Children Act, 1997

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PART II

GUARDIANSHIP, CUSTODY AND MAINTENANCE

Rights of certain fathers to guardianship.

4.—The Act of 1964 is hereby amended by the substitution for section 2 (inserted by the Status of Children Act, 1987 ) of the following section:

“Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

‘the Act of 1987’ means the Status of Children Act, 1987 ;

‘adoption order’ means—

(a) an adoption order made under the Adoption Acts, 1952 to 1991, or

(b) an order made or decree granted outside the State, providing for the adoption of a person, which is recognised by virtue of the law for the time being in force in the State,

and for the time being in force;

‘child’ means a person who has not attained full age;

‘father’ includes a male adopter under an adoption order, but, subject to section 11(4), does not include the father of a child who has not married that child's mother unless either—

(a) an order under section 6A (inserted by the Act of 1987) is in force in respect of that child,

(b) the circumstances set out in subsection (3) of this section apply, or

(c) the circumstances set out in subsection (4) of this section apply;

‘maintenance’ includes education;

‘mother’ includes a female adopter under an adoption order;

‘parent’ means a father or mother as defined by this subsection;

‘testamentary guardian’ means a guardian appointed by deed or will;

‘welfare’, in relation to a child, comprises the religious, moral, intellectual, physical and social welfare of the child.

(2) A reference, however expressed, in this Act to a child whose father and mother have not married each other shall, except in a case to which subsection (3) relates, be construed in accordance with section 4 of the Act of 1987.

(3) (a) The circumstances referred to in paragraph (b) of the definition of ‘father’ in subsection (1) are that the father and mother of the child concerned have at some time gone through a ceremony of marriage and the ceremony resulted in—

(i) a voidable marriage in respect of which a decree of nullity was granted after, or at some time during the period of 10 months before, the birth of the child, or

(ii) a void marriage which the father reasonably believed (whether or not such belief was due to a mistake of law or of fact) resulted in a valid marriage—

(I) where the ceremony occurred before the birth of the child, at some time during the period of 10 months before that birth, or

(II) where the ceremony occurred after the birth of the child, at the time of that ceremony.

(b) It shall be presumed for the purposes of subparagraph (ii) of paragraph (a), unless the contrary is shown, that the father reasonably believed that the ceremony of marriage to which that subparagraph relates resulted in a valid marriage.

(4) The circumstances referred to in paragraph (c) of the definition of ‘father’ in subsection (1) are that the father and mother of the child concerned, not being a father or mother to whom the circumstances set out in subsection (3) apply—

(a) have not married each other,

(b) declare that they are the father and mother of the child concerned,

(c) agree to the appointment of the father as a guardian of the child,

(d) have entered into arrangements regarding the custody of and, as the case may be, access to the child, and

(e) have made a statutory declaration to that effect as may be prescribed by the Minister for Justice, Equality and Law Reform.

(5) In this Act—

(a) a reference to a Part or section is a reference to a Part or section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended by or under any subsequent enactment.”.