I am glad the Minister has decided to proceed with this rather simple matter to abolish proceedings for the restitution of conjugal rights. All parties, and I would expect all Members of the House to agree that this is a pretty straightforward Bill which will not give rise to any serious argument or matters of serious contention. The remedy under the old common law action for restitution of conjugal rights has not been used for quite some time and must now be regarded as being obsolete in the extreme.
On 7 November 1983 the president of the Law Reform Commission, the Honourable Mr. Justice Brian Walsh, published Law Reform Commission Report No. 6, which advocated change maintaining that it was hardly relevant to have a law on the Statute Book compelling two people to live together if they are not on good terms. The Law Reform Commission weighed up the pros and cons and the report is there for all to see. I do not intend going into the contents of that report in detail, but I believe the ideal of bringing a married couple who are experiencing difficulty in their marriage before a court and requesting a court decree that they live together, must surely have had a result of advocating the existence and fostering of unhappy marriages.
It is somewhat ludicrous by today's standards to reflect on sections 1 and 3 of the Ecclesiastical Courts Act, 1813, which stated that where a spouse failed to comply with a decree for restitution of conjugal rights he or she may be committed to prison for a period not exceeding six months.
By enacting the Family Law Bill, 1987, we are following the abolition of similar actions in other jurisdictions. It was submitted in 1969 in the English Law Commission Working Paper on the subject that:
It is intolerable interference with the freedom of individuals for the court to order adults to live together and it is hardly an appropriate method of attempting to effect a reconciliation.
That commission concluded that the law was being brought into disrepute by the existence of such an action for the restitution of conjugal rights. The Irish Law Commission in their wisdom decided similarly that it is inappropriate and ineffective in the latter part of the 20th century to have such a law on our Statute Book.
A point underlying the difficulties inherent in such an action as it presently stands was touched on by the Law Reform Commission in so far as there was a feeling that there may have been an infringement of rights of the citizen under Bunreacht na hÉireann. These rights included the liberty of the person, freedom of association, the right to travel and earn a livelihood and the right to privacy.
The Law Reform Commission report, however, goes one step further than the Minister is going now, and I quote from that report:
We consider that more support for reconciliation procedures should be made available by the State through financial subsidy of existing marriage guidance and conciliation agencies, as well as through the creation of new conciliation services, by way of pilot projects if necessary.
It is unfortunate that there has been very little in terms of progress in this area since the publication of the report in 1983 and I would again urge the Minister and the Government to act in a positive manner on the question of mediation and support services available to people who are in difficulty in their married lives. We must have a system wherein there is a support structure available to deal with existing problems in society.
I will give an example of State institutions not having a compassionate attitude towards people who may be in difficulties with their marriages. Not long ago, in my own constituency, unhappy differences arose between a couple and the wife sought — and was granted — an order for maintenance in the District Court notwithstanding the fact that she did not seek to have her husband barred from the family home. In December 1987 she was granted the sum of £20 per week out of her husband's salary to look after her eight children. In May of this year, not having paid one penny in maintenance, the wife discovered that the husband had emigrated to Britain. An application for deserted wife's benefit was made, but three months later, the unfortunate spouse in question received a fancy worded circular from the Department of Social Welfare which I understand is policy in such cases, saying that her application would not be further considered until she was able to produce a report on the whereabouts of her husband and to give reasons for not getting maintenance from him even though he had left the jurisdiction and had refused an order of the court to pay maintenance some six months previously. That is one of thousands of examples throughout the country at present showing the heartless attitude of State institutions when it comes to dealing with matters of a family law nature.
It is timely, when dealing with the abolition of actions as outlined in the Bill, to advocate a structure of mediation services designed to allow the parties to resolve their difficulties, where possible, by themselves. This can be a very slow and traumatic process and I draw the attention of the House to a recommendation of the Joint Committee on Marriage Breakdown that consideration be given to three basic means by which mediation can be offered — an independent mediation service, mediation through court welfare systems and mediation by a judge or somebody in a quasi-judicial capacity. Having considered these three possible structures, the committee formed the view that an independent mediation service was by far the most attractive. Obviously — I am sure the Minister will agree — the question of finance is paramount and I would be the first to accept that the setting up of such a mediation scheme could prove an expensive undertaking. However, we must look at the fact that there may be considerable and significant savings in the legal aid area brought about by the resultant fact that there would be fewer court applications if we had the proper mediation services and structures available.
We should give careful consideration to early reorganisation of the family court structure. I have spoken on this several times in the past, having had firsthand knowledge in District Court family law proceedings throughout rural areas. We should address the present objectionable scenario at the earliest opportunity. We are dealing daily with family law cases which are held on the same day and at the same time as criminal matters, road traffic cases, civil suits and debt collection proceedings. By having these cases under an umbrella of formality in the District Court we are losing sight of the primary aim when dealing with marital problems, which should be one of offering assistance to the parties to reach a resolution of their difficulties, if possible by agreement. The approach of a court in the family law area must, at all times, aim to minimise the damaging effects of such court proceedings on the husband, the wife and, more importantly, on the children.
I know it is not in the Minister's area but the Department of Justice should consider taking responsibility for courthouses throughout the length and breadth of the country. Courthouses dealing with family law cases have inadequate consultation rooms, inadequate rooms for hearing cases and inadequate toilet facilities, which all add to the adversarial nature of a family law case. The ultimate insensitivity towards the couple can be seen by the fact that outside many family law courtrooms both the applicants and the respondents have to stand side by side, literally within feet of one another, with their legal advisers, twiddling their respective thumbs and waiting to be brought before a judge. There should be a consultation room where parties could perhaps have a cigarette in privacy prior to the hearing of this most traumatic matter.
The family law court structure must be segregated from other courts. Family courts should sit at different locations throughout the country hearing family matters. Court hearings must be far less formal than at present. Indeed, some district justices have provided an informal court system, off the Bench, where the parties have an opportunity of relaxing without recourse to the legal jargon of a public court. District Court and Circuit Court judges should adopt——