New Foster Parents “Guardianship” Rights

Foster Parents Get “Guardianship” Rights For First Time

Foster Parents throughout the country are now starting to take up “guardianship” rights in relation to the children placed in their care under court orders with the Health Service Executive. This welcome development, brought in for the benefit of the children, has been made possible by the enactment of the Child Care (Amendment) Act 2007, which brought into law Section 43A of the Child Care Act 1991.

The law provides for a slightly different procedure in relation to matters if the child is in care under Section 4 (by consent) or under Section 18 (contested) and Ken Heffernan, Family Law Solicitor, sets out below a short guide to this new option for foster parents in Cork and throughout Ireland.

In simple terms, the court may grant an order in relation to “guardianship” for the child in favour of foster parents or relative of the child if satisfied:
(a.) that they have been taking care of the child, under a care order for a period of not less than five years,
(b.) that the granting of the order is in the child’s best interest,
(c.) that the HSE has consented in advance of the granting of the order,
(d.) that the HSE has given notice of the application to the child’s parents and
(e.) the child’s wishes have in so far as is practicable been given due consideration having regard to his of her age and understanding.

Provided the criteria are met the court may grant a “guardianship” order which shall authorise the foster parents:
— to have, on behalf of the Health Service Executive, the like control over the child as if the foster parent were the child’s parent and,
— to do, on behalf of the Health Service Executive, what is reasonable in all the circumstances of the case for the purpose of safe guarding and promoting the child’s health, development or welfare and in particular give consent to (i)any necessary medical or psychiatric examination or treatment or assessment with respect to the child and, (ii)the issue of the passport to or the provision of passport facilities for the child to enable the child to travel abroad for a limited period.

Within the correct meaning of the term under the law the order that may be granted by the court here is not a guardianship order, such as may be granted to a natural father, but rather it is an order that allows the foster parents to have more control, involvement and authority for the child than up to now. With this in mind Ken refers to the order as a “guardianship” order to reflect the reality of the assistance that it provides for the foster parents in dealing with everyday life with their children. Deirdre McTeigue, Director of the Irish Foster Care Association has said that whilst the Association had campaigned for full guardianship rights for foster parents, the implementation of this change will mark a significant improvement for children and parents who obtain such an order, and that is very welcome.

The law provides that in granting the order sought the court may impose any conditions or restrictions it thinks fit as to the extent of the authority of the foster parent to whom the order is granted. The law makes it clear that any consent given by a foster parent in accordance with an order under this section shall be sufficient authority for the carrying out of a medical or psychiatric examination or assessment, the provision of medical or psychiatric treatment, the issue of a passport as the case may be.

The “guardianship” order in favour of the foster parents would not prevent the HSE from giving consent in relation to treatment or the issuing of a passport and in addition any arrangement or order that is in place in relation to access for the child continues in place unless the court makes a further order or varies such order when granting the “guardianship” for the foster parents. The “guardianship” order does not prevent the court from making a further order. The law provides that the court may vary or discharge such a “guardianship” order on application by the foster parents, the HSE, the natural parents of the child or a person who has a bona fide interest in the child. The law also provides that the “guardianship” order will cease to have effect if the care order is discharged, if the child is removed from foster parent custody by the HSE or at the foster parents’ request, or when the child reaches the age of eighteen years or marries whichever happens first.

Ken’s experience in dealing with these matters on a practical level before the courts means that he says that the first step to be taken involves applying to the court for an order allowing for the release of confidential information in relation to the child’s care proceedings to him as the solicitor for the foster parents so that he can draft the appropriate application in relation to “guardianship”. This is not something that would cause any difficulty. Ken says that once he has official sight of the care order he will then be in a position to draft the application in relation to “guardianship” and advise fully on the “guardianship” application and hearing which will be brought before the judge for a decision, which decision will be made with the best interests of the child as the priority.

Ken is aware that this important change in the law has come about in no small part due to the campaigning efforts of the Irish Foster Care Association who continue to campaign for changes in legislation and improved standards for children in care.