Legal Guardianship

What is Guardianship?

Guardianship is the collection of rights and duties that a parent (or non-parent – see below) may have in respect of a child. For example, a guardian has a duty to maintain and properly care for the child and has the right to make decisions in the major areas of the child’s life e.g. religion, school, adoption, consent to medical treatment, passports and decisions about taking the child out of the country, where the child lives and other matters affecting the welfare of the child.

Who Are a Child’s Guardians?

Married parents of a child are joint guardians and have equal rights in relation to their child or children.

Unmarried parents do not automatically have equal rights. For children born outside of marriage, only the mother has automatic rights to guardianship.

Even if a father’s name is registered on the child’s birth certificate, this does not give him any guardianship rights in respect of his child.

An unmarried father will automatically be a guardian if he has lived with the child’s mother for 12 consecutive months (after 18 January 2016), including at least 3 months with the mother and child following the child’s birth.

If the mother disputes the length of time they have lived together, the father can apply to the Court for an order appointing them as guardian.

No, not always. If the mother agrees, the father can become a joint guardian if both parents sign a statutory declaration. This must be done in the presence of a peace commissioner, commissioner for oaths or a practicing solicitor.

The declaration must state the names of the parents of the child, that they are unmarried and that they agree that the father should be appointed as a joint-guardian.

It should also state that the parents have agreed arrangements regarding custody of and access to the child.

A separate statutory declaration should be made for each child.

The Court is always most concerned about the welfare of the child or children.

While the mother’s views are taken into account, the fact that she does not consent to the guardianship application does not automatically mean that the Court will refuse the order sought by the father.

No, other people involved in the child’s life are entitled to apply for guardianship. These include:

  • A step-parent;
  • A civil partner;
  • Someone who has cohabited with a parent for not less than 3 years may apply where they have co-parented the child for more than 2 years;
  • A person who has provided for the child’s day-to-day care for a continuous period of more than a year ((e.g. a grandparent) may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship.

If you are, or are appointed a guardian of a child, it is very important that you make a Will in which you appoint another guardian to care for your child if you pass away. If there is a surviving guardian, they will jointly care for your child or children.

Under the Children and Family Relationship Act 2015, a partner or cohabitant in a same sex relationship, can apply for guardianship of a child provided they have shared parenting responsibility for the child for over 2 years. The applying cohabitant must also have lived with the parent for over 3 years at the time of the application.

From May, 2020, the mother of a donor-conceived child will be allowed to name the second parent, regardless of that person’s sex, on the child’s birth certificate. The child will have a birth cert naming both parents. Legal rights in relation to a child flow from guardianship, not the birth certificate, so it is important to apply for guardianship at the earliest opportunity to safeguard your rights in relation to the child. Read more about this on our dedicated page ‘Cohabiting, Unmarried & Same Sex Couples’.

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