Children Bill, 1997: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Yesterday I criticised the Bill for not establishing joint custody as the norm in the case of unmarried fathers. Joint custody and guardianship should be established as the norm in all areas relating to children, regardless of marital status or the personal relationship of the parents.

The Bill is welcome for the approach it takes on the rights and needs of children. Recognition of the need to take account of the wishes of the child in custody and access matters is a very progressive idea. In certain quarters it might be considered a revolutionary idea. It is essential if we are to fully protect the interests of children that this be established. Too often children have become objects in a tug of love rather than being seen as individuals who are in need of care and attention in a marital or parental dispute.

Other aspects of the Bill recognise the needs of children. The taking of evidence by children under 14 years of age without an oath is very significant. This has been problematic in the past. Until now, children who did not understand the concept of an oath might be prevented from giving evidence, or if they did so, the evidence might be treated with suspicion.

I also welcome the provision to allow the use of video links in civil proceedings. This is currently the practice only in certain criminal trials. However, I have reservations about the capability of courts outside Dublin to implement it. Court facilities in many provincial venues are inadequate and antediluvian. They are not appropriately equipped or laid out to deal with sensitive issues, quite apart from dealing with technology such as videos. Clearly the Minister will have to tackle this problem if we are to improve physical conditions and facilitate technological requirements.

Another measure will allow relatives to apply for access rights to a child. This is a progressive approach because it formally acknowledges the role which many relatives play in caring for children. The care that they give deserves to be acknowledged by a right of access to or custody of children. In many cases where children are at risk or where the family has broken down members of the extended family, grandparents, aunts, uncles, brothers, sisters, etc., can play an important role. The Minister has indicated that he may consider extending it beyond the blood relatives as defined in the Bill. I strongly recommend that he look again at that aspect of the Bill because at the end of the day protection is provided by the fact that the decision will be that of a judge. It may be that somebody who is a relative by marriage, not a blood relative, can end up being the most significant person in a child's life if those who normally have responsibility for that child are unable or unwilling to care for him or her.

Under section 22 arrangements for certification by a solicitor are similar to the arrangements which are made in separation and divorce proceedings. The code of practice introduced by the Incorporated Law Society will be helpful but we need to reconsider the effectiveness or otherwise of this means of encouraging mediation. I suspect there is a certain conflict of interest where a solicitor is the medium through which mediation may be approached. I have not found in my experience that solicitors believe that mediation is a real alternative. Some may believe it is a service which is in competition with the service which they provide. Mediation has beneficial effects. It is an alternative which has not been used sufficiently, one which must be resourced and upgraded if it is to be a serious alternative to the adversarial approach with is clearly dominant at present.

I suspect we must live with the adversarial approach for quite some time. If that is the case, the Government must ensure the expansion of the support provided by the free legal aid centres. Recently published figures show that since divorce legislation was introduced the number of people on waiting lists for legal aid has doubled. The last Government had a good record in relation to free legal aid. Waiting lists were shortened dramatically and new centres were opened. We are now going back to the bad old days. Some clients of the free legal aid centre in County Wicklow are waiting 11 months for an appointment. That is totally unacceptable, particularly when one considers that this Bill will increase the workload of these centres.

I am concerned that this Government has absorbed into the Department of Justice the Department of Equality and Law Reform which had responsibility for law centres. It is a worrying and reactionary move. This absorption is a backward step. I am afraid that the supports developed by that new Department in a whole range of areas will be marginalised in the great crusade of the Minister to build more prison places while downgrading the range of services, such as the free legal aid centres, which are provided to ensure equality before the law.

I must express the same concern in relation to the probation and welfare service. This Minister's mission is to put the maximum number of people into jail. A better and more effective way to reduce crime would be to aim to keep people out of jail. Alternatives to jail, particularly for young people, are often more effective and beneficial in the long term both for the individual and society and they are clearly more cost effective. However, to date, the probation service has been incapable of keeping up with the overwhelming demand for it. The provision of staff and resources is essential, but the Minister's concentration on increasing spending on prisons augurs badly for improving the capacity and capability of the probation service. The provision under section 26 which allows the District Court to seek probation and welfare reports will create an additional workload. Will the Minister explain the kind of resources he is providing to ensure this workload will be met?

Sections 21 and 22 allow for hearsay evidence where a child is too young or is intimidated by the court proceedings. This is an important provision and reflects the strong recommendations of the Law Reform Commission.

Section 25 allows a court to transfer a case to any area where technical facilities are available. In this day and age every court should be computerised with video links available in at least one venue in each District or Circuit Court area.

I welcome the Bill. I intend to propose amendments with regard to joint custody. Nevertheless, it is a progressive Bill which shows a definite shift towards making the needs of the child central in the family unit.

However, we must be always vigilant. The traditional family can no longer be presumed to be a safe haven. Since 1992 there has been a 78 per cent increase in the number of reported child abuse cases in the Eastern Health Board area alone. The appointment of the first programme manager for children and families by the Eastern Health Board is a good development, but it also indicates how serious and extensive are the problems which arise for children.

Ultimately, two people carry responsibility for any child in the first instance. That responsibility needs to be acknowledged equally in this Bill and by society. Safeguards must always be in place where parents fail to live up to that responsibility.

The Bill is about children, but it is also about how we envisage families of the future. There has already been massive change and families will continue to change. The original patriarchy has largely given way to a different set of conditions. In lone parenthood, fatherhood has become conditional in a way it was never before. Fatherhood depends almost entirely on the mother and her relationship with the father. In that context the mother has primacy in legal terms.

In this Bill joint custody and guardianship for the unmarried father is being made easier, but we have yet to finalise the process that began with the abolition of the concept of illegitimacy. It will not be easy. Safeguards will always be needed regardless of the marital context. They will be needed to protect women and children against male violence, abuse or neglect. However, ultimately, equality in parenthood must be the goal, while allowing for the difference in the approach by men and women.

The European Research Workshop has investigated the changing pattern of families. In its paper entitledFamily orientation among men. Fatherhood and partnership in a process of change in Sweden it states:

Both men and women demand the right to have children nowadays. The society acknowledges the children's rights to both parents. The right to have children can also be seen as an expression for the increased cultural importance that children and young people have in society. Children and young people represent the coming, the new orientations. They represent creativity and new knowledge. For adults, contact with children is an important way to keep in touch with changes in society. One can say that children have gotten an increased importance for the integration of adults in society.

This is a different way of looking at how children are placed in our society. We are inclined to think children need parents to have roots in the past. However parents equally need to know and connect with their children to face the rapid changes of today.

The time has come to treat fathers and mothers equally, regardless of their marital status. In turn that will be of benefit to the child and society in general since there are at present many young men, themselves fathers, who are alienated, disconnected from the family unit because of the changes that have occurred.

Overall I welcome the Bill and look forward to the Minister's comments.

Since this Bill has been introduced against the background of the Minister's indication that he and other Members will be tabling amendments on Committee Stage, one must be cautious in welcoming it. Nonetheless I clearly welcome its objectives, or any legislation whose provisions seek to improve the support services or highlight the problems appertaining to children's welfare.

Its main objective, as enunciated by the Minister, is to update the law on guardianship, custody of and access to children. Some of his remarks in its introduction were as follows:

Briefly, the main objects of the Bill are first to update the law on guardianship, custody and access by allowing a father who has not married the mother of his child to be appointed guardian by agreement with the mother, without the need to go to court as at present;

I have difficulty with the phrase "by agreement with the mother" about which I will go into greater detail later.

The Minister continued:

— obliging the court, where appropriate in proceedings concerning custody of or upbringing of a child, to give consideration to the wishes of the child;

This is also to be welcomed, as is the other main point the Minister made:

— making it clear that, in appropriate cases, custody of a child may be granted by the court to a father and mother jointly and allowing certain relatives of a child to apply for access to the child.

I must reiterate that in practice "by agreement with the mother" could prove difficult and delicate. We know from experience that, even when mature, responsible couples separate, problems can arise especially with regard to their children. Guardianship, custody and access should be seen to be equal and fair unless there are obvious reasons for their being otherwise. There is genuine concern on the matter of custody orders and equality imbalance.

In the course of the last Dáil I tabled a number of questions, of similar vein, to the then Minister for Equality and Law Reform on whether his attention had been drawn to concern about gender imbalance in favour of one parent whenever the courts award custody of a child. I also drew the Minister's attention to representations and submissions by Parental Equality with regard to custody orders and tabled a number of questions on that matter also. Parents, in particular fathers, are genuinely concerned in that to date the majority of court orders have been in favour of the mother. Most public representatives will have encountered very sad cases which, while perhaps extreme, led in the case of the father to the denial of his right to custody by the courts.

We have also encountered cases where the bitterness between parents is unfortunately and unfairly taken out on children or on fathers because of the custody orders in place. In this age of equality it should be made explicit that both mother and father have an equal responsibility in the birth and upbringing of a child. The opportunity should be taken now to have that written in law so that fathers are treated fairly by having equal rights of guardianship, custody and access. Fathers have for some time been denied equal and fair treatment by the courts. Agreements were forced on them in that they knew that, if they did not accept the agreement achieved by their legal representatives, they would fare no better in court.

I understand from my research in the area of guardianship and custody that the unfair favouritism shown towards the mother dates from a time when she was seen to be the parent most involved in raising the child by being at home providing the necessary support. Over the past decade, there have been such social changes that the majority of fathers play an equal role in the raising of their children. Also, mothers play an equal role in providing for the home. For one reason or another, whether it be house prices, mortgages, school fees or the preferred lifestyle, both parents work. The old myth that the mother stayed in the family home to provide the necessary support for raising the child, which gave rise to favourable custody orders, warrants special consideration. That is why the issue of guardianship, custody and access should be equal and fair.

Parental Equality spoke to the previous Minister for Equality and Law Reform, and I suggest the Minister take time, before proceeding to the next Stage, to speak to organisations such as this and others he deems appropriate. This would mean he would have a broad understanding of the various action groups formed to have their voice heard. This would be a great opportunity for the Minister to hear such views from people with first hand experience who have had to form organisations to get their points across. The Minister should give favourable consideration to making time available for this.

I welcome the Bill's recognition of the important role of the wider family. Section 9 allows a relation of a child to apply for a court order granting access. As with the area of custody and guardianship, this issue has caused great distress to families and children and a clear structure should be put in place. A relation such as an aunt, an uncle or a grandparent may have a special relationship with a child and great distress has been caused when access is cut off because of legal agreement or court order. When this section comes into force, one hopes the knock-on effect of the mechanism put in place will be to recognise these relationships. Long-term studies have shown that the involvement of parents, grandparents and the wider family will improve a child's future.

The Bill includes provision for counselling and mediation, court proceedings, social reports, television links for court evidence, etc. Extensive new legislation relating to children and families has come into effect since 1991 and these have been coupled with social changes, particularly in the region with which I am familiar, the Eastern Health Board. The context within which social workers operate and the support services for children has altered significantly. There is genuine concern on many fronts about the level of support and the availability of the professionals required to offer it.

I record my appreciation for the many groups which have gone to great trouble to prepare many discussion documents such asPutting Children First and the north inner city group's report, The Common Goals of Unmet Needs. A huge voluntary army is working tirelessly in the community with the aim of improving the required services for children and families. I am honoured to be the chairman of the child care committee of the Eastern Health Board, which has done much work in recent years on the review of adequacy of services and unmet needs. I congratulate one of the people who spearheaded that committee, Ms Brid Clarke, on her appointment as programme manager within the Eastern Health Board. The title of her post is “children, family and child care” and she will focus on children's health, child care and family support, teenage pregnancy, counselling services and other support services for children. That is a welcome development and I hope it occurs in the other seven health boards because it merits special consideration.

Adequate funding is necessary in the context of such developments and it is disappointing that a number of developments, highlighted as necessary in studies carried out by local community groups which recognise the need to focus attention on particular issues, do not always receive funding. I was shocked and surprised to learn recently of the apparent lack of co-ordination between the relevant bodies dealing with children from disturbed backgrounds and in need of institutional care. There seems to be no liaison between the institutions and the outside agencies. A child released from institutional care often makes subsequent contact with the authorities only when he or she is picked up from the street by the Garda. It is only then that an emergency response is put in place to help the child but, once they leave institutional care, they are back on the streets. Will the Minister establish a mechanism which will allow follow-up support, especially given the importance attached to such support by those working in the relevant services? It would be of enormous benefit to those providing the services and to other emergency response agencies. It would allow them to respond immediately to the needs of the child and to access information on them. This issue warrants support and investigation.

Ten days ago I visited a residential unit of the Eastern Health Board in the constituency of my colleague, Deputy Brian Lenihan, which has been denied funding for such follow through. This is one isolated problem. There are other worrying aspects of the service to be examined. There is great social change in the Eastern Health Board region and there is a serious problem which may not fall within the ambit of the Minister. For example, there is an alarming increase in the number of so-called drug babies being born, causing serious problems for the professional support services. If we are to develop the objectives of this Bill, which are to be welcomed, we will have to ensure that the moneys are made available to the professional services.

Over the coming five to ten years we need to be pro-active in the provision of counselling, mediation, social support and social workers for children. People working in such services are now sending out alarm signals and calling for a pro-active approach. In addition to the necessary finances, the appropriate structures must be established to ensure that the required professional staff will be available in the areas acknowledged as needing special consideration.

I extend a cautious welcome to this Bill. I congratulate the Minister on his appointment. I know his commitment and dedication to his portfolio and I have no doubt that this is the first of many Bills he will introduce in the interests of all the people. I know the Minister is prepared to listen. I hope he takes up my recommendation to speak with Parental Equality and other such organisations, which have firsthand experience of needs in this area, before amendments are tabled on Committee Stage.

I congratulate the Minister on his appointment. He showed great industry in Opposition in vindicating the right of the citizen to basic safety and security. Since his appointment I have detected a note among Opposition speakers that because our party's policy was characterised by the maxim of zero tolerance, a policy capable of wide definition and one which was our basic party policy in the security and safety of the citizen, somehow this was a ministry devoid of social purpose or concern.

For that reason, I am glad one of the first legislative measures the Minister has brought before the House is the Children Bill, 1997, which is a progressive reforming measure dealing with an area of civil legislation essentially encompassing three different areas. The first restates our basic legislation on custody, guardianship and maintenance and makes certain reforms therein. A second aspect of the Bill relates to how we can secure, from a procedural viewpoint, the best interests of the child in custody proceedings and, finally, there are evidential changes which I will discuss at length later.

I congratulate the Law Reform Commission on the volume and quality of its work. It is of immense assistance to Members of the Oireachtas to have these reports that weigh up in great detail the arguments for and against changes in the law, and bring forward balanced and sensible proposals for reform. Much of this measure draws on proposals drawn up by the Law Reform Commission. This House must be careful not to simply rubber-stamp the conclusions at which the commissioners may have arrived but to give serious consideration to the questions raised.

An idea mooted at the time of the establishment of the Law Reform Commission was that in addition to bringing forward proposals for reform of different branches of the law, the commission would endeavour to ensure that legislation generally would be simple, consolidated, codified and accessible to the citizen. That is an important consideration when one looks at the reports of the Law Reform Commission. One would need to be a legal scholar of substantial repute to master the detail and intricacy of the reports. Plainly, we must make a political judgment on these matters but I would like if it was possible, from the point of view of legislation, to embody any proposals the commission brings forward in a simple accessible form. It is not a serious criticism of this Bill but it seems we often miss the opportunity to consolidate legislation when we introduce new measures. We proceed by way of amendment and insertion into previous Acts, making the accessibility of the resulting legislation somewhat remote from the citizen who may wish to find out his or her rights in relation to a branch of the law.

On the three main principles of the measure, the first relates to the question of the guardianship and custody of children. One of the main changes proposed is to permit a father who is not married to the mother of his child to be appointed guardian by agreement with the mother without the need to go to court, as at present. Deputy McManus suggested that perhaps that section does not go far enough. However, the section goes far enough because it would not be feasible to confer automatic rights on fathers who are not married to the mothers of their children. There is a concern here about the basic emotional bond which necessarily exists between a mother and child, which we must protect when considering civil legislation. We must proceed with great caution if there is not a clarity of status between the mother and father.

The Bill provides that where the mother and father agree, the father can be appointed as a guardian without the need to go to court. That is plainly commonsense. A person should not be obliged to engage in the expense and trouble of having to have recourse to the courts to establish something which is agreed.

The Bill also obliges the court to give consideration to the wishes of the child in proceedings concerning the custody or upbringing of the child. I am certain that that is already the practice. In my experience, where a question of custody arises the courts consult children and give such effect to their wishes as is possible in the circumstances. That has always been the practice of the courts in this jurisdiction. However, it is no harm to give that matter statutory authority.

The Bill makes clear that, in appropriate cases, custody of a child may be granted by a court to a father and mother jointly and permits relatives of a child to apply for access. There was not any real doubt that a court could direct joint custody but there is no harm in embodying it in the legislation. The innovation here is in permitting relatives of a child to apply for access.

I sound a note of caution here — such disputes should not come before the courts unless it is essential. I am glad a safeguard has been written into the legislation that before such an application can be made there must be a preliminary application to the court, and the court must be satisfied it is an application which should be entertained. Therefore, an application by a person outside the immediate nuclear family for access to a child cannot be entertained by a court without a necessary preliminary application satisfying the courts that it is proper in the circumstances to permit such proceedings to ensue. That is an appropriate measure for which I commend the Minister.

The rules in all these matters concerning the custody and guardianship of children have generally been elaborated by the courts over decades and centuries. The predominant criterion is the best interests of the child. It is plainly in the best interests of the child not to have vexatious or unnecessary litigation.

I am also glad the legislation attempts to foster a culture of settlement and mediation of these disputes where the ultimate resort to judicial decision can be avoided if at all possible. That ultimate recourse must exist as a matter of civil right under our legislation and Constitution. However, one does not like to see children brought into such proceedings if it can be avoided.

I commend the Minister on that side of the Bill. Everyone on both sides of the House agrees the provisions relating to custody and guardianship are appropriate, well drafted and sensibly balanced.

The second matter, which builds on the work of the Law Reform Commission, concerns the new Part IV to be inserted in the 1964 Act relating to safeguarding the interests of children. I commend the Minister on this reforming measure which has been needed for a long time in our legislation. He built on the work of the Law Reform Commission to insert safeguards in the legislation which ensure that an applicant for custody is aware of the alternatives to custody, access and guardianship and attempts to involve the legal profession in promoting agreement and conciliation in this area. One would not disagree with this aspect of the legislation. It provides that in any proceedings in which the welfare of a child is in question the court shall take into account the child's wishes. In my view that was always the position taken by the courts but it is appropriate that it should be stated in legislation.

An interesting aspect of this part of the Bill is the decision to implement the recommendation of the Law Reform Commission to provide for a system of a guardianad litem and, if necessary, separate legal representation for a child. One of the changes introduced by the Bill is to abolish the legal definition of an under age person as an infant and replace it with the term “child”. The concept of separate legal representation stems from a recommendation of the Law Reform Commission. It is often the case that there is a conflict of interest between the wishes of the child and the parent and court proceedings are structured in many different respects to ensure that the courts have regard to that possible conflict of interest. In this aspect of the Bill, the Minister is building on that by providing for separate legal representation in an appropriate case through the device of a guardian ad litem. The phrase may confuse the laity but it means a guardian appointed for the purposes of litigation. When Latin phrases are used in connection with legal matters they often serve to confuse rather than clarify. However, the guardian ad litem concept is sound and I commend the Minister for introducing it.

The third principle of the Bill relates to the laws of evidence and certain reforms and changes are introduced in Part III of the Bill. The laws of evidence are the laws on which courts determine what evidence can be admitted before them, what liability is to be attached to the evidence and how matters should be proved. However, one of the problems with Part III of the Bill is that we are moving to an arrangement whereby there are different systems of evidence applicable in different tribunals.

The Oireachtas passed the Criminal Evidence Act, 1992, which measure contained a substantial number of reforms with regard to the admission and proof of matters in criminal proceedings. Provision is made for a live television link up for giving evidence in criminal proceedings, substantial relaxation of the hearsay principle in criminal proceedings and changes to the manner in which a witness under the age of 18 or a witness suffering from a mental disability could give testimony. These were applicable to criminal proceedings. This Bill proposes that similar changes would be extended to what are described in section 19 as

(a) civil proceedings before a court, commenced after the commencement of this Part, concerning the welfare of a child; or

(b) with necessary modifications . civil proceedings before any court, commenced after the commencement of this Part, concerning the welfare of a person who is of full age but has a mental disability to such an extent that it is not reasonably possible for the person to live independently.

I have a problem with the definition of the welfare of a child. To characterise or categorise legal proceedings on the basis that they concern the "welfare of a child" is a somewhat vague description of the exact proceedings to which the Part applies. The phrase "welfare of a child" is defined in the legislation in terms of the ". religious, moral, intellectual, physical and social welfare of a child"— a definition borrowed from the Constitution.

We require a more precise definition of what proceedings these new evidential procedures set out in the final part of the Bill will apply to. The court faces the issue of what is meant by the welfare of a child in the context of legal proceedings and may not be absolutely certain as to exactly what proceedings are referred to. Plainly, proceedings under the Guardianship of Infants Act, 1964, are envisaged by this Part, but does the reference to the welfare of a child in that Part go beyond that to involve any proceedings in which a child is a party to civil litigation? The Minister might revisit this on Committee Stage.

Section 27 applies irrespective of the Part to which I have referred. It provides that:

a child who has not attained the age of 14 years may be received otherwise than on oath or affirmation if the court is satisfied that the child is capable of giving an intelligible account of events which are relevant to the proceedings.

That change is proposed for all civil proceedings. The Criminal Evidence Act, 1992, introduced that change for criminal proceedings, but in civil proceedings a child had to take an oath and, in strict law, the judge had to be satisfied, by inquiring if necessary, that the child understood the nature and purpose of the oath and the sanction attaching to the failure to keep faith with an oath. Section 27 proposes changing that procedure in civil proceedings and to bring the procedure into line with what already exists in criminal proceedings. The sole criterion a judge will have to consider in deciding whether a child is a competent witness is whether the court is satisfied that a child is capable of giving an intelligible account of events which is relevant to the proceedings.

I welcome that change. It is desirable as it has already occurred in criminal law and there will thus be uniformity in all legal proceedings. A child will be able to give evidence when a court is satisfied that that child can give an intelligible account of events. A judge will not be constrained by authority to consider whether the child knows the difference between eternal damnation and eternal reward in considering whether the child should give evidence.

Sections 18 to 26 of Part III are confined to proceedings affecting the welfare of a child and I have queried that criterion as being somewhat vague. Will courts be in a clear position to determine whether the new evidential principles established in those sections apply in the particular proceedings before them? Section 25 provides:

Where information contained in a document is admissible in evidence in proceedings to which this Part applies, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such a manner as the court may approve.

There was a similar section in the Criminal Evidence Act, 1992, in relation to criminal proceedings. The law holds that the original should be produced, which is the best evidence a case admits, and the law has always been that an original should generally be produced by a party in legal proceedings, though there have been many exceptions to this rule over the centuries. We established with the Criminal Evidence Act, 1992, that there should be a general exception of this character inserted in our criminal jurisprudence. Accordingly, in all criminal proceedings, a facsimile is admissible provided the judge is satisfied as to its authenticity and there is no strict requirement to produce the original document.

This legislation proposes that that principle should be extended to proceedings affecting the welfare of a child. In criminal proceedings there is the strictest standard of proof and it seems strange that the provision in section 25 is not extended to proceedings generally. It is difficult to see why it should be limited to criminal proceedings or proceedings affecting the welfare of a child. I urge the Minister to look at whether section 25 could be made a provision of our legal system generally so that, in all court proceedings, copies of documents could be admitted in evidence. Notwithstanding the fact that these documents are not originals, the court could accept them if satisfied they could be authenticated. That seems to be a very reasonable principle which would cut out a lot of nonsense in the courts.

Sections 22 to 24 deal with changes in relation to the admission of hearsay evidence. These changes will be limited to proceedings to which the Part applies. That means that three different legal regimes will apply in relation to the reception of hearsay evidence — one established by the Criminal Evidence Act, 1992, one established by this legislation in relation to proceedings involving children and the unreformed hearsay law which will remain in all other civil proceedings. We should look at whether we can introduce a degree of uniformity in relation to the operation of the hearsay rule in our courts. Would it not be desirable that citizens should know when an out of court statement is admissible in legal proceedings and when it is not? There should not be separate rules for the criminal code, the children's code and other civil proceedings.

I welcome the opportunity to speak on the Bill. This proposed legislation is another cog in the wheel of important legislation concerning children which has been introduced in recent years. There was a time when one spokead nauseam of children's legislation in terms of the Children Act, 1908. It was hoped that Act would be reformed but the will to do so did not seem to exist to any great extent. It is to the eternal credit of the present Minister, and to previous Governments, that we are now about to add this important legislation to an area which focuses on children and supports their welfare.

I have a background in education and for years we talked about the ‘child-centred' curriculum. It is good to see that there is now child-centred legislation. At long last we are to the forefront in Europe and the world in the area of child welfare legislation. The fact that we have ratified the European Convention on the Exercise of Children's Rights and are signatories to the United Nations' Convention on the Rights of the Child is important.

Some of the points I want to address have been covered already by people with much better legal experience than myself. I welcome the emphasis in the Bill on the wishes of children. I will speak later about the recognition of natural fathers as guardians and the safeguarding of the interests of the children. We should be under no illusions that the adoption of this legislation will carry significant resource implications in the areas of health care, social welfare, education and housing.

One of the main features of the Bill is that a father can be appointed as a child's guardian by agreement with the mother without having to resort to court. I am glad the Minister has underpinned his approach to mediation, agreement and avoidance of courts as a main principle of the Bill. Many of the children we are talking about are the children of young parents. Those parents do not need to be put through the trauma of going to court, and it is obvious that their children would be significantly more traumatised if their parents were forced to do that. It is important, therefore, that we properly resource the mediation services that are necessary and that will require training case workers, social workers and other professionals in a wide range of areas who will be able to mediate between parents. That is vital because the tragedy is when parents separate, regardless of whether they are married, the only people who suffer are the children. Obviously, the younger the children the greater the level of suffering.

Another important feature of the Bill, and it is of growing importance with the increasing number of young parents, is the right of access for grandparents which will allow them become part of the lives of their grandchildren. We do not often realise the importance of grandparents, and other blood relatives such as aunts and uncles, to these children. Hardly a week goes by that I do not come across cases where grandparents are left to rear these children. Relationships between young people often break up and they go their separate ways. The grandparents are then left to cater for the educational, health and other needs of the children involved. There has been a vacuum in this area up to now and I compliment the Minister on inserting this provision in the Bill.

I referred earlier to the need for mediation. It is important that we begin to provide training for professionals in this area. There has been an improvement in the provision of training for child care workers but there is still a major shortage of such people. I ask the Minister to examine this area with a view to providing a cohort of trained professionals in the child care area who could take part in these mediation services.

A great deal of progress has been made over the years in the family mediation service but the delay in dealing with some cases is often too long. To an adult a couple of months might not seem very long but in the life of a young child it can be extremely important. We must, as far as possible, avoid delays in holding case conferences.

Coming from an educational background, I cannot sufficiently stress the need for proper counselling services for children and their parents. The best counselling service is one which brings together the parents, many of whom are often in bitter disagreement. It is important that the counselling service available to those parents is comprehensive and professional. For that reason I fully support initiatives introduced by the health boards in recent years. The role family resource centres play in the lives of communities cannot be understated, and we must continue to support those to a far greater extent.

The early start programme in primary schools has been an important initiative in recent years. A network of these programmes has been developed in various areas. The Minister has an involvement in these programmes through child care workers and I ask him to examine the possibility of extending them. Some years ago the Government introduced neighbourhood youth projects which were mainly aimed at adolescents. These projects were excellent vehicles for the provision of mediation, counselling and support services for young parents and teenagers and it is a pity they have not been developed to a greater extent. The Bill deals with young people up to the age of 23 in full-time education and we need to put in place mechanisms to support a range of demands.

Although it is not the responsibility of the Minister, an issue which is not often addressed is that of fathers who wish to have visitation rights to their children at weekends. Many of these fathers apply to the local authority for housing but under the present scheme of lettings and priority they are regarded as single and of low priority. In many cases they are given a low quality one bedroom flat which is unsuitable to accommodate their children at weekends. Consideration should be given to amending the scheme of lettings and priority for housing so that these fathers are given suitable accommodation. It is not acceptable that children should have to sleep on couches and floors in a one bedroom flat when they visit their father.

Section 8 which deals with age of dependency of a child provides that a child shall include a reference to the person who has not attained the age of 18 years or who has not attained the age of 23 years and is receiving full-time education or instruction at a university, college, school or other educational establishment. We are talking about young adults and I can see anomalies arising in that some of them will be excluded from the higher education grants scheme. Young people who left school at an early age and wish to return to full-time education at a later stage may find it difficult to come within a certain category and thereby be excluded from the scheme. It would be a pity if we were to introduce good legislation and at the same time exclude from the scheme young people who obviously need support.

Section 11(25) is very enlightening. It provides that as far as practicable having regard to the age and understanding of the child the court shall consider the wishes of the child in proceedings in which the welfare of the child is in question. That is acutely important. We have come a long way in moving towards the position where the child is the important person in this debate. I compliment the Minister on that.

I also compliment him on section 27 which allows the court subject to certain conditions to hear the evidence of all children under the age of 14 in civil courts without requiring them to take an oath or make an affirmation. That too is important. I am not a legal expert, but irrespective of whatever downside there may be from a legal point of view, that provision is welcome from the point of view of avoiding trauma for the child.

I spoke about resourcing and section 11(28)(5) provides that legal representation should be paid for by such parties to the proceedings and in such proportions as a court may determine. That relates to the area of case conferences where submissions are made etc. It will have implications for schools where teachers will need to be veryau fait with the cases they will discuss. It will also have resource implications in the area of social work. Not only will resources need to be made available in terms of finance, we will need to look at training for social workers, teachers and child care workers to ensure they will be able to make a worthwhile input into such case conferences. It should be stressed that we are trying to avoid acrimony and bitterness as far as possible and at all stages the necessity of having to go to court.

Section 20 deals with children giving evidence through a television link. I know that system operates moderately successfully elsewhere, but I am not entirely convinced we have the technology which allows children of whatever age to be at ease at a remove from a court. That needs to be looked at. Not every judge or barrister can handle a case as well as others where evidence is given through a television link and an intermediary. I am slightly uneasy about that and I would welcome the Minister's comment on it.

When children are with their newly declared guardian, whether their natural father or a grandparent, it is important that it be understood that the responsibilities of parenthood should attach to those guardians. I am not convinced parents can always be asked to be entirely responsible for the actions and deeds of their children. It is incumbent on us to stress they should be accountable for them which is an entirely different issue deserving of a wider debate.

I compliment the Minister on bringing forward this legislation but as one who has had a long involvement in working with young people I am uneasy about the suggestion that the probation and welfare service should have an involvement in some of these cases. I may be old-fashioned but I believe children and their parents find the involvement of the probation and welfare service like aquasi court, in other words, if one is under the care of the probation and welfare service one is heading towards the court. Perhaps we need to look at the question of modernising its image so that it is seen more as a caring agency than as a law enforcement agency.

That there are of the order of 700 applications to the court each year by unmarried fathers who wish to become guardians of their children and that 12,500 children are born annually to unmarried parents says a number of things. We are living in a changed society from the safe secure society we lived in, the composition of the family has changed and we must legislate for that. While this legislation is far-seeing and radical the Minister proposes to introduce amendments at a later stage.

The area I want to concentrate on is that of the non-adversarial approach and the implication that resources for a wide range of agencies need to be provided. We are not talking about the adequacy of parents and are not casting aspersions on their ability to rear their children, but the desire by the State to provide the best resources possible so that children will grow up to be confident vibrant members of society.

I am a great believer in the preventative mode.

I do not suggest every child born to an unmarried parent is more likely to get into trouble than somebody who is born to a married couple. With the best will in the world children get into difficulties and various supports must be available.

I compliment the Minister on bringing forward an exceptionally enlightened Bill.

I was very impressed by the contribution of the Fine Gael spokesperson, Deputy Dan Neville, when he spoke yesterday. It reassured me that Members on all sides have similar views regarding this Bill and are concerned for our children. Deputy Neville struck a chord with me and the majority of people when he said the family is the basic unit of society and tragically it has taken a terrible knocking in recent years. We have now to introduce legislation to try to help some of the unfortunate victims who live outside the family unit and become victims in a tug of war, between the parents who may not live together.

I welcome this Bill, but I would like to see the Children Bill, 1996 brought back into the House. That Bill deals with juvenile justice, particularly the section of it which makes parents responsible for their children. Parents, whether single or married, should know where their children are. There is a need to introduce curfews, particularly for children who are recidivist criminals, who are committing robberies and who are out of control. Certainly no child of 11 or 12 years of age should be out at 11 o'clock at night. For years I have advocated that parents must be made responsible for the actions of their children.

Single parents, particularly men, should be made to contribute financially towards the upkeep of their children as, in the case of 80 per cent of children born to single mothers, the fathers are known to the mothers. Ten per cent of their earnings, whether from welfare or employment, should be attached for the upkeep of their child. Some proud fathers have fathered four or five children. Such men remind me of a song in "The King and I"— they think they are honeybees and women are flowers and that they are fulfilling their functions by going from flower to flower. If they had 10 per cent deducted from their income, men would think twice before doing this.

There are so many single parents now that young people meeting each other do not know if they might be meeting their half brother or half sister. With today's standards of blood and DNA testing, it should be easy to establish whether people are related to each other. We will have problems down the road if we do not tackle this now. The Minister should consider legislating to make blood testing compulsory for people who wish to marry, as has been the case in America for years. If a person is HIV positive the person they intend to marry should be entitled to know.

In my constituency I have had a number of visits from time to time from brokenhearted grandparents who have no access to their grandchildren. Their son has fathered a child and the mother and her parents have no wish to have anything to do with the father of the child or his parents. I am glad that in this Bill there is provision for access by blood relatives of children. On Second Stage the Minister said that the law should facilitate as far as possible the sharing of responsibilities of parents in relation to children. Some 12,500 children annually are born to unmarried parents. At present some 700 applications are made to the court each year by unmarried fathers who wish to become guardians of their children jointly with the mother. Of these some 400 are by agreement. Under the new provisions they can become joint guardians of their child through a simple procedure without having to go to court.

I would like to know what the situation would be if an unmarried parent died. If the father dies, it is important that his parents have access to their grandchild. We should make sure that where a son or a daughter dies either set of grandparents will have access to the child. The Minister said that the new section 11(b) of the Bill gives blood relatives of the parent of the child an independent right to apply for access to that child, the intention being to reflect the fact that continued contact with relatives and grandparents can often be in the child's best interests. That section is important because we all know the horror of a tug-of-war between unmarried parents of a child. While the media love it as a human interest story, when all the publicity has died down the situation remains. In cases where the relatives are of good behaviour, are not involved in criminal activities and are not likely to be a bad influence, they should have access. Access should be granted subject also to the parent paying something towards the upbringing of their child.

Something else that has dogged our society, particularly in the case of children born out of wedlock, is the absence of the extended family, of aunts and uncles which, particularly at times like Christmas when the single parent is alone with their child, means that children miss out greatly in their childhood.

Family counselling is integral to the success of this Bill. The counsellors must be from stable backgrounds and — I make no apology for saying this — they should be married rather than single. Some people would disagree with that, but I feel married people, particularly those with families, have an understanding. There are many people whose families have grown up, people who received a good education and spent their lives bringing up their families and who now have time on their hands, and these people have something to offer. Rather than unionising the system we should broaden the net so that everybody who can will be able to help. We do not want people with chips on their shoulders. My fear is that some social workers think they have a monopoly on truth. No one has a monopoly of truth or wisdom. The people involved in this work should have the required level of experience, they should not be men haters or women haters. The same goes for judges. We must ensure that those who provide counselling come from stable backgrounds and have no hang ups.

I welcome the Bill and urge the Minister to introduce the Children Bill, l996 as quickly as possible to complete the package.

I am glad to have the opportunity to speak on the Bill. One of the benefits on Second Stage is that one can introduce extraneous matter. Previous speakers raised many interesting issues. Deputy Brian Lenihan, a lawyer by profession, mentioned the use of Latin phrases in legislation which tend to cause confusion in the minds of the public. Perhaps all legislation should be drafted in Irish and English.

Deputy Lenihan also adopted a common sense approach in dealing with the section of the Bill under which one will be permitted to submit copies or faxed material. He argued that a similar provision should be included in all legislation. This suggestion should be looked at given that much time is wasted in the courts and elsewhere.

The Bill updates existing legislation on child care and related matters. The Constitution and the potential cost were among the excuses given by successive Governments for avoiding the issue. It was only after the appointment in l987 of Deputy Noel Treacy as Minister of State that progress was made. He was charged with the responsibility of examining all existing legislation. One of the difficulties was there was a variety of definitions of "child" in various Acts. This caused confusion and resulted in conflict between the Departments of Justice, Health and Education which made life difficult for those working in the field. I compliment the Minister on moving speedily to have the Bill restored to the Order Paper as it is badly needed.

Rapid progress has been made since l987. For the past two years I have served as chairman of the Southern Health Board and had the opportunity to work with the former Minister of State, Deputy Currie, who had responsibility for implementation of the Child Care Act which was a major step forward. The Minister is fully committed to effecting improvements in the area of child care. In the past he highlighted various issues which needed to be dealt with.

Legislation should reflect what is happening in society. The Bill is a practical response in that regard. Reference is made to 11 previous Acts, sections of which are being amended. This may cause confusion in the minds of professionals working in the field. I urge the Minister to consider introducing consolidating legislation which should be plainly understood. As someone who had responsibility for the implementation of health and safety legislation in the industrial sector, it can be very frustrating to discover legislation has been amended when one thinks one has got everything right.

The Bill is a move in the right direction. Last year there were 700 cases in which fathers sought custody or access to their children. The rights of grandparents and other blood relations have been mentioned. Perhaps we should go further and consider the position of non-blood relations. We are all aware of cases where individuals took on the responsibility of looking after a child and reared him or her as one of their own in a loving atmosphere.

I am glad the Minister is willing to consider amendments to the Bill on Committee Stage as there is no legislation which cannot be improved. The Bill needs to be strengthened in a number of areas.

Society is changing rapidly. We need to work to keep abreast of those changes. Family support centres and other areas have been mentioned in the debate. As a member of a regional health board, I am aware of how much can be done by providing assistance at an early stage before a partnership or marriage breaks up. A great deal can be done by taking preventive measures.

We must also recognise the rapid changes that have taken place in the traditional family unit. Whether we agree with the changes we have to accept that they are occurring. The Minister must deal with the fall out from these changes and it is clear from the Bill that he has recognised what is happening. The Bill is important because it addresses many of the issues and problems that have arisen from the changes which now require attention.

The changing situation means that people tend to be categorised. For instance, everyone can quote the number of unmarried mothers without any difficulty, but no one can quote the number of unmarried fathers. It is an area that we must address. The Bill is welcome because it facilitates fathers who have a sense of responsibility. Those who are willing to become involved and accept their responsibilities should be encouraged and helped. However, too many fathers do not wish to recognise their responsibilities and run away from them so other legislation may be required to deal with that aspect.

The Minister has tried to simplify many matters that arise such as the need to go to court. I support the comments made earlier by Deputy Brian Lenihan that court should be a last resort. We need to provide an alternative as that is the only measure available at present and I am glad the Minister is doing so.

The legislation must reflect what is happening in the real world. The old phrase that "children should be seen and not heard" was totally wrong and, under the Bill, consideration will be given to the wishes of children. The question of granting joint custody is welcome but the focus must be on the child. The Child Care Acts have updated legislation by taking children's wishes and views into consideration. This Bill now extends that.

There is a need to avoid confusion in the plethora of amending legislation because people in health boards and elsewhere will have to implement the laws we pass and it can be difficult for them to do so. We need to train such people as well as enact legislation that is as simple as possible — something we do not normally do. It seems at times as if there is almost a deliberate attempt to draft confusing legislation. Health boards and other agencies must establish Protocols to deal with this legislation.

In the coming months the Minister will be introducing much legislation. I appeal to him to make it user friendly so that it is understood by people other than those who, like himself, are trained lawyers. Although lawyers make much money from arguing and disagreeing over the wording of legislation, I appeal to the Minister to simplify the legislation as far as possible.

In the past I argued for the immediate implementation of legislation that is enacted and I am glad the Minister has decided to apply a commencement order under a number of sections. Over the past two to three years in particular, health boards have been put under huge financial strain as a result of changes in legislation that transferred a range of responsibilities from the Department of Justice to the Department of Health. In many cases funding has not been available.

While people welcome many of the changes in society, the bottom line is that it costs a lot of money to police young people who do not abide by the law. In this case the Minister, drawing on his own experience, is aware of the changes that need to be made in the probation service and the health boards, and this is recognised in section 27. There will be massive financial implications for both services.

Deputy Briscoe referred to the standards that need to be applied to those who provide counselling. His wish to have married people involved is laudable but there is no question of applying a rule to that effect. I take his point, and hopefully the Minister will also, that we should try to avoid having people with a chip on their shoulder becoming involved in the sensitive area of child care.

The phenomenon of counsellors has escalated so rapidly that it is difficult to keep up with the training and supply of professionals. There has been a tendency to use anybody with any experience in psychology and other areas as counsellors. I take Deputy Briscoe's point that we need to keep a careful eye on that. While it is something the Minister can legislate for, health boards will have to be aware of it.

The powers of the courts are being changed, although not radically, and the right to remove a guardian is essential. I must confess that I am going purely from media reports, but one of the worrying factors emerging from our changing society is the incidence of child abuse in relationships where a second partner is involved. It has become too common for us to ignore it and allow it to pass. The Minister should examine the possibility of building in safeguards in such instances. I am aware that health boards can intervene. However, from the evidence, it would appear that children are suffering abuse, yet there has not been any intervention. That is probably because of the public's lack of knowledge. It is becoming so frequent that people must be able to intervene at an earlier stage. It is worrying that the Status of Children Act, 1987, and the Age of Majority Act, 1985, must be amended because there is conflict between the legislation.

Deputy McManus said the Bill did not go far enough in giving the father equal rights in a relationship. Society is changing radically. The assumption that the mother is the natural person to bond with the child and the only one who cares and is responsible for it is no longer true. Society is beginning to realise that the father is more willing and anxious to get involved. One of the difficulties up to now was that fathers did not have access to their children. They must be given full access so they can discharge their responsibilities.

I already mentioned fathers who are unwilling to accept their responsibilities. We must encourage fathers to become involved. There should be total equality so that the male partner has the same rights as the mother. In the past the mother was often left carrying the baby. I hope joint custody is given to parents.

I am glad the Minister said the courts will be the last resort. It is important that non-blood relatives have access. Those of us involved in health care are aware of the great work done and the sacrifices made by individuals over the years. Perhaps a provision could be included in the Bill to allow non-blood relatives access in certain circumstances. Child abuse was mentioned by a number of speakers and I am sure it will be discussed further on Committee Stage.

I compliment the Minister for putting this Bill back on the Order Paper. We should also pay tribute to the former Minister for Equality and Law Reform, Mr. Mervyn Taylor, for his work on and commitment to equality issues. The Minister is committed to this legislation. I do not want to discuss specific sections today because there will be an opportunity to do so on Committee Stage. Perhaps we will be able to use our experience on health boards and involvement in community activities to initiate change.

People must accept we are not challenging the traditional family unit. We want to recognise the needs of society, particularly those of innocent children who did not ask to be involved in a relationship. The break-up of relationships is often bitter and hurtful. Other matters were mentioned, such as accommodation for unmarried fathers. These are the real problems in society which must be faced. Unmarried fathers will be the last to be considered for accommodation and, if they get access to their children, they will not be able to accept it because they will lack proper facilities.

I am sure the Minister will introduce more legislation over the next four or five years. I reiterate the requests made by Deputy Brian Lenihan to simplify the Bill. Those of us not involved in the legal profession and the people who must rear these children find it difficult to understand. We should also avoid amending previous Acts, wherever possible. I commend the Bill to the House.

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.

Question put and agreed to.

What is the proposed date for Committee Stage?

Tuesday next, 9 October 1997, subject to agreement between the Whips.

Committee Stage ordered for Tuesday, 9 October 1997.