Legal and Financial Options for Kinship Carers

Legal and Financial Options for Kinship Carers

When you become a Kinship Carer, as well as building a positive, nurturing relationship with the children and young people in your care, you will need to carefully consider the responsibilities involved and the potential effects on your household, of supporting additional family members.

Legal Options for Kinship Carers

Depending on how your kinship family is formed there are different routes through which to secure your legal relationship with and responsibility for the children and young people in your care, to ensure that their rights can be exercised and protected.

Custody and Guardianship of Children

Custody refers to the day-to-day care, residency and upbringing of children who are regarded as dependent.

The court may make an order for Custody, on application by:

  • a person who is a relative of a child (grandparent, brother, sister, aunt, uncle), 

or

  • a person with whom the child resides if that person is or was married to, or in a civil partnership with, or has cohabited with the parent of the child for a period of at least 3 years and has shared the day-to-day care of the child for at least 2 years,

 or

  • a person with whom the child resides and who has had the day-to-day care of the child for a continuous period of not less than 12 months and the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.
    • Before making an order for custody, the court usually requires the consent of any existing guardians.  However, the court may dispense with this requirement, if it is satisfied that it is in the best interests of the child to do so.
    • Any decision will be made in the best interests of the child and the court may consider the views of the child where possible, given his/her age and understanding.
    • The court can also make an order for joint custody and can specify what access arrangements, if any, are to be put in place, for the parents.

Guardianship means the rights and responsibilities which are involved in bringing up children, which usually apply to parents

Other relatives also have the right to apply to the Court for guardianship:

An application for Guardianship can be made by a person who has provided for the day-to-day care of the child for a continuous period of 12 months (or more) and where there is no parent or guardian willing or able to exercise guardianship rights and responsibilities in respect of the child.  TUSLA, the Child and Family Agency will be notified of such an application.

  • The appointment of additional guardians will not affect the guardianship rights of existing guardians, but guardianship rights of a non-parent, can sometimes be limited to making day-to-day decisions for the child.
  • The court will decide any situation in the best interests of the child and may seek the views of the child where possible, depending on the child’s age and understanding.
  • Existing guardians (and parents) of the child will be notified of an application to appoint a person other than a parent as a guardian of a child.
  • The consent of all guardians is usually required. However, the court can make an order dispensing with the consent of a guardian, if it is satisfied that the consent is unreasonably withheld and that it is in the best interest of the child to make a Guardianship order.

Temporary Guardianship
A Guardian may nominate another person to act as a guardian if they are unable, through serious illness or injury, to exercise their guardianship rights.  The nomination must be made in writing and can specify the rights and responsibilities that the nominated person can exercise.  The nominated person must then apply to the court for guardianship rights if and when necessary.

Testamentary Guardianship
A guardian can appoint another guardian in their Will, to take on the responsibility of their children after their death.  The ‘testamentary guardian’ can then apply to the Court, for custody of the child.  If a testamentary guardian is appointed and there is another surviving guardian, both guardians will act jointly with each other and have the right to apply for custody of the child. 

To enquire about applying for Custody and/or Guardianship, you should first contact your local District Court Office

Social Welfare Payments

Child Benefit is a monthly payment to parents or guardians of children under 16 years of age, or up to 18 if they are in full-time education or full-time training or have a disability and cannot support themselves.

If you are taking full-time care of a child who is regarded as an ‘orphan’, they may also qualify for the Guardian’s Payment.

If:

They are under 18 (or 22 if in full-time education)

 and

Both parents are dead 

or

One parent is either dead or unknown or has abandoned and failed to provide for the child

or

The other parent is unknown or has abandoned and failed to provide for the child 

and

The child is not residing with a parent, adoptive parent, or step-parent

  • It is not necessary to be a legally appointed guardian. 
  • You will not be eligible for this payment if you are receiving a Foster Care Allowance (payable by Tusla).

From January 2022, the weekly rate of Guardian’s Payment is €191 per child.

If you are a kinship carer who has been refused the Guardian’s Payment, please contact us, and we will do our best to provide you with further information or support, if possible.

Please Note:

Through our work, Kinship Care Ireland has learned that when an application for the Guardian’s Payment is being made by Kinship Carers who are caring for children and young people in a ‘private family arrangement’, which has been facilitated by a Tusla Social Worker, it is helpful to include a supporting letter from the Social Worker, with the Application Form, stating the nature of the arrangement, and in particular that parents are not currently involved in the care of the child(ren), nor are they expected to be.