Parental Separation -Implications for the school - 2019

Parental Separation Implications for the School

In 2011, 87,700 people described themselves as divorced, 116,000 described themselves as separated or divorced, 215,000 parents as lone parent families and 143,561 couples were living as a cohabiting unit. There were 4,042 same sex couples in 2011. The 34th amendment to the Irish Constitution in May 2015 permitting same sex marriage and The Children and Family Relations Act 2015 recognise that Ireland has changed socially. The diversity of family units and the increase in parental separation has resulted in increased demands being made on schools where their child or children are enrolled. This resource bundle aims to clarify the roles and responsibilities of the school and to answer the most frequently asked questions that we receive in the IPPN National Support Office. For the purpose of this resource bundle, the child is referred throughout in the singular format.

The main provisions of The Children and Family Relations Act 2015 came into effect on the 18th of January 2016. The courts will take the view that the child’s best interests are of paramount importance.

The above table illustrates the changing landscape of the composition of Irish families. In 2016, 36.5% of all registered births in Ireland were outside either marriage or civil partnerships.

2 THE CHILDREN AND FAMILY RELATIONSHIPS ACT 2015

The Children and Family Relationships Act 2015 Act was commenced on 18 January 2016. It is an attempt to recognise the increasing diversity of family life. It amends a suite of family law legislation to include the Custody and Guardianship of Infants Act 1964. Fundamental to the Act is that the best interests of children are at the core of decision making. The role of the school is always very important and the judges seem to attach great significance as to how the child is progressing at school attendance, progress in school etc.

2.1 WHAT IS GUARDIANSHIP?

Guardianship is a matter determined by reference to the circumstances of a child’s birth. It incorporates rights and duties to maintain and properly care for a child. The decisions reserved to guardians include decisions on the child’s place of residence, his/her religious, spiritual and cultural upbringing and on medical matters, education, placement for or consent to adoption of a child and on the issue of a passport for a child. Custody is a right of guardianship. Testamentary Guardianship allows for a guardian to make a will and appoint any person to take their place as guardian in case of the death of that guardian.

Prior to the 2015 Act, unmarried fathers were persistently excluded from constitutional protection. This was no surprise given that our Constitution of 1937 reflected social attitudes of the time. Now a range of persons actively supporting and rearing children may seek guardianship in certain situations. This can only have a positive impact on the lives and education of children. Prior to the commencement of the Act, non-marital fathers could acquire guardianship either (1) by agreement with the mother using a Statutory Declaration signed by both parents or (2) by Court Order, where the mother is not in agreement but the father applies to the District Court for guardianship and the judge makes an assessment of whether it is in the child's best interests to have the father as a guardian. Judges are very slow to deny guardianship unless there are very compelling reasons.

2.2 WHAT IS CUSTODY?

Custody essentially means physical control and care. The rights of groups like grandparents have been greatly enhanced by this legislation.

2.3 WHAT IS ACCESS?

Access is a right and duty of visitation, allowing the person with access to visit and communicate with a child on a temporary basis. Access is to allow the child to maintain contact with parents and other relatives. Access is a right of the child, not the adult.

The main provisions of the Children and Family Relationships Act 2015 Act that concern schools are as follows:

2.3.1 Guardianship

1. A non-marital father will automatically become the guardian of the child if he lives with the child’s mother for at least 12 consecutive months, including 3 months after the child’s birth. This provision is not retrospective - only cohabitation after the commencement date will be taken into account.

2. A person other than a parent may become a child’s guardian. A person can apply to the court to be appointed as a child’s guardian if married to or in a civil partnership with the child’s parent or if s/he has cohabitated with the child’s parent for over 3 years and if the person has shared responsibility for the child’s day-to-day care for more than 2 years. It will be possible for the court to appoint a person i.e. (grandparent) as a child’s guardian if that person has been responsible for the child’s day-to-day care for more than 1 year and if no parent or guardian is willing to assume the responsibilities of guardianship.

3. The powers of court-appointed guardians will generally be limited to decisions on day-to-day matters.

2.3.2 Custody

1. A parent’s spouse, civil partner or cohabitant of not less than 3 years will be able to apply for custody where s/he has shared parenting of a child for 2 years. A person can also apply for custody if s/he has parented the child for a year and if there is no parent or guardian willing or able to exercise the powers and responsibilities of guardianship.

2. A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day-to-day care for more than 12 months and again no parent or guardian was willing or able to act as guardian.

2.3.3 Access & Maintenance

1. Relatives of a child such as grandparents or those acting in loco parentis will be able to apply to have access to children more easily in the context of relationship breakdown.

2. The court can impose enforcement orders where a parent or guardian has been denied custody or access. These may include requiring that he or she get compensatory time with the child, that his/her expenses be reimbursed or that one or both parties attend parenting programmes, family counselling or receive information on mediation.

3. A maintenance responsibility may be imposed on a cohabiting partner for a partner’s child where the partner is a guardian of the child.

2.3.4 Civil Partners

1. A child co-parented by civil partners will have the same protections as are enjoyed by a child or family based on marriage. The court will be able to order a civil partner to pay maintenance for the support of a dependent child of the civil partners, including where the child is the child of only one of the civil partners.

2.3.5 Parental Disputes

It is inevitable that parental disputes spill into school. One day a parent may claim that the other parent can no longer collect his/her children. In situations like this it is advisable to seek a copy of the court order giving this new power to the particular parent. Court orders can be temporary. If you are not clear about the order, or think it has expired, seek a solicitor’s letter confirming the arrangements. A solicitor is an officer of the courts. If you find yourself under pressure to make a judgement call, defer your decision in order to seek advice.

2.4 THE ATTITUDE OF THE COURTS

A child’s best interests will be the paramount consideration for the court in proceedings on guardianship, custody or access. School leaders would be well advised to follow the same road map in relation to parental disputes.

2.5 THE DOMESTIC VIOLENCE ACT 2018

This Act provides new protections for victims of "coercive control," a type of emotional and psychological abuse aimed at stripping a person of their self-worth and agency. The Domestic Violence Act 2018 commenced in January 2019 and replaces the Domestic Violence Act 1996 and the Domestic Violence (Amendment) Act 2002.

2.6 WHAT IS A PROTECTION ORDER?

This order prohibits the use of violent threats. It’s an interim measure pending determination of barring/safety order proceedings.

2.7 WHAT IS A SAFETY ORDER?

A safety order prohibits the violent person from committing further violence or threats. It bans communications to include electronic devices. It may be a long term version of a Protection Order. (5 years max). Safety Orders are often used when separation/divorce orders are pending. They are often invoked when there is spouse/partner addiction.

2.8 WHAT IS A BARRING ORDER?

A barring order directs a person to leave the family home. It prohibits the use or threat of use of violence or besetting the house. The views of children are also considered. Tusla can seek such an order on behalf of the family. In 2018 approximately 70% of barring orders were refused.

3 ADDITIONAL RESOURCES FREQUENTLY ASKED QUESTION

1. Are separated and divorced parents entitled to receive school reports and attend parent/teacher meetings?

If parents are married to each other and live together

Then both parents have joint guardianship and Custody

Parents are entitled to information in joint communications

If parents are married to each other but live apart

Then both parents have joint guardianship and custody unless it is otherwise specified by court order in which case a copy of the order which relates to the school should be sought..

Each parent is entitled to information from the school. Communication should be sent to both parents and the means of this communication would need to be clarified with both parents. A written record of the arrangement is advised.

If parents are married to each other, do not reside together but have a separation agreement

Then it will be necessary for the school to ascertain the legal arrangements with regard to custody and access. Custody may either rest with one parent or there may be joint custody arrangements put in place. The relevant court orders should be furnished to the school.

Each parent is entitled to information about their child. Communication will be to each parent separately. A written record of the agreed arrangements for communication is advised

If parents are married to each other, live apart and may be in a new relationship(s)

Then the partners in any new relationship do not have any statutory rights with regard to custody and access. For instance they do not have a right to attend Parent/Teacher meetings.

Parents are entitled to information in separate communications. There may however be an arrangement whereby a new partner may collect children from school. Details of these agreements either between the parties or made through court order will need confirmation and a written record kept.

If parents are not married and either live together or apart

A non-marital father will automatically become a guardian of a child if he meets the cohabitation requirement. An unmarried father who cohabits for 12 months with the child’s mother, including 3 months following the birth, will automatically become the child’s guardian. This provision is not retrospective, so guardianship will only be acquired automatically, where the parents live together for at least 12 months after 18th January 2016.In this instance the father is entitled to joint custody along with the mother.

2. Who can collect a pupil from school? (IPPN

351)

Parents are entitled to information in separate communications.

The issue of child custody as it applies to the right of either parent/guardian to collect their child from school is often highly charged with emotion and great pressure can be put on principals and teachers.

A Common Scenario

One parent informs the principal that there is a relationship breakdown with the added hypothesis that the estranged parent may collect the child and abscond. Such a scenario is quite frightening and presents nightmare images. From the principal’s perspective there is no legal basis for the class teacher or principal to deny either parent or guardian the right to collect his/her child from school unless there is a Court Order instructing the school otherwise. A solicitor’s letter is not a Court Order

Some recommendations:

Inform the parent/guardian that requests for denial of access to the other partner are outside the jurisdiction of the school and therefore the school is unable to pass judgement on rights of access/collection

Suggest that if there is a serious concern about abduction or leaving the country with the child, then the parent/guardian report their concern to the Gardaí and request their solicitor to seek a court order instructing the school and any other carers of the child regarding rights of access/collection etc The school can offer maximum co-operation and support to the concerned parent/guardian along the lines of the following:

o The Principal assures the concerned parent/guardian that maximum awareness and attention will be given by the class teacher and others in the school who are involved in the care of their child with respect to all aspects of parent-school communication and the collection of children

e-scéal

o In the case where the estranged parent/guardian is not known to the class teacher (often the case in larger schools), then the concerned parent/guardian

Should provide a family photograph enabling the class teacher to identify the person in question.

These practical measures can in no way deny either parent/guardian access to their child, but are based on basic humanitarian support for a distressed parent/guardian. Ultimately only a court order can change the existing rights of both parents/guardians.

These practical measures can in no way deny either parent/guardian access to their child, but are based on basic humanitarian support for a distressed parent/guardian. Ultimately only a court order can change the existing rights of both parents/guardians.

3. What should the school do if a parent wishes to use the school premises as a venue for informal access? A teacher acts in loco parentis during school hours and parental attempts to use the school premises as a venue for informal access should be declined.

4. Is a school obliged to provide a third party (e.g. solicitor) with a report/statement favouring a particular parent in a family law dispute?

The best interests of the child are paramount in all school actions. It is advisable for schools to remain impartial in parental dispute cases. A school is not obliged to provide any report/statement to a solicitor. However, a school may be subpoenaed by the courts. In this instance, information should be factual based, supported by verifiable data (attendance, progress or other school-related matters) and not the opinion of the individual teacher or principal.

5. What information should a school provide in a child’s case conference hearing? A teacher is only required to attend court under summons or subpoena. However, they may attend court voluntarily. Generally, the format of the report by a school should be that of an end of year report with a focus on their professional expertise (teaching & learning), supported by verifiable data. For example: child’s attendance, progress or other school- related matters. It should not be based on the circumstances of the parental relationship.

4 USEFUL RESOURCES

PUBLICATIONS

Leadership+ Issue 54 - Legal Diary “Separated parent challenges school policy on PT meetings

Leadership+ Issue 76 - Legal Diary “Separated father fails in anti-discrimination case against schools”

Leadership+ Issue 94 - Legal Diary “The Children and Family Relationships Act” 2015

IPPN.IE RESOURCES

Custody & Separation Policy

Family Law & The School Principal

USEFUL LINKS

Treoir

Citizens Information