Before business was suspended, I had started to discuss amendments Nos. 1, 2, 7, 12 and 13 together. I was explaining that the substantive amendments were Nos. 7 and 12 and the others were drafting amendments consequential on these two. I was explaining that the main purpose of these amendments was to place illegitimate children in the same position as legitimate children and to remove anomalies that would have arisen by virtue of the Bill now before the House if these amendments were not made. I explained to the House what amendment No. 7 dealt with and I also explained amendment No. 12. I do not think there is anything further to add.
Family Law (Maintenance of Spouses and Children) Bill, 1975: Report Stage (Resumed).
While welcoming the increase of the weekly amount of the periodical payment suggested in my view it does not go far enough. An unmarried mother and child under the social welfare code can get more without going to court than the mother would if granted the maximum the court can award. If the mother gets an award in court it can count as means against her in her claim for an unmarried mother's allowance. Thus, the unmarried mother is not encouraged to bring her case to court. In the short term this might be beneficial to her but surely legislation in this field should concern itself with the welfare of the child. In the long term if the mother does not bring her case to court, she may be prejudicing the welfare of her child. Where a mother does not bring an action, the right to bring an action should be reserved to the child when he is old enough to bring a case in his own right.
Legal aid is not provided in this Bill to encourage the unmarried mother to seek legal advice on her rights and the legal entitlements of herself and her child. We are introducing here piecemeal legislation. Recently we signed a convention ensuring full legal rights of property for illegitimate children and undertook to implement the provisions of that convention by domestic legislation. I sincerely hope this will not turn out like the equal pay fiasco of recent times where in Europe we advocate one thing and when we have the opportunity of doing something at home, we shy away from it.
There are many who cannot understand—and I am one of them—why this domestic legislation is not introduced in this Bill rather than delaying it. There is no doubt that children of unmarried mothers are, and until our domestic laws implement this convention will be, regarded as second-class citizens. I would like to see comprehensive legislation brought in to deal with, among other things, the abolition of the term "illegitimate children", the provision of full property succession rights to the estates of their fathers and mothers and the legal requirements of corroboration required in court cases. Provision should be made available for legal aid for mothers in their affiliation cases and the right of representation and legal aid to the children themselves in any legal proceedings affecting their rights.
Perhaps the Minister could tell us when it is proposed to introduce legislation to implement the terms of the international convention we recently signed. I understand we are under obligation to notify the secretary general of the Council of Europe of the measures taken by us to implement this convention on the legal status of children born out of wedlock. This Bill presented us with a golden opportunity to have the terms of the convention passed into our domestic law.
On amendment No. 2, I would ask the Minister—he will have the opportunity in the Seanad—to omit the word "leaving" on page 4, line 36. It has been brought to my notice that there are situations where husbands and wives are living apart, but under the one roof. This is known as the two household theory. The inclusion of the word "leaving" might not deal with the people involved here. This theory means that although the man and woman are living under the one roof they live separate lives, buy their own food and sleep in separate parts of the house. I understand this is constructive desertion. Perhaps the Minister will see if he can do anything about that.
I have already made the point that the increase in the periodical payment is £3. I would ask the Minister to look at the situation I have just outlined, that is, that it might, in the short term, be beneficial for the mother not to go to court because she is better off under the social welfare code than the amount awarded to her in the court.
I do not understand what the Deputy means.
I understand that an unmarried mother gets £3 per week more under social welfare than she would get in court for affiliation.
She can go to the High Court where there is unlimited jurisdiction.
Can she afford that, and if not will she do it?
That is a separate issue. We hope to have free legal aid and if she judges that the father's means are such as to justify it, the cost will not inhibit her.
Until free legal aid is freely available she is not likely to do it.
If the putative father's means are such that she can contemplate going to the High Court she will do so.
Surely that is discriminatory against the poorer sections of the community who cannot afford access to the higher courts.
It is not a question of discrimination. It is a question of the amount the courts can award by virtue of their respective jurisdictions. Apparently Deputy Andrews does not understand the position. Deputy Collins referred to the mother for whom the amount which the District Court would be able to award would be too small, and my reply was that her remedy is to go to a higher court. I am saying that the cost factor is not a consideration because costs will be given against the father.
If he is a poor man——
Then it can be done in the District Court.
So there is one remedy for the rich and another for the poor.
If the man is poor there is no use going to the High Court seeking an order for £100 a week. I am saying that the High Court is open to the poor as well as to the rich.
It is open to those who can afford it.
It would be open to everybody if there were not expensive gentlemen with wigs to be paid.
I would ask the Minister to keep his cool and not to be casting aspersions on the gentlemen with the wigs.
I withdraw it. It is not the gentlemen's fault, it is the fault of the system.
I would be satisfied if the Minister could assure me that everybody would be able to go to the court, whichever court. I do not think the Minister or any other Member of the House would want a situation in which people who could not afford to go to the courts would be the losers. That is the point Deputy Andrews was making.
And I will continue to make it.
We do not want anybody to be a loser because he cannot go to the court. We would welcome a situation in which there would be free legal aid, but until such time as that situation arises there will be winners and losers. I have been advised that as it is people would be better off to stay on social welfare benefits rather than go to the courts, that they would be winners to the tune of £3 a week. In the short term that might be advantageous but in the long term the child would be the loser. All I am asking is that the Minister would re-examine this closely before the matter goes to the Seanad.
I am looking at amendments Nos. 3 and 7 and I am wondering if they could not be discussed together.
It depends on whether the House wants to take them together.
There is a certain similarity. They can be discussed together.
We are therefore discussing amendments Nos. 1, 2, 3, 7, 12 and 13 together.
Amendment No. 3 states:
That part of a maintenance order which provides for the support of a dependent child shall stand discharged when the child ceases to be a dependent child of the family by reason of his attainment of the age of 16 years or 21 years, as the case may be, and shall be discharged by the Court, on application to it under subsection (1) of this section, if it is satisfied that the child has for any reason ceased to be a dependent child of the family.
My concern is what would be the position in regard to a person of 21 years of age who would be pursuing a course in a university or a regional college. Will they be out?
Yes. I dealt with this on the Second Stage.
Is the Minister satisfied that he cannot do anything to help them?
I feel that there has to be a cut-off point, and I think 21 years of age is reasonable.
I can see problems, but I am thinking of a boy or girl who would be within a year of completing university education and who would need the grant supplemented. Such a person might have to give up the studies at that time. Can the Minister manage any discretion to cover this point? I am not asking him to give the answer now, but he will have an opportunity to consider it between now and the Seanad debate. Section 12 deals with a statement of earnings and subsection (1) states:
In relation to an attachment of earnings order or an application for such an order, the Court that made the order or to which the application is made may, before or at the hearing or while the order is in force—
(a) order the maintenance debtor to give to the Court, within a specified period, a statement in writing signed by him of—
(i) the name and address of any person by whom earnings are paid to him,
and so on. Perhaps the Minister would consider the possibility of inserting in line 50, after the words, "the attachment of earnings", words to the effect that a certificate of earnings be available. This might help so I would ask the Minister to consider it for a later stage when the Bill is before the Seanad. Perhaps I might deal briefly with amendment No. 13.
This is purely a drafting amendment.
It is not related to section 13?
Therefore, I would not be in order in discussing it at any length.
Not at this stage.
This morning I had circulated by hand an amendment regarding the tracing of an employee or a maintenance debtor by means of his Department of Social Welfare insurance number but we can talk about this later. The Chair has been very lenient with me so far. Perhaps, when the Bill is before the Seanad, when it is being discussed line by line, the Minister will consider the points I have made. I am sincere in my belief that the amendments I have suggested would help to give us better legislation, something we all wish for in this field.
Like Deputy Collins, I was surprised to note the number of amendments tabled by the Minister for Report Stage. However, it was a pleasant surprise because by putting forward these amendments, the Minister concedes that at least many of the points made by Fianna Fáil members on the special committee were valid. Some of the amendments are identifiable easily and relate to the opinions expressed by Deputies Haughey and Collins and myself on the special committee.
There is one point in relation to amendment No. 3 which I should like to have clarified. The amendment reads that the order shall stand discharged when:
the child ceases to be a dependent child of the family by reason of his attainment of the age of sixteen years or twenty-one years, as the case may...
Are persons of 17, 18, 19 and 20 years included in this or am I in error in saying that the amendment would appear to apply only to the ages of 16 and 21?
As the Minister commenced his observations on the amendments immediately after the division I was unable to hear him because of the noise in the Chamber but it appears that in the context of this Bill the distinction between legitimacy and illegitimacy has been abandoned. As one who, by way of the procedures of his House, has been endeavouring to bring an end to that distinction for the purposes of the Succession Act, it appears that my hopes may be realised in the not too distant future since there is a flicker of light in this Bill in this regard. However, if the Minister were to abandon the use of the words "illegitimate" and "legitimate" what words would he substitute for them? We are told now that we must not use the words "chairman" or "chairwoman" but "chairperson". Perhaps in some such way the Minister might deal too with substitute words for legitimate and illegitimate.
A number of points have been raised. Deputy Collins was critical of the measure. He described it as piecemeal and as legislation which does not deal with the succession rights of illegitimates. This is not a Succession Bill. It is a maintenance Bill and that is all it purports to be. The scope for reform in this whole area of the family is immense because it is an area which has been neglected, not for the past three years, but for the past number of decades. If everything were to be dealt with in one Bill we would need a massive piece of legislation and the bigger and more complex is a piece of legislation, the more time-consuming is its preparation and processing through the House.
I was faced with the decision as to whether to proceed with legislation in a staged manner and that is what I decided on. This Bill, I hope, is the first of a series of reform measures in the law relating to the family. I would take issue with Deputy Collins when he describes the Bill as piecemeal. Such a description has a disparaging ring. The Bill proposes substantial changes in our substantive and procedural law regarding families and the exercise of their rights through the courts. Therefore, it is a major piece of reform and I reject the allegation that somehow it does not contain enough. The whole area of family law has been neglected badly for too long. It requires a lot of reform.
If something is not whole, it must be a piece.
This is a whole Bill in regard to maintenance.
It is merely the tip of the iceberg. The Minister's record in this context is disgraceful.
That allegation comes badly from anybody on the other side of the House. I have no wish to say this bluntly but now that the Deputy has raised the question I can say that there was not a shred of interest taken by the previous Government in this field. Not only was that the position when they were in Government but since they have gone into Opposition they have not produced any policy in this area despite the fact that they do not have an obligation to produce a statute and that a broad statement of policy would suffice.
The Government have nothing to do because we are doing their work for them.
Let us get back to the amendments, but since the point was raised I had to deal with it. The record speaks for itself. This is a substantial piece of reform which is capable of standing on its own.
As Deputy Andrews knows, the question of succession rights for the illegitimate is a large problem and raises many legal and social questions that will require the most careful thought and analysis in a cool manner and with an absence of any emotive approach. This Bill, however, abolishes the distinction between legitimates and illegitimates in regard to the question of maintenance. It goes no further than that. Regarding the use of those words I suppose before we could change them we would have to change the English language. No doubt, though, in time to come we will find some bland euphemism that will describe the reality. That is a feature of modern life.
Perhaps the Minister for Education will oblige. He has tried to change our history.
Only the undue emphasis on the bloodier parts of it. Deputy Collins was worried about the position of the mother of the illegitimate in receipt of social welfare payments because they were larger than what she could get under the Act for her child and that the Act was really of no benefit to her. There is no limit to what is provided for in the Act. If the putative father's means are without limit or very large, the £10 limit mentioned in the Act does not apply because there is, technically speaking, no limit to the amount which may be awarded against a putative father, if the proceedings are taken in a court other than the District Court. If they are taken in the District Court because of the constitutional requirement to prescribe the jurisdiction of that court in the statute, the limit is £10, but if that limit is inadequate in the circumstances of that particular case, there is no restriction that keeps the parties in that court.
The point has been made that it is not a real remedy, that, until there is a legal aid remedy, the remedy is not available to go in the higher court. There is a certain merit in that and again this Government have taken an initiative in an area which has been neglected up to now. We have taken the initiative in the matter of a scheme of legal aid in civil cases and I hope that when the committee which is considering this question reports, we will in due course be able to implement a scheme. However, as I pointed out, if the particular case is one where the means of the father require that proceedings should be taken in the High Court, quite obviously there will be no difficulty in the way of the mother going to the High Court. The costs will be awarded against the father and neither she nor her legal advisers will be prejudiced by having to go to the High Court.
Deputy Collins was worried in regard to amendment No. 3 which ends dependency at 21 years and does not cater for a person who is in receipt of full-time education but over that age. I referred to this point on second Stage. I felt that there had to be a cut-off point, that one could not provide for it after 21 years, and that it would be unreal to have dependency after 21. A person of 21 years is mature. Let us assume that he is still a full-time student and is to some extent dependent on other sources for his livelihood. At that stage having regard to the other sources that are now available to a student, grants and special bank loans and also the opportunity for summer earnings, which is a new feature of student life nowadays. I cannot envisage a situation where a person who has reached the age of 21 would be deprived of the opportunity to finish his education. I think that having the right to maintain after 21 would involve the courts in interfering unduly in the affairs of parties all of whom are adults. That in my view would be wrong. The age of 21 is the proper age and, if one has regard to the fact that the age of majority is likely to come down to 18 years in all cases, the age proposed in the Bill is reasonable and I would not propose to make any change.
Deputy Andrews asked what happens to the person between the age of 16 and 21. There are two types of dependency in the Bill. Dependency normally ends at the age of 16, unless a person is in receipt of full-time education, when the dependency ends at 21. Thus a person of 17, 18, 19 and 20 is a dependant, if that person is in receipt of full-time education. There is not a gap or error in the drafting.
Would apprenticeship be regarded as a full-time education?
Not necessarily. It has to be full-time education or instruction. It would depend on the particular apprenticeship. Some apprenticeships are working apprenticeships where the person is in receipt of a wage. In that instance, the answer is "no". The other type of apprenticeship, for example, the old type of solicitor's apprenticeship where there was a legal barrier to the apprentices being paid, clearly would be covered.
Again I must say that I deprecate the note of triumphalism in Deputy Andrews' introductory remarks when he stated that he was surprised by all the amendments. I indicated during the Committee Stage debate in the Seanad that I would consider certain matters. There were valid points made in the course of that debate and they were no less valid because they were made by the other side. I would not for one moment attempt to take away from Deputy Andrews credit for certain of these amendments. Furthermore, other points raised during the debate have suggested additional amendments to me and these also appear on the amendment sheet. I think all the amendments will improve the Bill, and particularly the amendment with regard to placing the illegitimate and the legitimate child on the same footing with regard to maintenance. This Bill, is, as I have said, not a Succession Bill.
I move amendment No. 2:
In page 5, between lines 20 and 21, to insert the following section:
"A periodical payment under an order under this Act shall commence on such date, not being earlier than the date on which the order is made, as may be specified in the order.".
I move amendment No. 3:
In page 7, between lines 4 and 5 to insert the following subsection:
"(3) That part of a maintenance order which provides for the support of a dependent child shall stand discharged when the child ceases to be a dependent child of the family by reason of his attainment of the age of sixteen years or twenty-one years, as the case may be, and shall be discharged by the Court, on application to it under subsection (1) of this section, if it is satisfied that the child has for any reason ceased to be a dependent child of the family."
I move amendment No. 3 (a):
In page 11, after line 42, to add the following subsection:
"(2) Where an attachment of earnings order is made, the Court that made the order shall notify the Department of Social Welfare that the order has been made and that Department shall notify the Court in writing of the maintenance debtor's employer".
I practically made the case for this amendment earlier. It is basically an amendment to help to track down people and get them to fulfil their responsibilities.
On the point of clarification, I gather that what the Deputy has in mind is the position that ensues after the original order is made, not the question of finding the first employer but of keeping tabs on future employers?
Afterwards—that is basically it. I believe it would help and it is because I believe it would help that I put down the amendment. If the Minister feels he would need more time to look at it, I am prepared to withdraw the amendment and then the Minister can do something about it in the Seanad.
I doubt if I could even undertake to do anything about it in the Seanad because what is proposed here would be quite radical, that is making the Department of Social Welfare an investigative agency in this area and giving them a role which they have not presently got. It would not be proper for me to attempt to introduce that role into legislation without the fullest consultation with my colleagues and there might be technical reasons which would not be immediately apparent to me but which would be drawn to my attention by my colleagues in other Departments. I appreciate that much of the efficacy of this Bill depends on being able to keep in touch with employees but the hard reality is that if a defaulter wants to go underground there is no mechanism which can guarantee that tabs be kept on him. The difficulties of keeping in touch with a defaulter of this type and pursuing him effectively would probably make the whole exercise quite pointless. This Bill is most likely to be successful in dealing with the person who is in steady employment, who is not going to keep changing his employment and who is not living up to his responsibilities. The hard reprobate who has no consideration whatever for his responsibilities and is prepared to use every means possible to avoid them would probably still be able to do so successfully.
I take the point made by Deputy Collins, and we made common case of this during the debate in Special Committee. Some procedure for keeping tabs on the defaulting spouse would be useful but I do not know whether the Department of Social Welfare would be the proper authority. The suggestion was made in Special Committee that the Revenue Commissioners might have records that would be useful. However, we would be asking bodies such as the Commissioners to take on roles that traditionally are not theirs. These roles would have a certain investigative content and would carry with that a certain punitive concept as far as the debtor was concerned. These authorities might not be prepared to carry out such a role. Regretfully, I could not undertake that in this Bill I will have anything on the lines suggested by Deputy Collins, but that is not to say that it is a closed subject. It is a subject that can be pursued.
I can understand why the Minister cannot give any guarantee now. I appreciate that if a defaulter wanted to go underground he could do so and would not be traced easily. The idea behind the amendment was that if the social welfare insurance number of the person was known a simple inquiry to the Department of Social Welfare would establish if such a person was working. Normally a person has just one social welfare number and it is extremely difficult to get a second number. Now that we have agreement with the Department of Social Welfare in Britain it might be helpful to have the provision I suggested. I appreciate the point made by the Minister, that the Department of Social Welfare might not wish to become an investigatory body, but there is a pretty lively investigatory team in that Department. The Minister mentioned the possibility of enlisting the aid of the Revenue Commissioners. Any help would be welcome. I withdraw the amendment because I believe there is agreement, in principle, between the Minister and Members on this side that every loophole should be closed. If, when the Bill becomes an Act, loopholes appear the Minister will be facilitated by us in any way necessary.
I move amendment No. 4:
In page 14, line 28, before "Where" to insert "Without prejudice to the law as to contempt of court,".
This amendment relates to the section providing for the barring of the spouse from his home. Section 21 introduces this new principle of empowering the district court in cases of emergency for the safety or welfare of the spouse or a dependent child to order the other spouse to leave the family home. If such power is to be meaningful it must have effective sanction to enforce it. The amendment is designed to make it clear that in cases where under the section a spouse is in contempt of court by breaking an order excluding him from the home, the criminal sanction provided for in the section will be supplemented by the power of the court to commit for contempt.
During the debate in Special Committee there was mention that the way to provide effective sanction was to give a power of arrest without warrant. While that would deal with the immediate problem of removing the defending spouse, it would not be the answer because the person arrested would be entitled to be released on bail. Under the law as it now stands it would be difficult to see how he could in most cases be refused bail. While on bail he might come back and molest his family and household again. A more effective way is to make it plain that the present law regarding contempt relating to court orders applies to any exclusion order under this section. We will have to wait and see how the section works out in practice, see if it is effective and if the sanction provided is working effectively. The sanction of contempt of court is more effective than the power of arrest without warrant.
I found this amendment puzzling in view of the fact that the District Court, which would by necessity hear most of the applications and make most of the orders, has no power of attachment for contempt of court unless the contempt is committed in the face of the court during the hearing. The High Court has power to commit for non-compliance with its order. I have difficulty in seeing the necessity for the insertion of the amendment. Is it contemplated to give wider powers with regard to contempt of court to the District Court? Will the District Court have wider powers as a result of this amendment?
The amendment does not affect the law relating to contempt of the District Court. The contempt has to be committed in the face of that court, and that is a matter on which there might possibly be room for argument. It would be a matter for a district justice to decide in the first instance. The amendment does not interfere with the present law as to contempt.
The Minister made the point in Special Committee that he may have to consider an amendment in relation to the situation where there is an appeal from a decision of the District Court where the husband——
There is a further amendment dealing specifically with that point.
I move amendment No. 5:
In page 15, after line 15, subsection (5), to insert the following subsection:
"(6) An appeal from an order under this section shall, if the court that made the order or the court to which the appeal is brought so determines, but not otherwise, stay the proceeding upon the order upon such terms (if any) as may be imposed by the court making the determination".
This deals with the point raised by Deputy Andrews. The amendment is designed to give added protection to the family of the spouse against whom an exclusion order has been made. As a general rule a person against whom any order has been made by the District Court may, by lodging an appeal, stay that order and thereby suspend its effectiveness until the outcome of the appeal. Such a ruling is fair in the normal run of cases but in the case of exclusion orders it might place the wife and children of a violent husband in some peril pending the outcome of the appeal. The amendment proposes to remove this absolute entitlement to have an order stayed simply by lodging an appeal. It provides instead that proceedings under the order can only be stayed by a court order on such terms as either the court which makes the order or the court to which appeal is brought may specify. We can reasonably assume that there might be some cases where it would be appropriate to have the order stayed; they are covered in the section. So, we reverse the normal position by providing that, unless the court says otherwise, the order will not be stayed.
The case has been made to me that this amendment seems to take the teeth, as it were, out of the whole legislation. I will put the case to the Minister as it was put to me. It is believed that any spouse barred from the family home may defeat the purpose of the section by appealing. At the moment I understand it may take anything up to two years, particularly in Dublin, for an appeal to be heard from the District Court in the High Court and this being so, any spouse may buy time, as it were, by appealing and could then withdraw the appeal at any time. I am thinking especially of women and children who are terrorised by a violent husband and father.
It is the other way around.
Can the Minister explain?
If the Leas-Cheann Comhairle will allow.
It is a question that I am asking.
In answer to the question, on the law as it stands at the moment, if an exclusion order were to be made and the excluded spouse were to appeal, the person would not be excluded.
While the appeal is being heard.
Pending the hearing of the appeal.
Is that not what I say?
The evil that was sought to be cured would not be thereby cured. The appeal will not suspend the court order excluding the spouse. Under the present system the excluded spouse would be entitled to go back in because the order excluding him would be suspended during the appeal. This amendment is designed to ensure that the contrary happens in the case of exclusion orders. The exclusion order will remain in force pending the hearing of the appeal, unless the court orders otherwise. In other words, if the amendment is accepted and passed and the Bill becomes law, if a District Court makes an exclusion order the husband will stay excluded until the appeal is heard and determined. He may say to the court that his exclusion is grossly unfair because of this circumstance or that circumstance. Then the District Court which made the order or the Circuit Court might say: "Very well. There are exceptional circumstances. We will let you go back in until the whole matter is thrashed out on appeal." What the amendment aims to do is to ensure that pending appeal the husband will be kept out. In other words, we propose to give the District Court order continued validity notwithstanding the existence of an appeal.
I am thankful to the Minister for answering my question. I understood the position to be the reverse. I would be anxious that the husband would be barred from the house while the appeal would be going on.
That is what the amendment seeks to do.
If the Minister says that, I accept that and I welcome it.
Recommittal is necessary in respect of amendment No. 6 as it involves new matter of substance.
I move amendment No. 6:
In page 16, before line 1, to insert the following section:
"An agreement shall be void in so far as it would have the effect of excluding or limiting the operation of any provision of this Act (other than section 20)."
This amendment is to make it absolutely clear—I think it is already clear —that it will not be possible to argue that an agreement relating to maintenance—that would be a private contract—either in its express terms or by virtue of the fact that it has been made makes it impossible for a spouse to apply for maintenance under section 4 or for any of the consequential remedies such as attachment. In other words, it is to make it clear that it will not be possible to contract out, so to speak of the consequences of the Act.
During the special committee debate—I am referring specially now to the part of the debate dealing with proposed amendments to section 7—it was envisaged that a spouse would have the right to apply to the court in such a case and the draft of the section as it stands confirms this.
I am moving this amendment in order to remove even the smallest possibility of a spouse's seeking to escape from his responsibilities by invoking an agreement or a provision in an agreement and alleging that no maintenance order may be made, so that a spouse may not say: "Under my agreement with you, you are not entitled to go to court."
The Minister need not pursue the matter. It confirms what we spoke about in the special committee.
No. It is a different point.
I know, but it is of a similar nature to the matter we discussed at the special committee.
It is not, actually.
In fact, it is, if the Minister will look at the report of the special committee.
We accept the amendment.
I would refer the Minister to page 20 of the Third Report, for Tuesday, 25th November, 1975, in relation to the last point that I made.
If the Deputy reads it carefully and reads the amendment carefully he will see that there is a clear distinction.
There is a clear distinction but it is a similar type of order.
They are barely cognate.
Take my word for it. I have given the quotation.
I move amendment No. 7:
In page 16, between lines 2 and 3, to insert the following:
"(a) by the insertion in section 1 of the following definition:
` "child" means any child who is under the age of sixteen years, or, if he has attained that age—
(i) is or will be or, if an order were made under this Act providing for periodical payments for his support, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of twenty-one years, or
(ii) is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully';".
This amendment has been debated.
I move amendment No. 8:
In page 16, lines 9, 12, 17, 22 and 23, to delete "two" and to substitute "three".
This amendment extends the period that the Bill proposes for taking affiliation proceedings from two years to three years. At the moment there is a period of six months and in the Bill as drafted that period was extended to two years. There were varying views in the special committee. Some Deputies thought that even two years was too long and some Deputies were doubtful about six months, as to whether even that was too long. Other Deputies thought there should be no time limit at all. As I said, it is essentially a subjective matter, one's instinctive feeling as to what is right and appropriate. My own feeling was for two years but, as I am a person inclined to have an open mind on things, I had an open mind on this——
You are allowed to have an open mind on this.
——and when the period of three years was suggested I decided to accept it.
The Minister suggested that in some way we were being triumphant about the fact that he brought in amendments. The Minister cannot distinguish between being triumphant and a certain pleasure arising out of amendments which arose in the special committee and which have been accepted by the Minister and which he has brought in on Report Stage. The work put into the special committee by the Fianna Fáil Party, led by Deputy Collins, and the amendments put forward by them have borne fruit. That is not being triumphant. There is no great merit to be gained by anyone out of the Bill we are discussing which deals with a social evil which we want to purge from our society. There is no great merit attached to any party or group for doing what should have been done over the past few years.
The Minister says now that he is accepting Deputy Haughey's amendment contained at page 58 of the Fourth Report of the Special Committee, which was as follows:
In page 16, line 9, to delete "two years" and substitute "three years" or such longer period as the Minister may by order determine.
That is a clear acceptance by the Minister of the amendment put forward by Fianna Fáil. As the Minister stated, it is an amendment that gave rise to a lot of discussion. Our view was supported by various social workers and other persons——
Not by Deputy Brosnan.
The great merit of a select committee is that it is possible to have a civil exchange of views——
As in here.
At times, perhaps. The Minister is regaining his good humour now after a bad start. There was a view expressed that six months was too short and two years was too long. Now the Minister has accepted that our point of view was the correct one and we are grateful for that. However, we would ask him not to take the view that because we have succeeded with our amendments in bringing about a better legislative instrument that we feel any great sense of boastfulness about it. The contrary is the case.
Will the Minister state if the amendment will cause any practical problems?
It will not cause any practical problems. When the Bill becomes law they can be taken if they are within the new limit. Incidentally, the new limit will be three years absolutely. The amendment suggested in the committee was: "three years or such period as the Minister may, by order, determine". I decided that would not be a good provision. I think the period should be three years flat.
Amendment No. 9 is consequential on amendment No. 11 and they may be debated together.
Amendment No. 11 is the substantive amendment and amendment No. 9 relates to drafting. I move amendment No. 9:
In page 16, line 39, to delete "section 3 (7)" and to substitute "sections 3 (7) and 9 (2)".
During the debate at the special committee I said I would introduce this amendment. Its purpose is to extend to persons obtaining affiliation orders the benefits provided by section 8 for persons obtaining maintenance orders. Section 8 proposes that in the ordinary way payments will be transmitted to the district court clerk to be passed to the wife and that he will take proceedings for payments that fall into arrears. The amendment proposes that a similar practice should apply in the case of affiliation orders. This is in line with general policy to ensure that the regime available under the Bill will be available for both legitimate and illegitimate children.
Amendment No. 9 is a drafting amendment consequential on the extension of the services of the District Court clerk under section 8 of the Bill to affiliation as well as to maintenance proceedings. Section 9 (2) of the 1930 Act will become redundant and is being repealed by this amendment.
We query the supposition that the child's education and its cost might not be completed before the age of 21 years. Does it come into this?
It does not come in here. All the amendment seeks to do is to make available for the mother of the illegitimate child the same assistance from the District Court clerk as the Bill provides for the mother of the legitimate child.
Amendment No. 10 seems to be related to amendment No. 14 and I suggest they be discussed together.
I move amendment No. 10:
In page 16, to delete lines 42 to 46 and to substitute the following:
"by the Courts Act, 1971); and the said sections 3 (1) (a), 6 (1) and 7, as so amended, are set out in the Table to this section."
These are purely drafting amendments. Section 26 as at present drafted speaks in line 1, page 16, of amendments of the 1930 Act relating to affiliation proceedings. However, paragraph (g) of the section which is concerned with raising the jurisdiction of the District Court in affiliation proceedings is technically an amendment of the Courts Act, 1971, rather than of the 1930 Act. That amendment is, therefore, contained in a separate subsection. No change in substance is involved in these amendments. They are entirely drafting amendments.
Amendment No. 11 was discussed with amendment No. 9.
I move amendment No. 11:
In page 16, between lines 46 and 47, to insert the following paragraph:
"(g) by the insertion in section 3, after subsection (9) of the following subsection:
`(10) Notwithstanding anything in this Act, the provisions of section 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976, shall apply in relation to an affiliation order subject to the modifications that the reference in subsection (4) of the said section 8 to the maintenance creditor shall be construed as a reference to the person to whom payments under the order would, apart from this section, be made by virtue of subsections (3) and (4) of section 9 of this Act and the other references in the said section 8 to the maintenance creditor shall be construed as references to the person on whose application the affiliation order was made.';".
I move amendment No. 12:
In page 16, between lines 46 and 47, to insert the following paragraphs:
"(h) by the substitution for section 4 of the following sections:
`(4).—(1) A periodical payment under an order under this Act shall commence on such date, not being earlier than the date on which the order is made, as may be specified in the order.
(2) Every periodical sum payable by a putative father under an affiliation order shall, subject to subsection (3) of this section and to any variation in the amount thereof made under this Act, continue to be payable for such period as may be specified in the order.
(3) Every periodical sum payable by a putative father under an affiliation order shall cease to be payable on the happening of whichever of the following events first happens, that is to say:
(a) the death of the child in respect of whom the said periodical sum is payable: (b) the commutation under this Act of such periodical sum by payment of a lump sum;
(c) the termination of the said periodical sum by an order under section 5;
(d) the attainment by such child of the age of sixteen years, unless at the time of the making of the order or at any time thereafter before the attainment by the child of the age of sixteen years, the District Court, on account of the educational needs of such child or on account of a physical or mental disability of the child, has ordered otherwise;
(e) the attainment by such child of the age of twenty-one years, where the Court, on account of the educational needs of such child, has ordered that payments be made on his behalf after he has attained the age of sixteen years.
(4) (a) Where an affiliation order, whether made before or after the commencement of the Family Law (Maintenance of Spouses and Children) Act, 1976, has been discharged by the District Court under section 5 of this Act or where payments under an affiliation order have ceased to be payable by virtue of this Act, the District Court may, at any time thereafter, notwithstanding anything in this Act, by order direct the making by the putative father of payments of such amount, at such times and for such period as the District Court may specify while the person for whose benefit the order was made is a child.
(b) An order under this subsection shall be deemed, for the purposes of section 3 (10) of this Act, subsection (1) of this section, sections 5 and 6 of this Act and section 31 (1) of the Adoption Act, 1952, to be an affiliation order.
(5) On the death of a putative father liable to pay a periodical sum under an order under this Act, the liability for the payment of such periodical sum shall attach to his estate as a civil debt and such periodical sum shall be recoverable accordingly by the person to whom it is for the time being payable.
4A.—(1) Where it appears to the Court on application to it by any person, that a parent of a child has failed to provide such maintenance for the child as is proper in the circumstances, the Court may make an order that the parent make to that person periodical payments for the support of the child for such period during the lifetime of that person, of such amount and at such times as the Court may consider proper.
(2) The provisions of the Family Law (Maintenance of Spouses and Children) Act, 1976, relating to maintenance orders shall apply, with any necessary modifications and adaptations, in relation to an order under this section.
(3) The Court shall not make an order in relation to a parent of a child under this section if an affiliation order or an order under section 4(4) of this Act requiring that parent to make payments for the benefit of the child is in force or that parent has made provision for the child by an agreement under which, at or after the time of the hearing of the application for the order under this section, payments fall to be made and in relation to which an order under section 10 of this Act has been made unless——
(a) the parent is not complying with the affiliation order or the order under the said section 4 (4) or the agreement, as the case may be, and
(b) the Court, having regard to all the circumstances thinks it proper to do so,
but, if the Court makes the order under this section, any amounts falling due for payment under the affiliation order, the order under the said section 4 (4) or the agreement, as the case may be, on or after the date of the making of the order under this section shall not be payable.
(4) In this section—
"Court" shall be construed in accordance with section 22 of the Family Law (Maintenance of Spouses and Children) Act, 1976; "parent", in relation to a child, means the mother of the child, the putative father of the child, or a person who has made provision for the child by an agreement in relation to which an order has been made under section 10 of this Act;
(i) by the insertion in section 5 of the following subsection:
"(3) A Justice of the District Court, on the application of the person by whom a periodical sum is payable under an affiliation order, shall discharge the order if it is satisfied that the person for whose benefit the order was made has ceased to be a child."
This amendment is particularly long. Is the Minister in a position to give us a precis of it? Perhaps he would elaborate a little more on the amendment for the benefit of the lay person?
The amendment provides for substituting two new sections in the 1930 Act which will be known as section 4 and section 4A. It is a long amendment and its length demonstrates the difficulties of amending the 1930 Act. Ideally that Act should be drafted de nova but that would delay the present Bill. This procedure has been arrived at, that we provide for two new sections in the 1930 Act.
It gives practical effect to the raising of the age of dependency in amendment No. 7. Placing the illegitimate child in the same position as the legitimate child means that the illegitimate child has to go back in some respects to the position of the legitimate child. We want both of them to be on the same plane. There were certain advantages which are removed in the process of providing equality of maintenance rights between them. For example, under the 1930 Act there is a rule that an affiliation order would, unless discharged, automatically continue until the child reached 16 years. That is being changed now. The amendment provides that an affiliation order, like a maintenance order, will continue until the court discharges it. That is bringing the position of the illegitimate child into line with that of the legitimate child.
As a corollary to that change, the court must be given power to reactivate an affiliation order that has been discharged, if the circumstances change. The same is being provided with respect to maintenance orders. This amendment applies equally to persons whether the affiliation order was made before or after this Bill becomes law. One can envisage the case where an affiliation order made before this Bill becomes law could have been discharged and in a year's time, when the circumstances change, could be reactivated.
Another change that is being made in order to bring the position of both types of children in line with each other is that in the amendment of section 4 (1) of the 1930 Act, which provides that sums payable under an affiliation order should commence not earlier than 12 months before and not later than 12 months after the making of the affiliation order. To ensure that affiliation proceedings and maintenance proceedings will be on all fours, it is proposed that the order will commence not earlier than the time the order is made. In other words, the position will be the same as between the two types of children.
The change is in any event necessary because the attachment of earnings procedure requires it.
A further aspect is that the new section, section 4A, introduced by the amendment, imposes on the parents of an illegitimate child an enforceable obligation to maintain the child over and above the present obligations. In effect it will impose a similar liability on such parents as is imposed on spouses by section 4 (1), paragraph (b) of the Bill where spouses are not living together or where one spouse is dead. If we did not have such a provision the mother of an illegitimate child would be in a different position from that of the mother of a legitimate child because she would have a mainly theoretical obligation to maintain her child. Where the mother has obtained an affiliation order, no third party will be permitted to take proceedings under this provision unless the father is not discharging his obligations under the affiliation order and the court considers it proper to allow the proceedings. An example would be where a mother had obtained an affiliation order against the father, the father was failing to pay and the mother had lost interest in or possibly deserted her child. Here the court could award maintenance to the child on the application of an interested third party.
Could a social worker apply?
Yes. This is analogous to the provision we have made in the case of legitimate children.
There could be an element of officiousness there.
This is a risk where you allow an interested neighbour to appear.
There is that risk, but it can be cured and dealt with by the court. I think our major concern must be the benefit that would accrue to a child who would be in effect defenceless and have no help at all. What we are dealing with is the situation where there is only one parent, a single mother or a deserted mother, who has lost interest in the child. Unless you give society in the form of the interested neighbour the right to intervene, it is hard to see what other agency could better come along and intervene. One would expect that the interested neighbour would be the person most likely and soonest to know of the failure to maintain. This whole amendment continues the general policy of putting the two types of children on the same footing.
Amendment No. 13 was discussed with amendment No. 1.
I move amendment No. 13:
In page 16, between lines 46 and 47, to insert the following subsection:
"(2) References in the said Illegitimate Children (Affiliation Orders) Act, 1930, to a weekly payment shall be construed as references to a periodical payment."
Amendment No. 14 was discussed with amendment No. 10.
I move amendment No. 14:
In page 16, between lines 46 and 47, to insert the following subsection:
"(3) Section 19 (3) (a) of the Courts Act, 1971, is hereby amended by the substitution of £10 for £5, and the said section 19 (3) (a), as so amended, is set out in the Table to this section."
I assure the Minister he can expect every co-operation from this side of the House in any legislation of this nature. I mean that sincerely.
I am obliged to Deputies on the other side for their help on this Bill.
I will be sending the Minister a policy document on this.
I shall be interested in reading it.