Vol. 482 No. 4
I move amendment No. 3:
In page 3, line 22, after "1991," to insert "THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991,".
This is a technical drafting amendment to the long title of the Bill. It is consequential on an amendment made on Committee Stage which provided for an amendment to the Child Abduction and Enforcement of Custody Orders Act, 1991. I thank the Deputy concerned for raising the matter.
We will deal with amendment No. 5. Amendments Nos. 6, 7, 9 and 10 are related and amendment No. 8 is an alternative to amendment No. 7. It is suggested, therefore, that amendments Nos. 5 to 10, inclusive, be taken together, by agreement.
I move amendment No. 5:
In page 3, line 30, to delete "23,".
These amendments are similar to amendments tabled by Deputy Moynihan-Cronin on Committee Stage. As initiated section 1 provided that with the exception of section 11 and Part III which are subject to commencement provisions, the Bill will come into operation one month after the date of its passing. Section 11 inserts as many as 12 new sections - sections 19 to 30 - into the Guardianship of Infants Act, 1964. On Committee Stage I amended the Bill to provide that new sections 19, 24, 25, 27 and 30 will not be the subject of a commencement order and will come into operation one month after the passing of the Bill. Amendment No. 7 from Deputy Moynihan-Cronin, which I am accepting, and my amendment No. 8 will provide additionally that new section 23 will not be subject to a commencement order.
Deputy Moynihan-Cronin's amendments Nos. 4, 5, 6 and 9, with which I cannot agree, would result in the provisions relating to counselling, mediation and certain provisions relating to the evidence of children coming into effect one month after the passing of the Bill. In addition, her amendment is proposing that all the provisions of section 11 and Part III be brought into effect not later than 18 months from the passing of the Bill.
I indicated on Committee Stage that the provisions being introduced by section 11, which relate to mediation and counselling, social reports and guardian ad litem, will require consultation with the Probation and Welfare Service, health boards, the Family Mediation Service and the relevant Departments of Social, Community and Family Affairs and Finance. I said it was only following proper consultation that the provisions can be brought successfully into effect. I reiterate that view.
One of the matters of concern to the Minister and I is that section 47 of the Family Law Act, 1995, giving the Circuit Court power to order social reports in family law proceedings, although brought into effect in August 1996 by a commencement order, was not matched with the necessary resources for the Probation and Welfare Service and the health boards. That section was extended to divorce proceedings by the Family Law (Divorce) Act, 1996, which came into effect in February 1997.
It is my Department's intention that any additional funding that may be provided for 1998 will go towards enabling the Probation and Welfare Service to provide a service to the courts to meet the needs of family law legislation. Recruitment of the professional staff concerned will inevitably take time and it will be essential initially to address the immediate needs under the 1995 and 1996 legislation and then to address needs under the Children Bill provisions.
Additional demand placed on mediation services and, indirectly, counselling services will also have to be assessed. In all the circumstances the reality is that without proper resources the new provisions in the Bill cannot be operated. The 1995 and 1996 legislation is proof of that. The commencement provision is essential to allow time to properly fund and to recruit the necessary staff and, in effect, it takes into account the responsibilities which already exist in relation to the 1995 and 1996 Acts.
I am accepting amendments Nos. 5 and 8 and I am opposing Deputy Moynihan-Cronin's amendments Nos. 6, 7, 9 and 10.
I move amendment No. 7:
In page 3, lines 32 and 33, to delete "20, 21, 22, 23, 26, 28 and 29" and substitute "26 and 28".
What is the status of amendment No. 7?
I am not accepting amendment No. 7.
Is it not the case that once something has been agreed, it is agreed by the House?
Amendment No. 5, which was moved by the Minister, has been accepted. Amendment No. 6 was not moved and therefore falls. Amendment No. 7 was moved by the Minister and accepted.
I am not in a position to accept amendment No. 7.
Is that satisfactory?
I am not objecting to her decision, but I understood that when the amendment was passed by the House it had to stand. I am not clear if the procedure can be adapted in this way, but the matter is in your hands, Sir.
The amendment can be recommitted now.
It is not my amendment and I do not wish to recommit it. I merely want to ensure that we adhere to the procedures of the House. I have no problem with the Minister's approach, but I would not like it to set a precedent whereby a Minister can choose - I understand it was a mistake - to do something one minute and not to do it in the next.
If amendment No. 7 is recommitted we can rectify the matter.
Amendments Nos. 4, 5, 6, 7, 8, 9 and 10 are being taken together.
To undo the agreement in regard to amendment No. 7, it must be recommitted.
I move amendment No. 7:
In page 3, lines 32 and 33, to delete "20, 21, 22, 23, 26, 28 and 29" and substitute "26 and 28".
I move amendment No. 8:
In page 3, line 32, to delete "23,".
Amendment No. 13, in the name of Deputy McManus, and amendment No. 16, in the name of Deputy Moynihan-Cronin, are related to amendment No. 12. Therefore, amendments No. 12, 13 and 16 can be taken together.
I move amendment No. 12:
In page 6, between lines 47 and 48 to insert the following:
"5.—The Act of 1964 is hereby amended by the insertion of the following section:
‘2A.—In relation to cases in which section 2(4) would have applied but for the fact that the mother has withheld her consent, the court may order her to do so if it decides it was unreasonably withheld.'.".
I welcome the removal of the provision that the father must go to court to become a joint guardian of his child or children and that this can now be done by agreement between the father and the mother. However, the Bill falls short of what is required to address the position of single fathers who wish to play a full role in the rearing and development of their children and carry out their responsibilities as parents and fathers. Single fathers should be entitled to a relationship with their children. To date the presumption in law has been that single fathers do not have such a right and must seek to obtain agreement to that right. The requirement to arrange to have access to their children, as a precondition to availing of the benefits of the section, could give rise to a catch 22 situation. The absence of guardianship rights could be detrimental to their prospects of obtaining satisfactory custody and access rights, but single fathers cannot obtain guardianship unless custody and access arrangements have been agreed.
The changes outlined in the Bill do not render it any easier for a single father to establish guardianship or joint guardianship because in cases where the mother agrees to joint guardianship, the courts would also probably grant guardianship. Agreement can be reached without going to court. Under the law as it stands, children of single parents are discriminated against in comparison to those of married couples. Their relationship with their fathers has an inferior status in the eyes of the law and society in general. The thrust of the Committee Stage debate was to shift recognition of the relationship with the father closer to where it should be, in other words, the father's relationship should have a similar status in law to the relationship with the mother.
Amendment No. 12 stipulates that the court may order a mother to grant consent if it decides it was unreasonably withheld. In other words, the decision of the mother to withhold consent could be scrutinised and the court could decide the mother unreasonably withheld consent. In my interpretation of the law, the mother can decide, by withholding her consent, that the father should not have access or joint custody of his child or children. The thrust of my amendment would allow the courts to examine the mother's reason for withholding consent and, if she withheld it unreasonably, grant joint guardianship to the father.
These amendments are similar to those tabled by Deputies Neville, Moynihan-Cronin and McManus on Committee Stage. In general, their effect would provide that, where an unmarried father applies to the court for guardianship, he shall be made a guardian of the child or children jointly with the mother unless there are compelling reasons for not doing so. In the course of Committee Stage debate, I outlined the position generally in relation to guardianship under the law as it stands. It is essential to focus attention on that law again. I stated that an unmarried father is not automatically a guardian of his child or children, but he may apply to the court under section 6A of the Guardianship of Infants Act, 1964 to become a joint guardian with the mother. Section 6A, as inserted by the Status of Children Act, 1987, provides that where the father and mother of an infant are not married, the court may, on application by the father, by order appoint him to be guardian of the infant. In arriving at all decisions regarding children, the court must, under section 3 of the 1964 Act, regard the welfare of the child as paramount.
On Committee Stage I outlined the views expressed in the 1996 report of the Constitution Review Group on the question of guardianship rights of unmarried fathers. The review group stated that a natural father has no personal right in regard to his child, which the State is bound to protect under Article 43 of the Constitution. It also stated that criticism of the fact that a natural father does not have a constitutionally protected personal right in relation to his child can be readily understood in the case of natural fathers who live in a stable relationship with the natural mother or who have established a relationship with the child. It states, however, that there does not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links.
In 1996 there were approximately 12,500 children born to unmarried parents. In that year some 700 applications for guardianship were made to the courts by unmarried fathers and approximately 90 per cent of them were granted. Of those 700 cases, some 400 were granted with the agreement of the mother. Those statistics are strong evidence that in very many cases unmarried fathers are not prepared to take on the responsibility of guardianship of their children. Much of the criticism of the position of unmarried fathers under the law as it stands stems from the common belief that unmarried fathers who apply to the court to be made joint guardians of their children are discriminated against and if the mother opposes the application the father has little chance of success. I know Deputy Neville has particular concerns about this aspect. However, that is not the case. The position in practice is that the courts will refuse guardianship to an unmarried father only in cases where a father is clearly unsuitable to be a guardian.
The effect of the amendments tabled by Deputies Neville, Moynihan-Cronin and McManus would be to create a presumption in favour of the unmarried father in all cases irrespective of the relationship, stable or otherwise, that exists between him and the mother of the child. I indicated on Committee Stage that the mother would then have the onus of displacing or refuting such a presumption. Given the very vulnerable position in which many unmarried mothers find themselves, particularly where they have taken on responsibilities for their children, neither I nor the Minister believe mothers should be placed in that position. It is precisely because the law is operating currently in the courts without apparent difficulty that there is no need for the fundamental and unnecessary contentious changes proposed by these amendments. The change proposed in the amendments would not only affect applications to the courts, it would also affect many situations outside the courts because unmarried mothers would feel compelled to agree guardianship rather than have to refute a strong presumption in the courts.
The Bill improves on the existing position of unmarried fathers and mothers by allowing joint guardianship by agreement without the need to go to court as at present. Our law on that basis would be broadly similar to that in the UK. On Committee Stage section 9 was amended to provide that a court in considering whether to grant guardianship to an unmarried father must have regard to whether the child's or children's best interest would be served by maintaining personal relations and direct contact with the father and mother on a regular basis. That provision which is inspired by a provision in the United Nations Convention on the Rights of the Child will have a bearing on the practice of the courts in those cases where an unmarried father seeks guardianship and the mother is in dispute.
Advances are being made in the Bill on the position of unmarried fathers and mothers and their children, not only on the position where the parties are in a stable relationship but also where they are in dispute. I do not believe the evidence in relation to those many cases where unmarried fathers do not concern themselves with their children suggests a fundamental change should be made to the law in favour of those fathers. That would be the effect of the amendments tabled by the Deputies and for that reason I do not support them.
We covered this matter at length on Committee Stage and I do not want to repeat too much of what I already said. I note the Minister of State made points she made previously on this issue and I feel I have a duty to respond to them again. The Minister of State made the essential point that 12,500 children were born to unmarried parents, 700 applications for guardianship were made to the court by unmarried fathers and 400 were accepted.
On a point of clarification, 400 of the 700 applications were uncontested and 90 per cent were accepted.
The Minister of State is right. I want to concentrate on the gap between the 12,500 children born to unmarried parents and the 700 applications for guardianship by unmarried fathers. I reject the Minister of State's presumption that is an indication unmarried fathers do not want to have an interest in or a concern for their children. There are many unmarried fathers who do not want to be connected with their children, but many want to be. Until there is full and adequate research into why this is happening, it is dangerous to make presumptions because we are simply reinforcing a trend that excludes unmarried fathers from guardianship and care of their children.
What concerns me about the response of the Minister of State is that the child is almost peripheral to the debate. We must get back to the basic point that a child needs to know his or her parents. We cannot simply go along with the position where sole responsibility for many of the children born is being given to the mother. That is not an adequate arrangement. It is not fair to the child, the unmarried father or mother. There must be cultural as well as legal changes. If in legislation we simply support the present cultural trend we will reinforce it. That is my concern about the Bill. We are reinforcing the principle that a baby born outside marriage is the sole responsibility of the mother and, if she chooses, the father can have a role to play. That position is unsustainable in the longer term.
Points were made on the Order of Business about young Irish males who feel disconnected from society. This position reinforces a feeling of such disconnection. Males, who are primarily young, who father children outside marriage are being denied responsibility for their children in law and practice. That is not an easy problem to overcome. I do not believe that if guardianship was given to unmarried fathers it would make men more responsible or caring. That is not the way of life. If we state in law that responsibility for children born outside marriage will continue to be the responsibility of unmarried mothers and the system will be made easier for the courts - I suspect that is probably part of the agenda - we will reinforce that message. I cannot accept that. I urge the Minister, even at this late stage, to reconsider this view.
Deputy Neville's amendment contains a modest proposal which would go some way towards establishing a different framework and set of priorities in law. If my amendment is not acceptable and is too radical a step, at least Deputy Neville's opens a door to assessing how to consider relationships between parents and their children. The Minister has a concern for the area of children, but I believe the legal arguments rather than the needs on the ground are being presented to her.
I fully agree with Deputy McManus. As 12,500 children were born to unmarried parents and 700 applications were made by unmarried fathers for guardianship of their children, we must consider seriously what is in our culture that determines the majority of fathers of children born outside marriage do not have a relationship with their children. It is important to recognise that one in five children, and one in four children in some parts of the country, are born outside marriage. We must consider how we should cope with that position to ensure that the children of unmarried parents have as stable a relationship as children born within marriage. One of the key aspects of a stable relationship is knowing and being influenced by one's father and mother.
We must do everything we can to show society this State recognises the strong role of the father in influencing the upbringing of a child, whether or not he is married to the mother. We cannot turn back the clock and make society what it was 15 or 50 years ago. The births of children outside marriage will continue and the trend is increasing. The State must recognise this and say that children should know their fathers and their extended family on that side. They should know their fathers' values and should ensure these influence the children. A child should grow up to recognise that both male and female, father and mother have a role to play in his or her upbringing. The figures quoted by the Minister show that the 20 per cent of children born outside marriage do not have a relationship with their fathers.
This Bill provides an opportunity to send a strong message that the State recognises that fathers, whether married or unmarried, have a key role to play in the upbringing, influencing, supporting and guiding of their children, in or outside marriage.
I listened with interest to what Deputies have said. There is a feeling abroad that a father in most instances has few rights. It would be a step in the right direction to ensure a greater realisation of a father's rights. Many fathers from all socio-economic groups feel excluded from the upbringing of their children and in many instances there is no real access. Any help we can give will benefit the child.
I ask the Minister to give this matter careful consideration. Having discussed matters of this nature with unmarried parents it is clear that, particularly in later years, there is sadness that the father has not had a greater input into the upbringing of his child. This amendment would be a significant, correct and judicious step.
We have given this matter much consideration since Committee Stage. The Minister and I are concerned about the vulnerable position of many unmarried mothers, particularly where they have taken on all responsibilities regarding their children. We are concerned about the mother where the onus is on her to change the automatic situation. The figures highlight this. If the father is interested and there is agreement, the court may, on his application, appoint him guardian of the infant. Even where the mother disputes the application, statistics show that approximately 90 per cent are granted. We have seriously considered the matter but we are not in a position to accept these amendments.
I move amendment No. 13:
In page 7, to delete lines 1 to 6 and substitute the following:
"‘(4) Where the father and mother of a child are not married to each other and have not made a declaration under section 2(4), the court shall, by order, appoint the father to be a guardian of the child unless there are compelling reasons, affecting the child's best interest, for not doing so.'.".
Amendment No. 15 is an alternative to amendment No. 14 and both may be discussed together.
I move amendment No. 14:
In page 7, line 13, after "section 2(4)," to insert "or where the father was a guardian of the child by virtue of a declaration under section 2(4) but was removed from office under section 8(4),".
These amendments are to the new section 6A as inserted in the Guardianship of Infants Act, 1964, by section 6 of the Bill. Section 8(4) of the 1964 Act as inserted by section 7 provides that a court can remove guardianship from an unmarried father who becomes a guardian by virtue of a declaration under new section 2(4) of the 1964 Act. New section 6A of the 1964 Act as it stands in the Bill could be interpreted as not allowing an unmarried father whose guardianship rights as required under new section 2(4) are removed by the court to subsequently apply for guardianship.
Amendment No. 14 removes doubt on the matter and provides that where an unmarried father's guardianship rights have been removed by a court, the father may subsequently apply to have his guardianship rights restored. Deputy Moynihan-Cronin's amendment No. 15 is intended to achieve the same result. However, it is technically imprecise and does not achieve the desired result. Therefore, we have put forward better wording. I cannot support the wording of the amendment proposed by Deputy Moynihan-Cronin. I thank her for putting it down, although it is specifically catered for in amendment No. 14.
Amendments Nos. 18 and 21 are related and amendments Nos. 19 and 20 are alternatives. They may all be taken together by agreement.
I move amendment No. 18:
In page 7, to delete lines 42 to 46 and substitute the following:
"11A.—For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11 shall grant custody of a child to the child's father and mother jointly unless there are compelling reasons affecting the child's best interest, for not doing so.".
I ask the Minister to respond favourably to this amendment. We have to establish joint parenting as the norm, in practice and law. We cannot reach that point unless we clearly state that it takes two to produce and rear a child. If we continue to reinforce the principle that the mother rears the child and the father may only be allowed to do so, we are not serving the children of this nation well.
I accept the Minister's point that she wants to protect the unmarried mother from further burden. However, that will not happen. This provision will only reinforce a parenting imbalance. Joint custody should be the norm. We should ensure that parenting is recognised as the responsibility of two people. Marriage allows for that but the nature of that responsibility should not be changed if a marriage breaks down or a couple is not married. I ask the Minister to be brave and to face up to what is happening and not to what we would like to happen. We are reinforcing the imbalance of one parent families. There is no such thing as a one parent family because there must be two parents to produce children. I ask the Minister to accept this amendment.
My amendment has the same objective as that of Deputy McManus. We want to send a strong signal that co-operation between parents should be the norm so that single parents do not have to go to court to decide who gets custody or the level of access. We must send a signal that the State recognises changes in society. Over 20 per cent of children are born outside marriage. The State should signal that co-operation between both parents is expected and that the law is there to facilitate that.
My amendment proposes that special regard will be given to parents through the ability and willingness of each parent to encourage and facilitate the continued involvement of the other in the upbringing of their children. We want to establish a norm so that the involvement of both parents is the way forward. The State expects that both the father and mother should be fully involved in rearing children. As Deputy McManus said, there is no such thing as a one parent family. Every child has two parents so we must ensure they are both involved in the child's upbringing. Otherwise, a large number of people in our society will grow up without their father's influence or involvement.
These amendments should be accepted, although I appreciate the difficulties which could arise if one parent becomes involved in a new relationship. Such a situation could be traumatic for both parties and for the child. We want to ensure the father does not feel excluded. I have met many fathers who have had great difficulty gaining access to and arranging times to meet the child. This is made worse if there is a conflict between the father and mother. The child will benefit in the long term if it has proper access to both parents.
This amendment seeks to ensure the continued involvement of the other parent in the child's upbringing. There is a one parent syndrome in every town and village. We want to ensure it is broken so that both parents are involved in rearing the child, which is not happening at present. Acceptance of this amendment would show that this House is making an effort to ensure that both parents have an input into the child's upbringing.
I support the amendments which have been resubmitted following the debate on Committee Stage. I am disappointed the Minister did not table any amendments to this Bill, although she met the various groups which have an interest in it.
The courts seem to forget that the welfare of children should be of paramount importance in cases of marital breakdown.
I am very conscious there is a group of school-children in the Visitors' Gallery. The key issue in such situations should be the welfare of the children of any marriage or relationship. We can talk about rights, obligations, access and custody, but let us not forget that any child has a right to know his or her parents and to be influenced by them. That is the ideal situation. Of course, difficulties can arise leading to the breakdown of marriages and relationships, and unfortunately children can get hurt in such situations.
These amendments deal with parents' access to their children. However, in addition to a right to access to their children, parents also have an obligation to look after them. Our court system has until now tended to give custody rights almost exclusively to mothers. We need a sea change in our approach to such matters and how our courts deal with such difficulties. Many fathers are told by the courts that they must provide money to maintain their families and pay the mortgage and that they can bring their children to the Zoo or McDonalds for a day every fortnight. That is not satisfactory from the point of view of the father or the children, who have a right to know their parents.
On the last occasion I outlined the very sad situation of a man I know whose marriage broke down. I will not attribute blame for the breakdown but neither he nor his wife has entered another relationship. There was a court hearing to decide custody of the children and other matters. This man has a very modest income with a take home pay of less than £250 a week. The court decided he should continue to pay the mortgage on the family home, pay £100 a week to his wife to maintain the family home and their three children and that he should leave the family home. When he went to collect his belongings he found them in suitcases outside the door and he was not allowed inside the house. He can only afford to live in a small one bedroom flat 15 miles from his family home. He has access to his children every second weekend.
How can that man look after his 15 year old daughter and two younger children in a one bedroom flat? His children no longer want to spend every second weekend with him. Why should they have to put up with very inferior living accommodation every second weekend, removed from the familiarity of their home and its creature comforts such as a television and computer? Let us bear in mind that he has a 15 year old daughter. That situation is totally unsatisfactory and, while I do not want to criticise any court or judge, it is also unjust. That man and his children are being treated unfairly.
The Minister might ask what solution I have. I do not have all the answers but we need to have much more discussion on this matter and examine how other countries cope with such situations. Given that our overriding consideration must be the welfare of the child, we should have a revolving parent system where instead of the children moving out of the family home to visit their father he would move into the home and his wife would move out when it is his turn to look after the family. In that way, the children would remain in their familiar surroundings with access to their friends and the adults, who should be better able to cope with such situations, could make their own arrangements.
It will be said that such a system is unworkable. It would be difficult, of course. Perhaps the husband might not do the hoovering or clean the cooker over the weekend. The Minister of State, Deputy Wallace, was very amused when I mentioned that the last day. Difficulties can arise over who does the hoovering in stable relationships also. The husband might be unhappy with the condition of the house. However, the overriding consideration is not whether the parents are content but the children's welfare. This system works to a limited extent in Spain and Denmark.
In Ireland, the mother is invariably granted custody of the children with the father given limited access. The situation is slightly better for the well off who can take their children to reasonable surroundings when they have access to them. I support these amendments because we must face up to the fact that we need a change in our courts. The existing legislation does not indicate to which parent custody should be given but leaves it to the discretion of the courts. I am in favour of the strong matriarchal influence in Ireland. However, given the changes in society, we must review what is happening within these courts and how their decisions affect people's lives.
I am disappointed that the Bill does not include greater direction to the courts to look at the responsibilities of the parents on the basis that each parent has equal responsibilities and the child has the right to know his or her parents and to be influenced by them. Earlier in the debate, the Minister of State mentioned that an overriding concern was the requirement of the UN document on the status of children, which contains a statement on the rights of children, including their right to know their parents. That must be taken into consideration.
Will the Minister of State reconsider the situation and look again at how the wishes of many fathers who have been badly treated can be accommodated? It may not be a macho thing to say, but men also have feelings and can feel cut off from their children and worthless when they do not have access to give them the kind of attention they need.
All Members of this House know that children need our attention, even if we can only telephone home when we are in Dublin. The Minister of State does not yet have any children dealing with homework. It gets worse when they enter secondary school. I was a teacher for 20 years and I know how difficult it can be to tutor young people on their homework over the telephone.
The right of children to have access to their parents can be lost if the courts do not adopt a fair approach to the question of custody. I support these amendments and I hope that, even at this late stage, the Minister of State may decide to accept them.
Deputy McGrath referred to the presence of school pupils in the Visitors' Gallery. They are from Ashbourne, County Meath and I welcome them to the House.
These amendments are similar to those put down by Deputies Neville, Moynihan-Cronin and McManus on Committee Stage which were debated at length. To help focus the debate on issues raised in the amendments I wish to mention the effect of section 9 and the effect which various amendments would have on the operation of the 1964 Act.
Section 9 inserts three new sections - 11A, 11B and 11C - into the 1964 Act. As it stands, section 11 empowers the court to give any direction it thinks proper in disputes concerning custody of or access to children. In the making of any such orders the court must regard the welfare of the child as the first and paramount consideration. In this context, we have looked again at this issue in detail since Committee Stage.
The new section 11A intends to make clear that a court may award custody of a child to a father and mother jointly. It states:
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.
Amendments Nos. 20 and 21 in the name of Deputy Neville purport to declare for the avoidance of doubt 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 or mother solely if exceptional circumstances warrant it. Amendment No. 18 in the name of Deputy McManus and amendment No. 19 in the name of Deputy Moynihan-Cronin are similar.
Having seriously considered the matter, I remain of the view that the amendments are an attempt to fundamentally alter the powers of the courts to give directions under section 11 on who should have custody of the child. It would appear that the court would be required as a matter of course to award custody to the father and mother jointly. It would only award sole custody to the father or mother in exceptional circumstances.
As I mentioned on Committee Stage, amendment No. 18 in the name of Deputy McManus is flawed in declaring that, for the avoidance of doubt, the court may operate on that basis. The court does not operate on that basis and because the 1964 Act is not framed to operate on that basis it is wrong to suggest that it does by attempting to remove doubts on the matter.
On Committee Stage, the House agreed to the Minister's amendment of section 9 by inserting a new section 11D into the 1964 Act. This new section provides that in considering whether to make an order relating to guardianship, custody or access under sections 6A, 11, 14 or 16 of the 1964 Act, the court "shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis". This provision goes a long way to meeting the point which underlies the Deputies' concerns and those of certain interest groups without at the same time sacrificing what is fundamental to the operation of the 1964 Act, namely, the principle of what is in the best interest of the child. It was inspired by the provision in the UN Convention on the Rights of the Child and is intended to direct the court's attention in exercising its discretion in making guardianship, custody and access orders to the desirability of ensuring that the children have ongoing and close contacts with both of their parents.
The reality which I asked Deputies to appreciate on Committee Stage is that courts are and should be seen to be a last resort in so far as settlement of disputes regarding children are concerned. That is why this Bill encourages the use of counselling and mediation. However, if cases must come to court, the court will inevitably have to make hard and difficult decisions based on the evidence before it.
Deputy McGrath referred to an individual case. The court has all of the evidence before it and takes a decision in the light of that evidence. In cases involving children it is necessary to have all the evidence. The court will make a decision on sole custody if that is the best solution in terms of the welfare of the child when all of the facts are known. If the evidence is that joint custody is in the interest of the child the court will make an order for the parents to share custody.
The courts should not be compelled to award joint custody orders because to do so would be a departure from the principle that decisions in relation to guardianship, custody, access and upbringing must be made on the basis that the welfare of the child is the first and paramount consideration. I am satisfied that these amendments which I am unable to accept would substantially change the rules of evidence in 1964 Act proceedings and in a way that would unnecessarily depart from the child-centred provisions of the Act.
Deputy McGrath should bear in mind that there is a distinction between guardianship and custody. It is important in cases where the parents were married that the parent who is not granted joint custody - in the case to which the Deputy referred the mother was granted sole custody — leaves the court knowing that they are still their child's guardian.
While I accept the Minister of State's point that we should not try to direct the courts to act in a certain way, we have reached the stage where we must try to influence them. The Minister of State can tell me that the courts make decisions based on the information before them but the thinking is that there is no other way except to grant custody to the mother. We have to take a broader focus and somehow inform the courts that there is another way. We can do this through legislation. Why, in 97 per cent of cases, is custody granted to the mother? This appears to suggest that in the majority of cases of marital breakdown the father is the erring partner, should be penalised and have his knuckles rapped. What is best for the children is of paramount importance. We have to get this point across to the courts. Perhaps the Minister of State will communicate with family law judges and convey the message that their decisions have been noted and that there is a need for a sea change in approach. We could find ourselves in trouble if we suggested they attend a refresher course but there is a need for a change of approach. The Minister of State should take the initiative.
The amendments reflect the provisions of the UN Convention on the Rights of the Child which states that the rights of the child separated from one or both parents to maintain a personal relationship and direct contact with both parents on a regular basis should be respected unless this is contrary to his or her best interests.
This is a complex question, particularly having regard to the Constitution. The Constitution Review Group identified a number of issues under Article 41 of the Constitution which concerns the family. They include an expanded constitutional guarantee for the rights of the child and the relative balance between parental and children's rights. The Constitution Review Group, in its deliberations, considered the provisions in relation to family and marriage in other constitutions and the UN Convention on the Rights of the Child. It points out that the focus of Article 41 of the Constitution is on the rights of the family as a unit as distinct from the rights of individual members of the family. It considers that the focus of Article 41 emphasises the rights of the family as a unit to the possible detriment of individual members and that the best approach in any revised form of Article 41 would be to recognise the family as a primary or fundamental unit in society entitled to the special protection of the State or society but recognising also that the rights and duties which derive from marriage, family, parenthood or as a child are guaranteed to or imposed on the individuals. It recommends the express inclusion of a number of rights of a child. Among these should be a right, as far as practicable, to be cared for by both parents. It is also desirable to insert in the Constitution an express obligation to treat the best interests of the child as a paramount consideration in any actions relating to children.
In making its recommendations in relation to children the Constitution Review Group took into account in particular the various provisions of the UN Convention on the Rights of the Child. Those provisions concern the child's right to be cared for by his or her parents and the desirability of continuity in a child's upbringing.
Deputies will appreciate that the area under discussion in the Bill is complex, involving, as it must, the question of what is provided for in the Constitution. What we know, as the Constitution Review Group indicated, is that the rights of a child are not expressly referred to in Article 41, rather the focus is on the rights of the family, not the individual members. For this reason the new section 11D of the 1964 Act, as inserted by section 9 of the Bill, is drafted in a way that coheres with Article 41 of the Constitution, as it stands.
Deputy McGrath said the courts should be directed to act in a certain way. The new section 11A - this is progress - states:
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.
I am unable to accept the amendments.
I move amendment No. 21:
In page 8, line 7, after "order." to insert "In deciding any issue under this section the court shall have particular regard to the ability and willingness of each parent to encourage and facilitate the continued involvement of the other parent in the upbringing of the children.".
I move amendment No. 22:
In page 8, lines 13 and 14, to delete "have particular regard to -" and substitute "have regard to all the circumstances, including in particular -".
This is a drafting amendment to the new section 11B of the Guardianship of Infants Act, 1964 as inserted by section 9 of this Bill. The new words improve the drafting and are in line with the terms used in other family law legislation.
I thank Deputy Moynihan-Cronin for raising this matter.
Amendment No. 25 in the name of Deputy Neville. I observe that amendment No. 29 is related and, with the agreement of the House, I suggest they be discussed together.
I move amendment No. 25:
In page 13, line 8, after "appropriate." to insert "The court may, in the event of a custodial parent being in breach of an access order —
(a) grant joint custody to the parents or
(b) grant sole custody to the parent who is not in breach of the access order.".
In endeavouring to enforce an access order, the lesser the involvement of custodial or other penalties the better. Indeed the lesser the involvement of prisons in the overall area of family law the better. Even in exceptional circumstances I do not contend somebody should be sent to prison for a breach of an access order; rather there should be strong deterrents in place.
I propose that, whenever an access order is breached, the court may decide - reverting to the premise that a child has a right to the company, knowledge of and relationship with both parents - to grant joint custody to the parents, which is one option, or allow the status quo, which is custody being granted to the mother. A court should have the option of granting joint custody to the parents or of granting sole custody to the parent not in breach of the access order, which would be easier to enforce.
Obtaining redress for breaches of agreements under contract law is slow, tortuous and totally unsuited to dealing with breaches of access orders or other matters relating to children's welfare. In practice no sanction is imposed on custodial parents for breaches of access orders, with the consequence that many such orders are totally ineffective. The penalty of imprisonment for breaches of access orders is usually not imposed. In practice judges do not impose a prison sentence on a lone custodial parent.
The Minister contends that the penalty for breaches of access orders should be a fine of £1,500 or 12 months imprisonment. I find that contention quite strange in that, in the course of our previous discussions, she expressed herself unhappy with joint or sole custody as an option in the case of breaches of access orders whereas she says now she wants to have the option of sending a parent, who is in breach of an access order, to prison for 12 months. In such circumstances a child will not have access to the parent in question, in most cases the mother. I suggest that the Minister should not provide for the imposition of a prison sentence but rather consider the option of joint custody - depending on how the court responds - or sole custody which, in most cases, will involve a change of custody from the mother to the father.
The result of the Minister's acceptance of that suggestion would be a more responsible approach by the parent who has custody of the child in allowing access to the other parent, thereby facilitating the overall thrust of the Bill, which is to improve access to and relationship with the noncustodial parent.
I support this amendment tabled by Deputy Neville and await the Minister's response with bated breath in the hope that she will be in generous mood and accept it.
The concept enshrined in Deputy Neville's amendment is a very good one. In essence what he is saying is that, whenever somebody breaches a custodial or visiting order, the imposition of a prison sentence confers no benefit. We should endeavour to insert some provision which will ensure that a court order is adhered to.
I appear to come across all the hardship cases. One man I know very well left the family home and entered into a new relationship having already had a number of children who are now adults, in addition to a teenage daughter, by his first marriage. The court granted him access visiting hours to that daughter. He was very conscientious in his parental duties to her. However, his estranged wife would not co-operate with him in regard to those visiting hours. Usually on a Saturday when he was to gain access to the daughter the mother would have had her taken somewhere else or some other difficulty or excuse would be advanced as to why she was not available. The order of the court was continually ignored by the mother.
The man in question went back to the court on a number of occasions to lodge his complaint about those visiting hours only to be told continually that a new order had been affirmed, which had to be adhered to. Ultimately, on going back to court, the judge said his only option was to put the estranged wife in jail, to which the man concerned replied that he did not want her sent to jail. In that case the court order was in place and there was nothing the court could do about it. The man who could not get access to his child was unfairly treated and left in a terrible position.
Deputy Neville's proposals will ease matters somewhat in that the courts can award joint custody or impose a fine, thereby removing the option of a jail sentence. Nobody would want a jail sentence to be an option in circumstances such as those I have described, but that idea may have arisen in respect of errant fathers. If an errant father was in breach of a court order in relation to visitation rights or whatever, the courts would not have much difficulty in sending him to jail but they would be reluctant to do that in the case of a mother. Is a different approach taken to fathers in such cases? Is there equality of treatment before the courts for the two genders? I am quite sure there is not. The whole thrust of my argument over the past number of weeks is that we must alter our approach to this issue.
In asking the Minister of State to respond to these amendments, I hope we will see a generous spirit and an overriding consideration that if we are to enforce court orders in relation to custody and guardianship, the possibility of a prison sentence will not be an option and that more practical penalties will be imposed.
Amendment No. 25 is, to a large extent, a repeat of an amendment discussed on Committee Stage. The aim of the amendment is that, where the parent who has custody of a child contravenes the terms of an access order, that person should be penalised by the court by making a joint custody order or taking custody from that parent and giving it to the other parent.
The amendment is misconceived for a number of reasons. First, there should not be any question of using the welfare of a child as a means of getting back at one of the parents for the contravention of a court order. It is wrong to suggest that the penalty for breach of a court order should be the loss of the custody of a child in one form or another. I remind Deputies that decisions by courts in relation to custody and access must, under current law, be made on the basis that the welfare of the child is the paramount consideration. The amendment does not reflect that type of framework because it is not child-centred.
Second, the law as it stands is well capable of addressing the situation where the terms of an access order are not being observed by the custodial parent. It is open to either parent at all times to seek the direction of the courts under section 11 of the 1964 Act on any matter affecting the child. The court can vary any orders it has made where there is a change in circumstances. Any court orders made under section 11 or varied by the courts must be made on the basis of the best interests of the child. The courts can do what the Deputies want them to do but only when all the facts have been put forward and having regard to the best interests of the child.
Third, as I indicated on Committee Stage, penalties already exist in law for breaches of access orders and the amendment would add a further layer of penalties for such breaches.
It appears the attempt in amendment No. 29 is to leave the maximum sanctions which exist under the 1986 legislation for breaches of access and custody orders at their current levels and not allow for increases to bring them into line with the present day jurisdiction of the District Court. I do not accept that the message should go out that in serious cases of breaches of custody and access orders, the District Court should be specially limited in relation to the sanctions it can apply. Those sanctions are the maximum the courts can impose. Even if they cannot be invoked often, in exceptional cases such necessary powers may be required. I am unable, therefore, to accept the two amendments from the Deputy.
Does Deputy Neville wish to reply or use the two minutes available to him?
I am using the two minutes available to me. I am disappointed with the response of the Minister of State. The debate on this side of the House has been concerned with respecting the rights of the child who is separated from one or both parents and maintaining contact with both parents on a regular basis. We must allow the courts to determine that matter where access to one of the parents is being refused by the other. Deputy McGrath outlined a case where a father had to abandon his children rather than see the mother of those children go to prison. Most fathers would do that if they were faced with such circumstances. They would not deprive a child of its mother by allowing her go to prison, but that was the option presented to the father in question. He had to choose between sending the mother to prison or walking away from the child and he chose to walk away from the child.
The proposals in these amendments should not be introduced as a sanction. I am not saying the current sanctions should be changed; they should not have been increased. In cases where access is being denied, and in respecting the rights of the child under the UN convention, the courts should have the facility to allow joint custody or, if that is not possible, award custody to either the mother or the father. The courts should be in a position, taking all circumstances into account and in the interests of the child, to change the access order. That would not be a sanction but a solution in the interests of the child and the parent who is not allowed access to the child.
The way in which the Minister of State views Deputy Neville's amendment is important. We do not want to send somebody to jail but we must remind the courts that they have to be in a position to impose some sanction. In the case to which I referred earlier, the courts did not want to send the errant mother to prison, but I wonder if she would have taken a different view if she had been told by the courts that if she did not abide by the court order she would go to prison. It is important for the courts to be reminded that they could impose some other sanction in such cases. That is the tenor of what we have been saying. We are asking the Minister to put other signposts in the legislation, to give the court the option of granting joint custody over the head of a parent who will not obey its rulings. If that were done, errant parents might take a different approach. The other penalties would still stand and could be imposed as a last resort. The problem is that there are no real sanctions at the moment. Therefore, I ask the Minister to soften her approach to this amendment.
In the example quoted by Deputy Neville, the father had the choice of walking away from the child or putting the mother in prison. A third option, which the Deputy did not mention, is for the father to go back to the court and seek a variation of the arrangements which were made in the interests of the child because they are not working.
The gentleman in question went back to the court several times to have the order in relation to visitation hours changed. Each time the mother ignored the order of the court and found some reason for not making the child available. It was not just a question of Saturday afternoon not suiting the mother because the child had horse riding or dancing lessons. The judge then told the father that the only option he had was to send the mother to jail. Had there been the possibility of the judge granting joint custody or granting sole custody to the father, the mother's approach might have changed. However, I do not think the judge thought of that. What we are trying to do is to signal to judges that there are other options.
I want to move away from individual cases, for obvious reasons. In a situation like that, it is up to the parent to put forward his case in court. The judge can award joint custody or otherwise change the custody order. Deputies should bear in mind that fathers sometimes do not turn up to collect their children when expected, and mothers may have arrangements to go to work etc., on that day. Where the arrangements are not working the parents should go back to court and put all the facts before it. All the options mentioned by the Deputies are available to the judge. I am convinced that this is the correct way to deal with such matters, bearing in mind that the rights of children are paramount. We could stay here all day talking about individual cases but this is not the place to solve the problem.
This is the place to solve the problem and it is our duty to do so. I am pleased the Minister has moved significantly from her original position and has accepted that the judge can take a decision to make an order for joint custody or to grant sole custody to the father, as I proposed. That should be written into this legislation as a signal that this is the way to go rather than putting the mother in jail for 12 months as proposed by the Minister. I take exception to my suggestion being regarded as a sanction. It is an option for the court to exercise in the best interests of the child and having heard all the facts. This Bill should signal to the court that when the parent who has custody is brought back to court three, four or five times because the other parent cannot get access to his child which he has been duly granted by the court, it can consider options other than putting a parent in jail for 12 months. The Minister of State has stated specifically that she wants to increase the jail penalty from six months to 12 months. Prison should not enter into this. Although I was tempted to do so, I did not table an amendment to have the option of imposing a prison sentence removed but was happy for the status quo to remain. Increasing the penalty to 12 months is giving the wrong signal to the courts and saying that a custodial sentence for the parent, in 99 per cent of cases the mother, is the way forward. The answer is for the court to grant joint custody to the parents to get over the problem of access or, in extreme situations where the father cannot get access and where it is deemed to be in the best interests of the child, to make an order for the father to have sole custody with access by the mother. The preferred option, if the mother repeatedly fails to allow access, is joint custody. However, the two options should be available in place of the Minister's proposal to send the mother to jail for 12 months.
I move amendment No. 26:
In page 13, lines 9 and 10 to delete "in which the welfare of a child is in question" and substitute "to which section 3 applies".
Amendment No. 26 is a technical amendment which makes clear that the wishes of the child can be heard in all proceedings relevant to section 3 of the Guardianship of Infants Act, 1964. It will also provide that the wishes of the child will be heard in any court, not just cases coming before District and Circuit Courts only. To provide for the wishes of the child to apply to section 3 of the 1964 Act is a clearer reflection of policy.
I move amendment No. 29:
In page 15, to delete lines 25, 26 and 27.
I thank all Deputies for their contributions. Opposition Members were most helpful in their suggestions and I hope they accept we were as helpful as we could be in accepting Opposition views. This was a very important Bill.
I welcome the passage of the Bill, which is important in that it recognises, for the first time, the rights of fathers in 99 per cent of cases as well as those of extended families. This did not arise on Report Stage because we were satisfied with the provisions made, but it is important that grandparents, who often have a special relationship with children, have a right of access as provided by the Bill. I acknowledge the Minister of State's letter to me dated 31 October regarding other problems in the Bill, such as sanction for perjury on the part of a child, on which there was much debate. I note that the Children Bill, 1996, is to be restored and debated from Committee Stage. The Minister of State should take into account our concerns that currently a child of eight to 12 years of age who does not tell the truth in court can be sent away to an institution for a period. I did not table an amendment on this matter because of the Minister of State's letter and because we can debate it fully when we return to the Children Bill, 1996. I thank the Minister of State for introducing this Bill and I also acknowledge the work done by the Minister responsible for this area in the last Government.
