The courts will take the following into consideration when determining custody, access & guardianship of a child: Religious welfare of the child, moral welfare, intellectual welfare, physical welfare, social welfare, emotional welfare, tender years principal in relation to the custody of younger children, parental caring capacity, keeping siblings together, keeping siblings with the Marital Father where the mother is deceased and the wishes of the child
- Custody is the right to the physical care and control of a child. When the parents of a child in Ireland separate and they cannot agree on who should have custody of the child, the court will decide. The married parents of a child are automatically joint guardians and custodians of their child. In the case of a child born to an unmarried mother the mother is automatically the child’s guardian and sole custodian.
- Access -Where a parent remains a guardian but does not obtain custody of a child they are entitled to apply for access to the child. The best interests of the child must take precedence where there is conflict between the child’s rights and parents’ wishes in relation to access. An access order is never a final order and can be varied at any time.
- Guardianship - Guardianship bestows rights and duties on parents in respect of the upbringing of their children. It encompasses the duty to maintain and properly care for the child and refers to the decisions that must be made during the childs lifetime which relate to the general lifestyle and development of the child such as education, religion and general rearing. The natural mother of a child is automatically a guardian of the child.
- Protection of children in emergencies - Part III of the Child Care Act 1991 governs the protection of children in emergencies. Members of the Garda Siochana and the HSE are given powers under the act to remove a child to safety when there are reasonable grounds for believing there is an immediate and serious risk to the health and welfare of the child
- Access to children in care - Section 37 of the Childcare Act 1991 obliges the HSE to facilitate reasonable access to the child in care by his parents or any other person acting in loco parentis in respect of the child or any other person with a bona fide interest in the child. If a person is unhappy with the access granted, it is open to such person to apply to the court for appropriate directions. In such cases a court may make an order regarding access to the child by the applicant. It is also open to the court to preclude access by a named person.
Termination of children in care:
There are certain situations where a child is deemed to be no longer in the care of the HSE:
- Where a child reaches the age of eighteen or where a child marries.
- Where a child has voluntarily been placed in the care of the HSE such care will be terminated by a decision of the parents to resume custody.
- Where a care order is discharged by the court.
- Where an emergency care order made under s.13 or an interim care order expires and is not renewed.
- Invalid Orders - If a court makes a determination that a care order is in some way invalid, it may refuse to exercise any power to return the child to a parent or any other person if it is of the opinion that to do so would not be in the best interests of the child. In such circumstances the court had the power to make a new care order.