The increasing complexity of family law is reflected in the number of new bills, laws, and statutory instruments passed in recent years. As the Assisted Decision-Making (Capacity) Act 2015 – although not strictly a family law statute – will have such a wide application to areas of legal practice concerning vulnerable clients when it is commenced, it is included here. Solicitors are also reminded of the recently launched 2017 Family Law in Ireland Code of Practice.
Children and family relationships
The Children and Family Relationships Act 2015 (‘the 2015 act’) was enacted on 6 April 2015. Parts 1, 4, 5, 6, 7, 8, 12 and 13 commenced on 18 January 2016. The act amends the Guardianship of Infants Act 1964. The purpose of the act was to recognise and give legal effect to changing family structures in Ireland and the constitutional change of the Thirty-first Amendment of the Constitution (Children) Act 2012.
The commenced provisions:
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Extend guardian and custody and access rights,
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Introduce new enforcement provisions and maintenance obligations,
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Provide a new definition of ‘best interests’ of the child and set out a statutory framework to ascertain what is in the best interests of the child,
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Provide for expert reports (section 32 reports) to be carried out on any question affecting the welfare of the child and to ensure the views of the child are heard in the course the proceedings affecting them.
SI 355/2017 commenced section 47(c) (with exceptions) on 31 July 2017.
Note to colleagues
Please see:
Children first
The Children First Act 2015 (‘the act’) comes into effect on 11 December 2017 and places the Children First National Guidance for the Protection and Welfare of Children on a statutory footing. The purpose of the guidance is to promote the safety and welfare of children and manage referrals to child protection/welfare systems.
Under the act, providers of a ‘relevant service’ are obliged:
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To ensure, as far as practicable, that each child is safe from harm while using the services of the provider.
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To formulate a ‘child safeguarding statement’, which must include a written assessment of any risks and the procedures in place to manage such risks. Guidelines are available to assist in the formulation and drafting of statements on www.tusla.ie. These statements must be available for inspection, and providers are obliged to ensure that all staff members are familiar with their terms.
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To review and update the statement at least once in a 24-month period.
The Child and Family Agency (Tusla) has the right to request copies of statements and to serve a ‘non-compliance notice’ on non-compliant service providers. Tusla is obliged to maintain a register, open to members of the public for inspection, of non-compliance notices.
The act makes it obligatory for certain mandated persons, who have knowledge of or suspect that a child has been harmed, is being harmed, or is at risk of harm, to make a mandatory report to Tusla. Certain exceptions are listed in the act.
Note: making a mandated report does not absolve a mandated person from any obligations to disclose information to a member of An Garda Síochána under the Criminal Justice (Withholding of Information On Offences against Children and Vulnerable Persons) Act 2012.
Assisted decision-making
Although the Assisted Decision-Making (Capacity) Act 2015 was enacted in October 2015, part 7 (dealing with the changes to enduring powers of attorney) has yet to be commenced. Consequently, the regime to be followed is that under the Powers of Attorney Act 1996. Practitioners will note the practice directions of the Probate Administration and Trusts Committee and the transitional arrangements set out in section 81 of the act.
Mediation
The Mediation Act 2017 (‘the 2017 act’) was enacted on 2 October 2017 but has not yet been commenced. The 2017 act makes:
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Provision for the setting up of a scheme for mediation information sessions by the minister (section 23), and
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Some amendments to the Family Law Acts in relation to provision of information to clients on mediation prior to instituting proceedings (ss24-26).
The principal immediate impact of the 2017 act on family law is likely to be to raise the awareness of mediation as an alternative means of dispute resolution among clients and practitioners, which is to be strongly welcomed.
Adoption
The Adoption Amendment Act 2017 came into effect on 19 October 2017 and amends various parts of the Adoption Act 2010. The main changes implemented by the amendment act are:
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All children can be considered equally in terms of their eligibility for adoption – previous automatic restrictions are removed,
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The best interests of the child are recognised as the most important consideration in any adoption application,
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The only legal distinction in relation to a child’s age is that the child must be under 18 years of age at the time of the adoption,
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The right to apply to adopt a child is extended to couples living together in a civil partnership or cohabiting together for at least three years,
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Step-parents can now apply to adopt their partner’s child without that partner (who is already the parent of the child) also applying to adopt the child,
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‘Relevant non-guardians’ are given the right to be consulted about the adoption of the child,
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High Court cases where 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.
Sexual offences
The Criminal Law (Sexual Offences) Act 2017 was enacted in February 2017 and creates a wide range of new criminal offences in relation to child pornography, the grooming of children for sexual exploitation and, in particular, it addresses the role of information and communication technology in committing such offences.
Court rules
The Circuit Court Rules (Family Law) 2017 were introduced on 14 June 2017 (see also p63, November 2017 Gazette), These rules replaced the old order 59 with a more consolidated version and made a number of important improvements to practice and procedure for Circuit Court family law, including:
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A new provision prescribing the ruling of consent terms in family law matters is set out in order 59.35. An application must be made on notice of motion to rule the terms that which is grounded on (a) an affidavit exhibiting the agreed terms, and (b) an updated affidavits of means for each party sworn within six months before of the date of issue of the motion. Where one party does not intend to attend at the hearing/ruling, their agreement or consent must be verified by a means acceptable to the court. Where the orders sought include pension relief, a draft pension adjustment order approved by the trustees of the pension scheme must be submitted at the hearing.
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Where financial relief is sought, both parties (unless they agree otherwise in writing) must vouch affidavits of means within either 28 days of the date of the filing of the respondent’s affidavit of means or 21 days before the date fixed for the case progression hearing.
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Where parties work in one county but reside in another, and neither party nor any dependent children resides in the county, the civil bill or originating notice of motion must contain basis of jurisdiction, setting out details of the place of work of the party in the county.
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Where marriage certificates are not in English or Irish, the original certificate, duly notarised, must be produced, together with a translation verified by the translator on oath or affidavit.
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There is now an opt-in system of case progression operating in Dublin, with a default case progression in the event of cases not being progressed. Case progression outside Dublin remains the same.
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Form 2N replaces and slightly amends the old family law civil bill. Forms 37G, 37H, 37I, 37J and 37L have been upgraded, and new forms 37W and 37X have been added.
Victims of crime
The Criminal Justice (Victims of Crime) Bill 2016 was published in December 2016. The bill aims to strengthen the rights of victims of crime and their families, setting standards on the rights, support, and protection of victims of crime.
Domestic violence
The aim of the Domestic Violence Bill 2017 is to consolidate the law on domestic violence and to extend wider protections to a wider group of applicants, particularly the right to apply for an emergency barring order, to introduce changes to court procedures to facilitate hearings, to extend reliefs to include a prohibition on stalking (including all forms of electronic communication), to provide information about support services for victims, and to permit the referrals to support services for victims.
Assisted human reproduction
The General Scheme of Assisted Human Reproduction Bill 2017 was published on 6 October 2017. The purpose of the bill is to provide for the regulation of a range of practices, including:
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Gamete and embryo donation for assisted human reproduction and research,
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Surrogacy,
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Pre-implantation genetic diagnosis of embryos,
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Posthumous assisted reproduction, and
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Embryo and stem-cell research.
The general scheme provides for the establishment of an independent regulatory authority for assisted human reproduction.
Parts 2 and 3 of the Children and Family Relationships Act 2015 contain:
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Provisions relating to donor assisted human reproduction procedures;
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The rights of donor-conceived people to access information about their genetic heritage;
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Prohibitions on anonymous donation, and
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Provisions for the establishment of a National Donor-Conceived Person Register.
Part 2 and part 3 have not yet been commenced.
Dr Geoffrey Shannon, Joan O’Mahony, Susan Webster, Keith Walsh, and Jane Moffatt of the Family and Child Law Committee.