Dáil Éireann debate -
Thursday, 22 Nov 1990

Vol. 402 No. 10

Child Abduction and Enforcement of Custody Orders Bill, 1990: Second Stage.

Minister for Justice (Mr. Burke)

I move: "That the Bill be now read a Second Time".

The purpose of the Bill is to give the force of law in the State to two international Conventions: the Hague Convention on the Civil Aspects of International Child Abduction; and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. Both conventions have already been signed, subject to ratification, on behalf of Ireland. During the course of my speech I will refer to the conventions as the Hague Convention and the Luxembourg Convention, respectively.

The background to the conventions is that child snatching by parents, or "tug of love" cases as they are called, is a growing international problem. This is inevitable in the wake of increasing levels of family breakdown in states, of growing mobility of individuals between states and of easier international travel. The importance of the conventions is that they are designed to facilitate the speedy return of children who are abducted to any contracting state, usually by a parent. The conventions deal exclusively with the civil aspects of international child abduction. While the conventions, in tackling the problem of international child abduction, have common aims and features, they are distinctly different in certain respects in their approach. Both conventions apply to children under 16 years of age and they are based on the premise that where the custody of a child is in issue in court proceedings, the child's welfare is of paramount importance. The conventions deal with the practical and legal problems involved in child snatching by the establishment in each contracting state of a central authority to facilitate the operation of the conventions. The Luxembourg Convention has a scheme of recognition and enforcement under which custody orders of one state are recognised and enforced in other contracting states. In the case of the Hague Convention there are expeditious procedures for the return of the child which, unlike the Luxembourg Convention procedures, can operate in the absence of a court order in the state from which the child was removed.

In becoming a party to the arrangements set out in the two conventions we will be ensuring that as between Ireland and other contracting states there will be a major improvement in the protection afforded to the victims, both children and parents, in child abduction cases. At present, we have no legislation specifically aimed at the matter.

The conventions came into force in 1983 having been ratified in each case by a minimum of three states. The number of contracting states has increased to 16 in the case of the Hague Convention and to 13 in the case of the Luxembourg Convention. The Hague and Luxembourg Conventions have been ratified by seven and eight EC states, respectively, and it is expected that all EC states will have ratified both conventions by 1992.

Deputies may query the relationship between the two conventions and the UN Convention on the Rights of the Child which was signed by the Taoiseach on the occasion of his visit to New York for the Summit on the Child in September last. So far as child abduction is concerned, the position is that the UN Convention requires states to combat the problem by acceding to existing international agreements on the matter. The Bill will enable Ireland to comply with that requirement in the UN Convention.

I should also like to point out that the Bill takes into account the recommendations of the Law Reform Commission in its report (LRC 12-1985) on the Hague Convention and some related matters and I wish to express my appreciation for the work done by the commission in this area.

I have circulated an explanatory memorandum with the text of the Bill. The memorandum deals with the provisions in the Bill as well as the conventions. Having regard to the technical nature of a number of the provisions in the Bill and the conventions, I believe that this explanatory memorandum will prove particularly useful.

The main provisions in the Bill are section 6 in Part II concerning the Hague Convention and section 21 in Part III concerning the Luxembourg Convention which provide that the conventions shall have the force of law in the State. The conventions are drawn up in the English and French languages, each of those languages being equally authentic. The English language texts of the conventions are scheduled to the Bill for ease of reference.

Certain provisions are common to Parts II and III of the Bill. The most important relate to the setting up and operation of a central authority in this country for the purposes of both conventions, and the jurisdiction of the High Court. Briefly, these provisions are as follows. Sections 8 and 22 provide for the establishment of a central authority in the State to facilitate the operation of the conventions. The Minister for Justice, through his Department, will act as the central authority for the purposes of each convention. As regards a child who has been removed to the State, the more important functions of the central authority under both conventions will be to initiate steps to trace the child; to seek the child's return or secure access to the child; and to arrange, if necessary, for court proceedings to secure the return of, or access to, the child. Where the child has been abducted from the State, the central authority will assist the wronged parent in seeking the return of his or her child by making contact with the central authority in the other contracting state and by collating and sending to that authority any information that is required, including welfare reports, about the child. Sections 14 and 30, accordingly, give the central authority for the purposes of the conventions to request a probation and welfare officer, a health board or a court to provide information on the background of a child for transmission to a central authority in another contracting state for use in court proceedings in that state.

Sections 9 and 24 deal with incoming applications, i.e. applications under the conventions to our central authority for the return of a child who has been abducted to Ireland. Both sections make clear that the central authority shall take or cause the appropriate action to be taken under the relevant convention. In this connection the central authority may, for example, have to trace the child in which event it will normally contact the Garda Síochána who will put the necessary procedures into effect. Where court proceedings are concerned the application will be transmitted by the central authority to the Legal Aid Board for attention since applicants will be entitled to legal aid under both conventions. Sections 10 and 32 deal with outgoing applications, i.e. applications under the conventions for the return of a child who has been abducted from the State. In these cases our central authority will assist applicants by transmitting applications and any documentation that is required to the central authority in the contracting state to which the child has been removed.

Sections 7 and 23 are also similar in that they give the High Court jurisdiction to hear and determine applications under the conventions. Sections 12 and 26 provide interim powers to the High Court for securing the welfare of a child prior to the determination of an application under either convention.

I should like to mention also that both conventions oblige the central authority to keep an applicant informed about the progress of his or her application. These are useful provisions which aim to reduce as far as possible the anxiety of a wronged parent.

I now turn to the Hague Convention and Part III of the Bill. The objects of the convention are set out in Article 1 — the convention aims to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states. A removal or retention of a child is wrongful under Article 2 of the convention where it is in breach of rights of custody of a person under the law of the state in which the child was habitually resident immediately before the removal or retention.

Where wrongful removal to, or retention, of a child in Ireland occurs, our High Court must order the return of the child under Article 12 of the convention unless certain grounds for refusal are made out by the respondent. Where the application for the return of a child is made after the passage of one year from the date of removal or retention, return may be refused by the High Court by virtue of Article 12 if it is demonstrated that the child is settled in its new environment. Whether the application for return of the child is made within one year from the date of removal or retention, return may be refused by the High Court on grounds contained in Articles 13 and 20 of the convention. The grounds in Article 13 are (a) that the applicant was not actually exercising custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention of the child by the respondent; (b) that there is a grave risk that the child's return would expose him to physical or psychological harm or otherwise place the child in an intolerable position; or (c) where the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of his views.

Under Article 20 the return of a child may also be refused if it would be contrary to the fundamental principles of the State relating to the protection of human rights and fundamental freedoms. This article is of particular importance in the Irish context in view of our constitutional requirements relating to the protection of human rights.

Another matter in connection with the Hague Convention which I want to mention is section 13. The effect of that section, as required by Article 16 of the convention, is that any custody proceedings which are before any court in the State when proceedings under the Hague Convention are commenced in the High Court must be stayed until it has been determined that the child is not to be returned under the convention or unless there is delay in bringing the application for return of the child before the High Court.

I now deal with the Luxembourg Convention and Part III of the Bill. The scope of the convention is indicated in Article 4 which provides that a person who has obtained in a contracting state a decision relating to the custody of a child and who wishes to have that decision recognised or enforced in another contracting state may submit an application for this purpose to the central authority in another contracting state. As mentioned earlier, the High Court will have jurisdiction to hear and determine such applications in this country. Subject to certain safeguards which generally have regard to what is best for the child, the High Court will be empowered to make an order of recognition and enforcement of the foreign custody decision as if it were an order of the High Court. There are no such arrangements at present under which a foreign custody order will be recognised or enforced in the State.

The Luxembourg Convention, as in the case of the Hague Convention, provides grounds for refusal of applications. In order to invoke certain of those grounds, contracting states must enter reservations under Article 17 of the convention.

It is proposed that Ireland should enter such reservations as have many other contracting states. The various grounds of refusal of recognition or enforcement of a custody decision are contained in article 10 and these are dealt with in some detail in the explanatory memorandum which accompanies the Bill.

Section 28 (1) of the Bill provides that the High Court may refuse an application under the Luxembourg Convention on any of the grounds in question. In effect, these are that the child was both an Irish national and habitually resident in Ireland; that he was either an Irish national or habitually resident in Ireland and had no such connection with the state in which the decision was given; that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State, that by reason of a change in the circumstances including the passage of time, but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child; or if the decision in the state of origin is incompatible with a decision of a court in the state or enforceable in the state and refusal would be in accordance with the welfare of the child.

Provisions of some procedural importance are contained in sections 27 and 28 (2). Section 27 takes into account Article 10.2 (b) of the Luxembourg Convention and concerns the case where an application is made to the High Court under the convention while an application relating to custody of the same child is pending before any court in the State. The section provides that, where the custody proceedings before any court in the State were commenced before the foreign custody proceedings were commenced in the state of origin, the proceedings in the High Court in respect of the foreign custody decision may be suspended until the other custody proceedings have been determined. Conversely, the section also provides that the foreign custody proceedings in the High Court will have the effect of suspending the powers of any court in the State in any custody proceedings which commenced after the commencement of the proceedings in the state of origin.

Section 28 (2) avoids possible conflict between applications to the High Court made under both conventions in respect of the same child. The section makes clear that where an application for recognition or enforcement is sought in the High Court under the Luxembourg Convention and proceedings in the High Court under the Hague Convention are pending, the Luxembourg Convention proceedings shall be stayed until the other proceedings have been determined.

This concludes my comments on the main features of the two conventions and Parts II and III of the Bill.

Part IV of the Bill contains supplementary provisions and I should like to comment on two of those provisions, namely, sections 36 and 37, which should be of considerable practical value.

Section 36 provides that the High Court may, in proceedings in the High Court under either convention, where there is not available to it adequate information as to the whereabouts of the child, order any person who it has reason to believe may have relevant information, to disclose it to the court. In cases where the child has been produced, the court may also order disclosure of any information that is relevant to proceedings under either convention. The court will have similar powers in cases where the child has been abducted out of the State and application is made to the court for information that may be necessary for any proceedings in another contracting state.

Under section 37 the Garda Síochána will have power to detain a child who, they reasonably suspect, is being removed from the State in breach of any custody order, including orders made under either convention, or while proceedings in relation to custody orders are pending or are about to be made. In addition, the section makes detailed provision about what must be done where the child is detained. The Garda Síochána must return the child to the person who has rights of custody or return the child to a health board where the child has been in the care of that health board. There may also be circumstances where a child will have to be delivered into the care of a health board — for example where the parent is not available to take immediate delivery of the child — and that is also provided for in section 37. In such cases the Garda Síochána will be required to inform a parent of the child, or in appropriate cases the central authority, of any such delivery of the child to a health board, and the health board will be required to make application at the next sitting of the District Court in the district court district where the child resides or was at a material time residing for directions as the child's release from such care or otherwise. These are the main provisions of the Bill and the Conventions.

The Law Reform Commission in their report on the Hague Convention considered that an offence of abduction of a child should be created. Nevertheless, I am satisfied that the existing law on kidnapping and on contempt of court, together with the provision in section 37 of the Bill giving extra powers to the gardaí to detain a child who is being abducted, will adequately cover the matter. The provisions in the conventions for return of a child should, in addition, act as a deterrent to a would-be abducting parent. Deputies will agree that the important thing is to secure the return of the child and the Bill provides the necessary measures in that regard. I am concerned that any such new offence might in fact be counter-productive. The criminal sanction involved may, to use the words of the Law Reform Commission, "put an unnecessary barrier in the way of a parent ... who is later minded to return [the child]," and the sanction may indeed remove any possibility of reconciliation between the parents. In conclusion on this point, I am not convinced at this stage of the need to impose any new criminal sanction in what are essentially family disputes concerning children.

The Bill is, in essence, a measure aimed at safeguarding the welfare of children who are the subject of parental disputes. We all recognise the heartbreak that can result from the breakdown of marriage, particularly the effects on the children. One of our priorities therefore must be to ensure that the welfare of children affected by marriage breakdown is protected as far as it is humanly possible to do so. This Bill will be an important addition to our laws providing for the protection of children and for that reason I hope it will have a speedy passage through the Oireachtas thus ensuring early ratification of the Hague and Luxembourg Conventions.

I commend the Bill to the House.

Mr. Flanagan

The Fine Gael Party warmly welcome this legislation. It will be supported on Second Stage and, I have no doubt, on Committee Stage with perhaps some amendments or modifications.

The Bill deals with the sad problem of child abduction which is a very real and painful problem. It relates almost exclusively to parental child abduction. It is not so much the movement of children against their will, as the movement of children without their appreciation of it. This unfortunate practice is on the increase due perhaps more than anything else to increased marital breakdown, the increased number of international marriages and the ease of communications and cheap travel, which makes it possible for a parent or guardian to flee from one jurisdiction to another if he feels he can exercise sole and ad hoc guardianship over his child. It is important to note that Ireland will shortly become one of approximately 30 countries which will have signed both these important conventions. The sad reality, as the Minister and his colleagues will appreciate, is that the biggest problem relates to countries that have not become a party to the conventions, and who are most unlikely to become a party to the conventions, the most notorious being the Moslem countries in the Middle East where the social and judicial system is far different from Western systems.

There is not any jurisdiction in the world that does not profess to allow an overriding and paramount interest in the welfare of the child, but it is the manner in which each jurisdiction interprets that ideal that has given rise to difficulties. The objects of both these conventions are laudable and are clearly set down in Article 1 of the Hague Convention, namely to ensure the prompt return of children wrongfully removed and ensure that rights of access and custody under the law of one state are effectively upheld in another. Thus if a court has made an order in this State as to a custody matter, another court in another jurisdiction cannot on the following day make another order at variance with the original order.

It is difficult to estimate the number of people who will benefit from this legislation or from Ireland becoming a signatory to the conventions. While it is fair to say that numbers here are low, we have to realise that information is scant in this matter and that we do not really know the extent to which this is part and parcel of the Irish way of life. I tabled a written question to the Minister for Justice on 14 December, 1989 requesting such information. The question asked the Minister the number of cases of child abduction reported to the authorities in this State within the previous three years and the reply stated rather curtly that the information sought was not readily available and could be obtained only by the expenditure of a disproportionate amount of staff, time and resources. When this legislation is passed ratifying both conventions I hope the central authority will afford the Minister the resources and the opportunity to ensure that that type of reply is not repeated. I hope we get that information and that we will be prepared to devote the necessary resources to ensure that we can at least have a register and full particulars of the extent of this problem.

Where a child has been taken out of the country the problem is not so much whether the offence of child abduction has been committed but how the child might be returned to this jurisdiction, to comfort and safety, at the earliest opportunity. The legislation in the main addresses the problem, incorporating the two conventions, the Hague and the Luxembourg Convention, and setting up a new mechanism intended to secure and facilitate the return of children abducted from the State. The effect of the conventions is to enable a parent to exercise rights of custody over a child under 16 and to enforce his rights in any convention country. Where the child has been abducted from this State to another convention country, the courts are required to order the immediate return of the child to this State and this State will undertake the same obligation with regard to children arriving here from another country.

The Hague Convention requires the central authority of each country to which a child has wrongfully been taken to take all appropriate measures. These measures are set out in Article 7 of the Hague Convention which places an onus on the authority to discover the whereabouts of the child to prevent further harm to the child, to secure the voluntary return of the child, to initiate court proceedings where necessary and to keep the requesting authority informed of measures taken and the results. The Central authority of the country to which the child is taken is also required to provide free legal aid and advice. These measures are designed to enable parents, in most cases, to secure the return of children without having to travel abroad.

It is important to remember that not-withstanding this welcome legislation, where a country to which the child is abducted is not a party to the convention, securing the return is likely to be very difficult and may take some time if it is possible to achieve it at all. The child's whereabouts will first have to be ascertained, legal action will have to be taken in that country and considerable expense will be involved. The longer the procedure takes the more damaging it is likely to be for the child, particularly if it is a very young child. It must be our hope that many more countries will ratify the convention, which is a significant mechanism for tackling the problem.

Given the difficulties we will encounter in dealing with countries who have no notion of signing either The Hague or Luxembourg Conventions it is important that we play our small part in the international bodies to which we are affiliated, such as the Council of Europe, the European Community and, most important, the United Nations. The United Nations is the only international forum with representatives from all the states which are most likely to present us with difficulties in regard to child abduction or tug of love cases. I hope we will use to very good effect our seat at the United Nations to highlight these conventions and the need for bilateral agreements between as many countries as possible to ensure common accord.

The European Parliament, and in particular our representatives at the parliament, have not been behind the door in speaking out on this problem. It was interesting and welcome to note that the European Parliament on 26 May 1989 adopted a fairly comprehensive resolution on child abduction which made a straightforward call to as many member states as possible to proceed to enact the necessary domestic legislation to allow for the ratification of these conventions.

I will not quote extensively from the resolution but it recognised that the chief problems requiring solution were (1) the recognition by the country to which the child had been taken of the enforceable nature of the court orders granting custody so that a parrallel and contradictory court order may be avoided; (2) the setting up of procedures to expedite the return of abducted children; (3) the organisation of the right of access across frontiers and (4) the introduction of procedures to enforce the right of access.

The resolution went on to deal with three different ideals: first, relations between European states; second, relations between European states in the longer term and, third, and perhaps the most important, relations with third countries. The resolution called on the Commission to encourage the greatest number of third countries to ratify the Luxembourg and Hague Conventions and to undertake systematically to raise the questions in negotiating co-operation agreements with third contries which is important. It also called on member states to conclude bilateral conventions with third countries to modify existing conventions along the lines of the Franco-Algeian Convention of 1988. It also insisted strongly, that within and outside the European Community, conventions should set up bodies and joint committees, appoint officials to be responsible for abduction cases and appoint mediators to oversee the implementation of the provisions of the conventions. While the ratification of the Conventions is welcome, it is important to admit that this will not lead to a resolution of the problem.

I now wish to turn to the Bill. Section 8 deals with the central authority. This is a matter we could refer to in more detail on Committee Stage but I urge the Minister to consider adopting a charter for abducted children in tandem with this legislation. Such a charter should include the appointment of a children's commissioner to represent the interests of abducted children both here and abroad. That person should be attached to the central authority and I hope such an appointment would draw on the experience of someone within the Diplomatic Corp. It is important that a member of the Legal Aid Board is given specific responsibility for financing the cost of court cases and access to foreign jurisdictions.

It is important that the Minister urges the introduction of a special programme of judicial training to increase awareness among the Judiciary of the seriousness of child abduction. The Minister should address himself in the context of this charter to the issue of passport restrictions, the stamping of passports or the requiring of the surrender of a passport prior to and during custody proceedings to allow for the marking or stamping of them with a custody decision. Such a stamp would alert officials at ports of entry or departure of the State that a custody decision is either under review or has been made.

It is important to ensure that as many countries as possible implement both conventions and, if countries admit they have a difficulty with certain aspects of conventions, the bilateral arrangements I have mentioned should apply.

The central authority holds the key and I hope the Minister will be more specific on Committee Stage on the functions and role of the authority. For example, will the authority act for and on behalf of the guardian concerned? Will the Minister head up the central authority and will it form part and parcel of his Department? Will it initially be under the wing of the Department of Justice, perhaps on a temporary basis, or does the Minister foresee someone such as the Attorney General heading up the authority? The Minister made a passing reference to the role of health boards and the relationship between them and the central authority that needs to be clarified as does the relationship between the probation and welfare officers and the central authority. That is a matter for Committee Stage but the role and functions of the central authority must be clearly defined if we are to deal with the problem.

One major drawback with the Bill — the Minister may have anticipated that this point would be raised as he made reference to it in his address — is the absence of the introduction of a criminal offence. The Law Reform Commission proposed the introduction of a criminal offence of abduction of a child under the age of 16 out of the jurisdiction. Despite what the Minister may think, that this may be counter-productive in that it may work against reconciliation between parties at a later stage, it is very important that we have this special offence of abduction of a child under the age of 16 out of the jurisdiction. If the Minister thinks this may be counter-productive it would be open to him to introduce a number of defences, including the fact that the accused believed the child was over 16, or that the accused had obtained the requisite consent of the other party, or that the court being unable to communicate with these persons believed that they would consent if they were aware of all the circumstances. It could be a defence for the accused to show that the abductor had no intention of depriving others of having rights of guardianship or custody in relation to the child.

While the Director of Public Prosecutions should be given a role in ensuring that the prosecution would not weigh too heavily on the daily lives of family members — this was mentioned in the report of the Law Reform Commission — child abduction must be regarded as a grave criminal offence carrying grave criminal sanctions against an offender. As the Minister stated the Bill is essentially a civil matter but we will have lost an opportunity if we fail to incorporate in it a criminal sanction. If the Minister seeks to look at other jurisdictions he will see that in most European countries there is a specific offence of child abduction. I refer specifically to the Child Abduction Act, 1984, in the United Kingdom which was enacted prior to the ratification by the UK of both these conventions. An important feature in the legislation towards the signing was the specific criminal offence of child abduction where a person connected with a child under the age of 16 commits a crime of child abduction if he takes or sends the child out of the state without the appropriate consent. That is perfectly straightforward and does not give rise to confusion, uncertainty, disharmony or difficulty. Underlining the fact that we as a society regard the whole distasteful scene of child abduction with particular seriousness the Law Reform Commission in their 1985 report gave much consideration to the criminal law aspect of matters outlining the fact that the only statutory prohibition against child abduction in this jurisdiction is section 40 of the Adoption Act, 1952. This section was designed specifically to prevent the traffic of illegitimate children for adoption abroad and is not as relevant today as it may have been in 1952. Neither can it be used as a defence for the Minister to state that this is one of the reasons there is no need to introduce a new offence of child abduction. Section 40 of the 1952 Act is irrelevant so far as this legislation is concerned.

Another section to which people may look in saying there is no need to introduce a new criminal offence is section 56 of the Offences Against the Person Act, 1861, which renders child stealing a felony, punishable by imprisonment. This section is not applicable where there is a genuine dispute between parents as to custody matters. In most of the cases of child abduction you will see that undoubtedly, and almost exclusively, it is a custody dispute between the parties so that section 56 of the 1861 Act will not be of any assistance where that issue is concerned.

In addition to the statutory offences we are left with the common law offences of false imprisonment and kidnapping; false imprisonment is committed where a person unlawfully and intentionally restrains freedom of movement of another person from a particular place and kidnapping is the stealing and carrying away or secreting of another by force or fraud against that person's will and without lawful excuse. While the Minister may point to the common law offence of kidnapping as being sufficient to deal with the matter I am not sure that is the case and I hope that before passing this legislation we can give consideration to introducing the new criminal sanction of child abduction.

There is merit in the Law Reform Commission recommending a special statutory provision for the removal of children out of the jurisdiction because it will, once and for all, remove the uncertainty and lack of clarity that exists at present. It will extend the area of criminal responsibility for the abduction of children outside the jurisdiction and it will act as a deterrent, as well as allowing members of the Garda Síochána to arrest without warrant those perpetrating an abduction.

Another point made by the Law Reform Commission and, apparently, omitted by the Minister is that if the abductor who has committed a crime escapes from the country, that may result in his being extradited to Ireland at some later stage. The Law Reform Commission came to the conclusion that the offence of abducting a child out of the jurisdiction should apply where a child under the age of 16 is abducted. I have heard no good reason from the Minister as to why he chooses to omit that at this stage.

Another matter upon which the Law Reform Commission deliberated — and which is not included in the Bill before us — is the matter of passports. I mentioned earlier that I hope the Minister will announce a child abduction charter which may address the matter of passports. At present the law is not entirely clear. The Bill presents the Minister with an opportunity, following consultation with his colleague, the Minister for Foreign Affairs, of clarifying matters. If an application is made on behalf of a child by its guardians it would appear that the application must be granted unless the Minister gets a declaration from a court that it would not be in the child's interest to grant the passport or otherwise contrary to the common good. As the Law Reform Commission rightly stated the term "contrary to the common good" has not been clearly defined, neither has it been explored. We are not clear as to when the Minister for Foreign Affairs may refuse an application for a passport or on what the grounds for such refusals might be. The Commission recommended that any legislation restricting the right to a passport should provide that a child may obtain a passport on the application of any of its legal guardians but no such passports should be issued upon such application without the approval of the court where another guardian may lodge an objection. In this area, particularly when a passport is often the key to an abduction, the law must be watertight. A passport should not issue unless with the guardian's consent. If no consent is forthcoming then the other legal guardian — should one exist — should be notified. If it proves impossible to notify the guardian then a certificate should be produced to court which proves beyond reasonable doubt that every effort was made to notify the other guardian of the application.

The Minister referred to Article 25 and the question of legal aid. I will not depart from the strict terms of the debate to comment on the legal aid situation. What will be the effect of such a ratification of our own domestic law? Will the enactment of this legislation incorporating Article 25 of the Hague Convention impose rights for people which they would not normally have in other legal aid situations or does the article accord the same rights to legal aid as we have at present. Perhaps the Minister would reply to that issue at a later stage. It is important that the article cannot impose on us rights extraneous to those we enjoy at present. There may be a conflict so far as the enactment of the section dealing with Article 25 is concerned.

So far as legal aid is concerned I note there is a clause which will allow a claw-back. It is important to be specific on whether the central authority will engage in the entire work, will they merely facilitate the undertaking of the work or will a claimant merely brief the central authority that takes over the entire running of the case. This is a matter on which I would like clarification prior to the regulations being introduced. Having regard to the various articles we need to be perfectly clear on the central authority. Overall the legislation provides for the designation of the central authority in accordance with Article 6 and names the High Court as the judicial authority for the purposes of the Convention which will allow us ratify the Convention speedily. Obviously time is of the essence in these cases. The giving by us of the force of law to both the Hague and Luxembourg Conventions will put in place a mechanism which should greatly minimise the lengthy delays involved in these cases. It is worth noting that time is always on the side of the abductor. At the receiving stage in particular, it is very easy for an abductor to buy time by calling for psychological, psychiatric, school and medical reports and using this as a device simply to allow the child to become accustomed to its new surroundings. It would spin a web of confusion over the entire proceedings if significant time lapses were allowed to become the norm. It is in the interests of the abductor to have matters spun out sufficiently long so that he or she can paint a picture of the child living in happy and comfortable surroundings. That, in effect, may ultimately tip the balance in favour of the abductor in court proceedings. Article 12 attempts to address that problem.

While I welcome this legislation, obviously it is not going to solve this grave international problem which society in the latter days of the 20th century has thrown up. It is very important that we devise a plan and implement a policy which will more effectively prevent children from being abducted from this country and which will promote the return of children who have already been abducted. I welcome the legislation and hope that, from an international point of view, we can go further than just adopt national legislation. We should play an important role in the Council of Europe, the European Parliament and, in particular in the United Nations, the forum which will give us an audience who will be most reluctant to sign these conventions.

Mr. Kavanagh

My contribution will be relatively brief. Like the Fine Gael spokesperson I welcome the introduction of this Bill which will enable us to adopt the Hague and Luxembourg Conventions dealing with child abduction and the enforcement of custody orders.

The Community is becoming more international and there will be greater mobility of workforces as the years go by. People from other countries have easy access into this country to do business and our membership of the European Community has meant that there has been a great deal more mobility in and out of Ireland. We have become more internationalised with our entry into Europe. Thousands of Irish people now work in other European countries and travel all over the world. Unfortunately, many of our young people who have emigrated have set up home in Australia America, Europe and elsewhere.

Normally we do not hear about the problems with which this Bill deals. We usually read about child snatching and tug of love cases in the tabloid press across the water. These stories normally make the front page. The press and television media usually follow these stories when there is confrontation between the two parties involved. Although there have been a few prominent cases in recent years, there have not been too many such cases here. Perhaps this is one of the reasons the ratifications of these conventions was not regarded as urgent by previous Governments. I think the conventions were adopted in 1980 and the Law Reform Commission reported in 1985. Perhaps successive Governments did not regard this as an urgent problem which needed to be tackled. I welcome, even at this late stage, the introduction of this Bill which will enable us to give the force of law to these two conventions.

Emigration and marriage breakdown do not just give rise to economic and social problems here; they can also give rise to problems with other countries. These two conventions deal with some of these problems. The Minister has set out the various measures needed to bring the conventions into operation. I have looked in both the explanatory memorandum and the Bill for a list of the contracting parties to these conventions. It would be useful if we knew the contracting parties to these conventions — it has just been pointed out to me that a list of the countries which will be party to the conventions is set out in the explanatory memorandum. I hope these conventions will be adopted by as many countries as possible. As Deputy Flanagan said, the United Nations is probably the best forum in which to urge for the ratification of these conventions by all countries. Obviously the other countries in the European Community will be parties to the conventions but we will have to deal with countries outside Europe, for example, Islamic countries, Middle Eastern countries, African countries, etc. The more countries that are pressurised into signing these conventions, the more the likelihood there will be of a reduction in child snatching by one parent or the other or as they have been described, "tug of love" cases between parents of different nationalities.

The Hague Convention, which is explained very clearly in the explanatory memorandum, requires us to set up a central authority. It is strange that the Minister will be the central authority. One gets the impression that an authority should be made up of people who are concerned about these issues and who have specialist knowledge in these areas. It seems that the Minister and his Department will be the central authority. I should like the Minister to say if this will be the case in all the signatory countries parties to the conventions. Will those countries have specialists on their authorities who can deal with this problem? Surely the Minister for Justice who has so many problems to deal with — we have dealt with these problems in this House during the past year in particular — should set up a central authority which would bring together people who have a specific interest in and knowledge of the problem — people from his Department, the Garda Síochána and various other organisations who could operate under his jurisdiction but be much more flexible in dealing with the problems that may come before them. Perhaps that is the way the Minister should have gone but he may tell us this is the way the convention requires us to operate. Do other countries have a Minister as their central authority? It would be interesting to know.

In his speech the Minister stated:

...the central authority may, for example, have to trace the child in which event it will normally contact the Garda Síochána who will put the necessary procedures into effect. Where court proceedings are concerned the application will be transmitted by the central authority to the Legal Aid Board for attention since applicants will be entitled to legal aid under local conventions.

Over the past year we have had reason to bring in motions during Private Members time to point out to the Minister the lack of facilities from which the Legal Aid Board suffer. Their manpower and resources are stretched trying to deal with the many problems brought to them. To say that the Legal Aid Board will be asked effectively to pay the expenses of the parent or parents of these children is simply to opt out of doing anything concrete for them. The board are far too stretched. The amount of funding is so small that we have asked for it to be increased by five or six times the amount provided in the Estimate. Such an increase is required to meet their present needs. To heap on them even more expensive operations will put an already strained operation under further stress. Perhaps the Minister will say whether in the upcoming Estimate there will be a special section for the Legal Aid Board which may be necessary to deal with the problems resulting from the adoption of the convention.

We have all mentioned the need for more gardaí and we have heard about the threatened removal of gardaí from small rural stations, with the introduction of the "green man" as substitute. In this Bill the Minister is saying that the gardaí can be contacted and will be able to trace the whereabouts of children who have been snatched. Experience is that the gardaí are very stretched as it is. The crime rate has been increasing in this city and elsewhere. I will not reiterate discussions we have had time and again but it does not seem sensible to give them additional responsibility when they are already overstretched. I hope the Minister will set up a special section within the Force to deal with this matter. There is a certain urgency and a need to react quickly. As things stand, other members of the Force will have to be taken from urgent business to tackle this problem. We know the problems which occurred during the six months of Ireland's Presidency of the European Council. A great number of gardaí were taken off normal duties and the crime rate duly arose in the city. If another responsibility is given to the Garda they will be required to drop some other business. Perhaps specialist members of the force will be recruited for this purpose. That would be the proper way to do the job.

The aim of the Hague Convention is to secure the prompt return of children wrongfully removed to or detained in any contracting State. We certainly support this objective, but I underline some of the problems we may encounter due to lack of resources. Perhaps the Minister will turn his attention to that problem. This whole question encompasses fundamental human rights and fundamental freedoms of States and of citizens. Article 20 of the convention deals with the importance in the Irish context of our constitutional requirements relating to the protection of human rights. This I very much welcome.

The Luxembourg Convention provides that a person who has obtained in a contracting state a decision relating to the custody of a child who wishes to have that decision recognised or enforced in another contracting state may submit an application for this purpose to the central authority in another contracting State. I hope that the safeguards which will be required in the best interests of the child will be the underlying dynamic in this Bill. We all want to see a child returned to the person best able to look after him or her and who will provide that child with the best home. I hope this part of the convention will ensure in the operation of this Bill that this will always be the underlying motivation.

The Law Reform Commission recommended in 1985 the creation of an offence of abduction of a child. The Minister seems to be saying that the existing law on kidnap and contempt of court, together with the provision in section 37 of this Bill giving extra powers to the Garda to detain a child who is being abducted, will adequately cover the matter. Some of us would question that view. If the Minister really believes it, we could question the need for this Bill at all. I believe there is a need for an offence of abduction and on Committee Stage we will get an opportunity to test the Minister's arguments in this regard by putting down an amendment requiring that an offence of abduction be included in the Bill.

We strongly welcome the Bill and are glad that the Minister has found time, in bringing forward so much legislation recently, to introduce it. It is non-contentious. All Members will agree with that. However, there are certain queries we may have to raise on Committee Stage. We wish the Bill a speedy passage. Our party will be co-operating fully in its Second Reading and look forward to Committee Stage being completed before the recess.

Mr. McCartan

Like all other parties, The Workers' Party welcome this Bill and in principle, intend to support its provisions on Second Reading. There will be some matters to be addressed by way of amendment on Committee Stage. Nonetheless, it is my intention to deal with some of those this morning.

Having said that, there is no cause for this House to be self-congratulatory about the fact that we are dealing with this Bill today. Welcome though it be it must be remembered we are ten years late in bringing it before the House. We have allowed a decade to pass — since the International Year of the Child — since the then Government promised a charter of rights for children that, would respect and deal with all aspects of the rights of children and their needs. The lateness of our action has been graphically illustrated by a number of cases that have occurred in the interim. The most recent and dramatic of such cases was the abduction of two young Irish children in defiance of a High Court order here, to Zurich by their Libyan father in the hope that he would get a connecting flight to Tripoli, out of the reach of their mother and the jurisdiction of our courts. Through the ingenuity of the mother, and her lawyer, they hired a private' plane to Zurich where, with the help of the Swiss authorities — primarily engaging in bluff — they negotiated the safe return of the two children to Dublin, and a reasonable resolution. Criticism was rightly levied at our Government because when the Swiss authorities were approached, the documentation and orders of the High Court of this jurisdiction being produced — giving custody to the mother — they said there was nothing they could do because we had failed to recognise or adopt the provisions of the Luxembourg Convention. Consequently our High Court writ and its order had no effect in the Swiss jurisdiction. Nonetheless the Swiss authorities helped as best they could. After protracted negotiations the mother, her lawyer and the two children returned to Dublin that evening. That case helped to embarrass this country substantially at home and abroad. Remember this is a country that claims to have a caring society, with a reputation second to none in the area of international human rights and care of children, which was found to be glaringly out of touch, out of step, in default on its international obligations on the rights of children, and the beleaguered abducted children in particular.

Therefore, it will clearly be seen that we have nothing about which to be self-congratulatory. Anybody who may suggest there has not been a need for urgency about this legislation to date is not having regard to international conditions, obligations and requirements on national Legislatures. Indeed I contend they are unaware of the many instances, growing daily, of children being taken from this jurisdiction, more particularly children being brought here in defiance of court orders elsewhere, or simply in defiance of a basic family right vis-à-vis protection of parents.

There is an urgency about this legislation. It must be recognised that there has been unwarranted, undue delay which has not been explained by the Minister in his introductory remarks. I must stress that it is a decade since we celebrated the International Year of the Child, since the then Fianna Fáil Government promised a universal declaration on the comprehensive rights of the child to be introduced in that year. There has been no explanation forthcoming for the delay. Rather we are asked to welcome the Bill on all sides of the House and congratulate the Minister without any explanation.

Its presentation to the House today is all the more ironic, if not laughable, when viewed in the context of a State which still regards children of seven years upwards as criminals, which processes children who run foul of the law, as it stands, before courts of criminal responsibility without providing even a tribunal or a caring institution to examine their problems. We treat them as criminals when they are arrested by the Garda Síochána and brought before our courts. Indeed, it could be said that this State, using its judicial processes, abduct our children using the provisions of the 1908 Children's Act. I wonder were the United Nations told about that when the Taoiseach was signing his intention to ratify the United Nations Declaration on the Rights of the Child? For example, did our Taoiseach tell them that we were acknowledging Article 37 (b) of that Convention, that children should not be subjected to cruel, inhuman and degrading treatment? That Article states:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

When signing that convention did the Taoiseach take the opportunity to tell the United Nations, and our international contracting partners, that the law to which it refers, in the Irish context, is an Act of the year 1908, that in locking up our children in adult prisons here, as we did two days ago only, in effect we certify that children are deprived human beings; in fact "depraved" is the word used in that legislation. It is in the context of the abject failure of successive Governments here to deal with the fundamental rights of children that we must view the provisions of this Bill.

The point has been made very succinctly, by Mr. Kieran McGrath, the press officer of the Association of Social Workers in Ireland, responding to the introduction of the legislation in the media. He pointed out that, welcome though the legislation was, there are far more urgent and fundamental matters to be addressed in the context of the rights of children here.

I say to the Minister: the Bill is welcome but there are more fundamental and important issues to be addressed in regard to the rights of children even in the context of abduction. I would go so far as to say that the Minister, in his failure to address the laws on the rights of children, in effect, is an abductor of children on behalf of this Legislature. I say that particularly bearing in mind the manner in which we still put young children up to the age of 15 years in adult prisons here. Our Government have failed to address the 1908 Act, and the need to have it repealed. They failed to address the need for a caring institution to be established where young people, who are not criminals but are in need of help and care, can be sent. Until that is done our reputation abroad will be as tarnished as it was before the introduction of this Bill. We must stop playing this international game of signing treaties abroad, indicating intent to sign conventions recognising the rights of children while, at home, we do precious little to address the realities of their problems.

Turning to the Bill itself, I welcome the fact that the international community has laid down a charter for us to deal with the abduction of children transnationally, the way parents or adults can seek to set at nought orders of the legitimate judicial authorities of their jurisdictions. I doubt that this House would be addressing this issue today, or indeed for many decades to come, had not the international community drafted the international statutes now known as the Hague and Luxembourg Conventions. I cannot see the political will, ingenuity or capacity of this Minister or of successive Ministers in the Department of Justice in drafting and bringing legislation of this complexity before this House. Consequently, we have here not indigenous legislation drafted by the legal draftsman at the Minister's behest but legislation that does no more than reprint the international conventions and their terms and then a number of cursory preliminary sections that give force to those statutes domestically and a number of enabling provisions to accommodate them. They are welcome.

They are welcome also because they recognise some of the basic principles of our domestic laws and the fact that since 1964 our laws with regard to custody recognise that the primary concern is the rights and welfare of the child itself. These are reflected in Articles 12 and 13 of the Hague Convention, and it is important that the conventions, coming into our domestic legislation in the wholesale way they have been drafted, should recognise and acknowledge the basic principle of our well-developed and important domestic law. Equally, there is no prohibition provided by the conventions on independent and separate legal action taken before our courts here and the domestic jurisdiction of our courts, District, Circuit and High, is respected and recognised under the conventions.

Also, speedy action is required in terms of the conventions and our courts must be in a position, once requested, to respond within six weeks, otherwise the authority, once established, will be in a position to question and challenge. The general obligation of the central authority to keep the parents fully advised and informed and to seek reports on the progress of proceedings is to be welcomed. The provision in the conventions that the central authority cannot impose charges is welcome also because certainly in our domestic proceedings the legal costs can be exorbitant, but there is a principle existing here which is respected in the conventions, that in matrimonial and child custody cases charges at court level should not be imposed. This is repeated in the conventions and is to be welcomed.

The Bill itself is comprised substantially of the two conventions repeated verbatim but there is a number of enabling sections as a precursor to those conventions. The most important one is contained in section 8 of the Bill which establishes a central authority. First, the Bill as circulated does not lay down the emphatic statement that the Minister has made in his speech, and I would like this clarified in the Minister's response. The Minister said: "The Minister for Justice, through his Department, will act as the Central Authority for the purposes of each Convention". Is this an emphatic statement and one of intent for the future in perpetuity? Is no regard had to section 8 of the Bill as drafted which provides:

(1) The Minister may by order appoint a Central Authority (referred to in this Part as the Central Authority in the State) to discharge the functions under the Hague Convention of a Central Authority.

(2) Notwithstanding subsection (1) of this section, unless and until the Minister appoints a Central Authority under this section, the said functions shall be discharged by the Minister and references in this Part to the Central Authority in the State shall be construed accordingly, as references to the Minister.

Therefore, the Bill does not have this emphatic and clear declaration that the Minister and only the Minister shall be the central authority for the purposes of the conventions. It clearly envisages that in order to move quickly with the establishment of the provisions of the Bill, and I presume as a lead into the workings of the conventions, the Minister shall be for the time being the authority, but in his speech the Minister seemed to be changing ground substantially and moving away from the idea of a transitional period. He said that he shall be and will act as the central authority for the purpose of each convention, no reference being made to what might happen in the short time.

Like Deputy Kavanagh, I take the point and reiterate it here, that this concept of an authority is of something bigger than one individual. We have authorities in other areas only too well known to this Minister as Minister not just for Justice but for Communications. In the area of RTE there is an authority. An authority is not the Minister, although recent legislation might suggest otherwise. The authority are comprised of expert people in the area being convened and given the means whereby they can operate and work as the supreme authority in the area of activity of the legislation or whatever. As a matter of practicality, not alone reflecting the wording of the Bill, an authority should be established, they should comprise of people working in the field with expertise in the area and with the capacity to respond to all the requirements of the convention itself. The Workers' Party will be seeking an amendment in this area if the Minister does not clarify it in his remarks concluding this debate. We would not be happy with the Minister for Justice being the authority in perpetuity or that the Department of Justice would be the vehicle whereby the convention is given effect within this jurisdiction.

The Department of Justice simply is not an open house, a place that easily welcomes the public into its portals and through its doors. Anyone who has worked in the area of aliens or people who require recourse to the Department of Justice for work or visa permits of residence in this country, will only too quickly learn that the Department can be a place of forbidding welcome and not a place one would consider or countenance as all-embracing, an open door that would be required in the essence of an authority under this convention working well and effectively.

The Authority in this case must have a public office and a very strong public image. They must be an institution of the high street where members of the public and, more important, foreigners coming to this jurisdiction seeking their help will be readily welcome and will have no difficulty in locating and dealing with the Authority, not simply over a desk at the front reception room at the Department of Justice office, on St. Stephen's Green but in some modern appointed offices on the high street where the Authority will work under the aegis and guise of a name that reflects their purpose and intent. In this regard I have to ask if they are to be reposed within the Department of Justice. I would not welcome that, but if that is to be the case what expertise exists there at the moment to deal with the very strong and important functions and obligations established under the conventions? The concepts of recognising how to deal with the public are very small, one might say, and I do not find, they often exist within the doors of the Department. I refer to concepts of dealing with family trauma where a child has been abducted, then moving on to court proceedings or being able as an authority to seek reports and to challenge the inability of a court to act and all the obligations as established under the conventions. Where is the expertise within the Department in that regard? I do not believe it exists at the moment and for that reason I am more concerned that the central authority are to be reposed exclusively in the hands of the Minister and within the functions and works of the Department themselves. If they are to remain there does the Minister intend to appoint experts to the staff within the Department to deal with all the obligations that exist? This matter should be clarified at the conclusion of this stage of the Bill.

The appointment of a central authority outside the Department itself, in the way other authorities have been established in comparable activities, would be one of the many steps necessary to deformalise the proceedings in the areas of custody, marital breakdown, marital discord, etc., that have been the hallmark of debates in this area in the last number of years. Along with the passing of recent legislation on the breakdown of marriage, it would be another step towards deformalising and establishing tribunals in time to deal with these issues. I realise that it is the High Court that is given the primary responsibility of dealing with judicial disputes but the establishment of an authority outside the Department is a step towards establishing tribunals as the norm for dealing with these issues as opposed to courts of law.

In the explanatory memorandum and again in the Minister's speech the primacy and importance of the Legal Aid Board comes back into relief. It is intended that the Legal Aid Board will have a major role to play and will probably be the most employed agency in the State in giving effect to these conventions. The more the Minister for Justice looks to the Legal Aid Board and the legal aid schemes to facilitate the passing of these various legislative provisions, giving them added functions, more responsibilities and a greater workload — and there have been at least three such instances since this Minister came into office — the more necessary it is for the Minister to respond to the needs of that Board for proper funding, a proper national establishment and facilities and staff to give an effective and real service throughout the country. It is to be the case that people whose children are abducted from rural areas will still have major problems not only in trying to get to the authority if it is to repose in the Department of Justice in Dublin, but will also have to worry about how and where their children are and then have to find a Legal Aid Board office in some adjoining county since, as we have been told time and again in this House, the majority of counties do not have a legal aid office, so that people have to travel vast distances, often finding when they get there that the office is closed because of work overload?

It is particularly ironic that while we are introducing legislation in regard to our international obligations in the greater community and relying so heavily on the Legal Aid Board and the legal aid scheme, the Minister is being dragged unceremoniously before the European Court of Human Rights and the European Commission by the free legal advice centres for failing to recognise the duties imposed by the European Court on this country in the area of legal aid and required of us under the European Convention of Human Rights, that we are being indicted once again before international tribunals and the international community for our abject failure to respond to the obligations and requirements laid down by both those agencies in this whole area of legal rights and the entitlement of people to proper legal representation where they cannot afford it.

A second irony exists in regard to the legislation here today. I hope the Minister will, at some stage in this debate, indicate that the resignation of the former Chairman of the Legal Aid Board, the then and current Chairman of the Bar Council, and the resignation of the Chairman of the Law Society, as it then was, from the Legal Aid Board were not in vain and that those courageous actions that were taken to attempt to highlight the inadequacy of the commitment of the Government to developing a proper legal aid scheme here will be acknowledged and responded to and that those communities throughout the country that at the moment have no ready access to legal aid services will be considered sooner rather than later. If these conventions are to be given effect, as the Minister says they deserve to be, then he must act in this area and invest properly in the provision of a comprehensive nationwide service.

In the area of legal aid as laid down under the conventions, I have a number of questions for the Minister. Is the right to legal aid, as established, an absolute and universal right? Will everyone who comes here, irrespective of their means, be entitled to the legal aid services? If we are to introduce means tests for people coming from other countries, other jurisdictions and, indeed, other continents, how will we test them? How will the means and entitlement of people coming from oil-rich nations, for example, be assessed? Will lawyers, if they are engaged in the first instance, have the right of ready access to the central authority to avail of all of its services? If, for example, a wealthy litigant or parent in pursuit of children comes to this country and first engages the services of professional lawyers or other professionals in pursuit of their interests, will that act in any way as a disadvantage to that person when recourse is had to the central authority for action under the obligations laid down by the coventions? Will there be any difficulties if at some stage a professional person decides to pass over the case to the Legal Aid Board for further prosecution or pursuit because he feels it would be in the better interest of his client?

The next issue that should be discussed and which we will be coming to on Committee Stage is the Minister's contention that a criminal offence of child abduction should not be established. I do not have a firm view on the matter. I hope to listen to the Minister's reasonings and look again at what he says with regard to the adequacies or otherwise of the current law. I am taken very much with the point made by Deputy Kavanagh that if the current law is adequate why are we finding ourselves becoming a place of haven for abducting parents or adults? Why are we finding also that citizens and, indeed, non-nationals establishing families in this country are escaping to other jurisdictions? Why does child abduction occur at all if our laws are adequate?

Even if they are adequate, there are other considerations which I would ask the Minister to take on board. The idea of a criminal offence in this area gives added armoury to the Garda and to the law enforcement authorities to act with speed. It is worrying that when we talk about trying to put right what is wrong in respect of a child we are giving the Garda the authority to detain the child. Quite often the situation could be put right, without the trauma of detaining the child, by taking the offending parent or adult into custody and allowing the other caring parent to easily and effectively move in and take charge of the child again. What would have happened if, for example, we transported the Zurich incident into Dublin and had the Dublin authorities in the place of the Swiss authorities in the case I originally referred to and the negotiations had broken down? Let us suppose the Libyan had called the bluff in the negotiations that went on at the time. Where would the situation have ended? There was nothing in law available to the Swiss to stop him had he decided to continue the journey on the plane to Tripoli with the two children.

The Minister should think about providing the Garda with extra power and allow them discretion as to when and how to use it. It should be there as a safeguard should good reason, negotiation and the good order of the civil proceedings not prevail. It would be a lever to be used if necessary. It would ensure speed and provide a mechanism where the abducting parent could be obliged to submit to bail. It would be a device to require them to remain within the jurisdiction until final hearings and binding orders are made.

As I understand it, under the existing conventions and laws no such power exists. Therefore, if an offending or an abducting parent arrives in our jurisdiction with a child, there is nothing to stop that person slipping away to another jurisdiction perhaps to await the next available opportunity when he or she might decide to strike again. This could happen as a result of the non-existence of a sanction or a bail requirement to keep the person within the jurisdiction.

The taking of young children out of their natural home, bringing them into a foreign jurisdiction and using them as the rope in the tug of love, as pawns between estranged, annoyed or petty parents, must be regarded as serious. It must be regarded not simply as a means of patching up problems between estranged parents but it must be dealt with as something which requires sanction so that a penalty can be imposed on the offending partner. In that way we can work to ensure that there will not be a recurrence of that action. The Law Reform Commission have examined this matter and recommended that this be recognised as an offence and the Minister and the House should give it more consideration. This is something we should come back to on Committee Stage.

The idea advanced by Deputy Flanagan of the establishment of a commissioner for children is one that should be considered. Clearly, it would be better if the Minister accepted the proposition that he should not seek or retain the office of central authority exclusively under the legislation. In establishing an authority in the real sense of the word, as I think the Minister should, its chairperson could be designated as commissioner for children's rights and the authority could be expanded and established universally to deal with the rights of children in our jurisdiction.

If that idea is not taken on board by the Minister there is in Britain the concept of the guardian ad litem, someone appointed specifically and independently of the parents who are obviously fighting over the custody of the child or the right to retain custody. Quite often in the midst of that row between the two adults, the child or children can be forgotten. Their rights are of prime importance. There is a strong argument that the children's best interests might well be served by the appointment of an independent person known in Britain as a guardian ad litem, someone who has the exclusive and specific interests of the child at heart and whose responsibility is to the court, to the central authority or to whoever is acting under the conventions to ensure that the rights of the child are served.

In many jurisdictions — indeed in Sweden — they recognise the right of the child to have a say in a divorce. Children have the right to say that they should be distanced from their parents in their best interests or because their rights are not being protected. I am not arguing for this but it helps to recognise that in some jurisdictions the concept of the child having rights independently of the parents is an important one, one we have not addressed sufficiently in our jurisdiction. The establishment of the office of guardian ad litem, whose responsibility is to the child, is worthy of consideration.

These are some of the points that must be addressed on Committee Stage, and I hope the Minister will respond to some of them. I welcome the legislation. As I said as forcibly as I can, we have nothing to be self-congratulatory about. It has taken us a decade to get to this stage of simply drafting into a Bill the terms of the two conventions. We do so at a time when our own house is anything but in order. I hope this is a step in the direction of a Minister, a Government and a society recognising that as we approach the 21st century, we should not continue to look on children between the ages of 7 and 14 years as criminals or engage in the practice of state abduction of our own children to adult prisons. These practices should not be continued. I am not anxious to be part of a society that says it is modern, and has regard to international conventions on the rights of children, but does not recognise that it has a vast amount of work to do in this area. This Bill, receiving the support of all parties, when passed, will be a recognition that there is a lot more to be done.

Mr. Wallace

What is important here today is that this legislation, the Child Abduction and Enforcement of Custody Orders Bill, is before the House. Irrespective of how Deputy McCartan relates to 1980, what will be welcomed by the families, children and parents, concerned is that we have this legislation before us, which I hope will be enacted very quickly.

This is very important legislation. It recognises the problems faced by people in the present age of family breakdown especially when there is such ease of travel between countries and continents. The Bill will enable Ireland to ratify two international conventions, the Hague Convention, which deals with children taken from one country without the consent of one of the parents, and the Luxembourg Convention, where a court order dealing with the custody of a child has been breached. These conventions were designed to deal with situations where children are removed from the country of residence against the will of one of the parents. This has become a big problem in recent years. It seems to happen more frequently where the marriage breaks down and one person takes the child to his or her native country. A person abducting a child in that manner may gain an advantage over the other parent if, as happens, the question of custody can be reopened before the courts in the country to which the child is brought. Even if the parent taking the child cannot get custody, the other parent has to go to substantial expense seeking the return of the child.

This Bill sets out to rectify these defects in our existing law. It provides for administrative and judicial measures designed to secure the speedy return of a child without imposing a heavy burden on the parent. The position of children who are the subject of a custody order made by the Irish courts will be safeguarded as a result of this Bill. At present there are no arrangements under which an Irish custody order will be enforced in another state. This is a serious deficiency in our international legal arrangements. It means that a parent whose child is removed from Ireland must start court proceedings in the foreign country. Not alone is this very expensive and time consuming, but the case will be determined on its merits by the standards of that foreign court. It may happen that a foreign court would take a different approach to the welfare of the child, despite the fact that the matter has already been considered and decided by an Irish court and the parent in Ireland who had obtained a court order is left without a remedy while the parent who abducted the child could get custody. This may happen in only a small number of child abduction cases but, when dealing with the interests of children, we should try to protect them to the fullest extent possible.

The Minister for Justice, through his Department and the Legal Aid Board, will provide the necessary administrative and legal arrangements to assist a parent whose child has been taken to this jurisdiction. This will mean that such parents will be provided with an inexpensive and speedy remedy for the return of their child. I note that applicants seeking the return of children who have been abducted to Ireland will be entitled to legal aid for court proceedings for the return of such children. I know that the Legal Aid Board have been under a lot of pressure in recent years, but I compliment the Minister for making arrangements for the recruitment of extra solicitors for the board. In Cork we now have two law centres — at the North and South Malls — with a total of six solicitors. This is a major improvement in the service in Cork but I hope that the Minister will be able to find resources for a further expansion of the service in the new year.

I am not sure to what extent this Bill will improve the work of the solicitors at the law centres, but there is no doubt that there is tremendous pressure on them and it is an area to which we must continue to give attention with the resources available to the Minister. This Bill, however, is unlikely to have the same effect as other legislation in the family law area but what is important in those tragic cases where a child is taken to Ireland from a foreign country, is that the other parent should have a quick and effective right of action in Ireland to get the child returned. This Bill will provide that service and I commend the Minister for bringing it before the House.

The question of costs is dealt with in section 14 and I note that the court has discretion to order the abductor to pay the costs incurred in returning the child to the applicant. Will this be left totally to the discretion of the courts? It appears that a person who deliberately takes a child from a foreign country to Ireland, particularly in breach of an order of a foreign court, should be obliged to pay the costs involved. The only circumstances where this may not arise is where the abductor does not have any means although, even in that case, he may have an income at some future time from which costs should be recovered. I realise that the whole question of costs is one of wide public policy issues about access to the courts and the discretion of the Judiciary in the independent exercise of their function, however, it is an area which needs to be examined.

I am concerned about the slow pace of law reform generally. It is five years since the Law Reform Commission published their report on The Hague Convention and it has taken that time to bring this Bill before the House. In addition, there are a wide range of areas where there is urgent need for updating and indeed consolidating our legislation. Much of our criminal law dates back to the middle of the last century when society was very different.

The Minister should examine the difficulties he faces in trying to make our laws more appropriate to current circumstances. In a short period in the difficult Justice Ministry, the Minister has earned himself a good reputation as a conscientious and hard working Minister who wants to drag the Department of Justice into the modern age. I hope he keeps up the good work and that we will see more reforming legislation and developments such as the Bill before us.

Some nations are outside the jurisdiction of The Hague and Luxembourg Conventions and there is no recourse for parents whose children have been abducted to those countries, particularly from this country. Some of us know about these difficulties as we have been involved with the parents concerned. I hope the Minister and his colleagues, who are signatories to these conventions, will discuss this crucial area because some parents have been unable to get their children back.

While I compliment the Minister on introducing this legislation, there is a lot more to be done in the whole area of child reform and legislation affecting children. I am glad that the Taoiseach indicated this morning that the Child Care Bill will be brought before the House this session. It is an indication of the commitment of the Government in this area of child protection.

Mr. Cosgrave

This Bill has been ably and well addressed by the Fine Gael spokesperson on law reform and other spokespersons. However, I should like to make a few brief points.

I welcome this legislation and I understand from the Fine Gael spokesperson in this area that the measure will be supported on Second Stage by Fine Gael. The Bill is designed to deal with a situation where children are removed from their country of residence against the will of their parents or whoever has custody of them. The problem has become very acute in recent years as a result of a greater incidence of marriage breakdown, more freedom of travel and the larger number of marriages between persons from different countries. The most common case is where one parent takes the child to his or her country of origin in defiance of the desire or wishes of the other parent. The person who takes a child may be in a position to gain an advantage from so doing because the question of custody can be reopened before the courts of the country to which a child has been taken.

The costs of taking such a case may impose an intolerable burden on persons deprived of their children. The Hague Convention has been put in place to ensure that the child is returned to the country where he or she was resident prior to the abduction. Under this convention the judicial authorities in the country to which the child has been removed are requested to order its return to the country of its habitual residence.

I understand from the report of the Law Reform Commission that The Hague Convention has been signed by Canada, France, Portugal, Switzerland, the United States and the United Kingdom. However, as most of the cases which come before the courts in this country have arisen from marriages between Irish persons and those residing — more than likely — in Muslim countries such as Libya, Morocco, Iran, Iraq and other Middle Eastern countries which are not parties to The Hague Convention, how does the Minister intend to address this serious matter? The most common case is where a parent abducts a child to his or her country of origin in defiance of the wishes of the other parent. It is not an answer to say that the number of cases is small. The risk of harm to the abducted child and the distress to the parent left behind suggests that Governments cannot remain aloof. Unfortunately, there is no international agreement on this subject and, as most cases coming before the Irish courts deal with children who have been abducted to mainly Muslim and Middle Eastern countries, the parents of those abducted children — or tug-of-love cases as they are more widely known — often resort to disreputable characters to assist them. They are employed to kidnap children and this is how they earn their living. They make a quick buck out of misery with little consideration for the feelings and welfare of the child. What is required in cases of this kind is a proper link-up with police forces, customs officials and emigration authorities, on an international basis, to frustrate would-be hired kidnappers.

Another effective tool would be the introduction of a chasing order. Will this Bill enable Irish courts to grant chasing orders which would be internationally recognised? They would be very valuable in securing the prompt return of an abducted child. I understand that this type of chasing order granted by the courts has been successfully used in other countries, and that it has an excellent track record. They have also been successful where an abducted child has been concealed and his whereabouts has not been known for a long time.

The interests of the child are paramount. Particularly where a child is very young abduction may lead to long term psychological damage. Will the Minister assure me that this legislation will lead to a more prompt return of an abducted child to his home? I will illustrate my point by outlining a case which occurred three years ago. A child was abducted to Belfast and, following a lengthy tug of love struggle, the case came before the High Court after three months. The mother of the child would not have been in a position to successfully pursue her case but for the offer of free services by a barrister and a solicitor. Where the circumstances require will this Bill provide facilities such as free legal aid and advice, including the employment of legal counsel and advisers?

I welcome this measure and hope it will provide an answer to a growing problem. I hope the Bill gets the full support of the House, ensuring its early enactment.

Miss Quill

I welcome this Bill and pledge in its passage the full support of the Progressive Democrats. I hope that since the provisions of this Bill are so urgent and overdue, the Bill will pass all stages with a minimum of delay. It is high time our legislators gave the force of law to the provisions of the Hague Convention and the Council of Europe Convention in relation to child abduction and child custody. The administrative and judicial measures proposed in the Bill are practical and enforceable. They bring our system into line with the systems in the contracting states for each convention.

The sad spectacle of little children being used as pawns in so-called tugs of love tussles is one that has haunted our consciences on more than one occasion in the past ten years. The guiding principle of the Bill is to give precedence to the welfare of the child as well as to protect the rights of the victim whether the victim is the child or the parent or both.

In their excellent report No. 12 of 1985 the Law Reform Commission warned that the problem of child abduction and snatching had become worse in recent years. The reasons, they pointed out, were greater incidences of marriage breakdown, more ease of travel and larger numbers of marriages between persons of different nationalities. That was the position in 1985. How much more serious is that position today, five years later?

The world is now facing the tail-end of the first year of the final decade of the 20th century, a century in which unprecedented progress was made in the fields of science, medicine and education. For millions of young people this is a time of infinite possibilities, challenge, opportunity and promise. Unfortunately, for many other millions the prospect is the opposite. Indeed, the times can be well summed up in the immortal phrase of Dickens at the opening of his novel A Tale of Two Cities when he said “It is the best of times; it is the worst of times”. For millions of children throughout the world, not alone in the Third World, it is the worst of times. Ireland is no exception. It is only in recent years that the hidden agenda of child misery and poverty has begun to fully unfold.

We are now aware of widespread incidences of child sexual abuse. We have young children trapped in ghettoes of poverty, many of them children of single teenage parents, who are little more than children themselves, who are not in a position to make proper provision for the social, personal or economic development of their children.

Too many of our young people leave school without having mastered the basic skills of literacy and numeracy and they very quickly drift into the dead-end routine of drugs, drink, hooliganism and devilement. Every morning as we walk to work in this and other cities in the Republic we pass very young children sitting in the freezing cold on our bridges and pavements, dropped off by their parents to beg for the day. According to the law of the land these poor waifs ought to be at school but our schooling system in so many instances is such that it has no meaning for these young people or their parents.

We have made very poor provision for the proper custody of juvenile offenders. As I speak a 15 year old child is locked up in Mountjoy. That will only increase this poor girl's problems instead of redressing them. This is a sad litany of shame, but it is also a true one. It is a very poor reflection on a country whose declaration of independence promised to cherish all the children of the nation equally and whose high priest of patriotism, Pádraig Pearse, in a fine burst of idealism once declared, "I deem it, O Lord, sufficient — my name in the heart of a child".

Clearly the problems I have just outlined cannot be fully addressed in law. They must be addressed at the level of education, more specifically education for parenting, education for responsibility, education that centres as much on personal skills and life skills as on the acquisition of knowledge.

There are too many deeply troubled homes in Ireland today. Here, I pay tribute to so many sisters of religious orders who have with enormous foresight and compassion moved out of education and their convents and into the communities. They have begun to build successful support programmes to assist these troubled families and put them on the right course for attaining their God given rights to life and the pursuit of happiness. Much of this splendid activity is taking place in my city of Cork. This morning I salute the good women who have dedicated themselves to this very worthy work.

The United Nations, responding to the problems I described, have adopted a convention on the rights of the child. Ireland has signed but not yet ratified that convention. It is my earnest hope this morning that Ireland will not alone ratify that convention soon, but will take strong measures at every level to make a reality of the aspirations of that convention for all the children of Ireland.

I welcome the Bill. It is a major milestone for human rights that we as a country will now be in a position to identify with these two very important conventions. I have read the draft Bill in detail and it contains measures which have proved themselves elsewhere and which will prove themselves in this country. I foresee no major problems with its adoption by both Houses of the Oireachtas.

It is important that the proposed central authority is provided with adequate resources from the start and fully furnished with the most modern equipment to enable the staff spring into action and function both speedily and fully. In cases of child abduction and child snatching speed is of the essence as delays in tracing the abductor or the child only add to the degree of psychological damage which accrues from this kind of crime. Therefore speed is of the essence and I urge the Minister to make sure provision is made so that the central authority will be able to respond and respond without delay.

Another welcome and very sensible provision is the provision which will allow the free legal aid system to be put at the disposal of those needing the services of the proposed central authority. That provision is very welcome and I compliment the Minister for making this clear from the start. However, I urge him to ensure adequate budgetary provision is made so that the free legal aid board is not left as it has been in recent years badly stuck for funds and not in a position to honour all the commitments they would like to honour.

We are taking an additional commitment on board which will place a heavy demand at intervals on the free legal aid scheme. I urge the Minister to ensure from the outset that proper budgetary provision is made. That is the key to success. The Statute Book is full of laws which have not been fully enforced. I do not want that to happen with this Bill. I urge the Minister to make proper provision from the outset at every level to ensure that this law will be effective in all instances so that Ireland can play her part, speedily, effectively and well in curbing and eradicating this most heinous of crimes, the crime of child snatching and abduction.

Mr. Durkan

Like previous speakers, I welcome the introduction of this Bill. It is certainly progressive legislation and is long overdue given the experience gained during the course of our constituency work over the years. I compliment the Minister for introducing the Bill but I am not so sure that it will be as effective as we would like it to be. However, it will put guidelines on the Statute Book to protect the interests of the child in cases now commonly known as tug of love cases. I doubt if there is one Member of this House who has not over the years dealt with a number of such cases. I think we have all learned, possibly from bitter experience, that the existing law is inadequate and that there is a need to update and amend it in accordance with the requirements of the day.

The need to update this legislation arises out of a number of things most of which have been referred to already by previous speakers. For example, it has become much easier to travel between one country and another. It is ironic at a time when barriers are being removed and there is free movement of people that a threat has been presented to children who in certain circumstances may be abducted against their wishes or against the wishes of their parent or guardian. It is even more ironic that this threat should present itself as we move towards 1992. During the next four to five years we will witness a greater loosening of travel restrictions between the various member states of the European Community and perhaps between the European Community and other countries. Therefore the success of this legislation will depend on the speed at which it can be put into operation and the speed at which the authorities can respond.

Let me give two examples which have already been covered by previous speakers. There has been a number of recent cases involving children who had been abducted on the other side of the Irish Sea or on the other side of the world and brought to this country, parents pleading for their return. We are not that badly off in the sense that we live in a democracy and even without the proposed legislation provision has been made for cases to be heard before the courts. If we take the example of a child who has been abducted and taken to a country which is not a member of the European Community or a democracy as we know it, we will soon see that there is a great need for this legislation. The success or otherwise of this legislation will be determined by the speed at which action is taken against the erring parent or guardian or at the speed at which the State can take action.

Regardless of what legislation is passed if a child is abducted without the permission of one or other parent and the custodian of the child feels that the child may be in danger the success of the legislation will depend on whether the authorities can respond quickly enough to apprehend the abductor. Nowadays it is quite possible to whisk a child away to an area outside the jurisdiction, for example, to the United Kingdom, where arrangements could be made to have the child taken further afield to another jurisdiction. It is my experience, having dealt with a number of such cases, that unless the authorities act quickly and breathe down the necks of the abductors the chances of success are slim. Deputy McCartan and Deputy Cosgrave referred to cases in point.

For example, if the jurisdiction to which the child is about to be abducted does not observe any convention — international or otherwise — how will the law be binding or how will the law be enforced so far as that child is concerned? How will the law be enforced in this State in respect of possible abductors and how will we protect that child and ensure its welfare is protected? That is something we need to talk about in broader terms. This legislation deals with the Luxembourg and Hague Conventions which have been signed by a number of countries with further countries likely to become signatories and supporters by 1992. That eliminates an amount of the grey area and of the open ground where a possible abductor could have room, space and time to operate.

Let us look briefly at the situation as it has been heretofore. Oddly enough, even some legal advice given to worried parents would not appear to have been all that helpful or accurate. It was not helpful in the sense that it was said the necessary legislation did not exist here. There was some legislation here which could have been helpful if it was pursued, for example, in cases where children were made wards of court or where custody orders had been sought and in some cases granted. Where that type of action has been taken it has been shown that the abductors were not as likely to proceed as readily as if no action had been taken. The time and space required by the abductors was not available to them and, as a result, they were not able to get away far enough or fast enough to be able to make a clear exit, and thankfully so.

Under the terms of the new legislation at least the High Court can intervene and a hearing can take place. That is fine so long as the child is not being moved. One can make an application to the court and the court can be sitting but the child can be speeding in a jet plane at a fast rate to some other corner of the world. The difficulty in having the child returned from those areas where they do not have systems of democracy are still very slim, even given the passing of this legislation. If people do not recognise international conventions and are not democratic in themselves, it is highly unlikely that they will be overly impressed even with an international convention of a democratic State particularly — as happens in some cases — if the abductors are wealthy and influential in their own countries. There are many facets to that whole scenario that have still to be dealt with not-withstanding the meritorious nature of this legislation.

A number of speakers referred to the lack of care and attention to the welfare and wellbeing of children in Ireland. I fully accept the points made by other speakers. There are often sad cases of children of only 14 or 15 years old being committed to prison. It is a sad reflection on us that we are not providing for those in that position. I am not for one moment saying that a child who has criminal tendencies should be given an award and allowed to roam scot free. The essential thing to remember in such cases is that the children need custodial and corrective care. In many cases the children suffer from psychological disturbances. This aspect of the problem requires a great deal of time, help, attention and investment. While aspiring to develop in line with the other civilized countries of the world, there are matters we need to pay more attention to. We cannot revert to the Dickensian era when children could be committed to workhouse type places and incarcerated in what could be scarcely regarded as corrective custodial centres. They could have been custodial but they could hardly have been regarded as corrective.

I hope the Child Care Bill will be passed shortly and that it will go sufficiently far to protect the welfare and wellbeing of children. As I said at the outset, that does not mean that children who have criminal tendencies are to be given the impression that their problems are not of their own making — in some cases they are not — that there should be no retribution. There must be some punishment in those cases but it must be of a caring kind. It must take into account the psychological needs of the juveniles. Otherwise we will not have advanced from the position of 150 years ago.

Deputy Quill made a point which I found interesting. She referred to the number of children who sit begging on bridges and on roadsides. That is a particular problem around this city, more especially in the run up to Christmas. It is deplorable that our welfare system is not sufficient to cater for the absolute abuse of very small children who sit along footpaths under street lights in cold, wintry, miserable weather. They are placed there solely for the purpose of extracting money from the public who are passing by. There are those who will say — and perhaps with some justification — the reason they are used in this fashion is that the parents do not have access to sufficient money to meet their basic weekly requirements. I have my doubts about that, certainly so far as some of those cases are concerned. As a member of the Eastern Health Board I have gone out of my way to inquire of some of the people concerned as to their circumstances. I was not always impressed with the findings.

Acting Chairman (Mr. Hilliard)

The Deputy may be drifting to another Bill.

Mr. Durkan

I was making reference to the contribution of a previous speaker.

Acting Chairman

The previous speaker also drifted.

Mr. Durkan

In fact, the three previous speakers drifted. It is possible that we will not have an opportunity to make reference to this problem of children sitting on pavements in our cities and towns until we speak again on the Child Care Bill and I am not sure that will eliminate the problem. Therefore, there needs to be a greater concentration by the child welfare agencies, such as the Eastern Health Board and the various health boards throughout the country, to ensure that children are not used as levers for a particular purpose, whether that means in a tug-of-love case or in the case of extracting money from the public at a time of the year when people are, perhaps, particularly sensitive. Abuse of children in this way must be of major concern to us. Perhaps our agencies would take account of that situation particularly in the run up to Christmas.

Another point I would like to make briefly is that inter-racial marriages and also marital breakdown are two obvious contributory factors to the situation that has arisen whereby this legislation is required. We have all had to deal with one or other of those types of cases over the years. At present it is possible and easy for a parent to leave Dublin airport with two or three children en route to the UK.

Of course, none of us wants to introduce measures which are so restrictive that passports will be required in all cases. Nevertheless it is possible for parents to leave the country with their children in this way and they will still be able to do so even after the passing of this legislation. I am not suggesting that we become too restrictive but some measure should be introduced whereby it will not be possible for a parent to move a child from this jurisdiction to another jurisdiction within Europe, for example, the North of Ireland or the United Kingdom. Once a parent seizes a child it is very difficult to get the momentum going, through the judicial process or whatever process, to overtake him or her, literally and methaphorically.

There is a proposal in this Bill whereby one can set up a sort of hot pursuit legal operation so that the various States involved can follow the events as closely as possible and information can be obtained in relation to the whereabouts of the child etc. What will happen, as has regularly happened in the past, if the child or children disappear? It is possible for this to happen in cities such as London, Manchester, Birmingham and even in Dublin. In such cases people will have to seek court action in order to obtain information on the whereabouts of the child from the person who is most likely to have it. I know it is possible to do this under existing legislation — it has been done — but obstacles can be placed in the way so that people do not get quick access to that information. Speed is of the essence in such cases.

From my experience, it is essential that one can respond quickly in child abduction cases. If this State or the State to which the child has been brought cannot respond quickly and six to 12 months elapse before the forces of law and order can intervene, the case can become much more difficult. Even under the proposed legislation, the child who has been abducted can experience such trauma in being brought back to the parent from whom it was abducted that it can have a psychological impact on him or her. In such cases various arguments can be trotted out in court as to why the status quo should prevail. Unfortunately that may still happen even after this legislation is enacted.

The Bill also provides — this will be helpful and avoid confusion — that if legal proceedings are taking place under the Hague Convention a stay can be put on the Luxembourg Convention and vice versa. This will avoid conflict in the proceedings under both conventions.

I welcome this Bill. I hope it will be as far-reaching as is required at present, although I am not 100 per cent certain that it will be. I hope that our enforcement agencies and legal process can respond sufficiently quickly to give the degree of protection needed to children involved in abduction cases. I hope that the existence of this legislation will act as a deterrent to a parent who might try to take a child out of this country without the consent of the other parent. I hope that people who think about abducting children by devious means to an interim place of hiding in, for example, the UK or another European country, will be discourged from doing so by the existence of this legislation. We know it is illegal to abduct children but many people do illegal things because they have little regard for the law. I hope this legislation will prove to be a deterrent to prospective abductors.

Deputy Pat McCartan referred to the rather unsavoury method of detaining a child when their welfare is in doubt. Even though this may be protective custody, detention can be a traumatic experience for a child. It is a pity that there is not some other way in which to do this, particularly as there are very few places in Ireland where children can be detained. We need to provide safe places for children who are under the threat of being abducted to another State. I do not believe there is any sense in detaining a child in a Garda station, although I have no doubt that he would be well looked after there. We need to provide a safe haven for children in such cases. I am not so sure from our past experience in other areas that there are too many of these places.

I hope that the Bill will discourage those who might decide to break the law from doing so. I also hope it will have the effect of implanting a respect for our laws and human and civil rights in the minds and hearts of those who do not seem to set a high store by such matters and that it will teach all to have greater regard for the rights and welfare of children generally. It should be mentioned that we are not all angels — occasionally Irish parents have snatched children from other jurisdictions and difficulties have arisen in restoring the child to the parent decided by the courts. I hope the Bill will also have the effect of ensuring people have greater respect for the laws of other democratic states and the rights of parents in those jurisdictions. I can think of a number of cases which have received both national and international attention over the past five to six years. No doubt these cases formed the basis of the need for the legislation now before the House. I welcome the Bill and I hope it will prove to be the deterrent it needs to be.

Mr. Callely

From listening to previous speakers and, in particular, the last speaker, one can easily recognise the clear need for legislation in the various areas of child care which have been referred to. Like the previous speaker, as a member of the Eastern Health Board I have had the opportunity to study various reports about children on footpaths, children who require custody during court hearings and so on. Much of the background information available is very interesting. I look forward to participating in the near future in the debate on several Bills which will address these matters.

I welcome the opportunity to speak on the Bill. Ireland has had no legislation specifically designed to deal with child abduction, yet we are all aware of the various cases of child abduction which arise from time to time. The child snatcher has sometimes relied on the glib phrase that possession is nine-tenths of the law. That may contain a grain of truth but it is not the whole truth.

The purpose of the Bill is to bring into law The Hague Convention on civil aspects of international child abduction and the Luxembourg Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children. These conventions must be given due recognition for the manner in which they address the practical and legal problems in securing the return of a snatched child. The scope of the conventions is limited to the signatories. This Bill puts in place a mechanism to deal with child abduction. Several questions must be asked about the Bill. Is it far reaching enough? Does it cover all aspects? Will it deal with the various matters that will arise from time to time? Unfortunately, I feel it will not.

I have tried to obtain statistics to prove my point but statistics on child abduction cases which have occured in the past are not available. There is no information as to the identity of the children, the abductees or the countries to which the children were taken. Background statistical information should be available when Bills of this nature come before the House. I am somewhat disappointed in this respect because despite contacting various Departments, including the Departments of Justice and Foreign Affairs, statistics of this type are not available.

Some previous speakers referred to Middle Eastern countries. I was trying to find out what proportion of abduction cases were connected with those countries. It is my belief that in many cases there is a Middle Eastern connection. Perhaps my view is influenced by my contact with a family who experienced some difficulties with one of the Middle Eastern countries. We all recognise the traumatic experience of a child involved in a snatch. It is a matter of concern to all Members. I, as a parent, fully appreciate and understand the concern of any parent when a child is abducted and the worries about the welfare of that child, especially until it is discovered exactly where the child is. We can easily recognise the trauma suffered by the immediate family and the heartbreak in the wider family circle.

I came across a case where a mother was aware her child had been abducted. Anyone becoming involved in such a case must be guided by the parent as to the identity of the possible abductee and where the child might be found. In this case the child was brought back to one of the Middle Eastern countries. For a number of weeks, the mother, grandparents, aunts and uncles of this child were left in a limbo, not knowing whether the child was in transit or had reached its destination. Very little could be done, although concern was expressed by various Departments whom the mother contacted. I commend the Garda Síochána on the compassionate way they dealt with that case.

One of the problems in these cases is the ease and speed of travel. I said earlier that the Bill does not cover all possible aspects. It puts a necessary mechanism in place but it is only a start and more legislation will be required to deal with this whole area. I cannot see how this Bill could be of any benefit in the case I referred to, or in future cases relating to Middle Eastern countries. It is my understanding that the Bill mainly deals with the two conventions. When this Bill has been enacted, we should continue to work in the broader area to which I have referred and cover the various eventualities that may arise from time to time, particularly in relation to the Middle Eastern bloc. I found some encourgement from the following remarks of the Minister when introducing the Bill:

I think you will agree that the important thing is to secure the return of the child and the Bill provides the necessary measures in that regard.

I have no doubt that the Bill does so, particularly in relation to the signatories to the two conventions. I support its provisions if only in support of that comment — to secure the early return of the child.

I would hope that the Department will continue to work on the legislation and, in due course, introduce amendments to cover the broader aspects of this issue about which previous speakers have expressed concern.

The Bill does go some way to recognising the welfare of the child, the heartbreak of parents and the overall aspect of child abduction. Its provisions give limited protection and, hopefully, will act as some alleviation of this growing problem of child abduction.

Mrs. Fennell

As in most cases, I am pleased with the introduction of this Bill but wish its provisions were wider, more far-reaching and formed part of a comprehensive plan for child care. I am sure its implementation will go a long way to fulfilling its aims — that is to give effect in the law of this State to the Hague and Luxembourg Conventions.

The Bill and its provisions deal with a particular area of child care which is not an everyday event, which may not grab the headline's because we may not very often see the need for its provisions. Nonetheless, when such cases arise, they are subjected to much attention on the part of the media, with people taking sides in the matter, whether it be the father or mother for whom one feels most sorry. We will all have seen banner headlines on international cases of abduction, all the more so if the parents are well known. Seldom do we see any follow-up on the resolution, if any, of such cases. Therefore, we are not informed as to how they are settled because, once the law comes into force, the media tend to lose interest.

The Bill — like all other social legislation — has been introduced rather late in the day and is not sufficiently comprehensive. Rather it is another piece-meal Bill on the rights of children, merely forming part of the bigger jigsaw that is necessary. It is regrettable that we cannot deal with all aspects of child care, so many of which are outstanding, in a co-ordinated way.

This is a very technical, detailed Bill, referring to rules of evidence, court action and the necessity for compliance with international law. Its introduction comes five years after the twelfth report of the Law Reform Commission in which they examined the requirements of the Hague Convention on the civil aspects of international child abduction and related matters.

My concern in its implementation would be that the main emphasis at all times should be consideration of the rights of the child. This must be of paramount importance, as it has been in the past, in regard to legislation we have enacted in regard to children. My concern would be that emphasis would not focus on the wishes of parents which, in most cases being dealt with in the media, appear to be the overriding consideration, with regard to which parent has the greater right to the child for whatever reason. I contend that the focus is not sufficiently frequent on the rights of the child and its long term welfare. Under Article 3 of the United Nations Convention on the Rights of the Child there is a requirement stating that the welfare of the child must be the overriding concern in such issues.

It is clear that any action taken under the provisions of this Bill will be expensive. This is one of my concerns. For instance, such action will involve huge expenditure bearing absolutely no relationship to a case taken in our courts in the normal way on child custody. It may involve overseas travel, international lawyers, witnesses, hotel accommodation and so on. I wonder how the provisions of the Bill will apply to people who will have to have resort to them, people of modest means who may have to pursue a child, let us say, abducted to Australia. My fear would be that this legislation could become a rich person's charter. The provisions of one section give the courts power to determine costs, when such can be levied against the abductor. I would like those provisions spelled out more clearly. Everybody should have the right to take legal action under the provisions of this Bill regardless of their financial circumstances. Too often, in other areas, parents are prevented from taking such legal action simply because they cannot afford lawyers' high costs and so on. Perhaps the Minister would explain how the provisions of this Bill will be implemented and financed in respect of people who cannot afford to incur such legal costs. I accept that, in abduction cases, where the parents have money or access to funds, they will liquidate all their assets or find the requisite money, by whatever method, in order to pursue the matter because of the very emotive and serious nature of such a happening.

I share Deputy Flanagan's concern that the provisions of the Bill do not cover abductors to Middle Eastern countries. Indeed the previous speaker made that point. For most people these will be very distressing cases because those states are not party to European conventions. We should highlight this issue at United Nations and Council of Europe level. Members of those states, who would be parties to such abductions, usually belong to the Muslim religion and have an absolute fixation about their children being reared in that culture. In many such cases state law upholds the religious precepts or concepts and would not operate independently of Muslim rights. Therefore, it is crucial that we encourage Middle Eastern countries to become parties to these conventions even if only to make them realise that it would be to their benefit also in many other areas. That is one shortcoming in the Bill, while I recognise that its provisions merely give effect to the two conventions.

What we are talking about is effecting the speedy return of a child to a parent from whom they have been forcibly removed. It is also about preventing their abduction in the first place. I am not sure how you can prevent abductions. We are talking about cross-cultural marriages where an Irish person marries somebody of a different nationality and after they have children something goes wrong with the marriage and the person from the other country wants to go back to that country and take their child. It is extremely difficult to prevent abduction apart from telling people who are marrying outside their own state that they should be aware and conscious that if they encounter a marriage problem and they have children they are going to run into difficulties because children cannot live in two places at the one time. Public awareness on the part of lawyers, priests, social and community workers of the passing of this legislation is bound to help.

The age limit of 16 provided in this Bill is perhaps too young. We are talking about young people when they are at, say, second level school and perhaps we are abandoning children of 17, 18 and 19 without facilities for dealing with them under this legislation. Is this absolute? Is this the upper age limit and nothing can be done about it?

With regard to the consent of the child, consultation with the child is mentioned in the Bill when the child is at an age to understand this consultation. To what extent will the views or feelings of the child be taken into account? This came up in other legislation and the point was made that it would be important that the intentions and feelings of the child be taken into account, not necessarily that the decision would be made on that basis but that they be considered.

The Minister said that under Article 20 of the convention the return of a child may be refused if it could be contrary to the fundamental principles of the State relating to the protection of human rights and fundamental freedoms. In what kind of circumstances would this be relevant? I am reminded of the Law Reform Commission report which on page 5 dealt with the case of a child who was living with its mother in England and was taken to Ireland by its Irish father. Northampton County Council applied to have the child returned but the courts here refused the application. They said there was evidence that the child was going to be adopted if it went back to England. Can we safeguard against that? It would not be desirable that an Irish child whose father or mother lived here would be taken back to another jurisdiction and, perhaps, legally adopted thereafter.

This legislation is about conventions to which Ireland is now a party, but we are the only one of 16 countries on the one hand and 13 on the other which does not have divorce. All the other countries have divorce legislation. It is going to be very interesting to see the difficulties that may arise when countries apply to our courts for the return of a child and they do not understand how we cannot have a legal dissolution of marriage. I know it is not a fact here but I think it will create an unequal pitch because all the other states will have divorce legislation which provides that the marriage is at an end and the decisions have been taken on custody, maintenance, property and all the other civilised things people in other countries do when they say their marriage is at an end.

Here we will have children of unions which will be marriage, half marriage, half separation, barring orders, civil nullity, church annulment and just ordinary drifting apart and this may cause some problems. This was the first thought that struck me when I looked at the Bill and considered the countries we will be dealing with as parties to this legislation. I am not sure how this will affect applications to the courts.

This is social, amending legislation to put in place tools that are necessary to deal with child care. I hope it gets a speedy passage through both Houses.

Mr. J. O'Keeffe

I am very glad to say a few words in support of this legislation. We are adopting The Hague and Luxembourg Conventions. It is no harm to remind ourselves that these conventions go back to 1980 and that, while there was a detailed examination by the Law Reform Commission, that report has been available for five years. It is a fair indication of the cumbersome nature of our legislative process that it has taken so long for this legislation to come before this House. I am not pointing the finger exclusively at this Government, though the question of political will in bringing forward legislation arises as far as a government are concerned. However, there are aspects of our cumbersome legislative process that need to be looked at in the broader sense.

I noticed the Minister for Industry and Commerce referred to the problems in the draftsman's office. That is obviously part of the problem. Another part of it is the number of sitting days in the House. It was estimated recently that in the half year from mid-July 1990 to mid-January 1991 this House will have been in session for approximately 25 sitting days only. That does not make sense. We must come to our senses, in so far as the political will to bring in legislation is concerned, the administrative process from the point of view of improving procedures, the parliamentary draftsman's office in increasing the staffing ratios required and all the parties in this House from the point of view of having a much more sensible and ordered programme of sitting days. There have been proposals on that latter point and I do not intend to go into them at this stage, but I felt it necessary to mention it.

In many ways the need for the legislation before us was highlighted by the very famous Garamanli case last year. Fortunately, that has a happy ending but it is significant that in the absence of this legislation in 1989 the happy ending in the Garamanli case made the headlines. I am looking at the Irish Independent where the headline was “Against all the Odds”. That highlights the fact that it was very largely because of the informal co-operation of the Swiss authorities that that case had a happy ending. We had not put the legislation in place in 1989, four years after the Law Reform Commission reported. There would have been many red faces if there had not been a happy ending in the Garamanli case because of the absence of legislation. That is why, I am delighted that at long last this legislation is before the House, and I want to see it having a speedy passage.

Another difficulty is that we do not know the extent of the problem. Fortunately, it is only occasionally that we have tug-of-love cases figuring in our newspaper headlines. There is, however, an absence of statistics as to the number of cases. I do not say that from the point of view of opposing this legislation, but surely after ten years of reflecting on whether we should take on board The Hague and Luxembourg Conventions, I would have thought that, at the very minimum some basic research would have been done and statistics collected and that information would now be available as to the approximate number of cases of child abduction. In the Dáil last year, the Minister was unable to supply that information. He just had not got it. I do not want to be too condemnatory, but I do believe that it is a failing on our part. We are seriously considering taking on board international conventions and we do not have a full data base on which to operate.

Welcome as the legislation is, it smacks to some degree of "ad hoc-ery" because, while we are taking on board these conventions, the Minister made no reference to the many other pressing issues in relation to the rights of the child. He made no reference to any plans for a comprehensive programme of legislation to deal with the rights of the child. I am thinking in particular of the UN Charter, a juvenile justice Bill and putting the juvenile liaison officer scheme on a statutory basis. To be blunt, these are all areas which have been treated with neglect. I would have hoped that the Minister would have taken the opportunity today to indicate a sea change in our attitude to legislation covering the position of children and the growing problems in the area of children and juveniles.

Examining the background to the conventions in the Bill, it is clear that nowadays most countries profess the view that the interest and welfare of the child is of paramount importance in dealing with legislation and court actions arising out of their situation. What is not clear is how that profession of interest is interpreted in different countries. I would have a very child centred approach. Ireland has the reputation as being a country where the family is the central unit in society and the professed view that the interests of children are paramount. In this regard we should be giving a lead not just domestically but to other countries. I do not believe we are giving that lead. We have been very sluggish in dealing with the problems of children. We have certainly been very sluggish in bringing forward legislation. There is the on-going scandal of the Child Care Bill which, if I recollect correctly, is up-dating in very slow motion the legislation going back over 80 years. We are also ignoring other areas of legislation that are needed in the area of children and juveniles.

It is not just in the area of legislation that this is obvious. We have it in our administrative acts. There is the scandal of young children for whom there are no proper secure care facilities. This has been highlighted time and time again over the last number of years in our courts and the pleas of the district justices seem to be falling on deaf ears. We profess to be a Christian society; we profess to be a society with an interest in and concern for our young citizens, yet we allow this scandal to continue. I would use this opportunity to appeal to this Government to take a far greater interest in the position of our young people both from a legislative and administrative point of view. Unless that is done we will reap the whirlwind in the years ahead. The problems are growing whether we are talking about the problems of juvenile crime or the problems associated with marital breakdown, and in all these areas the interests of the children must be given priority.

This is also of relevance in the international context because part of the problem is that many countries will not ratify these conventions. Only 15 states so far are party to the Hague Convention mainly in Europe and including Canada, North America and Australia; only 12 states are party to the Luxembourg Convention, this number again is drawn from the same geographic areas.

Going back to the Garamanli case, if I recollect correctly, Libya was the ultimate proposed destination and there have been some problems in the Middle East. We cannot force these countries to adhere to these conventions but we can certainly give an example not just by belatedly enacting legislation to allow us to ratify but by showing how we deal with children in our society generally. I can foresee difficulties in parts of the world to which children may be abducted, particularly where there is a tradition of the male dominated society where the rights of not alone children but women are given very little consideration. I do not say that as a criticism of those societies; it is not so long ago, up to the last century, that even in legal terms women and children were treated as chattels in this country. Over a period attitudes, and legislation, gradually changed but that change has not taken place specifically in the Moslem world. To have any impact on those countries we will need to do more than merely adhere to those conventions. Ultimately, I would like to see all these countries adhering to this convention. Only then will it be water-tight. Nowadays when talking about going to the southern tip of Africa or Asia we are talking about a 24-hour journey which is quite a short journey. The Bill will not be water-tight unless we can get many other countries to ratify the conventions. We can do this through diplomatic means but the best way is by giving example.

The Bill largely adheres to the recommendations of the Law Reform Commission and from that point of view I find no objection to the main parts of it. The nuts and bolts of the Bill obviously conform to the conventions. The way in which the Bill is drafted is largely based on the recommendations of the Law Reform Commission who studied them very carefully. I can find no fault with what is in the Bill. In many respects my concerns are with what is not in it and I will mention two matters in particular. The first is the decision by the Minister to ignore the recommendation of the Law Reform Commission that a criminal offence of abduction of a child should be created. It is kidnapping in a sense. The Minister's view is that the existing law in relation to kidnapping and contempt of court is adequate. I do not think the Minister has fully justified his decision to ignore the recommendation of the Law Reform Commission in this regard. To merely pick one phrase from the commission's report, that such criminal sanction might "put an unnecessary barrier in the way of a parent who is later minded to return the child" was not sufficient. The Minister has not dealt with the point other than quote from the Law Reform Commission report. The fact that it is referred to in the report indicates that it was debated by the Law Reform Commission and, from that point of view, there was a duty on the Minister to justify why he did not take on board this very important recommendation.

The Law Reform Commission report pointed out that it would be possible to guard against the contingency referred to by the Minister by making provision that no prosecution should be brought without the consent of the person in breach of whose custody rights the child was abducted out of the jurisdiction. The commission raised the issue and gave a reply to it. Having extensively examined the law they came to the conclusion that an offence of abduction of children under 16 out of the jurisdiction should be created. The Minister has given no credit to the Law Reform Commission for the detailed work they put into this recommendation which occupies a whole chapter of their report. He certainly does not do much credit to us to merely abstract one sentence from the report and expect us to swallow that as being his reason for not proceeding with the recommendation. I find that quite unacceptable.

I would be quite prepared to debate with the Minister whether his view is correct. I do not regard the recommendations of the Law Reform Commission as being written on tablets of stone and handed down from on high but they must be given serious consideration. If a different view is taken of them at the very minimum that view should be explained fully, but that has not happened in this case. We are talking about a very serious aspect.

We have an opportunity to amend our law to make it more difficult to wrongfully remove children from our jurisdiction. At present the only statutory prohibition against the removal is under section 40 of the Adoption Act, 1952 and part of that section was declared unconstitutional in 1979. It is not totally correct to say that we solely rely on the Adoption Act in that there is provision under section 56 of the Offences Against the Persons Act, 1861, which makes child stealing a felony, punishable with seven years imprisonment, but the Law Reform Commission concluded that the section was not applicable in cases where there is a bona fide dispute as to custody. That clearly shows that our criminal code is not adequate. We have an opportunity in this Bill to update our criminal code but that is not being taken and no legitimate reason has been given by the Minister for not so doing.

It is no harm to point out that the UK passed a Child Abduction Act in 1984. I am not one who would suggest that we should slavishly follow UK legislation, at least it provides a precedent for consideration. I suggest to the Minister that he give consideration to the matter before Committee Stage. He should introduce an amendment to cover the point and follow the recommendation of the Law Reform Commission, or, alternatively, at the very minimum, give us the benefit of his thinking as to why he is not following what seems to be a very sensible course in this regard.

The second point I wish to raise is the question of the administrative procedures that should follow the enactment of this legislation. My colleague, Deputy Flanagan, went so far as to suggest the possibility of the establishment of a children's commissioner. That would be one way of having somebody representing the interests of abducted children in this country and abroad. The other possibilities in this regard are in relation to the Legal Aid Board where someone would have specific responsibility for dealing with such cases, including a special programme of judicial training to increase awareness in the Judiciary, the seriousness of child abduction and, generally, how specialist areas should be dealt with.

I accept that passport restrictions is a complex area but it has been raised by a number of concerned people from time to time on this issue. It was touched on in an article written by the Director General of the Irish Society for the Prevention of Cruelty to Children following the Garamanli case last year. I accept that the matter is complex because the whole trend is towards freer movement of individuals around the world and particularly in the EC. We have always had travel free restrictions between Ireland and the United Kingdom so I would hesitate to suggest that we should disturb that trend, except for special reasons. The Minister should explore this area. Should there be requirements in relation to surrender of passports? Is he happy with the present situation in regard to the addition of children on parents' passports? Does he see any case for separate travel documents for all children? These areas need to be looked at in the context of this legislation, otherwise the legislation might not be effective. I would have thought that the Minister would have outlined his thinking on those areas and I invite him to do so when he is replying.

I should also like the Minister to comment on the costs involved in court cases. My colleague, Deputy Fennell, referred to the Bill as possibly being the rich man's charter. It could also be the rich woman's charter, perhaps we should say it could be the rich person's charter. Essentially, the point she was making arises under two headings about which she expressed concern, which I share. One is the question of court costs and the other is in relation to travel costs. I do not believe the Garamanli case would have been resolved if the mother and her lawyer had not flown from Ireland to Switzerland and were able to directly negotiate the return of her children. What would have happened if the mother had not been able to afford to take that step? I do not intend to go into details of that case but the mother did what she had to do and, fortunately, it worked for her. However, there may be other people in a similar situation who would like to be able to take the same measures but who could not because of lack of funding. I passionately believe in a policy of access to justice but we must bear in mind the cost involved. The Minister should deal with this point in his reply. Will support be available to people who have to travel to ensure that children who have been abducted will be returned as a result of initiating proceedings in the country concerned or who do whatever is necessary to secure their return within the terms of the convention or in relation to countries which are not party to it? The Minister would put many minds at rest if he would give reassurance on that point.

The other aspect is in relation to court costs here or in another country. I should like the Minister to clearly outline what he has in mind regarding the applicability of legal aid. The Minister will not be surprised to hear that at present our legal aid system is a shambles and many people do not have access to legal aid although the purpose of setting up the scheme was to protect people who could not afford to go to court. It is also no secret that the people involved in working the legal aid system are overburdened and unable to cope. Many of them are giving selfless service to the system in trying to cope with the workload. However, their service is not adequate to the demand. It is an excuse for a comprehensive system recommended many years ago in the Pringle Report and which still has not been put in place. I mention this in the context of the position of people who may want to avail of the provisions of this Bill as a matter of great urgency. It might be a question of applying to the High Court by means of a late night or vacation sitting, it certainly would not be the ordinary common or garden case where you correspond with your solicitor leading, ultimately, to the issue of a writ and the case coming to trial in 12 months' time, or longer, unfortunately, in some cases. It may be necessary to protect the rights of somebody who does not have the money to gain access to a court.

The Minister indicated that legal aid will be available. To what extent will it be available? Will it respond to urgent situations which may arise if applications have to be made to the court virtually without notice? The Minister should clarify his thinking in this regard and let us know how he envisages that aspect of the scheme working.

We welcome the Bill and will be glad to co-operate with the Minister in ensuring its speedy passage through the House. I have raised a number of issues which I have no doubt the Minister has taken careful note of and I look forward to his dealing with these issues in his reply now or in a more detailed debate on Committee Stage.

Minister for Justice (Mr. Burke)

I thank Deputies for the welcome they have given to this important Bill, which enables the Hague Convention on child abduction and the Luxembourg Convention on child custody orders, to be ratified by us. Until recently, there was little co-operation on the civil aspects of child abduction, but the work of the Hague Conference on Private International Law and the Council of Europe in each of which Ireland participated resulted in the two conventions now the subject of this Bill.

Many of the countries with which we have had association in one form or another are, or are about to be, parties to one or both of the conventions. Of course, the more countries who ratify the conventions the more effective they will be internationally. When Ireland assumed the Presidency of the EC, I as Minister for Justice arranged in the context of the European political co-operation, discussion on the desirability of all European States being party to both conventions, given the advent of 1992 and the increased movement of persons within the Community. As indicated in my speech on behalf of the EC States, the EC States are now parties to one or both conventions, and it is expected that all EC States will have ratified the convention by 1992.

A number of Deputies, including Deputy Durkan and Deputy Callely spoke about the countries who may not ratify the conventions. I am sure that in the context of the Hague and Council of Europe conventions and the UN Convention on the rights of the child, our Minister for Foreign Affairs will avail of every opportunity to advocate that as many countries as possible should ratify the existing international conventions on child abduction. I can assure the House that I will be taking the same opportunity at meetings of the Council of Ministers.

I have noted the various points made by Deputies to the debate. Certain of those points are appropriate for Committee Stage and I will consider them between now and then.

The conventions deal exclusively with the civil aspects of child abduction and the Bill has confined its priority to enabling the conventions to be ratified. Nevertheless, some Deputies suggested that the Bill should also deal with criminal aspects, namely, the creation of an offence of abduction of a child out of jurisdiction, as recommended by the Law Reform Commission. I am not in favour of creating such an offence in this area. The imposition of criminal sanctions in what are essentially family disputes concerning children has been the subject of a live discussion in the Hague Conference on Private International Law and the Council of Europe, and the experience is that the criminal law in this area is a double-edged sword which may operate against the interests of the child and any hopes of reconciliation between the parents.

In cases where the court order has awarded custody to someone else, it is desirable as a matter of policy in what is primarily a matter of family and not criminal law that the conduct of parents who act in defiance of the court should be dealt with as a contempt of court rather than as the subject of criminal prosecutions. In exceptional circumstances whether or not there is a custody order a person could be charged with kidnapping which is an arrestable and extraditable offence. In addition, section 37 of the Bill is a practical measure which gives power to the Garda Síochána to detain a child whom they reasonably suspect is, or is about to be, removed from the State in breach of any custody order. I am satisfied that the existing law together with the new provision in section 37 will be adequate to deal with the matter. The provisions in the convention should in addition act as a deterrent to the would-be abductor. My proposals in the Bill are, accordingly, confined to civil matters. The Bill is not concerned with criminal sanctions.

Deputies also referred to the recommendation of the Law Reform Commission that section 40 of the Adoption Act, 1952, should be repealed and replaced by a new provision which would in certain circumstances prohibit the removal from the State of a child under one year of age. I understand that the original provision was enacted against a background of widespread trafficking of children out of this country to be adopted abroad. This however, is no longer the case as a result of the introduction of legal adoption and changes in social conditions and public attitudes that have taken place. The matter is primarily one for the Department of Health. In any event the scope of the Bill is confined as a priority to giving effect to the two international conventions on child abduction, and it would not therefore be appropriate to deal with the matter in question in this legislation.

Deputies referred to the Law Reform Commission recommendation that the law with regard to passports as it affects minors should be amended. This matter is the responsibility of the Department of Foreign Affairs and it would not be appropriate to deal with it in this legislation.

Deputies queried the capacity of the Legal Aid Board to cope with the cases arising under the conventions. It is not expected that the number of cases will be such as to cause the board problems in this area. The board already have international responsibility in the area, for example, of maintenance, and they are coping well. I expect that the board will be able to cope without extra financial or staffing resources. As things develop we can look at the matter again.

There may be some concern that under section 37 of the Bill health boards might obtain custody of a child without court approval for too long a period, especially during the vacation period of the District Court or at Christmas. Similar concerns were expressed in the Dáil committee relating to Part III of the Child Care Bill, 1988, which has somewhat similar jurisdiction provisions to section 37. The matter is being examined by officials of my Department and the Department of Health to see if anything can and should be done in this matter.

Deputies Flanagan and Callely inquired about statistics on child abduction cases in Ireland. No figures are available at present as Deputy Flanagan was informed in answer to a Parliamentary Question on this subject. However, when the legislation is in operation it will be easier to monitor the number of cases by way of the central authority which will be established in the Department of Justice for the purposes of the convention.

In regard to article 5.3 of the Luxembourg Convention, which relates to legal aid, there is no question of a means test for legal aid under the Luxembourg Convention. This has been justified on the grounds that the cases involved are exceptional, that speed is essential and that the applicant will normally be unfamiliar with the legal aid arrangements of the requesting state. There is no problem about means testing in these cases. We have had to make similar arrangements in the case of the recognition and enforcement of maintenance orders from other European countries.

Deputy Kavanagh referred to the fact that I will be the central authority and asked if this will be the case in other countries. First, my Department will act as the central authority. In other contracting states it is usually the Department of Justice who are the central authority. The proposal to appoint the Minister for Justice as the central authority is in line with the recommendation of the Law Reform Commission. However that is a matter which can be kept under review in the light of the operation of the conventions.

An Ceann Comhairle

I am sorry to interrupt the Minister but he will observe the time has come to deal with questions.

Mr. Burke

Let me say in conclusion that I welcome the debate and I am glad the Bill has received a warm welcome. I will have an opportunity to reply to the other points raised on Committee Stage. Careful note was taken of them. I recommend, subject to agreement between the Whips, that Committee Stage be taken on Tuesday of next week.

Question put and agreed to.

An Ceann Comhairle

Is the proposal that Committee Stage be taken next Tuesday, subject to the approval of the Whips, satisfactory? Agreed.

Committee Stage ordered for Tuesday, 27 November 1990.