Status of Children Bill, 1986 [Seanad]: Committee Stage (Resumed).


Amendment No. 17 is in the name of Deputy Shatter. Amendment No. 20 is related, and amendment No. 19 is consequential on amendment No. 20. I suggest, therefore, that we take amendments No. 17, 19 and 20 together, by agreement.

I move amendment No. 17:

In page 12, between lines 39 and 40, to insert the following subsection:

"(4) The Court shall not make a maintenance order under subsection (1) or (2) where an order has been made approving an agreement concluded between a mother and father under section 8B of this Act.".

Amendment No. 19, proposes that in page 13, line 28, the word "section" be deleted and substituted by the word "sections". Amendment No. 20 reads as follows:

In page 14, after line 12, to insert the following:

"8B (i) Where the parents of a dependent child who are not married to each other enter into an agreement by which provision is made for the payment of a capital sum by the father of the child to the mother of the child as a contribution towards the future maintenance and education of the child and/or by which any interest in any property or properties is conveyed to or for the beneficial use of such child and such agreement is stated to be in full and final settlement of the father's obligation to make maintenance support payments in respect of such child, such agreement may be approved by the Circuit Court or High Court upon application for approval being made to it if the court is satisfied that

(a) the agreement is fair and reasonable;

(b) the agreement is in the best interests of the child having regard to the circumstances of the child and the circumstances of the mother and the father;

(c) that the mother has entered freely into such agreement with a full knowledge of its consequences having obtained appropriate professional advice in circumstances in which the mother possessed the capacity to make a fully informed decision.

(ii) Where an order under this section is made approving an agreement, such agreement shall be made a rule of court and the order of approval shall bar the making of an application for a maintenance order for the support of the child under section 5A (inserted by the Act of 1987) of this Act.

(iii) Where a court declines to make an order under this section approving an agreement stated to be in full and final settlement of the father's obligations to make maintenance support payments, either party to such agreement may within 21 days of such decision (hereinafter referred to as the specified period) serve a notice on the other, (hereinafter referred to as a Notice of Recission) rescinding the said agreement and following the service of such notice neither party shall remain bound by any provisions contained in such agreement provided that neither party shall be entitled to reclaim any moneys already paid or any property already transferred pursuant to its provisions.

(iv) If no Notice of Recission is served within the specified period an agreement for which approval was declined as referred to in subsection (iii) herein shall remain valid and enforcable as between the parties to it but shall not act as a bar to the making of a maintenance application under section 5A (inserted by the Act of 1987) of this Act and after the expiration of the specified period application may be made under section 8A (inserted by the Act of 1987) of this Act by either party to such agreement for an order making the agreement a rule of court under the aforesaid section.".

Perhaps I might explain what this is about in non-legalistic terminology. Under the Legitimate Children (Affiliation Orders) Act, 1930, it is possible for an unmarried mother to enter into an agreement with the father of her child whereby a lump sum payment is made for the child, and the future support of the child. An application can be made to the District Court to approve of the agreement which has been concluded as a once and for all settlement for all financial claims which can be made on behalf of the child. If approval is obtained, that prevents the mother at a future date seeking an affiliation order.

The legislation we are dealing with here is essentially replacing the Affiliation Orders Act, 1930. It is providing a mechanism whereby unmarried mothers can, through court proceedings, obtain a maintenance order which, in this Bill, is another name for an affiliation order. This is an order which can be obtained against the father to require him to make weekly or monthly payments to the mother towards the child's support. Such payments can be made for child support until the child reaches 16 years of age or, if still involved in full-time education, until the child reaches 21 years of age. Under the Guardianship of Infants Act even if the child has ceased in education and is still dependent, the mother can get maintenance support payments up to the age of 21 years.

If this Bill is enacted the mother will be able to seek a maintenance support payment against the father to contribute towards the child's support until the child is 21 years of age. In the majority of instances mothers seeking support payments through the courts would look for such an order but circumstances do arise, in practice, where a child is born outside marriage, the father acknowledges he is the father of that child, or there have been court proceedings and a maintenance order is made against the father and subsequently the mother and father want to conclude a once-off financial arrangement. The mother does not wish to be tied to obtaining weekly or monthly payments from the father for 15, 16 or 17 years. Indeed she could be worried that the father might at some stage leave this jurisdiction and not comply with such order for that length of time. The father might acknowledge that he is the father of the child but he might have sufficient financial resources to wish to make a once-off payment to the mother to provide for the future well-being of the child. He may be in a position to make many thousands of pounds available or to transfer a property, such as a family home, to the mother.

In practice, over the years, I am aware of a number of cases where this has happened — mothers have required support from a father for a child. They have said they do not want to have an ongoing relationship with the child's father for 15 or 20 years getting support payments but would like a capital sum of money to invest for the benefit of the child or to be used to acquire a home. Indeed, I am aware of fathers who accept that they are the father of the child and are willing to make a full capital payment of some description rather than pay money every year.

The problem with the Bill is that the mother who wants a once-off payment, who sees such a payment to be in the child's and her interest, will not be able to obtain one. The reason is that a father who makes such a payment will not be able to obtain any legal assurance, even if he makes a very large payment or transfers a house worth £30,000 or £40,000 to be held in trust for the child, that the mother may not within a year look for maintenance support payments from him. The only circumstance in which fathers would make those payments would be if they had the security of knowing that the large payment they had made, or the property they had transferred, left them no longer liable to maintenance applications. Mothers will very often wish to obtain such payments where this is possible but the Bill prevents that happening.

It is important if mothers enter into agreements whereby they get a lump sum or property that they voluntarily participate in those agreements. It is important that the interests of the child are fully protected, that there is an assurance that a mother does not enter into an agreement for a small sum of money which prevents her at some future date getting the support payments that are necessary for the child. The amendments before the House are designed to deal with those problems and to create a mechanism whereby the mother and father of a child born outside marriage can enter into a once-off arrangement under which a large sum of money, property or properties can be transferred to the mother for the benefit of the child. The amendments propose that such agreement will have the effect of barring the mother from seeking support payments at a future date. Such an agreement could give a mother more financial security than she can ever have as a result of a court ordering periodic maintenance payments. They provide that for such an agreement to bar the bringing of court proceedings it is essential that mothers are not pressurised into concluding agreements that are against their interests or the child's interests and that they do not cut themselves off from court proceedings when such proceedings may be desirable in the interests of their child.

The amendments propose that it should be possible to enter into such agreements but for them to be a bar to court proceedings they must be submitted either to the Circuit Court or the High Court for approval. They also provide that such approval should not be forthcoming unless the court is satisfied that the agreement being entered into is fair and reasonable, that the best interests of the child are fully protected and that the mother is a free and voluntary participant in entering into such an agreement. They are designed to enable such agreements to come into being and such settlements to be concluded.

An obvious example of a circumstance in which a mother might want to conclude such an agreement is the mother who gives birth to a child outside marriage and some three or four years later marries someone who is not the father of her child. She may feel that rather than receive maintenance payments on a periodic basis for the next ten or 15 years, a situation that could create a great deal of tension and difficulty in the context of a marriage, it would be better to obtain a lump sum. The amendments would enable that type of sensible arrangement to be concluded. My view is that if it is in the interests of a child it should be possible to enter into such an agreement.

The amendments are carefully drafted to deal with a number of possible consequences. For example, what happens if the agreement is concluded and the court does not approve of it? Under these provisions a court may decide that the agreement was not bad but that the funds provided are insufficient or for some reason the agreement was not in the best interests of the child for the mother for all time to be barred or prevented from bringing a maintenance application. The amendment provides that such an agreement will have legal effect as a valid agreement when signed and approved by the court. If that approval is forthcoming that is the end of the matter, the agreement must be implemented and the bar on bringing proceedings in the future operates. If it is not approved by the court the couple may decide that, nevertheless, they want to implement its provisions. Financially they may see it as a sensible arrangement. The amendment provides that in those circumstances the agreement can be made a rule of court, not for approval as barring proceedings but a rule of court under the mechanisms currently available to ensure that any payments that would apply under it are enforceable in the normal way. If the couple do not want to abide by its terms, then within 21 days of a court refusing to approve the agreement as a bar to court proceedings either the mother or the father may serve notice on the other party rescinding the agreement and bringing it to an end.

The amendment is designed to cover a number of possible eventualities and to extend to couples the facility currently available to them under the affiliation orders Act. I have no doubt that there are a number of unmarried mothers who would wish to have the opportunity of getting a lump sum payment as opposed to having to get weekly or monthly payments for many years. There are many who would wish, if the father of their child is in a financial position to do so, to have the possibility of negotiating that, perhaps, a home be provided for them and their child instead of having to depend on weekly payments and live in rented accommodation. I make those statements as one who has worked in the area of family law for about 15 years. What I am suggesting is not hypothetical or designed for the purpose of debate in the House but to deal with a problem that arises. It should be said that the maintenance orders Act of 1976 has cast some doubt on the effectiveness of a court approving an agreement concluded under the 1930 Act preventing future proceedings. Nevertheless, some agreements have been concluded since then.

My amendments are designed to provide additional protection for children, to ensure that the maintenance provisions in the Bill as drafted provide the most appropriate mechanisms possible to assist children and mothers of children born outside marriage. They are designed to ensure that where a mother has the possibility of getting some degree of financial security for the future in the context of funding for her child will have the opportunity of getting greater and certain security which a court order cannot offer. The legislation we are enacting will not act as an impediment to her obtaining such security.

I hope, though everything that has happened this morning would indicate it might be a vain hope, that the amendments will be accepted by the Minister. I have no doubt that the Minister's officials have given him many reasons why he should not accept them but I ask the Minister to accept that the amendments have been drafted in the light of knowledge of a practical nature of the real problems that confront unmarried mothers and children when they seek support payments. They are designed to deal with an eventuality that is not provided for in the Bill and to remove an impediment that the Bill seeks to copperfasten by rendering it virtually impossible for mothers and fathers to conclude agreements which can for the future be regarded as a once-off agreement fully and finally dealing with financing support payments required for a child born outside marriage.

I also support Deputy Shatter's amendment as it contains the safeguards we would be looking for to the extent that the mother of a child would not be exploited in any way, that she would have professional advice and the choice to make a decision which at that time in her life could have tremendous implications in regard to the security of herself and her child. Deputy Shatter referred to two situations where this would be highly desirable, the provision, for instance, through that lump sum of a family home where ordinary maintenance payments might never allow the mother and her child a home other than rented accommodation. We can also all readily recognise the other situation where the marriage to another partner takes place and where unnecessary friction or tension might be avoided by such an agreement.

There is a third situation which springs to mind and which will ensure the greater economic independence of a mother and child by an agreement to such a payment with the full safeguards. It would perhaps give an opportunity to the mother for further training or enlargement of a career which she would never normally, under a small maintenance agreement, be able to exercise. By getting a lump sum, she might be able to develop a career which would mean that she and her child would have much more independence and security. With the safeguards contained in Deputy Shatter's amendment, the Minister should look favourable on it.

In supporting this amendment I borrow the arguments the Minister used against the previous two. This is certainly the place in which we should be discussing this proposal as it is very practical and good. I should like also to remind him of the first two lines of the long title of the Bill where we are trying to equalise the position in regard to children born outside marriage so that they will have the same rights as children born inside marriage. Children within marriage have available to them, or to the parties to any proceedings in maintenance or otherwise in winding up a marriage, the opportunity of getting a lump sum. I cannot understand why the same is not made available, as an option, for the settlement of maintenance in relation to a child born outside marriage.

The substantive amendment in this group is amendment No. 20 which, in effect, proposes a replacement provision for the provisions in the Illegitimate Children (Affiliation Orders) Act, 1930, which enable a father to buy out his continuing obligations to make periodical payments towards the maintenance of his child by means of a lump sum payment. The amendment has clearly been carefully prepared by the Deputy.

The Bill as it stands does not contain any provision for lump sum maintenance payments; the provision in the 1930 Act will lapse with the repeal of that Act by section 25 of the Bill. The thinking behind this is that there is no similar provision in existing legislation whereby a spouse can divest himself or herself of the continuing obligation to maintain a dependent child of the family by the payment of a lump sum; to replace those provisions of the 1930 Act, whether it be on the lines proposed in these amendments or by adopting some other approach, would give rise to an anomalous situation between dependent children of the family on the one hand and dependent children of parents who have not married each other on the other.

This leaves two alternative possibilities: either have no provision at all, as in the Bill as it stands, or else to have some system whereby all parents, whether spouses or not, could discharge their maintenance obligations by one-off payments, which raises serious issues of principle, particularly in relation to married parents. That is not to say that the broader approach cannot be considered: it might well be that some such approach to settling maintenance problems, particularly in the context of judicial separation, could prove fruitful.

However, this involves general issues beyond the scope of this Bill. In these circumstances, I am opposing the amendments. I would point also to the anomalies in amendment No. 20 which contemplates such matters as property settlements by the father on the mother, but not by the mother on the father, who might be the parent obliged to care for the child. I am of the view that the subject matter of these amendments is more appropriate for consideration in the context of maintenance law in general rather than a Bill dealing with the status of children.

Under present law, it is open to spouses to agree between themselves that one should pay to the other a lump sum which may be understood by both parties to be a substitute for periodical maintenance payments, whether for spouses or children or both. This can be made a rule of court under section 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976. But such an agreement cannot rule out the possibility that, if circumstances change, either spouse can apply for a maintenance order against the other.

One of the effects of this Bill is to enable an exactly similar type of agreement to be made between the parents of a child who are not married to each other for the maintenance of the child. It can be made a rule of court in the same way under the proposed section 8A of the 1976 Act, being inserted by section 20. Likewise, if circumstances change, it will be possible for either parent to apply to court for a maintenance order.

It may be that there is scope for further argument as to the principle of the ordering of lump sum payments in lieu of maintenance in the context of the maintenance obligations of married couples. I would suggest, however, that that question would be appropriate to a Bill dealing with the general maintenance code and not to this Bill which is essentially concerned with assimilating the legal rights of persons born outside marriage to that of persons born within marriage.

The Minister appears to be saying he agrees that this is a power currently existing in the 1930 Act that mothers still avail of but because it does not apply to married couples we should deprive unmarried mothers of this provision. I understood we were dealing with a Bill which was not only trying to equalise the position of children born outside wedlock but trying to improve that position and seeking to ensure that some degree of financial security was provided for them.

This Bill deals with a number of different matters relating to maintenance. The Minister previously indicated that this Bill is not about the amounts of maintenance but section 21 is about allowing various orders of a financial nature to be made in respect of expenses incurred ancillary to the birth of children, etc. I agree that there is a need to look at the whole area in regard to spouses and the possibility of lump sum agreements being concluded because circumstances arise between husbands and wives when marriages break down where the husband wants to make a large lump sum payment to the wife and where the wife wants to receive it so that she will have, as Deputy Barnes correctly described, some degree of economic independence. However, those agreements cannot currently be concluded.

If the Minister does not accept my amendment, this Bill, by repealing the provisions of the 1930 Act, is putting unmarried mothers and children in a worse position in some respects than they are in under current law. The Minister is depriving unmarried mothers and children of the possibility of a degree of security which they have under current law. The 1930 Act has been with us for 57 years and during that time mothers have been able to enter into these kinds of arrangements even though spouses have not been able to do so since 1976.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.