Inspection of Domestic Wastewater Treatment Systems

The Water Services (Amendment) Act 2012 introduced a new registration and inspection regime for domestic waste water treatment systems which include septic tanks. The purpose of the legislation is to impose an obligation on owners of such treatment systems to ensure their systems are operating and maintained so as to make certain that they do not pollute the environment. The Act imposes an obligation on each owner of a treatment system to register their system and the Act allows inspections of the treatment systems to be carried out by authorised inspectors. This Act imposes on the “owner” of a premises connected to a domestic waste water treatment system an obligation to have details of their waste water treatment system entered in a register which is maintained by the water services department of each local authority. To register the owner of the premises must complete a form and pay the relevant registration charge. The water services authority will then enter the details in the register of domestic waste water treatment systems and will issue a Certificate of Registration to the owner. The Certificate of Registration should be kept in a safe place (with the title deeds if possible) as it may be required when the property is being sold. This certificate will be valid for five years, after which time the treatment system must be re-registered and a new certificate obtained. The registration charge is currently set at €50, but the Act provides that it may be reviewed from time to time by the Minister for the Environment, Community & Local Government. If registration is completed prior to 28th September, 2012 the registration fee will be €5. All water treatment systems must be registered by 1st February 2013. The Act provides for inspections to be carried out on treatment systems and inspections are due to commence in 2013. Under the Act the owner of the premises is to be provided with 10 days notice of an inspection. If access to the treatment system is not granted to the inspector this may be deemed an offence and is liable to a fine not exceeding €5,000. The Act does not impose an inspection charge on the owner of the premises The inspections will initially concentrate on areas where treatment systems are posing a higher risk of polluting the environment.. If an inspector finds that your system is working properly and being maintained correctly no action will need to be taken by you. If however an inspection of the treatment system deems it to be malfunctioning, an advisory note will issue from the local authority requiring you to take steps to improve your system. Registration of a treatment system can be made online at www.protectourwater.ie or by printing the form on the website, completing it and then submitting it to the Protect Our Water, P.O. Box 12204, Dublin 7. Forms are also available from the local authorities and libraries.  The following details will need to be completed on the form; the names and addresses of the owner(s) of the property and the address of the treatment system This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of...

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Guardianship of Children – Unmarried Fathers

Irish law provides that married parents of children shall jointly be the Guardians of their children.  Guardianship in law amounts to what you would appreciate as parental rights.  It encompasses the duty to maintain and properly care for the child and the right to make decisions about a child’s religious and secular education, health requirements and other matters affecting the welfare of the child; as distinct from actual physical custody of the child.  Custody is the physical day-to-day care and control of a child. Even where one parental guardian has sole physical custody of a child, the other parental guardian is generally entitled to be consulted in relation to matters affecting the welfare of the child.  The child ceases to be the subject of guardianship when he or she reaches the age of 18 years or upon the date of his or her marriage. While the position of the married father is clearly recognised, there is no such protection for the unmarried father who does not automatically have guardianship rights in respect of his children. The Guardianship of Infant’s Act, 1964, specifically recognises the unmarried mother as the sole automatic guardian of the children.  The law was out-dated even when it was put in place but at that stage there were relatively few unmarried fathers to be adversely impacted by the legislation.  The law is now widely out of step with international best practice and the needs of modern Ireland where statistics show that approximately one-third of all children are born outside of a marriage. It is hoped that the Guardianship of Infant’s Act, 1964, will be updated but in the interim unmarried fathers may obtain guardianship rights in respect of their children in three ways: A subsequent marriage between the unmarried parents; An application to court; A Statutory Declaration made by both unmarried parents appointing the father as guardian. Naturally, marrying a person solely to copper fasten rights in respect of the children is a recipe for future difficulty and is to be avoided.  Where there is no obvious reason why a father should not be appointed guardian then it is to be expected that an application to court would be successful.  However that involves putting the unmarried parents on a legal collision course which though often unavoidable should never be the first option. The Statutory Declaration is certainly the preferred option as it involves the unmarried parents signing a document agreeing that the father has a co-equal right in respect of guardianship of the child or children with their mother.  The document would be signed in duplicate so that each parent has a copy.  Once the Statutory Declaration is put in place, then the father so appointed, can only be removed as a guardian by Court Order. In the absence of the agreement of the unmarried mother (to marriage or to appointment by Statutory Declaration) then the only remaining method of appointment is an application to court.  Where the unmarried father can show that he is capable of exercising guardianship rights, is making a financial contribution to the upkeep of the child or children, and there is no other reason (exempli gratia history or pattern of abusive behaviour) then the court is likely to approve the application. However the Statutory Declaration remains the preferred option and particularly...

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Child Custody & Access Applications in the District Court

Irish law provides that the married parents of children shall be the joint custodians of their children. Where the parents of a child are not married to each other the unmarried mother has automatic custody and guardianship of the child. What is Custody? Custody is the physical day-to-day care and control of a child. Even where one parent has sole physical custody of a child, the other parent (if a guardian or joint custodian) is generally entitled to be consulted in relation to matters affecting the welfare of the child. Where parents are separated then practically speaking the child will usually reside with one parent and the other parent will enjoy rights of Access. What is Access? Access is the right of the child to see and enjoy the company of a parent. The Childcare Act 1997 extended Access rights to other relatives of the child. What are the Rights of an Unmarried Father? For an unmarried father to be appointed as a joint custodian he would have to apply to the court for an Order to be made to appoint him as joint custodian. Informal Access arrangements can be made between the parents. This will work where both parents are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parents sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties.   If agreement cannot be reached the matter can be put before a District Court Judge to decide. Any disputes in relation to Custody and Access will be determined by the Court on the basis that the welfare of the child is the first and paramount consideration. Where the child is considered old enough to express a view on the matter the District Court Judge will request that the wishes of the child be assessed by a child psychologist and take this into consideration when making an Order for Custody and or Access. It is a child’s right to see both parents and Access by the non-custodial parent will only be denied if the court believes that it is not in the best interests of the child. The court can set out the time, place and duration of Access visits and can order supervised Access where another adult is present during visits if it considers it appropriate. It should be noted that an Access and Custody Order is never final and either party can return to the District Court to seek to have the Order amended, varied or discharged at any future date. This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Hammond Good, Solicitors for any action taken in reliance on the information contained therein. Any and all information is subject to change. For further information on the subject, please contact the author, Joyce A. Good Hammond, at...

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Drink Driving Laws

New road traffic legislation which came into effect recently has amended the law in relation to a variety of road traffic offences. Particularly noteworthy is the overhaul of the law in relation to the prosecution of drink driving offences. Under the old regime any person charged with drink driving automatically received a summons to appear before the District Court. The Acts have amended the procedure and only drivers falling into certain categories will receive a summons to appear in court. The alcohol limit under the new regime has been reduced from 35 micrograms to 22 micrograms of alcohol per 100 millilitres of breath. Where the breath alcohol level does not exceed 22 micrograms and the driver is not a “specified person” and has not had received a fine for drink-driving in the past three years, they will face a fine of €200 and three penalty points will be applied to their licence. A reading of a breath alcohol level between 22 micrograms but not exceeding 44 micrograms on a first offence will result in the driver facing a fine of €400 and a disqualification from driving for a period of six months. The definition of a “specified person” is set out in the new regime and includes among other categories a learner driver, a taxi or public service vehicle driver, a driver who is towing a trailer in excess of 750 kg and a driver who drives a vehicle in the course of their business. These categories of drivers are subject to a lower level of 9 micrograms of alcohol per 100 millilitres of breath. If a driver in this category has an alcohol level in excess 9 micrograms of alcohol but not exceeding 35 micrograms of alcohol per 100 millilitres of breath they will face a fine of €200 and will be disqualified from driving for three months. There are a number of categories where a summons will automatically issue for the driver to appear before the District Court, they include: A driver who has a breathalyser reading in excess of 44 micrograms of alcohol per 100 millilitres of breath. A driver who is a specified person and who has a breathalyser reading in excess of 35 micrograms of alcohol per 100 millilitres of breath. A person who has not paid a fine in the specified time. As motorists will only be able to use the lower penalty regime once in a three year period. If they are caught in excess of the limit on a second or subsequent occasion they will receive a summons to appear in court. Second or subsequent offences may result in disqualification from driving for a period up to six years, substantial fines and or up to six months imprisonment. This depends on the level of alcohol recorded and the number of previous offences. Penalty points received will remain on your licence for three years. If twelve penalty points are accumulated in a three year period you will be disqualified from driving for six months. This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Hammond Good, Solicitors for any...

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Legal Aid in Family Law Matters

The services of the Legal Aid Board are operated through law centres located throughout Ireland. Legal services for clients in receipt of legal aid are primarily provided by solicitors employed by the Legal Aid Board (“the Board”) working in these law centres.  In certain instances provision of legal services is outsourced to solicitors in private practice. To obtain the services of the solicitor in your local law centre you must satisfy the Board’s financial requirements and must satisfy the Board that your case has merit. An applicant applying for legal advice and / or legal aid in a family law matter must undergo a means test. The applicant will be requested to complete a Statement of Means setting out details of their income and details of all assets owned by them. An assessment will be made by the staff in the law centre to establish if the applicant will qualify for legal aid and also to calculate the amount of contribution to the service which must be paid. The Financial Test To qualify for legal aid in a family law matter the applicant’s disposable income cannot exceed €18,000 and their disposable capital (excluding their home) cannot exceed €320,000. These figures are reviewed from time to time by the Minister for Justice, Equality and Law Reform and the Minister for Finance. Disposable income is the applicant’s gross income from all sources less various allowances in respect of accommodation, dependents, mortgage, tax etcetera. What Contribution is payable? Legal advice and legal aid is not totally without charge in family law matters and a contribution (normally relatively nominal in the context of the value of the services provided) toward the cost of the service must be paid. The applicant will be advised by the law centre of the amount of the contribution required at the outset. Legal advice is verbal or written advice given by a solicitor. Legal advice is provided by solicitors in the law centres. The minimum contribution for legal advice is currently set at €10.  Legal aid is representation by a solicitor in court in relation to a family law matter.  The minimum contribution for legal aid is currently set at €50. How long do you have to wait to see a solicitor? The Board employs a number of solicitors in its law centres throughout Ireland. Once an application has been received by them, an assessment made and legal aid has been granted the applicant is notified in writing of the decision and the applicant’s name is put on a waiting list. The Board is obliged to provide an applicant a consultation with a solicitor within a number of months from the time their application is approved. Services are also provided by solicitors in private practice in certain emergency cases or where an applicant is on the waiting list for some time. When this situation arises the applicant will be notified by the Board that they are entitled to the services of a solicitor in private practice. The applicant will be provided with a list of solicitors on the panel and they may choose one of the solicitors to act on their behalf. The Board will then correspond directly with that solicitor and notify them that they have been chosen to act on behalf of the applicant. The legal...

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Maintenance Payments for Spouses

A married person can seek Maintenance payments from the other spouse following the breakdown of their marriage. The obligation to maintain and support your spouse continues even if the person paying maintenance remarries. There is no clean break from the obligation to support the other spouse following a separation or divorce. Subject to the terms of an Agreement or Court Order a spouse only stops being responsible for the maintenance and support of the other spouse when the spouse receiving the maintenance dies or remarries. Voluntary Maintenance Informal maintenance arrangements can be made between the parties. This will work where both parties are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parties sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties. Maintenance Orders Made By the Court If the parties are unable to agree on the amount of Maintenance to be paid then an application can be made to either the District Family Court or the Circuit Family Court requesting that an Order be made by the Court directing the amount of Maintenance to be paid. Each party must present evidence of their earnings and details of their expenditure. On hearing the evidence a Judge will make an Order determining the amount to be paid. The maximum amount a District Court Judge can order is €500 per week (which would very rarely arise), and the amount stipulated will depend of the means of each party. If a sum greater than the District Family Court maximum is sought it will be necessary to apply to the Circuit Family Court. If the financial circumstances of either party changes an application can be made to court to have the Order varied by either increasing or decreasing the amount payable.  If the spouse falls into arrears with payments an application can be made to the court for an Enforcement Summons to issue against the offending party. Income Tax Consequences The spouse who is paying maintenance is entitled to a tax deduction for the sum paid in spousal maintenance. The recipient spouse must declare the amount received as part of his or her income for tax purposes. How to Apply for Maintenance A solicitor will assist you in issuing a summons seeking Maintenance. Legal advice and representation is very beneficial in these circumstances. Depending on your circumstances you may qualify for legal aid and you should enquire at your nearest law centre to ascertain if you are eligible for legal aid. If your application is approved a solicitor employed by the Legal Aid Board (“the Board”) working in these law centres may represent you or in certain emergency cases or where an applicant is on the waiting list for some time they will be notified by the Board that they are entitled to the services of a solicitor in private practice. When this situation arises the applicant will be provided with a list of solicitors on the panel and may choose one of the solicitors to act on their behalf. Legal aid is not totally without charge in family...

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