In 2016, CLM Limerick provided representation to a client who had applied for Guardian’s Payment in respect of her grandson, for whom she provided full time care following the death of his mother, and had been refused. The client made an application for the Guardian’s Payment following the death of her grandson’s mother , after which it had been agreed by the relevant parties that the child would live with
his paternal grandmother. The child’s parents were not married, and the father had not been appointed the child’s legal guardian.
The client was advised that the reason for the refusal was due to the child’s ongoing contact with his father, including overnight access, and the provision by the child’s father of his school uniform, books and clothing, as a result of which the Deciding Officer found the child did not meet the statutory definition of an “orphan” for the purpose of receiving the Guardian’s Payment (Contributory).
CLM Limerick’s Input
The client sought the assistance of Community Law and Mediation Limerick, who reviewed the file and submitted an appeal on behalf of the client. In submitting the grounds of appeal, it was asserted that the child’s father had “abandoned and failed to provide” for his son, in light of the criteria set out in the Department of Social Protection Guidelines. When determining whether a child has been abandoned, the Department of Social Protection Guidelines have set down the following criteria to be considered by the Deciding Officer in making their decision:
• Likely duration of the existing circumstances
• Level of contact between the parent and the child
• Level of parent’s involvement in the welfare of the child
• Willingness of the parent to have the child live with them
• Evidence of conflict between the parent and the child
• Parent’s view of their relationship with the child
It is further stated in the Guidelines that the above list is not exhaustive, and due to the complex and sensitive circumstances often involved in such cases the Deciding Officer may request and consider such other evidence as they see fit before arriving at a decision. A parent is considered to have failed to provide for their child where they do not provide financial support for or towards the care of the child. Abandonment and failure to provide includes the failure of a parent’s duty to provide for the emotional and physical necessities of life required by a child. With respect to the legal definition of abandonment, CLM Limerick sought to rely on a decision by an Appeals Officer in a previous case, reported in the Social Welfare Appeals Office Annual report 2015, which stated:
“The Appeals Officer considered that abandonment and failure to provide must be held to be more than merely financial, as in this case, with the provision of maintenance via the courts; it includes the failure of a parent’s duty to provide for the emotional and physical necessities of life which the appellant had evidenced in her oral testimony regarding both parents.”
It was submitted that due to the failure of the child’s father to provide financially for his son’s support in this case, and the fact that he had “failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child,” that the definition of “orphan” was satisfied. It was asserted that the facts in the case with respect to the role of the child’s father demonstrated that the threshold of “abandoned and failed to provide for the child” had been met, and therefore, the child should be regarded as satisfying the statutory definition of “orphan” for awarding the Guardian’s Payment.
As a result of the oral and written submissions made by CLM Limerick, on behalf of the client, the appeal was allowed. The decision of the Appeals Officer is this case is noteworthy in terms of the range of factors that were considered in order to assess whether the definition of abandonment and failure to provide was met. Reference was made to a Supreme Court judgment in the Appeals Officer’s decision, which provided some clarity in respect of the question of “abandonment”, which is not defined in the 2005 Act. This case also highlights the limited information relied on by the Deciding Officer for the purpose of making a determination. A questionnaire has by definition limitations in terms of the amount of information that can be elicited in order to determine context, and appropriately weigh all the relevant factors for the purpose of making a finding.