Brian Tobin: There is a better way to block guardianship rights of killers
Valerie French Kilroy was killed at her home in Mayo in 2019 by her husband James Kilroy.
There is much discussion at present concerning ‘Valerie’s Law’, a proposal named after Valerie French Kilroy, a woman whose husband was recently convicted of her murder and sentenced to life imprisonment.
If it ever comes to fruition, ‘Valerie’s Law’ will result in a parent who intentionally kills their children’s other parent losing their legal guardianship rights over those children.
As Valerie French Kilroy was married to the man who murdered her, James Kilroy, his guardianship rights in relation to their three sons remain unaffected despite his conviction, because a married parent’s guardianship rights cannot be removed from them.
This is quite significant because a child’s guardian has the right to make the big decisions concerning the child’s upbringing, such as where and with whom the child will live, consent to medical treatment that may be required for the child, and consent to a passport for the child.
Unlike Mr Kilroy, an unmarried father’s guardianship rights can be removed by the court, but there are stringent statutory preconditions necessary to fulfil as a result of changes made by the Children and Family Relationships Act less than a decade ago.
These include requirements that there is another guardian in place or about to be appointed by the court; removal must be in the best interests of the child, and; for substantial reasons, the court considers removal necessary or desirable.
However, even where all of these preconditions are satisfied, the law goes on to stipulate that the guardian who is to be removed from office must consent, is unable or unwilling to exercise the powers of guardianship, or has failed in their duties to the extent that the safety or welfare of the child is likely to be prejudicially affected if they are not removed.
This is borne out by the evidence that there are no reported cases at High Court level concerning the removal by the courts of an unmarried father as the guardian of his child, and when the issue has arisen in the District Court or the Circuit Court, a high threshold has been placed for the removal by the courts of an unmarried father as a guardian, most likely due to the stringent, necessary statutory preconditions detailed above.
Thus, not only is removal of a guardian not an option in the case of married parents, it is an outcome very rarely achieved even where an unmarried parent is concerned.
However, it seems ludicrous that a parent-guardian like Mr Kilroy, convicted of the most heinous crime against the mother of his three children, should from his prison cell be able to exercise guardianship rights over the children, and this is why the Oireachtas needs to consider post-haste the introduction of a Prohibited Steps Order that would at least restrict a parent-guardian from exercising their guardianship rights over their children in very specific ways.
This type of order has been available under the law in England and Wales for quite some time, and has been used effectively by the courts there to restrict a parent’s Parental Responsibility, which is the equivalent of guardianship under the law there.
A Prohibited Steps Order can be made by a court to prohibit a parent from removing a child from school or taking them out of the country; granting or refusing permission for a child to undergo medical treatment; accessing a child’s health and education information; or carrying out some other activity in relation to the child, as clearly specified in the order.
The duration of a Prohibited Steps Order can vary depending on what the court deems to be in the best interests of the child in each case, but the order can only be relaxed by the court.
The introduction of a Prohibited Steps Order through legislation in Ireland would not appear to be particularly complicated, given that section 11 of the Guardianship of Infants Act 1964 already provides that a person who is a guardian ‘may apply to the court for its direction on any question affecting the welfare of the child and the court may make such order as it thinks proper’.
Although section 11 enables a court to make ‘such order as it thinks proper’ for the welfare of a child, which implies a wide range of orders, to date this section has predominantly been used by the courts to make orders relating to custody of or access to a child.
Indeed, section 11 (2) of the 1964 Act strongly indicates that the making of orders concerning custody, access, and maintenance by a court is what is predominantly envisaged under section 11.
Nonetheless, section 11 could be amended to expressly provide that a court, on application to it by a guardian of the child, could make a Prohibited Steps Order which would restrict the rights another guardian has over a child in a whole range of circumstances, where this is in the child’s best interests.
This is not to suggest that the outcome desired by those campaigning for ‘Valerie’s Law’, which would see a parent, irrespective of marital status, who is convicted of the murder of their child’s other parent, stripped of their guardianship rights, is undesirable.
However, given the constitutional protection of the rights of married parents under Article 41 that rather worthy proposal may face an uphill battle to be enacted into law.
The legislative solution I propose would effectively curtail a parent’s guardianship rights in a variety of significant situations, but may not be subject to the same constitutional frailties as the more far-reaching proposal contained in ‘Valerie’s Law’, because legislation permitting a court to make a Prohibited Steps Order for the benefit of a child would not extinguish their married parent’s guardianship rights for all time, but it would ensure that the best interests of the child shall be the paramount consideration for the court in these cases.
This legislative solution attempts to balance the protection of the married family in Article 41 with the constitutional requirements of Article 42A, the Children’s Amendment, and the requirement in the Guardianship of Infants Act 1964 (as amended) that in any proceedings before any court, where guardianship is in question, the court, in deciding that question, shall regard the best interests of the child as the paramount consideration.
For the benefit of all children, the Oireachtas should move to enact legislation introducing Prohibited Steps Orders into Irish law at the earliest possible opportunity.
- Brian Tobin is Associate Professor in Law at the University of Galway
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