Valerie's Law won't stand, but there is a way to stop killers controlling their children

Noble campaign of Valerie French's family must be vindicated using new legal framework

Tue, 11 Mar, 2025 - 12:53

Brian Tobin

The minister for justice, Jim O’Callaghan, has announced he will shortly bring legislation based on ‘Valerie’s Law’ before Cabinet that will remove guardianship from convicted killers.

This law is designed to remove guardianship from parents who are responsible for killing their child's other parent.

In the draft programme for government 2025, the Government had already committed to examine such a proposal, this being one of the "appropriate recommendations" from a Department of Justice study on Familicide and Domestic and Family Violence Death Reviews. This study came to the conclusion "current legislation should be amended to ensure that a parent convicted of the murder or manslaughter of the other parent does not retain guardianship of the surviving child or children".

Although the details of the draft legislation remain to be seen, there is a major difficulty with the minister’s proposal, and the earlier study it is based on, because guardianship, which is the right and responsibility of parents to decide how their child generally will be raised, simply cannot be removed from married parents.

Protection for the married family

The barrier to achieving this is the protection for the married family in the Irish Constitution. The constitutional rights of the married family members are described therein as being "inalienable", which means they "cannot be given away".

Although legislation allows for parental rights to be diluted by court order in custody and access disputes between married, separated or divorced parents, they are not taken away forever more, because an order made in relation to any of these issues is never final and can later be reviewed, varied and discharged by a court.

Without a successful referendum to change the Irish Constitution, legislation permitting the courts to make a final and irreversible order removing from married parents their status as a guardian of their children could be unconstitutional, even in exceptional cases.

Ireland is not alone in according an irrevocable legal privilege to married parents. The law in England and Wales does not permit parental responsibility (the legal equivalent to guardianship there) to be removed from married parents either. The courts there have said this is justified as an overall social policy aim of affording priority to the establishment, and maintenance, of stable family life by commitment through marriage.

Prohibited steps order

However, the law in England and Wales does provide for the parental responsibility of married parents to be restricted via a mechanism known as a prohibited steps order. This court order does not remove the status of holding parental responsibility from a married parent, but it does stop them exercising their parental responsibility by, for example, taking a child out of school or taking them out of the country, consenting to or refusing medical treatment for a child, accessing a child’s health and education information, or carrying out some other activity, or even a range of activities, in relation to the child.

The parent subject to the prohibited steps order will still be able to exercise their parental responsibility in relation to non-prohibited issues, because generally, a prohibited steps order is not used by the court to achieve a blanket restriction of a parent’s parental responsibility.

On occasion, in exceptional cases, it has been used to completely curtail a notoriously problematic parent. Prohibited steps orders are legally binding, but can later be varied or discharged by a court.

The fact guardianship cannot be removed in the case of married parent-guardians does not mean the Oireachtas should forego the introduction of the prohibited steps order (or an appropriately-titled Irish equivalent) into Irish law, enabling a court to restrict them from exercising some (or all) aspects of their guardianship in appropriate cases.

This would dilute somewhat (but not remove completely) the constitutional protection of married parents under Article 41, and the State would be acting on its express constitutional obligation in Article 42A (the ‘Children’s Amendment’) to legislate to ensure the best interests of the child is the main consideration in guardianship matters.

Valerie French Kilroy was murdered by her husband James Kilroy, who still retains guardianship over their three children.

It could be seen as a constitutional right of the child to have (or not to have) their parent exercising some or all aspects of their guardianship rights, subject to later review by a court.

Not only would the prohibited steps order be a welcome addition to the court’s arsenal in private family law disputes between married parents, it could also provide a remedy to address concerns surrounding the exercise of guardianship rights by convicted killers. Significantly, legislation passed in England and Wales just last year extended the prohibited steps order to cover these very situations.

The Victims and Prisoners Act 2024 provides that where a parent who has parental responsibility for the child is convicted of the murder or manslaughter of the other parent, the crown court must make a prohibited steps order when sentencing the offender, and the order must specify that no step of any kind which could be taken by a parent in meeting their parental responsibility for a child may be taken by the offender without the consent of the court.

A prohibited steps order made in the context of domestic homicide also does not remove parental responsibility from a parent, but it completely restricts its exercise. This can prevent bad faith actions by domestic abusers maintaining control of their children after a conviction.

The order must also be made to have effect until varied or discharged by the court (for example, if the parent is acquitted on appeal).

Irish cases

This issue has been highlighted in a number of Irish cases, but particularly so in the noble campaign run by the family of Valerie French, whose husband James Kilroy was convicted and sentenced for her murder, but who still retains guardianship over their three children.

The French family are calling for this change in Irish law, ‘Valerie’s Law’, but a full scale removal of rights is just not possible. However, this version of the prohibited steps order recently introduced in England and Wales could be introduced in Ireland as soon as possible.

By restricting the exercise of guardianship rather than removing the status of being a guardian, this represents a proportionate, constitutionally sound means of wholly curtailing a married parent’s guardianship rights over their children following a conviction for domestic homicide.

You cannot remove guardianship from married parents, but you can certainly restrict how it’s used.