I observe that amendments Nos. 1 and 2 are related and suggest that we discuss both amendments together.
Maintenance Bill, 1994: Report and Final Stages.
I move amendment No. 1:
In page 7, line 3, to delete "and".
These are purely drafting amendments.
Amendment agreed to.
I move amendment No. 2:
In page 7, line 7, after "judgment," to insert "and".
Amendment agreed to.
Before moving on to amendments Nos. 3 and 4 I propose that, on page 7, lines 9 and 10 be indented to make it clear that they apply solely to section 7 (5) (b). It involves no alteration in the wording. It is merely to move in the indent on lines 9 and 10 to conform with the indent at section 7 (5) (b) (v).
I am sure that will be noted. We come then to amendment No. 3 in the name of the Minister. I observe that amendments Nos. 3 and 4 form a composite proposal and suggest that we discuss them together if that is satisfactory. Agreed.
I move amendment No. 3:
In page 13, to delete lines 20 to 40 and subtitute the following:
"(4) The court, on an application to it under subsection (1) (c) may, subject to subsection (5)—
(a) take evidence from the respondent by way of affidavit or sworn deposition,
(b) cause a copy of the affidavit or deposition to be sent to the Central Authority for transmission to the central authority of the designated jurisdiction with a request that the claimant provide an answering affidavit,
(c) send letters of request pursuant to section 17 for the taking of further evidence in a designated jurisdiction,
(d) take the evidence of the claimant or of any witness residing in a designated jurisdiction through a live television link,
(e) pending the final determination of the application, make an interim maintenance order under section 7 of the Act of 1976.".
These amendments relate to the procedure to be followed by the court when hearing an application for a maintenance order made by the central authority on behalf of a foreign claimant.
Section 14 (4), which amendment No. 3 proposes to replace, seeks to recognise the difficulties in dealing with an application from a claimant who may be living thousands of miles away, who usually, through want of resources, will not be in a position to attend the hearing. It lists various options open to the court. If, for example, the respondent — normally the husband — disputes any of the grounds put forward by the claimant in the documentation received through the central authority, the court can ask the respondent to make his case by swearing an affidavit outside court or by way of a sworn deposition in the courtroom there and the affidavit then could be sent to the central authority for transmission to the central authority where the claimant lives, with a request that the claimant provide an answering affidavit. Alternatively, the court could ask a court in the foreign jurisdiction to take evidence on the matters raised by the respondent in his affidavit.
If the court is not in a position to give a decision on the basis of those affidavits and any oral evidence of the respondent, it has the further option of requiring a claimant to give evidence through a live television link. The necessary facilities can be provided in the equipment already in use in the Four Courts, though similar facilities may not be available in all of the foreign jurisdictions concerned.
In most cases it is probable that the question of whether or not to make an order can be decided on the basis of the documentary evidence, especially when the foreign central authority is obliged to satisfy itself that the application is made in good faith and when it is authorised by the UN Convention to express to the central authority here an opinion as to the merits of the case. However, in order to comply with our constitutional requirements, we are obliged to provide for a case where the respondent may bona fide wish to cross-examine the claimant whether by way of television link or otherwise. That is done in section 14 (5).
As to the amendments, section 14 (4), has been redrafted to make it clear that the various options authorised can be exercised at the discretion of the court and do not need a prior determination by the court that the particular option is required in the interest of justice. It excludes a specific reference to requiring the attendance of the foreign claimant or witness at the hearing. This is a power normally exercisable by any court. In addition, as section 14 (5) provides, the attendance of a witness for cross-examination can be required if television facilities are not available.
The amendment of section 14 (5) is of a purely drafting nature and makes provision for the availability of a witness for cross-examination by television link as well as by personal appearance in court here.
The provisions of this Bill received considerable welcome on Second and Committee Stages when there was general recognition of the major problem we have here whenever people abscond when it is very difficult to extract maintenance from them. In the course of our discussions we discussed the expenditure entailed in circumstances in which people, husbands in particular, may have gone very far beyond this jurisdiction — as the Minister has said, thousands of miles away. Initially we thought more in terms of hundreds of miles. Since the provisions of this Bill refer not so much to the United Kingdom — indeed they do not refer at all to the United Kingdom since that problem was covered by previous legislation — presumably we are talking about countries like Germany, the United States, South America, to wherever people abscond leaving behind their responsibilities. God knows how far such people may travel.
The question arose as to the problems inherent in the case of someone in poor circumstances having to travel to some foreign country to give evidence. In maintenance cases we accepted that we might be dealing with a section of our society within which resources would be very limited indeed. For that reason some of the suggestions the Minister has now accepted by way of his amendment No. 3 were made on the manner in which the affidavit might be made and the use of a live television link.
One question which the Minister promised on Committee Stage to investigate and reply to on Report Stage related to free legal aid. It was pointed out that free legal aid did not cover travelling expenses. I know that the proposal in this amendment for the live television link and affidavits will reduce that transport requirement in so far as witnesses will not be required to be present, but some travelling expenses may still be incurred. Has the Minister had an opportunity to consider that matter? He promised to do so on Committee Stage as reported in columns 881 and 882 of the Official Report of 21 July in response to a contribution by my colleague, Deputy Browne.
He also referred to equipment in the Four Courts. He is more aware of what happens there and the equipment in place than I am.
I am a little rusty on that now.
People, like me, hope they will not have an opportunity to go to the Four Courts, but people in the Minister's profession look forward to going there. I am sure he will not want to go there too soon in the future, but I could not agree with him on that. I hope he will have an opportunity to go back to the Four Courts to test how rusty he is and that sufficient time will not elapse to allow him to become too rusty. What equipment is available in the Four Courts in respect of this matter?
I am aware that the use of live television links has been considered in respect of taking evidence and so on and that rules and regulations have been drawn up to cater for that. Has the Minister considered that television is a tricky medium which requires control and will he consider that? I support the amendment.
I thank Deputy Currie for his helpful remarks. The Legal Aid Board is charged with the administration of the free legal aid system and considers each case individually. There is no hard and fast rule on this matter, but there is provision for the retention of professional witnesses, calling witnesses and providing travel expenses if the board considers such measures are necessary and appropriate. It is open and objective in that regard and where it considers such expenditure is necessary it will agree to it. I hope to introduce the Civil Legal Aid Bill shortly at which time we can discuss this issue at some length. The increased funding available to the Legal Aid Board enables it to be more liberal in respect of incidental expenses. One must be careful how resources are administered and I am sure the board is careful in that regard. Often, professional witnesses are required and this uses up substantial resources to the detriment of other litigants. The board adopts a sensible approach and where expenses, including travelling expenses, are necesary it provides for them.
Amendment agreed to.
I move amendment No. 4:
In page 13, lines 42 and 43, to delete "the production of a witness for cross-examination and that witness can be produced" and substitute "to cross-examine a witness and the witness is available for the cross-examination, whether through a live television link or otherwise,".
Amendment agreed to.
I move amendment No. 5:
In page 18, line 21, to delete "from" and substitute "for".
This is purely a drafting amendment to correct a typographical error in the text.
Amendment agreed to.
I move amendment No. 6:
In page 19, to delete line 5 and substitute the following:
"may, unless the contrary is proved, be admitted as evidence that it is such a document and as evidence of any matter to which it relates subject to such authentication, if any, as the court may require.".
This is a technical amendment.
Amendment agreed to.
Bill reported with amendments and passed.