What is Guardianship?

Guardianship is a legal term for the rights and responsibilities that a parent has in relation to their child.

These responsibilities include the duty to financially maintain and care for the child. They also include the right to make decisions in important areas of the child’s life such as how they are educated, the school they attend, consent to medical treatment, where they live, and any religion they might follow.

Guardians are required to give consent when obtaining a passport for a child, and also must consent to a child leaving the country for any reason. They may also have a right to be involved in other aspects of a child’s life and in matters affecting the child’s welfare.

Who can be a guardian?

Married Parents

Where parents are married, both parents are automatically joint guardians of their child. This does not change after separation or divorce, regardless of who has primary care of the children (that is, regardless of where the children live most of the time).

Unmarried Parents

When the child’s parents are not married, the mother is automatically the child’s sole legal guardian. There are some exceptions to this as a result of the Child and Family Relationships Act 2015.  That act provides that the father becomes joint guardian under certain circumstances set out here.

If the mother agrees to joint guardianship

Where the parents are not married, and the requirements to allow automatic guardianship for the father are not met, the father can become joint guardian with the mother if the mother agrees. To do this, both parents must sign a joint statutory declaration which must be signed in the presence of either a Peace Commissioner or Commissioner for Oaths. A declaration must be made for each child where there is more than one child.

The statutory instrument containing the declaration is here: SI 210 of 2020 (pdf)  This is an important legal document, and once finalized should be kept safely by both parties.

If the mother does not agree to joint guardianship

When a child’s mother does not agree that the child’s father may be appointed as joint legal guardian, the father can apply to the District Court to be appointed as one. It would be a good idea to get some legal advice about this; however legal representation is not necessary. It is important to note that the father’s name does not need to be on the child’s birth certificate to apply for guardianship.

Can a step-parent, civil partner or cohabitee become a guardian?

A step parent, civil partner or a person who has cohabited with a partner for a period of at least 3 years can apply to the court to become a guardian of their partner’s child. To apply, they must have been in a co-parent role to the child for over 2 years.

Can a step-parent, civil partner or cohabitee become a guardian?

Family members such as grandparents and others who have acted in “loco parentis” (in the place of the parent) may apply to court for guardianship. If the person has cared for a child on a day to day to basis, continuously for 12 months, and there is no parent or guardian able or willing to exercise the rights and responsibilities for the child, then they may apply for guardianship.  This may be a grandparent caring for their grandchild or a foster parent caring for a child.

This is a brief outline of the issue of guardianship. It is not offered as legal advice and is not intended as a substitute for consultation with a legal advisor. It is essential that anyone dealing with these issues seeks legal advice in order to decide how best to proceed in the individual circumstances.

 Although every effort has been made to ensure that the information is presented accurately and clearly, the content of One Family website is intended for informational purposes only. Neither the author nor One Family can be held responsible for errors or for any consequences arising from the use of information contained herein.