Skip to main content
Normal View

Seanad Éireann debate -
Tuesday, 23 Mar 1976

Vol. 83 No. 14

Family Law (Maintenance of Spouses and Children) Bill, 1975: Committee Stage.

Section 1 and 2 agreed to.
Question proposed: "That section 3 stand part of the Bill."

On the question of the definition of earnings, it seems to me that this makes provision for earnings only in the case where there is a salary or a wage. I want to make the point that later on in relation to the attachment of earnings the provisions do not take account of the self-employed. As I will be making a comment later on about the possibility of the inclusion of the self-employed, one would require a rather wider definition of earnings than currently appears, in other words, to take account of those whose income derives from some sources other than a straightforward wage or salary, not only professional classes but also shopkeepers and so on and the farming section of the community.

I should like to support Senator Halligan on this. One defect of the Bill as it stands—I am not quite sure what the proper solution to it would be—is that it does not effectively cover the self-employed person and give the wife of a self-employed person a genuine remedy in regard to maintenance and enable its enforcement through attachment of earnings. Since the Second Reading of the Bill I have had a number of examples of this type of problem. I have had approaches from the Association of Widows of Ireland on the grounds that their members have been contacted by nonmembers, wives of self-employed persons who refuse to support them and in some instance quite well-off farmers do not support their wives. Such a wife may get an order from the High Court but there is no way of enforcing it. This Bill does not meet that problem. I think it is quite a substantial defect in the Bill. I am glad that Senator Halligan has raised it and it will come up at a later stage in relation to the specific section on attachment of earnings. I would be grateful if the Minister would consider this problem and possibly come in with an amendment on Report Stage to meet the lacuna in the law.

Senators Halligan and Robinson are on the one word here but they are both wrong. There is a misunderstanding of the nature of attachment of earnings. Attachment of earnings is an order directed to a third party who has the control of the erring husband's money. It is only in that situation that you can have attachment. You cannot have attachment of earnings when there is no third party from whom income is coming and who can control the disposition of the income. That is why earnings have this rather limited meaning in the Bill.

The attachment of earnings will apply only where the debtor husband is in employment and there is an employer who pays regular wages and in whose hands the wages can be attached. Once income comes into the hands of the debtor, whether he be employed or self-employed, it is gone as far as attachment is concerned. There has to be a third party to whom the order can be directed in order to attach the earnings. The ordinary remedies are available against the self-employed person—the ordinary remedies of enforcement of judgments and so on. For example, the farmer who leases his farm could have an order made against the rent, and the court would then direct the person paying the rent to pay it or a proportion of it to the wife. In effect a procedure analogous to attachment is available here. The essence of attachment as proposed in this Bill and as used in other jurisdictions is that it is an order to an employer. It does not and was never intended to apply in the case of a self-employed person. The ordinary legal remedies are available in the latter case.

Is there any particular reason why this should be restricted to employers and employees? I am thinking of a partnership situation. Is there another procedure by which it could all be wrapped up in the one Bill? From the point of view of a professional man trying to advise on rights, it would be very convenient if it was all in one document.

This Bill provides for maintenance. That is the essence of the Bill. To ensure the payment of maintenance an easier system of collection is provided and this system is ancillary to the main proposal in the Bill. This system of collection applies to people who are in employment. The payments can be collected direct from their employers. It is easy to go against an employer. The mechanism that is provided in this Bill operates with the assistance of the District Court clerk and is easily operated. Attachment can, as I say, only arise in the case of the employed person, where there is an employer controlling a regular flow of weekly or monthly salary or earnings to a debtor. In the case of the partner or the farmer or the businessman, the ordinary remedies of the law would have to be used. It would not be apt to have an attachment procedure against a partner because the earnings of the partnership are not regular and may vary. I do not know whether it would be apt to have the District Court clerk intervening between Senator FitzGerald and one of his partners to attach some of the earnings being received. The other type of procedure would be the proper one. There could be a garnishee order or an enforcement order under the Enforcement of Court Orders Acts.

I do not want to fall into the trap of criticising a reforming Minister for not being sufficiently reforming which is often the case. Nothing has been done for years and when this Government begin to do something they are criticised. Criticism would not be heaped on them if they had not begun reforming in the first place. I do not want to do that. I take the point which the Minister has made. If you take it that only about a half to two-thirds of all workers in the State are covered by this definition, and if we have this new procedure in section 10 which is based upon the definition here, the attachment of earnings, which is a very welcome innovation and which I strongly support we are giving the wives of certain erring husbands rights which other wives have not got. The Minister says there are other courses of action open to them. There is one other class of people against whom this type of order might lie, for example, farmers. Both marts and creameries are in a position analogous to that of an employer/employee relationship. Might not the definition be widened to include that? I know that in our circumstances there is always great difficulty about the inclusion of the self-employed, for example, in the social welfare code and also in the taxation structure. But other countries have managed to include the self-employed and the farming community in this sort of legislation. Would it not be possible, say in the case of farmers deriving the main source of their income either from creameries or from marts, to permit the same type of attachment proceedings? The same type of problems lie in the field of social welfare, and insurance and they lie quite clearly in the field of income taxation. I know this is an administrative problem.

It is essentially an administrative problem. What we are proposing is in ease of the position of the wife whose husband is in regular employment. Senator Halligan is speaking of the person who is self-employed but who has a regular source of income. I think that the regular flow of income from the sale of milk is not analogous to the regular weekly wage packet. There are seasonal fluctuations. There is also the fact of privacy but that is hardly relevant in this area. A wife can get a judgment for maintenance against her husband and, if he is a farmer, have it enforced in the ordinary way. If he refuses to pay, she then has the remedy that is available to her under the Enforcement of Court Orders Acts, 1926 and 1940. She can ask the District Court to provide for a weekly instalment. If that is not paid, she can then apply to have her husband imprisoned.

The ineffectiveness of the imprisonment remedy for the man who is earning a weekly wage is obvious. However, the wife of the self-employed farmer who is in prison is in a different position because the farm income can continue. She can frighten her husband into payment by threatening him with imprisonment. This does not cut off the family income, which is still coming from the farm. She can in addition get an order from the court directing that the amount of the debt be stopped by the creamery. This type of remedy would not be feasible in the case of the sale of cattle.

The IFA finance themselves out of those sales.

A farmer might sell cattle only twice a year. That would be the average. I do not think you could attach at all. It might be possible to attach in the case of a farmer who is sending milk regularly to the creamery. I could see a lot of administrative difficulties in the way of doing this because milk is seasonal. The supply fluctuates and some farmers have had to get out of milk because of brucellosis in their herd which ends milk supply. I think that for the self-employed person the ordinary remedies that are already in the law are appropriate ones. Attachment of earnings is pecularly effective and should be confined and is properly confined to the case of the wage-earning husband who is regularly employed. I would like time to think about the consequences of directing a co-operative creamery to deduct from the milk cheque, in the absence of agreement by the farmer. I do not know whether this could be effectively done in this Bill. You could open all sorts of problems. I would not be at all happy about it.

I would be quite happy with an assurance that the Minister is thinking about it and we can discuss it again on Report Stage.

I should like briefly to add my voice to the point made by Senator Halligan. Perhaps we have all walked into the earnings trap when really what we should have been thinking about all along was the attachment of income, which is a much wider policy. I accept the Minister's point that there are very wide administrative problems attached to applying this to the self-employed. I do not think we should be thinking solely of the farming community in this regard. He has given us a fairly adequate answer to the possibilities within the farming community, but there are the professional people.

A good example is the doctor who is self-employed. It seems to me that there is quite a gap in the Bill because of the fact that these people are not covered in the same way as the employee is. I accept the normal remedies are there and they can be applied to them, but it is a serious matter that those normal remedies have not been all that effective. I accept the severe problems attached to this which Senator Halligan has mentioned, the whole problem of self-employed in relation to social benefits. I imagine that the national pension scheme will be another area that will create problems. I think this is something we should have a serious look at. If we had thought more of the attachment of income rather than attachment of earnings we might not have walked into this problem.

When you speak of attaching income, that implies that you are concerned with an order to a third party who has control over the income and who stops from it the amount due under the court order.

Like the Revenue Commissioners.

Not the Revenue Commissioners; they come only twice a year. The only self-employed person I can see coming into this area would possibly be the dairy farmer who has a regular monthly cheque from the creamery where there is a third party paying a regular income to him. The case of the self-employed person, the businessman, the doctor, or the solicitor who is getting fees on an irregular basis is different. To whom would you direct the order to stop the amount of the income? There would be very many clients or patients or customers contributing the income. You could not devise an effective mechanism in such cases.

I accept there would be administrative problems, but take for example the question of a doctor who does some work under the national health scheme and gets a cheque from the Department of Social Welfare. Would that be included as income? It is not regular. It would depend on the number of cases he had.

It would not matter. It does not have to be regular because earnings by reason of the definition means:

... any sum payable ... by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service).

The income would not have to be absolutely regular.

Would it include barristers getting State fees?

It might, but only in certain circumstances.

It would include service companies.

I should like to support very strongly a few points put forward by Senators Halligan and Owens. The defect is the fact that this Bill concentrates on earnings of persons employed and the effective measure is the attachment of earnings through the device of the District Court clerk getting at those earnings and I do not see how under that system you can include a self-employed person for the reason the Minister has given. This brings me back to one of the essential defects, in my view, of this Bill, that it does not interpose a State agency between the deserted wife, single mother or whoever it is, and the debtor. If you do that, it would be much better if you had an agency of the State paying the deserted wife or single mother what was appropriate and then recovering from the self-employed husband or the self-employed father of the dependent children the amount.

The real defect—and I think the Minister knows this—is that it is not possible for an unmaintained wife to start bringing proceedings against her husband which may ultimately result in his imprisonment. First, psychologically she does not want to do that because it may destroy a marriage which might have some potential. Second, it may cut off the earning power of the self-employed person if she tries to enforce it. It may be a question of trying to enforce it in a way which again would deprive the husband of earning power. Therefore, the major defect shown up by this discussion is that it should not be an individual involved who has to initiate the proceedings. That is the position in many countries.

I read the debate on the Second Stage of this Bill and I was surprised that the Minister seemed to think this was an appalling proposal of mine that would intrude in the family life of individuals. This is a very common mechanism in the most developed, democratic states. It would be the only way I can see of meeting the problem which has been identified here: the problem of the wife of the self-employed person, somebody claiming for maintenance against a self-employed person, whether a trader, professional person, farmer and so on. It also would improve the whole position of dependent people in this area, wives seeking maintenance or single mothers, that they did not themselves have the confrontation of initiating procedure and bringing the defaulting person into court.

Senator Robinson is saying that in the case of a self-employed person, if I understand her correctly, the State would come in and try and recover the amount and, if unable to do this, would pay in advance and then recoup itself. I think that would be a social welfare matter. If you had a self-employed person who was unwilling to maintain his wife, I do not see how that person is going to become any more willing to pay the State. The State would have to adopt the same remedies as those available to the wife, whether against the property of the husband or against his earnings. If the property is seized and the source of income thereby cut off or if the husband is imprisoned for non-payment, the earning capacity is ended, and you are then in the social welfare area and not the maintenance area. What I am providing for in this Bill is a power in the court to order maintenance, and, in the case of an employed person, an easier way of collecting the maintenance.

If it goes to the stage that Senator Robinson speaks of, we are getting into the field of the State paying social welfare for failure to maintain: that is a different and wider area. I think the legal remedies that are available for the wife of the self-employed person are reasonably adequate. The ordinary legal remedies under the Enforcement of Court Orders Acts strengthen the other procedures. If you have a husband who is so bitter that he will go to prison or will see his property sold so that he can have no more earning capacity, there is nothing you can do about him. At that stage, it becomes a matter of social welfare. That is as far as we can go.

Question put and agreed to.
Section 4 agreed to.

I move amendment No. 1:

In page 5, line 30, to delete "and" and substitute "or".

I mentioned on Second Stage I felt that in the very important provision for making maintenance orders under section 5 the wording might give a technical defence. I would welcome the views of other people as to whether I am seeing this in too narrow a sense but it seems to me that it might be construed so as to defeat the objective of making maintenance orders under section 5. Section 5 (1) (a) provides:

Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances...

If the maintenance debtor in those circumstances had made provision either for the maintenance spouse or for the dependent children he could escape liability there because the burden of proof is to prove that he has failed both to maintain the spouse and any dependent children. It is a technical point and I would feel that if the word "or" were substituted for "and" it would eliminate that possible difficulty. I could see a possible technical defence that in making an application here the spouse has failed to prove that the other spouse has failed to provide maintenance for the applicant spouse and any dependent children. What might happen, and this was inevitably the case until 1971, is that there might be maintenance for the spouse but there might not be any maintenance for the dependent children. Then the applicant spouse comes in but cannot prove that the spouse was not maintaining both spouse and dependent children. If the Minister does not take the point I certainly will not press it.

We have considered this and we feel that if we were to accept the amendment it would have the effect that Senator Robinson fears in regard to the present drafting. We have consulted the expert, the draftsman, and he is perfectly satisfied that the word "and" is the proper word to have here. I could give the Senator the arguments we have, but we would be getting into a semantic area and we might be a half-an-hour on it and still not convince each other. But I am satisfied on the expert advice that "and" is the correct word and not "or".

I have no hesitation in bowing to the superior wisdom of the draftsman.

Amendment, by leave, withdrawn.

I move amendment No. 2:

To add to the section a new subsection as follows:—

"(5) The Court, in deciding whether to make a maintenance order and, if it decides to do so, in determining the amount of any payment, may

(a) order the maintenance debtor to give to the Court, within a specified period, a statement in writing signed by him of—

(i) the name and address of any person by whom earnings are paid to him,

(ii) specified particulars as to his earnings and expected earnings and as to his resources and needs, and

(iii) specified particulars for enabling the maintenance debtor to be identified by any employer of his,

(b) order any person appearing to the Court to have the maintenance debtor in his employment to give to the Court, within a specified period, a statement signed by that person, or on his behalf, of specified particulars of the maintenance debtor's earnings and expected earnings."

Amendments Nos. 2 and 3 form a composite proposal and may be debated together.

These amendments would write into the provisions for making a maintenance order under section 5 a provision that at that stage the court would have the proper knowledge and equipment to make the maintenance order, in other words, that the court would have the same right to a statement of earnings as the court ultimately has when called upon to make an attachment order. It is very strange that we would confer on the court a power to get a statement of earnings at the stage of making an attachment order but not provide for this at the stage of making the original maintenance order. It is very important that the court has the possibility of getting this information so that when the original maintenance order is made, given the sort of broad and appropriate discretion which the district justice has to look at the very broad picture of the possible income, direct or indirect, of both spouses in order to define what is equitable and just in the circumstances, that at that stage that the district justice has the same powers to acquire a statement of earnings by the debtor and also by the employer. The first of these amendments would add a new subsection to section 5 in these terms and the following amendment would add the following subsection:

"(6) In any proceedings in relation to a maintenance order, a statement given to the Court in compliance with an order under paragraph (a) or (b) of subsection (5) of this section shall be admissible as evidence of the facts stated therein, and a document purporting to be such a statement shall be deemed, unless the contrary is shown, to be a statement so given."

I would remind Senators that the court has power under section 7 to make an interim order pending getting this further information, so there is no question that the wife, or the single mother in the circumstances, would be at a loss in the intervening period because a final maintenance order had not been made. It will be perfectly open to the district justice, on the basis of the sort of information available to him, to make an interim order and require statements of earnings in appropriate situations in order to make a just and equitable maintenance order in all the circumstances with the same sort of equipment to do it as we have been giving him in this Bill in relation to making an attachment order.

I would refer the House to subsection (4) which covers all the things that the court has to take into account in deciding whether to make the maintenance order and the amount. The court is directed to take into account the income and earning capacity and all the resources of the family. Once the court has to do this, it hardly requires the direction proposed in the amendment. The court will have all the ordinary procedures available to it; and the wife who is seeking the order is going to adduce evidence to show the court what the position of the husband is.

Most wives do not know what their husbands earn, I am afraid.

The point is that a wife will be taking an action for maintenance and will be asking the court to award maintenance. In the case of a woman who does not know the exact position of her husband, the court can be asked for the maximum. The court will not make any order until it finds out what the traffic will bear, so to speak. The court can issue subpoenas to the various people and get in all the information that it wants in order to be able to make up its mind. Let me say that that is the position at the moment where an application for maintenance is made. The wife comes in and says what she believes the husband to be earning now; the court can subpoena him to find out exactly what he is earning and can in addition satisfy itself by other evidence as to the earnings. The court can get whatever evidence it needs for the particular case.

A further difficulty I see in this amendment is that it would involve a whole set of District Court rules to provide for the forms to be filled and so on. I can see a little bureaucracy creeping in here. I prefer to leave it to the court to get the evidence itself in each particular case.

The position with regard to the attachment of earnings is somewhat different in that there is a matter of judicial calculation involved in bringing the attachment of earnings machinery into operation. In maintenance proceedings, I would prefer to leave it to the court to get the information itself.

Would the Minister accept that the court would be in a better position to make the original maintenance order at the appropriate level if it had power to call for the same sort of evidence or statement of earnings by the maintenance debtor and/or by his lawyer as at the stage of attachment of earnings, and would he further take the point that if the statement of earnings coming from the maintenance debtor and from the employer were available at the stage of making the maintenance order it could speed up and improve attachment of earnings?

There could be a control of the statements produced at the stage of looking for attachment of earnings. What I cannot quite follow is why this would give rise to particularly difficult procedure rules in the District Court which are different in kind and in quantity and quality from the sort of District Court rules that will have to be drawn up anyway in the case of attachment of earnings.

I would be very reluctant to concede that bureaucratic difficulty should prevent what I genuinely think is a defect in the present law. I think it is a defect and that district justices operating in the present procedure would concede that in too many instances they do not have an accurate account. It is not so easy to subpeona witnesses to come and to have a full hearing. It involves having counsel in the case, having a sort of hearing that is not the custom as often as not in these particular proceedings, and it would be much more preferable to allow the initiative to the district justice to call for a statement of earnings from the employee and his employer. This would apply only to those within the category of earnings as defined. Nevertheless, I think it would be an improvement to have this at the stage of establishing the maintenance order as well as at the stage of attachment of earnings.

I do not know about this. Normally, before the court can make a mainteance order, it has to know what the man is earning.

But it does not at the moment. It operates a lot in the dark and it still will.

If the court, through its subpoena machinery, or if the parties, through their power to call witnesses, cannot provide information for the court, what the Senator proposes here will not do it either. I do not see how her proposal would cure the position. I am quite satisfied that, in the normal case, the wife will be making the application and will know whether her husband is working. It is a simple matter for the court to send for him or the employer. She might not know what her husband is earning, but surely it is inconceivable that she will not know where he is working. It is really a matter for the court to call the employer and all the information will then be readily available.

There are already a set of District Court rules being prepared to deal with this legislation. To add to them by having a further set of rules and forms with particulars of earnings and so on would cause totally unnecessary procedural problems. I think witnesses may be brought and may submit documentary evidence. I doubt if we should have a lot of forms that have to be filled, with different forms for different cases, and so on.

Amendment put and declared lost.

I move amendment No. 3:

To add to the section a new subsection as follows:—

"(6) In any proceedings in relation to a maintenance order, a statement given to the Court in compliance with an order under paragraph (a) or (b) of subsection (5) of this section shall be admissible as evidence of the facts stated therein, and a document purporting to be such a statement shall be deemed, unless the contrary is shown, to be a statement so given."

Amendment put and declared lost.
Section 5 agreed to.
Section 6 and 7 agreed to.

I move amendment No. 4:

In page 7, line 40, before "after" to insert "whether entered into before or".

This amendment is to meet the point that, as section 8 stands, the section relates only to marital agreements entered into after the commencement of this Act. I felt—I think Senator FitzGerald supported this view on Second Stage—that this was unnecessarily restrictive. For example, the attachment of earnings if marital agreements were entered into, should apply to agreements entered into before as well as after the commencement of the Act.

It is clear that the application would have to be made to the court for an order making the agreement a rule of court and then the provision for attachment of earnings and so on would apply and the other provisions in the Bill. I did not accept the argument put forward by the Minister on Second Stage that this would be unfair to those who had entered into marital agreements, that they had entered into them on a certain basis, and now we will be changing the law and putting them on different footing. I think that is a strange approach. It is a kind of free enterprise approach to the whole situation.

This is not the essence of free contracting between equally strong economic partners. This is a case of the law trying to provide for the difficult circumstances of a breakdown in the marital arrangement which is to be solved by a marital agreement or a separation arrangement. I think that for many reasons these arrangements should be encouraged between the parties. Some of them in the past have been entered into most unwisely and the spouses have foregone their rights under them. Yet the Minister makes it clear now that under section 27 agreements shall be void in so far as that they would have the effect of excluding or limiting the operation of any proceeding under this Bill.

The Minister is prepared to declare provisions of marital agreements void if they are in conflict with the provisions of this Bill. That is a very welcome provision, even though the intention of the parties at the time was an intention to enter into free contractual arrangements. I am not at all persuaded by the approach of the Minister in relation to this question. I think it would be a substantial net improvement if the provisions of section 8 related to marital agreements including separation agreements entered into before as well as after the commencement of this Act. I should like to know the Minister's response to this.

I would still make the same response as I made on Second Stage and which Senator Robinson finds inadequate. I think that, as I said then, this proposal involves changing the rules of the game for those who are already playing it. To me there is something inequitable about that and many people might rightly feel aggrieved to find that a contract they had entered ten years ago or five years ago was now suddenly subject to incidents which they never contemplated at the time and that could be unfair to them. It is not an argument to say that the patries to the agreement were not on an equal footing. We have to assume that they were on an equal footing and that the agreement was a voluntary contract. Otherwise every contract should be subject to question or subject to being impugned on this ground. We must assume that a contract freely entered into was voluntarily entered into, that it is an equitable contract as between the parties and represents their agreement. Hindsight may show that there is an onerous clause in it in one way or the other but that is something that is inherent in all contracts. The passage of time may change one's perspective and one's idea of whether it was a good or a bad contract. Indeed, at the time it was entered into, it may have been essentially a compromise. Indeed, it could well have been a compromise between two positions, and a compromise is never totally satisfactory for either party.

So there is that kind of atmosphere about it; but if the Oireachtas were to come along now and add a further incident to a contract entered into X number of years before the passage of this Bill and operating ever since, that could be unfair. If it were known at the time when it was being entered into that it might be subsequently altered by Statute, it might never have been entered into at all or there might have been clauses in it that would have been different. If the maintenance provision turns out to be a bad bargain subsequently, the spouse concerned may proceed for maintenance under this legislation. Then a maintenance order can be made against the other spouse, notwithstanding the separation agreement. Therefore, old agreements will not necessarily inhibit the right of a wife after the passage of this Bill to come and look for a maintenance order. It will not be a defence for the husband to say to the court: "Under the agreement, my lord, I have discharged my obligation." That will not be an answer any more.

Would the Minister accept, if he is still basing his objections to this amendment on the question of the agreement entered into by the parties at the time, that the application to make it a rule of court would have had to take place after the passing of this Bill? Therefore there would be an application by the spouse to make the agreement a rule of court and to have the advantage of the District Court clerk procedure and the attachment of earnings procedure ultimately. There would be an opportunity for the husband to say: "It is most unfair to me. This should not be made an order of the court and I want a variation."

That would not get us any further as it would bring into contention an agreement that was finalised X number of years before.

I take the point that some agreements may be badly drafted or that they may not have any provision in them for revision. That again is part of the freedom given to people to enter into bad agreements. Indeed it may have been deliberate on one party's part not to have provision for revision. It could, conceivably, be the case too that the other party agreed that there would be no revision clause in the contract because of other provisions in it. If the Oireachtas were to allow an application of the nature suggested to go to the court, we could be entering into the area of allowing contracts freely and voluntarily entered into to be set at naught. There would be argument before the court as to whether the agreement was a good, bad or indifferent agreement. If both parties are agreeable, there is nothing to prevent them rewriting their agreement in exactly the same terms and having it made a rule of court under section 8 of this Bill.

Amendment put and declared lost.
Section 8 agreed to.
Question proposed: "That section 9 stand part of the Bill."

I should like to ask the Minister about the operation of this machinery involving the District Court clerk. Subsection (2) reads:

Where payments to the District Court clerk under this section are in arrear, the District Court clerk shall, if the maintenance creditor so requests in writing, take such steps as he considers reasonable in the circumstances to recover the sums in arrear whether by proceeding in his own name for an attachment of earnings order or otherwise.

Did the Minister consider the possibility of a time limit at that stage, or is there any limit? If there is a week's default and the spouse being maintained writes to the District Court clerk, is it then at the discretion of the District Court clerk how to follow that up? He must follow it up either by writing a letter or by instituting an attachment of earnings. He does not have the discretion not to act. I wondered if this question of a time limit had been considered?

The intention is that, once there is an arrear, even one week's arrear, the spouse to whom the money is due may ask the District Court clerk to act on her behalf. Does Senator Robinson wish to know how soon after that the District Court clerk would act?

Yes, that was part of it. I understand there is a four weeks limit operating in England under this legislation, but I am not very well informed about it.

He can act after one default. One reason for this is to avoid hardship on the spouse in question.

That is there at the moment.

No, it is a new provision. Where there is an attachment of earnings order and there is an arrear of one week, that is enough. I have no doubt that the District Court clerks, having regard to the level of efficiency at which they operate, would not normally allow another week to go by before acting.

Question put and agreed to.
Government amendment No. 5:
In page 9, subsection (2), line 27, after "person who" to insert "(at the time of the making of the order or at any time thereafter)".

This amendment is to put beyond doubt the fact that an attachment of earnings order will be effective against a second or subsequent employer, without the need for a new order being made every time the debtor changes his employment. It has always been intended that this is how the system will operate and the amendment is designed to ensure that no other interpretation is possible. I do not think any other interpretation could reasonably be made, but this amendment will remove any doubt.

Amendment agreed to.
Question proposed: "That section 10, as amended, stand part of the Bill."

I want to ask the Minister if the matter I raised on Second Stage has been looked into and whether it is a real problem under section 10 (2) (b), which reads:

... in any other case, to the person referred to in paragraph (a) of this subsection...

If we look at paragraph (a) it says:

in case the relevant antecedent order is an enforceable maintenance order, to the District Court clerk specified by the attachment of earnings order...

Paragraph (b) then states:

...if the Court considers proper, to the District Court clerk specified by the attachment of earnings order...

It seems to be repeating. The person named in paragraph (a), is the District Court clerk specified and the person in paragraph (b) is the District Court clerk, specified.

The matter was looked at.

Perhaps the Minister will reconsider this matter.

I will consider it in regard to one limited area, that is, a farmer with a regular milk cheque.

I do not want to single out the unfortunate farmer.

I cannot see that the attachment of earnings procedure could be used against anyone who is a self-employed person and whose income is being obtained from services given to a variety of people. There must be a specific third party paying money regularly to the debtor before the procedure can be effective. I do not want to over-emphasise the case of the farmer, but he is the only person I can think of who is in receipt of a regular income of a more or less consistent amount, even if subject to seasonal fluctuations. The problem will be looked at before the next Stage.

Question put and agreed to.
Section 11 to 19, inclusive, agreed to.

I move amendment No. 6:

In subsection (2), page 13, line 48, after "misleading" to insert "or fails to notify where required to do so by section 14 (a)".

This amendment is to meet a point I raised on Second Stage where it appeared that the defaulting maintenance debtor is not penalised for failure to notify where required to do so by section 14 (a) of the Bill which reads:

Where ... the maintenance debtor shall notify in writing the Court that made the order of every occasion on which he leaves any employment, or becomes employed or re-employed, not later (in each case) than ten days from the date on which he does so,

Under the provisions of section 20 relating to penalties the maintenance debtor is civilly liable, but he is civilly liable anyway in the circumstances, so that does not add anything to his liability. He is not liable to any penalty for failure to notify the court of a change of employment. It is my understanding from speaking to somebody who is familiar with the English provisions of attachment of earnings that one of the greatest ways of evading the operation of it is to change employment fairly rapidly and not inform the court. It is not so much a question of enforcement procedure; it is a fact that this is a very good way of evading the attachment of earnings provision of this Bill.

It would be better if the maintenance debtor was aware that he would incur a criminal penalty if he did evade by failure to notify within ten days. It is failure to notify knowingly: nobody would be unwittingly open to penalties of this sort, and I am sure discretion would be exercised. But it would provide for the closing of an important loophole in the enforcement machinery. I suppose none of us will know until about three or four years have elapsed to what extent this does allow for evasion, but the experience of another jurisdiction is that it is a substantial way of evading the operation of the attachment of earnings provisions.

I doubt if the problem will be as great here because our society is more intimate and has more knowledge of who is doing what. There are still small communities where it would be difficult for a person to escape by failure to give information. The Bill proposes that a wilful misstatement will be an offence. In other words, lying to the court will be criminal. I think that is fair enough because it is important that the law should ensure that evidence before our courts will be accurate.

With regard to omissions or failures to make statements, the approach of the criminal law, traditionally, has been different. If we were to make failure to give notification of a change of employment a criminal offence, as the amendment proposes, we would then have the incongruous position whereby failure to give notice would be an offence but failure to comply with the maintenance order would not. We would also be bringing civil relationships into the criminal sphere. Giving false information is made criminal because it is lying to the court—something that comes within the normal realm of the criminal law. If failure to act became a criminal offence, proof of the offence would be extremely difficult. It would have to be made an offence for which intent would be necessary and you would have the great difficulty of proving guilty knowledge. To establish that a person knowingly and deliberately omitted to do something would be extremely difficult, so difficult that it would be impossible to prove. In the search for proof there would have to be a Garda presence to check the place of employment of the worker. You can understand the consequences of Garda inquiries about A, B and C: Were they here? When did they leave? Where did they go, and so on. I think we will just have to leave it as it is: that a positive mis-statement will be a criminal offence on the grounds that it is lying to the court. For the reasons I have given, a failure to inform should not be made a criminal offence.

I would hope that the loophole the Senator is afraid of will not be a big one because of the different structure of our society. Should it turn out to be, if experience shows that it is a serious loophole, we may have to look at it again. As of now, we should leave it as it stands.

Amendment, by leave, withdrawn.
Section 20 agreed to.
Section 21 agreed to.
Government amendment No. 7:
In page 15, after subsection (6), to insert the following subsection:
"(7) Where, by reason only of an order under subsection (1) of this section, a person is not residing at a place during any period, he shall be deemed, for the purposes of any rights under the Landlord and Tenant Acts, 1931 to 1971, the Statute of Limitations, 1957, or the Rent Restrictions Acts, 1960 and 1967, to be residing at the place during that period."

This amendment is seeking to amend section 22 which is the section that permits the District Court to exclude a violent spouse from the family home. The purpose of the amendment is to protect any rights that the evicted spouse may have as a tenant under relevant legislation or that he may be in the course of acquiring under the Statute of Limitations, the relevant legislation being the legislation referred to in the amendment, that is the Landlord and Tenant Acts, and the Rent Restrictions Acts. Under these Acts it is necessary in certain cases to have continuous occupation or possession. We would not like a right to be lost by reason of the exercise of the power under section 22 because breaking the time might react on the family, their rights of their tenancy in the house being adversely affected. We will also have to have an analogous provision in the Bill being drafted to deal with the protection of the family home.

Amendment agreed to.
Section 22, as amended, agreed to.

An Leas-Chathaoirleach

Amendments Nos. 8 and 12 may be taken together.

I move amendment No. 8:

To add to the section a new subsection as follows:—

"(4) (a) The Minister may from time to time by orders vary the amount of any sum specified in this section.

(b) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order is passed by either such House within the next twenty-one sitting days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder."

The purpose of this amendment is to add a new subsection to section 23 a subsection which, in fact, would confer new power on the Minister. It would be an important new power. It would vary from time to time the amount of income specified in section 23 and, under the second amendment, in section 28. Every order made under the sections should be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order is passed within 21 days the order would be annulled. This is necessary. The particular payments set out in section 23 are set out in terms of the maximum that can be paid and this is in March, 1976. At a time of high inflation to fix a ceiling in a statute of this sort is unwise. What may seem generous in 1976 may not be adequate in three years' time if we continue at the same rate of inflation. Particular ceilings in section 23 relate to the amounts in which the District Court and Circuit Court on appeal from the District Court may make maintenance orders. Section 23 (2) (a) reads:

The District Court and the Circuit Court) on appeal from the District Court shall not have jurisdiction to make an order under this Act for the payment of a periodical sum at a rate greater than £40 per week for the support of a spouse or £10 per week for the support of a child.

I have no doubt that, in general Irish terms, £40 for a spouse and £10 for each dependent child would be considered to be relatively generous, given that a person can go to the High Court for an unlimited sum, but it is to the District Court that the vast majority of spouses will go in order to seek maintenance orders. The High Court remedy is not a very effective one in the circumstances. We have to deal with the ceiling as written into the section.

I would welcome the attitude of the Minister if he would accept that it would be much more preferable that he could, by ministerial order from time to time, raise the limits, that there would be the opportunity for parliamentary control by having the requirement that they be tabled and that they can be annulled by either House. This would avoid two problems in the present situation.

First of all, the one that I have mentioned, the fact that ceilings written in in March, 1976, may not be appropriate in three years' time. Secondly, even if the Minister is responsive to the need to raise the ceiling and to bring in, for example £20 for each dependent child in about three years' time, he has to bring in a new Bill. This means that the persons who want to know what their rights are will have to look not merely at the Family Law (Maintenance of Spouses and Children) Act, 1976, but also at an amending Act, which may be a miscellaneous amending Act in which there is a section tucked in to amend this, as we saw in the Courts Act, 1971—amendments to the Act relating to illegitimate children, amendments to the Act relating to deserted wives. It is difficult for lawyers who are qualified and equipped to advise, and it is still more difficult for the human beings involved to know what their actual rights are. It is necessary in these types of provisions that the Minister take power to amend.

In relation to section 28, which relates to provisions to the amendment of the Illegitimate Children (Affiliations) Act, 1930 and the Courts Act, 1971, the argument is well made. In section 28, amending the Courts Act, 1971, the Minister has amended the 1930 Act. So in the space of five years he finds it necessary in the Act, in conjunction with other very welcome amendments and the extension of the remedy of attachment of earnings, the District Court procedure and so on, to increase the ceilings that were in the Courts Act, 1971. He will have the same problem in about three or four years' time, and it will not be done as speedily as it might be done if it involves putting a Bill through both Houses of the Oireachtas. I am sure the Minister would be more eloquent than I would be on the difficulties of steering a Bill through both Houses. It would be much more preferable that there can be a flexible response and that the Minister can make an order from time to time fixing the amounts. I hope the Minister's response will be a willingness to take on this particular power.

Again I am in a position of supporting Senator Robinson. I am glad to be in that position having opposed her so vigorously earlier on in the day. The Minister has introduced some very welcome amendments of his own so that the Bill must go back to the Dáil anyway. I hope that he will accept Senator Robinson's amendment. I did not get the opportunity of speaking on Second Stage, through an omission on my own part, but if I had I would have spoken very forcibly on the need to redraft this section.

The amounts involved in the section at present, as the Minister said in his Second Reading speech, are generous by current standards. He gave the example of a family, a spouse and four children, which would amount to £80 per week. But if we take into account that incomes rose last year by 29 per cent and that we are going to continue to live in times of, if not high, at least relatively high, inflation, we are, hopefully, going to live in times of national wage agreements. Then we can take that these maxima, which are currently being described as generous, will, within a period of from three to five years, be coming under pressure and will be described as insufficient. Then the letter of the law will be running against the spirit of the law, because the spirit of the law is quite clear. The Minister is determined to give to the District and Circuit Courts the opportunity of ensuring that there is very adequate maintenance indeed. As Senator Robinson said, it is before those two courts that the majority of cases will be heard and determined.

We are in a quasi-social welfare area. The great flaw in social welfare legislation is the large number of Acts and amending Acts. We know that the Parliamentary Secretary is at the moment in the process of codifying the law. This is a task which has been embarked upon with some trepidation but which has been welcomed by social workers throughout the country, as an endeavour to simplify existing complex legislation which often operates as an obstacle to people learning to know their rights with ease. In 30 or 40 years' time this Act might have five or six amending Acts built upon it, varying the amounts as set down in section 23 (2) (a). The point could be dealt with simply by this new subsection (4) (a), giving the Minister the power to very the amounts from time to time and permitting parliamentary scrutiny of the orders so amending the amounts.

There is another argument I would put in favour of building in this new subsection (4). When limits are raised for any payment, in the first place the Minister must get Government approval, other Departments have got to be consulted, and in all cases valid objection can be made against raising limits. At the moment under the Health Acts and Social Welfare Acts, as limits for insurability have got to be raised continually it inevitably leads to an annual cycle of debate and criticism and this makes Minister more reluctant than they might otherwise be to bring the limits originally laid down into line with the depreciation in the value of money. The Minister should relieve himself and his successors of this particular obstacle which runs against the generous spirit of the Act. I do not think the House would object to the Minister taking unto himself this power. We have criticised, and rightly so, legislation by order, but this would be a welcome inclusion of this principle.

I would urge the Minister to do this. I have long been a believer in not incorporating specific sums or limits in legislation. Tomorrow we shall be debating this on the Corporation Tax Bill and on the Capital Acquisitions Bill and on the Minister for Finance. We shall be asking him to include an inflationary clause in various limits in corporation tax legislation. The same principle applies here. We are writing into the Bill specific sums —£40 per week, £10 per week—which are going to be irrelevant within a year or two years or three years. There could be written in an inflationary clause geared to the consumer price index, as is done in many contracts at present and also in trade union negotiations, or it could be done in the more practical and traditional way suggested in the amendment by Senator Robinson, that is by giving the Minister the flexibility to do it by way of order.

This has been done in a very practical way in some areas already, for example, in our own Oireachtas allowances. It can be done over a wide area with the use of common sense. I should like to assure the public that there is nothing wrong about this, that the order making the increase in accordance with the cost of living must be laid on the table of the House—and it may lie there for certain while, as we know from our experience earlier this afternoon—where it can be fully debated. Why not have it that way? As Senator Halligan said, it removes the whole incubus of having a full stage debate in both Houses over a mere matter of changing the numerals in an allowance that has changed with the passage of time. Instead of having specific legislation introduced for that purpose it would be far more practicable to do this either by way of order or by writing into the section some sort of linkage with inflation or some sort of review clause linking with the consumer price index.

I prefer the order procedure. Parliamentarians often argue against the order procedure, but in a matter of this kind it is simply a question of the Minister of the day having cognisance of the change in the values of money and making an order adjusting the values in accordance with the specific changes of which he is aware, bringing that by way of order before the Houses of the Oireachtas and having a debate on that. This is so much better than going through the whole process of bringing legislation and having it going through both Houses. I think it is infinitely preferable and the amendment, in my view, has serious merits which should be considered by the Minister.

I should like to add my words to those of other Senators in support of this amendment by Senator Robinson. As a trade unionist I think it is necessary for all the reasons given. As Senator Lenihan pointed out, it has been established already as a precedent in some areas, as in pay-related benefits. To my knowledge we have the same sort of criteria, that instead of sitting down to try to change legislation it can be varied by a Ministerial order provided it has gone through each House of the Oireachtas. This is desirable in this Bill because £40 and £10 may seem generous now especially to the ordinary individual whereas in a few years' time they will be meaningless.

I am impressed by the arguments advanced in favour of this amendment. However, I should like to give the contrary arguments just to show the other side of the coin. I am inclined to disagree with Senators that the figures will be out of date in such a short space of time. Notwithstanding our apprehensions about inflation the figures are much higher than would be the normal figures awarded by the courts. In the case of a wife with four children, £80 a week is what the court could order. That would involve a very substantial income indeed. There would, of course, be a large sum still left in the husband's hands for his own maintenance and for his other responsibilities. We are speaking of a very high income indeed. I think that in the ordinary run of applications, the sums awarded will be well below the maximum figures. Moreover, even with the erosion of inflation, it will be many years before the maxima will need to be reviewed for the average case. This is something we have to consider. What would be the average case? It will be some years before the upper limits will become out of date.

Should inflation have the effect Senators fear, it will be necessary, of course, to amend not just this legislation but many other pieces of legislation that have money figures in them. The problems referred to by Senator Robinson would arise in respect of many other monetary limits of jurisdiction contained in various Acts. I can see the difficulty, of course, but legislation would be necessary in a number of areas. We would not be achieving anything by having an order in one special case when we would need a Bill to cover a number of other cases. The important argument—and the one which may be a serious obstacle or indeed an irremovable obstacle to our acceding to the amendment—involves constitutional considerations. I would have to get further advice on this. The advice I have got so far—and this was mentioned in the Dáil—is that raising the jurisdiction of the lower courts does involve constitutional problems. The present view is against interfering with the jurisdiction of the courts by ministerial order.

I will consider the whole question between now and the Report Stage and if certain difficulties can be overcome I shall be disposed to accept the amendment. The information and the advice I have so far received is that there are constitutional risks. Our last stage might be worse than our first. If we made an order changing the figure, a disgruntled husband might take proceedings on constitutional grounds. That is a danger we have to consider.

I would be amazed if a statutory instrument that has to be brought before the Houses of the Oireachtas and open to debate here could be considered by the courts in any way different from an Act or Bill of the Legislature. Each is open to the scrutiny of each House of the Oireachtas. Each is equally law. A regulation or order passed under a section is equally valid as law as the section itself.

I appreciate Minister's desire to get elucidation on it, but certainly there are precedents for what is proposed in the amendment. I do not see any differentiation. I could hardly see how the courts could take different views of a regulation procedure as against a statutory procedure, when the regulation is made under statute and must be passed by the Oireachtas. That should accord with the Constitution and with any court's examination.

We might be able to overcome that aspect. What would happen is that the jurisdiction of the courts would be increased by a ministreial order. That order could be struck down if there was a resolution of the House to that effect. However, it might be better if a ministerial regulation had to be approved by both Houses before becoming law.

I would ask the Minister to look at this for Report Stage and I seek leave to withdraw the amendment.

On a point of information, why do we have to have a maximum in at all?

Because the District Court is a court of limited jurisdiction.

The amount must be specified?

The Minister says he will look at the arguments put forward here this evening. He should remember his own words in relation to this section earlier on when he was talking about the contracts. He said they might have been badly drafted because they did not make provision for revisions. If at all legally possible, we should have simple machinery which contains, as the Minister said, provision for revisions.

I will look at it, but I think there has to be a limit on the District Court jurisdiction. If we could get away from that without breaching the Constitution that would be ideal.

Amendment, by leave, withdrawn.
Section 23 agreed to.
Sections 24 to 27, inclusive, agreed to.

I move amendment No. 9:

9. In subsection (1) to delete paragraph (b) and substitute:—

"(b) by the deletion in subsection (2) of section 2 of all words after ‘made' where it first occurs and the substitution of ‘either before or after the birth of the illegitimate child in respect of whom the application is made provided that the application is made within the period during which periodic payments may be made payable by virtue of section 4 of this Act (inserted by paragraph (i) of subsection (1) of section 28 of the Family Law Maintenance of Spouses and Children Act, 1976).'"

This is an amendment to achieve the result that I had wished on Second Reading: that in the course of this very imaginative far-reaching and welcome Bill, we might get away from the concept of treating affiliation proceedings as in some way quasi-criminal so that a time limit must be imposed on the bringing of these proceedings—in this Bill three years—depriving a child of a right of maintenance from that child's parent. I know that I am not going to get much support on this issue at this late stage in the evening.

We must think very seriously about the purpose of family law legislation. The law is trying to create just rules for the relationships between persons, particularly between parents and children. We will not have achieved truly equitable family law until we start with the rights of parents in relation to their children and that we do so without being tied to a difference of treatment whether there is a married relationship or an unmarried relationship. The rights and the relationships are rights and relationships which flow from a child to the child's parent and from the parent to the child whether or not the child is born in wedlock. We have a further fairly significant step to go in that direction. Nevertheless I welcome the other provisions of section 28. As I did on Second Stage, I welcome the extent to which the Minister is open to accepting amendments in order to provide that the attachment of earnings provision in the District Court procedure would extend to affiliation proceedings and the fact that he introduced on Report Stage an extension extending the time limit on bringing affiliation proceedings from two years to three years. I would be more eloquent in my tribute to the Minister if I were not so tired after a long day in this House.

It is necessary at every opportunity to say that by having a three-year limit here we are nevertheless distinguishing between children; we are not treating children equally We are saying one child has an unlimited right to maintenance from the parent as a dependent child until the child is of age. Another child has a three-year period in which to establish a right and after that no right in relation to a parent. We should know we are doing that; and although this is an improvement it represents nevertheless an old and quasi-criminal psychology, which we should think about very seriously and be prepared to depart from.

An Leas-Chathaoirleach

Before I allow any other speakers in, it is 10 o'clock. Does the House intend sitting beyond the normal hours?

It has been agreed between the Whips that we should sit until 10.30.

I sympathise with Senator Robinson's point of view as anybody would, but I respectfully suggest to her that her heart is running away with her head in this case. We are not perpetuating the concept of illegitimacy or the distinction between legitimate and illegitimate children because of this time limit. There is a difference and I must state this. In the case of legitimate children the father is known and established. In the case of the illegitimate child, that might not be so and paternity has to be established before the other consequences can follow. If paternity has to be established, I think we must then consider whether there should be a time limit on establishing the fact.

I am strongly of the opinion that there should be a time limit and that the time limit of three years is a reasonable one. We cannot ignore the fact that there could be fraudulent or blackmailing cases. Empirical studies show this. Again, it is worth noting that in the context of nullity, fraudulent accusations of paternity coupled with threats of legal proceedings have been made. We cannot have an indefinite time limit. I think three years is an adequate time for a mother to take proceedings to establish paternity. In ease of the child's situation, there should be a time limit. If there were no time limit and the mother sought, after ten years to try to establish paternity, evidence that might have been available within three years of birth might well have ceased to exist. Indeed no satisfactory evidence might be available.

To have a time limit is not perpetuating a distinction. In one case the father is known and admitted and in the other case the fact has to be proved.

In proving the fact of paternity, there are considerations which demand the existence of a time limit. I say this in full sympathy with the general point of view that we should not discriminate as between children, but I do not think we should let our feelings cloud our minds to the issues that are involved here. I submit that a time limit is necessary and that a time limit of three years is fair and equitable.

Senator Robinson and I have had a honeymoon today but I am afraid it is over now. What the Minister has just said almost incorporated what I was going to say and in fact if anything I think three years is more than the limit. That is from my experience as a lawyer and as a reasonable student of human nature.

The Senator used to favour six years.

I know that, but when you examine it right through you enter an area, as the Minister has just stated, of undetermined fatherhood. You enter the whole area of action being taken by a woman against a man after a certain period. I am not just talking about three years; it is three years and nine months, up to four years in reality. In that situation I do not have to stretch the imagination of people here. All sorts of things can happen and all sorts of allegations can be made. Three years is the limit and having regard to my experience it is going too far. I agree that six months is far too little. Two years is about the period I would have put on, and that was there originally. In my view three years is pushing it very far because if you were allowed this area of potential blackmail and exposure to be stretched it is a very dangerous area.

I am rather surprised at this being pushed in this day and age particularly which, to put it bluntly, is more permissive, more easy going, where women have equal rights with men and where there is a greater equality of rights as between man and woman and a greater ease in regard to matters of this kind. It is against that trend to be pushing this overmuch. One must strike a certain balance in the matter between women who are no longer just quite, quiescent, harmless creatures but women who are equally abroad in the jungle with men, and equally in a position to pursue claims of a dubious nature as men have pursued over the years. Viewing all aspects of human nature, somewhere between two and three years is about right. To have an unlimited area here as is suggested in the amendment would, in my view, be quite candidly outrageous and would fly in the face of justice and equity. It would encourage a large number of very irresponsible blackmail type actions and could be fostered very much in the sort of world into which we are moving. I support the Minister totally on the section as it stands.

Senator Lenihan earlier had a honeymoon and I had a lover's quarrel with Senator Robinson but I will now move in the opposite direction to Senator Lenihan and, if you will permit me, will have a honeymoon.

With respect to the Minister and Senator Lenihan the difference between their approach and that of Senator Robinson is the difference between the way a man and a woman look at this thing. The persons about whom we should be concerned are the woman and the child whom she has brought into the world. With respect, the question of blackmail is male chauvinism. As males, we should try to make an imaginative leap into the mind of the woman. Obviously, it would have been for her a trauma. I am not convinced that three years and nine months is necessarily sufficiently long for a woman to have come to terms with what has happened and to have fully evaluated what is the best thing, not just for herself, because that would not be her primary consideration, but what is best for her child.

Speaking as a male and making a judgment for the other sex—and Senator Robinson will correct me if I am wrong—psychologically a woman's relationship with the child changes fundamentally when the child comes of school age. She begins to reassess her own relationship with the child. The child departs from her for the first time, leaves the family home, begins to take on a personality of its own, it is less dependent on the mother, establishes a relationship with the external world which for the first time becomes home to the child. She then begins to envisage the child in the context of this outside world and she will then begin to think of the child's long-term future. That is not going to happen at the age of three. The normal school entry age is four, in many cases five and in some cases in this city it is even six. While I commend the Minister for keeping his word—and he came into this House and promised this legislation on foot of a Private Members' Bill introduced by Senator Robinson and he also has extended the period from two to three years in Special Committee in the Dáil—I really think that this is an occasion in which the Legislature, being male-dominated, is also being dominated by male psychology. If there was a half-and-half Legislature in terms of the sexes we would be getting quite a different input into both Houses with regard to this period. The fundamental social requirement must be what is right for the child. There is no better person to make a judgment in that respect than its mother.

What period of time do we give the mother in order that she may come to terms rationally with the situation? I suggest that it is roughly about the time when the child enters a school. I do not believe that the amendment will be accepted: the three years will stand. I am happy that it is three rather than two, but I regret that it is not five or six rather than three.

I am genuinely heartened by that contribution of Senator Halligan. He said a number of things I was going to say in response to the points made by the Minister and in particular by Senator Lenihan. He is right that the emphasis really is much too much on protecting an adult from blackmail rather than the primary consideration of the rights of a child and what is best for that child.

I do not take Senator Lenihan's point about the equality of the spouses and that women want to do their own thing now. Circumstances may very well change. The vast majority of single mothers I know do not bring maintenance proceedings, for one good reason that they have to do it within six months. On the whole they are very courageous and willing to go out. What happens if they become ill? What happens if circumstances change for them? What we are doing here is saying that after three years, no matter what happens, that mother has no further claim on the father of that child even if he is identifiable and unless he is willing to assume responsibility. It would be very difficult for us in the context of a Bill like this, where in effect the provisions for affiliation proceedings are tacked on to the end of the Bill. I nevertheless welcome the fact that they have been integrated with the procedures and mechanisms of the Bill. It is very hard for us to reverse our whole psychology and approach, but I am very heartened by the attitude of Senator Halligan because he has pointed out where our priority should be, how we should be approaching the subject, how we should be defining relationships between children and their parents, that we should not place the emphasis on a quasi criminal proceeding where it is necessary to protect an adult from potential blackmail. However, it is late at night and I do not propose to dwell any further on this. I would prefer to have the amendment pressed rather than withdrawn.

Amendment put and declared lost.

An Leas-Chathaoirleach

Amendments Nos. 10 and 11 are consequential and perhaps the Minister would take them together.

Government amendment No. 10:
In page 16, to delete lines 52 to 56.

Amendments Nos. 10 and 11 are purely technical and are proposed for the purpose of drafting clarity. The present order of the changes to the 1930 Act is out of sequence as regards the sections of the 1930 Act. The amendments will secure the correct sequence, so that the reading of the 1930 Act and of the amendments will be easier.

Amendment agreed to.
Government amendment No. 11:
In page 18, after line 60, to insert the following:
"() by the substitution in section 6 (1) and 7 of ‘two hundred pounds' for ‘fifty pounds' (inserted in the said section 7 by the Courts Act, 1971);
and the said sections 3 (1) (a), 6 (1) and 7, as so amended, are set out in the Table to this section."
Amendment agreed to.
Amendment No. 12 not moved.
Section 28, as amended, agreed to.
Government amendment No. 13:
In page 19, line 31, before "references" to insert "including".

Again this is a drafting amendment and its purpose is to ensure that it will be possible to use the Enforcement of Court Orders Act, 1940, to enforce affiliation orders under the Illegitimate Children (Affiliation Orders) Act, 1930.

Amendment agreed to.
Section, as amended, agreed to.
Section 30 agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Thursday, 25th March, 1976.
The Seanad adjourned at 10.15 p.m. until 10.30 a.m. Wedneday, 24th March, 1976.