Take the definition of the word "infant". According to Section 2, "infant" means a person under 21 years of age. The word "infant" is used throughout all the sections. Is this a serious definition when it applies up to 21 years of age? Is it a standard definition all round in all Government legislation? Is that the reason it is being used in this?
Guardianship of Infants Bill, 1963— Committee Stage.
This whole question of infancy is very interesting. Deputy McQuillan will probably know that under the Roman Law a person was regarded as a minor or infant until he was 25 years of age. Later on in feudal times, 20 years of age became more or less accepted to be the age at which, as it were, one reached man's estate. In more modern times, 21 years has come to be generally regarded as the appropriate age for this purpose. I am not sure that 16 or 17 years might not be more appropriate. Indeed, I am sure there are plenty of people who would argue that it would. However, I feel that any attempt to reduce the age from 21 years to about 16 or 17 years would probably be strenuously resisted by the majority of parents. On the whole, 21 years is probably the right age.
The Minister does see the inconsistency in the Bill between the definition of "infant" and the provisions in Section 7? It is possibly what was in Deputy McQuillan's mind. It does seem odd that this Bill deals with the guardianship of people up to the age of 21 and at the same time and in the same Bill you solemnly amend the Wills Act to enable a person under 21 years of age to appoint a testamentary guardian.
That is only part of it. The whole matter is well worth examination. If we accept that an infant is a person up to 21 years of age, then on that basis I would say that 50 per cent of the people killed in war are infants. Take service in the Defence Forces. If a person is over 17 years of age, he does not need the consent of his parents to join the Army. Therefore, there is not that standard application of the word "infant" as meaning 21 years of age in all State services. If a boy is 16, he may join the Army with his parents' permission. If he is over that age, if he is 17, he does not need permission.
Surely if that practical view is being taken in the Army, there is nothing wrong with the Minister taking the view that 16 years of age is a more desirable and practical one, because in a number of sections the court will have power to consult the wishes of the infant with regard to his future, or perhaps in regard to his religion or his guardianship. At what stage does the court decide to consult the infant? There may be a difference between consulting the infant at the age of eight and consulting him— when he is still described as an infant —when he is 20 years of age. The Minister should give us some indication of what is meant by an infant when the court consults the infant with regard to his future and what is meant by an infant in the sense of a child no longer considered dependent on an institution for his welfare.
I agree with Deputy McQuillan in this. It is a matter that might be considered rather more carefully. As the Minister knows, there are Acts in which, for example, the expression "young person" is used as defining a person under the age of 16 and the word "minor" is used to relate to people generally under the age of 21. Infants are regarded as people of tender years and in relation to the criminal legislation where the matter of intent comes in—I am thinking now of where the question of malice comes in—the law used to be that a child up to the age of seven was regarded as not being capable of malice in law. I am not sure whether I am correct in that. It has been extended to the age of ten or 11 but the point I want to make is that the question of age is taken into account and is taken into account in a definitive way in a number of statutes and to have this law of guardianship relate to all people under the age of 21 does give rise to certain anomalies to some of which Deputy McQuillan has referred.
A young lad who has served for a couple of years in the Army may find himself presented with a guardian about whom he knows nothing, whom he does not want and for whom he has no respect or regard. It is going to be very hard to enforce a guardianship in those circumstances. I imagine what was in the Minister's mind—it was certainly in my mind when I read this Bill—was that generally and principally it was intended to deal with infants of more or less tender years, certainly infants who are not able to fend for themselves. Having regard to that, possibly the Minister would consider whether or not the question of an age limit, less than 21, should be operated in connection with the Bill.
Yes. Let me just say in reply to the specific question by Deputy McQuillan that I am advised that the Supreme Court decided in a case known as the Frost Case, reported in 1947, that in an application to the court dealing with the custody of an infant, the court is entitled to interview the infant, presumably at any age, and where the child is over 14 years of age the court is entitled to ask him whether or not he consents to remain where he is. This actually concerned a boy over 14 years. So that the court had regard to the age of 14 years as being the age at which the boy's consent apparently——
The Minister used the word "child". Is there a distinction? In the Mother and Child Scheme, there was a reference to 16 years. Is there a special significance in the word "child"?
No; I just used it casually.
Instead of "infant"?
Yes. This is a subject on which I would be glad to hear the views of Deputies——
Before the Minister leaves that, would it be a fact that this Bill when it becomes an Act will override whatever decisions——
Not in that case. That would be the common law and would still apply. If any Deputy could point out any real disadvantage in the provisions of this Bill applying to a child up to the age of 21, I would certainly be prepared to have another look at it but apart from its appearing anomalous that the Bill regards a child as being a satisfactory subject for guardianship until the age of 21 years and at the same time enables a person under 21 to appoint a testamentary guardian, I do not see that there is any particular disadvantage. On the basis of leaving well enough alone, and not changing the law unless you have some good reason for doing so, I am inclined to leave it at 21 years.
Is there any defence for 21 years? In relation to the health scheme, I suppose it was assumed that after 16 the child would be earning and self-sufficient or something like that, and that was the reason why the age of 16 was chosen. Generally speaking in our society, a child after the age of 16 is earning and independent and would there not be a case for reducing it to 16 or 18 because a child would have achieved a fair measure of economic independence at that stage?
Yes, but is it not better to maintain the parents' rights and responsibilities to a later age, if possible? Is is not one of the reasons which people advance today for increased juvenile delinquency, that parents will not face up to their responsibilities, will not exercise control over their children? If there is any validity in that argument should we by an Act of our own take away from parents their existing responsibility for infants between a lesser age and 21 years, or should we endeavour to see that parents exercise this control and responsibility up to 21 rather than to 16 or 17? I must say I still have an open mind on the matter.
I take it that the Minister has looked into the question of family? This section says the court "shall regard the welfare of the infant as the first and paramount consideration." On reading the relevant constitutional provisions it seemed to me that it is the family that has to be regarded as the first and paramount consideration.
Quite often there is no family in this type of case.
I know, but I take it the Minister's advisers have satisfied themselves on this.
Yes. In the Tilson case, for instance, the Supreme Court accepted the principle that the paramount consideration was the welfare of the infants concerned. In doing so it had full regard to Article 42 of the Constitution.
Subsection (1) provides:
The father and mother of an infant shall be guardians of the infant jointly.
Subsection (2) provides:
On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court.
Then, subsection (3) provides:
On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court.
The final subsection, subsection (4), provides:
The mother of an illegitimate infant shall be guardian of the infant.
I am wondering if it was deliberate that that subsection did not carry on with a reference to joint guardianship, or to the right of the mother of a legitimate infant to appoint a testamentary guardian?
Yes, it was.
In connection with this section, I want to mention a matter I raised on Second Reading. It seems to me this section contains some provisions which are not likely to make for family content. The Minister, on Second Reading, referred to this Bill as being a Bill, to some extent at least, for dealing with the situation which arises from broken homes. This section, it seems to me, contains within itself an element that could possibly give rise to discontent. It is provided in subsection (4):
If the surviving parent so objects or if a testamentary guardian considers that the surviving parent is unfit to have the custody of the infant, the testamentary guardian may apply to the court for an order under this section.
The testamentary guardian is being given the right under this subsection to go into court and endeavour to have the rights of the surviving parent taken away, because in clause (c) of the next subsection, it is provided that the court may:
make an order that he shall act as guardian of the infant to the exclusion, so far as the court thinks proper, of the surviving parent.
I think we should go very slowly, indeed, in providing legislation which will make it possible for a testamentary guardian—I say "testamentary guardian" though it applies to other guardians as well—to acquire rights in relation to the child superior to the rights of the surviving parent, and ones which can be enforced in law.
I should like to support the points made by Deputy O'Higgins. This appears to be a very complicated step. It is essential that important natural rights should be preserved and protected. It is quite true that these rights and responsibilities are often neglected, abused, or ignored by those in whom the rights are vested, namely, the natural father or natural mother of the child. We all know very well that the circumstances under which illegitimacy arises are so complex that it is quite impossible for us to analyse them, or to dogmatise or generalise about them. In Section 3, I think it is evident the general wish is that the welfare of the infant should be the first and paramount consideration.
One must take it that the natural parent is the most desirable parent. If at any time in the infant's life that natural parent is prepared to recognise his or her responsibilities, and honour them, then nobody has the right to take away these natural rights, and I do not think the courts should allow themselves to be used in order to do that. These rights should be preserved all the time. There is the proviso "so far as the court thinks proper." It is, of course, very difficult to argue and discuss this. We will assume that there will be a wise judge and that he will decide, having regard to "the welfare of the infant as the first and paramount consideration." I want to ensure at no time can the natural right of the parent to guardianship of the child be taken away completely. That would be possible under this, because it could be done as a result of an application by the testamentary guardian. That would be undesirable.
I readily admit that this is very complicated, and that it is arguable as to what is the right thing to do. I think we have hit on the best solution here. We have put the surviving parent in a very superior or favourable position. The surviving parent has merely to object to the testamentary guardian acting but the testamentary guardian has to go to court and show that the surviving parent is unfit to have custody of the child. To that extent, the natural surviving parent is in an entirely favourable position.
Furthermore, as Deputy Dr. Browne rightly pointed out, when the application is made by the testamentary guardian, the court can either refuse to make an order or it can make an order establishing joint guardianship or—and this is the important thing— it can make an order giving the guardian rights to the exclusion of the parent to the extent the court thinks proper. In Britain, the corresponding provision of their Guardianship Act of 1925 empowers the court to make an order simply making the testamentary guardian the sole guardian of the infant; in other words, the natural parent is stripped of his or her rights completely.
Does this not, in effect, amount to the same thing? It is open to the court to make that order?
Not exactly. The court would have regard to what is in this piece of legislation. It is provided here that the court can order the testamentary guardian to act as guardian to the exclusion, to the extent the court thinks proper, of the surviving parent. The corresponding British order would be one making the testamentary guardian sole guardian of the infant. Guardianship, of course, includes matters other than custody. It includes, for instance, the guardianship of the estate. The court would have regard to that, and with reference to the wording in this Bill could very well say: "There are certain fundamental things such as the education of the child and his upbringing, and we do not intend to interfere with the natural rights of the parent in that regard. However, we shall exclude him from the guardianship of the child in so far as the estate is concerned." By this form of wording we are giving a clear indication to the court and, looking at the section as a whole, we feel, as Deputy Dr. Browne has said, that in normal circumstances the parent is the proper guardian. However, there is also the principle that guardianship should be consistent with the welfare of the child. There might be circumstances where the court should properly exclude the parent altogether or exclude him to some limited extent from guardianship, for instance in regard to the guardianship of the estate of the child.
I raised this also on the Second Stage and I should be glad to hear further from the Minister about it. I cannot understand why it should be necessary in subsection (2) of Section 8 to provide:
When no guardian has been appointed by a deceased parent or if a guardian so appointed dies or refuses to act, the court may appoint a guardian or guardians to act jointly with the surviving parent.
I can see there is a case to be made for that where a guardian has been appointed and dies or where a guardian has been appointed and refuses to act, but I cannot see what case there is to be made for bringing in this provision where no guardian has been appointed by a deceased parent and the other parent is still surviving. In circumstances where a parent has not thought fit to appoint a guardian by will, why should we assume that was a mistake on the part of the deceased parent and bring in a provision here that the court may, in such circumstances, appoint a guardian to act jointly with the surviving parent?
Suppose some friends of the deceased parent regard the surviving parent as demonstrably unsuitable and unfit to look after the child. Could such a situation not arise?
I dare say such a situation could arise but if that is encouraged it is not a question of bringing in legislation to assist cases where homes are broken up but of bringing in legislation which is likely to break up homes. It is wrong that a relative or anyone like that should be encouraged to make objections to the surviving parent and automatically, on such an objection being made, that the court should have the right to appoint someone to act jointly with the surviving parent who, as Deputy Dr. Browne has rightly pointed out in discussion of the last section, is the natural guardian of the child in these circumstances. I do not understand why that right or privilege should be whittled away.
There is considerable force in what Deputy O'Higgins says but we must provide something like this. This is not a new provision; it was in the 1886 Act as well. We must provide for the case where some friend of the deceased parent would consider that the surviving parent was demonstrably incapable of or unfitted for looking after the child and would be entitled to apply to the court to have a guardian appointed. We must assume the court will be responsible in this regard and, indeed, the courts have, down the years, applied very strict rules to their behaviour in selecting guardians. In most cases the fact that the surviving parent would be able to come into court and say the deceased parent did not think it was necessary to appoint a testamentary guardian would have a very strong bearing on the outcome of any such application. There is no doubt that people would not go lightly to the court in this type of case. We can assume people would go to court only where they are in a position to demonstrate to the court that there were very good reasons why a guardian should be appointed. Otherwise, they would get very short shrift in court.
I should hope so, but it depends entirely on what case law is established under this.
Would Deputy O'Higgins not agree that we must provide for cases where it would be undesirable that the surviving parent should remain in control and custody of the child and that somebody should be able to act in such a situation? If that is so, it is obvious they should be empowered to apply to the court. The court would have to have regard to the predominant rights of the surviving parent and to the fact that the deceased parent did not think it necessary when he or she was alive to appoint a testamentary guardian.
As in the case of the previous section, the principle of the natural rights of persons is an important one and should be very jealously guarded in any society. It is very hard to be the judge of the attitude and behaviour of an individual parent, the natural father or mother, and to decide whether that is the wisest guardian or the best home for that child. It is not simply a question of providing a child with a good home, plenty of food and so on. There are emotional values involved in the whole question which could determine the happiness of the child for the rest of its life. Even though prima facie it might appear the child was living in a bad or an undesirable environment, an environment in which he was not fed or clothed properly, at the same time, emotionally it might be an ideal environment for the child, or in the words used in section 3 of the Bill, an environment which would “regard the welfare of the infant as the first and paramount consideration.”
I know there is the provision of a wise judge. I shall not go into details, but recently we had an instance where a judge made a decision. Fortunately we had a humane Minister for Justice in that case, but one does worry about decisions of that kind, especially as they are such complicated decisions, complicated especially by the fact that the child may appear to be well fed and clothed. It can be said of the average child living in an institution that he is well looked after, has a roof over his head, goes to bed regularly, and gets three meals a day. The average person would say that child is well off, better off than a nurse child. Most nurse children are very happy children with good personalities and well integrated, although their environment might appear to be bad. In some cases it is very good, but in many cases it might appear to be bad.
I would be very slow indeed to deprive the natural parents of their rights to their own children at any time in the life of a child up to the age of 21 years. Assuming that the parents are trying to make a home for a child, I do not think their rights should be superseded by any guardian appointed by the courts. It is very difficult for the courts to assess a parent's competency to look after a child. I speak with a certain amount of knowledge. I do not propose to open up old bitternesses but there are cases on record in our society over the past 30 or 40 years in which a decision was taken to deprive a mother of a child, or children, on political or religious grounds. In one case the effect on the parent was disastrous. I do not know what the effect on the child was. The case I have in mind was one of political prestige, which appeared to be interfered with to some extent by the behaviour of the parent, the mother, and because it was felt undesirable that that condition should continue, I shall put it like that, a certain decision was taken which I think probably was unwise.
In the context of this proposal that the welfare of the infant should be the first and paramount consideration, the second consideration is the welfare and happiness of the natural parent from whom the child might be removed on what appeared to be legitimate grounds. There should be something other than materialist grounds, or political or religious grounds. There should be some kind of ideology which would take into account the personality of the child and his subsequent emotional life which might be seriously jeopardised.
The Minister said this provision was in the 1886 Act. I think he is making a mistake. I do not think the first three subsections of section 8 are in the earlier Act. They are not, according to the explanatory memorandum published with the Bill.
It is section 2 of the 1886 Act.
On page 3 of the explanatory memorandum it is stated that these are new provisions.
That might be misleading. They are new in so far as we are now giving the mother the same rights as the father always had. The provisions in the 1886 Act applied only where the deceased parent was the father, and so far as we are now making the father and mother equal, they are new.
I am afraid I cannot argue this matter any more than I have done. I agree with Deputy Dr. Browne and Deputy O'Higgins that, for all sorts of reasons, it is desirable that the surviving parent should be the guardian, but we must also have regard to the fact that there could be a case where it would be desirable for the courts to step in and appoint a guardian, either for limited purposes or to exercise full rights of guardianship, either in conjunction with the surviving parent or alone. Down through the years, the courts have exercised that power with the utmost discretion, and I feel sure we can expect that they will continue to be very slow indeed to exercise the power of appointing a guardian complementary to the surviving parent, or to his or her exclusion.
Once we visualised the type of case I have mentioned arising at all, we must, I think, provide for it, and the only vehicle available to us is the courts. I do not see any dangers arising in leaving this power with the courts. It is a power they have always had and have exercised very sparingly. I cannot really argue beyond that point. I do not know what Deputies would wish me to do. Would they wish me to cut that power out altogether?
What I had in mind was to have this power on the basis of the child being made a ward of court, if necessary. The courts would then have authority over the guardian, as well as the guardian having authority over the child. If a case such as the one the Minister is assuming arises, where the surviving parent is clearly and demonstrably unfit to take care of the children, and possibly money might be involved—
Or an estate.
——what happens now is that someone can bring the matter to the attention of the President of the High Court, who is the appropriate judge now—it used to be the Supreme Court—and machinery can be set in motion whereby the child can be made a ward of court. The court can, if it so wishes, appoint another person as guardian of the child or minor. In any event, it is done under the authority of the court and the court has that jurisdiction over the guardian. Under Section 8, there is power being given to the court to appoint a guardian. The guardian is then free from the power or jurisdiction of the court. A complaint could be made against the guardian and the court could revoke the order and appoint another guardian, but there is not that kind of continuing supervision of the guardian.
Deputy M. J. O'Higgins will realise that when this type of case comes before the High Court, the High Court will still, of its own volition, be empowered to make the child a ward of court. We are not interfering with that inherent jurisdiction of the High Court. A person might apply to be appointed guardian and the High Court could very well say: "We are not accepting your application: we shall make this child a ward of court."
Deputy M. J. O'Higgins is more or less arguing now that in all these cases where the situation I envisaged arises, the right thing to do is to make the child a ward of court. There could be cases where it would be unnecessary to go that far. It is a very expensive business to make a child a ward of court. It involves all sorts of formalities relating to the administration of property, and so forth, as the Deputy knows. There could be cases where the simple appointment of a suitable guardian by the court would be the right answer rather than going the full way and making the child a ward of court.
The Minister is talking about a case where the surviving parent is still there.
The surviving parent is still there. We are confining ourselves to that.
Does the Minister envisage a situation in which one parent dies and that he would allow this kind of thing to happen?
We are talking exclusively about that type of case, where there is a surviving parent and no testamentary guardian has been appointed. The court has the right to appoint a guardian in that case.
It seems daft to me.
Does that mean that where there is a widow and family, somebody can intervene there and say that this widow is not responsible and bring this matter before the court and have a person made testamentary guardian as far as the children are concerned?
A guardian can be appointed.
It is an extraordinary situation. It is a good job the public do not know about that. What seems extraordinary to me is that the State will not pay a decent social welfare allowance to the widow to bring up her children but they will make the necessary provision in law to take away her children, if somebody suggests she is not responsible.
This provision has always been there.
I do not dispute that.
It does not provide for taking away the widow's children. The court is only appointing a guardian to act with her in the interests of the children's welfare.
But if one parent dies and does not appoint a guardian before death, it appears to me that that person, before dying, must satisfy himself that the welfare of the offspring was in safe hands.
I have used that argument. The widow could come into court and say: "The fact that my deceased husband did not think it fit to appoint a testamentary guardian proves that I am a fit person to be a guardian."
This is all new to me. I never realised and I do not think many Deputies here, except men with legal training, realised that on the complaint of a neighbour to the court, it was possible for that court to appoint a guardian over the children, where the breadwinner had died and where the widow was perhaps a person of outstanding ability and doing her best to look after the welfare of the children. It is a sad thing that, in effect, someone can cast a slur on the character of the particular family involved.
I am afraid I must admit that it does, but, on the other hand, I think it is necessary. It is not just a matter of going into the local Garda station and lodging a complaint. This is a matter of formal application to the High Court or Circuit Court and I do not think it is likely that somebody will go to the trouble of doing that frivolously or unnecessarily. There are good grounds for Deputies being worried about this provision but we must have it. There will be cases where it will be desirable for some relative or somebody else to say to the court, seriously and conscientiously and with full knowledge of what is involved: "This person is not fit to be guardian of these children and I am asking you to appoint a suitable person to act with him/her or in place of him/her for limited purposes." As I said, that is substantially the present law. Nobody can say it has been abused through the centuries. It has never given rise to any abuse or cause for complaint but it is a safety valve which we must continue to keep within the law for the odd case that will arise.
Where does the law come in with regard to the prevention of cruelty to children?
In the Children Act, and so on.
Could the Minister cite some particular case which he has in mind in which this can come in. It does seem to me to be an infringement of parental rights.
I can give an instance of the type of case where a widow survives, as guardian of her infant, and the deceased husband did not appoint a testamentary guardian. Some relative of the deceased husband is satisfied in his own conscience that the surviving parent is not competent to look after the property which has been left to the infant. I visualise a situation obtaining where that person goes to the court and says: "I do not want to interfere with this surviving parent's right to control the education, up-bringing and the religion of the child. These are fundamental matters which I want left, and which should be left, to the natural parent, but I do think this parent is incompetent and unfit to look after this infant's property and I want you, the court, to appoint some suitable person to act with her in the management of the estate, or, indeed, to act in the management of the estate to her exclusion."
Is that the only case?
It is a typical case.
In so far as the Minister said he would not interfere in the exception, I agree with him. I can see an occasion in the administration of an estate where this would be desirable. Is there a provision here that where a question of the religious teaching or education of a child is involved, the right should be left to the natural parent?
I did not say that my example covers all cases. Deputy Dr. Browne will surely agree that even in education and upbringing, a case could arise where a surviving parent was totally unfit. Take, for instance, a parent who was an alcoholic, a known, certified alcoholic. Would we not all want some friend of the family or some relative to be in a position to go to the court and say that this widow or widower was not fit to look after a child?
What happens where both parents are alive? What are the means of safeguarding the children in those circumstances?
There are means.
What are they?
You could apply to have a child made a ward of court.
Who has the right to apply?
Anybody having a valid interest.
If that is so where both the parents are alive, why is it necessary to bring it in where there is one surviving parent?
To manage property.
Making the child a ward of court is a very expensive business. The child remains a ward of court and the property can be administered only through the court. It costs money all the time. It may not be the thing to do in some cases: there may be cases where one of the parents has died but where it will not be necessary to do that, where the simple appointment by the court of a guardian will meet the case. Deputies can rest assured that this is a power which we are vesting in an institution, the High Court, which has a traditional responsibility, exercised wisely and well down through the years. Surely that is the right place to leave this discretion and jurisdiction? We are catering only for the odd cases, but we must cater for them.
The Minister has put to us a hypothetical case and may I now put one to him? I put the case of a man who dies leaving considerable property. Some outsider, nearly invariably a relative, just wants to get a hold of the administration of the estate and because the deceased, say, the husband, has not definitely in his will appointed the surviving parent as the guardian, in testamentary control or whatever the legal phrase is, if this relative steps in——
The State does not come into this at all.
The State is legislating to permit this state of affairs to exist. Having heard the discussion between the Minister and Deputies McQuillan and Dr. Browne, I am more convinced than ever that the powers already exist.
This is old legislation being re-enacted.
The Minister has admitted that if both parents are alive, there is legal sanction or legal possibility already for doing what is being enacted here. If one of the parents is an alcoholic, somebody can come in from outside. I may be wrong——
You are wrong.
You are wrong.
We are reenacting provisions for cases where there is one surviving parent and where somebody comes in from outside because he does not think the surviving parent is qualified. Surely the Minister will agree it is an indictment of a woman to say she is not able to look after an estate left by the husband? If a husband has left an estate and is satisfied, because he does not dispose otherwise, that the surviving parent is a fit person to look after the future of the children, surely that ought to be good enough without bringing in this legislation? It seems to me from the Minister's reply to the two Deputies that there is existing legislation to deal with it.
Might I ask one question? It might not meet my objection to the section fully, but it would improve the position if the Minister would put into this section what he himself states is in his mind— that the application of this section be limited in this Act to cases where the surviving parent is unfit, in the opinion of the court, to have sole charge. As the section is, it is wide open. The court need not even take into consideration the question of fitness or the moral character.
Except the general provision that they must always have regard to the welfare of the child.
That is declared in the Bill. If it were limited in the way I suggest we would be going some way to meeting the point of view expressed by the Minister.
The difficulty is to determine what is the paramount welfare of the child. I am completely with the Minister in regard to the cases he visualised, but I am apprehensive about the provision of a safeguard. The difficulty I see in the section is that in circumstances of, say, strong public opinion, the matter of the education of the child might be interpreted as implying, for the good of the child, an objection to a surviving parent deciding to educate that child in a particular philosophy. I am not talking about the outlook or morality. I am referring to a decision to educate the child in a particular philosophy or, say, to send it to another country, and I am asking if that is envisaged.
If it is not, some care should be taken, and to that extent I would agree with some of the sentiments expressed by Deputy Dr. Browne that some safeguards are necessary. If it is the opinion that parents' rights there should be interfered with, that is a separate matter, but supposing we accept the principle the Minister has enunciated that these things are not to be touched, then some further safeguard is needed. These matters go to the High Court. In effect, that is one judge. I think this matter is of such importance that it should not be left for ultimate decision by one person. To my mind, it is one of those things that require the concurrence of more than one suitable person.
I have had some experience of seeing how courts work and here I may say I do not wish to cast any reflection on the standard among judges. However, judges are human and have points of view, and one man's conviction as to what is good for a particular child might not be in accordance with what the rest of us would consider to be the best thing for the child, particularly when it comes to such marginal matters as education and cultural activities.
What about the surviving parent?
That is the point. The surviving parent has rights. I am taking the case where surviving parents, constitutionally and morally, have a particular philosophy or outlook on life which may be a minority or very unpopular philosophy. Are those parents still to have the right to educate their children? I do not think that right should be lightly interfered with, but on the other hand, there are circumstances in which some person deciding the future of the child may, with the utmost objectivity, honesty and sincerity bring about a situation that in the overall view might not be the best. That does not go far enough to justify asking the Minister to nullify the provision completely. What I would ask him is that in referring to the court, there should be at least two or three judicial persons involved. I presume in the ordinary way there would be an appeal to the Supreme Court. The right of appeal in any of these cases usually hinges on law, and if it is a matter of factual judgment or opinion, the High Court very seldom will intervene.
Does the Deputy not appreciate the fact that the parents might know far better what is good for the child?
I am with the Deputy, but I am trying to meet the Minister's point, too.
I shall give this assurance: I shall see whether we can work out something along the lines suggested by Deputy O'Higgins and meet the fears of Deputies Browne and McQuillan. I do not want to be too specific in that undertaking, but I certainly will look into it.
The right given to a testamentary guardian to upset the surviving parent is only in the case of unfitness under section 7.
The Deputy's suggestion is that we should incorporate something of that sort into this. I will look at that sympathetically. But I want to sound this note of warning: I am very reluctant to tie the hands of the court in any way. Subject to that, I shall consider it.
It seems to me that the bringing of an action such as this to the High Court would involve a considerable amount of expense. In the event of somebody bringing a case and the judge, in his wisdom, deciding it is not a reasonable case—in other words, he rejects it and upholds the authority of the parent to carry on and bring up the child—who is going to pay the costs then?
The court will have discretion to award costs.
But who will pay? I fear they would almost certainly take it out of the estate.
There might be no estate.
I completely agree with the Minister where he is concerned for the parent who is an alcoholic or a prostitute living in a brothel. Quite clearly, I suppose one cannot assume they are competent to raise a child. I have in mind a particular mother, who was a wealthy mother and able to give her children a proper way of life. Because, more or less, of the type of case cited by Deputy de Valera, because of the particular attitude at the time to education in a particular way, certain decisions were taken in respect of that family. The right of the parent—right or wrong, it is not for us to judge—was taken away from that mother. I believe that is a right which should not be taken away, should not be interfered with. To whatever extent the Minister can, he should safeguard that right.
Looking back over the past 30 or 40 years, we see how much ideas can change. What was an anathema then is acceptable to-day. Something which was used to break up a family —it certainly ended the happiness of the mother and jeopardised the happiness of the children—was carried out because of a particular approach at a period of time. That danger is there. We are completely fallible where these things are concerned. This is a right which must be preserved to the natural parents. Whether they are going along the lines we agree with or not, they must be permitted to do that in respect of a child. This is an important right which should be jealously guarded, and I hope the Minister will come up with some sort of formula.
Could the Deputy give me details of the case later?
I move amendment No. 1:
In page 5, line 11, to delete "as to custody or maintenance" and substitute "made under subsection (2)."
This is really a drafting amendment. As Deputies will see, the subsection provides for the making of orders concerning the welfare of an infant notwithstanding that the parents are residing together, but, for obvious reasons, an order made under subsection (2) as to the custody of an infant or the making of payments towards his maintenance is not to be enforceable while the parents continue to reside together. "Maintenance" is, however, defined in Section 2 as including "education", with the result that subsection (3) of Section 11 could be interpreted as prohibiting the enforcement of orders as to education while the parents reside together. This is not our intention, as it might happen that a parent would apply for an order as to the education of his or her infant without wanting to break up the family home and that it would be in the infant's interest that the order should be enforceable. The proposed amendment is, therefore, designed to make it clear that it is only orders as to custody or payment of maintenance that will not be enforceable while the parents reside together.
I should like a little clarification on this question of the parents of an infant applying to the court for an order. I have in mind a case where a parent abandons or deserts a child at a particular point for a particular period and then regrets the decision. At any time before the child reaches the age of 21, can the mother or father decide that he or she wishes to make a home for the child and take the child into the separate, additional family they have formed—adopt the child and look after the child—or are they forbidden to do that by the court because at a certain time they could be charged with abandoning or deserting the infant?
I do not think it goes quite as far as that. What we are concerned with here is the enforcement in the High Court of the parent's rights to custody of the infant. The situation envisaged is one where the child no longer resides with the guardian. That person applies to the court for the production of the child and its restoration to his care. What we are doing is empowering the court not to enforce the guardian's right if it is satisfied that the applicant has abandoned or deserted the infant or for some other reason, is unfit to have the custody. I think the answer to Deputy Dr. Browne's question is that it would depend on the circumstances prevailing at the time of the application. If there had been a previous desertion and then a restoration the section would not apply. The section would only apply where the child is no longer residing with the person applying.
But it does not prevent the court making an order to return the child to the mother?
It only empowers the court to refuse if it thinks there should not be an order.
Under section 14, would that apply if the child is under the care of a person or an institution?
I believe that is the type of case envisaged.
I imagine the Minister has a great regard for the courts like everyone else but I do not think there is any worse atmosphere in which you could argue or discuss the welfare of a child than in the cold, analytical atmosphere of a court. I think Sections 14, 15 and 16 could be discussed together because, as far as I am concerned, the same objection —to use that word—applies to the three; it is the same implication that the Minister has in mind in all three Sections.
Some people suggest that the three Sections concerned are there as a form of punishment for an erring parent. Whatever may be the view about punishing the parent there should be no question of taking it out of the child. I do not know who will give evidence or from what reliable source the court will get the information that will enable it to form its decision to make an order saying: "This woman is not entitled to have the child back."
The court may say: "Did not that woman desert the child before?" or: "She was indifferent to the welfare of the child. Under the circumstances, and on the evidence available to us, what has happened before may happen again and we refuse custody of the child to the parent." That can happen although outside the court the parent may have turned over a new leaf and be an excellent parent in future. I do not know what I can say on these three Sections but I think the Minister will agree that they are all on the same lines and aimed at the same objective.
Deputy McQuillan on the other hand cannot ask me to take this discretion away from the court. I agree with the point that there will be cases where the court should not refuse to hand back the child but I do not think that I can take this discretion away from the court altogether.
I should like to see what the evidence is, and I should like to know who the Minister believes will be a responsible source of information available to allow the court to form its decision. The court is a very cold place to deal with an affair of this nature. I have been present in a building where a number of young children have been committed to an institution and I have seen them there at 10 o'clock in the morning. I went away on business and I happened to come back at 12 o'clock and I saw the children asleep on a bench. I inquired what was going on and I was told the children were awaiting committal to an industrial school. They were left there on a bench in the vicinity of the court. I took it upon myself to send in my views to the district justice on this behaviour and I am glad to say there was no further delay. But they had been put down to the bottom of the list.
The Minister has had another experience of what may happen in court, not so long ago, in regard to a mother of 12. I shall not go into that but the danger lies there that a judge or a group of people will take the view than an institution is an excellent place. Perhaps one of these learned men may have seen a number of young boys marching along the road and appearing perfectly happy. In fact, if those children could be placed in suitable homes I have no doubt their personalities would develop far more fully and that they would be far happier in the long run and better citizens of the State. Anything in the legislation that would give preference to the institution or anything of that description over the rights of the parent is to my mind unsatisfactory and unreasonable at present. I ask the Minister to bear in mind that those courts will deal with these cases as a professional matter. They will feel they are there to find out if a person is guilty of misconduct and neglect. They will say: "The evidence is there before me and I have no option but to decide as I do."
The Minister may say there is a safeguard; that they may interpret the Bill so as to have regard to the infant as of first and paramount consideration. You leave it to the discretion of the court as to the best line of action for the welfare of the infant. I should like to know the outlook of the individual judge or member of the bench in this matter. Some may have the idea that an approved school is an excellent training ground, while the evidence is there that the approved schools in general are not as satisfactory as the home.
On that basis, I ask the Minister to reconsider these facts in regard to sections 15 and 16 particularly so that, if possible, some machinery would be set up enabling the position in regard to an individual child to be reviewed regularly so that the parent could go before a reviewing committee and make his case and if the committee conclude the child should go back, it would mean a court order to that effect could be made. I do not know how you would word that but there should be a right of consultation and inspection in regard to the welfare of the child and the situation of a parent at the particular time when the application is made for the return of the child.
Generally, I think the case put up by Deputy McQuillan is very sound and should be very sympathetically considered by the Minister.
I should like to support the point made by Deputy McQuillan. The Minister must tread very carefully in this particular case. All our arguments, as Deputy McQuillan says, come back to the one point, that is, first of all, the welfare of the infant up to the age of 21, which is embodied in the Minister's Bill. Nothing can override that in importance, not even the parent's happiness or any other consideration at all.
One has to accept that a reasonable home, no matter how poor in circumstances, a home where there is a reasonable amount of affection or regard by the parent for the child, is infinitely superior to any institution. That is not an attempt to derogate from the absolutely invaluable and indispensable work which the institution is doing. I do not wish to take away from it at all, but one must remember that the most important consideration here is the parent-child relationship from the point of view of the child, forgetting about the parent for the time being, for the development of that child's personality. That is the most important consideration.
If a mother who did abandon her child through initial fear and social sanctions of one kind or another, which tend to create this atmosphere —it is our fault largely that the mother tends to abandon the child—overcomes that initial failing or weakness and then decides, or the parents decide, that they will try to make a natural home for this child, every help should be given to them to create this type of family even though it cannot be the ideal family. Even though, probably, the initial damage will never be completely undone, to some extent some redress can be made to the child by the parent's decision to try to become a real parent and to try to keep and look after the child during the years in which it is growing up.
I believe that the emphasis of the Bill should be to restore the child to the natural parent. That is why again I agree with Deputy McQuillan that the other sections could really all be discussed together. Anything which militates against this, such as attempting to get the mother to pay back payments, the giving to the court of the easy way out, should be avoided. The average judge is a busy man. Judges are good people. Generally speaking, they operate as fairly as they can but they are all human and then they have the simple superficial view that I have heard from many distinguished persons: "Look how clean, how well-fed, how well-behaved the children in an institution are," and nobody bothering about what happens to the child's mind or the emotional life of the child or the child's personality, which we all know begins and ends in its natural and normal development with the family. These other children living in institutions are superficially perfectly well integrated, healthy and happy in every way but, in fact, are in some way or another emotional cripples or personality cripples of one kind or another.
I have emphasised that point on a number of occasions but it is terribly important. It is a matter which the Minister has provided for in one of his first sections. I know he is conscious of that himself because he says that that is to dominate his Bill. But, in each of the sections as he legislates, he should legislate in favour all the time of the return of the parent at any time up to the 21st year, if you accept that year as the year of maturity. At any time, if a parent is going to assume his natural responsibilities, we should be delighted and facilitate him in every possible way in the interests of the child.
When it comes to a decision between a lady who is an unmarried mother who comes into court and wants the child and, on the other hand, a distinguished responsible organisation or institution, the easier decision, the natural decision probably for most of us, would be to say: "I cannot take a chance with this. God only knows what will happen with this mother. She has already made a mistake," and all that. So that the weight is against the child going back to the mother. The weight is in favour of the child going back to the institution. We should be very careful in this legislation to put the onus on the judge to think very deeply about it and, if he is going to send the child to the institution, he will do it against the pressure of legislation from this House.
I agree with Deputies who have said that the best place for a child is at home, that it is only as a last resort that we should contemplate the idea of a child being sent to or remaining in an institution. As Deputies will recall, we adverted to this in our discussions recently on the Adoption Bill and all of us who were concerned in that discussion were agreed that the most desirable thing in all circumstances was to have a child, preferably in its own home with the natural parents or, if that was not possible, with adoptive parents.
I should like to avail of this opportunity, now that we are talking about this subject, to re-emphasise how important and desirable it is that we should have the maximum possible number of adoptions, that we could look forward to the day when our institutions would become places where children remained only for a short period of time while waiting to be adopted, that is, of course, children who are capable of being adopted.
I want to re-direct the attention of Deputies to the fundamental guiding principle in this Bill which is enshrined in section 3, which is not limited in any way. Section 3 stipulates:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
There is no hedging there. Those are clearcut precise words and they state the principle as strongly as it can possibly be stated. When Deputies are worrying about sections 14, 15 and 16, the first thing I should do is to point to section 3 in this regard and then remind them that the court, when it comes to deal with cases under the later sections, would have to have full and immediate regard to this directive, this guiding principle as laid down in section 3.
Section 14 is merely permissive. It only authorises the court not to accede to one of these applications in particular circumstances. Do not forget that before section 14 can even begin to apply, the parent must have abandoned or deserted the infant "or has otherwise so conducted himself that the court should refuse to enforce his right"—again very strong words. We are dealing with a bad type of case here, a person who has either abandoned or deserted the child or who has otherwise so conducted himself that the court should refuse to enforce his right to custody.
Temporarily abandoned. If temporarily, could they not do penance?
Agreed. The section is there to deal with the case. The whole idea of having these sections here is to cater for the case where a person, as Deputy Dr. Browne puts it, wishes to do penance, realises the tragic mistake he has made, wants to make amends to the child and applies to the court to be given back custody of the child. All we are providing here is that the court need not necessarily agree to this application and shall have the right, having regard to the paramount consideration, the welfare of the child, not to grant the application.
Do the Deputies see the way they are tending? Are the Deputies asking me not to leave this permissive power with the court? Are they asking me to say that the court in all instances shall have to accede to these applications, no matter how unsuitable they may be?
We are very reasonable.
I am asking the House to trust the courts in this matter and to leave them with this permissive power of refusing to accede to these applications where they think they should not be acceded to. I realise it is important, vital and fundamental. I realise it is desirable that the child should be with its natural parents, if at all possible. If we can strengthen section 14 in any way, I am prepared to do that. If, between now and Report Stage, Deputies want to make any suggestion about controlling the court or inserting some additional directive principles in this section, I shall consider them and be delighted to do so because I realise it is of the greatest possible importance.
I should be very arrogant indeed, intellectually, if I were to suggest that my solution is better than that of anybody else. He would be a very brave man who would attempt to set himself up as the final arbiter and judge in these matters. I think the High Court is the ideal instrument for us to choose in this regard but I would not hesitate to establish some special type of court if that were constitutionally possible and found necessary or desirable. I say this to indicate my agreement that this is vital, important and fundamental. I would go very far indeed to ensure that all Deputies who are interested in the matter will be satisfied that we are doing the right thing.
What happens in the case of a parent with, say, very limited income who wants to go through this formality? Is the court procedure likely to prove very expensive? The Minister talks about the High Court. Is there a question in that of the cost being paid by the State in the event of the parent winning the award?
These are habeas corpus proceedings. Subject to correction, I think a person can walk into court and apply.
That applies to virtually everything. The applicant is not obliged to retain solicitor or counsel, if he wants to appear in person. I think the answer to Deputy McQuillan is that they could be expensive.
Could the Minister not consider nominating a special sum? I am not a lawyer: I should not talk about these things. The Land Commission, in certain cases, allow a specific sum in costs when applications are made.
No. I cannot envisage an ordinary moderately educated person, as the majority of people will be in this instance, going to the High Court without a solicitor or barrister and, if he does, he will not have any change out of £20 or £30. Would the Minister not consider allocating a specific sum to be allowed for an appeal in cases like this?
The costs and such matters would be regulated by Rules of Court.
Is it not patently obvious that if anybody goes to the High Court, he will not have any change out of £20 of £30?
We might persuade the Minister for Finance at some time to have free legal aid in such cases.
That would be helpful in a number of cases which might come under this.
There is reference in the section that the court may, in its discretion, in the event of application by a mother for a child from an institution, order that the costs shall be paid, and, on top of that, the entire cost of the maintenance of the child. Take a woman possibly in domestic service or working in some way who has an illegitimate child and cannot look after it and puts it into an institution. It may so happen that, later on, she may marry and settle down or be in a position to take the child and wish to take the child. A period of four or five years may be involved and this provision may be a deterrent if she has to go back and pay the costs.
It is desirable that, where possible, a child should be returned to its natural mother who is really the only person interested in it and who will make it her particular interest, provided she is fit and worthy to do that. The wording of this section rather militates against that. I am not very clear in my mind what I want the Minister to do.
The section is very wide.
It seems to make it possible for the court to make a mother pay all the back money.
"or such portion thereof as the court considers reasonable".
It is rather an unreasonable thing to do. It is very unlikely that the majority of people concerned in this section will have any money at their disposal. It will probably be a question of putting down anything from £10 to £200 or £300. The child would stay in the institution—which is bad not only for the parent but in the final analysis, for the child. I have yet to be convinced that anybody can bring up a child better than it is brought up in its own natural home.
The Minister could meet Deputy Esmonde by putting in a qualification that the court may, if satisfied that the applicant is in a position to do so, order that the person shall pay so much or such portion as the court considers reasonable.
That is there already —"having regard to all the circumstances of the case".
That could be interpreted by the court, as I see it, as a penal provision, as in the nature of a fine—that the court has authority to order payment of expenses either in whole or in part.
I would see a danger in Deputy O'Higgins's solution. If you just say, "Provided the applicant is in a position to do so"——
No, provided the court is satisfied.
If you just say "Provided the applicant is in a position to do so", that is very limited. It might mean actually having the money in his possession. We say "having regard to all the circumstances of the case."
If you put "in all circumstances, including the ability of the applicant to pay"?
Yes, I would not mind that. I do not mind putting in something like that but I think that the wording, as it is, is as wide as it can possibly be.
It probably is. It is just a question of what view might be taken on it later.
It seems to me that section 3 is first-class: its provisions are absolutely unexceptionable and there is no question of clarifying them. The Minister is quite right to point to them. I believe they are counterbalanced by sections 14, 15 and 16. They are really evenly counterbalanced by these sections. The point has been made, and it is a good one, in regard to a mother who has deserted her child. We must bear in mind that she has done this to a considerable extent because of the stigma and because public opinion holds it is a dreadful thing—in spite of Mary Magdalen and of all the advice we are given in the Gospels—to be an unmarried mother. This lady then decides, in spite of the weight of society and in spite of the odium attached to rearing a child as an unmarried mother, that she will work hard to try to raise the money to provide an independent home for the child. That is a very fine thing for a mother to do in the circumstances. The early neglect, the early abandonment, is completely understandable in the terms of the type of society in which the incident occurs, but it is a very fine thing that the lady at a certain time says: "I do not care, I will have my child back." She then decides to go into court, presumably a public court, and make the application, with newspaper representatives present and so on—obviously they need not comment but they can—and she has all this worry——
If I may interrupt the Deputy, this is only the exceptional case. Again, there is no reason why the parent should not apply to the health authority and get the child back. This is only where there is a dispute, where there is a refusal to give the child back and the parent goes to court on a habeas corpus application.
I am glad to have that enlightment but the general pressure on the mother is to leave the child in the institution. She has got rid of it; it is being well cared for and she can salve her conscience that it will be brought up by a religious order and will benefit every way and be taught a trade. All the pressure is against doing this act which I believe, and I think the Minister believes, is likely to be the first and paramount consideration as regards the welfare of the infant, as mentioned in Section 3.
If she decides before the child is 21 —and the earlier the better—to look for the child and try to form a family and give the child the love and affection of the family and the attention which a child must get from a mother, then we should welcome the mother and give her every possible assistance in trying to do this very desirable thing rather than put any impediment in her way. She has public opinion to contend with; she has to go into court, which is a frightening thing for anybody, particularly for a woman, and then she has the feeling in relation to the other section, that they might not award her the child, and then in this section she also has the feeling "they will contest it and try to take money from me and make it impossible for me to make a home and create a family for this child".
This section and the previous section militate against the mother rather than help her. The mother should be given every encouragement to shoulder the responsibility—I have listened to this so often—of the family to the child. I agree with that but here is a mother who is trying to take on her legitimate and natural responsibility to the child and believes we are putting impediments in her way by these provisions. Far from doing that we should encourage her in every possible way by adopting the suggestion of Deputy Sir Anthony Esmonde that the money costs should be limited to the very minimum, or Deputy McQuillan's suggestion that this should not be done in court but in chambers so that there will be the least possible trauma to the child and mother. The mother at all times should be made aware that the attitude is "if you want the child back we will gladly let you have it and we will facilitate you in every way in trying to make this child happy and in trying to make a home for yourself and the child."
These are mean sections. Section 15 is a mean section. It appears to want to barter the child's happiness for a few pounds which the public has to pay in taxation or rates. I cannot hear any decent human being saying: "I resent having had to look after that child during the time it was abandoned. I want my money back from the mother". That, in effect, is what the Minister is saying. I do not think anybody wants the money back. Most of us would wish her "good luck" and express the hope that she and her child would be happy and that we were glad to look after the child, as part of our responsibility as a community, during its period of isolation. Anything that gets in the way of the reunion of the child with the parents, mother or father, should be excluded from the Bill and the Minister should stand fast on his excellent section 3.
The Minister must agree that sections 14, 15 and 16 are very closely associated. In relation to this section, we should remember that the Minister has already pointed out in section 14 that in regard to the production of the infant, where the parent applies for its custody, it is only on the grounds that the court believes the parent has abandoned or deserted the infant, or has otherwise so conducted himself, that the court can refuse the right of custody. Then we come to section 16 and we find a provision in regard to where the parent has abandoned or deserted the infant or was unmindful of his parental duties. If you make a comparison between the two sections you have, if you like, the powers of the court considerably extended in each particular section——
No, not in section 16 really.
Would the Minister not think so?
Section 16 merely says that it shall not make an order unless it is satisfied that the parent is a fit person to have the custody of the infant. The rest is, if you like, only background and gets down to that simple statement.
Yes. A different language is used.
Section 16 is, I think, the least objectionable.
If the Minister takes the view that section 16 is the least objectionable——
From the Deputy's point of view.
——from my point of view, would he consider then that type of approach to the other two sections instead of what is in them? That is the point I am making. I do not say the Minister is personally involved, but there is a feeling that people who fall by the wayside in this respect should be punished, and that feeling has been in the country for years.
May I say that the Deputy has the wrong end of the stick to some extent? In practice, section 15 will not apply at all to the case of the unmarried mother seeking to get back her child. It will come into operation only in the case of wealthy persons who, for some selfish reason of their own, abandon a child or leave it in an institution. If an unmarried mother, after a period of emotional upset, eventually decides what is the right thing to do, and seeks the custody of her child, the court would be very reluctant and very slow to make an award of money to the Health Authority in such a case. The provision is intended to apply only where it would be unreasonable not to ask parents to make some contribution to the cost the ratepayers have had to carry or to the expenses which a private person may have had to meet in maintaining the infant.
The Minister has stated that other children are affected besides those abandoned by unmarried mothers. That does not mean that these children are the children of wealthy parents. Children are committed to institutions for various reasons. Four or five children might be committed because one of the parents has deserted. A mother might find it impossible to carry on at home. The children might be running wild. An officer of the Society for the Prevention of Cruelty to Children might make investigations. The Minister will correct me if I am wrong as to whether or not this case comes under section 7, but where such an investigation is made, the children are often committed to an institution. If that mother subsequently wishes to get the children back, from my own personal experience, I know very big difficulties are put in her way because of the type of procedure she must adopt. We know the difficulties that are put in the way when the local authority is concerned; officialdom very often looks for its pound of flesh. I do not say the court will not take the view the Minister takes that all these objections should be thrown out and the children restored. My argument is that the almost insurmountable obstacles— that is what they appear to be to what I describe as an ignorant person— daunt the prospective applicant at the very outset. Anything the Minister can do to weight these sections in favour of the parents will be worth doing.
The remarks made by Deputy de Valera could have been made more appropriately on this section, in my view. The word "religion" is used here but Deputy de Valera used the word "philosophy", and I shall settle for that. Subsection (2) provides that the court can consult the wishes of the infant.
Deputy McQuillan was not in the House when I dealt with the definition of "infant". The court decided that it would consult a child of 14 years. That is a precedent.
I take it then the court will consult with an infant over 14 and under 21?
Yes. The case I am referring to dealt with custody. The court decided it should consult the child as to whether it wished to remain where it was.
The court often consults a child, particularly in a custody case, if the child is old enough to have an opinion.
In the Frost case, it was decided that the court is entitled, in an application relating to custody, to interview the infants—presumably at any age—and, in the case of a boy over 14 years of age, to ask him whether he consents to remain where he is. I think the Deputy can take it that that principle would be of fairly general application.
What exactly is the meaning of subsection (2)? Does the subsection alter the present law? If not, what is the point?
It is a re-enactment of existing law. Up to 1873, such agreements were void as being contrary to public policy. In the Act of 1873, it was provided that they should not be invalid by reason only of their providing "that one of them shall give up custody or control of the infant to the other". Such agreements were void under the common law up to then and the 1873 Act abolished the doctrine, if you like. We are just continuing that abolition here.
This day week.
It is immaterial, but I have been asked to ask for this day fortnight.
I expect to be sitting here legislating solidly for the next three years.
Hope springs eternal in the human breast.
This day week. If Deputies are not ready, we can put it back.