Dáil Éireann debate -
Tuesday, 25 Jun 1974

Vol. 273 No. 11

Maintenance Orders Bill, 1974: Report and Final Stages.

Mr. O'Malley

I move amendment No. 1.

In page 4, lines 54 to 56, to delete all words after "commencement of this Act".

The purpose of deleting the words here is to allow, where it is feasible to do so, arrears that were due to deserted wives and unmarried mothers in this country to be paid to them. We are aware that many of these orders are in existence but in the bulk of cases the orders do not exceed £4 a week because it was only towards the end of 1971 that the limit of £4 a week was removed from maintenance orders and the limit of £1 a week was removed from affiliation orders.

I think it is clear from the Committee Stage discussion and indeed the Second Stage discussion that although this Bill will in theory enable defaulting husbands and putative fathers to be caught up with, nevertheless the truth of the matter, which I think is recognised by all sides, including the Minister, is that in a very great number of cases, notwithstanding the possibility of enforcing the orders, it will not in practice be possible to do it because most of the wives will not be able to trace their husbands. Therefore the fact that this machinery will be available to them will not effect any great benefit to a great many of them. However quite a number of wives and unmarried mothers will be able to trace the absconding husbands or putative fathers. Because some of these desertions took place years ago, and because the orders which were made were just laughed at by the husbands, there are substantial sums which are due both morally and legally to these women. I think it is quite wrong, if this stage is supposed to set out to solve a social problem which arises through inadequate legal machinery, that the inadequate legal machinery should be allowed to continue in respect of the enforcement orders which were made before it came into effect. I know that it will enforce orders made before it came into effect in so far as the amounts due on them accrue after it comes into operation. However it is very unfair that amounts which have accrued over the last few years should be uncollectable even though the means is now there to collect them, which it was not before.

The Minister made the point the last day that there was consultation with British officials who were concerned with this and that they wanted the question of arrears left out. I suggested to the Minister — I think last Thursday when we discussed this last — that the British should be approached again and it should be pointed out to them that the great majority of wives would not be able to collect anyway and the problem that would arise in regard to arrears could not be that great, because if a wife is trying to collect arrears she must also of necessity be trying to collect what is currently accruing to her. Therefore from the administrative point of view the collection of arrears would not significantly increase the amount of work involved.

The Minister, the last day when he was replying to me on this point, said that to allow arrears to be collected would be in some sense retrospective legislation, that the husband would be, as it were, held liable for something for which he was not heretofore liable. That of course is not a correct statement of the position at all. He was always liable, both legally and morally, for payments for the support of his wife. The problem was not that he was not liable or not that he was not found liable by the court but that, having been found liable and an order having been made against him, it proved impossible in practice to collect the money or to enforce the order of the court.

This amendment would enable at least some proportion, even though it might be only a small proportion, of all these vast sums that are due to deserted wives in this country by their husbands to be collected, and it would be very unfair not to allow it to be collected. I cannot see any reason, even administrative, why that should not be so, because, as I stated, there would be no additional work burden from the administrative point of view. There would be no additional cases created that the administrative machinery in Britain would have to cope with. They would be the same cases; it just means that in certain of them there would be an effort to collect more from the absconding or defaulting husband than if it was sought to collect current amounts.

I would urge this amendment very strongly on the Minister. It is only reasonable in all equity and in all justice that these women who were deprived for so long should now have the opportunity of collecting what unquestionably is both legally and morally due to them.

Minister for Justice (Mr. Cooney)

We all must sympathise with Deputy O'Malley's motives in moving this amendment. Indeed, I expressed my sympathy with those motives the last day. However, we cannot allow that aspect of it to blind ourselves to the practical difficulties which would result if the right to recover arrears were to be provided for in this Bill.

There are a number of reasons why this section should remain as it is. I cannot recall having said the last day that these husbands were not liable— I have not the record here—but I doubt if I said that, because clearly they are liable and always were liable. The point is that they have escaped their liability and in that sense have avoided liability. Of course the liability has been fixed once the court order has been made; nevertheless, the guilty party, the absconding husband, has escaped his liability by departing to another jurisdiction.

What Deputy O'Malley now suggests is that people in that category should be liable to be pursued for all the arrears from the time of the original order because presumably, if there was a moral or a legal liability there, it should extend the whole way back, as that would be consistent with the nature of the liability. There would then be no question of compromising on it; if it were to be enforced it would have to be enforced the whole way.

What we propose in the Bill is that there should be no right at all given to claim arrears, for the reason that if such a right were to be given it would produce practical and administrative difficulties which might well undo any good that might come from it. The Deputy mentioned that a lot of these cases would involve orders made before the weekly maximum was raised from £4. That was prior to 1972. The weekly maximum then was £4 a week, which would be £208 a year. Four or five years at that rate would bring up the arrears to around £1,000. If the Deputy's amendment were to be accepted, we would then have the situation that the absconding husband would be pursued by the courts in England or Ireland, depending upon which jurisdiction he was in. The courts would have to enforce against him arrears which could easily amount to several thousand pounds and would frequently be of the order of several hundred pounds.

We must look at the realities of the situation. What are the chances of getting that sort of money from that sort of person? The Deputy will know from practical experience in the District Court that, even in undefended debt collection cases where the proceedings come to the stage of seeking an instalment order, the solicitor moving the order can ask for any size of weekly sum that he wants. The reality is that he only asks for an amount that he knows the debtor can afford. That is usually for below what should be the proper amount having regard to the circumstances of the case in question. Therefore the debtor's actual situation is invariably a constraining factor, and we have to recognise that hard fact in deciding whether or not to take power to allow the courts to enforce arrears. In the great majority of these cases the financial circumstances of absconding husbands will not permit the enforcement of any substantial amount of arrears. If orders for arrears are made, there is the distinct possibility that the final sanction of imprisonment will be applied. In that event, the last position of the maintenance creditor, the deserted wife, would be worse than her first.

I think the experience of enforcing weekly payments of this nature has shown it is more prudent to fix a weekly sum that is reasonable, having regard to the income of the debtor and his liabilities, in the knowledge that a reasonable sum will be paid week in and week out, thereby improving the position of the deserted wife, rather than to fix a sum which the circumstances would justify but which the debtor would be unable to pay regularly over a long period.

For these reasons it would be impractical to enforce the payment of arrears accrued prior to the introduction of this legislation. In fact, it could be counter-productive. It would be quite likely to drive absconding husbands underground in the other jurisdiction. The success or failure of this Bill will depend on how successful wives will be in tracing their husbands. A husband might be prepared, if his financial position in England has improved or some qualm of conscience strikes him, to accept an Irish order being enforced against him in England, if it is for a reasonable weekly sum. However, where the order sought to be enforced is for many hundreds or even a couple of thousand pounds of arrears, I could see him disappearing from his job, moving to another part of England with, probably, an assumed identify.

The deserted wife would then be much worse off. We should recognise the constraints and not try to impose an impossible load on the debtor, even though it might be morally justifiable. If the amount sought is reasonable having regard to his circumstances, it is more than likely that it will be paid willingly and no attempt made to evade it.

I think this is a compelling argument, in itself, for not accepting the Deputy's amendment and for having the section, as at present drafted, stand; that is, that accured arrears be excluded. There is the fact also that the relevant Hague Convention on the enforcement of maintenance obligations provides, in matters of this nature, that the commencement date of the Convention would be the date on which to draw the line as regards arrears. Such Conventions establish standards of international obligations and I think our domestic legislation should take note of them.

Again, there is a precedent in our domestic legislation for the stand we are taking here. It is not an exact precedent because it does permit arrears but only within a limit of six months. Under section 8 of the Enforcement of Court Orders Act, 1940, which relates to the enforcement of maintenance orders, arrears cannot be recovered for more than six months prior to the application for enforcement. This is a previous recognition by the Oireachtas that it would be impractical, or unrealistic, to attempt to enforce large sums of arrears. I think the realistic thing to do is to seek to enforce a current order at a reasonable level.

Having regard to the international precedent I have just quoted and the fact that there is recognition of the situation already in our domestic law, I feel this is the most prudent course to take. There is one further reason and it is this: henceforward there will be, if you like, two classes of deserted wives; there will be those who had obtained orders before their husbands absconded and those who can only move now to obtain orders on foot of the powers contained in this Bill where the husband is outside the jurisdiction. In the first case, there would be the question of arrears could not arise as it is not the practice to make maintenance orders retrospective. I think it better that this very novel legislation in our country, relating to the enforcement of our orders in another jurisdiction, should become effective from a current date and should not seek to introduce any element of retrospection. Undoubtedly there would be such an element in it if it were sought to include in the enforcement procedure arrears which had accrued from the date on which the original order was made.

While I sympathise with the Deputy's motives in moving the amendment and appreciate the humanity which motivates it, I feel for the reasons I have given, that, on balance, we would be doing a disservice to deserted wives were we to accept the amendment.

Mr. O'Malley

I was disappointed to hear what the Minister had to say. So far as what was said the last day with regard to liability or otherwise, I think the best thing I can do, with your permission, is to quote from Volume 273, No. 9 of Thursday, 20th June, 1974, of the Official Report, at columns 1288 and 1289, where the Minister said:

A person, even an absconding husband, is entitled to know what the law is at any particular time and to know that with certainty. If enforcement of arrears were to be allowed it might be possible that a person would be unable to pay them and could find himself imprisoned having assumed that there was no liability on him to pay the arrears. He might suddenly find himself years afterwards with such a liability. That would be unjust and possibly in breach of the Constitution.

I think the best reply I can make to that now is quote what I said myself on that occasion, at columns 1289 and 1290 which was:

The Minister, if I paraphrase correctly what he has said, feels that it would be unfair, even to as unworthy a person as an absconding husband, to make him liable for arrears that would impose on him a liability for something which he did not previously have. I suggest that that is not correct. He was always liable to support his wife. He was morally liable and he was legally liable for as long as a maintenance order was in existence against him. The problem that arose was that the wife could not enforce the order because the husband had absconded out of the jurisdiction. That did not remove his moral or legal liability. He cannot therefore complain if this section were changed to enable his wife to recover what is both morally and legally due.

Mr. Cooney

So long as he was within this jurisdiction. Once he was in another jurisdiction, he had no liability to pay what was adjudged against him here, because it could not be enforced.

Mr. O'Malley

It may have been non-enforceable but nonetheless he was liable for it. In the same way, if I get an ordinary civil judgment for a debt or for damages against an individual who before he satisfies it goes to another jurisdiction and I find it very difficult to enforce my judgment against him there, nonetheless he continues liable to me. If he has any property here I would seek then to get a judgment mortgage against that property or, if possible, try to re-seal the judgment of the other jurisdiction against him and let the proper authorities there collect the judgment. There is no question that simply by going out of the jurisdiction one evades or avoids liability; one retains one's liability. It is a question of the plaintiff's—the wife in this case— inability to enforce the judgment in respect of which the husband has liability.

The Minister may have implied that by seeking this amendment I would leave it wide open, as it were, for people to go back umpteen years. But I should imagine there could be no question of that, that the statute of limitations would apply in any event and at the very most the arrears that would be recoverable would be six years arrears which, assuming a maximum payment of £208 per annum, would amount to something in the region of £1,200 altogether. However I am not even arguing that the period need necessarily be as long as the statute of limitations would allow.

I would be perfectly happy were the Minister to agree to this amendment, to add some words that would confine the ability, or the right, to recover arrears to, say, three years, which to me would seem perfectly reasonable and fair. I am convinced it is quite futile to produce and pass legislation of this kind if we are going to condemn, as it were, all the orders which the courts here have made heretofore against people who have absconded. If this is allowed to go through as proposed you will have the ludicrous situation that, provided an absconding husband or putative father remains in England or outside the jurisdiction nothing can be done about the arrears due by him but if he comes home he immediately becomes liable for them. This is where I think the Minister's argument has fallen down because on the previous occasion he frequently used the word "liability". I am sure he agrees it is not the best word to use and that a better way of expressing it might be "liability to enforceability".

If the section is allowed to stand unamended nothing can be done about him provided he stays out of the jurisdiction but if he comes home to Ireland—which is surely what we should encourage people in even this sort of situation to do—and faces up to his responsibility he immediately becomes liable to six years' arrears. By refusing the amendment the Minister is doing the very thing that he said my amendment would cause to happen. He is, as it were, forcing the husbands to go underground, to stay abroad, out of circulation by virtue of giving them immunity against what they owe provided they stay abroad, but leaving them open to the collection of arrears for presumably six years if they come home.

Neither the Minister nor anybody can argue that if they come home and become amenable to the collection processes of the courts here, they are liable for all the arrears due by them, with, perhaps, the limit of six years in certain instances, and, if possible these arrears would be collected from them. The Minister's argument that this amendment would drive them underground can be used with much greater force against his own position because while he may not be driving them underground in the sense that I think he meant when he said that, he is doing something else which is precisely the same; he is keeping them abroad by relieving them of liability for collection or payment while they remain abroad but making it clear to them that if they come home they immediately become liable for all such arrears as can be collected from them.

This amendment has justice in it and the Minister should recognise that. He is not doing justice to wives who have got orders and are due money if he prevents them collecting what is due to them. In particular, he is not doing justice to wives and families of men who have gone abroad but who might come back if they did not find themselves in the position that while they remain in England they owe nothing but become responsible for all arrears when they come home. There are a great many cases where husbands never come back; they are probably never heard of again. It is believed that a number of them marry again in England, legally or otherwise, but there are cases—and we all know of such cases—where, happily, after one or two years or sometimes as much as five or eight years husbands do come back and are reconciled with wives and families and things go well for all concerned afterwards. Putting them in the position that by coming home they are liable for six years arrears but if they stay away they are not liable for anything will not help towards reconciliation. It will not help to get husbands to face up to their responsibilities and come home to resume living with and supporting their wives and families. For that reason I urge this amendment on the House and particularly on the Minister. I think it is reasonable and should be accepted by the House.

An Ceann Comhairle

Is the amendment withdrawn?

Mr. O'Malley

No.

An Ceann Comhairle

I shall put the question.

Question—"That the words proposed to be deleted stand part of the Bill"—put.

The Dáil divided : Tá, 52; Níl, 36.

Tá

• Barry, Peter.
• Barry, Richard.
• Begley, Michael.
• Belton, Luke.
• Belton, Paddy.
• Burke, Dick.
• Burke, Joan T.
• Burke, Liam.
• Clinton, Mark A.
• Cluskey, Frank.
• Collins, Edward.
• Conlan, John F.
• Coogan, Fintan.
• Cooney, Patrick M.
• Corish, Brendan.
• Cosgrave, Liam.
• Costello, Declan.
• Crotty, Kieran.
• Cruise-O'Brien, Conor.
• Dockrell, Henry P.
• Donegan, Patrick S.
• Donnellan, John.
• Dunne, Thomas.
• Finn, Martin.
• Fitzpatrick, Tom (Cavan).
• Gilhaawley, Eugene.
• Governey, Desmond.
• Griffin, Brendan.
• Harte, Patrick D.
• Hogan O'Higgins, Brigid.
• Jones, Denis F.
• Kavanagh, Liam.
• Keating, Justin.
• Kelly, John.
• Kyne, Thomas A.
• L'Estrange, Gerald.
• Lynch, Gerard.
• McLaughlin, Joseph.
• McMahon, Larry.
• Murphy, Michael P.
• O'Brien, Fergus.
• O'Donnell, Tom.
• O'Leary, Michael.
• O'Sullivan, John L.
• Pattison, Séamus.
• Ryan, John J.
• Ryan, Richie.
• Taylor, Frank.
• Thornley, David.
• Timmins. Godfrey.
• Toal, Brendan.
• White, James.

Níl

• Barrett, Sylvester.
• Brennan, Joseph.
• Breslin, Cormac.
• Briscoe, Ben.
• Browne, Seán.
• Burke, Raphael P.
• Callanan, John.
• Connolly, Gerard.
• Crowley, Flor.
• Daly, Brendan.
• Davern, Noel.
• Dowling, Joe.
• Farrell, Joseph.
• Faulkner, Pádraig.
• Gallagher, Denis.
• Geoghegan, John.
• Gogan, Richard P.
• Healy, Augustine A.
• Kenneally, William.
• Lalor, Patrick J.
• Lemass, Noel T.
• Leonard, James.
• Lynch, Jack.
• MacSharry, Ray.
• Meaney, Tom.
• Molloy, Robert.
• Moore, Seán.
• Murphy, Ciarán.
• Noonan, Michael.
• O'Malley, Desmond.
• Smith, Patrick.
• Timmons, Eugene.
• Tunney, Jim.
• Walsh, Seán.
• Wilson, John P.
• Wyse, Pearse.

Tellers: Tá, Deputies Kelly and Cluskey; Níl, Deputies Lalor and Browne.

Question declared carried.

Amendment declared lost.

An Ceann Comhairle

Recommital is necessary in respect of amendment Nos. 2 and 3 since they involve proposals of substance which do not effectively arise from Committee proceedings. I would like agreement, therefore, for the re-committal of amendments Nos. 2 and 3.

Mr. O'Malley

Does that mean that the whole section has to be recommitted?

An Ceann Comhairle

No, the amendments only. Would the Minister please move accordingly that amendments Nos. 2 and 3 be recommitted?

Mr. Cooney

I move: "That the Bill be recommitted in respect of amendments Nos. 2 and 3".

An Ceann Comhairle

They will be debated together but voted upon separately if necessary.

Mr. Cooney

I move amendment No. 2:

In page 7, line 52, to delete "by or on behalf of the court".

Amendment No. 3 can be taken with this amendment as it is an identical amendment. These amendments are being recommitted because they were not adverted to on Committee Stage. They are essentially drafting amendments. They are necessary to deal with the situation which will arise in the case of orders coming from Scotland where they have procedures different from the rest of us. In Scotland these two orders, the variation order, and the revocation order, would be sent under their procedure, not by or on behalf of the court, but by a solicitor who would be acting for the maintenance creditor in the proceedings. They will be sent by this particular person, but not strictly speaking by or on behalf of the court. It is to clear up any doubt in regard to the Scottish position.

Mr. O'Malley

Agreed.

Amendment agreed to.

Mr. Cooney

I move amendment No. 3:

In page 7, line 57, to delete "by or on behalf of such court".

Amendment agreed to.

Amendments Nos. 2 and 3 reported and agreed to.

Mr. O'Malley

I move amendment No. 4:

In page 11, line 5, to delete "unless" and to substitute "if"; and in lines 5 and 6 to delete "to the contrary".

This relates to section 22, which proposes to allow in evidence a long list of documents and other matters which would not normally be admissible in evidence. The list is very lengthy. It is one and a half pages of various situations, documents and so on that might be admitted. The entire list is prefaced by the phrase in subsection (1):

In any proceedings under this Act or proceedings to which section 17 (1) relates, unless the court sees good reason to the contrary

then it goes on to list in (a), (b), (c) and (d)—all the various things that can be done. The purpose of my amendment is to change the emphasis there, that these sort of things should not be allowed unless the court sees good reason to the contrary. In other words, unless the court rules them out, they will be admissible. The emphasis should be the other way round, that if the court sees good reason for letting them in, then let them in. The effect of the amendment is to delete the word "unless" and to substitute "if" and to delete the words "to the contrary". The beginning then of subsection (1) would read: "In any proceedings under this Act or proceedings to which section 17 (1) relates, if the court sees good reason (a), (b), (c) and (d) can happen." I do not think we should allow these things in default of the court stopping them. The court should be given the cretion in the particular circumstances of the enforcement of reciprocal orders. The court should be given the option of allowing this to be done, but the position should not be that it will happen anyway unless the court stops it. It will not have any great material effect but it will at least put the emphasis, I suggest, the right way around rather than as it is at the moment. It is wrong that some of these things should be admitted in evidence automatically unless the court stops them. The court should be given the power to admit them if it sees fit. That would be the effect of my amendment which I ask the Minister to accept.

Mr. Cooney

As the Deputy said, his amendment is merely a change of emphasis. The principle of the admissibility of these documents is retained in this section in ease of the parties in these reciprocal maintenance proceedings. I do not think a change of emphasis is desirable in the context of this section. I sympathise with the Deputy's desire to try to tighten up the section by changing the emphasis but I submit to him that the position is already sufficiently tight by reason of the other safeguards in the section.

The other safeguards are that a statement in a document can only be admitted as evidence to the same extent as oral evidence of the fact in question by the maker of the statement would be admissible in those proceedings. That is actually written into the section. In paragraph (c) of subsection (1), for example, it provides that statements may be admitted as evidence to the same extent as oral evidence of that fact by the maker of the statement.

Again, most of the documents it is proposed to admit are documents coming from courts of reciprocating jurisdictions and the change of emphasis would have the effect of rendering these documents suspect, so to speak, ab initio rather than the other way round, namely, that the documents are valid and good on their face coming from these jurisdictions and should be automatically admitted unless the court sees good reason to the contrary.

The emphasis in the Deputy's amendment is that the court should have to see good reason in every case before admitting documents coming from courts of reciprocating jurisdictions. I believe that would be a wrong emphasis having regard to what is intended by the section. There is adequate protection given by the proviso contained at the end of these various categories of documents and for these reasons it would, I think, be impolitic to change the emphasis in the way sought by the amendment.

Mr. O'Malley

I draw the Minister's attention to (1) (e).

Mr. Cooney

The next amendment covers that and I shall be accepting it.

Mr. O'Malley

The next amendment relates to only a very small part of (1) (e) but, taking the whole of (e), there are seven subheadings dealing with types of documents and only one of those seven is a document of the kind the Minister mentioned—that is the document referred to at (v). This is some form of court document. The other six are not and some of them are positively dangerous, apart from the one I propose in the next amendment to have deleted, and I am glad to hear that the Minister will accept it. Things like a statement or certificate of earnings could be positively suspect coming from another jurisdiction. A medical certificate could be suspect coming from another jurisdiction. Indeed, many of our courts here refuse as a matter of principle to accept any form of medical certificate and I believe they are perfectly right in that because there have been instances in which medical certificates were produced which did not stand up on closer examination.

Mr. Cooney

That is a fairly sweeping statement.

Mr. O'Malley

I said there have been instances and some courts are now refusing to accept such certificates and I think they are justified in refusing. They insist that if a litigant wants to prove some medical fact the doctor concerned will have to come in and swear and hold himself out for cross examination as to the medical condition of the person concerned. The attitude taken up in recent years by some courts in relation to that kind of situation is the right attitude. That attitude is taken up in regard to medical certificates within our own jurisdiction and it is hardly credible that the courts would readily admit in evidence certificates from another jurisdiction. I believe this is very dangerous because there would be no way of knowing the standing of the doctor who signs the certificate or of knowing if the person who signed it was, indeed, a doctor at all. In most courts here there would be no way of readily checking whether such a person was on the medical register in Britain.

Matters such as this could make the documents in question suspect and they should not be admitted in evidence unless the court sees good reason to admit them. In an ordinary civil action there would, of course, be no question of a medical certificate or a statement of earnings being admitted in evidence unless both parties agreed to its being admitted. There is no question here of both parties agreeing and any effort to offer what is called a certificate of earnings or a medical certificate by a party in a disputed civil action would be immediately ruled out as being inadmissible unless the other side consented. Clearly, the kind of proceedings in mind here do not envisage consent on the part of the defendant. Indeed, the very contrary would be the case. It is envisaged that in practice the defendant will not be present in the vast majority of these cases. He will be in England and his opportunity to say he does not agree to inadmissible evidence being given against him is in actual fact a very slight opportunity, indeed, and it is for that reason I think rather strongly that this section should not give the plaintiff the right to have these inadmissible things admitted in evidence. The position should be that the court should in all circumstances have the power to admit if it sees good reason, to use the phrase used in the section, but only then should it have the power to admit. As the section stands, it must admit such certificates unless it sees good reason to exclude them.

Mr. Cooney

That is fair enough.

Mr. O'Malley

No. It is wrong that the court should have to find good reason to exclude something which is not admissible in evidence. We have developed a complicated system of evidence here similar to that in Britain. It has reached the rather complicated state it is in now through the desire of the courts down through the centuries to ensure that what was given in evidence was fair to both parties and that one party could not take advantage, as it were, or another and could not introduce matters that could not be checked by the parties before the court in cross-examination. If this provision is accepted as it stands we will have the situation that all these things will be admitted in evidence and the court will have no power to stop them being admitted unless it can give good reason for excluding them. I can see why in certain circumstances some of these things should be admitted, but only on certain occasions. It should not be the position that they will always be admissible unless the court can see good reason to rule them out. It should be the other way round; they would not be admissible unless in particular circumstances the court saw good reason to let them in. It is for that reason I say the Minister should accept this amendment. It is not doing any damage to the applicant or anybody else and it is safeguarding those who will not in practice be present to safeguard their own rights.

Amendment put and declared lost.

Mr. O'Malley

I move amendment No. 5:

In page 12, line 11, to delete "or to".

I am glad the Minister is accepting this amendment. The reason I tabled this amendment is that, while a great deal of what is in the section is, as it were, contrary to the normal tenets of the law, some at least of what is in the section is justifiable in the particular circumstances. I can, however, see no justification whatever in any circumstances for the proposal that a letter written to someone would be admissible in evidence against that person even if there were no proof he had ever received the letter.

Mr. Cooney

Just to clear up the matter, this is a good amendment and I am grateful to the Deputy for drawing our attention to a danger that could have arisen from the section as originally drafted.

He goes to the kernel of this type of legislation when he says that this section is meant to deal with a particular and rather unusual situation. If the exact rules of evidence were not to be eased by this section a lot of the good of this Bill would be blunted. If, for example, it was not possible for the maintenance debtor in the other jurisdiction to furnish a medical certificate to show that he was ill or capable of earning only so much per week, the court in the home jurisdiction would not be able to make a realistic order. The only way in which it could make it would be for the medical practitioner to travel from the reciprocating jurisdiction to the domestic jurisdiction so that the court would be fully apprised of the earning capacity of the debtor. If we were to get into that situation, while, strictly speaking, it would be correct under the law of evidence as it stands, it would undermine the effectiveness of the Bill. I just wanted to make that point.

Amendment agreed to.

Question: "That the Bill, as amended, be received for final consideration", put and agreed to.

Question proposed: "That the Bill do now pass."

Mr. O'Malley

I should like to refer briefly to a matter which I overlooked on Committee Stage, that is, the question of whether or not under this Bill orders made by the District Court or High Court, as the case may be, can be enforced not just by the ordinary process of execution by the sheriff distraining for goods and subsequent instalment orders and committal orders where the instalment orders are not complied with, or whether any power is now given to any of these courts to order execution by means other than that and, in particular, of course, by way of attachment of salary or wages.

So far as I know, the powers of the District Court are confined simply to the ordinary execution order which goes to the sheriff and which, if it results in a nulla bona, as it normally does, starts off the procedure for examination and instalment and committal. The High Court has much wider powers of execution. It has powers to do all sort of things which frequently are not done, including things one vaguely remembers out of text books like the appointment of a receiver by way of equitable execution—I do not even know what that is—and a couple of other slightly exotic methods of enforcement.

Presumably because of its wider powers the court would have power, whether by way of appointment of a receiver or otherwise, over someone's salary to order that a certain amount of that salary could be paid in a particular week or month, as the case might be, to a wife applying in the circumstances. It would be equivalent presumably, to an order of garnishee which the High Court could make in respect of a debt due to a dependent.

The number of these cases that would actually go into the High Court would be small. By far the highest proportion of them would be in the District Court. I would ask the Minister between now and the time this Bill goes to the Seanad to examine the question of whether he might introduce a section which would give wider powers to the District Court which has very little power so far as enforcement is concerned at the moment. If necessary it would give wider powers to the High Court if the High Court has not already sufficiently wide powers to collect sums due in the manner about which we have been talking.

I am not quite clear what precisely the powers of the High Court would be in regard to this. Presumably it would have some sort of residual power in any event to execute in any way it saw fit or thought just in the circumstances. The Minister should avail of the opportunity between now and bringing the Bill to the Seanad to insert a section into the Bill which would allow, not just as between reciprocating jurisdictions but also in regard to cases within our own jurisdiction solely, the power to the District Court to make an order of the kind mentioned whereby so much could be obtained directly from a defendant's employer rather than through the rather laborious process of trying to get the sheriff to execute an order against the defendant.

That is, perhaps, a defect in the Bill as it stands. It has not improved-and I suppose it did not set out to improve -the internal enforcement of these orders. Since this sort of enforcement is available in the reciprocating jurisdictions, that is, in England, Wales, Scotland and Northern Ireland, it seems remiss of us so far as our international obligations are concerned that we are able to offer only a much more limited method of execution to British citizens who seek to avail of the reciprocating remedies which will be available to them when this Bill becomes law.

Mr. Cooney

The Deputy's point is that if the High Court here has power of garnishee and power to appoint receivers and power to attach wages, we should examine this to see if this power could be used in the case of orders made presumably by a reciprocating court on the other side. I will certainly consider that. As the law stands, it would be difficult to use these powers in relation to maintenance payments. As the Deputy said, these are terms from text books read in the distant past, but I think the order of garnishee can only be made in respect of a particular sum accruing to the debtor and would not be suitable for periodical payments under maintenance orders.

I am not sure that I agree with the Deputy that the High Court has power to attach wages in the case of maintenance orders or other orders of that type made by it. I do not think that power is there, but I will certainly look into it. I take the Deputy's point that the effectiveness of this legislation depends on locating the absconding husband for the purposes of the proceedings and, in addition, on attaching his wages. The District Court has not that power at present.

As I indicated earlier, the last report from the Committee on Court Practice and Procedure recommended that such power should be given to the District Court. I have indicated that in principle I accept that recommendation and that the consequential legislation will be produced as a matter of urgency. I am hopeful that we will have it next session. Our position will then be on all fours with the position in the reciprocating jurisdictions and we will be able to give as good a service here in regard to absconding debtors as they can give to us. Between now and the introduction of the Bill in the Seanad I will examine the other point raised by the Deputy as to whether there are any inherent powers of enforcement in the High Court which could usefully be incorporated in this Bill.

Question put and agreed to.