ANALYSIS:The courts are increasingly being asked to rule on the rights of grandparents where parents cannot care for their children, writes CAROL COULTER
IN MOST families, grandparents have usually been an important support and resource for their grandchildren. However, they have come to play an increasingly important role in families where the children’s natural parents are unable or unwilling to care for them.
This arises for a variety of reasons, most commonly the parents’ abuse of drugs or alcohol. The children in these families often come to the attention of the social services, and sometimes, though not always, they are taken into care on the application of the Health Service Executive.
But grandparents have no legal rights, posing dilemmas for them and the HSE, as illustrated by two recent cases.
In the High Court last month Mr Justice Hedigan was asked to overturn a decision of the District Court to deny custody or guardianship to the grandparents of a child whose mother, their daughter, had descended into “drug addiction, homelessness and crime”. The child was in care because heroin had been found in his system at birth.
The HSE placed the child in the care of the mother’s partner’s sister (though it later emerged that the partner was not the child’s father), who cared for him and formed a bond with him. The grandparents were not heard in their objections to the care order and the placement, or in their application for guardianship because, as the mother was still alive, they had no right to be heard.
In rejecting the grandfather’s challenge to the decision, Mr Justice Hedigan said full parental rights were transferred to the HSE when the care order was made and the grandfather had no legal right or interest to vindicate.
In a different case before Mr Justice McMahon last November, a grandmother tried to force the HSE to obtain a care order so that it, and not the woman’s daughter and mother of the child, would have parental rights.
The HSE resisted this on the basis that the child was being well cared for by the grandmother. It must also have been conscious of the fact that a judgment forcing it to take this action could have opened the door to many other grandparents seeking to obtain protection for their caring relationships with grandchildren.
Mr Justice McMahon acceded to the grandmother’s application, sharing her apprehension about the child’s parents. He considered the risk to the child of not making such an order was “unthinkable”.
The case is under appeal to the Supreme Court. Whatever the outcome, the issues raised by the reality of hundreds, if not thousands, of grandparents caring for children because their parents are not willing or able to do so will not go away.
These grandparents are acting as parents, or wish to do so, yet have no legal rights.
This was one of the issues addressed by the Law Reform Commission in its recent report on Legal Aspects of Family Relationships.
The report recommended that the ability to apply for custody, which it recommended be renamed as day-to-day care, of a child should be extended to relatives of a child, persons in loco parentis and persons with a bona fide interest in the child, in circumstances where the parents are unable or unwilling to exercise parental responsibility.
It also recommended that where the court makes an order granting day-to-day care (custody) to such a person, guardianship, to be renamed parental responsibility, would attach to that person for the duration of the court order, without removing it from the child’s parents.
Such a measure would meet the concerns of both sets of grandparents in the cases recently before the High Court.
All this is contained in the draft Bill published with the report, the Children and Parental Responsibility Bill, now awaiting Government action.