Seanad Éireann debate -
Thursday, 27 Jun 1974

Vol. 78 No. 9

Maintenance Orders Bill, 1974: Second Stage.

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

Minister for Justice (Mr. Cooney)

This Bill, which makes provision for the reciprocal enforcement of maintenance orders as between ourselves and Britain and Northern Ireland, is a measure of social legislation for which there is at present an urgent need. As such it has been welcomed by the public generally and members of all parties. It was dealt with sympathetically and constructively by the Dáil and I know that Senators, too, will approach it on the basis that it endeavours to deal in a positive and practical way with one of the many problems in the field of family law. This is a branch of the law which is of special concern to me as Minister for Justice and I consider it to be one of my main tasks to effect substantial and overdue improvements in it during my term of office. In this connection I have arranged that the 19th interim report of the Committee on Court Practice and Procedure, on the subject of desertion and maintenance, will be examined as a matter of urgency by the various Departments concerned with a view to submitting the various recommendations in the Report to the Government and the preparation of legislation on the basis of the Government's decisions.

The Bill is confined to the particular problem of making the necessary provision to enable effect to be given in the State to a proposed Agreement for the reciprocal enforcement of maintenance and affiliation orders as between the State and Britain and Northern Ireland. It does not propose to make any changes in the law other than those necessary to implement that Agreement. I decided at an early stage that to try to go any further would inevitably delay the preparation and, possibly, the passage of the Bill through the Oireachtas. I would have liked to have seen, for example, a provision for attachment of wages in the Bill. Such a provision would have to apply generally and it must and will, be considered in a broader context.

The proposed Agreement is intended to be an interim one pending the accession of the new member States to the EEC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. This Convention, which applies to maintenance and affiliation orders, as well as other civil and commercial judgments, came into force between the six original member States of the EEC on February 1, 1973. Negotiations for the accession of the new member States are at present proceeding but it is not expected that accession can take place before 1976.

The Agreement will follow closely the recognition and enforcement provisions of the EEC Convention, and thus provide an opportunity to see how the Convention will operate in practice between the State and Britain and Northern Ireland in relation to maintenance orders. For the same reason, the text of the Bill also follows these provisions of the Convention, as far as practicable and appropriate. For ease of reference, the Bill contains marginal references to the relevant Articles of the Convention. In addition, an English translation of these Articles has been given in the Appendix to the explanatory memorandum circulated with the Bill when it was introduced in the Dáil. I trust that Senators will find this helpful in their consideration of the Bill.

In regard to the proposed Agreement, the negotiations are progressing very satisfactorily and I hope that they can be finalised at the next meeting due to be held towards the end of July. I expect that, if the Bill is passed by the Oireachtas before the Adjournment, it should be possible to have the Agreement signed during the Recess. The enforcement arrangements would then be brought into operation on a date agreed between the two Governments following the making of a commencement order under section 2 of the Bill and, on the British side, an Order in Council applying their Maintenance Orders (Reciprocal Enforcement) Act, 1972, with the necessary adaptations, to maintenance orders made in the State.

The operative provisions of the Bill are contained in Part II. First, provision is made for the recognition and enforcement in the State of British and Northern Ireland maintenance orders. That is in sections 6 to 16. Secondly, jurisdiction is conferred on our courts to hear and determine maintenance and affiliation proceedings against a defendant residing in Britain or Northern Ireland and provision is made for transmitting our maintenance orders there for enforcement. These provisions are in sections 17 to 19. The remaining sections of the Bill relate to mutual co-operation between courts in obtaining evidence for the purposes of maintenance or enforcement proceedings in the respective jurisdictions and provide for the admissibility as evidence in our courts of certain documents and statements.

I shall deal first with the procedure for the recognition and enforcement in the State of British and Northern Ireland maintenance orders. This procedure has been made as simple and informal as possible, but with full regard to the need to respect the basic rights of both parties. A request for enforcement, together with the necessary supporting documents, will be received by the Master of the High Court from the appropriate authority in the reciprocating jurisdiction concerned, that is to say, from the Secretary of State. The Master will consider the documents privately and, on the basis of such consideration, he will decide whether or not to order the enforcement in the State of the maintenance order concerned.

He can only refuse enforcement if it appears to him, from the documents or from his own knowledge, that recognition and enforcement would be prohibited on the grounds specified in section 9. Those grounds are that recognition or enforcement would be contrary to public policy; that, where the maintenance order was made in default of appearance, the defendant was not served with notice of the institution of the proceedings in sufficient time to enable him to arrange for his defence, and, finally, that the order is irreconcilable with a judgment given in a dispute between the same parties in the State. These are taken from Article 27 of the EEC Convention.

Where the Master decides to grant enforcement, he will make an enforcement order. That order will, as it were, "naturalise" the maintenance order concerned. It will then be treated for enforcement purposes as if it had been made in desertion or affiliation proceedings, as the case may be, in the District Court. The maintenance debtor—the husband or putative father, as the case may be— must be served with a notice of the making of the enforcement order. The notice must include a statement of his right of appeal against the enforcement order, and other relevant information. The Master must notify the maintenance creditor of his decision, whether or not he decides to enforce the order.

Both debtor and creditor are given a right to appeal to the High Court. There may be a further appeal to the Supreme Court, but only on a point of law. Senators will observe that there is no requirement that the maintenance debtor be notified of the receipt by the Master of the request for enforcement and that the debtor will not, in fact, be entitled to make any submissions on the request at that stage. This is in accordance with the procedure laid down in the EEC Convention. Substantial safeguards are, however, built into the system to ensure protection of the debtor's rights. He will, in the first instance, have been served with notice of the original proceedings taken in the other jurisdiction. These notices will be received by the Master of the High Court from the appropriate authority and the Master will have them served through the local district court clerk. The maintenance debtor will, thus, have had an opportunity to defend the British or Northern Ireland proceedings in person, or to representations or submit evidence to the court. If a maintenance order is made, the debtor will be notified directly by the district court clerk by registered post. It will be then open to him to appeal against it in the ordinary way in the jurisdiction concerned. Finally, where the Master makes an enforcement order, the debtor will have one month after he has received notice of it to appeal to the High Court.

The actual enforcement of the enforceable maintenance order will be effected by the District Court in the same manner as it would enforce a maintenance or affiliation order made by itself. However, in order to strengthen the effectiveness of the enforcement machinery two innovations have been introduced. First, the Bill requires that all payments due under these maintenance orders must be made to the local district court clerk for transmission to the maintenance creditor. Secondly, the district court clerk is being empowered to initiate enforcement proceedings at the request of the maintenance creditor.

I now turn to what is, perhaps, from our point of view a more important aspect of the proposed agreement namely, the enforcement in Britain and Northern Ireland of maintenance orders made in the State. The legal basis for this will be, as I have said, the British Maintenance Orders (Reciprocal Enforcement) Act, 1972, as it will be adapted by an order in council. What the Bill does in this respect is to confer jurisdiction on our courts to make maintenance orders where the defendants are in Britain or Northern Ireland, and also to provide machinery for the transmission of these orders to the appropriate authorities there for enforcement in accordance with the provisions of the 1972 Act.

The procedure to be adopted by a deserted wife whose husband has gone to England will be as follows. She will go to the local district court clerk and apply for a maintenance order in the ordinary way. Notice of the institution of the proceedings will then be sent by the clerk to the Master of the High Court under section 17 (3). The Master will transmit the notice to the appropriate authority for service on the defendant. The court here will in due course hear the case and, if it makes a maintenance order, it will be sent for enforcement through the same channels. The proceedings will, therefore, be as simple and as inexpensive for the wife as they would be if the husband were within the jurisdiction. Incidentally, there appears to be some doubt as to whether the Bill applies to maintenance orders made by the High Court in desertion and affiliation cases. I can assure the House that it applies to all such orders whether made by the High Court or by the District Court.

Finally, the Bill contains some provisions in relation to evidence. These deal with obtaining evidence from a person residing in Britain or Northern Ireland for the purposes of court proceedings in the State under the Bill, and the taking of evidence in the State for the purpose of British or Northern Ireland proceedings. These provisions will enable the courts concerned to have the evidence of persons who cannot, or will not, travel to attend the court proceedings but who are prepared to give evidence at a local venue.

Provision is also made, in section 22, for the admissibility in court proceedings here of the various documents which must be submitted in connection with the recognition and enforcement of maintenance orders in the State, of evidence taken in Britain and Northern Ireland at the request of courts in the State and of statements contained in documents of a kind likely to be produced in maintenance or enforcement proceedings under the Bill. This section endeavours to face up realistically to the problems that would arise if the rules of evidence appropriate to circumstances where both parties live within the jurisdiction were to be applied to maintenance proceedings where one of the parties is living and working in another jurisdiction and may not be able to attend the proceedings here. I believe it succeeds in this and that the admission of these statements and documents, subject to the various safeguards provided, will help in enabling the court to ensure that justice is done to both parties in each particular case.

In conclusion, I should like to emphasise that I am presenting the Bill as a measure containing the technical legal provisions necessary to authorise machinery to be established on our side for the reciprocal enforcement of maintenance orders. While I am sure that Senators are in sympathy with the general aim of the Bill, they may, perhaps, wish to make suggestions for its improvement. I can assure them in advance that I shall consider any such suggestions very carefully. No measure of this kind can provide a perfect solution to the problems it is designed to deal with but I think I can reasonably claim that it will assist in a worthwhile way the deserted wives and unmarried mothers who at present have no means of enforcing their rights against men who have gone to Britain and the North and that its enactment will be a deterrent to those men who may feel tempted to ignore their responsibilities in this regard.

I commend the Bill to the House on this basis and ask that it be given a Second Reading.

Mr. Brosnan

As the Minister stated, this is important social legislation and it is not alone urgent and desirable but it is also necessary in view of our accession to the EEC. Of course the real and the practical aim of the Bill is a worthy one and one which commends itself to everybody in this House and, in fact, to all members of the community and that is to set up legal machinery to compel deserting husbands and putative fathers who have fled from the jurisdiction to carry out their legal and moral obligations to the people whom they have wronged, namely, the deserted wives or the illegitimate children, by providing for them the support and maintenance to which they are legally and I submit morally entitled.

However, I have grave reservations about the ability of this measure and the machinery which the Minister proposes to set up under this Bill to deal adequately with these problems which we are all anxious to have solved. This expression of doubt on my part is no reflection on the Minister, his advisers or his Department. It arises from the nature and the difficulties of the problem which this Bill sets out to resolve. I agree that some measure of co-operation and reciprocity is essential if these difficult problems are to be tackled at all.

To some extent this Bill and the legal machinery which it is proposed to set up under it are unique and largely experimental. The Minister is attempting to legislate to deal with a social and human problem. For that reason the reciprocity sought under this measure is essential. It is difficult to establish this co-operation, this mutual co-ordination between the courts of this country and the courts of Britain and Northern Ireland. Some degree of co-operation does at present exist between the courts of these three countries in other fields such as criminal law and as between the revenue departments and the social justice departments. The machinery governing these areas is highly complicated and highly technical. The difficulty of obtaining a large measure of co-operation of this nature has been exemplified and demonstrated recently in the failure of the legal experts of this State and Great Britain when they met to discuss the area of common law enforcement. They failed to agree on what practical steps could be taken to deal with this problem. The success of the Bill depends on the effectiveness of the machinery to trace the culprits, the deserting husband or the putative father, in order to make them amenable to the provisions of this Bill and to enforce maintenance orders against them.

The maintenance order in itself is useless unless it can be enforced. As the Minister is aware from his practical experience as a solicitor even when one gets a maintenance order or any other order of our courts against a person residing in our own jurisdiction, it is difficult and sometimes impossible to enforce that order. Many Senators are aware that Garda barracks throughout the country have sheafs of execution orders which they do not or cannot execute.

The enforcement of a maintenance order against the type of person who comes under this Bill is more difficult as these persons are usually will-of-the-wisps, having injured their wives in the case of deserting husbands or another woman in the case of a putative father, and usually abscond out of the jurisdiction of this country. They are to be found in the ghettos of London, Birmingham or Manchester or some other large centre in Great Britain. They make a point of remaining anonymous. They often commit the same offences against other females and that further actuates them to conceal their identities. They become adept at escaping the law and evading any inquiries from either their wives at home or the female whom they got into trouble or the relatives of that female. They become artful dodgers. Some Irish labourers who go abroad are expert at dodging the revenue commissioners there. When income tax becomes due in one job they leave and take up another job. This can go on apparently for years. Much the same applies to the type of person the Minister hopes to catch and to make amenable to the law under this Bill.

When a maintenance order is made against these people and enforced they usually do make a number of payments. Then the payments cease and they disappear and this complex procedure has to be gone through once more. Even with the full co-operation of the gardaí, the employers, the revenue authorities, labour exchanges, social workers and other voluntary bodies working in England it is doubtful if their combined efforts would be adequate to deal with this type of person and bring them to justice.

This legislation is not intended to come fully into force in relation to the EEC until 1976. Legislation of this nature did come into force in the six member countries of the Common Market in February, 1973. I should like the Minister to inform us how this legislation is working in those countries, and if it was effective enough to deal with these problems. Perhaps when replying he would inform us.

Turning to the text of the Bill, as the Minister stated in his speech, the provisions are informal and flexible. This is expected in a Bill which is, to a large extent, novel and experimental. Many of the provisions particularly those dealing with the functions and powers of the Master of the High Court and of the clerk of the District Court are new and so are the provisions dealing with the obtaining and the admissibility of evidence and, in particular, the admissibility of documentary evidence. This fresh, informal approach is welcome if it helps to achieve the worthy objectives of this measure.

I should like to make some tangible comments on a number of the sections. In section 4 I note that this Bill, when it becomes an Act, will not have effect in relation to arrears accrued before the commencement of the operation of the Act. That seems to me to be strange. I fail to appreciate why that should be so. I would suggest to the Minister that under this Bill when it is enacted creditors should be entitled to seek arrears for a period of six years as in the Contracts Act. In section 9— and part of this is inexplicable—we read:

A maintenance order made in a reciprocating jurisdiction shall not be recognised or enforcable if, but only if—

(a) recognition or enforcement would be contrary to public policy.

I should be grateful to the Minister if, when replying, he would inform me what situation is envisaged under section 9 (a). How could the attempt by a maintenance creditor to obtain a maintenance order and the enforcement of that order be contrary to public policy? Section 9 (b) I understand and appreciate but I have some doubts about section 9 (c) which states that this order cannot be recognised or enforced if

it is irreconcilable with a judgment given in a dispute between the same parties in the State.

I should like the Minister to enlighten me on what is intended by these two subsections:

In section 14 (8) (a) we read:

Any sum payable by virtue of an enforceable maintenance order shall, notwithstanding anything to the contrary therein, be paid by the maintenance debtor to the district court clerk for the district court area in which the debtor for the time being resides for transmission...

There is no time limit on the obligation on the district court clerk to pay or to transmit any payment he receives to the maintenance creditor. I wonder if the Minister would consider putting in a time limit because sometimes District Court clerks, like ourselves can take things easy while the unfortunate maintenance creditor may be badly in need of the money which is being held on her behalf.

I welcome the flexibility in relation to the obtaining and the admissibility of evidence. However, one thing did occur to me and it is a suggestion which I would make to the Minister; that is that in paternity suits evidence of blood tests and other medical evidence be admissible in order to establish the paternity of an illegitimate child. I understand that this is now common practice and medical opinion is that in most cases this evidence is conclusive. I would ask the Minister to consider that point.

As I said at the outset I have serious reservations about the success of this Bill and about its workability. However, as the Minister has stated in his opening speech, it may be a deterrent to errant husbands and prospective putative fathers of illegitimate children and it may be of some consolation to deserted wives and illegitimate children to know that there is some machinery now on the Statute Book to which they could resort in circumstances which might prove successful in a small number of cases. However, I look with hope and with confidence to the success of the Bill and I wish it well.

Mrs. Robinson

I should like to extend a welcome to this Bill as a limited but constructive step in trying to reform our family law and bring it into line with the demands of social justice and the aspirations of the less privileged people in the country. It has to be a qualified welcome, however. Although this Bill has solved one of the intractable problems of recent times, it is of very limited application. Paradoxically, it very largely depends on English law and it puts an English deserted wife in a better position than her Irish counterpart. I will elaborate on that later, because there are a number of paradoxes which arise from the fact that the Minister has settled for this more limited measure. His reason for so doing is in order to get the Bill through at this stage to allow the agreement between this country and Britain on recognition and enforcement of maintenance orders to be finalised, hopefully in July.

In view of the Minister's Second Reading speech, which was more detailed and open than other speeches that are sometimes made in introducing Bills to this House, I do not want to appear to be carping or to be criticising irritably a measure which tries to improve the position relating to family law. Any comments that I make are an attempt to be constructive and to improve the Bill itself—if that is necessary or possible—and to put whatever pressure can be put on the Minister and public opinion generally for a vastly accelerated attempt by us, as a country, to meet the urgent social problems in this whole area of family law. I note that the Minister made reference in the first paragraph of his speech to the recommendations of the Committee on Court Practice and Procedure in its 19th interim report. He did so in somewhat general terms and I should like, if he is amenable to it, to seek more specific answers. He said:

I have arranged that the 19th Interim report of the Committee on Court Practice and Procedure, on the subject of desertion and maintenance, will be examined as a matter of urgency by the various Departments concerned with a view to submitting the various recommendations in the Report to the Government and the preparation of legislation on the basis of the Government's decisions.

With respect to the Minister, I would hope that he can comment in more specific terms on the recommendations of this report.

We must approach this subject with a knowledge of the reality of Irish family life at the moment. One way in which we can assess this reality is by way of careful studies such as the exploratory study which was made by Kathleen O'Higgins on behalf of the Economic and Social Research Institute entitled Marital Desertion in Dublin. It makes very sad reading, particularly Section V, headed “Marriage Breakdown and the Law in Ireland.” On page 123 she states:

Legislation in the area of marriage breakdown in Ireland have done almost nothing in the past 70 years.

She goes on to give a survey of the position. At a later stage in that same chapter, at page 126, she analyses one of the most crucial problems in marital desertion, namely, the lack of proper legal safeguards and processes to resolve the hardships in this area. She emphasises the need to resolve one of the most serious problems which is totally outside the present scope of this Bill:

Another aspect of desertion cases which requires some legal intervention is the right of the husband to reappear at any time. Some women live in dread of this event when the husband will temporarily resume his role as head of the household as his legal right. He more than likely will also continue his previous behaviour pattern, possibly of drunkenness and violence. The jurisdiction of the court is based on The Married Women (Maintenance in case of Desertion) Act, 1886, as amended by section 18 of the Courts Act, 1971. The court under that Act cannot properly protect a wife who has been the victim of physical cruelty as the Act was originally designed to deal with desertion only.

I hope that the Minister would agree that it is this need for protection of the spouse—protection from physical or mental cruelty, from actual beating, from the drunken behaviour of a husband either returning after a desertion or even when it has been what might be termed technical desertion that poses one of the most serious problems. We must be faulted very seriously for not having provided the necessary legal mechanisms and in particular a jurisdiction in the district court to protect the deserted wife.

Therefore, I should like to ask the Minister for some more specific indications of the extent to which he has accepted the specific recommendations of the Committee on Court Practice and Procedure and the sort of time scale he envisages for getting a Governmental decision to implement the necessary legislation? For example, Paragraph 44 of the 19th interim report of the Committee on Court Practice and Procedure reads:

The existing law should be amended to provide that the spouse may be ordered to pay to the other spouse by means of maintenance order for the support of that spouse and the dependent children such sum as the court may order when it is satisfied that there has been a family default on the part of the spouse against whom the order is sought. Family default should be defined as

(a) actually abandonment of the family home, the other spouse and the dependent children and failure to maintain them or

(b) such ill-treatment, physical or mental, or other misconduct on the part of one spouse as would reasonably justify the other in leaving the family home and a failure by the spouse in the family home to maintain the other or

(c) such ill-treatment, physical or mental, or other misconduct on the part of one spouse as would reasonably justify the other in leaving the family home although she or he does not do so and a failure by the spouse who earns to maintain the other or

(d) failure of the spouse who is responsible for the support of the family to provide a reasonable standard of living for them having regard to the means and earnings of that spouse.

The important factor here is that the proposed extension of jurisdiction to award maintenance orders would put the Irish deserted wife more on a parity with the English wife who has been deserted. One of the points I was making earlier is that, paradoxically, because of the far better system of English law allowing much broader grounds for awarding maintenance orders, the English deserted wife who can get those orders enforced here— and they will be enforced without inquiry on the grounds on which the order was made by the English or Northern Ireland court—is in a better position than her Irish counterpart. There is no equality of treatment between the Irish deserted wife and the English deserted wife because our domestic law prescribes only a very narrow, limited basis for allowing maintenance to be awarded. It may only be awarded on the grounds of desertion, a concept which has been extended by judicial interpretation of the motion of constructive desertion.

We must as a priority face up to our legislative responsibility and lay down broader bases on which maintenance orders may be given. A commendable way to do this would be to accept the idea of family default——

Mr. Cooney

For the information of the Senator, I have already indicated that that report is acceptable in principle.

Mrs. Robinson

I am grateful to the Minister for this assurance. It will shorten to some extent this part of my contribution. If he has accepted the recommendations in principle, will he go further and indicate in what sort of time span they may be reduced into actual legislation? Although I can see the necessity for co-operation with other Departments the overall responsibility and jurisdiction is very squarely in the Minister's Department and I should like some guideline——

Mr. Cooney

Again, for the information of the Senator, I indicated some time ago that it is my hope the legislation to implement that report will be introduced in the Michaelmas Term, to use a legal phrase.

Mrs. Robinson

I am grateful to the Minister for this information. I often feel that though this information is available elsewhere, it is sometimes hard to check out, and one of the values of a debate of this nature is to try to get a fairly coherent overall picture of the Government's, and particularly the Department of Justice's, policy in relation to the subject.

Mr. Cooney

It was announced in the Dáil.

Mrs. Robinson

I was not suggesting it had been announced at a dinner or on some such occasion. It is very useful to have a statement of intent on Government policy in specific terms in relation to this area. Given the response of the Minister on that question, I should like to comment on the framework of this Bill and then make some more specific comments on different sections.

First of all, as to the overall framework: the Minister has said that it is a rather technical Bill for the purpose of concluding an agreement for the reciprocal enforcement of maintenance orders between Britain and this country. It has been introduced in anticipation of our ratifying the EEC Convention on the Jurisdiction and Enforcement of Civil and Commercial Judgments.

Accepting that this is the technical context, I should like to ask the Minister why it was not thought desirable to introduce a general statutory framework not just relating to the reciprocating jurisdiction as defined in the interpretation section, section 3 of the Bill, namely, Northern Ireland, England, Wales or Scotland? Why was it not thought desirable to have a more general framework which could then be expended by a Ministerial Order or other appropriate mechanism to any country? I fully accept the position that we hope to ratify the European Convention despite some problems in adopting it for the three new member states, but what about other countries which are outside this scope? for example, countries like Spain, the United States or Australia? Would it not have been an opportunity to have a framework to allow us when the occasion arose to enter into bilateral arrangements with other countries? The need may not seem so urgent because there are fewer husbands who would desert to these other countries, but there are certainly some.

I could see us participating in a private international law convention, for example, the Hague Convention, in which the effect would be that we would be extending this sort of enforcement arrangement to a larger number of countries. Outside that framework we might want to extend it still further and a more general statutory authority might make it easier for us to ratify and to enforce in our internal law the obligations of such a multilateral convention. That is the first question: why a policy decision was taken to confine this Bill merely to the reciprocating countries which are, I admit, the main countries in which the deserting party goes? This is in contrast to the English structure where their Act can be extended and will be extended to Ireland by an Order in Council. It seems to be a more flexible overall formula.

Looking at the sections of the Bill, first of all in the interpretation section, section 3, I have a comment to make: this may seem a rather small point but it is perhaps more useful to make it now if it is felt that it requires some amendment in that there is a difficulty of citation. For example, if I am citing section 3 (1) (a) there are in effect two paragraphs (a) which qualify. There is a need for some different sub-grouping so that we do not have two sets of (a), (b) and (c) under subsection (1). However, this is a small point and there are more important comments which I should like to make on the text of the Bill.

On section 3 (1) (b) at the top of page 4, I wonder whether the provision is broad enough to include payments of lump sums. It reads:

an affiliation order or an order consequent thereon, being an order which provides for the payment by a person adjudged, found or declared to be a child's father or expenses incidental to the birth of the child or, were the child has died, of the funeral expenses,

In the Illegitimate Children (Affiliation Orders) Act, 1930, there is provision for payment of a lump sum instead of periodic payments over a certain period. Looking at the definition of "maintenance order", in paragraphs (a) and (b) of section 3, I am in some doubt as to whether this would cover either affiliation proceedings which result in the payment of a lump sum under the 1930 Act or whether it would cover the practice in England where there is power to award maintenance by means of a lump sum.

Under subsection (2) of section 3, there is the curious phrase, in a sense: "For the avoidance of doubt, a maintenance order includes—". This is the area in which I have maximum doubt about the doubt that it is hoped to avoid, and I would appreciate some clarification by the Minister. Subsection (2) states:

For the avoidance of doubt, a maintenance order includes—

(a) such an order which is incidental to a decision as to the status of natural persons,

I would welcome clarification from the Minister as to what is intended by that. Specifically, does it include maintenance orders arising out of divorce proceedings?

Mr. Cooney

It does.

Mrs. Robinson

I am very pleased to have that doubt laid to rest. Again, and it is on the same subject, I should welcome some clarification on a point in relation to section 9 (a). Section 9 provides:

A maintenance order made in a reciprocating jurisdiction shall not be recognised or enforceable if, but only if——

Then paragraph (a) goes on:

recognition or enforcement would be contrary to public policy.

This paragraph would seem to raise the question of whether, although we have included in the definition of "maintenance orders" maintenance orders arising out of divorce proceedings whether the enforceability of these very maintenance orders might come within section 9 (a) and be treated as in conflict with public policy? I would welcome some clarification from the Minister on this. The reason is that I believe that in this area public policy must undoubtedly be something stated and set out by the legislature to guide the judiciary and not left so vague that it may be subject to different interpretation by individual judges, without any overall policy.

Looking at section 13 (1) (d), I wonder why there was reference there "where appropriate" to a document showing that the maintenance creditor is receiving legal aid in that jurisdiction. Unhappily this could not apply to a person applying for maintenance in this country, since we have not extended legal aid to cover applications for maintenance, but it would almost always cover an application for maintenance in the other reciprocating jurisdictions. What I really wondered was, seeing that it has been included specifically here, is this in order that we may more rapidly introduce legal aid in the application for maintenance orders in this country so that this would result in the same documentation being exchanged? More specifically, has this relevance to the terms of the Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgments where there are very interesting provisions relating to legal aid and where, if I understand them, the position indeed is that if a person has been receiving legal aid in the country where the application for a maintenance order is made, that person must also receive legal aid in the country where the order is being enforced?

Again, it would heighten the paradoxes that are there already, if we were to put the English wife in a more advantageous position by qualifying her for legal aid in pursuing enforcement here, whereas we did not allow the Irish deserted wife who has made an application for maintenance to have legal aid in bringing her application to this country. These remarks are made in an attempt to emphasise yet again the vital urgency of extending legal aid to cover maintenance orders and family law in general. I know the Minister is about to intervene and tell me about the committee that has been set up on this. Of that, at least, I am aware. I hope that this committee will recommend with appropriate speed, and that its recommendations in this area will be implemented as soon as possible.

I return to my original observation on this Bill, that because it is essentially a Bill which recognises and enforces maintenance orders made either in England, Scotland, Wales or Northern Ireland, it highlights the far better position in which the deserted wife who lives in Wales, Scotland, Northern Ireland, or England finds herself—a far better position under the domestic law which obtains in those countries. This must be an incentive to us to put the Irish deserted wife on a position of equality and parity with the deserted wives in these other jurisdictions. For example, in section 14 (7) (d), there is a role for the district court clerk in that the payment will be made to the district court clerk and if the payment is not being made there will be the possibility for the said district court clerk to take the initiative for enforcement proceedings, enforcing the maintenance order for the wife living outside the jurisdiction; whereas, the Irish wife who has been deserted by her husband who is still living in this country must initiate her own enforcement proceedings. It would be most welcome to see the district court clerk fulfilling the same role for the Irish wife deserted by her husband who continues to live in this jurisdiction, in order to put her in the same position as the English wife whose husband has deserted and come to live in this jurisdiction. The English wife who is having the maintenance order enforced under this Bill is already in a remarkably better position than her Irish counterpart because of the much broader basis for seeking that maintenance order in the first place and because of the broader ways in which it can be enforced. I note that the Minister said in his opening speech:

"I would like to have seen for example, provision for attachment of wages in this Bill." This is another paradox, that the English wife who got her maintenance order in England to be enforced here can have an order for attachment of earnings. That can be enforced against a deserted husband living here, but the Irish woman cannot have a similar order made to be enforced against her husband either in a completely domestic context or enforcement by the British courts, because under our domestic law, we do not have attachment of earnings. We do have a provision for this in the Illegitimate Children (Affiliation Proceedings) Act, 1930.

It is rather depressing to see that— in so far as my limited researches have gone in any case—there appears to be no instance of this procedure having been used. That is a sad reflection on the absence of proper legal advice and the absence of the possibility of getting the knowledge and technical expertise by the single mothers, in this case, who might have got an affiliation order, but would not know how to go about attaching earnings in order to enforce it against the putative father.

I see this Bill as a very sharp incentive to us here in Ireland to improve rapidly and urgently the position of deserted wives living in this country. This can only be done by improving the domestic law under which we operate. We must improve it in relation to the different cases for awarding maintenance orders; the protection which the law offers to the deserted wife; the realistic nature of the remedy by affording her both legal aid, and by introducing a similar role for the district court clerk in taking the initiative in relation to the enforcement of the maintenance orders where there is a failure to pay under these orders. If we can bring about this sort of reform in our internal law, then I believe that there will be a fair balance in the operation of this Bill. At the moment I think it is a Bill which highlights the substantially inferior position of the deserted wife in Ireland.

Section 17 is a very welcome provision in that it gives jurisdiction to the Irish courts where the spouse who has deserted is living outside the jurisdiction. I think, however, that there is need for much better tracing techniques between the two jurisdictions. I am not sure whether these are matters about which there is need for specific legislation or just need for more real co-operation in the administration of such tracing techniques and resources in this area.

Those are most of the comments which I wished to make on the terms of this Bill. I come back to the original framework in which the Minister placed it. I welcome the fact that he did place it in the context of our general family law and pledged that reform of family law itself is one of the main tasks to be undertaken during his term of office. I hope that this will be possible, and that it will not be delayed unnecessarily in a very difficult time for the Minister's Department, a time when there must be a very substantial preoccupation with security and with the problems relating to the situation in which we find ourselves. Emphasis must be placed on the urgent need for family law reform so that the many recommendations will be translated into legislation in a very short time in order to redress what Kathleen O'Higgins, in her study called 70 years of neglect by legislators in this country.

Dr. Martin

I should like to begin by welcoming the Bill and welcoming it precisely in the terms that the Minister presented it. Again he has presented it as a limited Bill. He has shown himself aware of its limitation and has declared himself sensitive to the large over-reaching area of family law into which it must ultimately fit.

I think it will have two immediate advantages, in the sense that it will at least begin to bring some degree of justice and responsibility to bear on deserting husbands and illegitimate fathers. I am always amused by the use of the rather grandiose and euphemistic word given to fathers, whereas you speak about the illegitimate child—the one innocent party to the entire arrangement has the pejorative word attached to him or her. Yet it seems to me that if there is any bastard in the case it is the bastard who gets the girl into trouble and runs out on his responsibilities. This phrase "illegitimate child" is so caught up in our law and so woven into the whole terminology of legislation that it is almost inextricable from it. It is a phrase that always offends me.

Apart from this, the Bill in itself is useful in that, at least, it reverses the situation that existed. That escape route to England, as long as it was open, could be seen not only as a refuge but a kind of encouragement to irresponsibility on the part of Irish husbands. The fact that it was lying there openly at their disposal actually encouraged irresponsibility, and the degree of irresponsibility among Irish men is particularly high. I would say it is well above the international average. The availability of that route was an incentive, almost, to that kind of irresponsibility. Even if the tracing processes are not brilliant and perfect at least the moral position is now made utterly clear and, of course, the enforcement devices will inevitably improve as the years go on. So it closes a gap and in a sense, of course, in contemplating it, one is aware of the enormous gaps that loom on every side.

The 70 years of neglect that Senator Robinson has spoken of are obviously there the minute we look at this, the minute we look forward to next week when we take the Adoption Bill. The fact is that our family law has been a rather piecemeal affair and in many ways it has been based continuously on archaic premises. For instance, on the social scene, there is the recent strenuous and salutary work on the part of voluntary societies who suddenly mushroomed in this particular area, of late, in response to an increasing acute situation—organisations like ALLY, AIM and CONCERN who, with the help of the media have drawn our horrified attention to the degree to which one finds within society battered wives, battered children, children and wives abused, starved, neglected, and humiliated in all kinds of ways, the extraordinary degree of hidden and silent cruelty and suffering that goes on behind the respectable facade of our society.

It is not just the reticence of the past that answers the problem. It is not just that now people are beginning to speak out. There is a correlation between the outcry and the reality. The degree of responsibility among Irishmen in particular is decreasing, and I do not think that education, as we call it, and sophistication and affluence have had a corresponding advance and parallel advance in terms of delicacy, humanity, tenderness, the ability to love, to cherish, to take responsibility for one's wife and family. In fact, within our affluent society there is a new kind of a swaggering arrogance on the part of the male as he comes lurching home in his Mercedes and his mohair suit or goes lurching out to his golf club later after dinner. This does inflict a degree of suffering, probably far greater than the cruder and more direct approaches that traditionally have been ascribed to what are known as the working classes, or the unemployed or the labourers. I noticed that in Senator Brosnan's speech, an excellent speech in its way, he concentrated almost completely on the migrant labourers who go to England, the will o' the wisps, the fly by nights.

Nearly everybody who knows a situation of an unhappy marriage in this country where the whole area of separation proceedings comes up, knows the extraordinary handicap under which the wife has to operate, if she wants to proceed towards a separation, the fact that she cannot easily lay her hands on the family purse of which half should rightly be hers. The majority of solicitors do not want to know her particularly well. In order to get proper redress she has to go to the High Court which is an extraordinarily costly affair. Most women, at the beginning are disheartened by the very prospect of the process they have to go through in this area. In the area of the enforcement of this particular measure I am not sure myself—I am not a lawyer—as to the degree to which a woman will have to cope with those particular kinds of difficulties, but I am sure the Minister will take into account the difficulties that occur in the whole area of this family law and enact his Bill in such a way as to alleviate that to the furthest degree.

Behind this is what Brian Faulkner would have spoken about—the men on the ground or the troops in the the field. It is one thing to have an enactment on the Statute Book, but we all know that many of the difficulties in our society have nothing at all to do with the law. The law has to be right, but the means by which the law can be translated from the Statute Book into the fabric of our living situation is even more crucial and, here, I am thinking particularly of the whole area of social service and the social worker. We have not nearly enough of these in our society. Everybody knows that. I know we cannot afford everything we need in every particular area but we certainly need a large increase in the number of social workers—we have marvellously well-trained and well-motivated ones just waiting to be asked—within the whole area of family advice and family life. We should, indeed, ultimately strive towards courts which would specifically deal with family situations. This, I think, is essential. The problems of loneliness and isolation on the part of the deserted or battered wife makes her feel helpless, defenceless in the face of a society even if she has the law to work on her side. If she can make contact with somebody who knows the law well, who has the contacts with the legal profession and who knows how to go about getting even the very basic benefits to which she is already entitled, it is of enormous importance.

I would urge again that this aspect, the whole question of the practical implementation of a law and the making of that law fruitful within the fabric of a human situation, should be taken strenuously into account. The Minister said in his opening speech that he is very interested in bringing in the attachment of earnings. He assures the House that maintenance orders can be made to the High Court on desertion and he would take into account the necessity for this. I should like to know whether, in fact, this is a firm commitment. Will there be attachment of earnings in future legislation because that would be the teeth which would make this Bill absolutely effective? It is grossly unjust, obviously clearly unjust and ludicrous that for so many centuries the earnings of the husband have been regarded as his property while the wife is at home rearing his children, cooking his meals, doing all kinds of work 24 hours of the day but somehow or other, his earnings are more or less sacrosanct when the crunch comes. He can walk away with his earnings and leave her there with the children and let them starve.

The question of attachment of earnings is, I think, an open and shut case. The morality of it certainly seems to me to be open and shut. I think the quicker we can get the legality of the situation adjusted the better. I should like to know from the Minister how firm is his confidence that that will become very soon a feature of legislation following on this Bill. I should like to see, in other words, the greatest possible haste on the part of the Minister towards the objectives which he is clearly cognisant of and to which he is clearly committed—that is, a more philosophic concern about family life as a whole area of law requiring a particular delicacy of legislation, on the one hand, and a very strong backup in terms of social services on the other. Much of the difficulty here would be prevented, in fact, if we had proper social services. These irresponsible young men who run away from their family often run away out of fear, out of guilt, because they have not enough money, because they drank it down at the local. The wife and the husband are not caught in a kind of web of benign social service to which they can turn in that state of guilt and fear and difficulty, turn to somebody within the society, someone close to them, for aid.

For too long we have left this kind of family advice in the hands of the churches. The churches can do a great deal. The last place the man I am talking about would go is to the church. The clergyman is the last person he would go to when caught in a state of panic. The trouble is that, if he runs away, the chances are he will fall into bad habits and he will not come back. It is, in fact, more important to keep him at home, to advise him, to try to get him to adjust and to make service and direction available before the crime has taken place and before an unfortunate tendency has been allowed to develop in, perhaps, an irreversible way. It is with these reservations, which are not reservations about the Bill really and, in the strict sense, are not reservations at all, these thoughts and hopes in the larger context of consideration for family law that I very, very heartily welcome the Bill.

Minister for Justice (Mr. Cooney)

I should like to thank the Senators who intervened in the debate for their contributions and for the general welcome they have given to the Bill. As I pointed out in my opening speech, and this was recognised, this is a limited technical measure to provide the structure within which these orders may be enforced. It does not get into details of how the absconding husband or father is to be traced.

Senator Brosnan, and Senator Martin to a lesser extent, made the point about the effectiveness of the Bill in relation to the measures that can be devised administratively to trace the missing people. This is not something that can be provided for in a statute. It has to be a matter for administrative co-operation between the jurisdictions concerned. This point was raised in the other House in the context that it should be a police function. This is a delicate area. I do not think it should be a police function. Other agencies would possibly be better equipped for dealing with this problem. Maybe, and I will just emphasise maybe, in some way voluntary agencies, such as the Society for the Prevention of Cruelty to Children, could assist. But this is not something that can be provided for legislatively. It is something that has to be worked out administratively. Indeed, in tracing these people there must be a considerable reliance on what I would call grapevine information. Irish people in Britain—we will speak of it in this context because this is where the problem is for us—tend to congregate in certain areas and word very often filters back as to the whereabouts of a particular person.

Some, of course, would be notorious for going underground and would be quite prepared to move from community to community, from city to city, from suburb to suburb, in an effort to ensure that they would never be caught for the purpose of enforcement under this legislation. They are already expert at it for the purpose of avoiding liability to the British Exchequer. I have no doubt that a person who seriously wants to go underground in a large urban society, such as that which exists in the United Kingdom, can do so and can escape. This is a reality we have to face and accept. Nevertheless, for those who are not that callous about their obligations and for those who desert but are prepared to wait to be caught, this legislation improves the position. The fact that there is machinery for going after him may bring him face to face with reality and will, I hope, ensure that many deserting husbands will realise their responsibilities. It is in that context that I deal with the point raised by Senator Brosnan and his disappointment that the Bill does not provide for arrears of instalment orders. These arrears arise in the case where a wife in this country has been able to obtain a maintenance order against her husband prior to his leaving the jurisdiction. Up to now that is the only type of order that could be obtained. He had to be here for service of the proceedings. A considerable amount of arrears might have accrued. He is now, we will say, in the United Kingdom and he is traceable. Senator Brosnan asked why should he be allowed avoid those arrears when there is both a moral and a legal obligation on him to pay them. The question of what to do about this gave us considerable difficulty and, for a number of reasons, we decided to exclude arrears and have the Bill start just from the commencement date so that any such orders would be enforced only as from the commencement date of the Bill. The reasons are a mixture of the legal and the practical. One legal reason is that we intend to ratify the Hague Convention on the enforcement of maintenance obligations and this Convention imposes an obligation not to have any element of retrospection in the matter of arrears which might have accrued under maintenance orders before the Convention comes into force between the countries concerned. We should be careful, in domestic legislation being enacted prior to that ratification, to take account of the terms of the Convention and not be in conflict with it when we eventually ratify it. That is a legal reason.

There is a domestic legal reason which goes half way towards Senator Brosnan's point. It is the fact that the Enforcement of Court Orders Act, 1940, dealing with the enforcement of affiliation and maintenance cases, only allows arrears of up to six months to be enforced. There is already a recognition in our domestic legislation that it may not always be practical or desirable to go back to the start and look for the arrears.

The amount of arrears, even in the days when the weekly order could be for a maximum of £4 only, could have amounted to a considerable sum. At £4 per week, £208 per year, four years' arrears could amount to more than £800, and in five years it would be coming up to £1,000. If there was provision for enforcing the payment of these arrears, and they were sought to be enforced against a husband who went to England, I would be afraid that the thought of a burden of that magnitude would drive him underground and put him out of circulation completely.

The realistic position is to try and enforce, as from now, a weekly payment which is reasonably certain to be paid. It was my experience, and I am sure the experience of any lawyer who had to take a debt collection action, that many of these cases were not contested. When it came to the stage of asking the District Court to make an instalment order, in practice we found ourselves asking for an order that we knew would be realistic even though it might be very small in relation to the debt, and even though the proceedings were not defended. The court would grant whatever order was asked for. In practice the dictates of reality ensured that we would only ask for a realistic order having regard to the circumstances of the debtor. In this case it would be unrealistic to allow him be pursued for arrears even though they might be limited to a number of months or years. Anything that would tend to drive him underground would make the last state of a deserted wife worse than her first. For that mixture of practical and legal reasons, the decision was taken not to include accrued arrears.

The ultimate sanction to enforce payment of maintenance orders is imprisonment. Bearing in mind that this Act will be mainly of use to us in the United Kingdom jurisdiction, if there was provision for enforcement of arrears, and arrears were not paid through obstinacy, the British authorities would have the burden of imprisoning the absconding debtor in possibly a large number of cases. This is not a burden they would be willing to accept. In any case, imprisonment would be self-defeating because if he were in jail there would be no hope of getting anything. For these reasons we decided not to bring in the arrears. I sympathise with the humanity of the plea to put them in, but that has to be balanced against the practical realities of the situation.

Senator Brosnan wanted to know what was the experience in the EEC regarding the tracing of absconding debtors. As I have stated, this Bill anticipates our accession to the EEC Convention. It is an interim bilateral arrangement to obviate the delay which accession to the Convention necessarily involves. Senator Brosnan was wondering if the experience in EEC countries has been of any assistance. It has not, because the EEC Convention is only in operation for just over one year and as far as I know, there has not yet been any survey as to how it is operated within the Six. I do not know if the same social problems of the deserting husband exist in a fashion analogous to the pattern as between here and the United Kingdom.

Senator Robinson and Senator Brosnan raised the question of what is public policy in the sense in which it is used in the Bill, that is, as one of the grounds for not enforcing a maintenance order in this jurisdiction when sent from the other jurisdiction for enforcement. Before I deal with that specific point, I should state that the exclusions on these grounds are taken from the EEC Convention. There is the exclusion on the grounds of public policy, where the foreign judgment cannot be reconciled with a judgment in a dispute in the State between the same parties, and where the defaulting party had not sufficient notice of the proceedings against him. These three exclusions are repeated in this legislation.

What public policy would be in a particular case would be a matter for the courts to decide. Prima facie it would appear in our situation to arise in the context of the enforcement of maintenance orders arising from divorce proceedings. Our Constitution prohibits divorce and there are two judgments of the superior courts which give an indication of what the attitude of the courts would be. Unfortunately, the two judgments are not complementary to each other. I would hesitate to guess, and it would not be appropriate for me to speculate, as to what the courts might find in defining public policy in this area. That is a matter which is reserved by the Constitution to them. I would not agree with Senator Robinson's point of view that the Legislature should in a Statute endeavour to deal with an area such as this. It is essentially interpretative and that is what the courts are for.

Mrs. Robinson

But the courts interpret what the Legislature has stated.

Mr. Cooney

The basic law—the Constitution—states that divorce is illegal. It is a matter for the courts to continue to interpret the Constitution in the light of a maintenance order being sought to be enforced here consequent on divorce or separation proceedings in the other jurisdiction. This Bill could not attempt to intervene in that area. This is an area where the division of powers has to be respected and it would be improper for me to attempt to say any more on that subject.

Senator Brosnan raised the other exclusion in paragraph (c) of section 9 which provides that a maintenance order will not be enforced if it is irreconcilable with a judgment given in a dispute between the same parties in the State. There could be an order in a UK court consequent on divorce proceedings and it is possible to envisage that in this country there could be similar matrimonial proceedings between the parties leading to an order. Prior to the proceedings in England their might be an order for maintenance here consequent on a desertion. If these two situations were irreconcilable the order from the other jurisdiction would not be enforced here. The order made in the domestic courts would have precedence and that is in effect what it means.

The question of the time limit within which the district court clerk would transmit payments to the maintenance creditor was raised by Senator Brosnan in relation to section 14. He was worried that there might be delay on this. My experience of the district court clerk service is that they are universally—and I use the word advisedly—an efficient body of men and I would anticipate no delay in that area. In any event, district court rules will have to be introduced to regulate procedure under this Act. Those rules are at the present time being drawn up. This is something to which I shall draw the attention of the President of the District Court who is instrumental in drawing up these rules—and very, very valuably instrumental if I may say so. I will draw his attention to the point whether there is any necessity to place a time limit on the court in regard to transmitting fees collected.

With regard to the burden of proof in paternity suits and the admission of medical evidence, this is not a matter for this particular Bill. I do not propose to go into the merits or demerits of that question. That would be a matter for an amendment of the affiliation Orders Act if and when that comes to be amended.

On the question of legal aid, as Senators are aware—I thank Senator Martin for his gust of wind into my sails; the Minister for Finance has to see the full gale in due course—the committee to advise on this matter has had its first meeting. I took the opportunity of indicating to them our general anxiety to see a system of legal aid in operation here. In anticipation of that, the provision was included in section 13 (1) (d) that one of the documents to be sent to the Master would be a document showing that the maintenance credit was receiving legal aid in the other jurisdiction. This would be an indication to the courts here that the person's means were such as to entitle him to legal aid, so that if and when we have our system of legal aid in civil cases it would be clear that that party would be entitled to legal aid in our courts.

I quite agree that legal aid in this whole field of family law is important so that people would have access to the High Court, which is the appropriate court at the moment in cases of separation. I am conscious of the fact that hardship is caused by reason of the expense of such proceedings. That is one of the factors which I took into account in trying to expedite the introduction of legal aid. It is a by-product of our accession to the EEC—a good by-product—that legal aid will be forced upon us because the Convention to which we hope to accede provides that the same legal assistance should be available in the differing countries. In order to comply with our requirements under the Convention we will have to have legal aid. All these things constitute a full gale blowing in the direction of the Minister for Finance in due course.

Senator Robinson raised the point that it was a pity that this Bill was bilateral and, therefore, somewhat narrow in its operation. I do not deny that this is a narrow Bill. It is intended merely to deal with an immediate problem—our biggest problem in this area is the absconding husband or father going to the United Kingdom. If we had attempted to do all the preliminary work that would be necessary in relation to other jurisdictions for the purpose of including them in this Bill, the legislation would have been delayed for a long time. There would have had to be an examination of their legal systems to see that reciprocity would be available to us and whether the conclusion of a bilateral agreement with the country concerned would be possible. We will have to have an international agreement with the United Kingdom before this Bill can come into operation. I think the best way to approach the task of extending the remedy here to a wider number of countries is via whatever international conventions are available such as The Hague Convention. I think there is a United Nations (New York) Convention which would enable us to have mutual enforceability in this area with a great many other countries.

The problem we want to solve is essentially that between Ireland and the United Kingdom. That is why this Bill was kept narrow in scope. While we were preparing an omnibus piece of legislation to deal with that problem, and the whole field of family law, and introducing all the desirable reforms, such as the attachment of wages, expanding the concept of family default, reforming the marriage laws, many people would continue to suffer. I have taken the policy decision that the best way, because of the urgency of this particular problem, is to tackle it piecemeal, even though I recognise the word "piecemeal" can be open to objection and criticism. Nevertheless, it is bringing ease in cases of hardship and that justifies the piecemeal element. That is part of that policy being implemented.

We have to face facts and the hard fact is that the British authorities will have the main burden of enforcement because the traffic is very largely weighted in one direction. I want to pay tribute to them for the co-operation they have given in all the negotiations and consultations which have taken place at official level in order to produce this Bill.

Senator Robinson asked for clarification of the definition section and whether lump sums are covered. It is not intended to have this Bill apply to lump sums, with the exception of sums incidental to the birth or to the funeral expenses of the illegitimate child. If a lump sum should be awarded it can always be enforced in Britain at the moment by suing on the judgment. To that extent lump sums are already covered. However, that is getting into a matter of interpretation. As to whether a maintenance order consequent on an instalment order made in connection with the enforcement of a lump sum judgment would be a maintenance order under this Bill, I would not be prepared to hazard a guess, but it would seem to me to be. I should like to have a closer look at it.

Senator Robinson mentioned a number of paradoxes and she instanced one in connection with the attachment of wages. But the paradox works in our favour. The English wife seeking to enforce an English maintenance order in this country would not have the benefit of attachment of wages because we do not have it as part of our domestic law whereas the Irish wife seeking to enforce the order in England would have. This is contrary to the position as expressed by the Senator because the effect of this Bill is to naturalise in our jurisdiction, in our law, the order coming from the other jurisdiction and vice versa. If an order comes from the other jurisdiction into the State it will be enforced in accordance with our laws of enforcement and vice versa. It is a paradox but it works in our favour.

Mrs. Robinson

I take it the Minister did not really mean that!

Mr. Cooney

It is the reverse as the Senator expressed it. She expressed it wrongly, if I might say so.

Mrs. Robinson

I accept that.

Mr. Cooney

It is in nobody's favour because it is to our shame, if you like, that our situation as such is to permit it. I am very conscious of that. As I have already indicated, in the 19th interim report, which has been accepted in principle, there are matters of detail which have to be examined. There is no point in rushing into a piece of legislation which turns out to be ineffective, or to have a consequence never dreamt of, so as to demand amending legislation and possibly greater disappointment. It is being examined as a matter of urgency.

The Senator put a finger on a personal problem which I have, namely, that the demands of the Department of Justice are unusual in these times. Nevertheless, I am hopeful that this legislation, which will expand the concept of family default and allow attachment of wages and various other desirable reforms in this field, will be before the legislature in the next session. I am hopeful of that but I cannot promise it. If we can get that legislation through, our position here will have improved considerably. The whole area of family law is under examination by this committee. This was an interim report, and indeed the whole area of marriage law will have to be tackled sooner rather than later. That raises very large legal implications and opens up a huge legal field, but nevertheless it is something that will have to be tackled in this context.

I think I have covered the points raised by Senators. In conclusion I repeat my thanks to Senators for their welcome for the Bill.

Question put and agreed to.

An Cathaoirleach

Next Stage?

Mrs. Robinson

As I pointed out, the interpretation section does not stand up to citation. For example there are two subsections (1) (a) (b) and (c) in section 3. I would welcome an opportunity to reflect on what the Minister said on the possibility of bringing in an amendment next week.

Mr. Cooney

I do not want to rush the Seanad. I have the difficulty that I am anxious that this Bill be law before the summer recess, to enable the agreement to be concluded between the two countries during the recess, so as to pave the way for its coming into operation as soon as possible.

Mr. Brosnan

I am handicapped by the absence of most of my colleagues from the Front Bench, who are in Europe. I do not know what their attitude is towards it but I am sure they will be as helpful as possible. I should prefer if they were here.

Committee Stage ordered for Wednesday, 3rd July, 1974.

The Seanad adjourned at 4.30 p.m. until 3 p.m. on Wednesday, 3rd July, 1974.