Limerick East): I intend to reply to the remarks made by Deputies during the Second Stage debate. Some of the most important points can be dealt with in greater detail on Committee Stage, but there are some comments I would like to make now. In a sense I will be summarising and repeating what I dealt with briefly last week, and then I will pick up individual comments made by individual Deputies.
Deputy Woods and Deputy Shatter particularly, and some other Deputies queried the exclusion from the Bill of the Law Reform Commission's proposals relating to marriage. Generally speaking, the commission proposed that the free age for marriage should be 18 years, that is, the age at which a person could marry without the consent of a third party such as a parent or guardian. They also considered whether the absolute minimum age for marriage should be fixed at 16 or 18 years. In their proposed legislation they opted for 16 years as the absolute minimum age and recommended that a marriage contracted by a person under that age should be null and void. Consent of a parent, guardian or of the court would be required for marriage of persons between 16 and 18 years and absence of consent would invalidate the marriage.
As regards the reduction of the free age of marriage, section 18 of the Marriages Act, 1972, already gives power to the Minister for Health to make regulations substituting for the present age of 21 years a lower age as the age at which parental consent for marriage ceases to be necessary. Therefore, a change to make 18 the free age for marriage, rather than 21 years, could be accomplished without legislation by order of the Minister for Health.
As regards the minimum age for marriage, it is reasonable to suppose that there could be a divergence of views about what the law should be concerning marriage before the age of 16 years and between the ages of 16 years and 18 years. These proposals are not in any way related to the question of what the age of majority should be and it is reasonable to say that we should deal with them separately. Indeed, it would be undesirable to have provisions relating to such an important aspect of life contained in any legislation other than a Marriage Act. In the past, marriage law has always been the subject of separate legislation. There appears to be no good reason why that principle should apply in relation to the matters we are now considering.
I appreciate that the report by the Joint Committee on Marriage Breakdown may be due in the not too distant future, but it is by no means certain what action will be taken on foot of the recommendations in that report. Whatever proposals may issue from the committee, they will require full and careful consideration by the Government and the Minister for Health who has the primary responsibility in this area before they, or any variation of them, can be incorporated in legislation.
As I said in my opening remarks, the Joint Committee on Legislation considered the Law Reform Commission's overall recommendations in this area. That committee recognised that the proposals connected with the law of marriage might well be controversial and decided to confine their examination to the central proposals in relation to reduction in the age of majority. In fact, the committee considered only the age of majority aspects of the commission's report principally because the Joint Committee on Marriage Breakdown already had the marriage proposals under examination.
Briefly, in relation to the age of marriage, this is an area which could possibly be controversial. It is a totally separate issue from the age of majority and it is an area which needs to be debated and considered separately. As soon as I have had time to evaluate the recommendations of the Joint Committee on Marriage Breakdown dealing with the age of marriage, I propose to act on them. I do not propose to deal with the age of marriage as if it were a minor consideration to be dealt with under the overall heading of the age of majority when it is a major consideration to be dealt with within the auspices of a Marriage Act. The Marriage Acts are matters for the Minister for Health.
The position in summary is this: we are lowering the age of majority from 21 years to 18 years. If the Minister for Health, with the consent of the Government, considers that the free age for marriage should be 18 years, he can lower that age to 18 years by way of regulation; he does not need legislation. When we are talking about the age of marriage we are talking about two ages — the free age of marriage and whether there should be a lower age at which people could marry with the consent of parents, guardians or the court.
From what I have heard already in the House, there seems to be a divergence of views. Some Deputies seem to think there should be a minimum age for marriage, 18 years, and that nobody should be allowed marry under that age, regardless of circumstances, and that there would be one age only for marriage, the free age of marriage. There are many marriages where one partner is over 18, and there are a number of other marriages, probably 50 or 60, where both partners are under 18 years, but other considerations should also be taken into account.
There are, for example itinerant groups where people marry at quite a young age. The House should consider very carefully whether to pick an age for marriage which would make it impossible to marry under that age — the age of 18 — and not recognise any marriage under that age, with its adverse effects on children of any arrangement made under that age. It is not a simple question or a minor issue to be dealt with in the context of the overall age of majority. It is a question which I think the House should deal with separately and that is my approach.
I do not disagree at all with the opinions expressed by Deputy Woods with regard to marital breakdown having as a contributory factor early marriage. We are dealing here with the age of majority, and the age of marriage is a separate issue. We should await the advice of the full report on martial breakdown and then deal with the age of marriage as a separate issue. I am sure that very many Deputies will have much to say on that matter because it is by no means an open and shut case.
Deputy Woods asked why should a person be able to take out funds lodged in court at 18 but not trust funds until he reaches 21. There may be a misunderstanding of what is involved here. The provision in paragraph 3 of the Schedule relates to trust instruments made before the commencment of the Act. It is right that we should not interfere with the intentions of a person who set up a trust before the Act comes into force. That person would have taken account of the relevant provisions of the Conveyancing Act, 1881, in deciding on the terms of the trust. The object of the paragraph is to preserve the trust instrument as it stood before the commencement of the Act. The paragraph includes, however, an enabling provision that allows the trustees to pay income from a trust to the beneficiary at the age of majority in addition to the power already conferred on them under the 1881 Act to pay such income to his parent or guardian for his maintenance or education.
The question of changing the age for membership of the Dáil (which would involve a similar change for Seanad membership) was raised by several Deputies. This would require an amendment of the Constitution. Such a proposal could not be included in this Bill as Article 46 of the Constitution provides that a Bill to amend the Constitution may not include any other proposals. A proposal to reduce the age for membership to 18 was not proceeded with in 1972 when the Constitution was amended to reduce the voting age to 18. It was decided then that the age for membership of the Houses of the Oireachtas should remain at 21 years of age. In most member states of the EC the age for election to parliament is higher than the voting age. For example, in Belguim it is 25 as against 21 years of age, in Italy and the Netherlands 25 as against 18, in France 23 as against 18, in Luxembourg and the United Kingdom it is 21 as against 18.
Deputy Woods suggested that there was an inconsistency in not considering adjustment of other age limits specified by law in line with the changes in the age of majority. He asked, for example, whether I was considering a change in the age of criminal responsibility. First of all, it would not be appropriate to deal with the age of criminal responsibility in a Bill which is principally concerned with a reform of the civil law. Furthermore, I would not wish to pre-empt any decision which the Minister for Health may take in relation to the age of criminal responsibility in connection with the Children Bill. I made my position quite clear in this regard during the debates on the Criminal Justice Bill.
Deputy Woods also referred to the possibility of the Bill leading to a reduction in the maximum age of 21 — rather than 19 as the Deputy thought — up to which a young offender could be sent to St. Patrick's Institution, with the result that more juveniles would be mixing with older and more hardened offenders in Mountjoy Prison. It is not intended that the Bill should affect any age limits prescribed in legislation relating to imprisonment or detention. I am very grateful to Deputy Woods for pointing out this potential problem area and I will move an amendment on Committee Stage to meet the point which he raises.
Deputy Myra Barry raised the question of persons over 18 who are living at home and who had applied for dole payments being assessed on the basis of parents' income. This Bill is not the appropriate place to deal with that kind of issue. It seems to be relevant solely to social welfare legislation.
Deputy Shatter raised an important point about the effect of the Bill on maintenance orders. He put forward some very persuasive arguments why maintenance payments should be allowed to continue up to 21 years of age in certain cases. Deputy Myra Barry also referred to this question.
At present under the Family Law (Maintenance of Spouses and Children) Act, 1976 or under the Illegitimate Children (Affiliation Orders) Act, 1930 (as amended by the 1976 Act) a maintenance order may be made in respect of a child up to 16 years of age. This may be extended to 21 years of age if the child is receiving full time education. Under the Guardianship of Infants Act, 1964, a maintenance order may be made in respect of a child up to 21 years of age. The effect of section 2 of the Bill as initiated would be that a reference to 21 years of age in these Acts would be construed as a reference to 18. Consequently, the courts would not be empowered to make maintenance orders for children between 18 and 21 after the commencement of the Act. The Bill does not, of course, affect the position of physically or mentally handicapped children for whom there will be no statutory upper age limit. In fact, section 6 of the Bill improves the existing position in this regard by enabling the courts to make maintenance orders under the Guardianship of Infants Act for incapacitated children who have attained the age of majority, thus bringing it into line with the similar existing provision in the 1976 Act.
The question of maintenance of children who have attained the age of majority was considered by the Law Reform Commission. In the Working Paper on the Age of Majority they indicated that they were in favour of retaining existing entitlement to maintenance up to 21 years of age, Paragraph 5.22, but in their Final Report they concluded that it would not be desirable to impose continuing maintenance obligations on parents of children — other than those who are mentally or physically disabled — who have reached the age of majority, even if they are receiving fulltime education. The commission considered that the balance of the argument favoured the view that a necessary implication of attaining majority is that a person is sufficiently mature and independent to be responsible for his or her own maintenance rather than looking to the parents for support. The Bill was drafted on the basis of the recommendation in the commission's final report.
Clearly, there are arguments on both sides of the matter. On the one hand, maintenance under our laws has never been payable beyond the age of majority, except in the case of handicapped children, and it can be argued that once the law accepts that a person has attained adulthood, obligations on his parents to support him beyond that age in the normal case, where no question of handicap arises, should not be imposed by law. It can also be argued that it is only where parents are separated and in dispute that one or other will, in practice, be obliged by law to maintain a child in higher education and that this is unfair. For the majority of children whose parents are living together there will be no question of one or other of the parents being obliged to maintain the child in higher education. There is a strong argument that it should be left to parents themselves to agree together as to whether or not they should maintain their child at university. On the other hand, it can be argued that the reduction in the age of majority, which is intended to be of benefit to young people should not operate to the detriment of some of them who may have difficult family circumstances and who are not in a position to support themselves.
I have given the question further consideration and while I appreciate the arguments adduced by the Law Reform Commission in support of their proposal, I have formed the conclusion that it would not be unreasonable to preserve the existing situation. Accordingly, I propose to introduce an amendment on Committee Stage to preserve the existing right to seek maintenance up to 21 years when the young person is in full time education. I would be opposed to any extension beyond 21 years of age in these cases.
Deputy Gay Mitchell referred to the fact that the Bill will not allow parents to claim the benefits of covenants to pay sums to children under 21 since tax legislation is excepted from its scope. This question raises important budgetary and revenue considerations that would be more appropriate for consideration in the context of a Finance Bill.
I have dealt with most of the points that were raised in that section of the debate. I am sure other points will come up on Committee Stage and can be dealt with there.
Deputy O'Dea, in a wide-ranging critique of the legislation suggested that we were simply copying the British in changing the common law rule for calculating age without giving any reasons why the change should be made. He was supported in this view by Deputy Kelly. The common law rule is being changed because it is considered to be illogical and contrary to commonsense that a person should be deemed to reach a particular age on the day before his birthday. There is no question of imitating British legislation. The Law Reform Commission recommended this change and I see no good reason for not accepting what I consider to be a sensible recommendation. Moreover, this change will bring the method of calculating age into line with the existing statutory provision in section 2 (2) (c) of the Social Welfare (Consolidation) Act, 1981, which provides that a person shall be deemed not to have reached any particular age for the purposes of that Act until the commencement of the relevant birthday.
On a similar note Deputy Kelly suggested that we were merely following the British example in changing the age of majority. He thought that this Bill would not be before the House if a similar change had not been made in Britain. Deputy Skelly in a somewhat similar point suggested that there had been no research carried out that would justify the proposed change.
The age of majority has been reduced, not only in Britain but in most Western European countries and in the majority of States in the USA. It reflects the widespread recognition throughout the western world that young people are nowadays reaching maturity at an earlier age. I would also remind the Deputies that the Council of Europe, of which this State is a member, recommended a reduction in the age of majority in their Resolution 29 of 1972 twelve years ago. Moreover, the Law Reform Commission considered this matter very thoroughly and had regard to the position in very many countries before reaching the conclusion that it would be appropriate to make the change now proposed in the Bill. Furthermore, the Joint Committee on Legislation who considered the report of the commission agreed with the proposal to reduce the age of majority to 18. It would be unfair to the commission to imply — and I would reject any such implication — that the result of their work is based solely on the example of another jurisdiction.
Deputy Kelly spoke at some length on the danger of encouraging young people to marry before they are ready to take on the responsibilities of married life. He thought that the Bill is ill-considered in so far as it might encourage people to marry too young. He pointed to the evidence that the age of marriage is related to the incidence of marriage breakdown.
I dealt earlier in my reply with the question of the age for marriage and the reasons why proposals in this area have not been included in the Bill, but I should like to refer briefly to the matter again in connection with the points made by Deputy Kelly.
While I would not agree that a change in the age of majority would have the result the Deputy suggests, he made a very impressive argument for dealing with any proposals regarding the appropriate age for marriage separately from this Bill. He has demonstrated that opinions can differ very much on this subject and that any proposals for changes in the age of marriage or the age at which consent would be required should be considered on their merits independently of the age of majority.
Deputy O'Dea asked when we could expect to see legislation on the commission's proposals in relation to marriage. This will be a matter primarily for the Minister for Health, who has responsibility for marriage laws.
Deputy Kelly asked if I had received any guarantee from the Irish banks that they would reduce the age at which they would lend money so as to achieve the objective I had mentioned of removing an obstacle in the way of young married couples seeking to buy a house. I accept the Deputy's assurance that he was not being sarcastic in making this point. All I can say in reply is that I have not received any such guarantee, nor indeed would I expect one or look for one. As the Deputy rightly remarked, there is no legal compulsion on a bank to lend money to anybody if the bank decides that he or she is not a good risk. Commercial considerations, other than the consideration of age, will of course always apply in these matters.
What we are doing in this Bill is removing one important legal obstacle in the way of lending agencies in dealing with young married couples. I hope that the result will be that it will improve the situation in this regard and that the finance institutions concerned will take account of the changed legal position in deciding whether to grant loans to young people for housing and other desirable purposes.
Deputy Kelly suggested also that the change in the age of majority might influence any decision as to the age at which contraceptives would be made available. There is no basis for this suggestion. It would not be appropriate for me to go any further into this question at this time except to say that I have no doubt that it will be very fully and thoroughly debated on its own merits when the relevant legislation is published.
Deputy O'Dea wondered whether the proposed commencement date of the Act, March 1985, would allow sufficient time for people to adjust to the change in the age of majority. This will depend to some extent on the length of time that the Oireachtas will need to enact this legislation. I would consider that this would be before the end of this session. This would allow a period of two to three months before the change takes effect. I think this should be adequate, but it is something that can be kept in mind as the Bill progresses.
Deputy O'Dea queried the exclusion of the Adoption Acts from the scope of section 2. I referred to this in my opening statement when I said that question of ages in relation to adoption had never been directly related to the age of majority and would be more appropriate for consideration in the context of the report of the Review Committee on Adoption Services. I would refer the Deputy to a reply to a parliamentary question given by the Minister for Health on 25 October 1984, which is reported at column 615 of the Official Report, where he indicated that he would be seeking Government approval to the drafting of a Bill to amend the Adoption Acts when examination of the report of the review committee has been completed.
Deputy O'Dea asked why the commission's recommendation that the age up to which parents should be legally obliged to maintain children should be raised from 16 to 18, was not being implemented in this Bill.
As I indicated in my opening statement it was considered that this is not a matter directly related to the age of majority and is not appropriate to this Bill. The Social Welfare (Consolidation) Act, 1981 provides, for the purposes of supplementary welfare allowances, that parents are obliged to maintain their children up to the age of 16. Any change in that would be a matter primarily for the Minister for Social Welfare.
The question of whether changes in tax or social welfare legislation would be made as a result of the changes in the age of majority was raised also by Deputy O'Dea. Any change in age limits in such legislation would be a matter for consideration in the first instance by the members of the Government with responsibility for those areas, having regard, no doubt, to the important financial and social implications involved.
It was suggested also by the same Deputy that a separate rule was being introduced in section 4 in relation to the attainment of the age for voting. He asked if there might be a conflict between the new rule for calculating age and the method of calculating the voting age. First, the section does not lay down any rule regarding the calculation of the age for voting. The voting age is provided for in the Constitution, Article 16. The references to voting age in electoral legislation reflect the constitutional provision. I am advised that there is a strong argument that this Bill could not purport to affect those provisions. Any question that might arise as to the interpretation of these references would have to be decided in the context of the references to age in the Constitution and without reference to this Bill.
Deputy O'Dea queried the necessity for subsection (2) of section 7 which preserves the existing construction of references to "full age", "infancy", "minority", etc. in wills or codicils made before the commencement of the Act notwithstanding that will or codicil is confirmed by a codicil executed after the commencement date. He made the point that under existing law extrinsic evidence would be admitted to clarify the intentions of a testator.
The position covered by subsection (2) relates to a will made before the commencement date but confirmed by a codicil made after it. Under the existing rule of law, construction of expressions in the will is determined by the date of confirmation rather than by the date of execution of the will. This would mean that construction of references to full age, etc., would automatically be construed as references to the new age of majority unless a saving provision were inserted. The purpose of the subsection is to ensure that the change in construction of references to full age, etc., brought about by the Act would not interfere with the construction of the will.
As the Deputy said, extrinsic evidence is admissible under section 90 of the Succession Act, 1965 to show the intention of the testator where there are references to full age etc., in the will and in the confirming codicil. What the subsection ensures is that the fact that the latter document was made on or after the commencement date of the Age of Majority Bill will not of itself decide the matter.
The question of why we are not repealing section 49 of the Statute of Limitations, 1957, as recommended by the commission, was raised also by Deputy O'Dea. He referred to the decision of the Supreme Court in the case of O'Brien v. Keogh, 1972, Irish Reports, page 144, to the effect that a provision, relating to extension of the limitation period in the case of a person under a disability, in section 49 of the 1957 Act was unconstitutional. The commission considered that repeal would be desirable in order to assist readers and compilers of indexes.
This was considered but I was advised that it would not be appropriate to include a repeal of the provision in a Bill of this kind and that it would be more appropriate to other legislation, for example, a Bill amending the 1957 Act, or to a Statute Law revision Bill.
Deputy O'Dea had other queries in relation to section 2 and paragraph 3 of the Schedule. As these concern matters of detail and drafting they might be more appropriately for Committee Stage.
I thank all those Deputies who have contributed to the Second Stage debate. As I have said, I intend moving a number of amendments on Committee Stage to meet points raised. One amendment which will be to the Schedule is of a technical nature. Another is to meet a point raised by Deputy Woods regarding the age of persons sent to prisons or to St. Patrick's Institution. A third amendment will be to enable the present situation to be maintained in respect of maintenance orders so that it will be possible for a court to issue a maintenance order that would apply to a person above the age of 18 but under 21. In that way there will be no disadvantage to young people of broken marriages who are in full time education and who otherwise might be cut off from their source of income while in the middle of their education.
The initial report of the Law Reform Commission suggested that we should maintain the present situation, but their final report recommended change. The original provisions in the Bill were along the lines of the final report, but in consideration of what was said here by Deputy Shatter, supported by others — I think this is the feeling of the House — I decided that we should maintain the present situation in regard to maintenance. Accordingly, I intend to move an amendment on Committee Stage to bring that about. I am sure I will have the support of Deputy Woods and his party.