Status of Children Bill, 1986: Report Stage.

I move amendment No. 1:

In page 7, to delete lines 12 to 14 and substitute the following:

"‘adoption order' means—

(a) an adoption order made under the Adoption Acts, 1952 to 1976, or

(b) any order made or decree granted outside the State, providing for the adoption of a person, which is recognised by virtue of the law for the time being in force in the State,

and for the time being in force;".

This amendment changes the definition of the term "adoption order" for the purposes of the Guardianship of Infants Act, 1964. It will mean that Act will now apply to infants adopted under foreign adoption orders, which are recognised in this country, in the same manner as it applies to infants adopted under domestic law.

On Committee Stage, the Minister for Justice accepted an amendment on this point from Deputy Shatter, subject to consultation with the draftsman. The text I am now proposing represents the outcome of that consultation. I trust that it is acceptable to the House.

I welcome the fact that the Minister has accepted the principle of the amendment tabled on Committee Stage. This is an important amendment. It means that because we recognise an adoption by a couple who adopt a child outside Ireland under our adoption law, there can be no doubt as to the couple who do adopt such a child having all the rights which would normally be given to parents to whom a child is born or who adopt a child in Ireland under the Guardianship of Infants Act, 1964. It means that such parents will automatically, under Irish law, be joint guardians of any child adopted by them in a foreign country and that all of the provisions in the Guardianship of Infants Act relating to guardianship and custody of children will apply.

There is one matter I should like to ask the Minister about. I raised it on Committee Stage. I know the Minister has only one opportunity to respond on Report Stage. In the context of this provision and similar provisions in other sections of the Status of Children Bill, I referred to the fact that currently in our statute law no legislation has been enacted at any stage since the foundation of the State setting out the circumstances in which we, in this State, recognise foreign adoption orders. While this provision is of help in providing uniformity in the legal sense through the Status of Children Bill, the difficulty is that we abdicated this House's role in this area to the courts.

We are effectively saying it is for the courts to decide, on whatever principles they wish to invent, the circumstances in which we will recognise foreign adoption orders. No married couple in Ireland who have adopted a child outside Ireland know positively whether their foreign adoption order is valid or invalid under Irish law. I accept that in the Status of Children Bill we cannot provide the detailed criteria which should be enacted setting out the circumstances in which we recognise foreign adoption orders or setting out the basis upon which a Minister can certify a country's adoptions as being adoptions recognised in this country.

When I raised this matter with the Minister for Justice I asked that in the context of adoption legislation currently in the Seanad, or in the context of a more comprehensive adoption Bill which may implement the report of the Review Committee on Adoption Services, there should be a specific provision relating to the recognition of foreign adoption orders and setting out the circumstances in which we recognise them. The Minister said he would look into the matter and bring it to the attention of the Minister for Health. I would like to ask the Minister if any further progress has been made on this very important issue. This issue will become increasingly important as the number of children available for adoption in Ireland decreases and the number of Irish couples seeking to adopt abroad increases. If we do not have legislation in the very near future in relation to this area we will have a new group of children in a legal limbo and many parents who have adopted children outside Ireland will not know, under Irish law, the status of the child adopted by them.

Could the Minister in his reply give some indication as to whether the Government now intend to legislate to deal with this problem which is directly related to this amendment, and when it is anticipated that such legislation will come before the House? Will we see it before Christmas or will we see it during 1988? Would the Minister accept that it is a matter of increasing urgency that we enact such legislation having regard to the increasing number of Irish couples who are adopting children from places like Chile, Peru, India, Indonesia and the Philippines?

I rise merely to indicate that The Workers' Party support and welcome this amendment.

I would like to thank the Deputies for their support for this amendment. With regard to Deputy Shatter's point, he is, of course, correct and I will convey his views to both the Minister for Health and the Minister for Justice. As Deputy Shatter said, the Minister for Justice said on Committee Stage that he would note the views expressed by him in that regard. No decision has been taken as yet but I would like to assure the Deputy that his views have been noted and are being considered. It is unlikely that anything will be done before Christmas.

Amendment agreed to.

Amendment No. 13 is cognate to amendment No. 2 and, therefore, both amendments may be discussed together. Is that agreed? Agreed.

I move amendment No. 2:

In page 8, between lines 45 and 46, to insert the following:

"11. —Section 5 of the Act of 1964 (inserted by the Courts Act, 1981) is hereby amended by the substitution in subsection (2) of ‘£50' for ‘£30'.".

On Committee Stage I commented on the fact that the Status of Children Bill effectively abolishes the Illegitimate Children (Affiliation Orders) Act, 1930. That legislation made provision for the first time for the mother to obtain a court order to require the father of the child born outside marriage to contribute towards the support of his child. Under the provisions of the Illegitimate Children (Affiliation Orders) Act, 1930, the District Court was conferred with a power to award the princely sum of anything up to 20 shillings per week for the support of the child born outside marriage. While the Act made provision for the support of a child born outside marriage it confined the support payment that could be ordered to a sum of 20 shillings per week. The 20 shillings was increased to £2 in 1971 and subsequently the Courts Act, 1971, generously increased the support payment of £2 to £5, which was the maximum order that could be made. This was increased to £15 in 1976 and it was further increased to £30 per week in 1981.

In abolishing the Illegitimate Children (Affiliation Orders) Act, 1930, the Status of Children Bill will now enable the mother of a child born outside marriage to seek support payment for the support of her child under existing maintenance provisions contained in the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses and Children) Act, 1976. Under these Acts the maximum support payment that can be provided for the support of a dependent child at present is the sum of £30 per week, the same sum as applies to the making of affiliation orders. In effect, the Guardianship of Infants Act and the Family Law (Maintenance of Spouses and Children) Act were used up to now by wives who sought maintenance payments from husbands for the support of dependent children. The Status of Children Bill, in effect, says that a wife or a mother of a child born outside marriage can get a maintenance payment for the support of a dependent child under the Guardianship of Infants Act and the Family Law Act.

The limit of £30 per week has remained unchanged since 1981 despite the fact that inflation has greatly devalued that sum. On present monetary values the sum of £30 per week as it pertained in 1981 should be a sum of just under £60 per week. On Committee Stage I tabled an amendment to the Bill that would allow the courts to make an order for the support of dependent children of a sum up to £60 per week. The Minister did not accept the amendment. I have modified that amendment and on Report Stage I have tabled an amendment which would allow the courts to order a sum up to £50 per week for the support of a dependent child.

The passage of this amendment would benefit all the children who would benefit from the provisions of the Bill; unmarried mothers, deserted wives, and wives who are receiving inadequate sums of money from their husbands for child support. In effect, this amendment would extend the jurisdiction to the District Court to make support payment orders for dependent children born inside or outside marriage for a sum up to £50 per week instead of the limit of £30 per week imposed on the District Court. The essential difference is that it would extend the financial jurisdiction in the District Court and in so doing would allow the District Court to take account of modern incomes and expenses as compared with family expenses in 1981. It would allow the District Court to make proper orders for the support of dependent children rather than orders based on a false and outdated financial evaluation of the expenses incurred in the day-to-day up-bringing of a child.

In the context of child support payments we must remember we are not talking about payments for a baby of one year old but payments that can run all the way up to the 21st birthday of a dependent child. The payments should not only make provision for basic food and clothing but must take account of educational expenses, such as the purchase of school books or expenses which arise when a young person participates in third level education. If one looks at the support payments in that context one can rapidly draw a conclusion that £30 per week, the order made under existing legislation, is totally inadequate to make provision for a child to participate in third level education. Having regard to third level education fees, the yearly total of £30 per week would be exhausted in many instances on fees, without taking into account any of the other expenses incurred by a young person in third level education on accommodation, food, clothing and purchase of books.

At present if an unmarried mother or a wife seeks a larger sum than £30 per week for the support of a dependent child she must bring proceedings in the Circuit Court. Proceedings in the Circuit Court are much more expensive and long drawn out than District Court proceedings. There is not as ready access to the Circuit Court for these type of proceedings as there is to the District Court. Generally if a mother has to bring court proceedings, as this legislation seeks to provide, she can bring proceedings for child support payments and have them heard in the District Court within three to five weeks of issuing a District Court maintenance application. It can take up to nine months, depending on which part of the country, to take similar proceedings in the Circuit Court.

This provision is designed to do one thing and one thing only, namely, to allow mothers who are getting inadequate child support payments to have ready access to the District Court to get maintenance orders of a more adequate financial nature than they can get at present. In addition, it takes account of the increase in inflation since 1981, the last time this House considered this issue when it imposed a limit of £30. The Minister said in his response on Committee Stage that he did not think this was the appropriate Act in which to make such provision and it should be done in a courts Act rather than in this Act. However, this Act makes express provision for obtaining support payments for dependent children by mothers who are getting inadequate payments from the fathers of such children. It replaces the Affiliation Orders Act which previously contained the basic legal framework for obtaining such payments. It now appears that the Minister has acknowledged that the financial limits that exist in this legislation can be changed. On Committee Stage I urged the Minister to increase the expenses set out in the Bill for other matters. For example, at the time of making an affiliation order or a maintenance support order for a dependent child, be it for a sum of £20, £30, £40, or £50 per week, the courts can also make other orders. They can require the father of a child to pay to the mother expenses which are incidental to the birth of that child.

The Courts Acts of 1971 and 1981 increased the limitations on the amounts that could be ordered in that regard. This Bill prescribes the amounts of money the court can order when making provision for expenses incidental to the birth of a child. Originally it prescribed limits of £500. I urged the Minister on Committee Stage to substantially increase those limits. We will deal with his amendments on these matters at a later stage. He has now come back to the House and is amending the sum that the courts can order with regard to expenses incidental to the birth of a child and also with regard to other expenses. If a child, tragically, dies the father can be required to contribute money towards funeral expenses. The Minister is dealing with this aspect though not adequately. He is seeking to provide a lower sum than I believe should be provided. However, I will deal with that matter at a later stage.

When a court case takes place with regard to maintenance support payments for a dependent child, following this Bill's enactment, whether those payments are for a child born within marriage or outside marriage, the court will make two types of orders; it will make an order for a weekly or a monthly support payment plus an order stating what lump sum should be paid to the mother in respect of expenses incidental to the birth of a child. It is not logical to say in this Bill we can ensure that adequate amounts are provided for expenses incidental to the birth of a child but we cannot ensure that adequate maintenances orders can be made by the District Court. I urge that the Minister accept this amendment which seeks to ensure that where support payments are sought for dependent children the District Court limit is increased from £30 to a very modest sum of £50.

The limit for a spouse's support is currently £100. The court would be allowed to make an order up to £100 a week for a wife's support and up to £50 a week in respect of each dependent child. That would ensure that unmarried mothers would have access to the cheapest form of litigation that has to be undertaken, that they could speedily come before the District Court and would not be forced into the more expensive and more lengthy procedures in the Circuit Court. It would also take some of the pressure off the Circuit Court. An increasing number of wives and mothers of children born outside marriage are currently bringing court proceedings for maintenance orders in the Circuit Court because the financial limits in the District Court are out of date and are irrelevant for many of them. I presume it is the aim of the Government to ensure that legal costs are kept to a minimum, that our court system functions as effectively and as efficiently as possible and that those who are dependent in society can avail of the most efficient and most speedy legal remedies that are necessary to alleviate financial hardship.

If the Minister opposes this amendment I can only take it for granted that his view is that it should be made as difficult as possible for wives and unmarried mothers to get adequate support payments and that people will incur the maximum legal costs that can possibly be incurred. There can be no logic in the Minister not supporting this amendment or in his saying that it would be more appropriate in a courts Bill and that maybe a courts Bill will come before this House in 1988, 1989 or 1990. We can deal with the matter today in this Bill just as we can deal with the financial limitations on other types of orders. The Minister is dealing with some of those matters in his amendments. I urge him to approach this amendment in the same constructive and helpful way as he approached the previous amendment which I tabled and which is now being incorporated in the Bill.

This is not a party political issue or an issue that would give rise to any contention in most other parliaments in the world. In most parliaments it would be seen as a constructive amendment to address an issue that needs to be addressed and to ensure that legislation is as effective and comprehensive as possible. I urge the Minister to accept this amendment so as to ensure that this Bill provides adequate protection for all children, those born inside and outside marriage, and that it provides proper remedies for unsupported wives and unmarried mothers in circumstances where the fathers of those children are refusing to make adequate and proper support payments for the benefit of the child.

This is a perfectly reasonable and acceptable amendment and the Minister should take it on board. The Labour Party support the amendment. There is no reason I can think of for turning it down. There has been talk about it being more appropriate to a courts Bill. Maybe if one is to be orderly and logical about the matter that would be so but we could go through our whole body of legislation and find that we should be rationalising all sorts of legal measures to make them very neat and tidy but we should deal with the matter when it is on hands. A reading of the Short Title of the Bill shows that it is perfectly within its parameters and ambit to authorise this increase for maintenance of a child from £30 to £50 a week. In circumstances where the father cannot afford to pay £50 a week or £30 a week the court will make the order in accordance with the father's means so this is only a maximum authorisation.

It may be some years before the House gets around to dealing with a courts Bill or before the Minister gets around to introducing one. It may never happen at all. Even if a courts Bill is brought before the House in two years' time and if one accepts the principles that we should update the authorisation now, why condemn those families and those children to have to subsist on an outdated maximum of £30 a week which was laid down years ago and which has been totally eroded by inflation? Why should they have to suffer for the few years that it will take for a courts Bill to come before the House for the sake of the Minister's neatness in the matter in so far as the legislation is concerned? When the courts Bill comes before the House we can delete the matter from this Bill and incorporate it in the courts Bill. To say that we should wait for a courts Bill is no reason for condemning those families and those children to having to subsist on £30 a week or less when the father is well off, is in an extremely comfortable position and would have no problem in paying £35, £40 or £45 a week.

The amendment has been put down and it is well within the parameters of the Bill. The Minister could tidy up the matter later when he gets around to introducing the courts Bill but we should not ask these families to wait until then for this increase. It is most unfair and unnecessary. It is a maximum provision only and whatever the maximum figure the court will award only what is within the father's means.

Why turn aside from this point? The Minister must know it is a perfectly simple valid point. There is no possible basis for condemning families and children in cases where the father can afford an extra £10 a week or so to wait an extra two or three years or maybe indefinitely. We all know what the system is like. We might not see a courts Bill which would alter this matter in the Dáil for a long time. It is logical that we increase the provision in this Bill. It is within the terms of the Title and why not accept it? The Minister should take the matter on board and when the courts Bill is introduced he could then tidy it up. I make a special appeal to the Minister to be realistic in his approach to this amendment now that the House has the opportunity to do something that will benefit some children and some families.

The order in the House is such that at this stage we will not hear from the Minister until our contributions have been made. For that reason we must try to guess, to some degree, what is in his mind. There was a time when a helpful nod or a wink might have given us a hint but the Minister, Deputy Woods, is keeping his eyes downcast. It appears the Minister will adopt the implacable approach that was adopted on Committee Stage in regard to this matter. For that reason we must be firm about this.

For all the reasons that have been advanced, it is a reasonable amendment to ask any Minister to consider. We have to anticipate why it is that the Government will not accede. The singular reason advanced on Committee Stage was that this was an item that did not arise out of discrimination and was not, consequently, appropriate to the Bill. In the heading of the Bill the Minister dealt with the first two lines and Deputy Shatter and I brought him a little further down the Long Title to underline that this whole area of maintenance was central to the provisions of the Bill and could clearly be addressed with in the confines of the Bill.

No other indicator exists in the history of the legislation dealing with children born outside marriage that reflects more closely changing attitudes than the whole question of the level of maintenance for these children. Deputy Shatter gave us a brief history. In the 40 years ranging from 1931 to 1971 we were prepared to consider the paltry sum of 20 shillings weekly sufficient to support children born outside marriage. As a young solicitor's apprentice I remember single mothers arriving at the office of the solicitor to whom I was apprenticed, child in arm, to collect the 20 shillings, sign the book and go home. That was the state of affairs existing up to the seventies. It was in part redressed in a meagre way in 1971 when it was increased to £5; in 1976 it was increased to £15 and in 1981 to £30.

At this stage we are simply asking that we should address the matter afresh when we have the opportunity. The point must be made that on Committee Stage the Government did not disagree with the notion that at this time a person applying could go to the District Court and expect a maximum of about £60. We had to come down by £10 to facilitate a rediscussion. The Government does not disagree that it would be appropriate. The single ground of narrow opposition is that we have not got the right, tidy Bill, as Deputy Taylor would call it, at this moment. We are trying to deal with discrimination. Surely it is discrimination to say to people that they cannot go to the most easily available court in the land to get a reasonable sum to maintain their children. I understand that from the Government's point of view the sum is not in question; it is a question of when and where.

The second point that arises from this proposed amendment is that it affords people in their access to court an opportunity of getting an order for a greater amount. The point here is that where the parent has the means and the opportunity she can go to the Circuit Court and can get an order for maintenance of a child in excess of the £30 that is currently fixed. It is, again, not a question of making an unfair rule and an unreasonable figure because if one goes further to the higher courts there is no limit to the amount of maintenance that can be awarded in a court on a weekly basis to the parent of a child born outside marriage. What is central to this is simply the facilitating of access to the most democratic and easily accessible court, the District Court. That would result in a considerable cost saving to the Government in terms of the administration of the courts. In regard to costs, it is important to note that this amendment would not involve the Government in one iota of expenditure. If anything, it would result in a saving.

I hope the Government at this stage recognise this is not an unreasonable proposition and that it is an appropriate time to consider it. The Minister should, as do the Government, recognise that inflation has left the sum of £30 behind and that it is time we brought the figure forward. I urge the Minister to consider it.

These amendments were, in substance, debated on Committee Stage, as the Deputies have stated. Both of them were opposed by the Minister on the basis that jurisdiction limits are a matter for a jurisdiction Bill and not for a Bill dealing with the status of persons. This is essentially a Bill designed to remove a discrimination. The House, on a division, rejected the amendments on that occasion and supported the view taken by the Minister. The Minister has not changed his view in the meantime and I do not think that any purpose would be served by taking up more of the time of the House on these amendments. As the Deputies have mentioned, what is involved in this amendment is a change from £60 to £50 which does not alter the basic principle which the Minister made on Committee Stage.

Deputy Taylor mentioned the situation of a rich man. I would remind the Deputy that a rich man can be taken to the Circuit Court where there is no limit and where ultimately he will have to meet the costs. Nevertheless the question of updating and reviewing these amounts is important. I accept that and I will certainly convey the renewed views of the Deputies on this matter to the Minister with a view to having an appropriate courts Bill brought forward without delay. As the Deputies know, these are brought forward after certain periods, usually ten years, and there is an attempt made to cover the period somewhat ahead of the Bill. With the rate of inflation in recent years it would seem desirable not to wait the ten year cycle from 1981 to 1991. This could be done earlier and I will convey the Deputy's views on that to the Minister.

Deputy Alan Shatter to reply to the debate on his amendment No. 2.

I regret the approach adopted by the Minister. First, the Minister is acting on the advice of his officials and we have now had two Ministers in this House who have dealt with this Bill. This is a Bill of the Minister for Justice. The Minister for Social Welfare is taking it today. I realise the Minister for Justice may have political problems of a different nature relating to a different issue which he may be dealing with at a private meeting in another part of this House. That does not excuse the fact that this measure, which is a Justice measure, should meet with this sort of lame, contemptuous response to what is a serious proposal.

The arguments the Minister has made are, in all respects, incorrect. The Minister says jurisdiction limits are normally dealt with in a jurisdiction Bill. I anticipated the Minister would say that. It is simply not true because the jurisdiction limits in regard to matters such as this have been dealt with in other types of legislation. The Courts Act, 1971, increased to the princely sum of £5 the jurisdiction limits to make support payments. There was not a delay of ten years for the jurisdiction of limits to be next increased in the Courts Act of 1981. Section 28 of the Family Law (Maintenance of Spouses and Children) Act of 1976 increased the sum that could be ordered for the support of a child born outside marriage to £15 a week. Even that lame excuse for not supporting this measure is completely and utterly inaccurate, incorrect and untruthful. I know the Minister does not intend to mislead the House; he is acting on the advice of his officials. It is, however, misleading to suggest that these issues are dealt with only in a courts Bill — they are not. They were dealt with in the Family Law (Maintenance of Spouses and Children) Act, 1976, because the view then was that the limits imposed by the Courts Act, 1971, were out of date.

We had a Courts Act in 1981 and now we come to deal with the Status of Children Bill. There is absolutely no reason these limits cannot be increased in this Bill because other financial limits are dealt with. The Minister will have to address that matter shortly in his own amendment. He says the House supported the view expressed by his colleague, the Minister for Justice, on Committee Stage. The Fianna Fáil Party supported the view expressed by the Minister for Justice on Committee Stage. All other parties in this House, including some of the Independent Deputies, supported the view that the limits should have been increased. It appears to be a particular view of the Fianna Fáil Party and the Government that unmarried mothers and unsupported wives should not be allowed more than £30 a week for the support of dependent children in a District Court proceedings. Those who have sufficient money to be able to afford to go to the Circuit Court in the view of Fianna Fáil should get larger sums of money for the support of their children. It is the Fianna Fáil view, however, that those who cannot afford lawyers' fees of an expensive nature should be confined to the District Court and that a legal situation should continue to persist whereby the District Court is deprived of the power to make adequate support payments for children born within marriage and children born outside marriage.

This is a fundamentally important issue, one of the most important issues in this Bill. We are here trying to place children in a position of legal equality. It is generally recognised that children born outside marriage start with additional disadvantages in that very often the funding is not available for second or third level education which is available to children born within marriage. That is often the case because the father of the child born outside marriage is reneging on his responsibilities and the mother is struggling to care for her child and provide an adequate standard of living while often working and carrying on home duties without the support of the father. The passage of this provision could make the difference between some children having extended to them the possibility of third level education or second level education after the minimum school leaving age of 16 years.

I find it quite extraordinary that the Minister seems to regard it as something that should not be dealt with in this Bill. That is the most bureaucratic, gobbledygook response that one could possibly get to a serious issue. It is the reason we have so much difficulty in this House in getting measures passed which deal with social reform, because of either the rather odd approach on occasion adopted by Ministers or the rather peculiar advice on which they rely. One would have expected that the Minister for Social Welfare, who is aware of the difficulties in this area of unmarried mothers and deserted wives who have to rely on their allowances, would have wished to encourage a situation whereby the courts could make adequate support payments for dependent children.

If this House since 1922 had never increased the financial limits in any legislation other than in a Courts Act, we would have some sympathy for the Minister's advice, although I would not accept that it is advice upon which he should act. Seeing that that is not the case, seeing that we have provided in ordinary legislation amendments to increase financial limits such as those contained in the Family Law (Maintenance of Spouses and Children) Act, 1976, the Minister's opposition to this makes absolutely no sense at all. It can only be taken to mean that this Government lack any real understanding or compassion for the plight of deserted and unsupported wives or unmarried mothers who are seeking to obtain adequate sums of money to enable them to extend a reasonable standard of living to their children.

And it would not cost the Government a penny.

As Deputy Taylor quite correctly remarked, this is a measure that does not cost the Government a penny. This is not asking that the State provide £50 a week, money it does not have. It is not even suggesting, as Deputy Taylor says, that in all cases the courts will always order £50 a week; of course they will not. In some instances fathers will not be able to afford that sum, but the reality is that in most cases nowadays which are brought in the District Court where an unmarried mother or a wife seeks a support payment for a child, because of current salaries and wage scales when the father is in employment the courts are making orders that are very close to or are at the financial limits. It is quite usual now for orders of £25 or £30 a week to be made for the support of children born to unmarried mothers. I have had the experience of some district justices indicating that if they had greater jurisdiction they would be making a higher order than £30 a week. This Minister and Government are seeking to curtail the protections that can be provided for unmarried mothers, unsupported wives and children who are not being properly provided for by their fathers. They are doing it in circumstances which would not only not cost the Government money, but a curious result which would arise from this amendment is that it might save the Government money.

Many unmarried mothers represented through Government law centres in circumstances where the centre brings proceedings to seek support payments for a child born outside marriage are currently having their cases brought in the Circuit Court but if this amendment is passed they could have them brought in the District Court. That would save the Government the expenses incurred in employing barristers to appear in the Circuit Court. It would save the Government money in another way. A mother who is currently getting no support payment and who brings proceedings in the Circuit Court, be she married or unmarried, may, pending the hearing of the court case, be in receipt of a supplementary welfare allowance. It may take some months before the court case is heard, yet if the mother could bring her case to the District Court and get an adequate sum the supplementary welfare allowance payment might have to be made for a much shorter period.

Not only is this a measure which will not cost the State anything, which will provide greater protection for children, for wives and for unmarried mothers, but it will save the State money. Even if one forgot about compassion and concern for those who are less well off, for mothers and children in circumstances where the father is refusing to provide support payments, if one looks at it in the cold light of economic reality there is a simple economic argument, from the State's perspective, which says that this amendment should be accepted. It is quite extraordinary that the Fianna Fáil and Government view is that we should have one law for the poor and one for the rich, that unmarried mothers with very little money will be confined to bringing court cases in the District Court and that the powers conferred on the District Court will be curtailed in a way in which the Minister recognises they should not be curtailed. Even the Minister has said in his response that he accepts there has been considerable inflation since 1981, that we should not wait another ten years, that perhaps, we should do this next year. The Minister is well aware that there is no legislation under preparation at present for a new courts Act which would extend the financial limits of the courts. Considering the pressures that are on the Department of Justice in a variety of other areas there is no possibility that we will see any Government legislation on this matter in 1987 nor in 1988.

The Minister said on the last occasion that the House rejected that the maximum should be £60, that we are now suggesting it should be £50. The Minister's view is that the maximum should be £30 and that maximum has now become irrelevant. The Government in opposing this measure are showing their true colours. They are a Government who have no concern for women's rights, who have no concern for providing protection for mothers and who have no concern for providing protection for childre. They are a Government whose members when in Opposition waxed lyrical about children, both born and unborn. A sound proposal is being made to amend the Bill which has widespread support, not just within this House but also outside of it, which would not cost the Government anything and which would ensure that mothers in particular have legal rights they can avail of inexpensively and speedily to ensure adequate support payments for their children but the Government are going to oppose it. It is my intention to put the amendment.

A Cheann Comhairle, before you put the amendment I would like to clarify one point, that is, that the Minister is dealing with important matters concerned with security. Because there might be some implication——

Parliamentary party business.

It is not parliamentary party business, Deputy, and I would like you to withdraw that suggestion.

I am now putting amendment No. 2 in the name of Deputy Shatter.

Amendment put.
The Dáil divided: Tá, 69: Níl, 75.

  • Barrett, Seán.
  • Barry, Peter.
  • Begley, Michael.
  • Bell, Michael.
  • Birmingham, George.
  • Boland, John.
  • Boylan, Andrew.
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Colley, Anne.
  • Connaughton, Paul.
  • Cooney, Patrick Mark.
  • Cosgrave, Michael Joe.
  • Creed, Donal.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Donnellan, John.
  • Doyle, Avril.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas.
  • Farrelly, John V.
  • Fitzpatrick, Tom.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gibbons, Martin Patrick.
  • Griffin, Brendan.
  • Harney, Mary.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Hussey, Gemma.
  • Kavanagh, Liam.
  • Keating, Michael.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • Kenny, Enda.
  • Lowry, Michael.
  • McCartan, Pat.
  • McCoy, John S.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Naughten, Liam.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • Quill, Martin.
  • Quinn, Ruairí.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeline.
  • Wyse, Pearse.
  • Yates, Ivan.


  • Abbott, Henry.
  • 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.
  • Cowen, Brian.
  • Daly, Brendan.
  • Davern, Noel.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lynch, Michael.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Mooney Mary,
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • 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.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.
  • Wright, G.V.
Tellers: Tá, Deputies O'Brien and Flanagan; Níl, Deputies V. Brady and Briscoe.
Amendment declared lost.

I move amendment No. 3:

In page 9, between lines 20 and 21, to insert the following:

"6B.— Where the father and mother of an infant have not married each other and where the father is registered as the father of an infant in a register maintained under the Births and Deaths Registration Acts, 1863 to 1987 and, where the mother consents in writing to the appointment of the father as guardian, the father shall automatically be a guardian of the infant and no application by the father to be so appointed as provided for in section 6A of this Act shall be required.".

During the Committee Stage debate and earlier on Second Stage I drew attention to the fact that under the provisions of this Bill court proceedings must be brought in order for the father of a child born outside marriage to become the guardian of the child. That seemed quite extraordinary and unnecessary in many different circumstances. There are many instances where a child will be born to a father and mother who are living together in circumstances where socially they are regarded as being married to each other, although legally they may not be married. In such circumstances the mother may not only wish the father to be guardian but would consent to the father being joint guardian with her. In those circumstances there would be no dispute between father and mother about joint guardianship.

This Bill sets out in effect that, where the father and mother of an infant have not been married to each other, the court, on the application of the father, can by order appoint him to be a guardian of the infant. The court in this instance will be either the District Court or the Circuit Court. Rules of court can make special provision for determining an application under this section where the mother consents in writing to the appointment of the father as guardian and if the father is registered as father in a register maintained under the Births and Death Registration Acts.

Let us consider what this means for many couples in social terms. Currently approximately 200 decrees of annulment are granted each year by the marriage tribunals of the Roman Catholic Church. Many people who have obtained Church decrees of annulment remarry another person in Church. We have many couples — the total numbers are unknown — who are parties to such second marriages which according to their Church are marriages celebrated in the eyes of God. Canonically, spiritually, the couple are regarded as married to each other. Very often they are regarded as married by the society in which they live. The reality is that most couples who remarry after a Church annulment are regarded by friends, relatives and acquaintances as a married couple.

We tend to forget that in our civil law we do not recognise Church annulments. We do not accept in our civil law that the marriage of somebody to a third party following the obtaining of a Church annulment is a valid marriage. We take the view that a person who obtains a Church annulment and marries a second time is still married in the eyes of the law to the first spouse, unless a High Court decree of annulment is obtained. If a husband obtains a Church annulment and marries a second time, according to civil law he is still married to his first wife but according to the Church he is married to the second wife. Most of his friends and acquaintances probably regard him as being married to the second wife. The Revenue Commissioners and the Department of Social Welfare will often turn a blind eye and assume that his second marriage is valid.

What happens to that husband when children are born of the second relationship? Is he automatically a joint guardian of his children under this Bill? No, he is not. If he wishes to be a joint guardian of his children that husband will have to bring court proceedings. Presumably in those proceedings his wife of the second marriage — a wife according to canon law but not civil law — will be named as the defendant, even if she consents to the husband being a guardian. The husband will have to issue court proceedings against the wife with whom he is living and to whom he regards himself as happily married, the mother of his children. He will have to ask the court to make him joint guardian of his child and hopefully the mother will come in and consent. They will have to employ lawyers to explain the procedure to them and issue the court proceedings. The lawyers will charge legal fees for having the father regarded by the State as the joint guardian of children born to his wife and himself, children with whom he is residing in a family home.

I cannot think of a more illogical legal structure to incorporate in a Bill which is designed to place children in a position of legal equality. The child born within marriage has an equal legal relationship to both mother and father. The child born outside civil wedlock still does not have an equal legal relationship. Whereas within marriage the mother and father are joint guardians, outside marriage the mother is a guardian but the father is not, unless he brings court proceedings against the mother.

Many couples will not be able to incur the legal costs incumbent in bringing such applications. Will the courts be able to cope with the numbers of such applications which could be brought if couples decided to incur these legal fees? Could our courts be swamped with court applications? The law centres cannot currently cope with the demands on them because the solicitors there are overworked and the centres are understaffed. Will they be able to cope with giving people advice and representing them in the bringing of such applications? That is the position looked at from the perspective of a husband who has had his first marriage annulled in the tribunal of the Church and who marries anew.

The problem has still broader implications. There are many couples whose marriages have broken down who do not get Church annulments but foreign divorces. Many of them get foreign divorces which are not recognised in Ireland and marry outside Ireland. They then come back to Ireland living with a new spouse in circumstances where we do not recognise the marriage. In their neighbourhood everybody regards them as married. In many instances the Revenue Commissioners turn a blind eye and give them the benefit of the married person's tax allowances and tax benefits. The Department of Social Welfare will often not look behind the marriage certificate to find out whether it is a valid marriage. What will happen to that couple when a child is born to them? If the father wishes to be the joint guardian of his child, even if the mother consents, he will have to issue court proceedings, have the mother named as a defendant and go to court.

It is not beyond the bounds of human ingenuity to devise a more sensible system. Legislation placing children in a position of legal equality in many other countries contains a clause providing that where a couple are cohabiting or in circumstances where the couple are not cohabiting and the mother consents to the father being guardian, and where the mother and the father have agreed that the father be registered as the father of a child on a birth certificate, the father automatically becomes guardian. Such a provision is contained in an Act dealing with the status of children and passed by the New Zealand Parliament in 1969 and it has been copied by many other countries. Why we have to provide this very peculiar and archaic procedure which seeks to preserve a difference between children born to couples outside marriage in circumstances where the couple agree that each should be a guardian of their child and children born to a married couple, I do not understand.

We debated this issue at great length on Committee Stage. We considered a whole series of amendments relating to this mater in our efforts to get the Minister to consider rearranging the Bill to cut out the necessity for such court applications. The Minister undertook to look at the matter and come back to us on Report Stage. He said he would consider what other steps could be taken. It seems to me that the Minister has not done anything about the issue because there is no amendment tabled in his name. I anticipate that the Minister for Social Welfare will tell me that the Minister for Justice, who is not present, is unable to accept my amendment. There is no logical reason why the amendment should not be accepted. I predict, if my amendment is not accepted, that within a few years of the Bill becoming law an amending piece of legislation will be introduced in the House seeking to introduce a provision virtually identical to my amendment.

In my view after the legislation is passed Members, including members of the Fianna Fáil Party, will have couples from all over the country arriving at their constituency clinics expressing concern about this issue. I am referring to couples who have remarried after Church annulments and where the father wishes to register and be named as guardian of the child. Those people will be inquiring as to how they should go about having the father registered as the guardian. I have no doubt that they will be outraged when told that they must involve themselves in court proceedings. Many of those people have not been to a court and do not want to go near one or want to see lawyers. However, they will be forced into lawyers' offices and to get involved in court proceedings. It is totally unnecessary that they should be required to do so.

I have no doubt that it is futile to ask the Minister to accept my amendment. He may say it would be too easy to allow fathers to become joint guardians if he adopted my amendment, that the courts should exercise some degree of discretion over the matter. I do not see that as a valid point. In the case of a child born to a couple who know each other, where the mother wishes the father to be joint guardian and the father wants to be a joint guardian, I do not see why the courts should involve themselves. If the child is at risk in any way, whether he or she is born to a couple who are married, or to a couple who are not married, our health boards have powers to deal with that problem. A child will not be placed at risk by the father being named as joint guardian.

I urge the Minister to accept my amendment although I do not expect to get a positive response from him. I regret that I have to continue to say, as I did on occasions during the lifetime of the previous Government, that when we have debates on issues of a technical nature but which have a profound impact on the lives of a great number of people, on issues that should not be party political, we do not have a constructive legislative approach whereby it would be regarded as acceptable for Ministers occasionally to accept amendments tabled by Opposition Deputies. I welcome the fact that amendment No. 1 was accepted by the Minister but that amendment was tabled by me on Committee Stage and it could have been accepted then. However, the Minister told us he had to consider it and we all know that meant that because the Minister had not tabled it he would not accept it. He is willing to adopt it now and put it in his own name.

We have a most immature approach to legislative procedures in this House. I expect that as we go through the other amendments the Government will adopt the approach of opposing them all. However, I will keep pushing when we are discussing amending legislation until public opinion forces Governments of whatever political persuasion to start to regard what takes place in the House as a legislative process rather than something that is automatically part of a party political battle. The measure before us is of no relevance in party political terms. It is of a technical nature and people outside the House would not know a great deal about what we are debating.

If my amendment is not accepted hundreds of men and women, hundreds of mothers and fathers, will be forced to get themselves involved in unnecessary court proceedings. As the years pass, we will be talking about thousands of mothers and fathers finding themselves involved unnecessarily in court proceedings. We may have the approach of the fathers concerned regarding the legislation as so ludicrous that they will not make the court application even though it may be in the interest of their child or children that they should be joint guardians. If that happens children will suffer. I urge the Minister to accept the amendment although I must add that I am not optimistic that I will get a positive response.

The amendment is a reasonable compromise on the question of guardianship. There are various positions that might be taken up on this issue. It might be a line of argument to say that both parents automatically should equally be guardians of the children. Provision could then be made for the mother to apply to the court to take away the father's guardianship rights if he was not taking any interest in the child or was not involved. It might be said that if the father involves himself with the child, or if the father and mother are living together for a fixed period, the father should automatically become the guardian. However, we are not making any of those statements; we are saying in the Bill that if the father is to achieve what is his natural right, to be a guardian, he has to go to court. I do not know why we should compel him to go to court in every case. It may be appropriate for him to have to go to court in certain circumstances but not in every case.

If two adults who are living together have a child and agree that they should be joint guardians of that child — that is the most natural thing in the world — and put that agreement in writing, that ought to be enough. Who else needs to be pleased? Is it necessary to please me, Deputy Shatter, Deputy Barnes, the Minister or the Ceann Comhairle? Who else is concerned? The couple with the child are living together and want to be guardians of the child and there is nobody else involved once agreement exists. If there is a dispute and the father is causing trouble, or is not showing any interest in the child, that is another matter. The mother is not going to sign a written consent to say there should be joint guardianship in that case.

What are we on about here? What is the problem? It seems clear enough. Are we dealing with people under a disability who cannot be allowed to make a consent and come to their own arrangements regarding guardianship of their own children? This is the type of disability we would place on people who were insane or under age. If we are saying the wife cannot sign because she is under age that is fair enough and I accept it, but if she is what we recognise in this House as an adult and in control of her senses — and so is the father — that ought to be enough. Why do we have to say it is not enough that the parents of the child agree about guardianship but must still go into court? It is no good the Minister telling us he is making court procedure easier. For an ordinary person any court procedure has a measure of intimidation and difficulty about it.

The present system of legal aid is totally inadequate to cover civil claims or civil applications of this kind, and that presents a difficulty. It involves time and trouble. Many people are nervous about the concept of a court, even a simplified procedure. They fear the idea of court proceedings. Why should any Deputy or Minister insist that when the parents agree on a course, they still must go into court? I cannot see the reason for this.

I raised this point on Committee Stage and the only signal I could get in response from the Minister was that the mother might be constrained to sign the consent under duress. I suppose that is a possibility, but any paper she would be compelled to sign under duress would not be a binding document and she could bring a claim to establish that fact. In any case, duress could also be applied to get her to sign the consent document as well as going into court and giving her consent to the application. I do not see that possibility as a sufficient pressure to push them into court where adult parties consent to guardianship.

There is too much unnecessary court involvement in this Bill. This is one area where we should avoid courts, at least until such time as the Minister and the Government organise a full and free legal aid service in civil matters. I recognise that in certain cases court proceedings are unavoidable, and that is unfortunate, but when they are avoidable in basic, obvious cases, then we should allow guardianship to set the family's position in order on the parents' signatures.

On Committee Stage I indicated The Workers' Party's opposition to this amendment. I said we would be concerned about the position immediately at, about, or shortly after the birth of a child born outside wedlock. I said this can often prove to be traumatic and that elements of acrimony can exist at a time when a mother is often found to be vulnerable. I suggested that the amendment would be acceptable if a certain time had elapsed from the birth of the child. What I had in mind as being acceptable was that this procedure could be embarked upon 12 months after the birth of the child. By reason of the fact that the amendment has been introduced using the same wording as on Committee Stage, our position has not changed and for that reason The Workers' Party will not be supporting this amendment.

I would agree with many of the points made by previous speakers. It is important that we get away from the need for recourse to the courts as much as possible. There is no reason why, if adults are prepared to consent, they should not be facilitated with an informal, less costly procedure, avoiding courts entirely if that is possible to enable a registration or declaration of parentage to be acknowledged and registered. However, as I said, in the absence of any alteration to the amendment proposed by Deputy Shatter, we are happy to rely on the informal court procedure not involving the degree of complexity as has been suggested by some speakers under section 12 (3) (a). For that reason we will not be supporting this amendment.

When this Bill was published many of us were struck by the amount of court procedure involved in bringing about the long awaited reform which we all want to see made as simple as possible. Another point about this Bill is that it is more negative than positive in its approach. If this Bill is to ensure the legal acknowledgement and status of all our children and the encouragement and approval of having the father face up to his responsibilities as a parent taking joint guardianship with the mother, it should be worded to encourage this rather than placing unnecessary obstacles in the way. For all the reasons the other speakers mentioned — such as overcrowded and even closed free legal aid centres because of over-burdened case loads, because of the intimidation and the awe in which many couples hold the court — if parents want to take full responsibility for their child, they should not feel they have to go through a court procedure to do so. This is the most natural and encouraging supportive way for parents not alone to behave but to be allowed to behave. Yet, in this Bill we have a total denial of that positive element we all want to see in this legislation.

This was fully thrashed out on Committee Stage. I believe everything in this Bill should be positive. There are elements in this Bill which seem to be unique to this country, one of them being the difficulties which many parents find themselves in because we do not have civil divorce. Apart from the other constraints and denial of rights to couples who find themselves living in situations which Deputy Shatter explained and defined, we now wish to put a second and further burden and denial of the same rights to them as to those whom we acknowledge as being married.

It is incredible that Deputy Shatter could quote other countries which have freely allowed this type of guardianship to be adopted by the father without having to go through court procedures. New Zealand, since 1969, has been independent enough, open enough and trustworthy enough to allow the parents, without legal complications, to make up their own minds and has encouraged them to form relationships and full guardianship. Ireland does not give the same freedom of choice or the same legal acknowledgement to second relationships, second parenting and second families as is given in most of the rest of the world. Most other countries need this type of positive legislation because of the difficulties experienced legally and indeed socially at times by the couples defined by Deputy Shatter. Not alone should we at least accept such legislation in this country, we should positively discriminate in favour of those couples because of the difficult legal position in which they and their children find themselves.

The other element which Members of this House should take seriously is the type of authoritarianism which pervades our legislation. Ordinary citizens are not deemed to be independent and mature enough to make personal decisions without the intervention of legislators or the courts. When will we trust our own people and make laws which will allow them to act with autonomy and independence in their own right? There is a psychological dependence which is very negative and at times downright destructive. This legislation condones and supports such an attitude. Along with the authoritarianism goes a paternalism which I resent.

I take the senstitive point which Deputy McCartan made and he did so in good faith in regard to women acting as if they had not mind or will of their own after the birth of a child. This continues the myth perpetuated that a woman in these circumstances is some kind of hysterical or mindless creature who needs to be protected. If safeguards are incorporated they will apply to the minority. Why should we bring in negative, complicated and costly legislation to address itself to the minority of cases where a mother may need to be safeguarded? I reject the allegation that women are less mature, less independent-minded and less caring of their rights and the good of their children. Other Members have asked if we are going through some kind of a farce every time we go through the various stages of legislation in this House. Why do we bother using time, effort, printing and paper to bring in amendments on Committee Stage when the Minister soothes us by saying he will consider them on Report Stage? In my optimism and naiveté, I believed the Minister for Justice when he said he would give consideration to the very valid points made by members of all parties on this side of the House. I fully expected the amendments on Report Stage to be accepted or amendments in the name of the Minister to be put down.

As Deputy Shatter said, the legislation in this House can no longer continue to be treated as farcically as at present. It is opposed for the sake of opposition, the expertise and experience on this side of the House, particularly in the complicated and sensitive area of family legislation, being denied or ignored. The Minister for Social Welfare, in response to a former amendment which was not accepted, hoped that legislation promised would go some of the way towards reforming what was needed in that amendment. Considering the slow, sluggish, and at times frustrating, path that legislation takes through this House and the Seanad, everything possible to encompass within the legislation we are at present addressing should be accepted with alacrity and energy because God knows when the next reforming legislation will be allowed in the House

I appeal to the Minister to address himself to this amendment for the valid reasons given and to allow people to have some say, independence and maturity in their affairs.

The Minister has looked again at this amendment as he promised on Committee Stage. However, he has found nothing in the arguments then or now which would persuade him to take any approach to this matter other than that provided for in the Bill.

He has not heard the arguments.

He considered the arguments made on Committee Stage. It is very interesting that Deputy Shatter spoke about the political differences in this regard because the previous Government came to exactly the same conclusion after considering the matter. When the then Minister of State, Deputy Fennell, spoke in the Seanad she also supported the Minister's conclusions. Of course, this is a different time and people are entitled to take a different view. However, it is odd that it was not an extraordinary provision at that stage. When the Minister came to examine this matter following Committee Stage he came to the same conclusion. Deputy Taylor said that at least until there is a simplified and inexpensive court procedure — he was obviously thinking along similar lines, of the need for an informal procedure, which is the direction in which the Minister is going——

That was not what I said. I said, until such time as a legal aid system is provided.

I am taking that as meaning inexpensive, without going into the legal aid system.

Deputy McCartan was happy to rely on the informal procedure. In that he is correct, as action on the informal procedure has already been taken. The Court Rules Committee were asked as early as January this year to make the rules for the Bill and particularly for the informal procedure referred to in this part, to be installed before the Bill comes into operation. This procedure was debated at length in the Seanad and is now well under way. In Part 1 Section 1 (2) (b) it is stated that

Parts II to IX shall come into operation six months after the passing of this Act or on such earlier day or days (not being earlier than one month after such passing) as may be fixed therefor by order or orders of the Minister for Justice, either generally or with reference to any particular Part or Parts.

The purpose of allowing the six month period as a maximum was to ensure that the informal procedures would be in place before these measures came into operation. Needless to say, the rules of court are made for each of the different levels in the court but the Minister for Justice must concur in their making before they become law. Each rules committee consists of judges of the appropriate court and representatives of both branches of the legal profession under the chairmanship of the president of the appropriate court and they have a wide discretion in specifying procedural matters subject to the concurrence of the Minister. The rules committee have already been asked in anticipation of the passing of this Bill to consider what rules of court may be necessary under this and other provisions of the Bill. It is for the rules committee with their experience of the practice and procedure of their respective courts to determine how the informality required will be given effect. Deputies who are relying on that procedure can be happy that the procedure is well under way, that urgent attention has already been given to it by the previous Government and by the present Minister.

As the Minister pointed out on Committee Stage the question of a person's guardianship is very serious. The appointment of a person as guardian can affect every aspect of a child's upbringing and welfare. It is generally accepted that where a child's financial future is concerned there should be a hearing to ensure that the interests of the child are secured. We see this principle in action every day of the week where settlements agreed by the parties in an ordinary running down case must be agreed to by a judge where an infant is concerned while no hearing is necessary where the parties have reached the age of majority. In relation to agreements dealing with maintenance and property settlements for a child, section 8 of the 1976 Act and the new section 8A of that Act at section 20 of this Bill give effect to this principle. It is considered necessary to have a court hearing where mere money or moneys worth is involved. It is surely all the more important to have the court consider the matter when other less tangible but often far more important aspects of the child's welfare are at stake, such as religious and moral upbringing, education and his or her physical and social welfare generally.

The Minister is satisfied that in the case of a child whose parents are not married to each other, the appointment of the father as the child's guardian is of sufficient importance to require that the matter be placed before the court so that it can be considered whether the appointment is in the interests of the child. I am aware that there are many cases where the father is a loving father and shares in providing a stable family environment even though he and the mother of his children are not married to each other. While the Minister has no desire to encourage the institution of legal proceedings, however informal, where this can possibly be avoided, he remains convinced that even in the light of such cases it is advisable that the court should be asked to approve the appointment of the father as guardian because of the seriousness of the issues for the child. The Minister has given a great deal of consideration to this matter and he was very concerned about it and recognised the genuine views presented by Deputies on Committee Stage.

As the Minister said at that time guardianship is a very important responsibility as a guardian has the destiny of a child in his or her hands. It is important that the fact of guardianship be ascertainable by the public at large, that a public and verifiable record of the relationship of guardian and child be available. There must be some means by which people involved in the child's upbringing, such as doctors and teachers, may be able to check from public records who is the guardian of the child where there is doubt about it and important decisions must be taken about the child's welfare. In the case of the child of a married couple the fact of marriage and of birth on which the guardian-child relationship is based are matters of public record. In the case of a testamentary guardian, the will which makes the appointment also becomes a public document. Where a guardian is appointed by the court, the court records will show this. In the case of a child whose parents are not married to each other, the births register points to the mother as sole guardian of the child. If the father were to become guardian following entry of his name on the births register and the mother giving her consent in writing, there would be no public record of this transaction.

Deputy McCartan referred to an important point when he pointed to the acrimony that can be there at certain times and the fact that the mother may be vulnerable. The Deputy felt that the danger period here would perhaps be the first 12 months. However, there is nothing to show that the vulnerability may not last longer. It is to guard against someone taking advantage of her vulnerable position that a proper hearing should take place. If the father were to become guardian following the entry of his name on the births register and the mother giving her consent in writing there would be no public record of that transaction. One way of giving such a document the status of a public record would be to have it registered as a rule of court in much the same way as an agreement between spouses for maintenance can be registered under section 8 of the 1976 maintenance Act. Registration of the court implies approval by the court. If a court is to approve such a document it must in arriving at its decision consider the welfare of the child as the first and paramount consideration. The Minister was prepared to consider a provision along those lines but there seemed to be very little distinction between that and what he is proposing at this stage.

The Minister feels that where parents enter into an agreement which involves the provision of maintenance for a child or a property settlement which will affect the child's interest, court approval is necessary to ensure that the child's interests are secured. This is concerned with the child of the family but section 20 of the Bill proposes a similar provision in the case of a child whose parents are not married to each other.

The Minister went to great pains on Committee Stage to consider this matter in detail. I can assure Deputies that since then he has done likewise. Nevertheless in the interests of the child he feels that the way in which he is approaching it is the best. In many cases, the child, his mother and his father, may be living in a marriage like situation where the father sharesde facto guardianship with the mother. This does not mean, however, that if the father's position as guardian of his child is to be put on a legal footing it should be done in a way which circumvents the safeguards that a court hearing, however informal, offers for the child's welfare.

Section 12 of the Bill enables the court to give proper consideration to all the relevant factors in each case including, in an informal hearing, where the mother's consent was free and informed. The Minister has also considered a point which was raised concerning the inclusion of guidelines in the section. It is not possible, in his view, to formulate any such guidelines which will not either be so restrictive as to exclude otherwise suitable cases, or else so loosely expressed as to be capable of admitting otherwise unsuitable cases. The wide variety of circumstances which can arise from case to case means it would be futile to attempt to guide the court in any more particular way than that set out in section 3 of the Guardianship of Infants Act, 1964, which is in the following terms:

Where in any proceedings before any court the custody, guardianship or upbringing of an infant, in question, the court in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.

The term "welfare" is defined in the Act as comprising the religious, moral, intellectual, physical and social welfare of the infant. For these reasons the Minister decided to proceed with the informal arrangements which we have mentioned and he is opposing the amendment.

During the course of his long comments the Minister for Social Welfare, unknowingly, highlighted one of the most idiosyncratic implications in this amendment, one which I had not yet mentioned during this stage of the debate but I mentioned it at earlier stages.

The Minister refers to the fact that there are a number of ways in which someone can become the guardian of a child. In our law at present a couple who are married to each other and who have a child are joint guardians by virtue of their marriage being valid. The husband and wife, as mother and father, automatically become joint guardians as our laws stand at present. The position will remain unchanged if this Bill is enacted in its present form. The mother of a child born outside marriage is automatically the sole guardian.

This Bill allows the father of a child born outside marriage to become a guardian jointly with the mother by making a court application and by getting the court's approval to becoming a guardian. The mother who is currently sole guardian, with the court's approval, can have the father made a joint guardian. The Minister says it is in the interests of the welfare of children that, even in circumstances where a mother consents to the father becoming a guardian, the court reviews the matter to ascertain whether the father should be joint guardian. He emphasises that point as a matter of some significance. Inherent in that point is the suggestion that fathers of children born outside marriage are generally not reputable people and that, generally speaking, they should not be guardians of their children.

Why is it necessary for courts, in circumstances where the mother and father agree, to check out whether the father should be a joint guardian when it is not suggested—and I would not suggest that it should be the case — that, if a child is born outside marriage, before the mother becomes a guardian she should be checked out to see if it is in the interests of the child. We have here an inherent discrimination against fathers instead of legislation providing for equality seeking to encourage the father of a child born outside marriage to play a role as father both socially, parentally and legally. There is an inherent bias based on an assumption that fathers of children born outside marriage are generally disreputable people even in circumstances where the child is born to a couple following a Church annulment and a second marriage.

Is the Minister suggesting we should have a procedure whereby for any person, married or unmarried, to become the guardian of a child born to them, the court should check out their bona fides? Is that the type of intrusive legislation the Minister is suggesting, because that is the only logically consistent approach on the basis of what the Minister has said so far? Let us develop the point. The Minister apparently is of the view that fathers of children born outside marriage should only become guardians if the court approves, but that is not currently the legal position.

The Minister has made reference to the concept of a testamentary guardian. A testamentary guardian is someone who becomes guardian of a child because they are named in the will of a deceased parent to be the guardian. If the mother of a child born outside marriage makes a will today — as she can do — she can name in that will the father of the child to be testamentary guardian on her death. She can also name a variety of other people, who might be unrelated to the child, to be testamentary guardians. On the mother's death the father of the child automatically becomes guardian because he is named in the will as guardian. No court application is necessary. No court decision has to be made and no review has to be undertaken regarding the welfare of the child.

If this legislation is enacted in its current form — which appears to be the case taking into account the views expressed by The Workers' Party and the Fianna Fáil Party — while the mother is alive she cannot by consent have the father of her child made a joint guardian with her without court approval. But when the mother is dead she can nominate the father to be guardian without any court approval being required. That is even more illogical than some of the other anomalies that will arise, which I have pointed out, if this legislation is enacted in its current form.

There is an aspect of what the Minister has said, and with respect to Deputy McCartan of what he said, that is also extraordinarily offensive to women and mothers. This idea that a woman who gives birth to a child becomes by virtue of her pregnancy or birth a simple-minded, semi-mad creature, who is unable to make rational decisions about anything for a week, a month, a year or, according to the Minister, even for years after the birth of her child is the most extraordinarily offensive and demeaning approach to adopt to women here, or indeed anywhere else in the world. The sort of remarks that have been made in this regard in this House would be a cause of outrage in other parliaments in Europe. There is this assumption that if a women gives birth to a child and within a few days of the birth says: "Yes, this is the father of my child; yes, I want him to be joint guardian with me" the woman either has become so feeble-minded or has gone so insane that she could not possibly make a responsible decision.

It is difficult to sit and listen to this gross misrepresentation of what has been said.

Because that is the ultimate logic of what Deputy McCartan and the Minister have said on this issue, and they should face up to it.

——and the Fine Gael Party earlier in the year, as a matter of interest.

There may be an excuse for Deputy McCartan — he has a parliamentary party of four male members — there may be an excuse for him. Admittedly the Fianna Fáil Party do not have too many women Deputies but they have enough to know, or perhaps the Minister has discovered that some of his colleagues, having given birth to children, have become feeble-minded and gone mad. I have not seen that in this House at any stage. Perhaps the Minister knows something I do not know.

Let us look behind what is being said in that respect. There is an inherent prejudice involved in the comments that have been made with regard to a woman consenting to the father of her child being a joint guardian shortly after the child having been born. It is a most extraordinary view. I do not understand why people advance these sorts of views but there is, on occasion, a need to examine what can only be the logic behind what is being said. That seems to me to be the logic of what the Minister and Deputy McCartan have said.

The Minister made the point that the Bill, as originally published, did not contain the provision I am endeavouring to have inserted. That is very true. The Bill before the House was substantially amended as it went though the Seanad; there were a number of improvements effected to it. We should remember that Ministers are as good as the officials who advise them in technical areas of this nature. Let us accept the reality of that in this House, that this Bill, when originally published, had the correct sentiments but many of its provisions were legally defective. The former Minister, who dealt with it in the Seanad, agreed to accept a series of amendments which were made to it and there have been amendments made in this House. The Minister — or his colleague the Minister for Justice — has begrudgingly on Report Stage now accepted some of the amendments we sought to get him to agree to on Committee Stage. We are engaged in a legislative process. We are trying to tease out how we can improve the Bill. It has become apparent only as this debate has progressed that this particular approach — requiring all fathers of children born outside marriage, no matter what were the circumstances, to have to get court approval to become joint guardian with the mother — is very illogical in the context of many circumstances in which children are born outside marriage, that indeed it might be preserving a discrimination in our law rather than removing it, that hidden behind it is a very odd view of fathers of children born outside marriage and apparently — as it has emerged today — an equally odd view of the state of mind of mothers when they give birth.

I do not make any excuse for having tabled this or some of the other amendments I have tabled, some of which the Government have accepted. For the Minister to talk in this House about people who expressed one view 12 months ago now expressing a different view is walking on very thin ice and on very sticky ground. If I were the Minister I would adopt the approach that people who live in glasshouses should not throw stones. Indeed the glass about the Minister's house is very fragile and the views he expressed on every issue of a social or economic nature 12 months ago are very different today. Were I the Minister I would be very cautious about drawing anyone's attention to the comments made with regard to any issue in this House by any member of his own party, including himself.

In the context of this Bill we are engaged in the legislative process to ensure its provisions work. I want to examine this informal procedure the Minister lauds and some of the problems inherent in that. The Minister quotes the Guardianship of Infants Act. Let us assume an application is made by a couple following the birth of a child to a district justice. The father of the child has previously got a Church annulment and has married the mother of the child in Church. According to the civil law their second marriage is not valid though it is according to the laws of the Church. The mother wishes the father to be joint guardian with her and the father does also. They go into the District Court and lodge an application. The district justice has to determine, on the basis of the child's welfare, whether the father be named as joint guardian. He has to consider the moral, religious, physical and social welfare of the child. The district justice has this couple in front of him, who are recognised by their Church as being validly married to each other, who are accepted by friends and relations as being married, but whom the law does not recognise as being married. What decision is that district justice to make on the basis of welfare? Is he going to say: "Here we have a couple living in sin: they are engaged in an adulterous relationship; it is contrary to the moral welfare of the child of whom this man wishes to be joint guardian; here is a man committing adultery, living apart from the wife he married civilly; I do not believe it is in the interests of the welfare of this child that this father be joint guardian." Is that the approach the court or district justice will take because it is a very real possibility?

Could the district justice take the matter further? Could he say that, in the context of this couple, not only is their marriage not valid but that the father is engaged in a criminally bigamous act, that he is going to refer the relevant papers to the Director of Public Prosecutions to have the father prosecuted because he has come into open court and admitted he has celebrated a second marriage in circumstances in which his first marriage exists? Could the district justice go on to say: "I do not believe it is in the interests of the welfare of this child that this father be made joint guardian because clearly he is a person with a criminal background and is now a person liable to seven years penal servitude for committing bigamy"? Could the district justice say that it is not in the interests of the child's social welfare that the child have this adulterous and bigamous father named as joint guardian because people in the neighbourhood and relations might talk about it; that if the school authorities learned of it it would be contrary to the child's social and educational welfare? Or would the district justice say: it accords with the child's religious welfare that this man be named as joint guardian because, although in the eyes of the State he is not married to the mother, in the eyes of God he is?

I do not know how district justices around the country will take decisions in such circumstances. I do know that if that couple are happily living together and bringing up young children, it is probably the view generally of people outside this House that they should be joint guardians of their children. If the father acknowledged he was father, if the mother consented to him being joint guardian, if he was registered as father in the Registry of Births, then I do not see any reason why the couple should place themselves at risk of that sort of court procedure in determining whether there should be joint guardianship. I believe it is in the interests of the welfare of children that the father who is father in those circumstances be automatically joint guardian.

What will lawyers advise people in those circumstances, people who are living together in what are socially regarded as marriage relationships — either because they are simply co-habiting after one or other of them has had a failed marriage or because they are living together having got a Church annulment and having remarried, or because they have got an unrecognised foreign decree of divorce and their marriage is not recognised in this State? What will lawyers advise them to do?

I think a lawyer would have to advise a father in those circumstances making application to a district court to be named as joint guardian, that he cannot anticipate the district justice's reaction. He cannot anticipate what decision might be made on the welfare issue and, even more dangerously, he cannot guarantee the father that the particular district justice may not decide to refer the papers to the Director of Public Prosecutions for a prosecution to be brought against him, he having clearly celebrated a second marriage.

Therefore, instead of providing a positive, legislative framework within which to encourage the fathers of children born outside marriage to not merely participate in the day-to-day upbringing of their children but to be joint guardians of their children, we are presenting a framework within which there are a number of inherent dangers and in respect of which this House can have no certainty on what basis decisions will be taken by district justices, be the decision formal or informal, when a father seeks to have himself named as a joint guardian.

What will happen is that fathers will play a game of judicial roulette. Some district justices will be helpful and sympathetic but others will not be. Many of them will bring their own subjective views of life to bear on determining whether it is in the interests of the welfare of a child that a particular father should be named as guardian. The system that this Bill proposes is extraordinarily foolish. I regret that the Minister cannot support my amendment. I find the approach of The Workers' Party, who present themselves as a progressive force in Irish society, a little surprising but considering that they did not support certain other amendments to the Bill I am not too surprised at this stage.

There are many assumptions made with regard to fathers and mothers in the context of the provisions of this Bill which are anachronistic and insulting. I regret that it is clear that this amendment will not be passed. However, I believe that many of the problems that I have outlined in this House will mean that in the not too distant future there will be great pressure for this issue to be brought back to this House to be dealt with in a more logical framework.

The Minister said that if a mother consents there will be no public record of the father having become a joint guardian. Rules and ministerial orders can be made under the Births and Deaths Registration Acts which are dealt with also in this Bill. There is absolutely no reason, in circumstances where a father is inserted as the father on the form to be filled in in the context of a child born outside wedlock, a mother could not equally at that time sign a consent to the father being joint guardian. That could be done in the context of a simple statutory instrument under the relevant births and deaths registration Act. If this was done there would be a public record; the mother's consent would be recorded, the father's paternity of his child would be on the birth certificate and this would cut out the necessity for court proceedings of any nature whatsoever.

If any difficulty arose in the future between a mother and father with regard to a child, it could be resolved by the courts by way of proceedings either one of them would bring under the Guardianship of Infants Act. This is what happens at present when difficulties arise between mothers and fathers, be they married or unmarried, relating to custody, access or guardianship disputes over children. There is no reason for dealing with this in the way it is dealt with in the Bill. The framework we suggested is far more logical. I would like to thank Deputy Taylor for his contribution and his support for this proposal.

Amendment put and declared lost.

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.

I would have expected that the Minister and the Department of Justice would have welcomed this amendment with acclamation. As outlined by Deputy Shatter, it goes a long way on every level towards ironing out problems, towards avoiding costs and particularly, and this is what all of our legislation must be about, towards easing the position financially and emotionally for couples and their children who have to go through this process. I am constantly reminded when debating these amendments of the title of this Bill which is the Status of Children Bill. As has been said, it is about reinforcing the position of children, particularly those who through no fault of their own find themselves outside the legal boundaries that exist already. As Deputy Shatter has said, when the High Court declares a marriage null and void the children who have been part of that legal and valid marriage find themselves outside that boundary. That is not taking into account the emotional trauma of everybody concerned in having to go through the process of a High Court case. That must be heeded very seriously if we are going to set up, to help in the Department of Justice in particular and to help us as legislators in general, such agencies as the Law Reform Commission to explore these matters and to make recommendations on them. When one considers the process we have to go through when legislation is needed urgently, the least we can do when such reports are made and such recommendations are given to us is to take them seriously.

One of the most important points made by Deputy Shatter is that people dealing with these matters on a regular basis, the association of family lawyers, have made recommendations and asked that this matter be treated as urgently as possible. They, in their daily experience and practical dealings with it are encountering obstacles that they find indefensible. I would have believed that the introduction and acceptance of this amendment would be an answer to the recommendations of the Law Reform Commission, to the requests of the association of family law-years and to the whole force and direction of legislation as drafted by the Minister and the Department of Justice. It seems incomprehensible that when we have an opportunity to adjust an area that is causing such a problem we do not act upon it with alacrity.

Like Deputy Shatter, I await the Minister's response. I feel it is almost impossible that he could respond with anything but the affirmative on this matter. If we take this matter on a practical level, leaving aside the rights of the couple and the children involved, above everything else in this country—and I am sure this would be supported by the Department of Justice — would be the introduction of legislation in this House that would depend on less complicated, less costly and less drawn out court cases.

It seems almost incredible that when we have an opportunity to amend the legislation we would insist that High Court proceedings would not be allowed to be expanded to deal with this important and fundamental area. As it stands, there is considerable cost involved as well as the emotional trauma of the family who have to experience again what they have painfully gone through before. I am sure the Minister will agree we should ensure that the people who have to go through such an experience should suffer as little pain and as little cost as possible. Taking into consideration the fact that all our courts are clogged up already and the process that one would have to go through at District Court or Circuit Court level, we should deal with this matter now. Our primary consideration should be for the parents and in particular the children involved. I look forward to the Minister's acceptance of this amendment.

As a relatively new Deputy in the House, the approach and anticipated response of the Minister will make me very slow to accept future undertakings on Committee Stage that a Minister will agree to review or consider a matter for Report Stage. When we discussed this matter on Committee Stage the Minister for Justice had very little to say in opposition to it and seemed to accept the wisdom of the amendment and the whole point of it, which was a matter of streamlining and putting in order what appeared to be an oversight. It appears the failure to respond indicates the Minister was being a little dishonest and calculating in his approach if there was not an oversight and his Department and officials have not considered this matter.

I cannot begin to presume or anticipate what will be the response of the Department officials or the Minister to the suggestion that we should include this amendment, in the Bill as proposed. Its inclusion seems to be totally and utterly sensible. It gives us an opportunity to add to existing legislation a provision which would entitle the parties bringing proceedings for nullity to ask the court to make other orders that would naturally flow from the consequences of a declaration of nullity. As the law stands, the parties will have to retreat to their respective lawyers and start afresh proceedings relating to issues of parentage or otherwise.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.