I move amendment No. 1:
In page 4, between lines 30 and 31, to insert the following:
"‘Central Authority in the State' shall be construed in accordance with section 8 or 22 (as may be appropriate) of this Act;"
Child Abduction and Enforcement of Custody Orders Bill, 1990: Committee Stage.
Section 1 agreed to.
SECTION 2.
The amendment is self-explanatory and is agreed to.
Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
I welcome the Minister of State in his new role in the Department of Justice. I think this is his first official assignment in the House in that role. He exemplified himself when dealing with the Child Care Bill and I wish him well in his new duties.
The Law Reform Commission, in Chapter 6, (2.c), of their report, recommend that we should enact legislation here to contain among other things "a certificate purporting to be under the seal of the Minister for Foreign Affairs evidence of the fact that a State is party to the Convention and of any declarations or reservations made by a State party to the Convention", and the reasons for that are set out in the report. Is the Minister satisfied that that provision is adequately covered by the provisions in section 4? Is that intended to be the section to take on board, so to speak, the recommendation of the Law Reform Commission?
They make other proposals with regard to necessary legislative steps we should take to properly accommodate the Hague Convention, in particular. I am concerned that this recommendation is accommodated by the legislation. I am curious because this is a rather technical area. Is section 4 designed to deal with that recommendation?
The section, as I understand it, is designed to deal with cost and length of time it takes to process this. Will the Minister indicate how that will be dealt with by his Department under regulations?
I did not hear the start of Deputy Bell's question. Will he repeat it for me, please?
As I understand it, section 4 deals basically with the question of expense and the fact that these proceedings are very time consuming. Can the Minister give us some indication as to how that will be dealt with under the text of that section? Will it be dealt with by regulation? How will it be financed and organised?
I thank Deputy McCartan for his very nice words and I look forward to the co-operation of the House in whatever efforts we make to improve the law of the land and I thank everybody for their co-operation in the past. We are satisfied that section 4 (2) covers adequately the points made by Deputy McCartan. Section 4 (2) provides that:
An order that is in force under subsection (1) of this section shall, as the case may be, be evidence——
(a) that any state specified in the order is a Contracting State;
(b) that a declaration, a reservation, a withdrawal of a reservation or a denunciation set out in the order was made and of its contents.
We are satisfied that covers the situation adequately from all the information available to us.
On the point made by Deputy Bell, the operation of this section will be by way of order from the Minister for Foreign Affairs. Once he orders it it must be operated.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
I have a query which might be better left to pursue further when we come to an amendment in my name dealing with the issue of legal aid. I will put my query now to the Minister of State. He may wish to leave it and take the matter up again. The declaration here is simple, that The Hague Convention shall have the force of law. The Minister in moving Second Stage said that legal aid will be available to applicants. The explanatory memorandum provides, on page 3: "11. Applicants under both Conventions will be entitled to legal aid.".
There is no provision in the Bill in the accommodating section dealing with that aspect but it is recited in the text of the conventions that the contracting states should make provision, in short, for legal aid for those who require it under any application. The Bill provides in Chapter V, Article 25: "Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State." Is that the way the Minister intends to leave this matter? In other words, for the purposes of allowing people avail of our legal aid provisions here, is he satisfied that a mere recital of it in the convention is adequate, coupled with section 6 of the Bill which provides it shall have the force of law, or is it intended in the Department through other regulations or under other legislation to provide for the extension of legal aid to cover applications under the Bill?
As Deputy McCartan said, we will be dealing with this later on an amendment he has down. Let me say that once we ratify the convention as a result of this Bill, when it becomes binding, it is automatic and incumbent on us that the Department of Justice, being the central authority in the case, and the State itself, must accept the rules of the convention, that is that in any case automatically the State which is a party to the convention must provide that necessary resources to ensure that legal aid is available to any person taking a case or any person affected by any application. As a party to the convention, once we ratify the convention as a result of this Bill, it will be incumbent automatically on us in law to ensure we make legal aid available. We are satisfied that position will obtain and that we do not have to enshrine it in the Bill. It is part of our international obligation under the convention and our national obligation once we ratify the convention. I will come back to it.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
I join my colleagues in wishing the Minister of State, Deputy Noel Treacy, every success in his new role as Minister of State at the Department of Justice.
In regard to section 7, "the court" as defined in the Bill is the High Court. Why is it necessary to use the High Court in this instance? I am thinking particularly of the debate on the Judicial Separation Bill in which I say from memory — correct me if I am wrong — the Circuit Court is the court used in relation to family matters. During that debate all Members were concerned that we would have judges sitting in family courts who would have a great deal of feeling for the type of cases they would be hearing on a regular basis, that certain types of judges would be selected to deal with those types of cases and preferably there would be some judicial training for dealing with the whole area of family law and particularly children.
This legislation, which I welcome very much, also deals with children. Our primary concern in this legislation is the protection of the rights of children as distinct from getting into disputes about who should have custody or who should not have custody.
I am anxious that the Minister would satisfy himself that the High Court should be the only court to be used in these types of cases. I would be anxious that we continue this whole concept, that in family law matters, including those affecting children, we would have people sitting on the bench — I say this with the greatest respect to this Judiciary because I acknowledge that a judge must deal with many different types of cases on a daily basis when the court is in session — who would have a feeling for the whole area of family law relationships between adults and between adults and children. For that reason I would be anxious to hear from the Minister why, in this instance, we must revert to the High Court. There may be a very good reasons of which I am not aware but it would be worth giving the Minister an opportunity to explain why it is the High Court that is referred to in this Bill.
I thank Deputy Seán Barrett for his kind words. I look forward to working with the spokespersons of all the parties and having a good rapport with them in order to ensure that the laws we enact are for the betterment of the country as a whole.
In response to what Deputy Barrett has said I should explain that there are a number of reasons the High Court has been selected as the most suitable court. At present when children are abducted into the State it is the High Court that is normally used to seek the child's return whether by habeas-corpus application or otherwise. It is considered that the High Court is the most appropriate court to hear cases under the Hague Convention, the expediency required under that convention and subject to certain safeguards in the convention which generally have regard to what is best for the child but also, as is specified in Article 20, make provision for the fundamental principles enshrined in our Constitution. One of the reasons the High Court has been selected is that it is the one court that is available 24 hours a day every day. These cases often occur at very sudden notice when one needs to be able to call on a higher court very quickly. Often they also impinge on constitutional questions when the expertise of the High Court in that area is of great importance. While I share Deputy Barrett's desire that we have people with specialised training in family law and child care deal with such matters it is appropriate for the courts to decide what training, if any, they should have. Because they have already been hearing cases like these we believe that expertise is already there. Consequently, in the interests of expedient decisons and in order to be able to respond to immediate, sudden difficulties — taking into account the constitutional aspect and the availability of the High Court on a 24 hour basis — in order to fulfil our obligations under the Hague Convention in the broadest possible context it is important that it be the High Court that deals with cases in these circumstances.
I join Deputy Seán Barrett in expressing some concern about reliance on the High Court as the exclusive court to deal with applications under the provisions of this Bill.
In defence of the Circuit Court and indeed the district courts let me say that they are courts whose judges are also available on a 24 hour, seven day basis because very often the Circuit Court and district courts must deal with urgent matters. I am thinking of landlord and tenant issues, of barring procedures, place of safety orders for children at risk and many other separate, similar type applications. It is only fair to say that our judges are available at all levels and in all courts when needed. Equally they all deal with matters which impinge on constitutional rights. I accept that the High Court is the court of primary jurisdiction and the court of first recourse and authority in dealing with the Constitution. Nonetheless all judges often take decisions affecting the position and rights of persons under the Constitution. Indeed the Constitution itself requires judges to take an oath that they will uphold its provisions and implement the law in accordance with its spirit.
As has been pointed out, we have given substantial jurisdiction to the law courts to deal with matters relating to children's rights, custody and maintenance. Then it does not seem logical to exclude either the District or Circuit Court entirely from the provisions and operations of the Bill. The obvious, really practical consideration is that of cost. The complexities and formalities of the High Court are such that the onus that will be placed, for example, on legal aid centres in complying with the requirements of the more formal procedures of the High Court will be all the greater. It is a matter which should be examined.
Perhaps the Minister would consider before Report Stage whether we might enable the Circuit Court to deal with applications under the provisions of the Bill. Then the High Court would be there as a court of appeal, from the Circuit Court, if issues needed to be taken further. As a matter of practicality there should be no difficulty experienced because it is not unfair to suggest that most if not all of the litigation arising under this Bill will come before the Circuit Court because the central authority with responsibility inevitably will be based in Dublin. Therefore, most if not all of the litigation will take place in Dublin where the Circuit Court — and indeed the District Courts — have a fine array of family law courts established in seaparate buildings with all of the necessary resources and equipment available to them.
It is a matter worthy of further consideration and it would be my hope that the Minister would reflect on it again.
While accepting what the Minister said in relation to the availability of the High Court I would ask him to reconsider this matter for Report Stage. It is important — I am speaking now not as a qualified lawyer by description — that we should, as a nation, endeavour to develop the whole concept of the family court in which we deal with family matters and those relating to children in a less formal atmosphere, one in which the wigs, gowns and formality of the court will disappear when it comes to dealing with what are basically family issues, be they breakdowns between spouses or cases in which children are involved. I would contend that in 90 per cent of cases the issue with which we are dealing here is a family one. Take the example of the "tug of love" as it is known, a breakdown between husband and wife affecting the whole family. Within the family court we should endeavour to develop a Judiciary that is understanding, dealing with these types of issues on a daily basis, so that it will become second nature to a judge to be understanding of such matters because he is in the atmosphere of the family court continuously. I have often thought how difficult it must be for a judge to shift from one type of case to another. After all we are all human and there will be occasions when we are in better form than at other times. It would also lead to more consistency within the overall realm of family matters.
For those good reasons, as I see them, it would be worthwhile reconsidering the involvement of the High Court in these cases unless it is absolutely essential, which it is not obviously, that a particular court must be the court to hear particular cases. From what the Minister and my colleague, Deputy McCartan, have said, there is no compelling reason that the High Court should be the court to be used in all such cases under the provisions of this Bill. We should also take into account the costs involved. The family court in the Circuit Court is the place we can ensure that justice is seen to be done in family law cases in a less formal atmosphere and at lesser cost.
I join my colleagues in sending my heartiest best wishes to the Minister on his appointment. We all look forward to working with him.
I agree with the Minister's point that it is normal for these cases to be dealt with in a fire brigade fashion. That is what makes this so confusing because there is a very long waiting list for free legal aid. Most of the people who would have to contest this type of case would require free legal aid. A lot of them would be women without an income. Can the Minister explain how the system of free legal aid would operate, at short notice, in a special sitting of the High Court or any other court? Where will there be provision in the Bill, in the regulations or in the Department to operate free legal aid in this sort of case?
I thank Deputy Bell for his kind remarks. I take cognisance of what my colleagues have said on this matter. I do not have a hang up about any particular court, but it is important to designate the appropriate court. There are a number of reasons the High Court was chosen. I concur with Deputy McCartan about the availability of judges in all of the courts. The difference between the High Court and the others is that the High Court usually sits on most days, apart from weekends, whereas the other courts will not find it possible to hear cases for various reasons.
We also need to build up a certain expertise in this area, as Deputy Barrett said. There may be on average about ten cases like this per annum. If we are to build up expertise we must have the cases heard in a particular court where that expertise could be built up. The High Court would be suitable. If we were to delegate responsibility to the lower courts, the Circuit Court or the District Court, there may be only one case in a Circuit Court in any one area in a year. If that were the pattern it would be hard to build up the necessary expertise. Holding the cases in one court would make it possible to build up expertise.
In relation to what Deputy Barrett said about the wigs and gowns, as per the Judicial Separation Act, 1989, section 39 (2), in cases like these, wigs and gowns will not be worn. I am sure the House will be happy with that.
Another reason the High Court should be used is that one of the first things the court may have to do would be to make a child a ward of court and the High Court has that jurisdiction. However, I am prepared to consider what my colleagues have said. I will look at this before Report Stage to see if there is an alternative to having them in the High Court and I will inform the House so that we can have consensus on the matter.
With regard to free legal aid about which Deputy Bell talked, the central authority in the other country would make a request to the central authority here, the Department of Justice, in relation to any application to be heard here, and we would automatically make free legal aid available, inform the Legal Aid Board and have one of the solicitors from the board nominated to take care of the case. The response would have to be immediate. There would not be any delay or doubt. Free legal aid will have to be made available under our laws and under international law.
The issue of the court is something I would like to come back to on Report Stage. I am saying this in case I seek to move an amendment at that Stage.
Likewise.
Noted.
Question put and agreed to.
SECTION 8.
Amendment No. 2 not moved.
Question proposed: "That section 8 stand part of the Bill."
I had submitted an amendment which I have been advised is out of order. I accept the ruling. Nonetheless, I would like to talk to the Minister about the spirit of the amendment which related to the establishment of the central authority. The section gives the Minister permission, if he wishes, to establish a central authority and I sought to make that mandatory by changing the world "shall" and indicating a time limit, that it should be established within six months. The provisions of the Bill are very important and should be brought into play as quickly as possible. What are the indications as to when a central authority will be established, and who will designate it as a central authority? In the recent legislation dealing with child care a provision was incorporated to the effect that the Minister would bring a section or sections, or the Act in its entirety, into play by order when the occasion was right. It is estimated that it will be years rather than months before that important legislation is brought into play. On the other hand, the Video Recordings Bill passed in this House over 12 months ago is still awaiting ministerial order to bring it into operation.
On the surface we seem to be legislating in very important areas of law but because of the way in which sections are drafted and powers are given to individual Ministers to make orders to bring the legislation into operation, often times the laws we are passing in this House are not operating. This is a section where that possibility arises and it is possible that a central authority will not be established for a considerable period, and to that effect the Bill will not be up and running. It is important to get a clear assurance that the central authority will be established sooner rather than later.
The Minister says that the central authority will be the Department of Justice. We need to clarify how this will operate in the Department of Justice. Will an official be designated with primary, if not sole, responsibility for the operation of that authority and its works, or will the Minister have direct ministerial responsibility for the authority? The importance there is that a member of the public should know whom to go to and how to deal with approaches to the central authority. Not everyone will be going through the agency of the central authority in the other contractual state. Not everyone, of necessity, will be granted legal aid or will go through a lawyer who knows the ropes.
The point has been made that these applications can arise in very heated and immediate circumstances involving high emotion and people under great stress in difficult circumstances, and it is important to have easy and clearly identifiable access available. For example, the Department of Justice are not open seven days a week. I presume like all other reasonable institutions they close at the weekend. The difficulty here is that if the central authority is someone lost in the middle of a Department who close their doors at 5 o'clock on Friday, that absence could be exploited by people who would seek to do down the rights of children by bringing them into the State and disappearing within the State or by moving out of the State at an opportune time. Those factors are real.
Reference was made to a remarkable affair where a mother and a lawyer were able to intercept at a Swiss airport a father and a child making their way rapidly to a Middle East county. Timing was crucial. If they had arrived on a different day or at a different hour and if the Swiss authorities had not been so readily at hand and so well disposed, the heroic dash by the lawyer and the mother might have come to nothing. It is important that the central authority, as well as the court, should be available on a 24-hour, seven-day basis. Will the central authority have a public office where people can go or is it a matter that will be reposed within the Department and a person seeking aid or assistance will be dealt with by whoever is available on the day from a section within the Department?
If issues arise in particular or general matters, will we be in a position in this House to put questions to the Minister relating to the functions and operations of the central authority, or will we be told that it is not a matter within the Minister's remit and has been passed to a person or group for whom the Minister has no direct responsibility? These are issues which are not explained in the section. It is a general and enabling section rather than a mandatory one. Is it intended to establish an independent authority outside the Department or is it intended that the authority will forever repose within the Department's remit and functions?
The Minister is being somewhat conservative in estimating the number of cases which will be covered by this legislation. I believe that the incidence of this unfortunate kind of case will increase rather than decrease due to the increasing number of inter-country marriages. Perhaps we would be better served by an authority of experts, people working in the field, appointed by a small board chaired by some eminent person independent of the Department. I say this in view of any conflicts that might arise between the interests of individuals and the policy of the Government or of the Department which might be seen to bear unnecessarily on the working and freedom of the authority. These are important questions which I hope the Minister will be in a position to answer.
This is probably one of the most important aspects of this legislation and I should like to hear from the Minister exactly what he has in mind regarding the central authority. The Minister suggested that we are dealing with only a small number of cases and he mentioned the figure of ten. Of course that would be ten too many. Factors such as ease of travel, the large number of emigrants marrying abroad while working in America or Europe, and the general fact that the world is becoming a smaller place lead one to believe that there could be more cases to be dealt with in this area.
Ireland can play a major role and lead by example. We often ask what we can do in the world of international politics. We are a member of the UN and this is one area where we can use our influence to encourage more and more nations to involve themselves in these conventions. Where conventions are not in place we can encourage more bilateral arrangements in relation to child abduction. We as a small nation can have a major influence if we lead by example. We are not talking about vast sums of money or setting up elaborate procedures but rather showing by example that things can be done to lessen the grief and hardship caused to so many people as a result of child abduction.
I do not think any of us here has any personal experience of this horrific trauma which must leave a terrible mark on the child and the parent or guardian. The fear must remain that it may happen again. It is like any kidnapping in that it is a most horrible crime and is even more horrific in that it involves small children who cannot defend themselves. We should not underestimate the grief and hardship involved in this type of experience. Neither should we underestimate the possibility that the incidence of this type of problem could become greater, due to factors I have mentioned. Conventions of this type are the ideal way of resolving such difficulties between civilised countries.
If somebody contacts any of us or another individual inside or outside the legal system in a matter of this type, the central authority is the place to go. There should be a clear understanding when this legislation has been passed as to the structures which will operate in relation to the central authority. I am not in the business of saying that Ministers should have no say in such matters but a Minister for Justice is not the person to head the central authority. He is a very busy person.
If we provide that the central authority is the Minister for Justice, we do not expect that a person caught in this position will personally contact the Minister. It may be impossible to do so, for various reasons. The Department of Justice, and the Minister, should be involved in a central authority. I would envisage a children's commissioner or an office set up as the central authority, headed by a person who could do other things in addition to dealing with the odd case of child abduction that might be referred. I am talking about politicians examining this matter in detail so that we encourage greater participation in conventions. It goes beyond dealing with the occasional case that may come before the central authority. We should be developing and encouraging a worldwide charter for the rights of children. This is probably one of the greatest evils that can be perpetrated against a young child. In dealing with this type of legislation we should at all times think about the child first, and everybody else second. For that reason I would ask the Minister, before going further with this section, to outline to us what he has in mind in relation to the central authority. As the legislation is worded at the moment, the Minister "may" by order appoint a central authority to discharge the functions of the central authority under the Hague Convention. Unless and until the Minister appoints a central authority under this section the said functions shall be discharged by the Minister, not by representatives of the Minister, and reference in this part to the central authority in the State shall be construed accordingly as references to the Minister.
As the legislation stands at present, the Minister is taking on this job. I think that is unsatisfactory. This House should be told what plans the Minister has in mind in relation to a central authority because I do not think that those who thought up these conventions in the first place ever expected that the Minister for Justice would be the person to contact if one had a problem.
The wording of this section should be more definite. Whilst Deputy McCartan's amendment was not accepted for legal reasons, the Minister has an ideal opportunity here to tell us and to put it on the record what plans he has and what structures will be in place. He should tell us whether or not the Attorney General has any role in this central authority and whether the health boards or the probation and welfare officers will have any control. We are into the area of the custody of children, of perhaps having to put children into care for a very limited period. The central authority will play a major role in all of this. As Deputy McCartan says, this is "bang bang stuff". One does not hang around if the boat is leaving in two hours or if the plane is leaving in three hours. We have to make certain that we have a system whereby somebody in Dublin Airport can be contacted immediately, or somebody at Dún Laoghaire Harbour or the North Wall, to make certain that a child does not leave the jurisdiction. We cannot hang around wondering who is really in charge of this. It is like when the snow falls and traffic piles up all over the place, and a day later we have a big inquiry to find out who was really responsible. Unless we know ourselves what we are talking about we will all be hanging around asking where the Minister is. The Minister's Private Secretary might be representing the Minister, or perhaps it would be the Minister's officials, but we as public representatives want to be able to come in and ask the Minister to explain to us the circumstances of a particular case that went wrong. No matter who is sitting on that side of the House in that office, people on this side of the House will want to know why somebody slipped up.
What will we do in the whole area of passports? We can have a central authority here that can advise people, that can have a promotional role with the Department of Foreign Affairs. We should be raising this on a continuous basis in the UN. We should be encouraging more and more countries into this because this whole legislation, as everybody knows, only works where different countries are parties to the convention. It does not apply otherwise.
In a civilised society, we as a small nation should be making certain that this matter is raised on a continuous basis. All of this prompting, this leading by example, can be done here at very little cost, with no elaborate buildings, no special secretariat, just proper structures, knowing exactly what we have in mind, where we can improve things, how we can encourage judicial training; knowing where the Legal Aid Board comes into it, looking into the whole area of passports. All of these things can be a function of the central authority if there is a person nominated who would be in charge. I only mentioned the idea of a children's commissioner as an example. It does not have to be that. It can be called anything, but there should be an office with somebody responsible.
The legislation should not be left as it is at the moment. We have no guarantee that subsection (1) will ever develop any further than what is stated in the legislation, which simply says the Minister "may" by order appoint a central authority. The Minister may never appoint a central authority. The Minister may just continue to accept responsibility himself.
It is unfair to ask this House to pass this section without knowing exactly what the Minister of the day has in mind in relation to the central authority as mentioned here.
I would certainly like to join my two colleagues in emphasising to the Minister that this section certainly needs to be much more specific. It is very vague, to say the least. The word "may" implies that something might never happen but, effectively, this is the most important section of the Bill.
I would certainly agree that it should be controlled by the Department of Justice. However, it should not be part of the Department of Justice but separate. If it becomes part of the Department it will just be thrown from Billy to Jack and there will be no beginning or end to it; it will never be able to develop the type of expertise that is necessary and will become more and more so as more countries are added to the 15 that are already part of the Hague Convention.
Looking at the list of countries, the major problems we have had in relation to this has been with non-nationals from countries that are not actually on that list of 15. Therefore, apart from the convention, we also require expertise in dealing with countries that are not part of the convention itself. A lot of these things happen on religious basis with countries that are not listed there at all under section 7.
Another problem is that because we do not have divorce here the whole operation of this type of activity is much more difficult because things are not regularised in clear and more definitive terms as they are in countries listed in that 15, the majority of which have had divorce legislation in operation for many years. That tends to complicate things.
We would have to oppose this in its present form and ask the Minister to be much more specific in relation to that section. There should be a separate unit under the control of the Department. One of its functions would be, for example, to initiate steps to trace a child who had been abducted into this State. There it seems, one is virtually getting involved in the activities of the Garda Síochána. Does this mean that there will be a special investigator in the Department of Justice if this authority is under the umbrella of the Department who would simply go around knocking on doors and making inquiries to try to establish where the child had been abducted to or who was holding the child or children? I would like to have that point explained to me.
I would like also to have a further point clarified, who will initiate the steps to trace the child? Does this mean that a Member of the Oireachtas would be able to ring up the Department of Justice, ask for the section dealing with child abductions and discuss the steps being taken to trace an abducted child? This needs to be spelled out clearly in the legislation. Are we talking about employing agencies or appointing a member or members of the Garda Síochána to carry out investigations and searches? This is not a crime that happens every day; there could be three or four cases in one week and there might not be another case for three months. What will the central authority do in the meantime? I am inclined to the opinion that a central authority should be separately appointed but initially at least should consist of people who have other professional interests, who would be divorced from but subject to the Department.
Section 8 is a relatively straightforward section. Section 8 (1) enables the Minister to appoint a central authority and that will enable the Minister, if he so decides at some time in the future, to nominate a central authority, somebody other than himself. For the present, however, and for the foreseeable future, the Minister for Justice by virtue of subsection (2) will, through the Department of Justice, act as the central authority. This is the position in most other contracting states.
Officials in the Department of Justice have considerable experience in relation to the conventions not only because of their involvement in the preparation of this legislation but also on account of their attendance at many meetings concerning the conventions of the Hague Conference on Private International Law and the Council of Europe. Department of Justice staff will be especially assigned to the central authority and their names, where they can be contacted et cetra, will be publicised in the State and in other contracting states. On that point, I am delighted to be able to tell the House that we propose to publish a special information leaflet which will carry the name, and telephone number of the responsible officer in the central authority within the Department of Justice and the name, address and telephone number and other relevant information of the responsible officer in each of the other central authorities.
We also propose to have a liaison with the Department of Foreign Affairs. The other central authorities we know of are open five days a week and have one officer with responsibility for it. The Department of Justice — I think Deputy Barrett alluded to this — will be open five days a week but we hope to liaise with the Department of Foreign Affairs and, as they have a service operating right through the seven days, we intend to ensure that the relevant information is available constantly to that Department who will have a co-ordinating role in cases which have an international dimension to them. The Department of Foreign Affairs will, in turn, be able to contact this officer directly over the weekend. Of course, the Garda Síochána will have the information also and this will help to ensure that we will have a responsible officer available at all times.
The extent of the administrative work involved in the operation of a central authority can be gauged from the fact that in England the central authority is serviced by just one full-time officer. Our central authority will be concerned with fewer cases and it would be overstating the position if we were to have a whole bevy of officials involved in the special authority. We will definitely appoint a specific officer who will have full responsibility and who will report to the Secretary of and the Minister for Justice on this matter. There will be a team of officials with the relevant expertise working to that designated officer and they will operate the legislation once it is enacted and the convention as required.
There will also be special liaison between the central authority and the Garda Síochána. There have already been consultations on this matter between the different bodies and guidelines will be in place when the legislation comes into operation. The Garda Síochána will appoint a special liaison officer who will have overall responsibility for the operation of the law in this situation and for the operation of the convention at the request of the central authority in the Department of Justice. After that, it will be a matter for the operational procedures of the Garda Síochána for the Garda to carry out their duties in search of a child or children or to carry out the role they have under the operational control of the Garda Commissioner.
Deputy McCartan asked about a special office for the central authority. We would regard the Department of Justice as being a high street office, readily accessible and in a very prestigious location. Most people know where it is. The fact that we will make the information available ensures that the central authority will be operating in a key area with the relevant expertise to ensure that we will be able to maximise the services available to the people as required. As in most other contracting states, apart from the US, no regional offices of central authority are considered necessary here. The nature of the authority is such that it is a central authority and as England have a single authority we also propose to have a central authority operating through the Department of Justice and the Minister for Justice.
Section 8 as proposed gives the right to the Minister for Justice in the future, if the need is there, to appoint a specific central authority away from the Department of Justice. We are vesting that power in the Minister for Justice. This is a good law. It is a good opportunity to bring forward legislation to create a structure but we give the flexibility to the Minister for Justice, or a future Government, to create a specific authority to fulfil the needs of the law nationally and internationally based on pressures and demands that might arise. Of course, it will operate as an independent unit within the Department of Justice but that does not mean that these officers will not have other responsibilities.
Deputy McCartan or Deputy Bell asked whether the Minister for Justice could be questioned on the execution of his duties in this matter. Deputies are well aware of parliamentary procedures and will know that once the Minister for Justice has responsibility for any specific function he is, of course, entitled to be questioned in this House by way of parliamentary question or otherwise on any issue or on any case. As the central authority are vested and entrusted to his Department he will have responsibility for answering any questions addressed to him at any time in the House. I hope that information will be of assistance to Deputies who can be absolutely assured that we intend to discharge our duties both nationally and internationally under the law and the convention to the maximum service of people who find themselves in a very traumatic situation. As Deputy Barrett has said, the fewer cases the better, but human nature being what it is we must legislate for the problem and ensure there is a service to assist people in these very sad and difficult cases.
I would like to thank the Minister for his detailed response. To some degree I wish to repeat the proposition that I can see good reason why the Department of Justice would be the best resourced and capable institution for dealing with these applications. For that reason, I am not unduly concerned about the functions and responsibilities reposing with the Minister for the time being or, as the Minister said, "for the foreseeable future". What circumstances might lead to a change in that arrangement or which might prompt him to appoint a central authority, independent of or exterior to the Department? The fact is that the central authority will remain with the Minister in the Department. The issue of accessibility is a very live and real one.
I am aware that the Minister of State is in the Department of Justice only a very short time but I hope that at some stage he will have an opportunity to look at an area of work in the Department that is not totally unconnected, that is the aliens section. The aliens section is a unit within the Department with responsibility for dealing with the arrival here of non-nationals. If he looks at the record of this House he will see that many Deputies on this side of the House and, indeed, of his own party when they were on this side of the House, have raised questions about the accessibility and the fair way — or more particularly the unfair way — in which that section of the Department carry out their functions.
One of the major problems relates to the absence of guidelines or regulations, accountability and answerability of that unit of the Department. It is not a pleasant experience for non-nationals to go to the Department, even though the Minister talks about it being a high street location and a prestigous address. Non-nationals who have to go there do not find it pleasant and will not concur in that view. In my capacity as a Deputy I have gone there with non-nationals seeking some help and I went there previously as a lawyer in the company of clients. While courtesy is always extended it is nonetheless an intimidating experience to say the least. I am worried that that type of attitude may in some way work its way into the workings of the central authority, as envisaged under the provisions of the Bill. I urge the Minister to ensure against that happening. It is important to ensure that there are firm regulations in place that lay down the rights of people who come and which clearly state their position and to whom they can have recourse if dissatisfied with the response they receive.
To put the matter into context, one will inevitably be dealing with people who are highly emotional, very distressed, in pursuit of a child, searching for a loved one who has been secreted into the country illegally, abducted, or taken out of the country. This will need very careful, considered and tender handling. I do not want to visit undue criticism but in all my visits to the aliens section of the Department of Justice I have never found that those qualities were there in any great abundance.
The prospect I see emerging here is that the person who will be given responsibilities will be somebody working in the aliens section because those areas are not completely unrelated. I have reservations and worries that what should be a very caring and responsive unit may not have those qualities. I do not want to push the matter any further as I have made the point I wanted to make.
How will a person coming in at a port or airport be able to find his or her way to St. Stephen's Green and knock on the door there and say: "I need the assistance of the central authority and its agencies" or, "I need legal aid"? If your want to put an entry into the telephone directory — which is obviously a useful point of first reference — what will it be called? How will people find their way to this agency, authority or unit? How will it be described?
Perhaps the Minister of State can tell the House how the one officer in the UK exists, how the service there is promoted, or advertised, in order that people know how to find it easily? When people arrive in St. Stephen's Green they will not see a neon sign up saying "Central Authority" with an arrow pointing to the front door. These are the practical problems that will inevitably arise. That is why I asked whether we would have a high street office or a location that would be easily and clearly identifiable and contactable whenever a problem like this arises. While these issues may appear minute or nit-picking they are nonetheless, essential to the working of this legislation in a practical way.
I am not at all happy with the Minister's response because as I said, this is the kernel of the legislation. I was even more disturbed when I heard him say that central authorities are being appointed in other countries. If the Department of Justice in Britain or Germany are doing it why should we always have to do it? As I said earlier, there are very few things that a small country like ours can actually do in a big way in the United Nations. This legislation is useless unless we get more and more countries putting their names on the piece of paper binding themselves to these conventions. This is an opportunity for us to think for ourselves. There are practical difficulties involved. Can you imagine a woman who wakes up or who comes home after shopping and suddenly discovers that her child is missing? It is all very well that legislation says that there may be a central authority and in the meantime there is the Minister for Justice. Panic sets in. Where do I go? Whom do I contact? As Deputy McCartan said, you open a telephone directory and ask who do I contact? We should be leading and we should be saying this is the model for everybody else. It will not cost us a fortune, it will not impose massive sums of taxation on our taxpayers if it is organised properly. If it is organised as a model other countries would follow. In our Constitution we have a special place for our children and rightly so; we should actually mean that and we should lead by example. We are the people who should be hammering and saying this is what we want other countries do to instead of saying: "If they do it over there it must be all right for us, so we will do the same".
Section 8 of the explanatory memorandum, circulated with this Bill, states:
The primary task of the Central Authorities is the transmission of incoming and outgoing applications for the return of children who have been abducted to any Contracting State. The Central Authority here will take or cause the following action to be taken:
(a) where a child has been abducted into the State
—initiate steps to trace the child;
—seek the child's return or secure access to the child;
—arrange, if necessary, for court proceedings to secure the return of, or access to, the child.
(b) where a child has been abducted from the State
—assist the wronged party in seeking the return of the child;
—collate and send other Central Authorities information (including welfare reports) about the abducted child.
The Minister is telling us that designated officials would be named in the Department of Justice and that their names will be known. I do not know what will be the rank of the officials in the Department of Justice. Presumably every official in every Department is ambitious and seeks promotion. They may be transferred to another Department, and if we want proper public service we will encourage greater mobility and more opportunities for public servants. Therefore, I want to refer to what will happen if Mr. X, Miss Y, Mr. Z and Miss B are the only people in the Department of Justice who can deal with child abduction cases. It may happen that Mr. X gets sick, Miss Y is transferred, Mr. Z gets promotion and Miss B is on holidays. In such cases the person who phones the Department of Justice asking to talk to one of these four people will be told that none of them is available.
We should deal with this issue as ordinary Irish men and women and for once forget about what they do in other countries. We should decide on the best way of giving a service to people who find themselves in a traumatic situation. We should consider the type of service we should like to receive if we were in their position. With the greatest respect, all of us can sit here smugly in the hope that we will never be faced with this problem. If we want to have proper legislation in this area we should consider the trauma and difficulties experienced by people in this horrible situation.
I know that like me the Minister is new in the job. He did not take this Bill on Second Stage. It was presented to him as it was published initially and he has not put his stamp on it as he was not in his present position when it was being drafted. I appreciate all of that but I ask him as a colleague, disregarding whether or not we have legal backgrounds, to look at this issue from the point of view of the ordinary lay person, the people we represent. We should forget about the idea that "it will be all right on the day". Rather we should consider the ideal structure whereby such cases can be dealt with quickly, efficiently, compassionately and, above all, humanely.
As I have said, people come and go in Departments, they move from one section to another, they die, get sick or are promoted. We should know exactly how this legislation will work. If somebody with a problem goes to the Department of Justice where will they go, who will meet them, will they be able to talk to a group of people or will the person to whom this job is designated have other things on his plate and have to drop everything else, etc.? I have not heard why Deputy McCartan's amendment was not accepted. I presume it was not accepted because——
It was not accepted because it would involve a potential charge on the Exchequer.
This highlights why this House should be reformed. We are now getting down to the kernel of the problem. Deputies cannot put down an amendment which proposes to exclude the word "may" and include the word "shall" because it would impose a charge on the taxpayer. It is essential that the word "shall" is included in this section. If we do not get a satisfactory response from the Minister the only way in which my party can voice their objection to his proposal is by voting against the section. However, because there are more Deputies on the Government side of the House we will be defeated. Nevertheless, we live in a democracy and we will lodge our objection, unless the Minister of State, Deputy Noel Treacy, who I know has a human heart says: "Forget about what went before, I am going to make this change because the section as it stands is totally unsatisfactory and will not deal with the problems envisaged by the people who thought up these conventions in the first place".
I would love to see a Dublin or Ireland convention on children. I should like to see Ireland initiating a convention and asking other countries to come along with us. In addition, I should like to see us using our great talent in the areas where we have influence and saying to other people "we know that when you drew up this convention you had positive things in mind, which we support, but there is a better way of doing it, which is what we have done, so that it will work much better". We should not becoming in here and saying that because they do it this way in England it must be all right. It is not all right. We should make up our minds on what is all right.
It is not just a question of building or renting offices to set up another quango; this is about proper organisation and thinking the legislation through. I was very discouraged to read the sentence in the Explanatory Memorandum which states:
In practice, incoming applications will be referred by the Central Authority to the Legal Aid Board for relevant proceedings to be taken in the High Court.
That is a flippant provision. I know the Minister does not mean that but it seems to suggest that we are only talking about the law and all we need is a post office so that when a request comes in it can be sent to the Legal Aid Board so that High Court proceedings can be taken. That does not sound right. Section 9 of the Explanatory Memorandum states:
The Hague Convention provides that if the requested court does not decide an application for the return of the child within six weeks from the date of commencement of the proceedings the applicant, or the Central Authority on its own initiative, may request a statement of the reasons for the delay.
The person making the inquiries as to what has caused the delay — we should remember we are talking about children here — would have more success if an authority were set up to deal with such cases. When I think of an authority I think of a body of people, a place to which I can go if I have a problem. I do not regard the Department of Justice as an authority. When I think of an authority I think of a body with responsibility like the Ombudsman's office. I know the Ombudsman does not deal with every case himself but all citizens know that if they have a problem they can go to the Ombudsman's office. That is the sort of authority I am talking about.
I ask the Minister to be more definite and to give a commitment that before Report Stage he will work out some alternative arrangement other than the one he has proposed here today. I do not think the Minister's proposal will enable these sad cases to be dealt with as compassionately and quickly as I should like them to be dealt with so that people will know there is someone there to help them. If I was the person in difficulty I do not think I should like to wander into the Department of Justice looking for a person whose name was on a list.
I wish to refer to section 8 in a delicate way so that I am not misinterpreted. I represent a constituency where perhaps the largest number of Muslim members of our community reside. I have very good relations with these people and I do not want to offend any one in any way. However, it should be remembered that the Muslim community in the Republic is now probably as big as the Jewish community, if not somewhat bigger; and there has been an increase in the number of inter-marriages between Muslims from other countries and Irish citizens. In my experience this has given rise to certain difficulties particularly where children are concerned but I want to make it clear that it is only in a minority of cases that these difficulties arise. The same thing could happen in the Christian, Jewish or any other community — I am not having a go at the Muslim community. Often when an Irish girl marries a Muslim man here they return to his country later with their children when the culture shock can cause a number of problems. I am not one to be offensive, but I repeat, this is a problem which arises, in a minority of cases and, in those circumstances, the mother, wishing to return to Ireland, has difficulty leaving the country in which she is residing with her children. I have come across cases where the mother has had to leave surreptitiously to return to this State and sometimes she has been stopped. That is something the Muslim community here would not like to see happening nor would the rest of the community.
Notwithstanding what is in the earlier sections of this Bill relating to member states, the signatories of the Hague and Luxembourg Conventions are in the main European — but there are other countries involved, such as Belize, Canada and the United States — and it is possible for some of those countries to which I referred to become signatories to this convention without being members of or in any way associated with The Hague or Luxembourg Conventions. Where the Bill refers to a child being abducted into the State I would be very concerned that the State, through this central authority, would initiate steps to trace the child, seek the child's return or secure access to the child and if necessary arrange for court proceedings to secure the return of or access to the child to countries of the kind I mentioned. While we know who is signing the convention at this stage, we do not know what other countries with a totally different culture — in some ways maybe a better culture — from ours may be involved in the future, and it may not be desirable for us to have a provision so open-ended which would require us by law to ensure that a child who has been, according to the terms of this section, abducted into the State should be returned to another jurisdiction or that we should trace a child for return to such a jurisdiction.
It will not be possible for the State to use this provision when the position is reversed and a child has been abducted from this State and taken to a jurisdiction with a totally different culture — perhaps via Britain because of Commonwealth connections, or some other European country with old colonial ties, the father could bring the child into France or Britain because it would be easier to take the child from that jurisdiction to his state of origin unknown to the mother. Experience of mothers in particular whose children have been "abducted" either out of or into the State has shown that a problem can arise when the parent is party to a mixed marriage of the varied culture arrangement to which I referred.
I want to emphasise that I am talking about a minority of cases. I know the Muslim community in Ireland would be every bit as concerned about this as the Christian, Jewish or any other community, but the reality is that it is mainly, with Muslims that these difficulties have arisen. We should be aware of that fact, take account of it and, if necessary, on Report Stage provide protection to ensure that in all cases, the best interests of the child are served. In almost all cases — there can be exceptions to this — it is better for the child to remain with the mother. I make that point because those are difficulties I have come across.
As I understand it from reading the section — maybe the Minister would clarify this in view of the points made by the last speaker — the central authority will be responsible for this operation in accordance with The Hague Convention and therefore will be dealing with the countries as listed at present. Perhaps at a later stage other countries, whose population is mainly Muslim or some other religion, might become signatories to this convention but at present basically we are dealing with the matter as it concerns those 15 countries listed. Perhaps the Minister will clarify that matter.
Having listened to the reply to previous points made by me and my colleagues, I am more convinced now that we need a very positive amendment and a move away from the intentions of the Department. I would be totally opposed to the authority being centred in the Department of Justice. Many more reasons could be given than those already put forward as to why it should not be located in the Department. As I have said, it should be under the control of the Department and the Minister, but it should be a separate unit. If the authority was based in the Department of Justice the law might not operate as we would like. The idea is a very good one and is certainly long overdue, but if this section goes through on the explanation given by the Minister, we would be better off without the Bill at all. I would like to ask if this central authority, having been set up under The Hague Convention, would use its expertise in relation to countries other than those listed in the Bill.
I have listened with interest to what my collegues have said and I want to confirm that it is intended for the foreseeable future that the Minister for Justice, through the Department of Justice, will act as the central authority. This is in line with a recommendation of the Law Reform Commission in their report, LRC 12/85, and with the position in the vast majority of contracting states to The Hague Convention as well as the Luxembourg Convention.
I joined the Department of Justice only two days ago and I found the atmosphere and the welcome very convivial and warm. I am surprised to hear——
You are the Minister.
I am just another person doing a job.
Did the Minister go into the aliens office inside the front door?
I have not been there yet, but I was surprised to hear what Deputy McCartan had to say. From my eight and a half years in public Departments in the main I find them exceedingly courteous, very fair and co-operative, but as this fact has been brought to my attention I will be observing the situation and will make recommendations if I think they should be made. If Deputies want to highlight cases or make suggestions we will be delighted to take them on board and give them full consideration.
It is universally accepted that the Department of Justice — and all Departments of Justice in the relevant countries — are in the best position to carry out, or cause to be carried out, the functions of a central authority. Article 7 of The Hague Convention sets out the general duties of central authorities to co-operate with each other and, in addition, to promote co-operation among the authorities in their respective states to achieve the objects of the convention. Secondly, the article lists in broad outline the different stages of intervention by central authorities and the typical case of child removal. The first obligation of a central authority, under the list of obligations in Article 7, is to discover the whereabouts of the child. The Department of Justice, as the central authority, will liaise with the Garda Síochána, as I said earlier, in this matter.
There have already been consultations with the Garda pertaining to the whole operation of this Bill when it is enacted. The central authority must prevent further harm to the child or prejudice to interested parties by taking — or causing to be taken — provisional measures. Deputy Seán Barrett alluded to this in one of his earlier contributions. Since all applications will be transmitted to the Legal Aid Board for proceedings to be taken in the High Court for the return of a child, it will be a matter for the board's solicitor to take interim measures as provided for in section 12, where appropriate, to secure the welfare of the child.
The central authority must aim to secure the voluntary return of the child or to bring about an amicable solution to the issues involved. In this context the central authority — in our case in the Department of Justice — will avail of the professional expertise available within that Department in regard to all these matters. These, among others, are the functions of the central authorities which are appropriate for the Department of Justice to perform, directly or indirectly.
I listened with interest to what Deputy Barrett proposed and I can see his commitment to achieving a singular, identifiable structure and for Ireland to have a clear model as a central authority, with which I agree. However, this must be put into the context of the number of cases with which we have to deal. I should love to see a major international convention held here pertaining to children. I have a human, political and public interest in this matter and I have been involved in the Child Care Bill and I know that most people in this House have a very real interest in this regard. It would be wonderful if we could have a major international convention here but there have been so many at this stage that we would have to have clearly identifiable goals before we could go down that road. If at all possible, perhaps it is something which should be considered, maybe somebody will come up with the right idea and the initiative to put it in place.
I agree with Deputy Bell and I wish to clarify that we could only operate this Bill, when passed, within the parameters of the convention and be involved with the various countries which are signatories to the convention. We propose to have a clear organisational structure, a clearly defined structure within the Department of Justice, with a qualified competent person heading it. We want to have a team of people working under that officer who will deal with the administrative details pertaining to the dissemination of information. That will all have to be worked out later by the Department of Justice in co-operation with the other Departments, the Garda Síochána, Aer Rianta and the airports, so that information is available immediately to people who need it. There is no reason, when the Bill is passed, and the Department of Justice activate the structure, we should not put in place a model of which we can all be proud. I have the utmost confidence that that will be done.
I listened with interest to Deputy Gay Mitchell and I appreciate the problems which he pointed out. Deputy Seán Barrett clearly illustrated the mobility of people in the modern world. People in this country emigrate and migrate right across the globe to continental Europe, the United Kingdom, Australia or America, because it is in their nature to do so. Being a small island country, people want to move for economic reasons, adventure, tourism or job opportunities. Thankfully, we have an excellent record abroad and Irish people make a great contribution to whichever country they go and we hope that position will continue.
The convention can only operate in co-ordination with the countries that are a party to it. As the Muslim countries are not a party to the convention it will not be operational in their countries. The only other option available to Irish people in the situation to which Deputy Gay Mitchell referred, would be communication, negotiation and dialogue through our diplomatic channels in the worldwide network of Irish embassies available. These have been reasonably successful in many well know cases and, indeed, in cases which are not well known. It is the only system we can provide in such cases.
The House must accept that we have the expertise in the Department and that the Bill gives flexibility to the Minister for Justice. Deputy McCartan asked when I envisaged creating a distinctly separate authority. It is very hard to foretell what may happen but the one reason I see for establishing a separate central authority is where there would be such a demand for services like this. I hope, as Deputy Barrett said earlier, that this will never happen but, if it does, of course we will have to take cognisance of it. Perhaps one of the Members present will be in the hot seat and will see the need to make changes and create a specific central authority. I am sure that Deputies, as public representatives, in dealing with public service Departments, particularly in dealing with the Department of Justice, see the need for the creation of this authority within the Department of Justice, where professional expertise is readily available. The Department have close co-operation with the Department of Foreign Affairs on the international side and with the Garda Síochána on the operational, security and investigative sides. This is the ideal place for it at the moment and I hope the House will accept it.
We cannot accept it and the only way we have of lodging our objections — because amendments cannot be accepted — is to vote against the section, which we will be doing.
In case there is any misunderstanding, it is not suggested that the expertise is not available in the Department of Justice to deal with any issue in relation to child abduction. We are complaining about the fact that this House is not being given a clear direction as to what will happen in future in relation to the exact structures which will be put in place. As far as we have been told, the Minister for Justice will be the central authority. It is quite clear, having glanced through the Official Report in relation to Second Stage of this Bill, that the Minister intends being the central authority. He said on Second Stage that "the Minister for Justice, through his Department, will act as the central authority for the purposes of each convention". It is quite clear that there will be no change in section 8 (2). For that reason, we will be opposing the section.
At a stage when the central authority are established — or indeed in advance of the central authority being assigned or designated by the Minister — is it intended to have statutory regulations in place governing the operation of his functions as Minister or functions which the central authority want established? Earlier, the Minister spoke about guidelines in the context of referring to co-operation and liaising with the Garda Síochána. Will there be a statutory instrument setting down the functions and responsibilities in relation to a member of the public or, indeed, a non-national?
There is no need for regulations or a statutory instrument because the clear function and guidelines are laid down in the convention and we must operate within them. We are satisfied that we can do that.
One area not contained in the convention is where a person is aggrieved with the performance or the response of the central authority, the right of redress, for example, of appeal against, say, a refusal by the central authority to act. How does one overcome that in the absence of any domestic regulations emanating from the Department?
There will be no change in the law as it stands. If somebody feels aggrieved they can appeal. That will be the position under this Bill also.
I do not see that in the convention.
Even though I have not read all of it I did not notice any provision dealing with an appeal system in the convention. I would presume that any decision taken by our courts could be appealed to a higher court.
I do not want to draw the aliens section in too much or draw it down to too low a level but one of the big problems that practitioners dealing with that unit within the Department face is that there is no right of appeal to a higher authority either within the Department or elsewhere in an effort to resolve the problem unless, of course, one can find in the broad thrust of the law a right of appeal to the courts.
This is a big problem. I would like to know, in the absence of any appeal system under the convention, what the position would be if a citizen or a non-national goes to the central authority to say that a child had been abducted and taken out of the country or a child was being hidden somewhere in the country and the central authority, for their own reasons, good or otherwise say they are not in a position to help them or do not believe that the case was worthy of support or worth pursuing in the courts. What could that person do at that stage if the central authority are not prepared to act? Where is the right of appeal? I am very concerned about the Minister of State's response that there is no intention to expand or build on what is contained in the convention.
The position is that the internal law of the country would apply. If someone wishes to make an appeal or lodge a writ of mandamus, they will be able to avail of the system. I have no doubt that Deputy McCartan is better versed on that than I am. If, on the other hand, someone wishes to by-pass the convention and go directly to the High Court they will be able to do that as the convention is only there to assist in a co-ordinating way internationally through the national structures to ensure that there is co-operation in the interests of providing a proper service for those who find themselves in this very traumatic position. As I said, people will be able to appeal right up the line and the internal law will apply.
Question put.
The Committee divided: Tá, 72; Níl, 61.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Browne, John (Wexford).
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- O'Connell, John.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Keeffe, Michael.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Belton, Louis J.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- Durkan, Bernard.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- FitzGerald, Garret.
- Flanagan, Charles.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philips.
- Kavanagh, Liam.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Shatter, Alan.
- Sherlock, Joe.
- Stagg, Emmet.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Flanagan and Boylan.
Question declared carried.
Section 9 and 10 agreed to.
SECTION 11.
I move amendment No. 3:
In page 7, between lines 39 and 40, to insert the following subsection:
"(2) Nothing in this Part shall prevent the Court from returning a child to another State merely because that return was not required by the Convention. Further, in deciding such applications, the Court shall have regard to the welfare of the child as the first and paramount consideration.".
This amendment was prompted by the report of the Law Reform Commission, No. 12, of 1985 to which I referred earlier. In their summary recommendations they suggested that amendments along the lines I propose here should be included in the Bill. I include it because I do not believe the matter is adequately covered by the provisions of the Bill, as circulated. I might quote recommendation No. 3 of the Law Reform Commission at pages 6-7 as follows:
The legislation should state that nothing in it shall prevent a child from being returned to another State merely because that return is not required by the Convention. It should also provide that in deciding on applications for the return of children to another jurisdiction in cases where that return is not required by the Convention, the court shall have regard to the welfare of the child as the first and paramount consideration:
The report itself in the body of the document, does not advance a great deal of its support of the propositions. They say, at page 30, of the same report and I quote:
In framing legislation to give effect to the Convention it would be opportune to consider whether provision should be made for a court to order the return of a child in cases where
it is not compelled to do so by the Convention. The Convention itself is explicit in that it does "not limit the power of a judicial or administrative authority to order the return of the child at any time".
Then the Law Reform Commission go on to recite a section that is the embodiment of the recommendations contained in their summary which there is no need to repeat. Basically what the Law Reform Commission are saying is that, in the event of the convention being applied or addressed and not requiring or recommending the return of the child in a certain circumstance, that should not act as a deterrent on a court of competent authority making such a return or indeed the authorities themselves, independent of the court, contriving an arrangement whereby the child would be returned. Therefore, appearing to be comprehensive and to obviate any unnecessary ambiguity, the recommendation of the commission is that there should be in the Bill a declaration such as is contained in my amendment.
The second part of the amendment is that the welfare of the child as the first and paramount consideration should be a declaration in the Bill. It is important that we recite this. The reasons are selfevident. It is correct that, in all matters dealing with issues like this — the custody, welfare, care or return of a child — the interests of that child should be the paramount consideration. It might be seen to be stating the obvious but, in looking at the law with regard to adoptions — which will be debated in Private Members' time this evening as it was last evening — it is interesting to note, up to 1974, that the law with regard to adoption did not carry this declaration that the interests of the child should be paramount. A notable sociologist, a member of the clergy, commenting as late as 1974 noted that on issues of adoption — which have a close parallel here because they deal with the issue of who should have custody, under what circumstances a person should have custody of a child — the law had worked on the premise that a child was to be dealt with almost as the property of the parent, that he or she could do anything with the child short of killing or maltreating it. In the 1974 Act, amending the adoption law, a specific section was inserted stating that, in matters of adoption, the interests of the child shall be the paramount consideration. The Legislature was obliged and felt it necessary to do so in the interests of adoption even though, since 1964 — in the matter of child custody — that was the ground or base introduced in the legislation of that year, a whole decade before. In 1974, in regard to adoption law the Legislature found it necessary to insert this declaration.
It is proper that when we are dealing with issues of child abduction we encapsulate this declaration; in other words, that we address any potential ambiguity, so that there would be no doubt in the minds of any court addressing an issue as to whether a child should be returned, the interest of the parent, as opposed to the interests of the child, should not have any overriding priority or consideration. It is desirable that we recite this proposition in the Bill.
I hope the Minister will see his way to accepting my amendment for the reasons I have advanced.
Section 11 already makes clear that a person may apply to the High Court, whether under The Hague Convention or otherwise, to secure the return of a child who has been removed to the State. Where an application is made outside of the convention the High Court would exercise the jurisdiction it has already in the matter. Furthermore, Article 18 of The Hague Convention — which will become part of our law by virtue of section 6 of this Bill — makes it clear that the provisions of the convention do not prevent the return of a child at any time even though that return was not required by the convention. Moreover, in any such proceedings, the court must, under the law as it stands, in section 3 of the Guardianship of Infants Act 1964, regard the welfare of the infant as the first and paramount consideration.
I might now quote section 3, Part I of the Guardianship of Infants Act 1964 which states:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
It is very clear that no matter what proceedings are before any court section 3, Part I, of the Guardianship of Infants Act 1964 — which covers young people up to the age of 21 — must be taken into account. Therefore, the paramountcy clause is always taken into account by the courts and, under our laws, they must do so.
Consequently, the proposed amendment is unnecessary and I do not propose to accept it.
I am disappointed at the Minister's response. I might advance the matter somewhat further if I may.
Section 11, as I read it, provides that a person has the right to go to the court irrespective and independent of the convention. As I understand it, that is basically what it says. The Law Reform Commission talk about a step beyond that. They say that the operation of the convention — if it so works as not to require the return of a child — should not be used as a basis for arguing in the court or elsewhere against the return of the child in an application to the court independent of the convention. In other words, the Law Reform Commission are saying that the court should be free to operate on an application directly to it, on its own terms and in its own way.
My concern is that what is contained in section 11 does not deal with the recommendation advanced by the Law Reform Commission. If there is doubt I would suggest to the Minister that one should adopt the more generous approach and have due regard to what the Law Reform Commission argue and recommend. I would therefore ask you to look again at this issue. I am motivated in proposing this amendment by the Law Reform Commission's assertion that this should be there. We should have due regard to the work they did on this issue and to their recommendation. Section 11 does not cover the issue.
This proposition about the consideration of the child being paramount is something I am utterly convinced should be contained in the legislation. I thank the Minister for referring to section 3 of the 1964 Act. One would have thought that that Act would be adequate to deal with the matter, because the Guardianship of Infants Act, 1964, is a fundamental document dealing with custody issues. I do not have the full answers. For some reason, when the Adoption Act, 1974, was being introduced the opportunity was taken to include a provision to the effect that the interests of the child would be paramount, irrespective of the fact that the Guardianship of Infants Act had been there for ten years before. For some reason the Guardianship of Infants Act did not seem to have addressed the position with regard to the custody of children in the context of adoption. Section 2 of the 1974 Act says:
In any matter, application or proceedings before the Board or any court relating to the arrangements for or the making of an adoption order, the Board or the court, when deciding that question, shall regard the welfare of the child as the first and paramount consideration.
In 1974 in the area of adoption, irrespective of the provisions of the 1964 Act the Legislature felt obliged to include that provision. It is clear that in the context of adoptions the child's interests should be paramount.
In 1985 when the Law Reform Commission reported, they were aware of the Guardianship of Infants Act and of section 3 which the Minister has quoted and they nonetheless said that a declaration should be written into that legislation that the interest of the child are paramount. Because the Law Reform Commission seemed to believe that the declaration in the Guardianship of Infants Act is not clear enough or perhaps is not tied directly into what we are doing here and perhaps because there is an international dimension to the issue, it is important and prudent to underscore the legislation with a declaration that the interests of the child are paramount. If it is superfluous, and I see that there are cogent reasons available to the Minister to support that contention what is wrong with being doubly sure by repeating this? If the Minister is unhappy about taking the two propositions together in the one amendment, I do not have an objection to withdrawing the composite amendment and on Report Stage breaking it into two separate propositions. While I am not as strongly committed to the first portion of the amendment relating to the position with regard to the High Court vis-à-vis the convention, I am utterly convinced that it would be remiss of this House not to include in the Bill a recital that the rights of the child should be paramount. Including this proposition in the Bill will certainly do no harm to the legislation and it is important, considering that the Law Reform Commission says that it should be there. If the Minister would indicate that he has some inclination towards the second part of the amendment I am prepared to withdraw it and break it into two amendments for Report Stage. It is important that ultimately the Bill should have this recital with regard to the rights of the child.
I support the point made by Deputy McCartan. If we are to ask the Law Reform Commission to carry out this type of study and they say that the restatement in the legislation, of the principle already contained in the Guardianship of Infants Act, 1964, should be effective in removing doubts created by recent case law in this matter, we should heed their warning. The insertion of these extra words might have a positive effect on the legislation but it certainly will not diminish anything the Minister is trying to achieve with the legislation. If the Minister is unhappy with the wording of Deputy McCartan perhaps he will consider this for Report Stage.
I studied this for the first time over the last two days. I looked at Deputy McCartan's amendment in great detail and considered it carefully. What Deputy McCartan seeks to achieve is already covered in Article 18 of the Convention which is covered in page 23 of the Bill where it says:
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
We are asking the High Court in this Bill to use its existing jurisdiction, and the Guardianship of Infants Act is clearly implied in that and clearly involved in any decisions the court takes pertaining to a child. Deputy McCartan talked about the 1974 Adoption Act and said that this was included. Adoption is something very permanent, where we are changing the status of a child and conferring permanence on the new status. In this case we are talking about custody, which is the return of a child to its natural parent or parents or the return of a child to a legitimate custodian. From all the information available to me, it seems that if we were to include this amendment we would be calling into question the right of the High Court in its consideration of a case to be able to take into account the laws of the land as they exist here. In view of that, we must accept that the court when taking its decision will take into account the paramount interests of the child having regard to the Guardianship of Infants Act. To ensure that the High Court has total jurisdiction pertaining to the Convention it would be better not to have this included there.
I am entirely baffled by the Minister's response and his reasons for not accepting the amendment, particularly that with regard to the issue of the welfare of the child being the first and paramount consideration. That is not the only consideration. The suggestion is not and never was that it would be the only consideration, but that it would be the paramount consideration. One can quite easily see the reasons that should be so. Inevitably, there are conflicts of interest between the parent or person who believes that he or she is justified in seizing the child and taking it, against the better interests of the child, to advance a cause.
When we are incorporating in domestic legislation an agreement negotiated between countries at The Hague, Luxembourg or elsewhere, we should make it clear that it is accepted in the spirit of the laws of our land and is compatible with those laws. It is important that in this legislation we include the statement that the rights of the child are the paramount consideration. That is recited in the Guardianship of Infants Act, 1964, but for some good reason the Law Reform Commission recommend, irrespective of the 1964 Act, that the legislation enabling this convention to be incorporated into our law should include the proposition that the rights of the child are paramount. It is essential that this be done. I want to stand over this amendment but I do not want to use too much of the time of this House. When a body such as the Law Reform Commission make recommendations and the reason for these recommendations is not readily apparent to the Department, is any approach made to the commission as to the necessity for such recommendations? The report is silent on the reason. I have given my own reasons for including the provision. I would refer the Minister to the report, which acknowledges that what it seeks is a restatement in the legislation of the principle already contained in the Guardianship of Infants Act to remove doubts created by recent case law on this matter. There seems to be some very cogent reason. Doubts are arising due to judicial interpretations about 1985. It appears that the 1964 provision has been worked on by the lawyers and courts and interpreted in such a manner that the Law Reform Commission believe there are doubts existing because of the opposing interests and rights. If the Law Reform Commission consider there are doubts, that is the best reason for including such a declaration in the legislation.
The Minister had indicated that this is a matter of very recent involvement for him. If he were to give an assurance that he would look at this before Report Stage, I would be happy to withdraw the amendment. Perhaps the Minister, in consultation with his officials and the Law Reform Commission, could see how substantial these doubts are. Perhaps we should recite the second part of the amendment in the legislation.
Deputy McCartan has made a fair case, ably supported by Deputy Barrett. Deputy Barrett and I are at one on this in that we are legal laymen and interpret the English language as best we can. I had my personal doubts on the matter. Taking into account what Deputy McCartan has said, I am prepared to have another look at this point and to have further consultation on it. Deputy McCartan might, of his own volition, retable the second part of his amendment on Report Stage. If I feel it should be done on my side, I may do so.
I thank the Minister and in those circumstances I withdraw the amendment.
Via media accepted.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Sections 12 to 31, inclusive, agreed to.
SECTION 32.
Amendment No. 4 is in the name of the Minister. Amendment No. 5 is related. The amendments may be taken together for discussion. Agreed.
I move amendment No. 4:
In page 14, subsection (1), lines 6 to 8, to delete "(or by an authority within the meaning of the Luxembourg Convention in another Contracting State) may make an application" and substitute "or by an authority within the meaning of the Luxembourg Convention in another Contracting State may make an application, in such form as may be prescribed,".
The purpose of this amendment is simply to remove the brackets contained in the section regarding the expression "or by an authority within the meaning of the Luxembourg Convention" and to provide that forms may be prescribed for the purposes of applications made under the section. Amendment No. 5 is purely a drafting change. These are technical changes.
Amendment agreed to.
I move amendment No. 5:
In page 14, subsection (2), lines 12 and 13, to delete "receives an application referred to in subsection (1) of this section" and substitute "in the State receives any such application".
Amendment agreed to.
Section 32, as amended, agreed to.
Section 33 agreed to.
SECTION 34.
I move amendment No. 6:
In page 15, between lines 5 and 6, to insert the following subsection:
"(2) The Central Authority in the State shall take action or cause action to be taken to assist the person referred to in subsection (1) of this section in making an application under this section if a request for such assistance, in such form as may be prescribed, is made by him or on his behalf by the Central Authority of another Contracting State."
This amendment makes clear that the central authority in the State will assist persons in making applications under section 34 for the purposes of article 12 of the Luxembourg Convention. The section enables a court in the State to declare the removal of a child from the State to be unlawful. Such declarations will be required under article 12 where there has been no court decision on custody at the time of removal of the child from the State. The amendment is on the lines of section 15 (2) in Part II of the Bill.
Amendment agreed to.
Section 34, as amended, agreed to.
Sections 35 and 36 agreed to.
NEW SECTION.
Amendment No. 7 is in the name of Deputy McCartan. As amendment No. 8 is an alternative it is suggested that both be taken together for discussion purposes. Deputies will appreciate that it will not be possible to move No. 8 later if amendment No. 7 is withdrawn. Is that agreed? Agreed.
I move amendment No. 7:
In page 16, before section 37, to insert the following new section:
"37.—(1) It shall be an offence to take, send or keep a child, under the age of sixteen years, who is habitually resident in the State, out of the jurisdiction in defiance of a court order, or without the consent of each person who is a parent or guardian or to whom custody has been granted.
(2) Where a person has been charged with an offence under subsection (1), it shall be a defence to show that the defendant—
(i) honestly believed the child was over sixteen years of age,
(ii) obtained the consent of the requisite person or of the court,
(iii) has been unable to communicate with the requisite persons, having taken all reasonable steps, and there was reasonable grounds to believe that their consent would have been forthcoming, or
(iv) being a parent, guardian or person having custody of the child had no intention to deprive others having rights of guardianship or custody in relation to that child of those rights.
(3) No prosecution of an offence under this section shall be brought without the consent of the person in breach of whose rights that child was abducted out of the jurisdiction.
(4) A person found guilty of an offence under this section shall be liable—
(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a terms not exceeding 12 months or to both, or
(b) on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding five years or to both.".
This amendment proposes to deal with one of the stronger recommendations of the Law Reform Commission, namely, making it an offence to abduct a child within the State. The Law Reform Commission in recommendation No. 5 stated that the legislation should contain a provision to create an offence for the abduction out of the jurisdiction of a child under 16. The Minister dealt with this matter on Second Stage and said that the existing laws were adequate, that the offence of kidnapping or the unlawful detention of a person against their will was an offence known to the law generally and that there was the whole issue of contempt of court where an abduction was carried out in defiance of an existing court order.
I acknowledge that those sanctions are there. Nevertheless, I equally acknowledge that the Law Reform Commission made the recommendation. We would do no harm whatsoever by adding to the array of devices available to the authorities for dealing with what was earlier described as a most heinous phenomenon, taking children out of the jurisdiction against their will or against the will of their parents or the person in loco parentis, almost invariably for selfish and ill-motivated reasons. We would certainly do no harm whatsoever creating such an offence. It would be an option where other sanctions fail or are not appropriate.
In introducing this important Convention into our law it is important that we set down a clear and unambiguous marker that this House considers the illegal abduction of children to be a particularly heinous and unacceptable crime and one that should be dealt with specifically as an offence in our law and treated as such. That precedent is well established. We provide specific offences for particular aspects of crime. There is burglary, and there is aggravated burglary where a weapon is used. We have done so in the area of rape where there are different crimes of rape contrary to common law, such as serious sexual assault, sexual assault and so on. This notion of marking specifically heinous crimes with specific offences is well established. We should borrow the practice here in this legislation.
The provisions of the amendment follow closely the recommendation of the Law Reform Commission by providing that it shall be an offence to take, send or keep a child under the age of 16 years who is happily resident in the State out of the jurisdiction in defiance of a court order or without the consent of the persons responsible for him or in loco parentis.
Subsection (2) provides a number of defences available to a person who might end up charged with this offence. There are four in all cited in the amendment. There is no need for me to go through them.
The third provision is based on a recommendation of the Law Reform Commission that a prosecution for this offence should not be initiated without the consent of the person who is the parent or acting in loco parentis and whose rights are transgressed by the offence.
Subsection (4) suggests the penalties that might be levied. Deputy Barrett has gone a little further than I in regard to penalties. I would have no difficulty accepting one set of penalties or the other as being appropriate. I would have no difficulty accepting what Deputy Barrett is proposing and I have no doubt he would have little difficulty accepting what I am proposing. What we are both trying to do is convince the Minister that our legislation should incorporate an offence provision as recommended by the Law Reform Commission and as this particular type of activity deserves. Accordingly, I hope the Minister will accept the amendment.
My amendment is basically the same as Deputy McCartan's in that I have provided for various aspects of the recommendations of the Law Reform Commission. I have no hang-ups about the penalties. It only strikes me that there is no comparison between suggested fines and suggested terms of imprisonment. Sometimes it is a fine of £1,000 or 12 months' imprisonment but the cost of 12 months' imprisonment to the taxpayer is considerably more than £1,000. That is my only comment to my colleagues.
Fine Gale's amendment seeks to indicate that the party regard child abduction as a grave criminal offence which should carry serious sanctions against the offender. As a civilised society, we regard this as totally distasteful and unacceptable.
We should also take into account the experience of other countries. I said earlier that we should not automatically follow what they do in Great Britain or elsewhere but the passing of the Child Abduction Act, 1984 in Britain does not seem to have caused problems. In addition the Law Reform Commission made this recommendation.
I have read what the Minister said on Second Stage with regard to this being a family dispute and that it was better to deal with it under the civil law and not under the criminal law. That is possible because, as the House will see from our amendment, we are including a number of defences. For example, the abductor might be able to show that he had no intention of depriving others of the rights of guardianship or custody of the child. If there is a genuine case to be made the discretion is there in the amendment. However, it is important to send out the message loud and clear from this Assembly that we, as the elected representatives of the people, see child abduction as a grave offence, something unacceptable in society, and, if there is no good reason for doing it, there should be a criminal charge to answer.
There is another aspect to this that should be stressed. It will give powers to the Garda Síochána to arrest without a warrant those perpetrating abduction. It also brings into play the laws of extradition where in serious cases somebody could be returned to this country to answer a charge in relation to abduction of a child. It has many benefits. Above all, it is saying loud and clear to everybody that the interests of children are paramount, that the interests of children must be put before anything else, that as a society we do not accept that people can deprive others of the right of access to their children and that abduction is unacceptable. I ask the Minister to think very carefully before making a judgment on these amendments.
I am open to discussion in this Chamber. I share the view of Deputy McCartan and the Law Reform Commission that we should make child abduction a criminal offence, with certain defences. I am prepared, of course, to listen to the arguments being made by the Minister but at the end of the day I would hate to think that we would lose the opportunity we now have to say to society that child abduction is simply unacceptable. Rather than putting the amendments at this stage I am prepared to wait until Report Stage, if the Minister needs more time as I am not in any great rush to flax muscles. Let us look at this area from the point of view of what is in the interests of children; whether this offence is acceptable in a civilised society and whether there should be a criminal charge to answer.
Those are the points I would like to put to the Minister. I will be very interested to hear his replies to the points made by me and by Deputy McCartan.
I am impressed with the contributions made by both Deputies on this matter and by their amendments.
The Minister for Justice dealt with this matter on Second Stage. The essence of the argument for not creating an offence of abduction of a child by a parent is that this is a matter best dealt with by the court as a civil matter and in a very serious case the law of kidnapping could apply. Perhaps the most significant provision in the law would be the provision in section 37 of the Bill which gives the Garda Síochána power to detain a child whom they reasonably suspect is or is about to be removed from the State in breach of any custody order or a custody application that is pending or is about to be made. In the delicate matter of family disputes, the law must maintain a particular sense of proportion as between the wrong committed and the righting of that wrong. No one wants the criminal law to intrude into any part of family disputes more than it has to. In my view it should not apply in cases of a child abducted by a parent unless it is a very serious case where, for example, force is used.
The courts in so far as their civil jurisdiction is concerned have powers of committal for breaches of orders made. Those powers should not be under-estimated. The threat of committal can be as good a deterrent as the threat of criminal prosecution. Where it is feared that a child may be removed from the jurisdiction in violation of a custody or access order the position is that application may be made to the High Court or to the Circuit Court for an injunction prohibiting the taking of the child out of the jurisdiction. Any person in breach of this injunction may be committed to prison for contempt of court. Also any person who with knowledge of the injunction assists in its breach is guilty of contempt.
Another procedure is for the parent to apply to have the child made a ward of court. The child becomes a ward of court as from the making of the wardship application and to take him out of the country thereafter without the permission of the court is a contempt of court. A difficulty referred to by the Law Reform Commission in their report LRC No. 12 of 1985 on The Hague Convention is that though the Garda Síochána have power to arrest a person who has been committed for contempt of court, the abductor is likely to have fled the jurisdiction with the child before the committal order is obtained. The solution which has been recommended by the Law Reform Commission in this context is being implemented in section 37 of the Bill. Indeed, that section goes further than the commission's recommendation which confines the power of the Garda Síochána to detain the child to the case where a custody order is in existence.
Section 37 gives the power to detain the child in cases also where an application for a custody order is pending or is about to be made. It seems to me that section 37 will get at the nub of the matter in all cases whereas the creation of an offence of child abduction will only be of very limited application and could, as has been said previously, be counter-productive and a double-edged sword in that it might inhibit the voluntary return of the child by the abductor or a reconciliation between the parents, or in the absence of reconciliation, an agreed solution to their problem.
It is the child's welfare and his quick return to the custodial parent that is the primary consideration in the emotional context in which these cases occur. The pursuit of the parent as a criminal except, as I have already said, in an extreme case, should not be a feature of such cases. No particular need for that approach has been indentified in this country. Indeed a view among many of the contracting states to these conventions is that in child abduction cases, since one is primarily dealing with a civil family law matter, nothing should be contemplated that might make the prospects of reconciliation or an agreed solution impossible. Incidentally in this regard I understand that in one Hague Convention case, the central authority of a contracting state let it be known that if it knew in advance that the abducting parent was to the arrested and charged with child abduction on returning to the state of origin with the child, it might decide not to return the child. I mention the case merely to illustrate the fact that the intrusion of the criminal law in what is essentially a civil law matter can create difficulties that might not be immediately apparent.
There are other examples also. The Law Reform Commission recommended that an offence of abduction of a child out of the State be created. In their view the offence would remove the uncertainty surrounding the law pending a decision of the Irish courts as to how they will follow the formulation of the crime of kindapping in the House of Lords as reported in RD, 1984, two all English law reports 449. I do not accept that there is such uncertainty in the law on kidnapping by a parent that the matter has to be resolved at present by legislation. RD established that a parent can be guilty of the common law offence of kidnapping his own child. The House of Lords reversed the decision of the Court of Appeal that a parent could not be guilty of kidnapping his own child. The English Child Abduction Act, 1984, which established an offence of child abduction in the United Kingdom, was promoted as a Private Members' Bill following a report of the Criminal Law Revision Committee and catered for the problem which was thought then to exist, but the subsequent decision of the House of Lords rendered much of that Act unnecessary.
The scope of the 1984 Act is limited. It does not, for example, cover the abduction of a child within England nor does it cover abduction abroad, for example, where a parent is on holidays abroad with the child and then decides to keep the child. The stated reason by the English Criminal Law Revision Committee for the limited application of the legislation as conceived by the committee prior to the House of Lords decision in the case RD was that in such situations the matter is best dealt with by courts having civil jurisdiction. Incidentally, the House of Lords in its decision in the case of RD referred to an Irish case, the People v H, heard in the Supreme Court in 1943, Irish Law Reports 115. While there appears to be differences between Ireland and England in relation to whose consent is required in the case of child kidnapping — the child's consent or the parent's consent — it is clear that under the rationale in either RD of the People v H, where the child is young, which would be the usual case, a charge of kidnapping would lie. That offence of kidnapping is an arrestable and extraditable offence.
I have come to the conclusion that there is no need at present to create the offence of child abduction. The fact that we are ratifying The Hague and Luxembourg Conventions on Child Abduction really has nothing to do with the matter. The provisions in the conventions are confined exclusively to civil aspects of international child abduction and the question of an offence of child abduction is one that does not have to be considered in the context of the conventions.
One of the reasons which has been advanced in favour of an offence of child abduction is the possible availability of extradition on foot of that offence. The position is that extradition, where it is on the basis of an offence of child abduction as suggested, or on the basis of the offence of kidnapping as it stands, may secure the return of the parent but it will not necessarily secure the return of the child. The experience in some countries where extradition proceedings have been brought rather than simply proceedings for the return of the child is that the use of the extradition process has greatly hampered and confused the situation.
In conclusion, therefore, I am satisfied for the various reasons I have given that the creation of an offence of child abduction is neither desirable nor necessary at present. However, the matter is one which I certainly will keep under review.
The Minister of State said that the amendment is neither desirable nor necessary at this time. I note that he suggests that he will keep the matter under review but now is the time for us to act and to do something in this area. I am convinced that it is both desirable and necessary to include an offence provision in the legislation. It is desirable because it is important that we as a Legislature reflect our abhorrence for this type of activity. As has been pointed out, it is an increasing phenomenon and will become, unfortunately, more frequent with increased travel, the increasing incidence of people working abroad, marrying abroad and all the attendant difficulties that have now emerged in that area. The amendment is desirable and necessary and I do not believe any argument against that proposition can be made.
The Law Reform Commission correctly point out that the highest court in Britain, in looking at the area of kidnapping by parents, have introduced an element of uncertainty which has not been resolved by any judicial authority there or in Ireland: that is whether the offence would exist in the absence of a court order being made given the custody by court order to one or other of the parents. That issue is left open. The Law Reform Commission say that rather than wait to see what would be the position of a court of law in interpreting the offence of kidnapping the offence should be introduced. I think that is the correct procedure.
The next reason I consider it necessary is in the area of extradition. One of the undoubted features of child abduction, particularly related to family disputes is that a desperate parent will repeat abduction attempts. Even though you will succeed in the primary objective of the safe return of the child to the rightful parent a defaulting or recalcitrant parent not sanctioned, not admonished or not penalised will have every encouragement to have another go. If, say, the mother was successful in getting to the airport in Switzerland on the first occasion she might not be as successful the second time round. It is important, therefore, appropriate, that where, sanction of the law be available to the authorities to teach a lesson and to ensure a deterrent against a repeat of the offence. Here, an important consideration comes to mind.
Contempt of court, as I understand it, is not an extraditable matter. The writ of the court runs within its jurisdiction and no further. Therefore, if a person, in defiance of a court order, grabs a child in this jurisdiction and heads off to another jurisdiction, while he or she is technically in breach of the court, the case is outside the reach of the court. Therefore, the court, while it may issue a warrant to have the person brought before the court to be dealt with on contempt, until such time as that person comes back within the jurisdiction of the court, that warrant cannot be executed.
Consequently, the importance of having an offence that is extraditable where the warrant can be backed and forwarded to the country where the person has found refuge, is an important addition to the armoury of the authorities in combating and dealing with this unfortunate phenomenon. That is important. The primary objective is to secure the return of the child. There is a double further objective, that is, to ensure that the offending person does not try again. One of the sanitary ways of dealing with that is to have the person brought before the court and made answerable or at least to have the threat that if he or she appears back in the jurisdiction there is the prospect of being put into jail and having to answer to a criminal charge for earlier activities. I can find no other cogent reason to deter a further attempt by a parent than that prospect.
The Minister has advanced section 37 of the Bill as one that might offer relief in this area. Section 37 has nothing to do with the issues we are trying to advance. Section 37 gives power to the Garda Síochána to detain a child and to hold that child until such time as the court can make a further order. That has nothing to do with dealing with an offender or a person who perpetrates the wrongful taking of the child in the first instance. The Garda do not have powers to detain him or her until such further order of the court is made. The Garda must go to the court and wait until the court issues a warrant on a motion of contempt before the court. On that basis a Garda would be empowered. Section 37 is a very useful device in dealing with the safe return of the child but has nothing to do with dealing with the offender.
The Minister then introduced the issue of an offence possibly being a disincentive to a voluntary return of the child. The Law Reform Commission recognised that problem and made a succinct and workable proposition that is included in our amendment, paragraph (3) of which states that no prosecution should be taken without the consent of the parent aggrieved or whose rights have been offended. It makes the real practical proposition that in an instance where a parent or other person realises they have done a grievous wrong to a child and in terms of the rights of a parent, and then return the child contritely and say: "I made a mistake, I acted hastily, I am sorry", there is no practical likelihood that a parent who has secured the safe return of their child will then turn around vindictively and say, "I want this man clapped in irons and prosecuted".
For all those reasons I am disappointed the Minister has not taken on board this proposition. What we are arguing for here is that it be added to the existing armoury and have it available for the appropriate case. I regret to say that there will undoubtedly emerge the bad case where the persistent bad-minded offender will continue to be involved in the matter of family disputes in this unacceptable way.
The Minister said we should leave these matters entirely to the civil courts. I would be inclined to accept that suggestion if that was the way in which we dealt with all matters of child custody within the State, but it is not. Barring orders are used as a device to protect children and parents against the unwanted attentions of the defaulting parent. There is also the criminal sanction which provides that it is an offence to breach a barring order. We use the criminal sanction to put defaulting parents into prison for up to 12 months or longer if they do not comply with our civil law or are in breach of the civil orders of the courts in the area of child care and custody. We should be consistent in our approach. If we use criminal law as an effective bolster to the civil rights and protections we give to parents in domestic cases, why not use that as a parallel precedent in the international arena when we have to deal with people who move from one jurisdiction to another and who perhaps damage the family and the integrity of the child more than anything which might be done domestically by a parent?
The Minister needs to reflect again on his proposals. I will have no difficulty in withdrawing my amendment if we can come back to this issue on Report Stage. A very strong case is made by the Law Reform Commission for the inclusion of such an offence in the Bill. We are doing no more than providing a good option. We should provide the best armoury possible to protect our children.
Like Deputy McCartan, if I got a satisfactory reply from the Minister I would have no difficulty withdrawing amendment No. 8, which is exactly the same as Deputy McCartan's amendment.
I want to clarify a few points. The Minister is operating on certain assumptions. He is assuming that most of these cases arise as a result of marriage difficulties. However, the reality is that we are living in changing times and there are more single parents today than previously. At one time it was thought that it would be better if the law did not interfere with marriages in any respect. However, we had to introduce barring orders, to protect the rights of women, and the judicial separation Act to protect the rights of either spouse and, indirectly, the rights of children.
This legislation is also about protecting the rights of children. We should not look at the legislation only from the point of view of endeavouring to get a child back to satisfy an aggrieved parent or guardian. The rights of children have to be protected also. This depends on the way one looks at the legislation. Of course, it is of paramount importance to ensure that a child is returned to the parent who has custody but, unfortunately, we are living in a world where things are not as reasonable as they used to be.
I read the Second Stage speech of the Minister for Justice, Deputy Burke. I accept that he genuinely believed what he said, but with respect, I believe he was looking at the issue from one perspective only. I look at the legislation from the practical point of view of returning a child who has been snatched to the parent who has legal custody and from the point of view of the rights of children who cannot speak for themselves and who do not have a lobby group who can march outside Leinster House or anywhere else. We must recognise the reality of today's world, which is different to the world in which the Minister of State and I lived when we were 13 or 14 years old. Times have changed and will continue to change. The Minister knows how difficult it is to get legislation into this Chamber. If we miss this opportunity to deal with certain issues it will be a number of years before they can be discussed again.
Both Deputy McCartan and I drafted our amendments along the lines suggested in the Law Reform Commission report. We also took into account the genuine circumstances where it would be unwise to introduce a criminal law offence. Both subsection (3) of my amendment and subsection (3) of Deputy McCartan's amendment allow for genuine cases, genuine misunderstandings, and those parents who do not want to pursue the criminal road. An article in the Irish Independent of Wednesday, 6 December 1989, said it was time we brought this heartache to an end and quoted a parent as saying “I never let my children out of sight”. These are not cases of marriage breakdown; these are the deliberate snatching of children and the heartbreak that causes parents who have legal custody of their children. We are not dealing with marriage breakdown where a parent wants to see her children who are living abroad. It is understandable that such parents would like to have their children with them for a few weeks.
But we are talking about the deliberate kidnapping of children. It can be called abduction but it is basically the kidnapping of children by parents whom the law has decided should not have custody. That is the type of case we are talking about. Children under 16 years of age have a right to be protected. Perhaps when they are older they can make up their own minds but somebody has to speak for them.
I am not implying the Minister is not speaking for them and that all the "goodies" are on this side of the House. I am merely putting forward the argument why we should give very serious consideration in this legislation to introducing the criminal charge and a criminal offence — we will not get this opportunity again — so that people will know we detest this type of behaviour, that we believe it is unacceptable in a civilised society and that we regard the rights of children as paramount. Rather than divide on this issue, the Minister should reconsider it between now and Report Stage. Perhaps we should all have a rethink on it. We will withdraw our amendments if the Minister gives us an undertaking that he will look seriously at this issue between now and Report Stage.
I assure the House that I regard child abduction, child kidnapping or the removal of a child from a home or place out of our jurisdiction as a most serious heinous crime. I can also assure the House that I want to be part of a legislative consensus which will lead to the enactment of the best law possible, taking into account our laws and the international conventions to which we are a party.
I accept the sincerity and commitment of all Deputies in the House who have contributed to this debate but we have to take into account the unexpected, something which may not be legislated for. I also believe in the human dimension — the reconciliation process, the value of the human resource, communication and dialogue and eventual agreement arriving at a consensus where there can be some agreement in the interests of the child. This is vital.
I would like to give an example of a case which received widespread publicity on the Continent last year and which illustrates the confusion and difficulties that can arise when the criminal law becomes involved in cases such as these. In the case in question a child was abducted by its mother and the country of origin sought the extradition of the mother on the basis that she had committed a criminal offence. The order for extradition was made but when it transpired subsequently that the mother abducted the child because of sexual abuse by the father there was a public outcry against the return of the child with the mother. If the matter could have been dealt with purely as a civil matter under the Hague Convention the subsequent problems might not have arisen.
I should like to reiterate the point that the offence of child abduction was enacted into law in England in 1984 at a time when it was thought that the common law offence of kidnapping did not apply to a parent. It is now clear, following a decision of the House of Lords, that kidnapping by a parent is an offence in England. That decision follows the reasoning in the Irish decision on The People v. Edge.
I am opposed to these amendments in principle. I am not at present convinced that they will have a beneficial effect in child abduction cases. The existing law together with the additional provisions enabling the Garda to detain a child who they suspect is about to be abducted from the country is the right approach. I am prepared however to keep the situation under constant review, but I am not satisfied at present that the creation of a new offence of child abduction is the necessary or correct response to the problem. I had doubts about this matter and had a second look at it. In view of the excellent and eloquent case made by Deputies McCartan and Barrett I am prepared to have a further look at the matter so that when we come to Report Stage I shall be able to report again, or alternatively the Deputies will have the right to retable their amendments.
I will withdraw my amendment in view of what the Minister has said.
I will also withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
Progress reported; Committee to sit again.