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Dáil Éireann debate -
Thursday, 3 Jun 1999

Vol. 506 No. 1

Protection of Children (Hague Convention) Bill, 1998: Second Stage (Resumed).

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

I am grateful to the House for the welcome it has given to the Bill and for the useful and constructive observations made by Deputies during the debate. In these concluding remarks, I wish to address some of the points raised during the debate.

The international dimensions of child protection are increasingly being acknowledged, whether they arise in the context of runaway teenagers or otherwise displaced children, the cross-frontier exploitation or abuse of children or the breakdown of international marriages. As the preamble to the convention indicates, the provisions of the convention were framed to take into account the United Nations Convention on the Rights of the Child which was ratified by Ireland in September 1992. The UN convention is in essence a bill of rights for children and the Hague Convention of 1996 promises to be one important strand in the legal fabric required for the effective international protection of children.

Deputies Neville and Collins made reference to the Hague Convention on Child Abduction. The Child Abduction and Enforcement of Custody Orders Act, 1991, gives the force of law to two international conventions, namely, the Hague Convention on the Civil Aspects of International Child Abduction and the Luxembourg Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. The conventions provide for the establishment of a central authority in each contracting state to facilitate their operation. The Minister for Justice, Equality and Law Reform operates as the central authority in Ireland. In the case of a child who has been abducted from the State to another country, the central authority is obliged, inter alia, to liaise with its foreign counterpart to locate the missing child. The foreign central authority will also arrange, if necessary, for court proceedings in its jurisdiction to secure the return of the child to Ireland. In the case of a child who has been brought into this country from another country, the central authority will, inter alia, take or cause action to be taken to trace the child and will arrange, if necessary, for court proceedings to secure the return of the child.

Since the Act came into force on 1 October 1991, the central authority has received a total of 570 cases involving 993 children. Of the 570 cases received, 286 involved children abducted into the State from another country and 284 involved children abducted from the State to another country.

It would be a mistake to regard the role of the new convention as being primarily in cases of removal of a child against the wish of a parent – that is very far from being the case. Any advantages the new convention may have in such removal cases are incidental to its main function which is to prevent conflicts of jurisdiction relating to children from arising, to resolve doubts about the law applicable to parental responsibility, to provide for the recognition of measures in a whole host of non-controversial cases and to set up a framework for co-operation between contracting states.

The 1996 Hague Convention will have a very different role from that of the Hague Convention on Child Abduction. The principle purpose of the Convention on Child Abduction is to protect children from the harmful effects of cross-border abduction, usually by a parent, by providing a procedure designed to bring about the prompt return of such children to the state of habitual residence. The role of the new Hague Convention is to prevent problems and conflicts from arising between the authorities in different jurisdictions, to ensure the effective allocation and use of resources and to maximise co-operation between jurisdictions. The two conventions should supplement each other very well.

The new Convention on the Protection of Children will apply in some cases that involve the removal of children from one contracting state to another against the wish of a parent, which do not come within the scope of the Convention on Child Abduction. In the case of a child who is removed from the country of his or her habitual residence to another contracting state and has not yet acquired a habitual residence in the new state, the Convention on Child Abduction may not apply because, for example, the child is over the age of 16 years. Another example is where the non-abducting parent has not been exercising the rights of custody at the time of the removal although he or she objects strongly to the removal. In such circumstances it would be possible to use the new Convention on the Protection of Children. The parent in the state of the habitual residence might already have an enforceable order for custody or delivery of the child or might be able to obtain one quickly in the state of the habitual residence, which would clearly have jurisdiction under the new convention. The order could then be sent for recognition and enforcement under Chapter IV of the new Convention on the Protection of Children to the state where the child is living. Once declared enforceable there, the order could be enforced in the second contracting state as if it had been made by the authorities of that state.

It would, of course, be possible to have cases of overlap between the Convention on Child Abduction and this convention. In such cases it is probable that the Convention on Child Abduction would be the favoured remedy because it is familiar and effective and is designed specifically to deal with cases of unlawful removal. The Convention on Child Abduction requires the central authority, for example, to initiate or facilitate an application to the courts on behalf of the foreign applicant to secure the return of a child who has been unlawfully removed and to provide or facilitate the provision of legal aid and advice in that regard. No such requirement is placed on the central authority under the 1996 convention and it will be up to the applicant to initiate proceedings and to apply for legal aid in the normal way.

Deputies Neville and Shortall made reference to a children's Ombudsman. My colleague, the Minister for Health and Children, indicated to the House, in response to a parliamentary question on 22 April 1999, that it is his intention to proceed with the establishment of a children's Ombudsman and that options are currently being examined. No decision has yet been taken in regard to the powers to be assigned to the children's Ombudsman nor has a timescale been decided.

Deputies Neville and Shortall also made reference to the convention in the context of child abuse. Although the provisions of the 1996 convention are of general application in the context of the protection of children and are geared towards the avoidance of conflicts between courts and other authorities charged with the protection of children, its provisions are not without some strength in the context of the types of child abuse which have come to light in recent times. Chapter V in particular deals with co-operation between central authorities in contracting states and gives them a role in facilitating contact between courts and other authorities charged with the protection of children in their respective jurisdictions.

Article 31 of the convention obliges a central authority, on the request of a competent authority of another contracting state, to assist in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested state.

Article 32 allows a central authority in one contracting state to request the central authority of the contracting state in which the child habitually resides to provide a report on the welfare of the child and to take measures to protect the child. This might arise, for example, in a case where a non-custodial parent, resident in Ireland, became aware that there was a risk to his or her child who is resident with the custodial parent in another contracting state. Supporting reasons would of course have to be given for such a request. In addition, under Article 36 the competent authorities of a state, where measures of protection have been taken in respect of a child, have a duty to inform the competent authorities of a state, to which the child is removed as a result of a change of residence, of any serious danger to which the child is exposed, for example, an abusive parent.

The provisions of the convention will complement the measures being taken by the Government in the area of child abuse as announced on 11 May 1999. A broad package of measures exemplifying the Government's pro-active stance in child abuse cases is the following: an apology on behalf of the State to victims of child abuse; the setting up of a Commission to Inquire into Childhood Abuse; expansion nation-wide of the counselling services available to assist victims of child abuse; the preparation of a White Paper on the mandatory reporting of child abuse; immediate amendment of the limitation laws as they relate to civil actions based on childhood sexual abuse; referral of the question of limitation in other forms of childhood abuse to the Law Reform Commission; and priority advancement of legislation to include a register of sex offenders.

My colleague, the Minister for Education and Science, Deputy Martin, has already announced the membership of the Commission to Inquire into Childhood Abuse, which will consist of Ms Justice Laffoy of the High Court and two respected and experienced professionals from the field of child care and abuse therapy.

Deputies Neville and Shortall made reference to the acquisition of guardianship rights by unmarried fathers. The term guardianship denotes a collection of rights and duties which a person enjoys in respect of a child. Section 6 of the Guardianship of Infants Act, 1964, provides that the married parents of a child are jointly the 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; if not, he can apply to the court under section 6A of the Act, as inserted by section 12 of the Status of Children Act, 1987, to become a joint guardian. The mother of the child cannot exercise a veto on such an application.

The Children Act, 1997, which came into force in January 1998 makes it possible for a father who has not married the mother of the child to acquire joint guardianship rights with her without having to go to court provided both make a statutory declaration to the effect that they have not married each other; declare that they are the father and mother of the child concerned; agree to the appointment of the father as a guardian of the child; and have entered into arrangements regarding the custody of, and as the case may be, access to the child. Such a statutory declaration must be in the form prescribed in SI 5/98.

The Constitution Review Group identified a number of issues under Article 41 of the Consti tution, which concerns the family. Among the issues were an expanded constitutional guarantee for the rights of the child and the relative balance between parental and children's rights. The group, in its deliberations, considered the provisions regarding family and marriage in other constitutions and in the United Nations Convention on the Rights of the Child.

The group pointed 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. The group considered that the focus of Article 41 emphasises the rights of the family as a unit to the possible detriment of individual members and considered 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.

The group recommended the express inclusion of a number of rights of a child, including a right, as far as practicable, to be cared for by both parents and the desirability to put into 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 regarding children the group took into account in particular the various provisions of the United Nations 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.

The Report of the 1996 Constitution Review Group points out that any criticism of the fact that a natural father does not have a constitutionally protected personal right in relation to his child can readily be understood regarding natural fathers who live in a stable relationship with the natural mother or have established a relationship with the child. The report states that:

there does not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links . .

It also states, were consideration to be given to any modification of Article 42.1 regarding the family to expressly include unmarried parents, that:

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.

The Oireachtas All-Party Committee on the Constitution will, in due course, consider the deliberations of the Constitution Review Group.

In so far as custody and access are concerned, the best arrangement for all concerned in custody/access cases is normally the one agreed by both parents without the need for court inter vention. That is a matter of common sense. In the absence of agreement between parents, disputes relating to custody of and access to children are governed by the Guardianship of Infants Act, 1964.

The reality is that courts are, and should be seen to be, a last resort in so far as the settlement of disputes regarding children are concerned. That is why the Children Act, 1997, encourages the use of counselling and of mediation.

In the event of a case going to court, the court will make its decision on the basis of the evidence before it, including the evidence of both parents. What guides the court in making its decision under the 1964 Act are the circumstances of each case and what is best in the interests of the child.

The 1964 Act empowers the court, having considered the evidence, to give such directions as it thinks proper regarding custody-access arrangements. In the absence of agreement between the parents, it is inevitable that the court will have to make hard and difficult decisions based on the evidence before it. If, on the basis of that evidence, sole custody is the best solution in terms of the welfare of the child, the court will make an order giving custody to one parent and access to another. Again, if the evidence is that joint custody is in the best interests of the child, the court will make an order for the parents to share custody.

The Children Act, 1997, requires the court to 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 is inspired by a provision in the United Nations Convention on the Rights of the Child and is intended to direct the courts attention, in exercising its discretion, to the desirability of ensuring that children have ongoing and close contact with both their parents. It is wrong to assume that legislation favours one parent over the other in custody access disputes or that it prevents a court from making an order for joint custody, although there has been a perception that it does. In order to clarify matters the Children Act, 1997, states, for the avoidance of doubt, that a court may award custody of a child to a father and mother jointly.

The courts should not, in my view, 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 should also make mention of the fact that the Children Act, 1997, amended the Guardianship of Infants Act, 1964, to enable certain persons, including grandparents, to apply for an order granting access to a child on such terms and conditions as the court may order. That provision in the 1997 Act was intended to reflect the fact that continued contact with relatives such as grandparents can often be in the child's best interests.

Deputies Higgins and Shortall referred to the delay in bringing forward the Bill. I am pleased to inform Deputies that only one State has ratified the convention to date, while two others have signed it. Consequently, the convention is not in force. On enactment of this legislation, Ireland will be one of the first countries to ratify the convention. It is extraordinary in that context that I, or the Government, should be accused of delay. I suppose the Opposition has to say something though that is not a very good way to proceed.

Deputy Shortall made reference to the ability of the courts to refuse to recognise an order where such order is deemed to be contrary to the best interests of the child. Article 23(2)(d) of the convention would allow the Irish courts to refuse to recognise an order if such recognition is manifestly contrary to the public policy of the State, taking into account the best interests of the child.

Deputy Shortall also referred to Legal Aid Board waiting lists. As Minister with responsibility for the Legal Aid Board, I am aware of the demands on its services. In consultation with the board, I continually monitor the position with regard to waiting times at the law centres operated by the Legal Aid Board. I am aware that waiting times in some law centres are continuing to increase, notwithstanding the allocation of significant additional resources. Where waiting times, for whatever reasons, become excessive, the position is examined by the board with a view to taking remedial action.

The Legal Aid Board has operated a private practitioners scheme in the Dublin area on a pilot basis for some years. I understand that the board intends to extend the scheme on a nationwide basis in the coming months. The private practitioners scheme provides a complimentary legal service to that which is already available from the law centres. The nationwide expansion of the private practitioners scheme, should increase the throughput of legally aided cases and also enable the law centres to devote more resources towards non-District Court matters.

The board operates a policy of providing a priority service in a range of issues which include domestic violence, to which Deputy Shortall specifically referred, child care and child abduction. A substantial number of appointments are given each month on a priority basis. For example, 1,879 of the 8,722 appointments offered in law centres in 1998 were for priority matters. None of those accorded priority were put on waiting lists.

In order to combat the increase in waiting times, I made additional resources available to the Legal Aid Board in 1998 and again in 1999. I increased the grant-in-aid by 15 per cent in 1998 to £9.615 million and, in 1999, I am further increasing the allocation by 24 per cent to £11.953 million. In addition, I have allocated a further £1 million in 1999 for legal services for asylum seekers, bringing the total current allocation to £12.953 million, an increase of approximately 35 per cent over last year. Last July I approved 25 additional posts for the Legal Aid Board. Of these, 17 posts, including five solicitor posts, were for law centres. In addition, I sanctioned the making permanent of six temporary staff, including three relief solicitors.

Deputies Higgins and Shortall referred to juvenile justice legislation. Work on amending and expanding the Children Bill, 1996, which deals primarily with juvenile justice, is almost complete and all parts of the Bill have now been forwarded to the parliamentary draftsman's office where drafting is being given priority.

Given the number of changes to the Bill it would be difficult, if not well nigh impossible, to process it through Committee Stage. Accordingly, the draftsman has been asked to proceed on the basis that a new Bill will be required and, as soon as the drafting has been complete, I intend to ask the Government for approval to publish the new Bill.

In September 1998, the Minister of State in my Department, Deputy Fahey, visited New Zealand and, while there, took the opportunity to study its juvenile justice system, which has a reputation for being innovative and successful, at first-hand. He was particularly interested in the New Zealand system of family group conferencing, both for children who have committed offences and children who may be in need of care or protection. It is generally accepted that the New Zealand system cannot be transported to other countries but Deputy Fahey considered it worth undertaking a total examination of our system in the light of the New Zealand experience to identify the extent to which the ideas underpinning the New Zealand system might be adapted for use in Ireland. Accordingly, proposals for inclusion in the new Bill which I intend bringing to Government will reflect the outcome of that examination. The proposals will, in the main, be concentrated on the use of conferencing as a preventive measure, dealing primarily with children at risk and on expanding the existing family conferencing provisions in the current Bill to include a role for the court.

There have also been major developments, not only in New Zealand but internationally, on the relatively new system of restorative justice and the Bill will seek to reflect that development also. My officials are currently preparing an extensive list of amendments to the Children Bill, 1996. It is hoped to have these amendments ready in the not too distant future.

As Minister for Justice, Equality and Law Reform, I am very happy to recommend this Bill for Deputies' consideration. The Government is acutely aware of the changing face of family life, not alone in Ireland but internationally. There is increasing evidence of parental conflict relating to children and a consequential burden on the children and families involved. The international community has a stake in the outcome of cases involving children which goes beyond its ordinary interest in dispute resolution, extending to the future well-being of citizens, with the attendant financial and human implications. Few clear winners emerge from courtroom battles relating to custody, access and other related matters – battles which are recognised as being among the most unpleasant, difficult and unrewarding aspects of the judicial function. These difficulties are exacerbated in international situations. This convention reflects the intention of those who participated in the Hague Conference to address some of these difficulties. I commend the Bill to the House.

Question put and agreed to.