Vol. 498 No. 5
I move amendment No. 1:
In page 7, line 17, after "include" to insert "the Courts Act, 1996, the Courts Act, 1997, the Courts (No. 2) Act, 1997 (other than sections 3 and 9 thereof) and".
I realise that on Committee Stage the Minister stated it was not necessary to include this amendment but, having discussed it with my advisers, I suggest that the Minister look at it again. Has the Minister changed his view on that matter?
As I indicated on Committee Stage, I have received advice to the effect that there is no pressing need for this amendment. I would be more sympathetic if it related to an issue of substance and, in particular, if its non-acceptance were to have adverse implications for the Bill. This is not the case. However, I reiterate that I will ensure some appropriate adjustment is made in a Bill which would be more suited to this task. I thank the Deputy for bringing this matter to my attention.
I move amendment No. 2:
In page 10, line 18, after "Convention" to insert the following:
"; and
(e) such report (if any) published in the Official Journal of the European Communities on the 1996 Accession Convention as may be prescribed by regulations made by the Minister for the purposes of this section".
I have resubmitted this amendment despite the fact that the Minister felt it was not necessary. I did so to ensure he had a second chance to examine whether it was appropriate to be included in the Bill.
As I indicated on Committee Stage, while I appreciate the good intentions which underlie this amendment, the reality is that it is over two years since the accession convention was signed. At this stage the likelihood of an explanatory report must be remote. The amendment highlights this regrettable reality. For the practical reason that I do not think we will ever have to rely on its provisions, I am not disposed towards accepting this amendment.
I move amendment No. 3:
In page 17, between lines 23 and 24, to insert the following:
"(4) Where by virtue of any enactment (including but not limited to section 39 of the Family Law (Divorce) Act, 1996), a court has jurisdiction to entertain proceedings proposed to be brought against a person outside the jurisdiction, but in the particular circumstances of the case the relevant rules of court (including but not limited to Order 11 of the Rules of the Circuit Court, 1950 or Order 11 of the Rules of the Superior Courts, 1986) do not provide for service of the proposed proceedings or notice thereof out of the jurisdiction against that person, the court may order such service.".
This amendment relates to the introduction of the Family Law (Divorce) Act, 1996. I thank the Minister for his correspondence since I tabled this amendment on Committee Stage. I also thank him for asking the superior courts to have the matter brought before the superior courts rules committee at an early date.
However, in resubmitting the amendment, my understanding is that almost 95 per cent of divorce cases take place in the Circuit Court rather than the superior courts. The Minister has indicated that, under the rules of the Circuit Court, county registrars have powers to issue orders for service out of the jurisdiction and that, as far as he knows, there have not been any problems. However, these rules would only partly include what might emerge under the divorce legislation.
While I accept there have not been problems to date, the divorce legislation was only recently enacted and problems could arise in the future. It would be appropriate to include the Family Law (Divorce) Act in this legislation to ensure problems do not arise concerning the jurisdiction of courts in relation to that Act.
As I promised on Committee Stage, I have made inquiries on the adequacy of the powers available to the Circuit and superior courts to serve documents out of the jurisdiction on any person who is not domiciled in the State. My advice is that, under Circuit Court rule No. 2 1999, Statutory Instrument No. 155 of 1990, county registrars have the power to issue orders for service out of the jurisdiction. By virtue of the Second Schedule to the Courts and Court Officers Act, 1995, such registrars are also empowered to make any order which may be made as of course.
My information is that this provision enables county registrars to deal with the type of situation which the Deputy's amendment seeks to address. With regard to the superior courts, preliminary inquiries do not indicate that problems have emerged to date. However, I have asked that the matter be brought to the attention of the superior courts rules committee at an early date. In these circumstances, I hope the Deputy will understand why I cannot accept the amendment.
I fail to understand why we need the Jurisdiction of Courts and Enforcement of Judgements Bill concerning other aspects of law and why the divorce Act is already catered for under the rules of the Circuit Court and the superior court. It would be appropriate to include this amendment to ensure there are no problems in the future with regard to this specific legislation.
There is no doubt that a large number of cases which will arise under the Family Law (Divorce) Act will involve people living outside the jurisdiction. It is in the nature of marriage separation and potential divorce that people are separated. I am suggesting this amendment in anticipation of future problems. I ask the Minister to take those points on board.
I took this amendment seriously as I do all amendments. My advice is that, as a matter of practice, the power to issue orders for service out of the jurisdiction exists. If a difficulty arose the appropriate forum for amending the position is by rule of court through the Circuit Court rules. No one would suggest that the right way to proceed would be by way of primary legislation. As regards divorce proceedings raised by the Deputy, they would be outside the scope of this legislation. I am assured at a practical level that there is no problem at Circuit Court level concerning this matter.
If a problem does arise, it is possible to provide for it by amendment to the rules of the Circuit Court. That is the best way to handle this. However, the problem does not arise as of now.
