Guardianship of minors

Recent changes to the rules relating to the appointment of guardians and what to watch out for in your practice.

Alison Kelleher, Comyn Kelleher Tobin
Alison Kelleher
Comyn Kelleher Tobin
Medisec Panel Solicitors

The Children and Family Relationships Act 2015 radically overhauled previous legislation providing for the guardianship of minors. These changes became operational in January 2016 and were introduced to recognise the increasing diversity of modern blended family units.

What is Guardianship?

Guardianship is the collection of rights and duties that a parent or non-parent may have in respect of a child. For example a right to make decisions, including, in some limited cases, consent to medical treatment.

Who is a Guardian?

Mother - historically, a child’s mother, whether married or unmarried, has automatic legal guardianship of the child.

Married father - a child’s father also has automatic guardianship if he is married to the child’s mother, either before or after the birth of the child. Following a separation or divorce, both parents remain the child’s legal guardian, regardless of whether one or both parents have custody of the child.

Unmarried father - a father who is not married to the child’s mother can be appointed as a joint guardian of the child if he and the child’s mother have made a statutory declaration to that effect. In the absence of a statutory declaration, it is currently for a court to decide what, if any, guardianship rights it will grant to an unmarried father, regardless of whether or not his name is recorded on a birth certificate.

However, in the future, guardianship will be acquired automatically by an unmarried father where he has lived with the child’s mother for at least 12 consecutive months after 18th January 2016, including months after the child’s birth.

It should be emphasised that the naming of an unmarried father on a birth certificate is often misunderstood as an automatic right to guardianship, when in fact this is not the case.

Foster parents are not guardians. However, some foster parents may be given enhanced rights by a court in special circumstances where they have fostered the child for at least five years. In all other cases, foster parents do not have the same rights as guardians.

Who else can be appointed under the new rules?

With these new legislative changes, for the first time express provision has been made for the appointment of multiple guardians for a child. Previously, multiple guardians could only be appointed under very limited circumstances where a parent died without appointing a testamentary guardian.

Now, a parent’s spouse, civil partner or cohabitant of no less than three years will be able to apply for custody or guardianship where he or she has shared parenting of the child for the past two years.

Any person can now also apply to court for guardianship or custody of a child where he or she has undertaken the child’s day-to-day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

Temporary guardians can also be appointed by the court for the first time. This can happen when a guardian nominates a replacement guardian in writing and can set out in that document any limitations they would like to impose on that person’s right of guardianship. The nominated person can apply to the court to activate their rights of guardianship. It is at the court’s discretion whether to appoint the temporary guardian, and the court can limit the extent of the temporary guardian’s rights whilst appointed, for example whether the temporary guardian can consent to medical treatment.

Recording Guardianship in your Practice

Frequently, there are misunderstandings as to whether an unmarried father is a guardian.

Unfortunately, where statutory declarations are signed by the parents, there is no central register for these declarations and the parents simply keep copies of the declarations themselves.

When registering a new child patient, you should make appropriate enquiries of the child’s parent or guardian. To avoid confusion, if you are told that a guardian has been appointed to a minor patient then it is good practice to ask for a copy of the court order or declaration and keep it on the child’s records for future reference.

Multiple Guardians. Potential for Conflict?

As already mentioned, the Act recognises the potential for the appointment of multiple guardians, for example new spouses of parents. An appointment of non-parents as guardians will only be made with the consent of each guardian of the child. However, where it is felt that the appointment of an additional guardian is in the best interests of the child, a court can use its discretion to dispense with a guardian’s consent if it is found to be unreasonably withheld. In practice, it is not anticipated that multiple guardians will be a very common occurrence but you should be aware of this possibility.

If a court appoints a guardian to a child where one or both parents are alive, the additional guardian will not have the right to make certain important decisions about the child unless that right is expressly granted by the court. Instead, the additional guardian’s rights may be limited to making day-to-day decisions on behalf of the child.

As the additional guardian’s right to make important decisions is discretionary, a court may or may not extend the guardian’s right to be able to consent to medical, dental and other health-related treatment for the child. Therefore, it is essential that you are aware of the extent of a guardian’s right to provide consent to treatment on a child’s behalf and this should be easily clarified by having a copy of the court order on file.

Consent to treatment of a minor by a Guardian

The consent of a parent or guardian is required to treat a patient under the age of 16.

In practice however, it is appropriate to seek consent from a minor where the child has the capacity to understand the nature and implications of the proposed treatment or procedure. Even when children lack the capacity to give consent, they should still be involved in the decision-making process.

If a parent or guardian and a child are in agreement about a medical decision then this should not present a problem. However, if parents, guardians, a child or a GP are in disagreement then care should be taken.

Children in Care

As already set out, a foster carer does not have the same rights as a guardian unless the foster parent has enhanced rights appointed by a court in very specific circumstances. When treating a child who is subject to a statutory careorder, the child’s parents or guardians should be consulted where possible.

However, the Child and Family Agency is authorised to consent to any necessary assessment, examination, medical or psychiatric treatment on behalf of a child in care. In practice, the child’s social worker is usually the appropriate person to provide the consent.

Best Interests of the Child

Where there are two or more parents or guardians with appropriate rights who share parental responsibility, it is usually sufficient for one parent or guardian to give consent to day to day treatment. However, where decisions may have profound and or irreversible consequences, both or all parents or guardians should be consulted.

The rule of thumb is that the more complex the decision, or the more serious the situation, the greater the need to include all parents and guardians in your discussions. Where there is reason to believe that the parents or guardians may not be in agreement with one another, you should always seek the consent of all parents or guardians.

In all cases, the best interests of the child must be the paramount consideration.

If you are concerned that a parent or guardian may make a decision on behalf of a child that is likely to adversely affect the interests of a child, the best course is to contact Medisec for specific advice on individual cases.

Accessing Records

As a general rule, parents and guardians who have been appointed the appropriate rights have a right to request access to a child’s records. If it is felt that the minor is sufficiently mature to understand the implications of the release of his or her records, then his or her consent should be obtained before allowing access. If the patient is too young and/or lacks capacity to consent to the release of the records, then the records should only be released when you are satisfied that it would be in the patient’s interests to do so. In situations where it may not be in the child’s best interest to release the information, then you are advised to err on the side of caution and consult Medisec for further advice.

Summary

The changes described above have modernised the law in this area by extending parental rights and responsibilities to non-traditional families. If you are faced with a potential involvement of a guardian in a child’s treatment decision, it is important to firstly clarify the precise role of the guardian and whether they have the necessary rights to consent on behalf of the child. Above all else, it should be remembered that your paramount responsibility is to act in the minor patient’s best interests.


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