Order 58

Custody and Guardianship of Children : S.I. No. 17 of 2016

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

S.I. No. 9 of 2018: District Court (Mediation) Rules 2018

 

Definitions

1. In this Order—

“the Act” means the Guardianship of Infants Act 1964, (No. 7 of 1964);

“the Act of 1987” means the Status of Children Act 1987 (No. 26 of 1987);

“the Act of 1997’’ means the Children Act 1997 (No. 40 of 1997);

“the Act of 2015” means the Children and Family Relationships Act 2015 (No. 9 of 2015);

“child” means a person who has not attained full age. 

 

Venue

2. (1) Proceedings under the Act may be brought, heard or determined at any sitting of the Court for the court area where any party to the proceedings resides or carries on any profession, business or occupation.

(2) Where, however the Clerk, having consulted the Judge for the time being assigned to the district within which such area is situated, certifies on a notice of application or a summons that the proceedings are urgent, the said notice or summons may, subject to the provisions of rule 9, be issued for, and the proceedings may be heard and determined at any sitting of the Court in that district. 

 

Hearing to be otherwise than in public

3. Proceedings under the Act shall be heard otherwise than in public and only the officers of the Court, the parties and their legal representatives, witnesses (subject to the provisions of Order 8) and such other persons as the Judge in his or her discretion shall allow, shall be permitted to be present at the hearing. 

 

Guardianship applications and Court orders

4. (1) An application to the Court under section 6A (as inserted by the Act of 1987 and as substituted by section 48 of the Act of 2015) of the Act by a person who, being a parent of a child, is not a guardian of the child, for an order appointing the person as guardian of the child shall be preceded by the completion by the applicant of a notice in the Form 58.1 Schedule C. Such notice shall be served upon the other parent and upon any other guardian of the child. The order of the Court granting such application shall be in the Form 58.2 Schedule C.

(2) An application to the Court under section 6C (as inserted by section 49 of the Act of 2015) of the Act by a person who, not being a parent of a child, is eligible under section 6C(2) of the Act to make such application for an order appointing the person as a guardian of the child shall be preceded by the completion by the applicant of a notice in the Form 58.30 Schedule C. Such notice shall be served upon each person who is a parent or guardian of the child concerned. In the case of an application by a person to whom section 6C(2)(b) of the Act applies, the notice shall be served upon the Child and Family Agency. The order of the Court granting such application shall be in the Form 58.31 Schedule C and shall specify whether and if so, to what extent, the applicant shall enjoy the rights and responsibilities of a guardian specified in section 6C(11) of the Act.

(3) A nomination under section 6E(1) (as inserted by section 49 of the Act of 2015) of the Act by a qualifying guardian shall be in the Form 58.32 Schedule C and shall be signed and dated by the qualifying guardian concerned in the presence of a witness who is not the nominated person. An application to the Court under section 6E(3) (as inserted by section 49 of the Act of 2015) of the Act by a qualifying guardian or nominated person for an order under section 6E(5) of the Act appointing the person as a guardian of the child shall be preceded by the completion by the applicant of a notice in the Form 58.33 Schedule C. The original notice shall be lodged with the Clerk with the original nomination or a true copy annexed and a copy of the notice and annexed nomination shall be served upon each person mentioned in section 6E(4) of the Act. The order of the Court granting such application shall be in the Form 58.34 Schedule C and shall specify any limitations or conditions imposed in accordance with section 6E(6) of the Act. Where the Court imposes a condition pursuant to section 6E(6)(b) of the Act relating to the periodic review by the Court of the appointment of a person as temporary guardian, it may make such directions, including as to the listing of the matter before the Court and as to the giving of notice of such hearing as it considers necessary.

(4) An application to the Court under section 6E(9) (as inserted by section 49 of the Act of 2015) of the Act by a temporary guardian or the qualifying guardian concerned for an order under section 6E(11) of the Act shall be preceded by the completion by the applicant of a notice in the Form 58.35 Schedule C. Such notice shall be served upon each person mentioned in section 6E(10) of the Act. The order of the Court granting such application shall be in the Form 58.36 Schedule C and shall, where an order is made under 6E(11)(c) of the Act, specify any rights and responsibilities of guardianship which the qualifying guardian shall have. Where the Court imposes a condition pursuant to section 6E(12)(b) of the Act relating to the periodic review by the Court of the order, it may make such directions, including as to the listing of the matter before the Court and as to the giving of notice of such hearing as it considers necessary.

(5) An application to the Court under section 6F(1) (as inserted by section 49 of the Act of 2015) of the Act by a person mentioned in section 6F(2) of the Act for a declaration that a person named in the application is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of the Act of a child named in the application (the ‘child concerned’) shall be preceded by the completion by the applicant of a notice in the Form 58.37 Schedule C. Such notice shall be served upon each person mentioned in section 6F(3) of the Act and upon any other person directed by the Court to be given notice of the application. The order of the Court granting such application shall be in the Form 58.38 Schedule C.

(6) An application under section 7(4) of the Act (as substituted by section 50 of the Act of 2015) shall be preceded by the issue and service of a notice in the Form 58.3 Schedule C upon the surviving guardian or testamentary guardian of the child, as the case may be. The order of the Court on hearing the application shall be in the Form 58.4 or 58.6 Schedule C, as appropriate.

(7) An application to appoint a guardian or guardians under section 8(1) of the Act shall be made ex parte in the first instance subject to the prior lodgment with the Clerk of a notice in the Form 58.7 Schedule C. The order of the Court thereon shall be in the Form 58.8 Schedule C.

(8) An application to appoint a guardian or guardians under section 8(2) of the Act shall be made ex parte if made by the surviving parent, subject to the prior lodgment with the Clerk of a notice in the Form 58.9, Schedule C, and in any other case it shall be preceded by the issue and service of a notice in the Form 58.9 Schedule C upon that parent. The order of the Court thereon shall be in the Form 58.10 Schedule C.

(9) An application to the Court to remove from office a guardian mentioned in section 8(4) of the Act (substituted by section 51 of the Act of 2015) and to appoint another guardian in his or her place under section 8(5) of the Act shall be preceded by the issue and service of a notice in the Form 58.11 Schedule C upon each guardian of the child. The order of the Court thereon shall be in the Form 58.13 Schedule C.

(10) An application to appoint a guardian in place of a deceased guardian, under section 8(5) of the Act, may be made ex partewhere the child has no guardian or where the applicant is the only guardian, subject to the prior lodgment with the Clerk of a notice in the Form 58.12 Schedule C, and in any other case it shall be preceded by the issue and service of the said notice upon each guardian of the child. The order of the Court thereon shall be in the Form 58.14 Schedule C.

(11) An application to the Court to remove from office a guardian mentioned in section 8(6) of the Act (inserted by section 51 of the Act of 2015) shall be preceded by the issue and service of a notice in the Form 58.39 Schedule C upon each guardian of the child. The order of the Court thereon shall be in the Form 58.40 Schedule C.

(12) In any application concerning the guardianship of a child, the applicant shall complete and annex to the notice of application a statement of arrangements in the Form 58.49, Schedule C concerning each child to whom the application relates, including both factual information concerning the child and the applicant’s proposals in relation to the application. The applicant shall attach two copies of the applicant’s statement of arrangements to the copy notice of application served on each respondent. Where a respondent agrees the applicant’s statement of arrangements (including the proposals), the respondent shall signify his or her agreement on one copy of the statement and return that copy to the applicant (or applicant’s solicitor). Any respondent who intends to contest the application shall set out the matters in dispute and/or that respondent’s proposals in relation to the application on one copy of the statement and return that copy to the applicant (or applicant’s solicitor). The applicant shall not later than four days before the date fixed for the hearing of the application file with the Clerk a copy of the statement of arrangements as completed by the applicant and any respondent. 

 

Application seeking Court’s direction

5. (1) Where the Court’s direction is sought under section 11 of the Act, the application shall be preceded by the issue and service of a notice in the Form 58.17 Schedule C upon each other person who is a parent or guardian of the child concerned. The order of the Court thereon shall be in the Form 58.18 Schedule C.

(2) An application to the Court under section 11B of the Act for an order giving a relative of a child or a person who has acted in loco parentis to a child access to the child shall be preceded by the issue and service of a notice in the Form 58.19 Schedule C upon each of the guardians of the child. The order of the Court thereon shall be in the Form 58.20 Schedule C.

(3) An application to the Court under section 11E of the Act (inserted by section 57 of the Act of 2015) for an order giving a person mentioned in section 11E(1) of the Act custody of a child shall be preceded by the issue and service of a notice in the Form 58.41 Schedule C upon each of the guardians of the child. The order of the Court thereon shall be in the Form 58.42 Schedule C. 

 

Application to vary/discharge

6. An application under section 12 of the Act for an order varying or discharging a previous order shall be preceded by the issue and service of a notice in the Form 58.21 Schedule C upon each of the other guardians or each of the guardians of the child as the case may be. The order of the Court thereon shall be in the Form 58.22 Schedule C. 

 

Application for production of child

7. An application under Part III of the Act for an order for the production of a child shall be preceded by the issue and service of a notice in the Form 58.23 Schedule C upon the person having custody of the child. The order of the Court thereon shall be in the Form 58.24 Schedule C which shall be served upon the said person. The order of the Court under Part III of the Act shall be in the Form 58.2558.26 or 58.27 Schedule C, as appropriate. 

 

Enforcement order or complaint of non-compliance

8. (1) An application to the Court under section 18A(1) of the Act (inserted by section 60 of the Act of 2015) for an enforcement order shall be preceded by the issue and service of a notice in the Form 58.43 Schedule C upon each guardian and parent of the child concerned. An enforcement order of the Court shall be in the Form 58.44 Schedule C.

(2) An application under section 18C(1) of the Act (inserted by section 60 of the Act of 2015) for an order varying or terminating an enforcement order or any part of that order shall be preceded by the issue and service of a notice in the Form 58.45 Schedule C upon each of the persons on whom the application for the enforcement order was served. The order of the Court thereon shall be in the Form 58.46 Schedule C.

(3) An application to the Court under section 18D(1) of the Act (inserted by section 60 of the Act of 2015) by a parent or guardian of the child for an order requiring another guardian or parent to reimburse expenses incurred shall be preceded by the issue and service of a notice in the Form 58.47 Schedule C upon the respondent guardian or parent of the child concerned. An enforcement order of the Court shall be in the Form 58.48 Schedule C.

(4) Where complaint is made to a Judge alleging an offence of failure or refusal under section 5 of the Courts (No. 2) Act 1986, to comply with the requirements of a direction given in an order under section 7 of the Act, section 11 of the Act, or section 11B (inserted by the Act of 1997) of the Act, the summons which may be issued and served upon the person against whom the offence is alleged shall be in the Form 58.28 or 58.29 Schedule C, as appropriate. The relevant provisions of Order 15 shall apply in such case. 

 

Service and lodgment of documents

9. (1) A notice or court order required by this Order to be served shall be accompanied in the case of a notice of proceedings under section 6A (inserted by the Act of 1997) of the Act, section 11 of the Act or section 11B (inserted by the Act of 1997) of the Act, in which a solicitor is acting for the applicant, by a certificate signed by the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2) of section 20 of the Act of 1964 (as inserted by section 11 of the Act of 1997) in relation to the matter, and may be served upon the person to whom it is directed in accordance with the provisions of Order 41 at least 14 days or, in the case of proceedings certified as urgent under rule 2(2), at least two days, before the date of the sitting of the Court to which it is returnable.

(2) Save where service has been affected by the Clerk, the original of every such notice or order served shall, accompanied, in appropriate cases, by a copy of the certificate described in rule 9(1), together with a statutory declaration as to service thereof, be lodged with the Clerk at least two days before the date of the said sitting. 

 

Clerk to supply copies of orders

10. Where the Court makes an order under the Act, the Clerk shall give, or send by ordinary post, a copy of such order to each person in whose favour or against whom the order was made. 

 

Proof of age

11. The age of a child may be proved by producing a certified extract from the Register of Births showing the date of the child’s birth or by such other evidence as the Court considers sufficient. 

 

Court may direct service

12. In any proceedings under the Act the Court may direct the service of notice upon any person not already served. 

 

Effect of appeal from orders

13. Notwithstanding the provisions of Order 25, rule (4) and Order 101 and that an appellant has entered into a recognizance for appeal, an appeal from an order made under this Act shall stay the operation of the order only if, and to such extent and upon such terms (if any), as the Court shall determine. 

 

Report/ascertaining the views of the child

14. (1) An application to the Court by a party to make an order:

(i) under section 32(1)(a) or section 32(1)(b) of the Act, or

(ii) under section 47 of the Family Law Act 1995

may be included in writing in the summons, or made at the hearing.

(2) The Court may exercise the power of its own motion to make an order:

(i) in proceedings to which section 3(1)(a) of the Act applies, under section 32(1)(a) or section 32(1)(b) of the Act, or

(ii) under section 47 of the Family Law Act 1995

at any time and from time to time during the proceedings, having heard the parties.

(3) An application to the Court by a party to make an order:

(i) under section 12A(4) of the Act (inserted by the Act of 2015), or

(ii) under section 20 of the Child Care Act 1991

may be included in writing in the summons, or made at the hearing.

(4) The Court may exercise the power of its own motion to make an order:

(i) under section 12A(4) of the Act (inserted by the Act of 2015), or

(ii) under section 20 of the Child Care Act 1991

at any time and from time to time during the proceedings, having heard the parties.

(5) Where the Court grants an application for an order mentioned in sub-rule (1) or sub-rule (2), or makes such an order of its own motion, the order requisitioning the report shall be in the Form 58.5058.5158.52 or 58.53, Schedule C, as appropriate.

(6) Where, under either 12A(4) of the Act or section 20 of the Child Care Act 1991, the Court adjourns proceedings and directs the Child and Family Agency to undertake an investigation of a child's circumstances, if the Child and Family Agency is not a party to those proceedings, the Clerk shall as soon as possible notify the Child and Family Agency (in the Form 84.32 Schedule C, with any necessary modifications) of the Court's decision.

(7) Where, upon so adjourning, the Court gives directions under section 20(2) of the Child Care Act 1991 as to the care and custody of the child or makes a supervision order in respect of the child pending the outcome of the investigation by the Child and Family Agency—

(a) an order of the Court giving such directions shall be in the Form 84.33 Schedule C,

(b) any such supervision order shall be in the Form 84.34, Schedule C,

and the order shall be served upon each person directly affected thereby.