What is the Current Law
Before considering whether any changes to the law are necessary, it is important to be clear about the current legal framework. The legal rules for guardianship, custody, and access in respect of children and young people are set out in The Guardianship Act 1968. ( In this paper, we will sometimes refer to it as the Act.) 1
[1 Rules about children in need of care and protection are separate and are contained in the Children, Young Persons, and Their Families Act 1989. If a Court finds that a child or young person is in need of care and protection, it can make a guardianship or custody order under that Act. The rules about children and young persons in need of care and protection are not part of this review.]
The overriding principle: Welfare of the child
Under the Act the welfare of the child must always be the first and the paramount consideration in guardianship, custody and access matters.
What is 'Guardianship'?
Under the Act, guardianship
means:
- the custody of a child or young person; and
- the right of control over the upbringing of the child or young person. "Upbringing" is defined to include education and religion. It also includes such things as change of name and major health decisions.
- Guardianship and custody of children and young people generally go together unless the parents separate and cannot reach an agreement about shared parenting. The Court then may grant a custody order in favour of one of the parents. Where that happens, however, the non-custodial parent still retains the other rights and responsibilities of guardianship.
- The mother and father are automatically guardians of their children if they are living together at the time of the baby s birth. This is true whether or not they are legally married.
- If, however, the father is not married to the child s mother, and is not living with her at the time of the baby s birth, then the father will have to apply to the Family Court to be appointed a guardian.
- The Family Court can appoint other people to be guardians, for example, to cement a new family relationship where the child or young person may not be related to the caregiver.
- If at any time guardians are unable to agree on any matter concerning the exercise of guardianship, they may apply to the Court for an order about the matter in dispute.
- The father or mother may leave instructions to appoint someone to be their child s guardian if they die. The person appointed to take over the guardianship responsibilities of that parent is called the testamentary guardian. The testamentary guardian will not necessarily have custody.
- A child or young person can be placed under the guardianship of the Family Court ( commonly known as being a ward of the Court) if it is judged to be necessary in order to protect the child or young person s interests. The Court can appoint a named person to be a guardian either for all purposes connected with the care of a child or young person, or for a specific purpose. An example of the appointment of a guardian for a specific purpose is where a child or young person is in urgent need of medical treatment but the parents do not consent.
- Guardianship begins when the child is born and ends on his or her 20th birthday, unless the child marries before that age.
What is 'Custody'?
Under the Act, custody is defined as the right to possession and care of a child. In practical terms, this means the day-to-day care of the child.
- Both parents usually have custody rights, but if they separate the Family Court can grant a custody order in favour of just one of them if necessary. The Court can also decide to make a joint custody order in favour of both parents.
- A parent, step-parent or guardian may apply to be granted custody. Other people need the permission of the Court before they can apply for custody.
- Once a young person reaches 16, custody orders no longer apply, unless there are special circumstances.
Access
In the context of the Guardianship Act, the term access is only relevant where custody has been given to one parent.
- Access in these situations refers to the arrangements for a child or young person to spend time with their non-custodial parent.
- The parent who does not have custody may apply to the Court for an access order so that the arrangements have legal weight.
- The rights of other relatives such as grandparents or aunts/ uncles to be granted access are limited to situations where one parent has died or has been refused access or is not exercising access to the child.
Situations involving domestic violence
If the Family Court accepts that a parent has been violent against anyone in the immediate family, it cannot give the violent parent custody of or unsupervised access to the child or young person unless it is satisfied that they will be safe with the violent parent.
Wishes of the Child
The Court must find out the wishes of the child or young person , if they are able to express them, and take them into account to such an extent, bearing in mind the age and maturity of the child or young person. The Court may use counsel appointed to represent the child for this purpose. Sometimes the Judge will speak to the child in chambers.
Conduct of parent
The only time the Court can take a parent s conduct into account in custody and access proceedings is when it is relevant to the child or young person s welfare.
No presumption in favour of one parent over another
When the Family Court is deciding who should have custody of a child or young person, there is no presumption in favour of one parent over another. In fact, the Act specifically says that there is no presumption that the sex of a person who wants to have custody is relevant when deciding on what will best serve the welfare of the child. It is also important to note that there is no presumption that the children in a family should remain together when their parents separate.
Medical Treatment
There are explicit provisions in the Act for dealing with the questions surrounding medical treatment for children and young people. They include providing that those who are the child or young person s guardians have the power to consent to the administration of medical care for those who are younger than 16. If guardians refuse to consent to urgently required medical treatment, the Court can assume guardianship of the child or young person for that purpose or appoint someone else to be guardian for that purpose.
