There is a wide variety of family types today, married and unmarried opposite sex couples and same-sex couples, blended families where ex-partners and current partners share parenting, lone parents and multiple parents. Legislation is now starting to respond to modern families through policy development that puts children first and assists parents in their parenting roles regardless of family type. Treoir will continue to update parents on legislative changes and advocate on behalf of families and children.
Child from a previous opposite sex relationship
Where a child is born as a result of a previous marriage, both biological parents are joint guardians of the child. Where parents have not married each other, only the mother is automatically a guardian of her child. The father will only have guardianship rights to the child if he has signed, with the mother, the statutory declaration set out in S.I. No. 5 of 1998 granting him guardianship, he has guardianship rights by virtue of satisfying the requisite cohabitation period with the mother, or he has been granted guardianship rights through the courts. See ‘guardianship‘ section.
Where an LGBTQI+ couple are sharing the parenting of a child from a previous opposite-sex relationship it is possible for the non-biological parent to become the legal parent or guardian of that child.
An application can be made by:
- a person who is married to or is in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the child and has shared the responsibility of the day-to-day care of the child for at least 2 years
See here for more.
ADOPTION
Commencement of the Adoption (Amendment) Act 2017
The Adoption (Amendment) Act 2017 came into effect on 19 October 2017. This legislation changes various parts of the Adoption Act 2010, which govern how all adoptions in Ireland are carried out.
The main changes in the Amendment Act include:
- All children can now be considered equally in terms of eligibility for adoption. The fact that they were adopted previously or born to married parents is no longer an automatic restriction.
- The best interest of the child are recognised as the most important consideration in any adoption application. There is a detailed list of considerations in the amendment to be applied when determining the best interest of the child. These focus on how an adoption will likely affect the child and it also makes it clear that the child’s own opinion is very important.
- A distinction about a child being over or under 7 years of age when being adopted has been removed. Now the only legal distinction about a child’s age is that he/she must be under 18 years of age.
- Any couple living together in a civil partnership or cohabiting together for at least 3 years can now apply to adopt a child. Previously only married couples or individuals applicants could apply to adopt.
- Step-parents can now apply to adopt their partner’s child without the partner (who is already the biological parent of the child) also applying to adopt the child.
- Relevant non-guardians are now recognised in the Act. The definition of relevant non-guardian is broad but in basic terms is a person who is recognised as the parent of a child but is not a guardian, or is a type of guardian who does not have the right to consent to an adoption. They have a right to be consulted about the adoption of the child, similar to what fathers (without guardianship rights) already had under the provisions of the Act.
- Cases which need to be decided by the High Court, when the parents of the child cannot or will not consent to an adoption, now require more consideration to the attempts of those parents to raise the child. For example, the child must be out of their care for a longer period of time.
Treoir will update all relevant information and leaflets as soon as possible.
In the meantime, if you would like to talk through your individual situation please call us on our confidential number on 01 6700120.
Adoption (Identity and Information) Bill 2014
The Adoption (Identity and Information) Bill, when enacted, will give adopted people a legal right to information about their birth parents. Article 8 of the United Nations Convention on the Rights of the Child states that parties undertake to respect the right of the child to (preserve) his/her identity. If enacted the legislation will go a long way toward ensuring that the rights of adopted children are respected in this way.
What is Adoption?
Adoption is a legal process that allows a parent to place her/his baby with another family permanently. It ends the legal relationship between the birth parents and their baby and marks the beginning of a new and legal relationship between a baby and her/his adoptive parents. A baby becomes a member of the adoptive family as if s/he was born into that family.
If you are an unmarried mother or unmarried and pregnant and are considering placing your baby for adoption you can contact:
- Your local pregnancy counselling service, see www.positiveoptions.ie or freetext LIST to 50444 for a list of free, state-funded crisis pregnancy counselling agencies. A counsellor can discuss the adoption process with you.
- The adoption service in TUSLA, the Child and Family Agency local office.
- A duty social worker in the Adoption Authority.
Useful Contacts
For a list of state-funded crisis pregnancy counselling agencies, see www.positiveoptions.ie or freetext LIST to 50444.
To contact your local adoption service, see TUSLA, the Child and Family Agency local office.
The Adoption Authority of Ireland
Shelbourne House, Shelbourne Road, Dublin 4
Tel: 01 230 9300
Duty Social Worker: 01 230 9306 (Social Work Counselling Calls Only)
Web: www.aai.gov.ie
E-Mail: info@aai.gov.ie
Information Pack for Unmarried Parents
NOTE:
Treoir 2019
While every effort has been made to ensure the information provided in this webpage is accurate, no responsibility can be accepted by Treoir for any error or omission.
Foster Parents
It is possible for same sex couples to apply to TUSLA, the Child and Family Agency to foster a child, and other private foster care agencies such as Orchard Fostering. All potential foster parents must undergo an assessment process. Where foster parents have cared for a foster child for a continuous period of not less than 5 years they can apply for ‘enhanced rights’. These rights are similar to, but less than, guardianship rights. If granted, the foster parents have the right to consent to medical or psychiatric examination, treatment or assessment with respect to the child and have permission to sign passport applications and school trip consent forms. Application for these ‘enhanced rights’ may be made through the Courts with the knowledge and consent of the HSE. The granting of the order must be in the best interest of the child. In order for the application to be successful it is necessary to have the support of the Child and Family Agency. The child’s wishes must be taken into consideration having regard to the age and understanding of the child.
Since the commencement of new legislation contained in the Children and Family Relationships Act 2015, a person can apply for guardianship rights in respect of a child where he/she has provided for the day-to-day care of a child for a continuous period of 12 months or more and where there is no parent or guardian willing or able to exercise guardianship rights and responsibilities in respect of the child can apply for guardianship in respect of the child. TUSLA the Child and Family Agency will be notified of such an application.
If you are interested in fostering, you should contact TUSLA, the Child and Family Agency, and other private foster care agencies such as Orchard Fostering. You can use TUSLA online enquiry form or contact your region’s foster team. The Irish Foster Care Association can also help with any enquiries you might have around fostering a child, see www.ifca.ie
Parents as a result of Assisted Human Reproduction (AHR)
There is no legislation in Ireland governing AHR. Where a lesbian couple has a child through AHR then the birth mother automatically has guardianship rights to the child. Her partner has no legal rights. However, it is possible for the non-biological parent to become the legal parent or guardian of that child.
An application can be made to the court for guardianship, by:
- a person who is married to or is in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the child and has shared the responsibility of the day-to-day care of the child for at least 2 years
The birth mother can also make a will appointing her partner as a guardian (testamentary guardianship) with custody rights in the event of her death.
Where the child was conceived using an identified sperm donor it is possible to sign a preconception agreement. There are two types of preconception agreement: donor agreements, designed to minimise the donor’s legal rights and status; and co-parenting agreements, involving shared parenting.
NOTE: these agreements are not legally binding and may not be enforced by the courts. The best interest of the child must always be the paramount consideration in any court hearing.
New Legislation – Some Of Which Has Now Commenced!
The Bill, once enacted, will also remove the necessity for a woman to contact an estranged husband when establishing paternity of her child with her new partner, the biological parent of her child.
Please note: Sections of The Children and Family Relationships Act 2015 have now been commenced, as of 18th January 2016. It is now possible for LGBTQI+ parents who are not biologically related to children in their care (and others who act in loco parentis) to apply for guardianship. See ‘Legal Rights in Respect of Children’ below. The sections of the Act which regulate parentage in cases of donor-assisted human reproduction have not yet been commenced.
We will endeavour to update our followers, clients and service users on legislative changes as they arise. (Follow us on Facebook!)
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 made it possible for LGBTQI+ couples to enter into a Civil Partnership, giving them many of the same rights enjoyed by married heterosexual people. However, this legislation generally does not deal with children. As of the 16th November 2015, same sex couples have the right to marry without distinction as to their sex. Regulations have been signed which makes it easier for couples in Civil Partnerships to marry. Couples in a Civil Partnership in Ireland can remain as they are but it is no longer possible to enter a Civil Partnership in Ireland.
Surrogacy
There is no legislation in Ireland dealing with the situation where a child is born through surrogacy. The Department of Justice and Equality has published very useful guidelines in relation to citizenship, parentage, guardianship and travel document issues in relation to children born as a result of surrogacy arrangements entered into outside the state. Download here.
Transgender People and Parenting
A parent who is transgender retains all parental obligations and rights in respect of his/her biological or adopted children. In particular, a parent’s gender reassignment does not affect the rights and obligations of the parent in respect of his/her children. For instance, if a person is the biological father of a child and that person undergoes gender reassignment, and/or lives as a female, she nonetheless remains in law the father of the child. The legal father retains all the legal rights and obligations associated with fatherhood. Identical principles apply to mothers who undergo gender reassignment. In particular, a person cannot legally be denied guardianship, custody or access on the basis of that person’s gender identity or transgender status.
NOTE
Treoir 2019
While every effort has been made to ensure that the information in this leaflet is accurate, no responsibility can be accepted by Treoir for any error or omission.
