For many years grandparents in Irish society have played a significant role in the upbringing of their grandchildren. This role extends from simply providing childcare for their children to being the primary carer of their grandchildren. This latter role of primary carer generally arises when the grandchildren's parents are incapable, for reasons of age or health, from bringing up the child or have simply preferred to leave the child in the care of grandparents. Although grandparents in such cases may provide the primary care for the grandchild for many years, they have no automatic custody rights, asks Jim O'Callaghan
If a grandparent wishes to obtain a legal entitlement to custody of their grandchild, the grandparent must either adopt the child or be appointed its guardian. Under the Adoption Act 1998, a grandparent can apply to the High Court to adopt a grandchild in circumstances where the court is satisfied the child's parent is failing in his or her duty of care to the child. Under the Guardianship of Infants Act 1964, a grandparent can also apply to be the grandchild's guardian. Such an application might arise, for example, where both parents had died.
Grandparents who neither adopt nor seek an appointment as guardian will be left in a situation where the grandchild they have minded for many years can simply be taken back by the grandchild's guardian or surviving parent without any legal recourse for the grandparent. This can lead to much hardship for both grandparents and grandchild, particularly in circumstances where the returning parent or guardian had never previously displayed much interest in or concern for the grandchild.
Although grandparents have the legal entitlement to adopt or seek guardianship, the vast majority of grandparents who provide primary care for their grandchildren do so on an informal basis. Unsurprisingly, they are hesitant about incurring the cost and risk of going to court.
Another difficulty faced by grandparents who have effective but not legal custody of their grandchildren is the discrimination that exists against them in our social welfare code. Unfortunately, their de facto custody of grandchildren is not properly recognised by the State. A grandparent bringing up a grandchild does not enjoy the same benefits as, for instance, a foster parent bringing up a foster child.
A grandparent who is looking after a grandchild because it has been abandoned by its parents is only entitled to claim an orphan's allowance of about €120 per week, whereas a foster parent is entitled to claim a board allowance of approximately €300 per week. Both of them provide the same service and the child requires the same care, yet a grandparent receives nearly one-third of what the State believes is due to a foster parent.
A grandchild will not automatically get a medical card unless the grandparents' income is within the qualifying level, whereas a child in foster care will automatically get a medical card. The advantages of having a medical card extend to receipt of further allowances such as free travel to school and assistance with buying school books.
A further issue of concern for grandparents is whether they enjoy any access rights to their grandchildren. This issue becomes relevant after a separation or divorce when one set of grandparents may end up having no further contact with their grandchild. Many grandparents are unaware that under the Children's Act 1997 they are entitled to apply to court for access to their grandchildren. In considering whether to grant an application for access, the court must consider:
the applicant's connection with the child;
the risk, if any, of the application disrupting the child's life to the extent the child would be harmed by it;
and the wishes of the child's guardians.
No law exists or has been suggested giving grandparents a legal right of access.
Such a law was introduced in Washington state and was the subject of the United States supreme court decision of Troxel v Granville in 2000. The US court in that decision agreed parents did have a fundamental right to make decisions about raising their children, but it did not agree a grandparent visitation statute was unconstitutional, nor that allowing a non-parent to petition for visitation rights would amount to an assault on the integrity of the family unit.
The court did say, however, that the lower court applied the statute incorrectly because it presumed that the grandparents' request for additional visitation was in the child's best interests, rather than presuming the parent was acting in the best interests of her child in refusing the grandparents more than brief visits. This led the lower court judge to conclude visitation should be granted unless the mother could prove the additional visits would have an adverse impact on the children. The US supreme court thought this approach did not adequately protect a parent's fundamental right to make decisions for their children.
The entitlement of grandparents to apply for access under the Children's Act 1997 does not guarantee access, just an entitlement to apply. Although there are many examples of hardship caused to grandparents through non-access to their grandchildren, the issue of affording grandparents a statutory right of access has not been promoted.
The family protected under the Constitution is primarily that of parent and child. Grandparents' entitlement to access to their grandchild derives exclusively through their relationship with their own children. Any interference with the constitutional protection afforded to a parent and his or her child, by affording a grandparent automatic access to grandchildren, would be constitutionally frail.
What is required, however, is greater awareness on the part of grandparents of the nature and extent of the rights they enjoy, and an alteration in our social welfare code to recognise the role played by those grandparents who are the main carers for their grandchildren.
Jim O'Callaghan is a barrister