Guardianship of Children on Death of a Parent

This article, written by Michelle Cronin, Partner CKT, gives an overview of guardianship of children where one parent has killed the other.

The death of a parent is, regardless of age and circumstance, traumatic and particularly so where young children are involved. The trauma caused when the death of a parent is intentionally caused by the other parent is difficult to imagine. Valerie French’s family have faced this nightmare since her murder in June 2019 and have advocated strongly in favour of removing the legal right of guardianship of children from a parent where that parent has killed the other parent.

This area has also been addressed in A Study on Familicide & Domestic and Family Violence Death Reviews and the government have generated a draft bill to address this issue – Guardianship of Infants (Amendment) Bill 2025 – which is now at the pre-legislative scrutiny stage. The Social Democrats have also initiated a Bill under the same name. The bills have a common purpose but slightly different methods of achieving their desired outcome.

Overview of Guardianship

Guardianship of children is essentially the right to make decisions in respect of a child including health matters, education, religion, travel etc.

In Ireland married parents are both legal guardians and custodians of their children by operation of law regardless of whether the children were born before or after their marriage.

In respect of parents who are not married to each other, the mother is automatically the sole guardian. The other parent can be appointed guardian by way of statutory declaration or District Court Order. The Children and Family Relationships Act 2015 also makes provision for a father to be automatically considered a guardian once he has lived with the child and mother for a set period of time. Having the father’s name on a child’s birth certificate is irrelevant to guardianship.

Removal of Guardianship

To date it has not been possible to remove guardianship from a mother. It has also not been possible to remove guardianship from a father who is or was married to the mother. None of the relevant legislation allows for it and it could be argued that Article 41 of the Constitution which provides for specific recognition of the family and pledges to support it may mean any legislation to remove guardianship from married parents is unconstitutional.  It is possible to remove guardianship from a non-married father by way of application to the District Court. This is extremely uncommon.

Current Situation

So, what happens if one parent is convicted of killing the other spouse and is serving a sentence? That parent retains guardianship and retains all rights in respect of his or her children.  This means that the person’s consent is required to apply for a passport, medical treatment, schools etc.

Draft Bills

Both draft bills provide for this lacuna to be addressed by the District Court, and both require the involvement of Tusla. What will be key to the successful implementation of the legislation is addressing whether the new legislation is in compliance with Article 41 of the Constitution and whether it could withstand challenge in that regard. Some commentators have noted that a ‘work-around’ could be utilising a ‘prohibited steps’ order akin to what is utilised in England/Wales. This reduces the rights associated with guardianship instead of removing guardianship in full and thus may be less vulnerable to successful challenge.

Other Considerations

What I would respectfully suggest is the legislation also address the issue of guardianship where the surviving parent has been found not guilty by reason of insanity.

I would also suggest it address what should occur regarding the guardianship of a child seriously injured by a parent and what should occur regarding guardianship of children where a parent has killed or seriously injured one of the children’s siblings. In an ideal world this would never be required or used. However, if we are dealing with the aftermath of these types of tragic situations it is best to cover other potential eventualities at the same time.