Amendment No. 2 is related to amendment No. 1 and both may be discussed together.
Protection of Children (Hague Convention) Bill, 1998: Report and Final Stages.
I move amendment No. 1:
In page 5, line 6, after "subject" to insert "in particular to Article 23.2 and".
The main drawback in the legislation is that the decisions of foreign courts must be recognised in regard to child welfare but we cannot always be sure that the foreign court's decision is in the child's best interests. Article 23.2 gives some protection regarding the cases where recognition can be refused and it seems appropriate that the courts should be required to have regard to this. On Committee Stage, the Minister said I was trying to qualify the convention but I was merely trying to highlight the relevant section and I ask the Minister to consider this again.
Amendment No. 2 states:
In page 5, between lines 20 and 21, to insert the following:
"(c)For the purposes of the Convention any requirement which is not in the opinion of the court in the best interests of the child shall be deemed to be manifestly contrary to public policy.”.
This is designed to copperfasten the objective of amendment No. 1. The Minister accepted on Committee Stage that under the convention an Irish court could be asked to decide something which was not in the best interests of the child. We are seeking to ensure that this is safeguarded as far as possible. Has the Minister reconsidered this point?
Amendment No. 1 would require the District Court to have regard "in particular to Article 23.2" of the convention in determining whether to recognise or enforce a measure taken by a competent authority in another contracting state under section 3(2)(b). Section 3(2)(b) already requires the District Court to exercise its jurisdiction pursuant to Chapter IV of the convention, which will have the force of law in the State by virtue of section 2. Chapter IV comprises Articles 23, 24, 25, 26, 27 and 28. Consequently, it is clear that the basis for the exercise of the court's jurisdiction in such cases is to be found in those articles, including Article 23.2.
If I were to accept the amendment the effect could be that it would require the court to exercise its jurisdiction by reference to Article 23.2 above and beyond the provision in the Articles to which I have referred. This seems to be an attempt to qualify the convention and on that basis the amendment is not acceptable.
The words "manifestly contrary to public policy" in amendment No. 2 are to be found in two separate Articles, namely Articles 22 and 23. Article 22 enables the court to refuse application of the provisions on applicable law if application would be manifestly contrary to public policy, taking into account the best interests of the child. Article 23d addresses a separate matter. It enables a court to refuse to recognise a measure taken by a court or authority in another contracting state of such recognition as manifestly contrary to public policy, taking into account the best interests of the child. If the court here, therefore, is asked to consider the “manifestly contrary to public policy” exception in the convention as specified in those Articles, it is required to assess it, taking into account the best interests of the child. If the court is satisfied that recognition is contrary to the best interests of the child then it has jurisdiction to refuse recognition under the convention. Section 2 gives the force of law to the provisions of the convention and this includes Articles 22 and 23.
This issue raised by the Deputy is in part already provided for in the convention and it will be part of our domestic law by virtue of section 2. However, the amendment appears to direct our courts to go further than is provided for in the convention and to allow the courts to refuse recognition of a foreign order in circumstances other than those provided for in Articles 22 and 23.
To achieve its purpose the convention obliges contracting states to accept the principle that the authorities in all contracting states are equally capable of ensuring a fair hearing to the parties involved and a skilled and humane evaluation of the child welfare issues involved. It may be that in certain cases the jurisdiction of the Irish courts is ousted in favour of the jurisdiction of authorities in other contracting states under the convention. Consequently, it will not be possible for Irish courts to conduct an inquiry into the welfare of the child in all such cases, the principle being that the authorities in the country with which the child has a closer connection, usually the country of the child's habitual residence, are better placed to do so. This is not unusual because it can and does arise under another Hague Convention, the Hague Convention on Child Abduction, which has been part of our law since 1991. That Act, in this connection, has on several occasions been upheld by decisions of the High Court and the Supreme Court. The Bill, for its part, has been examined and approved by the Attorney General.
The Convention on the Protection of Children requires that rights conferred by virtue of the law applicable in a contracting state and measures taken by authorities in a contracting state shall be recognised by operation of law in all other contracting states. The virtues of such a system of automatic recognition are simplicity and certainty in the context of orders relating to the welfare of children. It is based on the assumption of mutual trust that the courts, exercising jurisdiction under the convention, will do so responsibly. This is not an absolute rule and there is a degree of flexibility enshrined in the relevant provisions. Article 23, for example, specifies six instances where recognition may be refused. Most notably, these include an exception where recognition is manifestly contrary to public policy in the requested state, taking into account the best interests of the child.
I do not propose to accept these amendments because they would appear to qualify the convention in a way which I suggest is neither necessary nor permissible.
I move amendment No. 2:
In page 5, between lines 20 and 21, to insert the following:
"(c) For the purposes of the Convention any requirement which is not in the opinion of the court in the best interests of the child shall be deemed to be manifestly contrary to public policy.”.
We now move to amendment No. 3. Amendment No. 7 is related and it is proposed that we discuss amendments Nos. 3 and 7 together, by agreement.
I move amendment No. 3:
In page 7, between lines 2 and 3, to insert the following:
"(4) Sections 33(1), 33(2) and 45 (which provisions relate to the conduct of family proceedings) of the Judicial Separation and Family Law Reform Act, 1989, shall apply and have effect in relation to an application under subsection (1)(b).”.
The purpose of this amendment is to provide that the hearing of proceedings under subsection (1)(b) of section 4 of the Bill will be, as in the case of family law proceedings in general in our courts, as informal as practicable consistent with the administration of justice and that neither judges nor legal representatives will wear wigs or gowns.
The amendment comprehends two separate types of proceedings under section 4 of the Bill. First, it applies to those proceedings in our courts for the recognition and enforcement of measures taken in other contracting states which relate to the welfare of children. Second, it applies to proceedings which empower our courts to make a finding on the suitability of a parent to exercise access to a child in another jurisdiction. Such a finding may be admitted in evidence and considered by the courts of another contracting state which is determining the application for access to the child in accordance with Article 35.2 of the convention.
The amendment draws on section 45 of the Judicial Separation and Family Law Reform Act, 1989, which relates to family law proceedings in the District Court and it draws on sections 33(1) and 33(2) of that Act which deals with cases heard on appeal from the District Court in the Circuit Court. The effect of those provisions is that the proceedings in question must be as informal as possible and that the judge and legal representatives must not wear wigs or gowns.
The proceedings include the Guardianship of Infants Act, 1964, the Status of Children Act, 1987, the Child Care Act, 1991, the Judicial Separation and Family Law Reform Act, 1989, the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996. Since most of the proceedings to which the convention will apply are also governed by one or more of those Acts, the scope of the amendment is limited to those cases specified in subsection (1)(b) which confer a new jurisdiction on the Irish courts.
The amendment arises from further consideration of a point raised by Deputy Shortall on Committee Stage and reflects the considerations which underpin the first part of her amendment No. 7. Incidentally, I thank Deputy Shortall for bringing that matter to my attention. She may wish to consider whether her own amendment could be withdrawn on the basis that my amendment addresses in large part the point of her amendment.
The other effect of her amendment No. 7 is that proceedings under the Bill would have to be heard otherwise than in public. However, this could have some unintended consequences if it were to be accepted. Take, for example, the case of a custody dispute being dealt with by the court under the Guardianship of Infants Act, 1964. If the child is habitually resident in a contracting state to the Hague Convention, the court's jurisdiction here will be governed by the 1964 Act and by Article 5 of the convention, which is given the force of law by section 2 of the Bill. In contrast, it could arise that the court might be asked to exercise its jurisdiction under the Act of 1964 in circumstances which are not covered by the convention. This might arise, for example, in the context of a dispute between parents where the father is resident in the state and the mother and child are resident in a contracting state. Paragraph 39 of the explanatory report, copies of which were placed in the Oireachtas Library, specifically envisages such a situation. In such a case, the court would exercise its jurisdiction outside the provisions associated with the Bill. The court would, under the proceedings in law which operate in relation to the 1964 Act, have discretion as to whether to hear the proceedings in public.
The effect of the Deputy's amendment, therefore, could be to create different rules depending on whether the child in question was habitually resident in a contracting state. That is something we should avoid. The amendment could also prejudice the operation of the convention in certain cases. Article 36 of the convention empowers the authorities in one contracting state to notify the authorities in another contracting state that a child who is seriously at risk has moved from its jurisdiction to that other contracting state. In that context, it may be necessary for a health board here, for example, to institute court proceedings to compel a person to disclose the precise whereabouts of the child. The exercise of such a jurisdiction would be permissible under the provisions of Article 11 of the convention. In that context, it might be advantageous for the proceedings to be held in public. The amendment Deputy Shortall has put forward would preclude such a public hearing. I accept that would not be the intended consequence of the amendment put forward by Deputy Shortall but that would be the effect of it. For these reasons, I cannot accept the second part of the amendment.
I move amendment No. 4:
In page 7, line 9, after "Convention" to insert "dated the 15th day of January, 1997".
For clarity and information purposes, this is the date of the explanatory report. On Committee Stage the Minister said it was not the practice to insert the dates but that is not entirely true as the dates of the official journal report are included in the Jurisdiction of Courts Act, 1998. The Minister might consider accepting the amendment in the context of this legislation.
I appreciate that this is a minor drafting amendment only in that it merely provides that the date of the official explanatory report on the convention that was prepared for the Hague Conference on Private International Law should be mentioned in section 5(2) of the Bill. That is the section which contains a reference to the report. However, my information is that it is not the practice to give such dates in legislation. I am guided, incidentally, by the draftsman's practice in this area which seems reasonable given that there is only one explanatory report involved and the date is not of any particular significance. In the circumstances, I cannot accept the amendment.
I move amendment No. 5:
In page 8, between lines 34 and 35, to insert the following:
"(4)The Central Authority shall take steps to inform the public of its services.".
This is a reasonable and straightforward amendment. The intention is to ensure that the authority takes appropriate steps to publicise itself. On Committee Stage the Minister, while saying it was not necessary, said there was an acceptance of the principle involved. Has he reconsidered the matter?
The numerous functions of a central authority under the convention are specified in various articles of the convention. In so far as the amendment that is suggested by Deputy Shortall is concerned, Article 30 of the convention is relevant. It requires central authorities to co-operate with each other but also to promote co-operation among the competent authorities in their states to achieve the purposes of the convention. The latter provision is one that will be of significant practical importance because it will require the central authority in the state to inform various authorities of its functions and to ensure that in that connection there is delivery of service as may be necessary. This may extend to such matters as the need to provide a report on the situation of a child or to consider the need to take measures for the protection of the person or property of the child. The measures of protection may include the placement of, or provision of care for, a child. These are matters which are fundamental to the operation of the convention.
It will be the duty of the central authority under the convention to engage in communications largely on an inter-central authority basis and, in the state, on an inter-institutional basis. It follows from this that the central authority, as a matter of course, will be engaged directly or indirectly in information exercises as provided for in the convention. As regards making it mandatory on the central authority to inform the public about its services, there is no need for that in the Bill. I am of the view that we can rely on the central authority to use its own good sense and discretion in the light of experience as to whether and what type of information needs to be given to the public about its services. In those circumstances, I do not propose to accept the amendment which is suggested.
I am sure the Minister, like the rest of us, is aware of a large number of public services that are available but of which the public is not well aware. Is it his policy to refuse to accept amendments, regardless of how sensible they might be? I will not press the amendment.
I move amendment No. 6:
In page 8, between lines 34 and 35, to insert the following:
"(4)A solicitor shall not provide a service which may be obtained free of charge from the Central Authority without first informing the client that the service is so available.".
Again, this is an eminently sensible amendment. Solicitors should inform clients that a free service is available before taking expensive international proceedings. This amendment is partly related to amendment No. 5. The matter of solicitors not informing clients about the availability of free services arose previously in respect of the child abduction central authority and the problem was never rectified.
Clients who take the type of proceedings in question are usually in a very emotional and traumatic state and they are desperate to seek help and legal advice. It is only right and proper that solicitors should be obliged to inform clients that there is a free service available because such legal work can be extremely expensive for clients and highly profitable for solicitors. The public should be made aware that a free service is available and solicitors should be obliged to notify their clients of its availability.
The intention behind the amendment is to protect the public interest and I am anxious to know whether the Minister has had an opportunity to consider its implications. The amendment is sensible and straightforward. It will not give rise to difficulties but will protect members of the public who may find themselves in a vulnerable position and ensure that they are not ripped off by solicitors. People have a right to be informed by solicitors of the existence of a free service.
Deputy Shortall made a number of good points. However, her amendment appears to be predicated on the assumption that solicitors can exercise the kind of functions which are confined to the central authority under the convention. Those functions cannot be exercised by solicitors and the Deputy's amendment is, therefore, deprived of any meaning. In those circumstances, I cannot support the amendment.
I move amendment No. 8:
In page 11, lines 23 and 24, to delete "the Protection of Children (Hague Convention) Act, 1999" and substitute "the Family Law (International Protection of Children) Act, 2000".
The existing Title of the Bill is somewhat unwieldy and the alternative proposed in the amendment would be an improvement. The Minister accepted on Committee Stage that the Title is unwieldy and I wonder if he has considered changing it.
The attempt in this amendment to change the Title of the Bill so that it would come within the group of enactments designated as Family Law Acts is somewhat misconceived. Existing legislation which gives the force of law to international conventions or gives effect, in one way or other, to international conventions, although they may relate to family law matters in full or in part, does not fall within the series we know as Family Law Acts. I do not think we should depart from that practice and, for that reason, I am not in favour of the amendment. I am of the view that the existing Title conveys properly the subject matter of the Bill.
Amendment No. 10 is an alternative to amendment No. 9 and both may be taken together by agreement.
I move amendment No. 9:
In page 11, to delete lines 29 to 31 and substitute the following:
"(3)The Courts (Supplemental Provisions) Acts, 1961 to 1999, and sections 1, 3, 4, 6, 8, 11 and 12 may be cited together as the Courts (Supplemental Provisions) Acts, 1961 to 2000, and shall be construed together as one.”.
This is a technical amendment to the collective citation. That citation as it stands is predicated on the passage of the Bill in 1999, hence the reference to 1999 in the citation. A formal amendment is now necessary to change the reference to 2000 and there is a difference in style in the new collective citation.
In so far as amendment No. 10 is concerned, while in the ordinary course there is merit in construing sections of legislation in courts Acts with relevant provisions in other items of legislation for the purpose of construction and collective citation, I am advised that the amendment sought by the Deputy is not required. This is because the Courts (No. 2) Act, 1991, deals only with criminal law matters whereas the Bill deals only with civil law matters. Accordingly, I am not in a position to accept the amendment.
The Bill will be sent to the Seanad.