PART III

Guardianship

8. —In this Part “the Act of 1964” means the Guardianship of Infants Act, 1964 .

9. —The Act of 1964 is hereby amended by the substitution for section 2 of the following section:

“Interpretation.

2.—(1) In this Act except where the context otherwise requires—

‘adoption order’ means—

(a) an adoption order made under the Adoption Acts, 1952 to 1976, or

(b) any order made or decree granted outside the State, providing for the adoption of a person, which is recognised by virtue of the law for the time being in force in the State,

and for the time being in force;

‘the Act of 1987’ means the Status of Children Act, 1987;

‘father’ includes a male adopter under an adoption order, but, subject to section 11 (4) of this Act, does not include the father of an infant who has not married that infant's mother unless either—

(a) an order under section 6A (inserted by the Act of 1987) is in force in respect of that infant, or

(b) the circumstances set out in subsection (3) of this section apply;

‘infant’ shall be construed in accordance with section 2 of the Age of Majority Act, 1985 ;

‘maintenance’ includes education;

‘mother’ includes a female adopter under an adoption order;

‘parent’ means a father or mother as defined by this subsection;

‘testamentary guardian’ means a guardian appointed by deed or will;

‘welfare’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant.

(2) A reference, however expressed, in this Act to an infant whose father and mother have not married each other shall, except in a case to which subsection (3) of this section relates, be construed in accordance with section 4 of the Act of 1987.

(3) (a) The circumstances referred to in paragraph (b) of the definition of ‘father’ in subsection (1) of this section are thatthe father and mother of the infant concerned have at some time gone through a ceremony of marriage and the ceremony resulted in—

(i) a voidable marriage in respect of which a decree of nullity was granted after, or at some time during the period of ten months before, the birth of the infant, or

(ii) a void marriage which the father reasonably believed (whether or not such belief was due to a mistake of law or of fact) resulted in a valid marriage—

(I) where the ceremony occurred before the birth of the infant, at some time during the period of ten months before that birth, or

(II) where the ceremony occurred after the birth of the infant, at the time of that ceremony.

(b) It shall be presumed for the purposes of paragraph (a) (ii) of this subsection, unless the contrary is shown, that the father reasonably believed that the ceremony of marriage to which that paragraph relates resulted in a valid marriage.”.

10. —The Act of 1964 is hereby amended by the insertion after section 3 of the following section:

“3A.—Where in any proceedings before any court on an application for an order under this Act (other than so much of any proceedings as section 15 of the Act of 1987 relates to) in respect of an infant whose father and mother have not married each other, a person (being a party to the proceedings) is alleged to be, or alleges that he is, the father of the infant but that allegation is not admitted by a party to the proceedings, the court shall not on that application make any final order which imposes any obligation or confers any right on that person unless it is proved on the balance of probabilities that he is the father of the infant:

Provided that this section applies only where the fact that that person is or is not the father of the infant is material to the proceedings.”.

11. —Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):

“(4) Where the mother of an infant has not married the infant's father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act.”.

12. —The Act of 1964 is hereby amended by the insertion after section 6 of the following section:

“6A.—(1) Where the father and mother of an infant have not married each other, the court may, on the application of the father, by order appoint him to be a guardian of the infant.

(2) Without prejudice to the provisions of sections 5 (3) (inserted by the Courts Act, 1981 ), 8 (4) and 12 of this Act, the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as a guardian of the infant under section 8 (1) of this Act unless the court otherwise orders.

(3) Rules of court shall provide a special procedure for determining an application under this section where—

(a) the mother consents in writing to the appointment of the father as guardian, and

(b) the father is registered as the father in a register maintained under the Births and Deaths Registration Acts, 1863 to 1987,

and such procedure shall be as informal as is practicable and consistent with the administration of justice.”.

13. —Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):

“(4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him.”.