Case Studies » Guardian’s Payment » Guardian’s Payment (Contributory) 2015 Annual Report (ref: 2015/04)

Background: The appellant had been caring for her two grandchildren since 2000.  Her daughter, the children’s mother, had a serious drug addiction and their father did not support them.  She applied for a Foster Care Allowance but was held to be ineligible as she was related to the children and they were not, nor had they been, in the care of the HSE.  She made a claim for Guardian’s Payment in 2002 and this was backdated for two years.  However, following a review in 2014, it was held that the qualifying conditions of abandonment and failure to provide no longer applied.  The Deciding Officer relied on the report of a Social Welfare Inspector, which indicated that the children’s father had regular contact with them and was providing weekly payments of €140 in line with a Court Order granted in 2007.  The appellant denied this version of events and made an appeal against the decision. 

Oral Hearing: The appellant was accompanied by a local public representative, and the Deciding Officer attended at the request of the Appeals Officer.  At the Appeals Officer’s invitation, the Deciding Officer outlined the background to the case and the reasons for her decision, including reference to interviews conducted by the Social Welfare Inspector where the children’s father advised that he was paying maintenance of €140 per week, on foot of a Court Order sought by the appellant.

For her part, the appellant stated that she had to break down the door of her daughter’s flat in 2000 so that she could take the children, who were in a state of neglect. She said that she had encountered hardship in raising them, as she had received no support from the HSE.  She expressed concern that a Foster Care Allowance was not payable as it is set at a higher rate and would have been accompanied by a formal care plan.  She stated that no one had ever contacted her to know if she was doing an adequate job in raising the children.  She said that, in addition, because she was in receipt of Guardian’s Payment, rather than a Foster Care Allowance, she was not entitled to get any grants for extending her family home to accommodate two young children and so had no option but to get another mortgage, which had placed her under additional financial pressure.

The appellant advised that the two children have lived with her since they were babies and that her daughter had not recovered from her addiction despite numerous attempts.  In relation to their father, she stated that he never had any hand in bringing up the children.  He had contributed towards their crèche fees but, when he stopped paying, she was advised to take legal action and she obtained a Maintenance Order for €140 per week.  She stated that when they were younger, he took them occasionally to the cinema or for an overnight stay but had not done this for a number of years.  She stated that she had proposed that he seek full custody of the children but that he had continuously refused to take any responsibility for them.  She advised that he discontinued paying maintenance when he lost his job in 2015 and is currently making no contribution.  She said that he had never partaken in their health or education choices or disciplinary issues, nor asked to be consulted in any way, that he had no responsibility for school matters and was not listed anywhere as their next-of-kin. Whilst he became their joint guardian in 2007, he has never exercised guardianship nor availed of the custody agreement made at the time. 

Conclusion: The Appeals Officer made reference to the provisions of Section 2 (1) of the Social Welfare (Consolidation) Act, 2005 which defines an ‘orphan’ as a qualified child –

1. Both of whose parents are dead, or

2. One of whose parents is dead or unknown or has abandoned and failed to provide for the child, as the case may be, and whose other parent

3. is unknown, or

4. has abandoned and failed to provide for the child where that child is not residing with a parent, adoptive parent or step-parent.

   While there is no legal definition of ‘abandonment’ or ‘failure to provide’, the Appeals Officer noted dictionary definitions of abandon as being ‘to leave completely and finally; to forsake utterly; to give up control of’ or ‘a subjective emotional state in which people feel undesired, left behind, insecure or discarded’.  Legally, in the Supreme Court, McGuinness J. has held that failure of duty towards a child does not necessarily or invariably amount to abandonment, but that the requirement of abandonment is not to be considered in isolation, separate from the failure of duty. It is ‘such a failure’ of duty that may amount to abandonment [2002] IESC 75.  In re Justice, Levin J. wrote ‘A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child’.  Tusla, the Child and Family Agency, states on its website that: ‘Child abandonment occurs when a child’s parent or guardian wilfully withholds emotional, physical, and financial support, with no regard for the child’s safety and welfare. This may include physical abandonment, such as leaving a child somewhere with no intent to return for him, or it may include failure to provide physical supervision, emotional support, and other necessities of life for a child living in the home’.  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.

   She noted that the Department had accepted initially that the children had been abandoned and as such met the legislative conditions which define an orphan for purposes of the Guardian’s Payment scheme.  In addition, it had been accepted that there were family arrangements in place at the time and that the appellant was the main carer and provider for the children.  She noted that this arrangement had continued, with the only change being in 2007 when the appellant sought formally to obtain maintenance for the children.  She concluded that the evidence available served to establish that there had been no fundamental change in circumstances which would warrant withdrawal of the payment and accordingly that the appeal should succeed.

   Outcome: Appeal allowed.