I thank the Deputies who addressed the House during the debate and I appreciate the general welcome for the legislation. The opening remarks of those who contributed are encouraging and augur well for a good and positive debate on Committee Stage.
In my introductory speech I indicated that this Bill is about children's welfare, particularly in circumstances where the family unit is split. This Government is committed to a caring society and a system of laws and administrative measures which deal comprehensively with the consequences of marriage breakdown and the sundering of relationships, particularly where children are involved.
A range of issues was raised by Deputies during this debate. Deputy Neville gave a warm welcome to the provisions in the Bill and commented at length on the report recently published by the Eastern Health Board on child prostitution in Dublin. I share the view that child pornography, prostitution and paedophilia are the most heinous of crimes. It is the obligation of the State and society to protect our children. The full sanctions of the criminal law should be brought to bear on people who exploit vulnerable young children in this way. Such criminal behaviour should not and will not be tolerated.
Our laws already contain many sanctions against people who engage in such activities and I am determined to strengthen them further. When in Opposition I strongly advocated a new child pornography Bill to deal with this problem. In that context, I am pleased to announce that this week the Government approved my proposals to draft such a Bill. The purpose of the new proposals is to enhance the measures already in place to protect children under 17 years of age from sexual exploitation and abuse. More specifically, there is provision in the proposals for a precise definition of child pornography in addition to a number of new offences dealing with the production, distribution and possession of child pornography. There will also be new offences dealing with the abduction and trafficking of children. The penalties for such offences will range from five years to life imprisonment. It is proposed that all forms of child pornography, including photographs, videos and films, will be dealt with as will the use of computers and the Internet to produce and communicate such pornography. I expect that the Bill will be ready for publication later in the current Dáil session.
I am anxious to put this legislation in place as quickly as possible in order that the criminal purveyors of the appalling and sickening trade of child pornography are dealt with swiftly and severely by the law enforcement agencies. I also intend to publish a discussion paper on the law relating to sexual offences before the end of the year, which, among other matters, will deal with the question of a register of sex offenders. These matters must be debated and this paper will provide those with an interest in this area an opportunity to do so. The paper will also deal with the issue of child pornography.
The recommendations of the Eastern Health Board working party on child prostitution are a matter for the Minister for Health and Children, Deputy Cowen. He informs me that the health board is currently preparing proposals for submission to him to deal with the issues raised by the working party.
Deputy Penrose suggested that the amalgamation of the former Departments of Justice and Equality and Law Reform will result in the work previously carried out by the latter Department being given a lower priority. I reject that assertion. I assure the Deputy that the pace of law reform will not diminish. I can only conclude from his remarks that he did not read the legislative programme for the current session. Three Bills sponsored by my Department are before the House and today I will publish the Arbitration (International Commercial) Bill, 1997 which I expect to bring before the House next week. That will represent the introduction of the third Bill by me during one week. If Deputy Penrose takes time to examine the Government's legislative programme as published, he will clearly see that my Department has planned for the future a substantial programme of law reform, covering many branches of the law. The Deputy also warmly welcomed the Bill and made a number of suggestions for amendments. Being aware of his experience in the legal field, I will carefully examine those suggestions before Committee Stage.
I will now deal with specific issues raised by Members in connection with certain provisions. Deputies Callely, McManus and Penrose referred to the position of guardianship and the rights of unmarried fathers. Deputy McManus suggested that, given changes in the structure of the family, it is time to give greater recognition to the role of unmarried fathers. She further suggested that they be given an automatic right of guardianship with the mother. I share the belief that children are best reared by both parents and that fathers should fully face up to their responsibilities to their children. However, granting automatic guardianship rights to unmarried fathers is not as clear-cut as might first appear. Due to the complexities involved in this area I will briefly outline the current situation relating to unmarried fathers.
Section 4 provides that where a child is born outside marriage the father can become joint guardian with the agreement of the mother without the necessity of going to court. While this relaxation of procedures has been welcomed in many quarters, it has been criticised for not going far enough. The position relating to guardianship under the law, as it currently stands, is as follows.
The Guardianship of Infants Act, 1964, provides that the married parents of a child are the joint guardians of that child. In the case of unmarried parents, the mother is the guardian of the child. If the child's father subsequently marries the mother he automatically becomes a joint guardian. Where the father is not married to the mother he can apply to the court under section 6(A) of the Act to become a joint guardian. Section 6(A), as inserted by the Status of Children Act, 1987, provides that where the father and mother of an infant have not married each other, the court may, on application of the father, by order, appoint him to be a guardian of the infant. Where the unmarried parents of a child are in agreement, the father may apply to the court under a simple procedure to be made guardian of his child. As already stated, the Bill permits the unmarried father to be appointed guardian of his child by agreement with the mother without the necessity of going to court as at present. The background which informed our existing law is as follows.
In 1982, the Law Reform Commission report on illegitimacy recommended a number of changes in the law on illegitimacy on foot of which the Government passed the Status of Children Act, 1987. The commission was of the view that the principle of equality required that no distinction should be made in the legal rights of guardianship on the basis of marital status. It recommended that both parents of a child should be joint guardians whether the child was born within or outside marriage.
In considering the commission's recommendations in the context of preparing the legislation on the status of children, the then Government had regard to the fact that the extent and character of the relationship of the father of a child born outside marriage, with both the mother and child, varies greatly. The situations vary from where a child is conceived as a result of a casual relationship to one where a child is planned and conceived in a stable relationship which has all the characteristics of a family. The Government at that time was of the view that to accord the father of a child born outside marriage a defeasible right would enable a natural father with no interest in the child to interfere with, for selfish or vindictive reasons, arrangements which the mother might wish to make in the best interests of the child. This would result in greater recourse to the courts because the number of cases in which mothers would have no option but to seek the withdrawal of the father's guardian status would far exceed the relatively low incidence of cases of fathers seeking appointment as a guardian.
The Government considered it invidious to place the onus on the mother to have the father's guardianship rights terminated. Having considered all of the issues, the Government decided that rather than give fathers of children born outside marriage an automatic right of guardianship, they should be given a right to apply to the court to become a joint guardian with the mother.
The report of the 1996 Constitution Review Group, in considering the question of unmarried fathers, pointed to the fact that a natural father has no personal right to his child, which the State is bound to protect pursuant to Article 40.3 of the 1937 Constitution. In the case of K.v W., at 1990 I.L.R.M., page 21, section 6 (A) of the Guardianship of Infants Act, 1964, was construed by the Supreme Court as giving an unmarried father a right to apply to the court to be appointed a guardian as distinct from giving him a right to be a guardian, which is capable of being annulled — that is, a defeasible right.
It was also pointed out that any criticism of the fact that a natural father does not have a constitutionally protected personal right to his child, can readily be understood in relation to natural fathers who live in a stable relationship with the natural mother or have established a relationship with the child. It was also stated in this case that there does not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links. Were consideration to be given to any modification of Article 42.1 to expressly include unmarried parents, care would have to be taken with the drafting to avoid giving rights to natural fathers who have no relationship with the natural mother or no relationship other than a biological one with the child.
Much of the criticism stems from the common belief that unmarried fathers who apply to the courts to be made joint guardians of their children are discriminated against and that if the mother opposes the application the father has little chance of success. However, when court statistics are examined, one discovers this is not the case. In 1996 there were approximately 12,500 children born to unmarried parents. In that year 700 applications for guardianship were made to the courts by unmarried fathers. In approximately 90 per cent of these cases the court made the unmarried fathers joint guardians with the mothers. Of these 700 cases, 400 were settled with the agreement of the mother.
The courts will refuse guardianship to a father only in cases where he is clearly unsuitable to be a guardian. The court, in coming to all decisions regarding children, must, under section 3 of the 1964 Act, regard the welfare of the child as paramount. In effect, the court operates on the basis that unless the father is clearly unsuitable, the best interests of the child lay in making the father a joint guardian.
The change proposed in the Bill is a reasonable step forward in the law as it applies to unmarried fathers. It would take approximately 400 uncontested cases a year out of the courts system and better facilitate the position of unmarried fathers where guardianship is not in dispute. Our law on that basis would be broadly similar to that in the United Kingdom and many other countries. To give automatic rights of guardianship to unmarried fathers would seem to fly in the face of the reality that the mother is normally the homemaker for, and the carer of, her child. The law on that basis should continue, as at present, to be generally protective of her positionvis-a-vis her child.
Where the parents cannot agree on guardianship, each case is decided on its own merits by reference to what is best in the interests of the child. It is open to question as to whether, as has been suggested, a presumption should be exercised by the court in favour of the father's application for guardianship. This could operate in making unmarried mothers concede guardianship rather than face court action by the father, the outcome of which might in future be regarded as inevitably in favour of the father and not necessarily in the best interests of the child. Any court action could result in undue strain and hardship for the mother.
Deputies Dennehy, Callely and McManus raised the question of the powers of the court to make orders for joint custody. Section 11 (A), which is being inserted in the 1964 Act by section 9 of the Bill, makes clear that the court may make an order granting joint custody of a child to both parents if it thinks it appropriate. This has been criticised on the basis that it implies that joint custody should only apply where it is proven to the court that the circumstances merit it and that otherwise sole custody should apply. There is no such implication in the wording of section 11 (A).
There is no statutory definition of joint custody and the question of what it means varies. In practice, the term "joint custody" is used in the courts to describe a variety of arrangements. These range from where a child spends a certain number of nights during the week separately with each parent, not necessarily half and half, to a situation where parents, although formally separated, continue to live in the same household and may be in a position to operate a joint custody arrangement.
Because of the variety of interpretations of what is involved in a joint custody arrangement, there seems to have been some doubt in people's minds as to whether a court had the power to make a joint custody order under the 1964 Act. Under section 11 of the 1964 Act, the court may give directions as it thinks proper regarding the custody of, and access to, a child. This section has been interpreted by the court as including a power to grant joint custody of a child to the father and the mother. However, for practical and other reasons joint custody orders are the exception rather than the rule. In order to clarify matters, section 9 amends the 1964 Act by the insertion of a new section, section 11A, which provides that:
For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if it thinks it appropriate, grant custody of a child to the child's father and mother jointly.
The provision is being inserted in order to make it clear that the court may make such orders. To construe the words "if it thinks appropriate" as meaning that sole custody will be the norm is to misunderstand the context of the 1964 Act. Under section 3 of the 1964 Act the court is obliged to regard the welfare of the child as paramount in deciding questions of guardianship, custody, access, etc. A court, in deciding on whether to make a custody order, must regard the child's welfare as the paramount consideration. It is that consideration and no other which must inform the court's decision on the nature of the custody and/or access order which is most appropriate in the circumstances. However, as I indicated in my opening speech, I intend looking closely at this matter again between now and Committee Stage.
Deputy Callely suggested that I meet Parental Equality and discuss the question of rights of unmarried fathers and joint custody. I agree that such groups should be met and listened to and their concerns should be taken into account in situations such as this. I will meet with that organisation next week.
Deputy McManus commented on the increasing number of family law cases on the Legal Aid Board's waiting list. This Government is fully committed to the development of legal aid services and I emphatically reject the Deputy's assertion that the service is being downgraded. The most significant developments in the legal aid service since its foundation were initiated by the last Fianna Fáil/Labour Government. When last in Government, we initiated a major development programme for the Legal Aid Board which resulted in a major increase in the resources available to the board over the past five years. Funding has been increased from £2.7 million in 1992 to £8.3 million this year. Over the same period the number of staff increased from 92 to 226. However, over that period the number of persons provided with legal services by the board increased by over 137 per cent from 5,274 to 12,462 persons. In 1992 some 1,854 persons were given legal aid and 3,420 were given legal advice. These figures had increased to 4,660 and 7,802, respectively, in 1996. The 1997 figures continue to show an upward trend.
The overall effect of the increased investment in the Legal Aid Board was to provide legal aid centres in each county, thus bringing the service closer to the people and reducing significantly the waiting lists in law centres. However, because of the introduction of new family law legislation, in particular in the area of judicial separation and divorce, waiting lists have increased over recent months. For example, with the advent of divorce on 27 February 1997 the number of applicants on the waiting lists of the board's law centres has increased by 70 per cent. Between May 1996 and February 1997 over 1,000 people had contacted the board seeking legal services in relation to divorce proceedings. Up to the end of August 1997 there were 978 applications for legal aid certificates in respect of judicial separation proceedings and 695 in respect of divorce proceedings. The current position in relation to the Legal Aid Board's waiting lists in the 30 full-time law centres is as follows: in five law centres, it is less than one month; in four law centres, it is between one and three months; in nine law centres, it is between three and six months; in nine other law centres it is between six and eight months; and in three law centres it is between eight and 11 months. I am continuing to keep developments in the Legal Aid Board under review particularly in the light of the increase in the number of family law cases.
Deputy McManus criticised the absence of a probation service to provide social reports in family law cases. Up to December 1995 the probation and welfare service assisted the courts by providing reports in family law cases even though there was no statutory requirement to do so. Due to increasing work demands, especially in regard to criminal law work, it became necessary for the probation and welfare service to cease this service from 1 December 1995.
The Family Law Act, 1995, the Family Law (Divorce) Act, 1996, and this Bill put a statutory obligation on the probation and welfare service to provide social reports to the courts in family law cases. However, the necessary staffing resources are not in place to enable the probation and welfare service to fulfil its obligation. I am having the staffing requirements examined urgently to see what action can be taken to enable the probation and welfare service to meet its obligations as quickly as possible. In this context, I note that Deputy Dennehy also referred to the probation and welfare service. I will be in Cork city next Monday and I hope to meet with the probation and welfare service and hear its views.
He mentioned the question of counselling and mediation. The proposed new sections 20 and 21 to the 1964 Act contain safeguards designed to ensure that intending parties to guardianship, custody and access proceedings are fully aware of the alternative dispute resolution mechanisms. These involve leaving the confrontational courtroom atmosphere behind, either temporarily or permanently, and availing of counselling or mediation in an effort to resolve the issues which are of concern to the parties. As Deputies will no doubt be aware, provisions of this nature are already a feature of judicial separation and divorce legislation but, curiously, to date have played no part in the 3,000 or so District Court cases per year where matters which are central to a child's welfare are determined. Counselling can be of immense benefit, helping couples with psychological or emotional problems to deal with them in an amicable way. Such problems often relate to children and the welfare of the children is inextricably linked to their resolution. Mediation as a discipline is fast gaining recognition as a most important element in the process of problem resolution. In many cases, immediate resort to the law can ruin completely the prospect of a voluntary settlement. It is widely recognised that even the most embittered couples have within them the ability to work out their own difficulties and there is a greater ownership of an agreement which is worked out by the parties themselves. They take responsibility for it, have a greater respect for it and are less likely to deviate from its terms than if it is imposed on them.
The fact remains that despite the large volume of court disputes between parents over children, most parents, whether married or unmarried, manage to resolve child related disputes without going to court. A high proportion of custody and access disputes which come before the courts could, with the right professional assistance, be resolved amicably to the benefit of all concerned.
Mediation and counselling is all important as an alternative to court proceedings in these kinds of cases and the focus of the Bill on these alternative methods of dispute resolution is important. To encourage this focus on mediation and on counselling and to emphasise their merits I have established a group under the chairmanship of the Second Secretary of my Department to look at this issue in greater detail. The working group comprises the chief co-ordinator of the Family Mediation Service and the chief executive of the Legal Aid Board. I intend to expand the group in the future to include representatives of other organisations. I want to promote consensus rather than court-based solutions to guardianship disputes.
Deputies Callely and McManus referred to the family courts. The hearing of family law cases is a matter of concern to me. I am committed to ensuring that these cases are dealt with in the most effective and efficient way possible. Social changes in recent years and legislative and other developments in the family law area have led to a major increase in the number of persons coming before the courts on family law business. Deputies will be aware that the developments have placed a strain on the resources of the courts. I am aware that there have been problems in many Circuit Court venues with regard to the delays in the hearing of family law business and with the accommodation available for persons having recourse to the courts on such business. In the context of these delays, the Courts and Court Officers Act, 1995, provided,inter alia, for an increase of seven in the maximum number of judges who may be appointed to the Circuit Court. These seven additional judges have been appointed. The Courts Act, 1996, provided for a further increase of four in the maximum number of Circuit Court judges who may be appointed. Two of these positions were filled earlier this year.
The problem regarding delays has greatly diminished following the appointment of additional Circuit Court judges in July 1996 and January 1997. In April 1996 there were delays in hearing family law cases in 14 Circuit Court venues ranging from nine months to two years. In six other venues the delays ranged from three months to eight months and there were no delays in the remaining six venues. In June 1997 there were delays of between nine months and two years at three venues and at seven other venues the delays ranged from three months to eight months. There were no delays at the remaining 14 venues. The situation is being monitored and the President of the Circuit Court is continuing to assign extra judges to those venues which have the greatest delays.
I am aware that any delay in the hearing of family law cases is a serious matter, having particular regard to both the personal and complex nature of such cases and the fact that decisions in these cases have life long repercussions on all members of the families concerned. I am confident that the appointment of these additional judges will provide the courts with the resources necessary to deal effectively with existing delays and arrears, including family law cases, and assist in the prompt disposal of cases in the future.
As everybody is aware, a working group under the chairmanship of Judge Susan Denham was established in November 1995 to examine the court system in general and to consider the establishment of a courts commission. Preparation of the necessary legislation to establish such a commission is at an advanced stage.
With regard to the problem of accommodation, it is the policy to provide family law suites in all new or refurbished courthouses as part of the ongoing courts building programme to ensure a network of family law courts is available throughout the country. These family law suites are located to provide privacy to the parties involved, which is of considerable importance. The suites include a specially designed courtroom, which is smaller and less formal than the usual courtroom, a judge's chamber and consultation rooms for the parties concerned.
Separate family facilities have already been provided in more than a dozen locations, including Athlone, Arklow, Bray, Cork District Court complex, Ballina, Ballinasloe, Carrick-on-Shannon, Naas, Portarlington, Midleton, Galway, Kilkenny, Waterford and Clonmel and in the District, Circuit and High Court in Dublin. Work has just been completed on the refurbishment of Portarlington courthouse and refurbishment projects are under way at Cork Circuit Court, Ennis and, Deputy Neville will be pleased to note, Abbeyfeale. A new courthouse is being built in Tallaght and will be completed by the end of this year. I have also recently authorised works to commence on refurbishment projects at Portlaoise, Listowel, Rathdowney, Roscrea and Castlerea. The total cost of these projects will be just over £13.5 million. I am committed under this refurbishment programme to providing the best possible facilities for the transaction of family law business as quickly as possible within the resources available to me.
Deputy Neville referred to the issue of child abduction. I take this opportunity to refer to two of the most effective international instruments ever devised in so far as child protection is concerned. These are the Hague Convention on the Civil Aspects of International Child Abduction and the Council of Europe Convention on Child Custody which were given the force of law in this State by the Child Abduction and Enforcement of Custody Orders Act, 1991. Prior to that legislation there were no formal arrangements whereby rights of custody of parents in this State could be recognised or enforced in another State.
The Hague Convention contains judicial and administrative measure to secure the return of a child on the basis that the custody of a child should be decided in the courts of the place where the child habitually resides. The Luxembourg convention contains measures which are designed to ensure that custody orders made by the courts in a contracting State are, subject to conditions, recognised and enforced in other contracting States. Over 40 countries world-wide, including all our EU partners, the US and Canada, are party to one or both conventions.
The conventions provide for the establishment of a central authority in each contracting State to carry out functions which are specified in the conventions. All central authorities are obliged to initiate steps to trace a child, to seek the child's return or secure access to the child and, if necessary, to arrange for court proceedings to secure the return of or access to the child. They must collate and forward to the court other central authorities' information on the child. As Minister for Justice, Equality and Law Reform I am the central authority here and officials of my Department carry out the relevant duties. In saying that I am the central authority, I mean within the context of this Bill and the relevant conventions.
The total number of cases dealt with in 1996 by our central authority was 114, of which 51 were abductions into the State and 63 abductions from the State. In 12 of those 51 cases of abductions into the State the court ordered the return of the children concerned, in eight cases the court refused to return the children and, in nine cases, the relevant parties reached agreement. One case brought was for the recognition of a carer. One case was outside the scope of the relevant convention, 12 applications were withdrawn and 18 cases awaited resolution at the end of the year.
In 17 of the 63 cases of abductions from the State foreign courts ordered the return of the children. In five cases the foreign courts refused to return the children, in 15 cases the relevant parties reached agreement, one case being outside the scope of the relevant convention, ten applications were withdrawn and 15 cases awaited resolution at the end of the year.
I thank all Members for their contributions to a very valuable and informative debate. I am confident of receiving their co-operation on Committee Stage and look forward to our discussion then. I hope I have comprehensively answered Members' queries and shall be only too pleased to discuss any additional views or amendments as comprehensively as possible on Committee Stage. Amendments tabled by Members which would help to improve the provisions of this Bill will receive a most sympathetic hearing.