Parental Separation Implications for the School
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In this Resource Bundle INTRODUCTION ...................................................................................................................................... 1 SECTION 1: PARENTAL SEPARATION & RIGHTS OF PARENTS .................................................................... 2 SECTION 2: CUSTODY DISPUTES & THE COURTS ....................................................................................... 4 SECTION 3: CHILDREN IN CARE ................................................................................................................ 5 SECTION 4: ADDITIONAL RESOURCES FREQUENTLY ASKED QUESTION...................................................... 6 USEFUL RESOURCES................................................................................................................................ 9 PUBLICATIONS .................................................................................................................................................... 9 IPPN.IE RESOURCES ............................................................................................................................................. 9 USEFUL LINKS ..................................................................................................................................................... 9
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INTRODUCTION
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.
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SECTION 1: PARENTAL SEPARATION & RIGHTS OF PARENTS
Guardianship, Custody and access are common legal terms that are often cited to schools when parents separate. A definition of each is provided in the context of each family unit as well as examining the school’s role when communicating with separated parents. Understanding Guardianship: Guardianship is the legal relationship between a parent and his/her child. A child needs a guardian until the age of 18 years. There is a duty on the guardian to properly care for the child and to make decisions about the child’s education, health, religious upbringing and general welfare. Essentially the issue of guardianship super- sedes that of custody. Marital Relationship: In a marital relationship, both parents are automatically the legal guardians of the child and continue to exercise this right where marital breakdown or separation occurs, unless there is a court order stating otherwise. In the case of the latter, it would be advisable for the school to seek a copy of the court order and to clarify its impact, if any, on the school. A copy of the court order should be filed in the pupil’s folder. If the court order is more than 12 months old the school could ask for a solicitor’s letter confirming that the court order is still in place. Parental Partnership: A mother who is not married to the father of her child is automatically the child’s guardian, unless a state agency (e.g. HSE) intervenes and places the child in care. In this instance, the social worker may become the legal guardian of the child. A father’s name on the birth certificate does not confer guardianship rights. However, a parental agreement, which is by a joint statutory declaration made by the mother can be sought in order to grant the father guardianship rights to the child. In this instance, a copy of the parental agreement should be sought and filed in the pupil’s folder. 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.
Non Parents Court Appointed Guardians A person other than a parent may also become a child’s guardian. A parent’s spouse, civil partner or cohabitant of not less than 3 years may become the guardian of the child and if the person has shared responsibility for the child’s day-to-day care for more than 2 years. It will also be possible for the court to appoint a person 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. (an example might be a grandparent or other relative). The powers of court appointed guardians will generally be limited to decisions on day to day matters.
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___________________________________________________________________________________ The decisions reserved to full guardians are decisions on the child’ place of residence, his/her religious, spiritual, and cultural upbringing and on medical matters, placement for or consent to adoption of a child and on the issue of a passport.
Understanding Custody: Custody is the term that is generally used to describe the physical day-to-day care and control of the child.
Marital Relationship: Married couples living together are joint custodians of their child. When parental separation occurs, custody of the child normally rests with the parent with whom the child normally resides. These arrange- ments are by agreement of the parents or by court order. It is recommended that a copy of the agreement be forwarded to the school for their records.
Parental Partnership: A mother who is not married to the father of her child automatically has sole custody. A non-martial father who has joint guardianship will also have joint custody. 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. If the father does not qualify for guardianship rights In this instance, he the father may apply to the courts to be appointed guardian of the child and he may also apply for custody. A copy of the court order should be forwarded to the school and recorded in the pupil(s)’s folder.
Understanding Access: Access is the term that is generally used to describe the contact between a child and the parent with whom the child does not normally live. A parent who does not have custody of a child can apply to the court for access, if it is not possible to agree arrangements. Grandparents or other relatives may apply to the court for access though they need the prior approval of the court to make an application. Access can be physical, which means that a child sees the other parent in person: or it can be by means of a letter, telephone call or other form of communication. Where a child is in the care of the Child and Family Agency, parents and (certain other persons) extended family members (grandparents) can apply for access if it is not possible to agree suitable arrangements with the Child and Family Agency.
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SECTION 2: CUSTODY DISPUTES & THE COURTS
Many parents who separate have informal arrangements regarding their child’s custody which can break down from time-to-time. Where a parent claims to have sole custody of a child to the exclusion of another parent, it would be advisable for the school to request a copy of the court order. A contributory factor in custody disputes is domestic violence. This includes physical, sexual or psychological violence which threatens the safety or welfare of family members. There are four main kinds of protection available from the courts: A Protection Order is a temporary order. A court may make this order when a person applies for a Safety and/or Barring Order. A Protection Order only lasts until the full court hearing of the application for a safety or barring order A Safety Order simply prohibits a person from using or threatening violence towards the person applying for the Order and/or dependent children. The accused is not required to leave the home An Interim Barring Order is a temporary Barring Order. A court may make this order when a person applies for a barring order. An Interim Barring Order only lasts until the full court hearing of the application for a Barring Order and is only made in exceptional circumstances, and
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SECTION 3: CHILDREN IN CARE
When a child is taken into care by the HSE, it can then make decisions about the child as if it were the parents.
Care Order: A Care Order will be made where the court is satisfied that a child has been or is being assaulted, ill-treated, neglected or sexually abused or where a child’s health, development or welfare has been or is being avoidably impaired or neglected or, the child’s health development or welfare is likely to be avoidably impaired or neglected. A Care Order can be made for as long as the child remains a child, i.e. up to the eve of the child’s 18th birthday or for a shorter period as might be agreed or as a court sees fit. Applications may be made to renew orders. Parents may voluntarily place their child in the care of the Child and Family Agency. The agency is obliged to make an order to the District Court for a Care Order where it is of the opinion that a child needs care which will not otherwise be provided.
Supervision Order: In circumstances where the HSE have concerns about a child, it may also apply for a Supervision Order, which enables the HSE Social Workers to visit the child at home on a regular basis to ensure the child’s welfare and to give advice on the general care of the child.
Interim Care Order: In the case of an emergency situation, the HSE may apply for an Emergency Care Order or an Interim Care Order. An Emergency Care Order can last for up to 8 days and an Interim Care Order can last for up to 28 days. Where the Gardaí have a concern that a child is at immediate risk, they can enter any property where the child is and remove him or her to a place of safety. This is more likely to occur over a weekend period. A Barring Order requires a person against whom the order is made, to not use or threaten to use violence and to leave and stay away from the place of residence of the person applying for the order and/or dependent children until the order expires or is set aside. The district court may grant a barring order for up to 3 years.
Wardship: Wardship proceedings may be taken where, for example, a person who is not a parent of a child seeks custody of the child. If a child is made a ward of court, all matters concerning the child’s upbringing and welfare become the responsibility of the court. When the HSE takes a child into long-term care, i.e. until the age of 18, they must provide a Care Plan which sets out the proposals for the care of the child into the future. Case conferences are held with all of the people involved in the child’s care, including parents. It is important, when invited, to participate in these case conferences.
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SECTION 4: 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 Then it will be necessary for the other, do not reside together but school to ascertain the legal have a separation agreement 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 Then the partners in any new other, live apart and may be in a relationship do not have any new relationship(s) 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.
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___________________________________________________________________________________ If parents are not married and A non-marital father will either live together or apart 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.
Parents are entitled to information in separate communications.
2. Who can collect a pupil from school? (IPPN e-scéal 351) 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 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 IPPN RESOURCE BUNDLE – PARENTAL SEPARATION: IMPLICATIONS FOR THE SCHOOL
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___________________________________________________________________________________ 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.
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USEFUL RESOURCES
Publications Leadership+, Issue 40 Are Principals and teachers fulfilling their obligations in relation to the rights of all parents irrespective of their marital status?
Ippn.ie Resources Custody & Separation Policy Family Law & The School Principal
Useful Links Treoir Citizens Information
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