Child and Family Law 2023/2024

3. A comparative
law analysis of
social parenting
and guardianship
Dr Maebh Harding , University College Dublin.
Dr Jakub Pawliczak, University of Warsaw
e-mail: [email protected]
Child and Family Law 2023/2024

Lecture Plan: Irish Law

• Recap on the concepts of Legal Parentage and
Guardianship.
• How do parents acquire guardianship rights?
• When can non-parents acquire guardianship
rights?
• How are parental rights protected in Irish
constitutional law?
• What is social parenting and how is it
recognised in Irish law?
 Lecture Plan: Compare
and Contrast with Polish
Law
• Constitutional protection of the
family
• Legal Parentage under Polish Law
• “Parental Authority” under Polish
Law
• Limited legal recognition of social
parenting
– Maintenance
– Court ordered guardianship
– Through contact orders

Child and Family Law 2023/2024

 Legal
Parentage
• Law’s fundamental recognition of the parent-
child link.
• Brings with it some automatic legal rights and
responsibilities.
– Tax, Inheritance, Immigration Rights,
Maintenance, Social Welfare, Prohibited
Degrees of Relationship for Marriage.
– Legal parents are required to pay child
maintenance under
• Under Irish Law Legal Parentage is an
important gateway status to acquiring
important decision-making rights that allow
you to look after a child.
– Guardianship, custody and access are
automatic for some parents but not all.

Child and Family Law 2023/2024

 Who is recognised as a legal parent in Irish law?

The Children and Family Mum= woman who gives

Other forms of ART

Sexual Intercourse

DAHR
Mum= woman who gives Relationships Act 2015 birth.
birth who is also the applies to children Dad =genetic father.
genetic mother. conceived after 4 May
2020 Limited exceptions under
Dad =genetic father. s20 CFA 2015 for children
Mum =gestational conceived BEFORE 4 May
BUT remember the mother
presumptions 2020.
Second parent = person
• Husband (but not wife)
• Man on the birth cert.
who agreed to be second
parent
Sperm, Egg and Embryo
donors who give consent
under the Act are never
parents.

Family and Child Law 2024

 Guardianship
• Three key aspects - Rights, Responsibilities and
• Decision-making powers.
• Not defined in Irish legislation
– ‘a bundle of legal rights and responsibilities in respect of a
child, including the prima facie right to custody of the child
as against anyone who is not a guardian; the right to
determine where the child will reside; the right to decide on
the child’s religious upbringing; and the right to consent to
medical treatment’ Conor O’Mahony
• Guardianship has always included a right of custody against non-
guardians (s10(2)(a)) Guardianship of Infants Act 1964. (GIA)

Child and Family Law 2023/2024

 When do parents get
guardianship rights?
Automatic as of right

Legal mothers (s6(1) & s6(4) Fathers/second female

GIA) parents who are not married
Married fathers (s6(1) GIA) to the mother
• Marriage following birth – s6B (1)

Must take legal steps

The spouse of a woman who • Cohabitation with mother: automatic
gives birth following a DAHR (s2(4A) or s6B (2)(b))
procedure who has consented • Min 12 months in total. Must
to being a parent has include 3 consecutive months after
birth.
automatic guardianship (s6B • By Agreement with the mother: A
(1) GIA) statutory declaration is required (s2(4)
or s6B(4).
• By Court Order – s6A

Child and Family Law 2023/2024

Non-Parents and Guardianship
• Prior to the Children and Family Relationships Act 2015 it
was only possible for non-parents to acquire guardianship
through.
– Testamentary Guardianship (s7)
– Court appointment where the child had no guardian
(s8)
• Now non-parents can also be appointed by the court
under s6C
• A best interests test will apply! S3 is crucial.
• Court must also have regard to the child’s views.

Child and Family Law 2023/2024

 Court Appointment under s6C
1. Step-parents (or cohabitants who have lived with the parent for 3 years)
(Applicant MUST have shared day to day responsibility for the children for >2 years)
OR
2. Where the child has no parent or guardian willing or able to exercise the rights and
responsibilities of guardianship
(Applicant Must have provided for the child’s day to day care for a continuous period of
more than 12 months)

MUST HAVE CONSENT OF ALL EXISTING GUARDIANS. (s6C (6))

But this can be dispensed by the court (s6C (7)) if it is a) unreasonably withheld and
b)the guardianship order is in the best interests of the child.

Child and Family Law 2023/2024

 Specific considerations under s6C
• Children should be consulted!
• S 6C (8) In deciding whether or not to make an order under this section, the court shall
—
• (a) ensure that the child concerned, to the extent possible given his or her age and
understanding, has the opportunity to make his or her views on the matter known, and
have regard to those views, and
• (b) have regard to the number of persons who are guardians of the child concerned, and
the degree to which those persons are involved in the upbringing of the child.
• S6C can be used to recognize multi-parent families or co-parenting arrangements.

Child and Family Law 2023/2024

 s6C Guardians
• Non-parent guardians act alongside parent-guardians. (s6C(9))
• Non-parent guardians have specified rights (s6C(11) which can be further limited by
court order. (s6C(9))
• Non-parent guardians have weaker legal status than parent guardians.

Child and Family Law 2023/2024

Irish Constitution has a
narrow and rigid view
of Family (Article 41)
• Article 41.1.1° The State recognises the Family as
the natural primary and fundamental unit group
of Society, and as a moral institution possessing
inalienable and imprescriptible rights,
antecedent and superior to all positive law.

• Article 41.1.2° The State, therefore, guarantees

to protect the Family in its constitution and
authority, as the necessary basis of social order
and as indispensable to the welfare of the
Nation and the State.

Family and Child Law 2024

Irish Constitution has a
narrow and rigid view
of Family (Article 41)
• Article 41.2.1° In particular, the State recognises that by her
life within the home, woman gives to the State a support
without which the common good cannot be achieved.
• Article 41.2.2° 2° The State shall, therefore, endeavour to
ensure that mothers shall not be obliged by economic
necessity to engage in labour to the neglect of their duties
in the home.
• Article 41.3.1° The State pledges itself to guard with special
care the institution of Marriage, on which the Family is
founded, and to protect it against attack.
• ….
• Article 41.4 Marriage may be contracted in accordance
with law by two persons without distinction as to their sex.

Family and Child Law 2023

 Parents and Children
• Article 42 1 The State acknowledges that the primary and natural
educator of the child is the Family and guarantees to respect the
inalienable right and duty of parents to provide, according to
their means, for the religious and moral, intellectual, physical
and social education of their children.

• Article 42A 1 The State recognises and affirms the natural and
imprescriptible rights of all children and shall, as far as
practicable, by its laws protect and vindicate those rights.

• 2 1° In exceptional cases, where the parents, regardless of

their marital status, fail in their duty towards their children to
such extent that the safety or welfare of any of their children is
likely to be prejudicially affected, the State as guardian of the
common good shall, by proportionate means as provided by law,
endeavour to supply the place of the parents, but always with
due regard for the natural and imprescriptible rights of the child.

Family and Child Law 2022

Family and Child Law 2023

Article 42A
4 1° Provision shall be made by law that in the resolution of all proceedings—

i brought by the State, as guardian of the common good, for the purpose of
preventing the safety and welfare of any child from being prejudicially
affected, or

ii concerning the adoption, guardianship or custody of, or access to, any

child,

the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all
proceedings referred to in subsection 1° of this section in respect of any child
who is capable of forming his or her own views, the views of the child shall be
ascertained and given due weight having regard to the age and maturity of the
child.
 Social Parenting

• Occurs when person who are biological parents

care for children.
• Issues arise when persons who are not
recognised in law as legal parents care for
children, such as step-parents, foster parents, or
other relatives.
• This includes families in Ireland using ART who
do not fit into the DAHR process under the
Children and Family Relationships Act 2015.
– E.g Child conceived in a clinic outside
Ireland.
– Child conceived using donor sperm at home .

Child and Family Law 2023/2024

 Three subdivisions of social parents

1 2 3
1) Social parents who are 2) Social parents who are 3) Social parents who are
the child’s primary parents co-parenting with the parenting a child because
but are not recognised by child’s legal parents. (new the primary parents are
law. ( e.g. LGBT+ parents partners or a multi- absent or unable to care
who are not recognised parenting arrangement). for their child.
under DAHR).

Child and Family Law 2023/2024

Social parenting example

Lesbian couple who are not married, conceive a child, at

home using anonymous donor sperm

Who does Irish law recognise as the legal parent?

Who does Irish law recognise as the legal guardian?

Similar to JMcD v PL [2010 ] 2 IR 99 except there is no

other person who wants a parental role.

What happens if the couple disagree about the child’s

upbringing?
Child and Family Law 2023/2024
 How common is this problem in Ireland?
• Survey of 99 parents identifying as LGBTI+
• 65% were legal parents of their children.
• 47% were co-parenting with someone who was also
recognized as a legal parent of their children.
• 53% were co-parenting as joint legal guardians.
• Irish law should provide an effective pathway to
recognition for second parents in cases of non-clinical
DAHR.
• Irish law should provide for the regulation of
surrogacy arrangements and should contain
provisions to recognise both domestic and
international surrogacy.
Child and Family Law 2023/2024
neither the right nor the obligation to exercise custody over

Poland
 Impact of the 1997 Constitution
• The Polish Constitution of 1997 is understood as protecting the „traditional
family”. Article 18 of the Constitution: marriage, as a union of a man and a
woman, as well as the family, motherhood and parenthood, shall be
placed under the protection and care of the Republic of Poland
• Parental rights are protected by the Constitution. Article 48:
1. Parents shall have the right to rear their children in accordance with their
own convictions. Such upbringing shall respect the degree of maturity of a child
as well as his freedom of conscience and belief and also his convictions.
2. Limitation or deprivation of parental rights may be effected only in the
instances specified by statute and only on the basis of a final court judgment.
• (Biological) parents have a constitutional right to have their parentage
determined by the law.
 Article 72 of the 1997 Constitution
1. The Republic of Poland shall ensure protection of the rights of the child.
Everyone shall have the right to demand of organs of public authority that they
defend children against violence, cruelty, exploitation and actions which
undermine their moral sense.
2. A child deprived of parental care shall have the right to care and assistance
provided by public authorities.
3. Organs of public authority and persons responsible for children, in the
course of establishing the rights of a child, shall consider and, insofar as
possible, give priority to the views of the child.
4.The competence and procedure for appointment of the Commissioner for
Children's Rights shall be specified by statute.
 neither the right nor the obligation to exercise custody over

Polish law on parentage

• (always) the mother of a child is the woman who gave birth to the child
(surrogate motherhood is not recognised)
• artificial reproductive technologies (ART) are understood as the means of treating
infertility. Since 2015 ART has been available only to opposite-sex couples
(married or in informal relationships). The assumption is that the child should have
legally both a mother and a father, even if the child is not genetically related to them
them (sperm, egg and embryo donors are anonymous – they are never parents)
• a child can have no more than two parents who need to be of the opposite sex
(a mother and a father)
• joint and step-parent adoption is open only to opposite-sex married spouses
 neither the right nor the obligation to exercise custody over

Paternity
Paternity is established based on a man’s relationship with the child’s mother.
There are 3 options:
1) the marital presumption – by operation of law the mother’s husband is assumed
to be the child's father. If this presumption doesn’t apply or was rebutted:
2) acknowledgement (recognition) of paternity – by the declaration of the father
made before the head of the civil registry office, but the mother also needs to declare
that this man is the father of the child (in the case of informal unions,
acknowledgement of paternity in advance is a condition for admission to ART)
3) by the court order - it is assumed that the father of the child shall be the man who
had sex with the mother of the child no earlier than 300 days and no later than 181
days before the birth of the child (in practice, DNA testing is more important)
 neither the right nor the obligation to exercise custody over

Legal parenthood and parental

authority
• the Polish equivalent of Irish “guardianship” is called parental authority (responsibility)
• Article 95 § 1 of the Polish Family and Guardianship Code of 1964 (as amended):
„Parental authority, in particular, involves the right and obligation of the parents to exercise
custody over the person and property of a child and to raise the child with due respect for his
rights and dignity”.
• It also encompasses the right and responsibility to act on behalf of the child (represent the
child)
• the obligation for maintenance is separate from parental authority
 neither the right nor the obligation to exercise custody over

Legal parenthood and parental

authority
• there is an inseparable link between biologically based parenthood and parental authority
• the mother, if of legal age (18), acquires parental authority by operation of law
(automatically) as soon as the child is born
• the father, if of legal age (18), acquires parental authority by operation of law (automatically)
upon establishment of paternity. If it is in the child's interest, the court may, in an order
determining the parenthood, suspend, limit, or deprive one or both parents of parental authority
• there are no procedures involving the mere granting of parental authority. It is always linked to the
establishment of parenthood (no flexibility)
• key guidance in custody disputes: the right of the child to be brought up by both parents
 neither the right nor the obligation to exercise custody over

Parental authority only for parents

• parental authority (responsibility/rights) can be vested only with (legal) parents (no
equivalent of non-parental guardianship)
• Polish law does not allow for obtaining parental rights or obligations over the partner’s child
in any way other than by adoption (available only to opposite-sex married spouses)
• a step-parent, without adopting a step-child, cannot obtain any parental rights towards a
step-child. A step-parent has no right to make decisions in matters of everyday life of a child
• however, a step-parent may be obliged to financially support a step-child (and similarly, a
financially independent step-child may be obligated to support a step-parent)
 neither the right nor the obligation to exercise custody over

Maintenance obligations in a formal

stepfamily
• Article 144 of the Family and Guardianship Code (FGC)
• § 1. A child may claim maintenance from the husband of his/her mother, who is not his/her
father if it conforms to the principles of social coexistence. The same right applies to
the wife of the child’s father, not being his/her mother.
• § 2. A man who is not the father of his wife’s child may demand maintenance from the child
if he contributed to the maintenance and upbringing of the child, and if the demand
complies with the principles of social coexistence. A woman who is not the mother of
her husband’s child has the same right.
• § 3. Provisions on maintenance obligation between relatives apply accordingly to the
maintenance obligation set out in the preceding paragraphs.
 neither the right nor the obligation to exercise custody over

Guardianship

• under Polish law guardianship has a different legal meaning than in Irish law
• Article 94 § 3 of the Polish Guardianship Code:
“If neither parent has parental authority or if the parents are unknown, child
guardianship is established”
• the guardianship (legal protection) over a child can be established only by the court
and only if both parents are unknown or neither parent is entitled to parental authority
-> guardianship applies only to the situation, where a child legally has no
parent with parental authority
 neither the right nor the obligation to exercise custody over

Poland / Ukraine – “temporary

guardianship”
• on March 12, 2022, the Polish Parliament enacted the law on assistance to Ukrainian
citizens in connection with the armed conflict in the territory of this country
• Article 3 of that Act stipulates that the Commander-in-Chief of the Border Guard keeps a
register of Ukrainian citizens who entered Poland in connection with military activities
conducted on the territory of Ukraine. In the case of children, information is provided in such a
register about the person “having factual care of the child” (a new legal term)
• introduction of the new legal concept – “a temporary guardian”. Applicable only to Ukrainian
children who stay in Poland without the care of parents (guardians). The temporary guardian
represents the child, takes care of the child and manages the property of the child (an
equivalent of parental authority)
• departure from the basic principle of Polish family law, that a child may only be under
guardianship if parents do not have parental authority
 neither the right nor the obligation to exercise custody over

“Testamentary” guardianship

• In Poland, testamentary guardianship is also understood differently than in Ireland

• a legal parent with parental authority may nominate a candidate for a guardian in the event
of the (both) parent’s death
• Art. 149 § 1 of the Family and Guardianship Code: If it is not against the best
interest of the child, the guardian of a minor shall first of all be a person proposed
by the father or the mother, unless they are deprived of parental authority.
• the final establishment of guardianship lies with the guardianship court which
should decide following the child’s best interests review
 neither the right nor the obligation to exercise custody over

Contact as a substitute recognition of

social parenthood
• Article 113 § 1 FGC. Regardless of parental responsibility, the [legal] parents and the child
have the right and obligation to maintain contact with each other.
• Article 113(1) § 1 FGC. If the child lives permanently with one parent, the way of maintaining
contact with the child is specified by the parents jointly, based on the welfare of the child and
taking into account his/her reasonable wishes; in the absence of an agreement, the
guardianship court resolves the issue.
• Article 113(6) FGC. The provisions of this section will apply accordingly to contact with
siblings, grandparents, relatives by affinity, and other people if they have cared for the
child over a long period.
• However, establishing contacts does not give the right to make decisions concerning the
child.
Social parenting example

Anonymous Donor Sperm used

Who does Polish law recognise as the legal

parents?
What options exist for a second social parent in
these circumstances?

Child and Family Law 2023/2024

LAW 37690 2021

• Poland and Ireland have different approaches to legal

parentage and its relationship to decision-making rights for
children.
• In Poland, biologically determined parenthood and
parental rights and obligations are directly connected. All
parents have automatic decision-making rights.
• In Irish law, legal parenthood and the allocation of
guardianship (parental rights and obligations) can be
treated as distinct matters.
Summary • In the Western world, legal recognition of social
parenthood by granting parental rights and responsibilities
to a child’s non-parental caregivers is an emerging trend.
An example of such a jurisdiction is Ireland.
• In some countries resistant to granting parental rights to
non-parents, such as Poland, Greece and Sweden,
regulations regarding contact with the child serve as a
partial substitute for recognizing social parenthood.
LAW 37690 2021

• Should the Constitution regulate family forms, given the

dynamic changes in family models? Perhaps it would be
more appropriate to leave the regulation of family forms
entirely to ordinary legislation (e.g.France).
• Are non-marital families relatively less protected in Irish
law? Are fathers or second parents who aren’t married to
the mother discriminated against by having to take
Takeaway additional legal steps to secure guardianship rights?

Thoughts • Should social parenthood be protected, and if so, what is

the best approach?
• Is more express legal recognition of multi-parenting the
future of family law? E.g. Canadian rules allowing more
than two people to be recognized as legal parents through
a written agreement concluded before the conception of
the child represent a new direction in the development of
family law.