Man not legal “father” under Guardianship of Infants Act



The Court of Appeal has found that the High Court incorrectly granted itself jurisdiction under the Guardianship of Infants Act 1964 when ordering a father to make additional payments to the mother of his children to cover her legal fees in an ongoing legal dispute over the maintenance of their children.

The case concerns ongoing legal proceedings between the mother (“SM”) and father (“NM”) of eight children, six of whom are considered dependents and seven of whom reside with the mother.

The mother is a homemaker, while the father owns a valuable equity partnership which earns him over 2 million euros per year.

The couple never married, and following difficulties arising in their relationship, the mother commenced proceedings under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the Guardianship of Infants Act 1964, Family Law (Maintenance of Spouses and Children) Act 1976, and the Family Law Act 1995.

The present appeal concerned a request by the mother for a lump sum or periodical maintenance or payment order to be paid to her by the father, in order to allow her to pay the legal fees incurred in preparation for the full hearings.

The High Court judge found that the Court had jurisdiction under theGuardianship Act, and made an order against the father. In accordance with the order, the father has paid a total sum of €110,000.

While not seeking the recovery of that money, he wished to appeal the High Court’s finding of jurisdiction under the Guardianship Act, and to determine whether he was obliged to continue making payments.

Delivering its judgment, the Court of Appeal explored the language utilised within the Guardianship Act.

The High Court had found it had jurisdiction under s.11 of the Act, which allowed courts to make any finding in relation to the payment of maintenance for a child by its father or mother, as deemed proper.

However, the Court noted that s.2 of the Act specifically excludes fathers who have not married the child’s mother, unless he has declared he is the father of the child, has been appointed a guardian of the child, has entered into arrangements regarding access to the child, and have made a statutory declaration to that effect.

As the father had not been declared a guardian in the present case, the High Court’s finding of jurisdiction was incorrect.

The counsel for the mother had argued that s.11 should be reinterpreted in light of Article 42A.1 of the Constitution, which recognises the natural and prescriptive rights of all children.

However, this argument was dismissed as amounting to a challenge to the constitutionality of s.11 of the Act, which was not a challenge that had ever been raised before the High Court.

Despite this finding with regards to jurisdiction, the Court of Appeal found that the order of payment for legal fees was valid, due to s.7 of the Family Law (Maintenance of Spouses and Children) Act 1976.

This section allows for such interim orders to be made “if it appears to the court proper to do so having regards to the needs of the persons for whose support the maintenance order is sought.”

The father constituted a “maintenance debtor” for the purposes of that Act, and therefore fell within the scope of s.7.

Thus, although the High Court judge had incorrectly identified the source of her jurisdiction, she did have jurisdiction to make the order.

The Court referred to the English High Court case of A. v. A. (Maintenance Pending Suit: Payment of Legal Fees) 1 WLR 60which found that “maintenance” could be interpreted as including legal costs.

The Court of Appeal agreed with the High Court judge that in this exceptional case, the children required the making of an interim order to cover their mother’s legal fees, as she would otherwise be unable to proceed with her case on their behalf.

However, the Court noted that “this is a jurisdiction which it appears should only be exceptionally exercised” and that any court making such an order should also encourage the parties to attempt to resolve matters, as payments made to cover legal costs “might otherwise be available to provide different benefits for dependent children.”

With regards to the amount paid by the father, the Court considered it to be the outer limit of what ought to be paid, and therefore the father need not make any further payments.

  • by Rachel Killean for Irish Legal News