Guardianship and right to determine place of residence (WRT Hague Convention).

Bajer

Hi, does anyone know the exact article of law that states that being a child's legal guardian grants the guardian the right to determine the child's place of residence? I am involved in a Hague case and am well aware that for an unmarried father to be able to petition for the return of his child under the Hague Convention, he must be the child's legal guardian (or have initiated court proceedings seeking guardianship). I do have legal guardianship of my daughter, and on the basis of this, the Irish Central Authority for Child Abduction, accepted my case. Article 5 of the Hague Treaty states “that for the purposes of this convention, rights of custody shall include rights relating to the care of the child, and in particular, the right to determine the place of residence of the child.” I know that guardianship confers this right and that Article 16 of the non-fatal offences against the person act make it a criminal offence to remove a child from the State without the permission of the other parent/guardian, but I can't find the exact article of legislation that conveys this right to a guardian. I would have thought that the Guardianship of infants Act, 1964 would grant this right, but the closest thing in that Act is Section 10, which states:

"10.—(1) Every guardian under this Act shall be a guardian of the person and of the estate of the infant unless, in the case of a guardian appointed by deed, will or order of the court, the terms of his appointment otherwise provide.


(2) Subject to the terms of any such deed, will or order, a guardian under this Act—


(a) as guardian of the person, shall, as against every person not being, jointly with him, a guardian of the person, be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the infant;"

Is Section 10(a) of this Act the relevant piece of legislation which gives a guardian the right to determine the "place of residence" in the context of the Hague Convention?

Thanks in advance,
Bajer

blueythebear

Bajer wrote: »

Hi, does anyone know the exact article of law that states that being a child's legal guardian grants the guardian the right to determine the child's place of residence? I am involved in a Hague case and am well aware that for an unmarried father to be able to petition for the return of his child under the Hague Convention, he must be the child's legal guardian (or have initiated court proceedings seeking guardianship). I do have legal guardianship of my daughter, and on the basis of this, the Irish Central Authority for Child Abduction, accepted my case. Article 5 of the Hague Treaty states “that for the purposes of this convention, rights of custody shall include rights relating to the care of the child, and in particular, the right to determine the place of residence of the child.” I know that guardianship confers this right and that Article 16 of the non-fatal offences against the person act make it a criminal offence to remove a child from the State without the permission of the other parent/guardian, but I can't find the exact article of legislation that conveys this right to a guardian. I would have thought that the Guardianship of infants Act, 1964 would grant this right, but the closest thing in that Act is Section 10, which states:

"10.—(1) Every guardian under this Act shall be a guardian of the person and of the estate of the infant unless, in the case of a guardian appointed by deed, will or order of the court, the terms of his appointment otherwise provide.


(2) Subject to the terms of any such deed, will or order, a guardian under this Act—


(a) as guardian of the person, shall, as against every person not being, jointly with him, a guardian of the person, be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the infant;"

Is Section 10(a) of this Act the relevant piece of legislation which gives a guardian the right to determine the "place of residence" in the context of the Hague Convention?

Thanks in advance,
Bajer

This is a question you should be asking your solicitor but I think you may be looking for Article 5a) of the Hague COnvention 1980.

I would also look at the High Court case of
RC v IS (2003) 4 IR 431
http://www.bailii.org/ie/cases/IEHC/2003/86.html

Of course, this should be a question that your solicitor should be answering. If you do not have a solicitor, I couldn't stress enough that you get one as this is a complicated matter as shown by the question you asked in and of itself!

James Jones

I'm not sure if the definition of Guardianship in S.I. No. 5/1998 would cover it

6. Guardianship is the collection of rights and duties which a parent has in respect of his or her child. It encompasses the duty to maintain and properly care for the child and the right to make decisions about a child's religious and secular education, health requirements and other . The exercise of guardianship rights may be agreed between parents. In the event of a dispute arising concerning the exercise of guardianship rights the court may determine the matter on the application of either parental guardian. The right to custody is one of the rights that arises under the guardianship relationship. Custody is the physical day to day care and control of a child. Even where one parental guardian has custody of a child the other parental guardian is generally entitled to be consulted in relation to matters affecting the welfare of the child.

Guardianship...encompasses the right to make decisions about... matters affecting the welfare of the child.

Also, have a look at the argument HERE.

Bajer

Thanks guys - I had posted a long reply, but lost it as I had been logged out. Suffice it to say, that the link you posted Bluey appears to be exactly what I was looking for.

Bajer