I should like to remind the House that it was agreed to take amendments Nos. 33 to 54, inclusive, and 56 and 57, being related, together.
Status of Children Bill, 1986 [Seanad]: Committee Stage (Resumed).
Immediately before reporting progress on the last occasion when we were debating this Bill, I had reminded the House that what we were discussing on these amendments has as much to do with biological facts as with questions of law. It is no harm to go over those facts again.
I am advised that, in theory, DNA profiling can be carried out on any cells of the body which contain DNA. The tests may be carried out on cells from any part of the body, including for example skin tissue, muscle tissue, lung tissue, liver tissue or blood; any cell taken from a person's body which contains genetic code material will have the same code as any other cell taken from any other part of the same person's body. The tests cannot be performed on such bodily secretions as perspiration or urine, since these are non-cellular and do not contain — except possibly by chance — cells which carry the genetic code material on which the tests are carried out. Techniques have been developed which enable DNA profiling to be carried out on blood samples, semen samples and samples of vaginal secretions, and no doubt further techniques will be developed using samples from other parts of the body as the need arises. However, I understand that, if skin cells were to be used for this purpose, the taking of a sample of sufficient size to provide a satisfactory quantity of suitable material would involve surgery. Simple scraping of the skin, which was mentioned by some Deputies, will produce mainly dead cells in which the DNA will have degenerated, and taking a sample in such a fashion is not satisfactory for any of the techniques of testing for parentage purposes.
The taking of a blood sample, on the other hand, is satisfactory for all known techniques of biological testing for parentage purposes. It is a substance which is regenerated naturally by the body, without the creation of scar tissue that skin sampling would involve; and it involves minimal discomfort and risk to the person giving the sample.
We must bear in mind that, in this part of the Bill, we are giving a court the power to direct that a blood sample be given — in other words, that a court offers the person the alternative: either allow your bodily integrity to be interfered with, or else run the risk that an adverse inference be drawn against you regarding the parentage of a child. The minor infringement of bodily integrity that is involved in the supplying of a blood sample is clearly justified in such circumstances. But the effect of Deputy Shatter's amendments is that the court would have the power to direct the taking of samples of organs of the body by surgical procedure, or the taking of samples of appropriate bodily fluids other than blood. I do not think that the giving of such powers to the courts is justifiable; I have already shown that it is unnecessary.
Much of the debate on these amendments has been coloured by an assumption that the courts would interpret the expression "blood test" as somehow not applying to DNA profiling. This assumption is absolutely unwarranted, and flies in the face of both the biological facts and the plain language of the definition in section 41 of the Bill. The expression "blood test" is defined as any test carried out under the provisions of Part VII of the Bill and made with the object of ascertaining inheritable characteristics. As I have already said, all types of testing for parentage can be and are carried out on blood, including serological analysis, enzyme analysis, tissue typing and DNA profiling. It is quite clear, therefore, that all these tests are covered in the definition. Faced with that plain language, I cannot see how any lawyer could advise a client to waste time and money trying to persuade a court otherwise.
Despite what the Minister said, it seems he had moved part of the way from where he was the last day. The points I was making in favour of the amendments tabled are that they refer to blood tests and that the means used to determine paternity have moved on from the concept of blood testing to genetic testing, DNA fingerprinting, to which the Minister correctly referred.
DNA fingerprinting can be derived from the taking of blood but also from skin tissue. I never heard anyone suggest that it would be necessary to remove a bodily organ for skin tissue testing to be used in this context. There is a method for preserving a skin scraping, scientifically used, which does not require anything other than a scraping of the skin on the inside of the hand which preserves the skin and allows testing to be carried out. I regret that the Minister should seek to exaggerate the powers the courts would have conferred on them by the amendment I tabled. I am anxious to ensure that the courts have powers to enable the most modern scientific techniques to be used for the purpose of determining paternity and it seems quite clear that in the manner in which this is dealt with in the Bill and in the reference to the taking of blood samples and blood tests, it is not wide enough. The concept of bodily samples which I am seeking to replace with the definition of blood samples refers to the taking of a sample of bodily fluid, which will include blood or bodily tissue.
A similar provision was introduced by the Family Law Reform Act, 1987, to English law and it did not give rise to any controversy. My amendment is on the lines of that legislation and the provision in the Act to which I referred was introduced because the then English legislation which enabled the carrying out of blood tests did not include the type of scientific testing that DNA fingerprinting can give. Contrary to what the Minister said, it is clearly arguable under this Bill by someone alleged to be the father of the child that the court can only require him to undergo the conventional type of blood testing and that DNA fingerprinting does not fall within that ambit. The Minister's interpretation and mine might eventually have to be decided by the Supreme Court. The job of this House is to ensure that there is no ambiguity in the legislation we enact. If the Minister accepts that it is in the interests of children generally that this power for DNA fingerprinting be extended to the courts, I do not understand why he will not accept the amendment I tabled. I never heard it suggested — certainly not in the Parliament at Westminster or in any other legislature where they have tried to update the law in this area — that an amendment of this nature would allow the courts to order the removal of organs from somebody's body. It is an extraordinary argument to introduce at this stage as it does not fall within the context of the amendment which is very carefully drafted. What is important is that the courts should be able to use the modern techniques of genetic fingerprinting to determine paternity disputes.
I urge the Minister to accept this amendment as his arguments are not tenable. The Minister has shifted his position from last week as he clearly referred to DNA fingerprinting and genetic testing. If it was the intention in the Bill originally to cover this area — and I do not believe it was — it would have been possible for an amendment to have been tabled by the Minister which referred expressly to genetic fingerprinting and DNA testing.
Other scientific techniques may be developed in future of an even simpler nature. The problem with the Bill is that the taking of a blood sample is the only mechanism that can be used. A tissue scraping might be a good deal less dramatic for many people and a lot simplier. The way these techniques are developing, within a very short time the necessity to use blood sampling will have ceased. By incorporating my amendment, we provide for the taking of blood samples, for the use of tissue and ensuring that the courts can require the DNA or the genetic fingerprinting test to be used to determine paternity disputes.
The Minister is correct in saying that this Bill is, for the first time in the area of paternity, extending to the courts the power to order blood tests. Someone who does not co-operate in those blood tests or in the testing I have described can have a presumption drawn against them by the courts. Tests of this nature are not unique. We provided legislation to have certain tests in the road traffic area many years ago. It is only in this area that anyone has regarded it as a matter of controversy. As it is now agreed that such testing should be provided for, we should provide the best legislative mechanism for it to ensure that no ambiguity or difficulty arises from it.
I am disappointed and indeed dismayed at the Minister's response. I would have thought that the Minister would have looked more closely at the proposals put forward in the body of these amendments. From what the Minister said this morning he agrees with the position advanced by Deputies seeking to advance the cause of these amendments because he has admitted that scientific tests and the improvement of DNA will develop and that there will no doubt be improvements to the process in time. For that reason we are supporting the notion that the limitation of the tests within the Bill as it stands should be broadened away from the narrow ground of blood alone to the wider prospect by including the words "scientific tests" as is suggested.
We must recognise that DNA finger printing has developed to the extent where it is far more revolutionary and expansive in its achievement than the previous 100 years of genetic investigation. We have made more progress in the last decade in this area than scientists had managed in the previous 100 years. The development of this type of work is progressing at such a rate that the whole process of genetic fingerprinting will improve and in addition there will be a far greater number of areas of scientific identification available to us. The amendments are seeking to leave the Bill in such a way that courts can avail of scientific development as it progresses. The Minister in his earlier remarks accepts that and I cannot understand why he cannot accede to these sensible amendments.
The Minister seeks to pour cold water on what has been suggested here by introducing the notion of surgery as the only means of taking samples necessary for this kind of work. That is not the reality. In April 1986 I attended a conference in Glasgow organised by the International Association of Forensic Scientists where it was made clear that even a minute sample of tissue, or of other bodily substances necessary to carry out this type of testing would be sufficient. To suggest that a person would be subjected to surgery is extremely ridiculous and I hope the Minister will correct that impression before he departs from this House. The state of the arts at the moment clearly indicates that we do not need anything of the drastic nature the Minister indicates.
The Minister referred to giving undue powers to courts. These are matters that will be decided by judges appointed under the Constitution and they have a duty to uphold the bodily integrity of all persons, including litigants before the courts. To suggest that giving this type of power to our courts would encourage them to head off in a surgical attack upon the bodily integrity of our citizens is ridiculous.
I am not sure what part of the body the Deputy thinks they will remove.
Under the law members of the Garda Síochána with no surgical experience are empowered to remove samples from the body of a suspect. Under the Criminal Justice Act of 1976 a suspect, detained for the purposes of a garda inquiry can have scrapings removed from his hands or finger nails by the Garda Síochána. We have already referred to the road traffic legislation and the powers of the garda, assisted if necessary by a general practitioner attending at the station, to take samples for the purposes of prosecution. Are we suggesting that the certain establishment of the paternity of a child born out of wedlock is something less important than the investigation by members of the Garda Síochána of a road traffic offence or a crime. It is important to point out that members of the Garda Síochána currently have powers to deal with persons who are only suspected of crime, powers equivalent to those we are asking the Minister to bestow on courts administered by judges who have a constitutional duty to uphold the bodily integrity of persons? I cannot give any credence to the Minister's suggestion that the acceptance of this amendment would give powers far beyond what we as legislators could envisage that the courts should have. For these reasons the Minister, if not in a position to respond positively now, should at least agree that the matter should be looked at afresh by him and his officials before Report Stage and the ridiculous suggestion advanced here that we need a surgeon to deal with this type of activity should be cleared and the Minister should not introduce exaggerated claims simply to try to win a point in the course of this debate.
I am satisfied that the existing provisions are more than adequate and I regret that I cannot accept the amendment.
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Cowen, Brian.
- Daly, Brendan.
- Dempsey, Noel.
- Dennehy, John.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Noonan, Michael J. (Limerick West).
- O'Donoghue, John.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Walsh, Seán.
- Woods, Michael.
- Wright, G.V.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Birmingham, George.
- Boland, John.
- Boylan, Andrew.
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Connaughton, Paul.
- Cooney, Patrick Mark.
- Cosgrave, Michael Joe.
- Creed, Donal.
- Deasy, Austin.
- Deenihan, Jimmy.
- Desmond, Barry.
- Donnellan, John.
- Doyle, Avril.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Gregory, Tony.
- Griffin, Brendan.
- Harte, Paddy.
- Hegarty, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Hussey, Gemma.
- Kavanagh, Liam.
- Kelly, John.
- Kemmy, Jim.
- Kenny, Enda.
- McCartan, Pat.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Mitchell, Jim.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Keeffe, Jim.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Shatter, Alan.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeline.
- Yates, Ivan.
I move amendment No. 55:
In page 26, subsection (2), line 6, to delete "if any person named in the direction fails" and substitute "if any person who has made a application under section 38 and who is named in the direction fails without good reason".
This is an amendment proposed to subsection (2) of section 45 which is a section which deals with the legal position if someone fails to comply with a court direction with regard to undertaking blood tests. It would seem that there is a fundamental problem with subsection (2) as it is currently drafted. It reads as follows:
Where in proceedings on an application under section 38 of this Act a court gives a direction under section 41 of this Act for the taking of blood samples then, if any person named in the direction fails, within such period as may be specified by the court, to take any step required of him for the purpose of giving effect to the direction, the court may dismiss the application. The amendment I have tabled is:
To delete "if any person named in the direction fails" and substitute "if any person who has made an application under section38 and who is named in the direction fails without good reason”.
The reason for this amendment is as follows: this Bill seeks to provide a methodology whereby blood testing can be carried out to assist the court in determining paternity.
If a person who is alleged to be the father of the child fails to comply with the court direction with regard to blood testing, the court can reach a conclusion and take that into account with regard to the allegation that somebody is the father of the child. It is clearly correct that if the court requires the mother of the child to participate in such tests as are necessary for these tests to have any validity, and if the mother is the applicant seeking to determine paternity for the child or if the child is seeking to determine patentage and the court orders the child to participate in such testing, if the child or the mother fails to participate in such testing as the applicant in the proceedings, it would seem correct that the court should be entitled to dismiss the application. This is a very strange section because it appears to say not simply that but that if the court orders somebody alleged to be the father of the child to participate in testing and if that person fails to do so, the court can dismiss the application. I am sure that that is not the intention of the original drafter of this Bill but that is the way the Bill reads. It is a very peculiar provision to put into the Bill because on the one hand you are saying within the body of the Bill that if somebody does not comply with the court direction the court can draw a conclusion from that with regard to paternity. On the other hand, you are saying that if he does not comply the court may dismiss the proceedings brought against him.
It would seem that the clear intent of this provision is to confer a discretion on the court to dismiss proceedings brought by an applicant seeking to determine paternity where the applicant does not comply with the court direction with regard to blood testing. My amendment seeks to confine the court's discretion to dismiss the proceedings to that, by saying that if any person who has made an application under section 38 and who is named on the direction fails without good reason, within such period as may be specified by the court, to take any step required other than for the purpose of giving effect to the direction, the court may dismiss the application. That is a commonsense and sensible amendment and I would ask the Minister to accept it in the interests of ensuring that this legislation is as good as it should be in its operation. It is as simple and as basic as that. Perhaps the Minister would indicate to the House whether he would be willing to accept the amendment as tabled.
This amendment is opposed. Deputy Shatter has said his intention is to confine the court's discretion. This amendment would indeed limit the discretion of the court to dismiss an application for a declaration of parentage in a case where there is a failure to comply with a blood test direction.
Subsection (2) contains a special provision which applies where a blood test direction has been given by the court in proceedings on an application for a declaration of parentage under section 38 of the Bill. Because of the fact that proceedings for a declaration of parentage are less likely, in general, to be adversarial, it is likely that the unavailability of blood test evidence due to the refusal of a person to take a step necessary for fulfilling a blood test direction could leave the court in an unsatisfactory position. The court could be left with some evidence tending to establish the applicant's case, but might consider it unsafe to make a declaration in the absence of blood test evidence. Subsection (2) therefore gives the court the option of dismissing the application for a declaration of parentage where material blood test evidence is not being made available to it because of the failure of someone to take a necessary step. This provision is designed not to penalise an applicant, but to safeguard the court.
To limit the discretion of the court by providing that only where the applicant fails to comply with a blood test direction can the court dismiss the application would, in my view, run the risk of exposing the court to the situation which the subsection as it stands is designed to avoid. It does not much matter that a person, be it the applicant or someone else, has good reason for not complying with a blood test direction; the important consideration for the court, in deciding whether to exercise its discretion in such a case, is whether the evidence that it has before it is enough, in the absence of blood test evidence, to warrant the making of a declaration. This discretion should not be unduly fettered; and the amendment is opposed for that reason.
It is important to bear in mind that the special procedure provided for at Part VI of the Bill is designed to enable a person to obtain a court declaration as to his parentage where no other relief is being sought at the same time. Where the question of a person's parentge arises in, say, guardianship or maintenance or succession procedings, then the court hearing those proceedings may, as under present law, determine the parentage issue for the purposes of those proceedings, without having to invoke the special Part VI procedure. I say this in order to assure Deputies that the general run of court decisions on parentage will not be affected by this provision at all. It will only apply to the rare case where a person seeks a declaration of parentage and nothing else; and then only if the evidence is of the unsatisfactory nature that I have outlined.
It seems that there are two contradictory sections here. Subsection (1) of section 45 says:
Where a court gives a direction under section 41 of this Act and any person fails to take any step required of him for the purpose of giving effect to the direction, the court may draw such inferences, if any, from that fact as appear proper in the circumstances.
Presumably if the direction is given to somebody alleged to be the father of the child to undergo blood tests and he refuses to undergo blood tests, in drawing what inferences appear proper in the circumstance the fact that the person has refused to co-operate in the carrying out of blood tests would properly lead a court to the inference that that person knows that he is the father of the child.
Subsection (2) is contradictory. It goes on to say that the court should not draw inferences but can dismiss the proceedings. Instead of facilitating the determination of a parentage application this will confuse the matter considerably.
I regret that the Minister's response is typical of the manner in which all amendments brought before this House on this Bill have been dealt with, that is, that you think of an esoteric reason which has no relevance in reality for opposing practically every amendment that could improve this Bill in its working mechanisms. I am quite certain that subsection (2) is incorrectly drafted. It is incorrectly drafted in a dangerous way in that its content waters down the content of subsection (1) which is an intent to create a situation where somebody alleged to be the father of a child and who does not co-operate in the carrying out of tests has some pressure to co-operate imposed on him. It would seem that what this subsection does is put a person alleged to be the father in a position in which he could refuse to participate and co-operate in the carrying out of tests and then tell the court that because he did not participate in the carrying out of such tests, despite the fact that these allegations are made against him, the court should now dismiss the application. That is what it boils down to.
In effect, subsection (2) undermines the entire structure of this part of the Bill with regard to the provision of blood tests to determine parentage in civil procedings. It is a small subsection, but it undermines the entire foundations of the proceedings laid down in this Bill for the carrying out of blood tests. It renders completely incomprehensible subsection (1). In effect, it places the mother of a child who is seeking to establish paternity or the child itself seeking to establish parentage in an impossible legal position. No credibility can be given to any of the reasons which the Minister has given for not agreeing to this subsection. It amounts to the usual thing in this House, which is, that Ministers feel that their ministerial prerogative might in some way be invaded and that their political masculinity might be attacked if they accept a simple legal amendment to improve the Bill and to implement what are supposed to be the intentions of the measure before the House.
At least on this amendment, whatever about the other ones, I had hoped for a more constructive approach. We live in hope that such an approach might eventually permeate the walls of this Chamber in dealing with legislation on Committee Stage. It is my intention to put this amendment if it is not accepted and I will do so because this particular subsection unamended undermines the structure of this Bill in regard to blood testing.
I support the amendment which has been advanced. It would seem that the parliamentary draftsmen having got this far into the Bill began to nod and what appears to have happened is that the wording of subsection (1) has been repeated in subsection (2). If anything, the subsection as it stands is an ass and it does not make the slightest bit of sense. I ask the Minister to reconsider this subsection. If the Minister does not recognise the ridiculous conclusions which could be drawn from the subsection it is a matter which we will have to pursue on Report Stage.
To re-echo what has been said, a person who wishes to contest or resist an application under section 38 could within the terms of this subsection seek a dismissal of the application by refusing to co-operate with a direction. I am sure that that was never the intention when this section was drafted. I believe what has happened is that the wording of subsection (1) infected its way into subsection (2) and it is a matter which could be tidied up by the Minister before Report Stage. We should compromise on this matter as clearly there are not enough Members present in the House to put amendments successfully. Perphaps what we could do is to have a fresh look at this matter before Report Stage.
The advice we have received indicates that the subsection is correct and that it will, in effect, only apply in the rare cases where a person seeks a declaration of parentage and nothing else and then only if the evidence is of an unsatisfactory nature as I outlined earlier. The two subsections are not contradictory but complementary. Subsection (1) would apply in all cases where the question of parentage arises. I emphasise that subsection (1) would apply in all cases. On the other hand, subsection (2) is designed to apply only in the special circumstances where a declaration of parentage is sought using the special procedures in Part VI when it is more likely that there will be no proper contradictor to the application for a declaration. As I have said already, it is designed to ensure that in such cases the court would not be put in the position where it may have to make a declaration on the basis of unsatisfactory evidence. The amendment which the Deputy proposes would limit the discretion of the court, as the Deputy rightly recognised. Consequently, it is opposed.
I am afraid what the Minister has said makes no sense at all because at the end of the day a court will have to make a decision as to whether the person is or is not the father of a particular child. The amendment which I seek to make would not limit the discretion of the court either to accept or reject the evidence which would be presented. It would simply limit the court's discretion to dismiss proceedings purely because someone who would be alleged to be the father of a child refuses to co-operate in carrying out tests. We sometimes like to pretend in this House that things operate in a way they do not. We like to pretend that the Minister is the font of all knowledge and Ministers by their nature also like to pretend that they are. As the Minister has said, the reality is that he is acting on the advice which he has received and I suggest with respect that the advice which he has received is somewhat limited in its understanding of this provision.
Not to delay this House in dealing with other sections I am prepared to defer putting this amendment to a vote until Report Stage if the Minister is willing to give me a commitment to have another look at this subsection but if on Report Stage the Minister does not come back with an amendment to this subsection along the lines of the one I am proposing I will certainly put the matter to a vote. If the Minister is willing to give me a commitment that he will have another look at this section, to cut out some of the parliamentary jargon and that he will arrange for his officials to have another look at it to see if it will work in the way they are currently advising him I am prepared to withdraw the amendment and refer to this matter again on Report Stage.
The Deputy has heard the views of this side of the House and he will have an opportunity to consider them between now and Report Stage. I will convey his views to the Minister and ask whether he wishes to consider the matter further before Report Stage and whether he would consider it further on Report Stage but apart from that I can give no further commitment at this stage.
If the Minister agrees to reconsider it before Report Stage I will not formally put the matter to a vote now.
Amendment No. 56 has already been disposed of.
Amendment No. 57 has also been disposed of.
I move amendment No. 58:
In page 27, subsection (1), lines 4 to 8, to delete
"admissible in evidence in any subsequent civil proceedings for the purpose of proving that that person is or, where not alive, was a parent of that child:
Provided that no finding or adjudication as aforesaid other than a subsisting one shall be admissible in evidence by virtue of this section.",
"a presumption that that person is or, where not alive, was a parent of that child unless the contrary is proved in any subsequent civil proceedings on the balance of probabilities:
Provided that no finding or adjudication as aforesaid, other than a subsisting one, shall be admissible in evidence by virtue of this section.".
The purpose of this amendment is a very simple one in that it deals with the question of evidence in court proceedings. It seeks to avoid, where it is reasonable to raise the presumption, the necessity of having to go to court. As it stands, the section states that where there has already been a finding of parentage in civil court proceedings — in other words, where a court has already made a finding of parentage — that that finding is merely admissible in evidence in subsequent legal proceedings. It is evidence, and no more, of parentage in subsequent legal proceedings.
Subsection (2) goes on to provide that where evidence that a person has been found or adjudged to be a parent of a child in subsequent proceedings then that person — unless the contrary is proved — shall be taken to be a parent of that child. In other words, it sets up a presumption in subsequent legal proceedings. The purport of the amendment I have tabled is to say: why bring on the person concerned the necessity of having subsequent legal proceedings at all? There is already a finding of parentage by a court. In my view that should set up a sufficient presumption, to say to any person who wishes to challenge it that if they do challenge that then they must bring the proceedings. There has been some tendency in this Bill to produce too much need for legal proceedings. These should be avoided unless absolutely essential.
The Law Reform Commission Report examined that point also. I have referred to the Report on Illegitimacy, LRC4 — 1982, page 88, paragraph 203 where they say:
An important question as we see it, is that of proof. It should be open to anyone with a proper interest to seek to establish the parenthood of a person. But our law could greatly assist the determination of the question if it set out realistic evidential rules, including legal presumptions, designed to ensure that common-sense prevail and that the delay and trouble associated with largely unnecessary applications for judicial declarations be, as far as possible, avoided.
Here is a set of circumstances in which common sense says this: there has already been a court finding of parentage. That should be a presumption of parentage unless any other person goes to the trouble and expense — which they probably cannot afford to do in the first place — of seeking a rebuttal of that previous court finding. That is a commonsense suggestion. I would ask the Minister to seriously consider it.
This amendment is opposed. It proposes to set up a presumption that the person who is found to be the parent of a child in earlier proceedings of the kind mentioned in subsection (1) is the parent. This would replace the existing provision to the effect that the finding in the area of proceedings shall be admissible in evidence in subsequent civil proceedings. Indeed, the Deputy made that quite clear in what he has said. Subsection (1) provides for the admissibility as evidence in court proceedings of a decision arrived at in earlier proceedings. Subsection (2) sets out the probative value to be attached to the earlier finding and would have no relevance to a presumption, as proposed in the amendment.
The section is concerned with technicalities of the law of evidence and has been drafted with considerable care. I would be very reluctant to make any changes in the law unless they can be shown to have distinct and worthwhile advantages. In the drafting the two parts of the section are mutually interdependent. Consequently, the acceptance of this amendment would cause a certain amount of difficulty.
I should point out that the same effect as that intended to be achieved by the Deputy's amendment can be readily brought about under the provisions of the Bill as it stands. If a person is named as the father of a child in a court order in respect of proceedings of the kind mentioned in subsection (1) then that order, or a certified copy thereof, can be produced to the Registrar of Births. That enables the registrar to enter the name of the father on the births register under either the new section 7 (2) (d) or the new section 7A (1) (d) or the 1880 Births and Deaths Registration Act. These are at section 52 of this Bill. In turn, this entry of the father's name on the register gives rise to a presumption that that man is the father. That is provided for at section 49(3) of the Bill. Perhaps that will meet the Deputy's point.
I support the amendment Deputy Taylor has tabled and it would appear to me that the Minister does also. We have just had a circuitous argument as to why the amendment is not necessary. The circuitous argument is that one gets a court order, one then goes and registers it and, when one registers it, the presumption arises anyway. Why the provisions of the Bill cannot stipulate that the presumption arises in the form of the amendment Deputy Taylor has tabled totally escapes me. In other words, what the Minister is saying is that the court order, as the section is currently phrased, is merely admissible in evidence but that if after issuing court proceedings someone goes off and registers the court order through the Registry of Births it then becomes a presumption.
Therefore, I do not understand why the amendment has been tabled, just as I did not understand why some of the previous amendment could not have been accepted. This is even less logical because what the Minister said at the end of his comments is that really the provisions of the Bill do what Deputy Taylor wants them to do. Why can we not enact legislation that is clear? There is no additional judicial process in the registering of a court order in the Registry of Births. The court decision has been taken. Patently this section should incorporate the presumption that Deputy Taylor seeks to incorporate into it by way of the amendment he has tabled.
The Minister raised the question: is there any worth while reason for putting down the amendment? The reason for tabling it is very simple, to bring a sense of logic into this Bill. Otherwise we will be left with contradictory sections in two different parts of this Bill. I can well imagine a court looking askance, raising its eyebrows, asking what kind of legislation we are enacting here. On the one hand, we are saying that an earlier court finding of the type mentioned in subsection (1) is no more than a matter of evidence to be tendered but, on the other hand, we are saying that it earlier court finding of the type mentioned in subsection (1) is no more than a matter of evidence to be tendered but, on the other hand, we are saying that it raises a presumption if, in a later section, it is reflected in the registration of a birth. That is a contradiction. Either it is a presumption or it is not a presumption. If it is raised as a presumption in the later section to which the Minister refers, how can it be a matter of evidence only in this section? There is a contradiction there. It would be in the interests of all sides of the House that we produce legislation that is consistent and logical. In any case why not accept the recommendation of the Law Reform Commission and take a common-sense view to avoid the necessity for legal proceedings when they are not required?
Subsection (2) would go on to say that if this previous court order is tendered to the court, and if there is no other evidence, the presumption is raised there anyway. There appears to be a sort of wish here to promote business for the legal profession. I suppose that has merit, speaking from a personally biased point of view. However, it is not in the public or national interest that legal proceedings should have to be engaged in unnecessarily, particularly when most people cannot afford to indulge in them and when the Minister and the Government obviously have not the remotest intention of providing an adequate legal aid system to enable them to do just that. Why not remedy this contradiction in these two sections if a previous court finding sets up the presumption under the registration of births then it must raise it here also. Otherwise it will look very peculiar and it will be a strange looking Act when it comes into force.
As I said, it is a very technical question in relation to the evidence. It is largely a technical drafting question and I am advised that the method is used elsewhere, that it is not uncommon. Nevertheless, I am prepared to have it examined and to inquire along the lines suggested by the Deputy before Report Stage since it is principally a technical matter.
I accept that and I withdraw the amendment.
I move amendment No. 59:
In page 27, before section 49, to insert the following new section:
49.—Where a woman gives birth to a child she shall be presumed to be the mother of such child and this presumption shall be irrebuttable.
This portion of this Bill deals with various presumptions that arise with regard to parentage which will assist in the establishment of parentage in the event of a court dispute or proceedings in court. All of the presumptions as they stand are based on determining paternity and none of them is based on maternity. The reason is that it would have been assumed until relatively recently that there could be no dispute as to who is the mother of the child. However, medical science has become somewhat more complicated than that nowadays. Children can be conceived and born in a variety of ways. One way which has received considerable publicity in recent months is birth as a result of test tube fertilisation. In such circumstances the embryo can be implanted back into the original donor of the ova which gave rise to the creation of the embryo. In a simple husband and wife case the husband and wife might donate the sperm and ova which are test tube fertilised and then returned to the body of the wife.
The possibility of surrogate motherhood has not been discussed in the House yet in any detail. Surrogate motherhood can involve the use of sperm and ova in test tube fertilisation then being implanted not into the original donor of the ova but into a third party surrogate. A great deal of publicity was given recently to an instance in another country where it was alleged that a grandmother had given birth to her daughter's child.
Our law at the moment does not cope with any of these areas. If a woman gives birth to a child as a result of the implantation in her of an embryo deriving from ova donated by another women there is considerable uncertainty as to who is the real mother of that child. That technique is not being used currently in this country but people living here have access to that technique outside this country to conceive and have children within their family. In those circumstances nobody knows who the mother of the child is at the moment, whether the mother is the woman who gives birth to the child or the woman who donated the ova which resulted in the creation of the embryo which was implanted in the woman who ultimately gave birth. As things stand, if a dispute should arise about who is the mother of such a child, no guidance of any nature is given by this House as to how the court should determine it. I believe people in this country would have a very strong view about surrogate motherhood arising in those circumstances. I think they would also have a very strong view about ensuring that a woman who gives birth to a child is in law accepted as being the mother of that child. People would wish to discourage that type of surrogate motherhood as part of our social system.
This amendment is designed to ensure that there can never be any dispute as to who is the mother of a child. It provides that the women who gives birth to a child is the mother of that child, that that is the presumption, it is irrebuttable and the court can reach no different view on this issue. This issue should be dealt with in the context of this Bill not just from the point of view of the mother but from the point of view of the child. If at present I ask the Minister what is the status of such a child he could say that the child might be illegitimate, legitimate, the child of the person who gave birth to it, the child of the woman who donated the ova. Currently there is no means of determining who is the mother of such a child in a Bill dealing with the status of children and the issue of parentage.
Therefore, this very simple amendment is designed to ensure that this Bill not only provides presumptions and directions to the court on determining issues of paternity but does so in the context of determining the issue of maternity in the light of recent developments in medical science from which this country is not immune. Even if we do not practise this type of approach in Ireland, people living in Ireland have access to children being born in these circumstances and we should have a clear policy or approach as to how we view this type of method. In particular with regard to the children concerned, our legislation should determine not merely the status of such children but who their parents are and particularly who the mother is of such a child.
The Deputy knows that there is already in common law a principle exemplified by the maximMater semper certa est: the identity of the mother is always certain. This amendment seeks to give statutory effect to that maxin by creating an irrebuttable presumption that where a woman gives birth to a child she is the mother. The maxim is true in theory only since there have been cases both here and in other countries where errors have been made in maternity hospitals and confusion has arisen. The courts are quite capable of giving such maxims the weight they deserve and no more than that.
Furthermore, the maxim dates from a time when procedures such as embryo transfer, egg donation and surrogate motherhood were not even thought of. It is no longer possible to say without fear of contradiction that a child born to a woman is that woman's natural child. Of course, in most cases the child is the natural child of the woman, but as long as there exists the possibility that this may not be the case it is wrong that there should be an irrebuttable presumption. Indeed, to provide so in a modern statute is, in my view, to fly in the face of the realities of scientific development.
We have already, in an earlier amendment, touched on the procedures of ovum donation, artificial insemination, embryo transfer, and so forth. It would, in my view, prejudge those issues in a very serious way if an amendment of this nature were to be given the force of law. The Deputy and the House recognised when they discussed that matter earlier that this is essentially a matter for separate and comprehensive legislation. Accordingly, the amendment is opposed.
The Minister's first objection to the amendment seemed to be that it reflected what the common law provides already. That does not seem to be an objection; it seems to be in agreement with it. The second objection is that there can be errors in maternity hospitals. I do not understand the relevance of that. I am saying that when a woman gives birth to a child she is to be regarded as the mother of that child. If some one gives an unfortunate mother the wrong child when she returns home from a maternity hospital that does not mean that she has given birth to that child. That comment is irrelevant in this context.
The Minister says that in most instances the woman who gives birth to the child is the mother of the child but it is not possible to say, in the light of medical science whether a child is the natural child of a woman. This is the very point I am making. When is the child the natural child of a woman? Generally speaking the mother will, of course, be the person who conceived the child in the usual way and there is no question of donation of ova or test tube babies.
This amendment is to deal with the problem where that issue does arise and it is to give guidance to the courts as to how to determine the issue. The Minister says that without fear of contradiction one cannot in the context of all babies currently say who the mother is. I would suggest to the Minister, without fear of contradiction, that it is in the interests of all children that we have a mechanism in our law which indicates how we determine who the mother of a child is when an issue of this nature arises.
This House is abdicating its role in this area and saying that because it is too complicated we will not become involved but will leave it to the courts. That is not good enough. I accept that this is a complicated area. The Minister, having given his various objections, went on to say that we should not prejudge the issue. An amendment to establish the status of children born as a result of artificial insemination was opposed by the Minister. This amendment to determine the status of children born as a result of the test tube method in the context of surrogate motherhood is also been rejected. I am not advocating the use of surrogacy. I am merely trying to establish, where it is resorted to, who the mother of the child is where there has been a test tube fertilisation with a donor ovum.
If dealing with this matter in this Bill is prejudging the issue, when will the Minister bring in legislation to deal with all these issues? These are issues that parliaments all over the world are currently confronting because of the enormous lead in scientific and medical developments in this area. Are we in this House to bury our heads in the sand, pretending that such developments are not taking place? Are we to abdicate our role as legislators in this area and leave it to the Judiciary when conflicts arise to determine what legal principles are to be applied in the resolution of disputes? If the Minister is saying that this amendment should not be dealt with in the context of this Bill, I should like him to clarify Government policy with regard to this area and to state specifically when he intends to bring legislation before this House to deal with it.
The Deputy clearly recognises that this is a matter for separate and comprehensive legislation. That is a question which will be considered by the Minister for Health.
I do not know whether it comes within the area of the Minister for Health or the Minister for Justice. It would seem to come within their joint areas. Perhaps the Minister could indicate when his considerations are likely to end and whether legislation will be published within the next year to deal with this area before major problems arise as a result of our ignoring the medical advances that have taken place.
As the Deputy has indicated, this is a matter which will require widespread consultation and consideration. Consequently I am not in a position to say when the Minister will bring forward that legislation.
I do not want to labour the point unduly. The Minister might indicate whether such consultations have commenced. I am willing to consider withdrawing this amendment but I should like to know whether the Minister has an active interest in this matter he is pursuing. If consultations are taking place I am prepared to withdraw this amendment and not to press it at this stage, primarily because the related amendment concerning children born as a result of artificial insemination was not accepted by this House. I should like the Minister to indicate whether anything has happened with regard to this area and to say whether consultations are proceeding.
The matter is in the early stages of consideration. There have been no formal consultations as yet. Obviously it will involve both the Department of Health and the Department of Justice, but the Deputy can be assured that the matter is being considered.
Amendments Nos. 60, 61, 62 and 63 are related and may be taken together, by agreement.
I move amendment No. 60:
In page 27, lines 34 to 39, to delete subsection (2) and substitute the following subsection:
"(2) Notwithstanding subsection (1) of this section where a married woman who is living apart from her husband under a decree of divorcea mensa et thoro or pursuant to a separation deed or written separation agreement gives birth to a child more than 10 months after the decree was granted or the deed or agreement came into force then her husband shall be presumed not to be the father of the child unless the contrary is proved on the balance of probabilities.”.
This amendment deals with presumptions with regard to parentage. This is of importance in the context of court proceedings which may take place where there is an attempt to determine the parentage of a child. It is designed to assist the court in taking a view on the matter.
Subsection (2) of section 49 states:
Notwithstanding subsection (1) of this section, where a married woman who is living apart from her husband under a decree of divorcea mensa et thoro gives birth to a child more than ten months after the decree was granted, then her husband shall be presumed not to be the father of the child unless the contrary is proved on the balance of probabilities.
Section 49 (1) basically sets out presumptions. To put it in simplistic form, where a married woman gives birth to a child, the husband is presumed to be the father of the child. Subsection (2) provides that where a decree of judicial separation has been granted and a woman who is living apart from her husband gives birth to a child more than ten months after the decree, the husband is not to be presumed to be the father.
When marriages break down many couples do not have to become involved in contested court proceedings. Many couples conclude what is known as a deed of separation, a formal document dated and stamped so that there can be no dispute about the date of its commencement. Many couples conclude their deed of separation or a simple written separation agreement and then live apart. Whether they separate as a result of getting a decree of judicial separation or following the conclusion of a deed of separation, they are effectively separated. The amendment I have tabled is to establish that where a woman gives birth to a child ten months after the conclusion of a deed of separation or a written separation agreement it will also be presumed that her husband is not the father of the child. If a woman concludes a deed of separation and goes to live with another man and then ten years later gives birth to a child, the husband would still be presumed to be the father of the child. This is not in the interests of the child, of the mother, of the husband or of the real father of the child. I propose that subsection (2) be deleted and that it be replaced by the following:
(2) Notwithstanding subsection (1) of this section where a married woman who is living apart from her husband under a decree of divorcea mensa et thoro or pursuant to a separation deed or written separation agreement gives birth to a child more than 10 months after the decree was granted or the deed or agreement came into force then her husband shall be presumed not to be the father of the child unless the contrary is proved on the balance of probabilities.
The reason I have specifically confined this amendment to a separation deed or written separation agreement is that they provide, as does a court order, a unique written record of the date when a couple separated, about which there can be no dispute between the couple. If we extended this to provide for a desertion there could be a considerable amount of disagreement as to when the desertion started, when separation took place in the context of other family law or matrimonial court orders made. This amendment extends the section in a way that is practical but does it in a way which ensures that no dispute can arise with regard to the date of separation.
Of course, some couples will separate without ever concluding a deed of separation and some will separate some time before the deed is concluded, but it is important that there be a form of written record, be it a court order which the couple cannot dispute or an agreement the commencement date of which the couple cannot dispute, for this particular presumption to arise.
The section as drafted is too narrow. Deputy Shatter's amendment seeks to extend it somewhat but in my view it does not extend it enough and my two amendments are alternatives.
The crucial factor here is that the couple have been separated. Whether they have been separated pursuant to an agreement or a court decreea mensa et thoro is not the crucial factor. Settling the dates is one thing and disputes between the couples are another but if a dispute arises on any of these issues, be it under the agreement or the court decree a mensa et thoro, we are only talking about a balance of probability. We are not talking about any conclusive presumption emanating from it. We are all agreed on the balance of probability and the court would have to determine it. Therefore, why not be sensible and say that if it is agreed by all that there is no challenge on the issue in court, that they have been living separate for more than ten months, surely one can draw the assumption that the husband is not the father? That is all this amendment seeks to do.
If that is going too far, I refer to my second pair of amendments which extend the question of limiting it to a divorce decreea mensa et thoro to include any other court order. Why limit this to a court decree of divorce a mensa et thoro? That question is complex and is a matter of evidence, but it was considered very carefully by the Law Reform Commission. They concluded it would be too narrow to base it as the Minister has done in this subsection. I refer to the Report on Illegitimacy, page 91, paragraph 214, where they first analysed evidential matters. They said
We have come to the view that the better approach would be for the legislation to include such barring orders within the scope of the expression "court order". It seems to us that where these orders were in effect (provided of course that they are of a duration to cover the relevant time in which the child must have been conceived) commonsense suggests that a presumption that the husband is the father should not arise.
For example, if there is a barring order in existence for 12 months, on what basis does one draw the distinction between a district court barring order and a divorcea mensa et thoro?
If there is an injunction restraining him on a permanent basis, for two years or whatever, on what basis does one draw the distinction between that and divorcea mensa et thoro? This seems an overly narrow position to take, contrary to the views of the Law Reform Commission. We should take the commonsense approach and say that if a couple have been living separate for ten months or more the presumption should not arise.
A legal presumption is a convenient way of establishing a fact for practical everyday purposes without having to have recourse to court proceedings. In order for it to operate effectively, it is necessary that the facts giving rise to the presumption should be of a readily ascertainable kind and not be in dispute. The presumption itself should apply generally without requiring further evidence to support it. Thus, a presumption of paternity arising out of marriage works well since the marriage is a matter of public record and the natural inference is that the husband is the father of any child born to his wife. Similarly, the presumption of non-paternity arising out of a divorcea mensa et thoro is well based, since the date of birth of the child and the decree of divorce a mensa et thoro are both matters of public record.
However, basing a presumption on a voluntary agreement, such as a separation agreement, whether by deed or otherwise, would give rise to problems. Such an agreement would not be a matter of general knowledge and could be hedged around with conditions and exceptions which would render it too uncertain to form the basis of a general presumption such as could be relied on in particular cases. The same applies to such concepts as "living apart", "desertion" and agreements, whether formal or informal. They are far too vague and uncertain to act as a basis for a workable presumption. In the case of a court order other than a decree of judicial separation, for instance a maintenance order or a barring order, there is nothing to prevent the spouses coming together again at any time and resuming normal married life.
That applies also to divorcea mensa et thoro.
They do not have to apply to the court to have the order annulled although this may be advisable. Moreover, now that the presumption of paternity will be rebuttable in court proceedings on a mere balance of probabilities it will be of relatively minor significance in any event.
In the light of the arguments made in favour of the amendments, I am prepared to consider them between now and Report Stage to see if some widening of the scope of this provision would be possible. What I have in mind in particular is that a presumption of non-paternity might arise in cases where a legal separation agreement has been registered in a court. Deputies might consider withdrawing their amendments on this basis and giving me the opportunity of seeing what I can do between now and Report Stage.
I support Deputy Taylor's amendments. I am concerned that we are making some form of class distinction in regard to persons who should be considered under this legislation. Under Deputy Shatter's amendment only those who have recourse to lawyers and the drawing up of separation agreements would be facilitated, but there are many people who separate and live apart for a long number of years and have no need of recourse to lawyers, separation agreements, or courts for divorcea mensa et thoro. Because they have no property and there is no problem about the custody of children, they do not enter into a formal document. The Deputy's argument for this document is the unique date, the opportunity to record, but it has been illustrated that there are many other means, such as the application for deserted wife's allowance, barring orders and so on, which are matters of public record or which could be settled by a court after hearing evidence and should be available for that purpose.
I hope the Minister, having listened to all the arguments, would consider broadening the scope a little beyond what he suggested and that he will not be afraid of facilitating all classes in his considerations.
Is the amendment withdrawn?
On the basis of the Minister's undertaking, yes.
As it is now 12.30 p.m. I am required to put the following question, in accordance with the order of the Dáil of this day:
That the amendments set down by the Minister for Justice and not disposed of are hereby made to the Bill and that the Bill, as amended, is hereby agreed to in Committee and is reported to the House.
When is it proposed to take Report Stage?
On Wednesday next, subject to agreement between the Whips.
Will the Minister circulate any of his further proposals in advance of next Wednesday?
I should like to ask the Minister to circulate the amendments he will be tabling at least a day and a half before we deal with Report Stage so that we will have an opportunity to consider them.
We will do that.