I move amendment No. 4:
In page 9, between lines 29 and 30, to insert the following:
"14.—The Act of 1964 is hereby amended by the insertion after section 11 of the following section:
"11A.—(1) Where the High Court grants a decree of nullity in respect of a void or voidable marriage if there is a dispute as to the parentage of any infant born to either party to the nullity proceedings the Court may following the making of such decree upon the application of either party make a declaration of parentage with regard to any such infant.
(2) Where the High Court grants a decree of nullity in respect of a void or voidable marriage the Court may, upon application being made to it, exercise the jurisdiction conferred by section 6A (inserted by the Act of 1987) of this Act and by section 11 of this Act.'.".
This amendment seeks to insert a new section into the Status of Children Bill and in doing so would amend the Guardianship of Infants Act, 1964. There are a number of provisions in the Status of Children Bill which amend the Guardianship of Infants Act. They all appear in Part III of the Bill. This amendment seeks to insert a new section in Part III of this Bill which would become section 11A in the Guardianship of Infants Act, 1964.
The Status of Children Bill seeks to set out a framework for dealing with the position of children born outside marriage. In doing so, it prescribes the circumstances in which the relationship between a child, a mother and father will give rise automatically to the mother and father being joint guardians. Generally speaking a mother and father are joint guardians only if they are validly married to each other. However, the Bill within its framework effectively seeks to preserve the guardianship of a father in circumstances in which a marriage is annulled. If a marriage is a voidable one, under the provisions of this Bill a father in effect will preserve his position after the decree of nullity. If it is a void marriage a father will also preserve his position in law provided he reasonably believed, at the time the marriage took place, that it was valid. There will, of course, be some instances when a marriage will be declared void in which there will be no possibility for anyone to take the view that the father reasonably believed that the marriage was valid. That is one of the problems this amendment seeks to deal with and I will refer later to the manner in which it deals with it.
In circumstances where a marriage is declared null and void because it is either void or voidable, the High Court can at present make a decree of annulment but has no power to make any other sort of decree. There have been a number of cases in recent years where young children have been born to couples whose marriages have been declared null and void. In some cases up to three or four children have been born to such a couple and I am aware of a number of cases where at least one child was born. At present, when a decree of annulment is granted it terminates the marriage. Following the granting of a decree of nullity all sorts of disputes may arise with regard to the child of a couple. There may be disagreement between a mother and father as to which of them should have custody of the child. If it is agreed that the mother should have custody there may be disagreements as to what access the non-custodial parent should have. If a mother has custody of a child a father may want visitation rights, to have the child spend time with him at week-ends, reside with him or go on holidays with him during school holiday periods. A mother and father may not be able to reach agreement as to what access or visitation rights the non-custodial parent should have.
If a couple who are granted a decree of annulment have one or more young children the question may arise as to what support payments should be made for the support of those children by the non-custodial parent. If a mother has custody of the children she may wish the father to make some payments towards the support of the children. Earlier today we dealt generally with maintenance. As things stand, the difficulty is that if the High Court makes a decree of annulment it cannot resolve any of these problems. If there is a dispute about parentage of the child and a mother claims that her former husband is not the child's father, the High Court cannot, following the completion of the nullity proceedings, make an order deciding parentage. It cannot make a declaration that the former husband is the child's father and it cannot make a declaration that a third party is the child's father. At present, the High Court cannot, following the grant of a degree of nullity, decide a dispute about custody and cannot make an order that a mother or father should have custody of a child. The High Court cannot resolve a dispute relating to the general upbringing of a child as an ancilliary matter to be dealt with following the granting a decree of nullity.
The High Court at present cannot resolve a dispute about access arrangements or visitation rights for the father. The only way these problems can be resolved, if the couple cannot reach agreement, is by bringing new court proceedings. The mother, if she wishes to get support payments, may have to bring affiliation proceedings in the District or Circuit Court. Following the enactment of this Bill she will have to bring maintenance proceedings in the District or Circuit Court. If there is a dispute over custody or access new proceedings which are quite separate will have to be brought in the District or Circuit Court. Even if this Bill is enacted in its current format, following the grant of a decree of annulment if any disputes should arise relating to support payment, upbringing, or custoday of a child, who as a result of the nullity decree is regarded as being born outside marriage, the couple will be forced to institute at least one, if not two, additional sets of court proceedings in different courts. They will have to start afresh in a new set of court proceedings.
That is a totally illogical and nonsensical approach. It will cause couples to incur a great deal of unnecessary legal expense. It means that a couple who have been through the trauma of a nullity case in the High Court will be forced to have another court contest in the District or Circuit Court before a different judge who probably knows nothing about the family background and who, particularly in the case of custody or access, will have to hear identical evidence to that already presented in the High Court during the nullity proceedings. Many of the same witnesses will have to be brought back into court again.
The Law Reform Commission in their report on nullity of marriage recommended that following the grant of a decree of annulment the High Court should have ancillary powers to make all orders that are necessary for children, be it for support payments, guardianship or custody issues. The last time we debated this issue on Committee Stage I brought this matter to the attention of the Minister, who raised certain technical issues on the drafting of the amendment I had tabled. The Minister acknowledged there was a problem but indicated he would consider bringing forward his own amendment.
I have tabled a new amendment on Report Stage, which takes into account some of the technical issues raised by the Minister on Committee Stage in that it would now be possible under this amendment for the court to do a number of things. If this amendment were passed, following the grant of a decree of nullity if there was a dispute about the parentage of a child, the High Court could automatically deal with that dispute without new proceedings having to be issued. In addition, the High Court could deal with disputes over custody or access. If there was a dispute about maintanence and the mother sought to get support payments from the father of her child, the High Court could also deal with that. It would mean that instead of the couple having to start all over again in a new set of court proceedings, a judge who had already learned of the entire family background and who had adjudicated on the nullity matter would then be equipped legally to make decisions on issues relating to children and support payments for children. If a dispute were to arise in regard to the parentage of the child, the High Court Judge would be allowed to make a decision on the issue as well.
I think this is a very logical and sensible amendment. It seeks to implement one of the recommendations made by the Law Reform Commission. I know this matter has been drawn to the attention of the Department of Justice for urgent consideration. The Association of Family Lawyers which comprises of a number of solicitors and barristers who specialise in and regularly appear before our courts in family law matters have, as far as I know, made a submission to the Department of Justice saying that it is necessary to enact a provision such as this so that the High Court, following the making of a nullity decree, has all the necessary ancillary powers and jurisdiction to deal with these issues. I understand that the association have been told that currently nullity legislation is not being prepared and, accordingly, the matter will not be dealt with in the short term.
The amendment does not just relate to nullity legislation, but to what this Bill seeks to do. The Bill seeks to make provision for support payments, custody, guardianship, and parentage declarations for children born outside marriage, and seeks to place them in a position generally of legal equality. This amendment is designed to place all children in position of legal equality. Once a decree of annulment is granted the legal theory is, whether a couple have lived together for any period after the celebration of their marriage — be it one or 25 years — the decree of annulment is taken to mean that they never have been married and their children, until the enactment of this Bill, would be regarded as illegitimate under our current law.
I urge the Minister to support this amendment. I hope it will be recognised as being a constructive provision seeking to deal with some of the anomalies that exist in our current law and seeking to ameliorate some of the difficulties created by our current law. The Minister's colleague, the Minister for Justice, has acknowledged that this issue should be dealt with. During the course of Committee Stage he seemed to accept that my suggestion was completely sensible. I do not know what advice the Minister has received from his officials in the Department of Justice, because anyone who has any experience of how the courts work in the area of family law, or anyone who has had any involvement in nullity cases in which there are children born to the couple who are seeking the annulment decree, knows there is an urgent need to enact this provision. Perhaps I will be surprised; the Minister may tell me that he supports the amendment. However, on the basis of approach we have, I presume if the Minister had supported the amendment he would have tabled a similar amendment as he would not want to have it passed in the name of an Opposition Deputy.
Should the Minister prove me wrong and support the amendment, that because it has been drafted in this way he did not feel the need to table a similar amendment in his own name, I will happily apologise and congratulate him on adopting a constructive approach to the legislative process. However, I am not optimistic that that approach will be taken. I hope the Minister will prove me wrong, because I have absolutely no doubt that anyone who has any knowledge of this area, or anyone who has seen the difficulties that arise in practice for couples following the grant of a decree of annulment, would tell the Minister that this is a sound and sensible provision that would greatly improve the current legal position. It would reduce considerably legal expenses that couples with young children could and do incur following the grant of a nullity decree.
What I am suggesting is not unique. Not only has it been proposed by the Law Reform Commission but the legislation of every European country currently makes provision for such powers to be conferred on their civil courts when dealing with nullity cases. Legislation worldwide makes such provision, whether one looks to New Zealand, Australia, Hong Kong, Nigeria or the various states of the United States. I hope that the opportunity which this Bill gives to us to deal with the issue in this way will not now be lost because if we do not deal with it today I anticipate it will be many years before we have another opportunity of doing so.