Family Law Matters

DCTF

The following scenario is whether a father who has joint guardianship by way of the signing of the statutory declaration has to hand over a child to the mother in certain circumstances?

Both father and mother of the child share custody by agreement with no court order in place. The father has the child probably more of the time than the mother on average.

The relationship broke down earlier in the year due to the mother having problems with alcohol. On a number of occasions the mother was hospitalised and has passed out due to alcohol at home with neighbors having to intervene and mind the child until the father returned home.

During the week the father receives a phone call and is told the mother quit her job and is intending to return permanently to another part of the country near family. The person who made this call is a direct close family member of the mother and is concerned for the welfare of the child and doesn't think it the best idea for the mother to take the child. The mother continues to drink to excess and has failed to take the child when she was scheduled to do so on occasions.

The father has made an application to court for custody but hearing date is in September.

Is the father entitled to not let the child go with the mother as there is direct concerns for the welfare of the child. We're not talking about the entire removal of visitation but that she should not be allowed to move to the other side of the county taking the child.

Surely then at it's basic level as a guardian the following applies; “If you are a guardian of a child in Ireland, you have a duty to maintain and properly care for the child and you have a right to make decisions about the child's religious and secular education, health requirements and general welfare”.

Also the principles that should inform best practice in child protection as per recent children first guidelines include the following:

(ii) a proper balance must be struck between protecting children and respecting the rights and needs of parents/carers and families; but where there is conflict, the child's welfare must come first;

Now I know this is not a legal advice forum but I'm curious in this regard as I work in a certain legal field and have been discussing this with colleagues each with our own point of view. Obviously the matter will be dealt with in court in September but at the moment what is the legal position on the returning of the child if the father fears it will put the child at risk.

Obviously if there was immediate risk and the child was in the mothers care the Gardaí could be called and S12 of the Childcare Act 1991 be invoked removing the Child to a place of safety which could be the HSE or more likely the father.

However if the father lets the child go with the mother knowingly putting the child at risk due to his knowledge of her behavior and the child is injured / neglected etc is the father complicit.

Should he wait to be instructed to hand over the child to the mother at which point he could state he would do so to comply with the law but that he is doing so under duress as he feels it's not in the best interests of the child.

The points of view of some of you would be appreciated on this matter.

DCTF

Anyone have anything to add to this matter?

Procrastastudy

I think you're running foul of the charter and the fact that something as complicated of this needs the attention of a professional.

DCTF

Sorry I didn't think I was breaking the charter as it's not me it's a scenario based on a real life situation. I have a certain working knowledge of the law from my job but I just wanted to hear some opinions from the opposite side as all my colleagues have the same training and are more used to the practical application of the law.

Procrastastudy

Seems to have a wee bit more info than most hypotheticals - I'd be naff all use to you anyway I know nothing about Family Law. I was merely suggesting why you may not have had any replies. Hopefully some one with an idea might pop in in Monday (well Monday working day)

johnnyskeleton

DCTF wrote: »

Sorry I didn't think I was breaking the charter as it's not me it's a scenario based on a real life situation. I have a certain working knowledge of the law from my job but I just wanted to hear some opinions from the opposite side as all my colleagues have the same training and are more used to the practical application of the law.

In those circumstances, my advice is to butt out of your friend/colleagues family law situation. You'll do no favours to him, her or the child an will receive no thanks but plenty of grief.