I should like the Minister to indicate the date on which the agreement may be reached.
Maintenance Orders Bill, 1974: Committee and Final Stages.
Section 1 agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."
I hope that the agreement will be concluded during the autumn. At the same time, the UK will make an Order in Council. They will make it after the agreement is concluded. I will then make a Commencement Order but I cannot state a date yet.
Question put and agreed to.
SECTION 3.
I move amendment No. 1.
In page 4, subsection (1), to delete "(a)”, in line 12, “(b)” in line 16 and “(c)” in line 22 and substitute respectively “(i)”, “(ii)” and “(iii)”.
This is a minor drafting amendment which I mentioned on the Second Reading. I feel that section 3 is open to difficulties in citation. In citing section 3 (1) (a) of this Bill there are two subsections to which that can apply. In some circumstances that might give rise to difficulty in regard to citation. I am not sure whether the amendment proposed is the most appropriate way of dealing with it but it would at least remove that slight doubt.
I considered the points that the Senator raised on the last day and I am advised that the drafting conforms with the normal drafting procedure for definition sections. The ambiguity of which the Senator is apprehensive will not arise and has not arisen in practice. The definition section will normally be cited in reference to a particular term. If one were to talk about "notice of the institution of the proceedings" as defined in paragraph (a) quite obviously it could only be paragraph (a) under that “notice” that could be referred to. Therefore I do not think there is any danger of ambiguity. It is a well settled practice and there are numerous precedents for that type of draft in definition sections.
I appreciate that there are precedents for this. It seems to me, as a comment on this sort of drafting, that it ought to be possible to devise a section without having within it two series of (a), (b) and (c) in the same subsection. If the Minister is sure that the type of difficulty that I was afraid might arise does not arise in this sort of drafting, I have no hesitation in withdrawing the amendment.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5
Question proposed: "That section 5 stand part of the Bill".
On section 5, which is a standard form of section in this type of Bill, I was wondering if it is broad enough to include the expenses incurred in legal aid, if under some other measure legal aid were extended to matrimonial matters, or whether it is intended in any way to cover this type of expense in administration? It occurred to me that it would be possible to extend it to cover legal aid.
When legal aid is introduced the enabling Act will be the Act which will authorise the expense involved. This section will not have any application at all.
Question put and agreed to.
Sections 6 to 8, inclusive, agreed to.
SECTION 9
I move amendment No. 2:
In page 6, line 10 to add: "but provided always that the recognition or enforcement of a maintenance order made ancillary to a divorce decree shall not be deemed to be contrary to public policy."
This amendment is introduced in order to try to avoid the difficulty which could arise under the present provision of section 9(a). Section 9 provides:
A maintenance order made in a reciprocating jurisdiction shall not be recognised or enforceable if, but only if—
(a) recognition or enforcement would be contrary to public policy.
I mentioned on the Second Reading that we have included in the definition of maintenance orders, maintenance orders arising ancillary to divorce proceedings—that is, proceedings where there is a change in status. This refers back to the definition section, section 3 subsection (2) which reads:
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.
That includes an order ancillary to a divorce order in a jurisdiction which had jurisdiction to make such a divorce order. This legislation, which is for the purpose of recognising and enforcing maintenance or affiliation orders from the three participating jurisdictions, should not be left ambiguous in this respect. We should make it clear that we would not refuse to recognise and enforce maintenance orders arising out of divorce proceedings where the court making the divorce order had jurisdiction to make such an Order.
The problem, I think, really arises out of the wording of Article 41 of the Constitution. Article 41 section (3) subsection (1) provides
The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded and to protect it against attack.
Subsection (2) provides:
No law shall be enacted providing for the grant of a dissolution of marriage.
Subsection (3) provides:
No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.
Given that we do not in this country allow divorce to be granted—there is a constitutional bar to that—and given that there is this difficulty of construction on the question of recognising divorce, the question, then, which this Bill as drafted does not clarify is whether we would recognise and enforce maintenance orders arising out of divorce proceedings.
A quick look at the cases involved shows that this particular matter has not been decided by the courts. It is my contention in moving this amendment that it is not the primary function of the courts to decide what our public policy is. It is certainly the function of the courts to interpret and to be the final interpreters both of the Constitution and of legislation. The legislation ought to conform to the Constitution, but there is a legislative responsibility— and I believe it is a responsibility which we must face up to in this Bill —to clear up this doubt. For the avoidance of doubt not only does a maintenance order include a maintenance order ancillary to divorce proceedings, but for the avoidance of doubt we will not as a country refuse to recognise and enforce maintenance orders ancillary to divorce proceedings. We should not allow any concept of public policy to be so interpreted that we would allow a person who had obtained a divorce in a jurisdiction, but who was obliged by the terms of that to pay maintenance, to avoid that responsibility and to come and, in a sense, hide in this country safe in the knowledge that because of the ambiguity, in the constitutional position and because of the lack of legislative statement of intent the maintenance order would, perhaps, be unlikely to be enforced.
If I might just review very briefly what I think are the relevant cases on this— one case which actually raised the particular problem was the case of Leake v. Douglas, (1954) in the Circuit Court in Cork, where the plaintiff in the case sought to recover arrears of alimony due to her on foot of an order made by the High Court in England. The plaintiff had been divorced in 1948 and a maintenance order was made. Her action was dismissed because she was not sueing for a lump sum. She was trying to enforce an order which was variable by the court which had made the order. At that time, because there was not a legislative framework such as this Bill, it was not possible under Common Law for the court to enforce it. Counsel for the defendant in that case raised the question and said that to enforce it would be contrary to public policy. The judge in the case did not address himself to that particular argument because he was not in a position to grant enforcement of the alimony order. There was no clarification of the position.
Another more recent case, which involved the plaintiff seeking costs arising out of successful divorce proceedings was the case of Mayo Perrott v. Mayo Perrott in 1958. There are various dicta of the judges in that case which, I think it is generally felt, go far beyond the actual order which was sought and look into the question of the recognition of foreign divorces under Article 41, subsection (3). A strong difference of view was expressed by the judges, particularly Mr. Justice Maguire and Mr. Justice Kingsmill Moore. The line which appears to have been followed in more recent cases is that put forward by Mr. Justice Kingsmill Moore that if the jurisdiction to grant divorce was based on the domicile of the parties in the divorcing country then because such a divorce decree had been recognised prior to the Constitution nothing in the wording of the Constitution showed an express intent to exclude recognition of divorce granted on those grounds. Therefore this recognition ought to extend. The dicta went outside the actual scope of that judgment.
In a more recent case in the High Court in re Caffin, Caffin v. Bank of Ireland in 1971 Irish Reports, Mr. Justice Kenny went further along this line in recognising a foreign divorce where the jurisdiction of the court awarding the divorce was or could have been based on domicile. Mr. Justice Kenny recognised that divorce for the purpose of deciding as a consequence that the second wife was the wife in making her claim for her legal right under the Succession Act of 1965. This, I think, was an indication not just of a passive recognition of a foreign divorce but of enforcement of a positive consequence by finding the second marriage valid so that the wife of that marriage was the wife for the purposes of making her legal claim under the Succession Act.
In the absence of any such precise judgment by the High Court or the Supreme Court on the question before us now, and in the light of a possible ambiguity, there is a responsibility on us to make it clear in this Bill that the legislative intent is that the words "contrary to public policy" which are part of the overall framework provided for in the Convention on the recognition and enforcement of foreign judgments —and also in comparable bilateral legislation—will not extend to refusing to enforce either maintenance or alimony payments arising out of divorce proceedings.
There is a responsibility on the legislature to make it clear that even though we do not offer the jurisdiction to award divorce in the first instance, because we have a constitutional prohibition on that, and even though we have a policy as defined in Article 41, in the view of the Oireachtas it does not extend to permitting people to avoid their responsibilities as determined by another jurisdiction of paying maintenance for the support and maintenance of the ex-wife of a divorced party in the circumstances where a successful divorce proceedings had been brought.
This clear statement of legislative policy would have an advantage in that it would enable the court, if this point was ever raised as a defence in court, namely, that enforcement of a maintenance order ancillary to divorce proceedings would be counted public policy, the court to look at the clear wording of the Legislature and see what the legislative intent was in the Bill which enabled the reciprocal recognition and enforcement of maintenance and affiliation orders in general. If there was a further argument raised that that statement of legislative intent was in itself in some way unconstitutional, it would, of course, be open to the court to interpret and be the final interpreting voice on that. I would prefer that the balance be placed in that way. The position should be clear from the Bill itself in protecting British women where there has been a divorce in England and the former husband then comes to this country. They should be able to enforce the maintenance or alimony proceedings.
We ought to clarify our minds on the public policy issues involved. We are not talking about encouraging people to seek divorce or to get divorced. We are talking about respect for the competence and judicial integrity of other jurisdictions. We must be careful not to interpret our own constitutional provisions in such a way as to go against the whole trend of private international law or so as to put ourselves in the position of being the odd man out in relation to family law in the European Community, particularly when we want to promote the free movement of persons around the Community.
The narrow and rather doctrinaire interpretation of Article 41 would be out of line with the family law of other jurisdictions. We would be exporting our rather narrow interpretation to the detriment of individuals caught up in this, to the detriment of the English woman who could not enforce the payments which the courts of her own country had awarded her. We must realise that under colour of this formula and contrary to public policy we may be imposing cruel hardship on ordinary human beings who will not understand what the basis is or what is the reason for allowing the former husband to escape his responsibilities, to be a refugee in this country.
I do not want to exaggerate the extent to which this might be a problem, but I can foresee the possibility that where there has been a divorce granted in one of the other reciprocating jurisdictions the party with the obligation to pay maintenance or alimony might wish to take refuge in this country. We would find ourselves, to say the least of it, in a very invidious position as being a jurisdiction which protected parties on this ground. If I were an English woman caught up in these circumstances I would say that surely this must have come up when the Bill was being discussed in the Irish Parliament, and surely the Irish Legislature had the honesty to face up to this problem, had the honesty to make it clear that it was not the legislative intent to allow this form of refuge from responsibility and that we did not mean when we inserted what is quite a normal formula that recognition and enforcement would be refused on the grounds that it was contrary to public policy.
We should affirm that we will not refuse any maintenance orders arising out of divorce proceedings, particularly when we have defined in the definition section maintenance orders to include any orders ancillary to divorce proceedings which alter the status of the parties.
We are failing in our responsibility if we leave the matter in a state of ambiguity which will encourage the defaulting ex-husband to invoke our constitutional position as a justification for avoiding responsibilities imposed by the court which had full jurisdiction, which had the competence to award the alimony payments of the maintenance order and for which we as a country ought to have a proper respect even though we do not ourselves offer this facility of granting a divorce ab initio, allowing people to seek divorce in Irish courts. I think that it would be a very backward step not to face up to this legislative responsibility and to evade the issue by saying—as I think the Minister was indicating was the Government policy on this—that it is a matter for the courts and not a matter for the Legislature. I think it is very firmly and clearly a matter for the Legislature and one which we ought to clarify. I am not necessarily saying that the only way in which the object can be achieved is by the particular wording in this amendment, which reads:
In page 6, line 10 to add: "but provided always that the recognition or enforcement of a maintenance order made ancillary to a divorce shall not be deemed to be contrary to public policy."
I am saying very firmly that there is a legislative responsibility on us to make it clear that we are not agreeing to an international agreement to enter into a reciprocal enforcement structure and yet through this Bill in effect refusing to extend the scope of the recognition and enforcement to what must be quite a common situation, where the English ex-wife will want to enforce the maintenance alimony payments awarded to her by a competent court in the country in which she is living.
We must not arrogate to ourselves the decision that it would be contrary to our public policy in some strange way to enforce this payment awarded by that competent court in the jurisdiction in which the woman is living.
The exemption in the section is taken from the European Convention and it provides that maintenance orders are not to be enforced if their recognition would be contrary to public policy. The question then arises what is or what is not public policy and how is that to be ascertained. It is quite clear that in this context public policy is what is laid down in the corpus of the law of the country and what that particular country wants done or wants to prevent or prohibit. Public policy can only be ascertained by looking at the whole body of law in the particular country.
If Senator Robinson were to be logical she would continue and attempt to add to that subsection all the areas of public policy that she thinks should not be recognised, but she has merely taken one particular aspect or one particular part of public policy, the implications of the prohibition on divorce in the Constitution, and endeavoured to interpret that aspect of public policy as she thinks it ought to be interpreted and included in this section.
In doing this I think she is asking the Legislature to trespass on what is a judicial field. It is no question of apprehension or fear on the part of the Government to define public policy. There is no want of honesty on our part in leaving the section as it stands and in not indicating our attitude in regard to what is to happen to maintenance orders consequent on divorce proceedings in the United Kingdom. This simply does not arise. I could have a certain view as to whether I think they should be enforced here or not. It is my personal view that all these orders should be. But it would be an impertinence for me to tell the Supreme Court that my interpretation of public policy is what should be the definitive interpretation and in essence that is what Senator Robinson's amendment purports to do.
Public policy in the area covered by her amendment is ascertainable by looking at our Constitution—the basic law of the land—and that basic law, reflecting basic public policy, is that divorce is not permissible here. As to what extent the consequences of a foreign divorce are to be recognised is surely a matter only for the courts. I maintain that the section is drafted properly inasmuch as it merely states that anything contrary to public policy is not to be enforced and then it is up to the courts to decide whether a particular order is contrary to public policy here. If, for example, gaming contracts became enforceable in England and if we could extend our imagination to envisage an analogous order on foot of them, that, obviously, would be contrary to public policy as laid down in our law at the moment.
It is not for us here in the Legislature to say what is or is not public policy in relation to a constitutional matter. That is a matter for the courts and is reserved for them as part of their function under the separation of powers. It would be improper for us here to attempt to blur that separation by saying to the courts: "In this field of divorce you shall recognise maintenance orders consequent on a divorce granted in the United Kingdom". We may feel that we would like the courts to do that but it would be improper for us to attempt to direct the courts to do that. That is why this section cannot go any further than it has gone and that is why this amendment cannot be accepted.
I do not follow at all some of the remarks of the Minister on this. It does not seem to me that we ought, nor indeed that we are entitled as legislators to adopt this kind of attitude: that public policy is a matter for the Supreme Court and that we have no right to interfere in the matter. The situation as regards divorce I would have thought was quite clear. The Constitution specifically forbids the granting of divorce and that is all it does. There is nothing in the Constitution which says that the payment of alimony or maintenance payments on foot of a divorce are to be banned. There is nothing of that kind. All the Constitution says is that once you are married you may not get a divorce.
Surely it would be open to us to pass an Act which, without referring to public policy, would specifically provide for the enforcement of maintenance payments on foot of divorce proceedings in other countries. We are entitled to do that. It would in no sense be unconstitutional and it would be no business of any court to tell us that we are not entitled to do that. We are entitled to do it. In the same way it seems to me that in this Bill, whether Senator Robinson has gone the right way about it I am not sure, but provided we went through the correct legal forms in wording such a section we are perfectly entitled to say in this Bill that we want, as legislators, the enforcement of maintenance decrees which were created by courts in other countries and as we want to be enforced in this country.
We are perfectly entitled to do that. Therefore, far from it being a matter for the Supreme Court to decide these matters, it is none of their business to interfere in the matter if we decide this. What the separation of powers simply involves is that we are entitled to legislate and it is for them to interpret legislation. That is quite the other way around from what the Minister seems to have.
I agree with Senator Yeats. I fail to understand the Minister's attitude on this. It is important to clarify the legislative intent because that is the basis of our public policy. First of all, it is important that we do it because we are in a rather unique position as a country. We are the only country in the European Community which has a constitutional prohibition on the granting of divorce. Therefore it is legitimate that other jurisdictions want to know what we mean by public policy in this context. We do not have to look for strange examples arising out of gambling or any other arrangements. We have a very straightforward example and a very real difficulty and the onus is on us as a legislature to clarify the position.
This is my main reason for putting forward this amendment. I do not follow the reasoning of the Minister in saying that it would be an impertinence for us to impose on the Supreme Court a particular interpretation. This is not what would happen as the Minister must know: Any person who felt that this particular subsection was unconstitutional could challenge the wording of it. There is absolutely no intention or desire to interfere with the Judiciary and no risk that this amendment would either limit the powers of the Supreme Court or infringe on their proper authority. I would be the last person to wish to encroach upon the judicial authorities. In this sphere I think it would be helpful to the Judiciary if there was a clear statement of legislative intent and it would not at all deprive them of the ultimate power and function of deciding if such a proviso were challenged whether it was in fact compatible with Article 41, subsection (3).
I put it to the Minister that this question is a very fundamental one in the whole arrangement of recognition of enforcement of maintenance orders. It is the first question which the reciprocating jurisdictions must ask. It is a matter which should not be left in doubt. We can remove that doubt by a statement that in this context the formula "contrary to public policy" does not extend to refusing the recognition and enforcement of maintenance orders ancillary to divorce proceedings.
Briefly, what Senator Robinson and Senator Yeats said would be correct if there were no prohibition in the Constitution against divorce. They would then be clarifying the position consequent on an English decree. It would also be correct if there were no judicial decisions consequent on this provision in our Constitution. Article 41.3.10 says:
"The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack".
That is a declaration of public policy. That is in our Constitution.
What that declaration means in the light of any particular statute is for the courts to say. I repeat that it is not for us to attempt to direct the courts what to say in the light of that declaration of public policy. There are two decisions, the Mayo-Perrott case and the Caffin case in which the court has interpreted Article 41 in the context of how the consequences of a UK divorce affect the legal position of the parties here. To an extent one could say there is a conflict between those two decisions as to their consequences. This emphasises that this is an area that the courts themselves would have to resolve. It is not right for us to deal with the problem by saying: "Let us put it in and if it is unconstitutional, let it be challenged." We should lean backwards not to let anything in that might be challenged. The courts have indicated that the Constitution lays down public policy in this field. It was indicated quite clearly by Judge Kingsmill Moore in the Mayo-Perrott case that this is a matter of public policy to be interpreted by the courts. We cannot go any further than that.
Amendment put and declared lost.
Question proposed: "That section 9 stand part of the Bill".
A small matter of semantics—I am not clear on the purpose of including in line 2 of section 9 the words "but only if". I am not clear what this adds. If it stopped at the first "if" would it not do the job just as easily? Perhaps the Minister could enlighten me on that?
The three grounds for section 9 are the only grounds on which a maintenance order made in reciprocating jurisdiction may be refused recognition and enforcement here. The words "if, but only if" are to emphasise that there are no other grounds. It is a question of emphasis in the use of language in that particular context.
That is what I felt when I read it. That is what I do not like about it. Bills should not be drawn in a way which emphasises things. This would suggest if it were to become a legal practice that if you saw a Bill that spoke about something being enforceable "if", in some way this was less inclusive than another Bill which had "but only if". I would have thought that if you say in a Bill that such-and-such would only be recognised or enforceable if, and you list three different things, any lawyer or any court would inevitably hold that these were the provisions and that no others could be included. By adding "but only if" you suggest that all other items which do not have it require less emphasis and there could be other things brought in. I would prefer it if it just stopped at "if", which is legally clear, instead of trying to add emphasis which I suspect would merely lead to lack of legal clarity.
It is a matter of drafting technique.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill".
I would like clarification on the section. This section extends the principle of full faith and credit, that there would be no possibility of trying to get around the jurisdiction. This is contained in the convention. Is it proposed in negotiating with the EEC on the working party, to put any qualification on that? Are we satisfied that we can accept without any qualification full faith and credit to the awards made by other jurisdictions?
No. I think it is inherent in mutual recognition of decrees that there would have to be mutual acceptance of jurisdiction in all cases. If one country were unilaterally to put up question marks, very quickly another would do the same, and the whole idea of mutual acceptance would fall to the ground.
No. I had read about the possibility of very broad implications of this and I wondered if there were any reservations on extending full recognition.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill".
On section 11, I again would like clarification. I assume it applies to the situation about which the Minister corrected me on the Second Reading, where a deserted wife in England could get in England an attachment order against the wages of her husband, but if she was enforcing her order against the husband who had absconded to this country and was living in this country she would not be able to enforce the attachment order here because we do not have any equivalent machinery.
That would be one example of what would be covered by this. There might be others depending on the type of order made in the reciprocating jurisdiction. There might be two or three parts to it, one only which could be enforced here.
Question put and agreed to.
Sections 12 and 13 agreed to.
SECTION 14.
Question proposed: "That section 14 and part of the Bill".
I had noted in section 14, subsection (8), the particular role which the District Court clerk will play in initiating enforcement proceedings where there is a default. It seems to me that this is a procedure which ought to be available to the Irish deserted wife in the same circumstances as soon as possible. I wonder if the Minister could give an indication. It should not be very difficult to allow the Irish deserted wife to avail of it. It is quite an important one. The initiation of any sort of legal proceedings is extremely difficult for people who are not well advised, who do not have the benefit of legal aid and who are not properly instructed. It is important that we extend this particular procedure to Irish deserted wives in our own domestic situation.
The reason why the District Court clerk will act at the request of a deserted English wife is because she is not within the jurisdiction to do it herself. Whether the District Court clerk or some other court official should do it where both parties are within the jurisdiction is another matter. The whole question of the enforcement of summary judgments of all kinds will be considered in connection with implementation of the 19th Interim Report. I have a lot of sympathy with the Senator's point of view. That Report has been accepted in principle. The mechanics of it have not yet been worked out. The whole question of the enforcement of judgments is something which will have to be looked at to see if the court or court officials should be the people to enforce them rather than the debtors themselves. It may be that enforcement would be more effective if done that way. In this particular Bill, the reason for it is that the debtor is outside the jurisdiction.
Question put and agreed to.
Sections 15 and 16 agreed to.
SECTION 17
Question proposed: "That section 17 stand part of the Bill."
Again, seeking some clarification of Irish standards, this section will still not cover the situation where the deserted wife has been deserted but cannot trace the husband. If she is not able to find and serve him there still cannot be an exercise of jurisdiction. I can understand the difficulties involved. I was wondering the extent to which the Minister is confident it will be possible to improve the tracing techniques and the co-operation between the authorities in the different countries. Also, to what extent will it be possible to enroll voluntary organisations in this respect? In my limited experience of the problems of deserted wives here, the problem is not so much that their husbands have gone to England but that they cannot be traced. They will therefore be totally outside the scope of this Bill, as will their counterparts.
I think I dealt with this problem when I was replying to the Second Stage debate. The Bill is not intended to deal with the question of tracing the absconding husband. All it can do is provide the legal mechanism for suing him and obtaining weekly payments from him when he is located. How he is to be located is something which will have to be arranged administratively in discussion with the authorities in the other jurisdictions. I have no idea what proportion of husbands can be traced. It is not something on which there is any statistical evidence available. We will not know that until such time as this Bill is in operation and wives who have been deserted commence to operate it. The fact that they have failed to trace the husband will become known to the Department of Social Welfare. In the absence of weekly payments from the absconding husband they will have to seek social assistance from the State. The State will need to ascertain if an attempt was made to take proceedings in the reciprocating jurisdiction. In that way we shall be able to build up some idea of the size of the problem and then to determine what can be done to help trace the husbands.
As I indicated, I think information as to whereabouts is going to come via a grapevine of one kind or another. Many of these people will go to a particular Irish community in a particular part of Great Britain. They may go to relatives in Great Britain. That may be as far as they want to go. They will not go underground altogether. Word will filter back as to their whereabouts. I do not think it is a suitable matter for the police—asking the police to intervene in a domestic situation. Again, whether it is suitable for liaison between the two social security services of the States is something with question marks about it too, for reasons of confidentiality and such like considerations. The reality of it is that if an absconding husband wants to go underground in a complex metropolitan organised society like Great Britain he can pretty well disappear irrespective of what machinery is set up for tracing him.
Arising out of the Minister's reply, is it proposed to have some more organised monitoring system assessing the way in which this Bill recognising enforcements of maintenance orders between the two countries is operating? I can see that information might filter back in a rather ad hoc basis; but is it proposed to try to have a more co-ordinated and coherent monitoring system from the very beginning? I think this would be a very important extension of our knowledge.
There is no point in trying to set up that sort of system until we see the extent of the need for it. If there is a substantial need, that would predetermine a certain type of monitoring system, a system for gathering information as to the whereabouts of these people. If the need is not great, that would indicate another type of arrangement. We have to wait and see what sort of information becomes available as to the incidence of total desertion and ignorance as to the whereabouts of the absconding husband.
Question put and agreed to.
Sections 18 to 21, inclusive, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill".
In this section a number of statements contained in documents are admissible without further proof in court proceedings as evidence of any facts stated or certified therein to the same extent as evidence that the maker of the statement would be admissible in those proceedings. You have a number of these statements, some of which are obviously non-controversial, such as tax assessments, medical certificates and so on. I am less certain about the desirability of including others—such as, for example, a statement or certificate of earnings. A certificate is an official document. A statement of earnings could be anything. It could be a typewritten document from an employer that he had paid money to somebody, as we have at paragraph (e) (vi):
a letter written by or to a party to maintenance proceedings who is residing in a reciprocating jurisdiction...
This is an ordinary letter that somebody has hand-written. As I understand it, it is to be brought into court and may without further proof be admitted as evidence—not, I admit, as conclusive evidence. Nonetheless, it is evidence. It may be that all this is necessary, but I should like the Minister to explain why this rather drastic breach in the rules of evidence is said to be necessary.
They are rather drastic modifications of the ordinary rules of evidence. This is because of the peculiar nature of these proceedings. These proceedings will be taken in one jurisdiction against a person in another jurisdiction. If the laws of evidence were to be strictly adhered to, nothing could be adduced before the court hearing the application for a maintenance order unless the defendant were present to hand in documentary evidence that might be relevant or to give oral evidence. It is to obviate the need for people to travel between the two jurisdictions. If that need were there and could not be avoided, a lot of the purpose of the Bill would be lost. It is to allow a certain informality into the proceedings. For example a statement or a certificate or indeed a letter could be relevant to the court in deciding the means of the absconding debtor. The only other way that the court could get evidence would be to call him back home. He might not come because of the expense and the case could not be properly dealt with.
There is a certain informality I quite concede, in regard to the procedure introduced by this Bill but it is confined to proceedings under this Bill. I think it is unavoidable if the Bill is to be effective and if it is to do what it is intended to do to get after the people in another jurisdiction and make them live up to their obligations. I think the court would be very conscious—and this is spelt out in subsection (4)—of the dangers of not looking carefully and closely at any document that might be admitted in pursuance of this section. The court will give them what weight they deserve.
If we did not have these provisions permitting informal proofs the court would not in effect be able to make maintenance orders with any sort of reality about them where one of the parties was out of the jurisdiction. That is the reason why it is so drafted.
I appreciate, of course, what the Minister says. We are all very anxious that nothing should unreasonably be put in the way of the successful bringing of proceedings under this Act. The difficulty I see is that there are many Acts put through the Oireachtas for the most laudable purposes. If we were to adopt this sort of short circuiting procedure by putting in sections of this kind designed to make it easier to bring proceedings under these various Acts, we could end up making shreds of the rules of evidence. One can only agree with the intention but I really feel that in certain ways it goes too far.
I would go along with the production of any document that has an official base—some form of certificate, even a medical certificate. It is when you get down to a statement of earnings or the letter written by a party to the proceedings that it seems to me that one is going too far in the Minister's informal policy—which I think is excellent. In regard to a statement of earnings, which is provided by an employer surely it would be possible to insist that it be in some way validated by some kind of public official? I would have thought that that would be relatively simple.
In regard to the letter written by a party to a maintenance proceedings, does the Minister really feel that if you omitted that under (vi) it would seriously upset the workings of this Bill? I have a feeling that you could eliminate it altogether. Under (ii) insist that the statement of earnings be notarised in some way. In this way you would avoid the worst breaches of the ordinary rules of evidence and I do not think that you would seriously damage the Bill.
That letter, in fact, would be a letter written by the absconding husband to his wife. I think it could contain very relevant information for the assistance of the court in deciding the level of the order it was to make. Of course, it would be for the court to decide whether the court would give any weight at all to the letter. I agree that this is going far in modifying the traditional rules of evidence. The fact that it is done here for this peculiar situation does not mean that it will be repeated in any other Bill. I think it has to go this far if this Bill is to be effective. We have to allow a certain informality with regard to the evidence that is to be adduced if the Bill is to be effective. Otherwise the orders made would not be realistic. This is the reality of the situation. Of course it offends our legal sensibilities in regard to the law of evidence, but I think it is the only practical course to take.
I suppose we must go along with this. All I can say is that I hope that in a few years from now the Minister, or some other Minister, does not come into this House and defend a similar section on the basis that it was done in the Maintenance Orders Act of 1974. The Minister on a few occasions today has quoted drafting practice— this is what is done and that makes it all right. I hope that this is the only time that this appears because it raises most dangerous possibilities.
I do not think this Bill would be a precedent for anything like that again—it is much more than a drafting matter.
Question put and agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.