Yes. 

  1. if the mother agrees to the father becoming a guardian both parents must complete a statutory declaration in the presence of a Peace Commissioner - (Guardianship of Children (Statutory Declaration) Regulations, 1998 (S.I. No. 5 of 1998). This declaration states the name of both parents, that they are unmarried and that they agree to the father being appointed as a joint guardian. They then become joint guardians of the child. The declaration also states that the parents have agreed arrangements regarding custody and access. Where there is more than one child, a separate declaration must be made for each child. The document is retained by the parties. It is not lodged with the court.

  2. an unmarried father is automatically a guardian if he has lived with the child’s mother for 12 consecutive months after 18th January 2016, including at least three months with the mother and child following the child’s birth (Children and Family Relationships Act 2015).

  3. if there is disagreement as to whether or not the father has been cohabitating for the required length of time, an application for the necessary declaration can be made to the court.

  4. if the mother does not agree to the father becoming the child's guardian, then the father can apply to the court to be appointed as a joint guardian. This is possible, whether or not his name is on the child's birth certificate.

Can other people apply for guardianship?

Yes, in certain circumstances, for example;

  • A step-parent, a civil partner or a person who has cohabited with a parent for not less than three years may apply to the court to become a guardian where they have co-parented the child for more than two years

  • A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities or guardianship.

A parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.

Guardians may also be appointed under a parent's will or by court order. If a guardian appointed by a will(called a 'testamentary guardian') dies or refuses to act, the court can appoint a guardian to act jointly with the surviving parent. Guardians who have been appointed by will or by court order may also be removed.

How to make an application for guardianship

Most applications for guardianship are made in the District Court. You can engage a solicitor to make an application on your behalf or you can make the application yourself. In certain circumstances you may be entitled to legal aid.

If you choose not to engage a solicitor you will need to contact the District Court office in the area where you or (where relevant), the respondent live. You must complete and lodge the relevant court forms in the court office. Court staff will identify the forms you need to make your application but cannot tell you what to put in the forms.

Notice of the application must be served on the respondent at least fourteen days or, in the case of proceedings certified as urgent, at least two days, before the date of the court hearing. After service, the notice, together with a statutory declaration as to service, must be lodged with the District Court clerk at least two days before the court hearing. You must also attend in court on the day to make your application.

Where the District Court makes an order under the Act, the court clerk will give, or send by ordinary post, a copy of the order made to each person in whose favour or against whom the order was made.

Court forms

District Court: S.I. No.125 of 1999:District Court (Custody and Guardianship of Children) Rules 1999; S.I. No. 17 of 2016: District Court (Children and Family Relationships Act 2015) Rules 2016

  • Form 58.1 Notice of application by a person to be appointed a guardian - section 6A
  • Form 58.30 Notice of application by an eligible person to be appointed a guardian – section 6C
  • Form 58.33 Notice of application for appointment of nominated person as temporary guardian – section 6E(3)
  • Form 58.34 Notice of application for order under section 6E(11)
  • Form 58.37 Notice of application for a declaration that a person is or is not a guardian – section 6F(1)
  • Form 58.11 Notice of application to remove guardian from office and appoint another - section 8(4) and 8(5)
  • Form 58.39 Notice of application to remove from office a guardian – section 8(6)
  • Form 58.49 Statement of Arrangements for Child
  • Form 58.21 Notice of application to vary or discharge an order - section 12
  • Form 10.1 Statutory Declaration As To Service By Registered Prepaid Post Pursuant To (Section 7 Of The Courts Act, 1964) / (Section 22 Of The Courts Act, 1991)
  • Form 10.2 Statutory Declaration As To Service By Prepaid Registered Post Pursuant To Section 7 Of The Courts Act, 1964
  • Form 10.3 Statutory Declaration As To Service By Post

 

Circuit Court: S.I. No. 358 of 2008: Circuit Court Rules (Case Progression in Family Law Proceedings), 2008

  • Form 37L: Summons to attend case progression hearing
  • Form 37N: Case progression questionnaire

 

High Court: S.I. No. 15 of 1986:Rules of the Superior Courts - Order 70

Relevant legislation

  • Article 42 Constitution of Ireland
  • Guardianship of Infants Act, 1964
  • Courts Act, 1981
  • Status of Children Act, 1987
  • Judicial Separation & Family Law Reform Act, 1989
  • Family Law Act, 1995
  • Family Law (Divorce) Act, 1996
  • Children Act, 1997
  • Guardianship of Children (Statutory Declaration) Regulations, 1998

Court rules

  • S.I. No. 93 of 1997: District Court Rules, 1997
  • S.I. No. 17 of 2016: District Court (Children and Family Relationships Act 2015) Rules 2016
  • S.I. No. 510 of 2001: Circuit Court Rules, 2001
  • S.I. No. 312 of 2007: Circuit Court Rules (General), 2007
  • S.I. No. 358 of 2008: Circuit Court Rules (Case Progression in Family Law Proceedings), 2008
  • S.I. No. 15 of 1986: Superior Court Rules 
     

 

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Page updated: 18 August 2016