Irish Foster Parents Get "Guardianship" Rights for First Time under New Law

The following is a guide to the new Guardianship options for Foster Parents and their children in Cork and throughout Ireland following the Child Care (Amendment) Act 2007.

Foster Parents throughout Ireland are now starting to take up "guardianship" rights in relation to the children placed in their care under court orders with the Health Service Executive. This welcome development, brought in for the benefit of the children, has been made possible by the enactment of the Child Care (Amendment) Act 2007, which brought into law Section 43A of the Child Care Act 1991.

The law provides for a slightly different procedure in relation to matters if the child is in care under Section 4 (by consent) or under Section 18 (contested) and Ken Heffernan, Family Law Solicitor Cork, sets out below a short guide to this new option for foster parents in Cork and throughout Ireland.

In simple terms, the court may grant an order in relation to "guardianship" for the child in favor of foster parents or relatives of the child if satisfied:
(a) that they have been taking care of the child, under a care order for a period of not less than five years,
(b) that the granting of the order is in the child's best interest,
(c) that the HSE has consented in advance of the granting of the order,
(d) that the HSE has given notice of the application to the child’s parents, and
(e) the child's wishes have, in so far as is practicable, been given due consideration having regard to his or her age and understanding.

Provided the criteria are met, the court may grant a "guardianship" order which shall authorize the foster parents:
-- to have, on behalf of the Health Service Executive, the like control over the child as if the foster parent were the child’s parent, and,
-- to do, on behalf of the Health Service Executive, what is reasonable in all the circumstances of the case for the purpose of safe guarding and promoting the child’s health, development or welfare and in particular give consent to (i) any necessary medical or psychiatric examination or treatment or assessment with respect to the child and, (ii) the issue of the passport to, or the provision of passport facilities for the child, to enable the child to travel abroad for a limited period.

Within the correct meaning of the term under the law, the order that may be granted by the court here is not a guardianship order, such as may be granted to a natural father, but rather it is an order that allows the foster parents to have more control, involvement and authority for the child than up to now. With this in mind Ken refers to the order as a "guardianship" order to reflect the reality of the assistance that it provides for the foster parents in dealing with everyday life with their children. Deirdre McTeigue, Director of the Irish Foster Care Association has said that whilst the Association had campaigned for full guardianship rights for foster parents, the implementation of this change will mark a significant improvement for children and parents who obtain such an order, and that is very welcome.

The law provides that in granting the order sought the court may impose any conditions or restrictions it thinks fit as to the extent of the authority of the foster parent to whom the order is granted. The law makes it clear that any consent given by a foster parent in accordance with an order under this section shall be sufficient authority for the carrying out of a medical or psychiatric examination or assessment, the provision of medical or psychiatric treatment, the issue of a passport as the case may be.

The "guardianship" order in favor of the foster parents would not prevent the HSE from giving consent in relation to treatment or the issuing of a passport. In addition, any arrangement or order that is in place in relation to access for the child continues in place unless the court makes a further order or varies such order when granting the "guardianship" for the foster parents. The "guardianship" order does not prevent the court from making a further order. The law provides that the court may vary or discharge such a "guardianship" order on application by the foster parents, the HSE, the natural parents of the child or a person who has a bona fide interest in the child. The law also provides that the "guardianship" order will cease to have effect if the care order is discharged, if the child is removed from foster parent custody by the HSE or at the foster parents' request, or when the child reaches the age of eighteen years old or marries, whichever happens first.

ABOUT THE AUTHOR: Ken Heffernan Family Law Solicitor Cork
Ken specializes in Family Law with particular emphasis on the financial consequences of a broken relationship. His expertise includes dealing with Divorce, Separation, Children and Cohabitation disputes.

Ken qualified as a Solicitor in 1995 and is also qualified as a Solicitor in England & Wales, where he practiced in Family Law for over nine years. In England, Ken was a member of Resolution, (formerly the Solicitors’ Family Law Association) which promotes justice and collaboration in the settlement of family disputes. He brings this constructive approach to his work in family disputes before the Irish Courts.

Ken is a trained Collaborative Lawyer and can advise on the Collaborative Divorce option to help clients in deciding how to proceed. Ken believes that he has helped his clients to achieve the most satisfactory outcomes by maintaining constructive dialogue with the other party’s solicitor throughout the process. Ken is a member of the Cork Family Lawyers Association.

Copyright Diarmaid Falvey Solicitors
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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