This section provides for a reduction in the age of majority from 21 to 18. It also provides that on marriage a person under 18 becomes an adult. I am sure the Minister will agree that the fact that one or both spouses enter into marriage before they have attained the age of 18 years can in many cases be an indication of immaturity rather than maturity. Therefore, would the Minister consider it desirable that contracts entered into by such persons should require the signature of both spouses? Such a requirement would provide some safeguard against the type of exploitation to which I and other Senators adverted during our Second Stage contributions. A safeguard such as this is vital in cases where either or both spouses are under the age of 18 and also in cases where neither spouse has reached the full age for marriage.
Age of Majority Bill, 1984: Committee and Final Stages.
Limerick East): As the Senator has outlined, a person would reach the age of majority on attaining 18 years of age, or on the date of marriage if that is earlier. A person will reach the age of majority on the day of the marriage and for that spouse that day will be the day he attains age of majority.
On the question of contracts, the difficulty that arises is that if we try to protect people from their own immaturity, regardless of what age they are, whether it be 16, 18, 25 or older, then we would put them in a position where the banks, the lending associations or the local county councils would not be in a position to enter into a contract with them if they are not to be full parties to the contract. If we put in any kind of subsidiary clause which indicates further protection for people to whom we are now extending these benefits, then we will obviate the practical advantages of having reached the age of majority. On a practical level it would be normal for lending agencies to require both signatures. That would be particularly true where the most perceived need arises from the point of view of Deputies and Senators who have the experience of young people between 18 and 21 who cannot get a local authority loan. I understand that requires two signatures.
On the question of attaining majority on marriage, would the Minister explain to the House why people should become adults because they are married prior to reaching 18 years? I do not know why that should qualify a person.
(Limerick East): That is approaching the argument from the wrong end. People marry at an age younger than 18. That puts them in a position were at least they endeavour to set up an independent household, lead a life as a husband and wife and make decisions as a family. That situation at the moment leaves them in a position where, for example, they cannot get a housing loan or they cannot enter into a contract for the purchase of anything, or furnish a house or flat if they are local authority tenants. It is not to approach the argument to say why they should be adults at 18. It is realistic that because they are married and they want to lead independent lives, whether in private accommodation or in a local authority flat or house, they have certain legal disabilities which we are trying to remove from them. The whole question of the age of marriage is a separate issue. It will be a matter for the Government to decide whether they will change the free age of marriage to 18 by regulation of the Minister for Health, which I said previously, does not require legislation, and then how they will act on the minimum age for marriage and whether marriage below a certain age would be null and void. It is at that stage of the argument that Senator O'Leary's point is more relevant.
I understand there is a historical basis for this but we are doing something new here. Could the Minister give us a convincing argument why we should agree with it? It appears that a person who has attained the age of 18 years should be considered an adult and to be no longer under the disability of having a limited right of contract. It would be wrong to say that everybody who gets married under 18 years of age is irresponsible, but it is certainly true that some people who are under 18 years of age and get married take that step in a hasty manner. Why should two people under 18 years who take a step as important as that in a hasty manner, and as a result of their haste are proving that they are not mature enough, be granted an earlier arrival at the age of majority than the people who refrain from getting married even though they are subject to the same pressures, desires and impulses? There is no logical reason why somebody who wants to get married under the age of 18 years should suddenly become an adult. I would like the Minister to have another look at that to see whether we should define an adult as just being a person who reaches 18 years of age.
(Limerick East): I would like to say to the Senator that my approach here would be that when we go about changing the law we should change the law for the benefit of people, not as an academic exercise in law change. Anybody who is working at the other end of the problem knows that when young people who are under 21 years of age get married certain difficulties arise. Those difficulties are not just difficulties for people between 18 and 21 years; they are difficulties that exist for all people under 21 years who are married when it comes to providing a home.
I would like to draw the Senator's attention to the Law Reform Commission's Working Paper No. 2, published in 1977. On page 20 of that working paper it states:
The origin of the idea of emancipation is the relief of the minor from parental power and control — a power and control greater in those systems of law that are based upon the Civil Law, than is those based upon the Common Law. The law as to emancipation of minors is not uniform throughout the Civil Law world and there are variations even among the members of the European Communities.
Then it goes on to refer to Article 41.1 of the Constitution which states:
1º The State recognises the Family as the natural primary and fundamental unit group of Society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
It goes on:
From this it can be argued that no legal impediments or obstructions should be placed in the way of a young married person solely on the grounds of age and that such a person would have the legal capacity to acquire a home and to furnish it. He should also have the right to establish a trade or business. As a consequence he should be legally able to borrow money, to incur debts and to undertake contractual obligations. Third persons should be able to deal with any married minor secure in the knowledge that the minor will be bound by his transactions.
It goes on to say in paragraph 2.44:
Recognition has already been given to the special position of a married minor.
It refers to the 1964 Guardianship of Infants Act. The Law Reform Commission Report, LRC 5 of 1983, in section 17, page 9, states:
The Commission noted that from this it could be argued that no legal impediments or obstructions should be placed in the way of young married persons solely on the ground of age and that such persons should have the legal capacity to acquire a home and to furnish it. They should also have the right to establish a trade or business. As a consequence they should be able to legally borrow money, to incur debts and to undertake contractual obligations. A third person should be able to deal with any married minor secure in the knowledge that the minor will be bound by his transactions.
Almost the same words in the argument in the working paper are incorporated in the final report and they based it on certain Articles in the Constitution which I have quoted. There is a very strong constitutional argument for doing what we are doing here. If we were to separate the age of majority from the age of marriage as suggested by the Senator, we would have a constitutional difficulty. If there was never a constitutional difficulty what we are doing makes sound commonsense in the real situation where people are faced with the difficulties of being married, being under age, trying to set up a home, frequently having a baby, looking for a flat or a local authority house, or trying to borrow money to build or buy their own house. That is the normal pattern we come across and I do not think it would be advisable to rule out from the benefits of this legislation people under 18 years of age who are married.
I think Senator O'Leary would like us to get involved in a very interesting philosophical discussion of this question but, by and large, I agree with the Bill as it is. We have to approach this question from the point of view of why the Bill is being introduced, why is the age being brought down. Is it for the benefit of people who are 18, or is it for the benefit of the public generally? I assume it is for the benefit of the people concerned, those who have reached 18. It seems to be the general view that at that age not only are they qualified to make decisions and enter into contracts and so on, but from their point of view it would be very advantageous that they should be enabled to do so. It is correct to say that in many cases the reason why people of that age would want to be able to enter into contracts and do all the other things mentioned is that they are contemplating marriage. So, in a marriage where the couple are a year or two under 18 exactly the same arguments apply, that in these circumstances they should be able to do what those who are 18 will be enabled to do under the Bill.
Senator Mullooly was talking about taking advantage of people between the age of 18 and 21. They cannot have it both ways; if we are going to have a situation where people of 18 and over are deemed to be of full age and capable of doing things which those over 21 were entitled to do up to now, then they have to take the consequences of that. We cannot have a situation where they are going to have all the advantages of being given these new rights but not suffer the disadvantages. It is true also that people under the age of 18 who are married would want these rights and it is correct that a special case should be made for them. It can certainly be argued that a person married under 18 is not more mature than a person who is not married, but from the point of view that those who are married and under 18 need these rights to buy a house, or whatever, then there is a good case for giving them these rights. The case as made in the Bill for giving these rights to married people under 18 is, in all the circumstances, a reasonable one.
I would agree with the point of view expressed by Senator Ryan. If the point of view expressed by Senator O'Leary were put into legislative form there would be a very impractical situation. If people marry under the age of 18 then that is only achieved after certain consents have been obtained. It would be very impractical if such a person were not able to deal at arms length in contractual situations in the wide-ranging world that we live in today. It would make the position of such a person absolutely impossible.
I would like to look at the matter from another point of view and this is something I raised on Second Stage and which other Members have raised and that is the question of the age of unfettered freedom to marry. I still do not follow the reasoning as to why that is not reduced to 18 years. In the Minister's Second Stage speech in this House he said that the matter was being discussed by the Joint Committee on Marriage Breakdown and that the Government would await their report for further consideration. Do the Government, first, intend following the advice of that committee actively to pursue this issue and, secondly, has the Minister any idea or firm commitment one way or another at this stage as to what the age of unfettered freedom to marry would be? It seems unwise that that particular exception should exist following the introduction of this Bill and particularly following the arguments that have been put forward by so many people in favour of this Bill.
(Limerick East): I would refer back to the point made by Senator O'Leary — and the Law Reform Commission also — in arguing this. They referred to the fact that a married minor already had certain legal powers under existing legislation: for example, the Guardianship of Infants Act makes it possible to appoint a guardian by will; the Succession Acts, to make a will; the Marriages (Ireland) Act, 1844, as amended by the Marriages Act, 1972 allows a widow or widower who is a minor to marry without parental consent or other consent. The commission saw no reason why these precedents should not be followed generally in regard to other legal transactions. They also considered that this view was further endorsed by section 10 of the Family Law Act, 1981 which declares that consent to the sale or disposition of the family home will not be invalid by reason only that it is given by a spouse who has not attained the age of majority. They recommended that, on marriage, a minor should in law become an adult and should have all the rights and be subject to all the liabilities of a person who has reached the age of majority. Incidentally, when they published this nobody made a submission during the time between the working paper and the final report which suggested that it should be otherwise.
On the question raised by Senator Durcan on the age of marriage and what the free age of marriage should be, I made a number of points about this on Second Stage. First, the age of marriage and the age of majority have never been treated in synonymous terms and I do not see why we should do so now. They are separate issues and I would like to see them treated separately. Secondly, the Minister for Health, by regulation, can reduce the free age of marriage from 21 to 18, so it does not require primary legislation and it does not require inclusion in this Bill. If the Government decide that the free age of marriage should be 18 then it can be done by regulation by the Minister for Health. It is the Marriage Act of 1972 which empowers him to do so.
On the question then of whether there should be a minimum age for marriage below which marriages would be null and void if contracted and where the whole question of the consent of the parent or guardian or indeed the courts would be removed from legislation and practice and you had a cut-and-dried situation where a person was free to marry at 18 and below that age any marriage entered into would not be a valid marriage — this is something that we should look at when the Committee on Marriage Breakdown publish their report and I understand they will be publishing it shortly. To comment further would be to pre-empt the debate on that report and certainly to pre-empt the Government decision as a result of that particular section of the report. I know they are making recommendations on the age of marriage. I know also that the nature of their recommendations was published in the newspapers but their work is not complete and in so far as they are a committee of the Houses all their advice will be incorporated in one report which will be available to all of us. That would be the time to make the appropriate decision on both the free age of marriage and the question of the age of marriage in general with or without consent, whether it is of parent or guardian or the consent of the President of the High Court, as arises in some circumstances.
The Minister for Justice never ceases to amaze me in the way in which he can face two ways at the one time. On the one hand he says that the age of majority and the age of marriage are separate issues. On the other hand, when I raised my original point he in fact said of course the age of majority is vital in respect of those people who chose to get married and who get the necessary consent under 18 years of age. They are not separate issues. Whether the Minister likes it or not they are caught up together. The age of majority and the age of marriage are, by the Minister in his legislation, being tied together. Anybody under 18 years of age who gets married will have reached the age of majority. So, in fact it is the Minister who is typing it up. It is true to say that certain legislation has already made a connection between the two but we are going much further than that. What we are saying is that anybody under 18 years of age who gets married will reach the age of majority immediately. Of course I understand what the Minister says with regard to the difficulty of those under 18 years of age getting loans from the local authority. I understand that that problem exists at present with regard to those under 21 years of age. But there are two points to be borne in mind here: first, the reduction of the age from 21 to 18 will of itself get rid of the major portion of the problem. Making 18 the age of majority will get rid of most of the problems in this area. But there will be a residual number of problems of people who married under 18 years of age. Their situation would not be ameliorated by this Bill unless what the Minister suggested is possible.
When legislation is introduced it is not just introduced for the purpose of facilitating any sub-group of people, a sub-group being the people who are under 18 years of age when they get married. It must also be introduced bearing in mind the common good. Will it have the effect of encouraging people to get married under 18 years of age? If it will, is that a policy direction in which we wish to go? If there are those who think that people should be encouraged to get married at as young an age as possible, that is fair enough, but I can see a situation coming about where in the absence of any other activity by the Government or by the Legislature over the years to come, we will encourage people under 18 years of age to get married because they will acquire significant additional rights.
I made my position quite clear last week when we discussed the Second Stage of this Bill. I am quite happy to have the age of majority at 18 years of age. I do not want it to go any lower than that. I think that is the very minimum that it should be. I do not believe that we should encourage people, or even permit people to get married, in our present constitutional framework, under 18 years of age. Here we are introducing legislation which is specifically designed to facilitate that mood. For that reason I think it is inconsistent. That is why I think the Minister should have another look at this and leave the law in respect of those people under 18 years of age in the same situation as at present in respect of those under 21 years of age who choose to get married.
Is section 2 agreed?
No, I have another point to make. I wonder would the Minister for our benefit go through subsection (4) and particularly paragraph (b). That is the list of enactments in regard to which 21 years of age will continue to apply. What is the practical effect of the inclusion of the Marriages (Ireland) Act, 1844 in that section? If the Minister has that information available it would be of considerable advantage to me anyway in the consideration of this legislation. When the Minister has dealt with this I have something further to say on (b) (VIII) which I think is one to which the House should give some attention.
(Limerick East): On paragraph (a) of the subsection the lowering of the age of majority, this is provided for. Subsections (1) and (3) will not affect the statutory provisions mentioned in paragraph (b). Paragraph (a) controls the list in paragraph (b). The exempted provisions provide that in the case of marriage the situation remains as it is now in terms of the age and the age of consent and so on.
Will (i), (ii), (iii) and (iv) just bring about a situation where the consent and minimum ages and all the various other paraphernalia of marriage will continue to apply?
(Limerick East): Yes.
Would the Minister consider (VIII) which I think is the one which was included at the suggestion of certain Deputies in the other House, confirming the application of the Family Law (Maintenance of Spouses and Children) Act and also the Illegitimate Children Affiliation Orders Act, 1930 but specifically the Family Law (Maintenance of Spouses and Children) Act, 1976, and provides for the payment of the maintenance in support of children up to the age of 21 years? Perhaps I could briefly say what I understand the position to be, and if I am wrong the Minister can correct me. I understand that at present there is a general duty on parents to maintain their children in that sense up to 16 years of age and that that general duty ceases at 16 years of age. Where a person is pursuing a course of full time education that maintenance duty continues until the person is 21. I further understand that there are presumptions that a child who is in some way disadvantaged or disabled does cease to have the right of maintenance on the attainment of 21 years. I am not really concerned with that; I think it is a separate and distinct point.
It appears that two points arise on that. One is, why should there be a general duty of maintenance only as far as 16 years? If the child does not, in normal circumstances, leaving out the question of marriage, reach the age of majority until 18 years of age why should the parents' duty of maintenance cease at 16? Would the Minister agree that the general duty of maintenance should be increased to whatever is the appropriate age of majority?
The second point is how does the Minister come to the conclusion that when a person has reached the age of majority at 18 and is in full time education, that on another adult citizen of the country who happens to be that person's parent, there is a duty to maintain that person even though the person they are maintaining is an adult and may have no duty or responsibility to live within the rule of guardianship of the parent during the time between 18 and 21? Further, does the Minister think that that is a duty which is enforceable under the Constitution? Is it enforceable that one adult should be forced by law to maintain another adult in the pursuance of an expenditure — that is on full time education — which the maintaining adult has no power to initiate or power to stop? It appears to me to be quite an extraordinary extension of responsibility to suggest that one adult should be maintained by another, when there is no mutuality of contract between them. Obviously, in the case of husband and wife, where there is a marriage contract between them, and the wife is under a duty to maintain the husband and the husband is under a duty to maintain the wife, I can understand that because that is as a result of a separate and distinct contract. But this is not as a result of a contract at all. It is just something which continues after the parent has ceased to have any power or influence over or duty or responsibility towards the direction of the child's life. I would like to ask the Minister what is his view on that; why he changed his view during the discussion in the Dáil and how he squares that with the change of view within the Law Reform Commission between the working paper and their final report, when initially they recommended that the law should be as it is now proposed and later changed to a situation where that duty should cease at 18 years of age.
(Limerick East): Senator O'Leary is bringing up two distinct matters under this heading. First of all, I will deal with the change brought about in the Bill as a result of the amendment I moved in the Dáil. At present a maintenance order may be made under the Family Law (Maintenance of Spouses and Children) Act 1976 or the Illegitimate Children Affiliation Orders Act, 1930, as amended by the 1976 Act, in respect of a child up to 21 years of age, if he is receiving full time education. Under the Guardianship of Infants Act, 1964, a maintenance order may be made for a child up to 21 years without any requirement as to full time education. The Bill, as initiated in the Dáil, would have had the effect that references to 21 years of age in both these statutes would be construed as references to 18 years of age after the commencement of the Act. Consequently, maintenance orders could not be made for children over 18 years of age, except, of course, in respect of incapacitated children, in respect of whom there is no upper age limit.
I changed from that position as published to the present position when I moved the amendment to include this new paragraph because I listened to the Deputies on Second Stage and thought they made reasonably convincing arguments, especially one particular Deputy. I moved that amendment and the next one as a result of that. The present position under which maintainance orders can be made in respect of children up to 21 years of age, is being maintained. It was accomplished by the amendment which I moved in the Dáil.
Senator O'Leary referred to the background to this. The Law Reform Commission considered the question of maintenance of children who have attained the age of majority. In their working paper they indicated that they were in favour of continuing the existing law relating to entitlement of maintenance up to 21 years of age. That is in paragraph 5.22 of the working paper. But in their final report, in paragraph 67, they concluded that it would not be desirable to impose continuing maintenance obligations on parents of children, other than those who are mentally or physically disabled, who have reached the age of majority, even if they are receiving full time education. The commission considered that that balance of the argument favours the view that the necessary implication of attaining majority is that a person is sufficiently mature and independent to be responsible for his or her own maintenance rather than looking to his or her parents for support.
The Bill as initiated was drafted on the basis of the recommendations in the commission's final report. There are arguments on both sides. Quite obviously, when I produced a Bill on one basis and subsequently amended it, it was clear that there were arguments on both sides and that I was not definitive in my view until I came to the amendment stage. On the one hand, maintenance under our laws has never been payable beyond the age of majority, except in the case of handicapped children. It can be argued that once the law accepts that a person has attained adulthood, obligations on his parents to support him beyond that age in the normal case where no question of handicap arises, should not be imposed by law. It can also be argued that it is only where parents are separated and in dispute that one or other in practice will be obliged by law to maintain a child in higher education, and that this is unfair. For the majority of children whose parents are living together there would be no question of one or the other of the parents being obliged to maintain the child in higher education. That would be a family decision in a family situation. The argument is really on the lines that children of separated parents should be treated no differently from other children, that is leaving it up to the parents themselves to decide or agree up to what age beyond 16 years they should maintain the child.
On the other hand it can be argued that the reduction in the age of majority, which is intended to be of benefit to young people, should not operate to the detriment of some who may be in difficult family circumstances and who are not in a position to support themselves but whose parents can afford to support them. In the practical situation you would have children of broken marriages in third level education who are being maintained as a result of maintenance orders and whose source of income would be cut off and who would have to discontinue their education. That is a major difficulty. But the working paper advised in one direction; the final report advised in another direction. I followed the final report when I published the Bill. Subsequently, listening to the arguments on Second Stage in the other House I introduced this amendment. It was accepted unanimously.
The second point raised by Senator O'Leary is connected with the first. He raised the point of the obligation on parents to maintain children up to 16 years of age. He questioned why that should not be 18 years and why, when I was changing from 21 years down to 18 years for the age of majority, I did not also move from 16 years to 18 years on the age where parents would have an obligation to maintain their children. I have two reasons for doing so. It is a separate issue from the age of majority. It is a matter for the Minister for Social Welfare. Also, it could raise many other issues which might delay this Bill. If the Minister for Social Welfare wants to move on it then a Social Welfare Bill might be a more appropriate vehicle. I said in my Second Stage speech here that the commission proposed that the age up to which parents should be obliged to maintain children for the purposes of social welfare and other legislation should be raised from 16 years to 18 years of age. But when we were considering it in Government it was considered that this matter would be more appropriately dealt with in the context of the legislation concerned.
On the one hand, on the question of the obligation of parents to maintain children up to 18 years of age, I would favour that personally: I do not have any argument in principle against it. It was simply considered that this Bill was not the appropriate vehicle and that it might complicate the situation further. It was intended that this would not be a controversial Bill but that it would be a Bill that would give real legal benefit to a particular defined category of approximately one quarter of a million young people. On the other hand, it is the balance of argument between what the Law Reform Commission recommended in their working paper and what they concluded in their final report. I went one way when I authorised the publication of the legislation and then I went back to Government and told them I wanted to amend it because of the arguments which were put on Second Stage in the Dáil.
On the basis of a legal evaluation of the argument I did not think it advisable to bring everything down to 18 and make no exceptions on the basis of the particular situation in which individuals find themselves. I think their maintenance should be maintained up to 21 while they are in third level education. I am sure the Senator will tell me that hard luck cases make bad law but I think there is a balance of argument there. I am trying to explain the way in which I arrived at the decision.
I agree that this is not the appropriate legislation to change the general duty of maintenance from 16 to 18. I mentioned it to put the thing in its full context. I would not consider moving an amendment to this legislation to include that because I understand it is not the Minister's area of responsibility. The Minister did bring to our attention a particular problem that arises. On a transitional basis a problem would arise in respect of orders which had been made and commitments which had been entered into in respect of individuals who assumed they were going to be maintained until 21. Some kind of transitional provisions in that regard would have been in order. The Minister did not tackle the major point I am making and that is, is it enforceable? Can you legislate to make one adult who is in no position of authority or contractual position or has not guardianship over another person maintain a third party?
The Minister might like also to consider the possibility that this does not only apply in cases of husbands and wives who are separated. Without knowing the exact method by which it would be done I am quite confident that after this legislation is passed the child or the erstwhile child will be in a position, if he or she wants to pursue third level education after 18 years of age, to seek a maintenance order against the parents. Even if the parents are living together I do not see any reason why the child would not be in a position to seek a maintenance order. The legislation may be framed in such a way that they might have to do it through a third party, but that would not present any tremendous problem. You have a situation where you are not just talking about children of broken homes, you are talking about a situation where you are granting to a new group of adults, those between 18 and 21, the right to decide for themselves, without reference to their parents, that they are going to go to third level education and then to seek the support of a court in maintaining them in that condition. The parents will have lost the guardianship. They will not be able to tell the child: "You will (or you will not) go to university." The child himself will say: "I want to go to university and because I am going to university you must maintain me." That appears to me to be a very peculiar law. While I understand and appreciate and agree with what the Minister is trying to do I wonder is it enforceable.
(Limerick East): On the constitutional question, in neither the working paper nor the final report of the Law Reform Commission did the Law Reform Commission refer to any constitutional difficulty.
They did not refer to any?
(Limerick East): They did not refer to any constitutional difficulty in either the working paper or the report. Secondly, there is a situation at present where an adult spouse is obliged to maintain another adult spouse under law. It is not a precedent to say that one adult——
They are in a contractual situation.
(Limerick East): Still it is not a precedent to argue that one adult should not be responsible for the maintenance of another adult because that is the situation that pertains already in law. The third point that I would like to make is that a maintenance order of this nature will be a matter for a court to decide and the court is obliged to decide, examining all the circumstances of what is fair and what is proper. Finally, in section 11 of the Guardianship of Infants Act 1964 it says:
Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.
It is the guardian or the parent that initiates the maintenance order in the court and there is no provision under the Guardianship of Infants Act for the child to initiate a legal action to achieve maintenance. They cannot get to first base on the issue. It is not extending to a whole category of new people the right to take actions against their parents so that they will be maintained between 18 and 21 because the primary legislation does not provide for their maintenance.
On that point, I do not have that legislation with me but my memory is that the child can get over the problem of the guardian having to make the application. The guardian does not have to be the parent. The court can, in fact, recognise another applicant as the person's guardian for that purpose. If that legislation limits the power of application to the guardian then how is it going to apply when this is passed? It is quite clear that after this is passed neither parent will be the guardian of the child. They will be the parents of the child but in law they will not be the guardian of the child. Will they then find themselves in the same difficulty as the Minister says that the child will find itself in? If only the guardian can make the application and the parent will no longer be the guardian, because a person will have reached the age of majority, who will make the application?
(Limerick East): The parents can apply under the Maintenance of Spouses and Children Act, 1976 as the parents but the child cannot apply as a dependent child.
Yes, he can apply.
(Limerick East): If the Senator gives me the reference I will check that.
If the Minister will give me a loan of his advisers for half an hour I will do it. I am not trying to score points off the Minister. I am saying that he is going to run into this problem. I am asking the Minister to look at it. I am not proposing any amendments. Specifically, I did not propose any amendments on Committee Stage but I want to impress upon the Minister that it is worth having a look at. It is not just a simple matter of making this minor amendment which was made in the Dáil. It is a minefield strewn with difficulties. I would like the Minister to have a look at it between now and Report Stage.
(Limerick East): There is no problem in giving a commitment to have a look at it, that is if the Seanad gives us the time to look at it between Committee and Report Stage, or as Committee Stage goes along. It is only fair to say that any time we make changes in the law, especially law of this nature, it can run the distance and can be subject to constitutional test. Any time anybody changes any law he does it in the knowledge that it can run eventually to the Supreme Court and it can be tested. That should not inhibit us from making changes in the law which we desire. I know that Senator O'Leary would probably approach the thing from a different background from that which I would approach it. My approach would be that there are practical difficulties which I can identify and we should change the law to remove the practical difficulties which are affecting the day-to-day lives of young people. I am not approaching it from the side of studying the law and seeing what are the required changes to make it better law per se. I am trying to remove difficulties which are certainly affecting young people between 18 and 21 and certainly young married people under the age of 21. I will look at it.
I consider it more desirable to refer to somebody who has not reached full age as a minor rather than as an infant. My question is, is it not proper to do that at the present time? In relation to that, further on in the Bill, on page 5, lines 33 and 34, would it not be more appropriate to have the word "minor" rather than "infant"?
(Limerick East): We are not changing the term “infant” to “minor.” In existing legislation where the word “infant” is the term used, it will remain. It is an enabling section to enable people to substitute the word “minor” for “infant”. It also encourages the use of the term “minor” rather than an “infant.” I think it is a misnomer to refer to a person of 17 years of age as an infant.
The Minister said it is an enabling and an encouraging section but, in practical terms, does it mean anything? At the moment, people under 21 years of age are referred to as infants and as minors. The section does not change anything. Would it not be better, in a more positive form, if the section were to state that "a person who is not of full age shall be described as a minor"? It would be preferable, when this Bill is enacted, that a person under 18 years of age should be referred to as a minor rather than an infant. The section as it stands does not do anything. The Minister says that the section encourages but it should do more than that.
(Limerick East): Any change in the use of language will only take place over time. I do not think we can wish changes in language. If the colloquial term is “infant” it will take time before the colloquial term becomes “minor.” It is changing and people quite frequently talk about people under age as minors, but the legal term is “infant” because the particular Acts which govern that, refer to “infants”, for example, the Guardianship of Infants Act, 1964. If it is to be made mandatory to change from “infant” to “minor” then in logic we would have to change the terms in the different laws in which the word “infant” is used. I think the practice will continue to be a movement from the use of the term “infant” to the use of the term “minor”. The Law Reform Commission report to which I referred, in paragraph 7, page 58, refers to the draft legislation. It reads: “Section 5 of the Bill proposes that a person under the new age of majority may be described as a “minor” instead of as an “infant”. The section is an enabling one so that it will still be correct to refer to persons under 18 years of age as infants, The Guardianship of Infants Act, 1964 will, of course, still be the Guardianship of Infants Act, 1964. I am doing it for the reason outlined and I am following the advice of the Law Reform Commission report and the particular section of their draft Bill.
The Minister has described it as an enabling provision and as one encouraging the use of the term "minor" rather than "infant" but, in fact, in the rest of the Bill, the word "minor" is not used. The terms used are "child", "infant" and "a person under 18 years of age".
(Limerick East): Wait till you see my next Bill.
This is not a very important matter. I rounded up a Second Stage speech and I do not disagree with the Minister's reply. It seems to me that in a sense one year would be the same date and the same time a year hence. Therefore, if we start on a particular date and count that day again a second time we reach 366 days instead of 365 days. I agree with the Minister that it may be necessary to do it from the point of view of social welfare legislation. Take for instance the case of a driving licence. If I take out a driving licence today it will expire on 5 February 1986. The year does not include that date again. The point I am making is that if we count the year in that way, say, as it is calculated for a driving licence, it ends on the day previous to the day the licence is taken out.
(Limerick East): What I am trying to get at is if your birthday is next Saturday, the common law provision would suggest that you reach the full age, say, 21 years not on Saturday morning but on Thursday night-Friday morning, the first moment of Friday morning. It is not a question of not counting the day twice, it is a question of not counting the day at all. Instead of actually computing one's age from the anniversary of one's birth, one would do it from the first moment of the day previously. That is the common law position. This brings it into line with common sense. You are 25 years of age and I suppose accurately on the actual moment of the anniversary on which you were born, but certainly the first moment of that day, is the appropriate birthday rather than the first moment of the previous day. It is not simply changing for the sake of academic neatness or legislative precision. There is a major piece of legislation, the Social Welfare (Consolidation) Act, 1981 which has already done this and we are bringing this into line with it for the age of majority.
Would the Minister not agree that if I take out my driving licence today, 6 February, if we apply the same rules it should expire on the same date, on 6 February 1986?
(Limerick East): As I understand it, it does expire on 6 February 1986 but it is valid right through 5 February 1986. On reaching 6 February, 1986 the licence would be invalid because you have 6 February of this year already of benefit.
I am wondering if section 4 (3) (b) is necessary. The statement in the subsection applies to the six statutory measures specified. In view of the reference in subsection (1) which states that:
subject to subsection (3), "the time at which a person attains a particular age expressed in years shall, for the purposes of any rule of law or of any statutory provision...
Does that not obviate the necessity for subsection (3) (b) or am I misreading it?
(Limerick East): I am advised that on balance the section is necessary. It is better to have it included. We are aware of how the age in calculated for voting purposes and the register of electors. Section 5 (6) (b) of the Electoral Act, 1963 provides that the Minister for the Environment may specify in the regulations the date on which a person must be 18 years in order to be registered as a voter. The relevant regulations specify 15 April as the appropriate date. The position of a person who would reach 18 years of age under the common law rule on 14 April does not appear to have arisen for consideration. It is to make sure that it is 14 and not 13. I would not like a constitutional action to be taken on the validity of an election on the basis of leaving it out rather than putting it in.
Section 6 (b) provides for the addition of a new subsection to section 11 of the Guardianship of Infants Act, 1964. The new subsection will be subsection (5). It reads as follows:
Any reference to an infant in this section (except in paragraph (a)) of subsection (2) shall include a reference to a child who has attained the age of 18 years and is suffering from mental or physical disability to such an extent that it is not reasonably possible for him to maintain himself fully.
Perhaps the Minister could tell the House whether there is any procedure laid down in the Guardianship of Infants Act for determining whether a person is suffering from mental or physical disability to such an extent that it is not reasonably possible for him to maintain himself fully or could this become a matter of dispute which, in every case, might have to be determined by the courts?
(Limerick East): There is no criterion laid down for mental incapacity and it is a matter for adjudication by a court, but paragraph (b) to which Senator Mullooly refers provides for the addition of a new subsection (5) to section 11 of the 1964 Act. The new subsection will allow a parent to apply to the court for an order directing the other parent to pay maintenance for the child even though the child has reached majority, now 18 years, in a case where a child is mentally or physically disabled so that it is not possible for him to maintain himself fully. The new subsection will allow such an order to be made up to any age. This is already the position under the Family Law (Maintenance of Spouses and Children) Act, 1976. The power to make maintenance orders generally for children up to 21 years of age is dealt with as a separate matter in section 2 (4) which exempts references to 21 years of age in the relevant legislation from the effect of the change in the age of majority. There is no criterion, the court adjudicates but it is maintaining a provision which applies to incapacitated children above the age of majority and allows a court to issue mainteneance orders.
Section 9 states that the Act should come into operation on 1 March 1985. On Second Stage the Minister stated that 200,000 young people will be immediately affected by the legislation and another 60,000 or 70,000 will reach the age of majority during 1985. In view of the fears expressed by Senators on Second Stage is the Minister satisfied that there is sufficient time between now and 1 March to bring this legislation to the attention of the young people who will be affected by it and to put them on their guard because of its possible implications for them?
(Limerick East): I am satisfied. The working paper came out in 1977 and the final report came out in 1983. There has been intermittent publicity about the age of majority since about 1976. When the Bill was first published it was met with considerable goodwill and received quite an amount of publicity. It also achieved publicity in the Dáil and here in the Seanad. Young people are aware that there is a change pending even though they may not be aware that it is coming as soon as 1 March. Both here and in the other House a suggestion was made that an explanatory leaflet should be drawn up by my Department which would be available. I am having that idea examined. It depends on two factors. First there is the question of cost. If we were to try to get a leaflet such as this into the hands of everybody affected we are talking about 250,000 pieces of literature, which might be fairly costly. Secondly, there is the appropriate manner in which to supply the information to the people who are actually involved. I will have the situation examined to see if there is some method, either by explanatory leaflet or by some form of advertising, so that the 250,000 young people or so who will be immediately affected from 1 March and during 1985 will have it brought to their attention that these new rights have been conferred on them.
Under No. 6 of the Schedule, would the Minister confirm that the implications of this are as follows: if any injury in an accident were to have occurred prior to 1 March 1985, the age of majority for the purpose of determining the Statute of Limitations in respect of that accident would be 21 years, even if the child at that stage happened to be two years old? Is that correct?
(Limerick East): Paragraph 6 refers to it. I find the Schedule extraordinarily complicated. I will read the note I have. Paragraph 6 proposes that in the case of a right of action that accrues before the commencement of the proposed legislation the action may be brought at any time before the expiration of the relevant number of years specified in section 49 of the Statute of Limitations, 1975 from the date when the infant reaches 21. Section 48 of the statute of 1957 provides that a person is under a disability while he is, inter alia, under 21 and section 49 of the statute provides for the extension of a particular limitation period, applicable in the case of a disability. In the case of a right of action accruing after the commencement date a young person will cease to be under a disability on reaching 18 or getting married. That clarifies the situation. The answer is “yes” if it is before 1 March 1985 and “no” if it is after that date.
Yes, so in other words, in the procedure to establish whether or not a person's right of action has expired one would have to look at whether it was before or after 1 March 1985. If it was before 1 March 1985 the right of action would not expire until, for example, three years after they had reached their 21st birthday.
(Limerick East): I am informed that there is a provision to cater for a position such as, for example, a 19 year old who might now have a right of action for negligence in respect of personal injuries. At present he would have a period of three years from the date he becomes 21 in which to sue. When the age of majority is reduced to 18 he will become an adult on 1 March 1985 and unless this saving provision were inserted he would be able to sue only within three years of that date. It is a saver for that situation.
I appreciate the problems the Minister has with regard to somebody who is already in the intervening period between 18 and 21. But as far as I can understand it, it would also apply to a person who is at present two or three years of age and he will have that competence for another 24 or 25 years. It is not confined merely to those people who are now between the ages of 18 and 21.
(Limerick East): Yes, that is the position.
Is it intended to take the Report Stage today or is it intended to allow us to reflect on the Committee Stage until next week? I do not anticipate we will have a long Report Stage on this Bill but the Minister indicated that if he got time he would look at a few points. Obviously if we do not give him the time he will only be looking at them as an intellectual exercise. That would be a waste of the Minister's time.
(Limerick East): I got a note from my advisers saying that only the parent or the guardian, or a third party where the parent or guardian is dead, or in desertion and living apart from the other spouse, can proceed on behalf of the young person to get a maintenance order and that under the Act a young person could not proceed himself. That is the point the Senator raised.
I am suggesting that we do not take the Report Stage now. I asked that the Report Stage should not be taken until next week. I did not realise the House had taken a decision on it. If the House wants to take Report Stage now, fair enough but I do not think the House did take a decision on it.
I am in the hands of the House. If the Acting Leader would indicate to me——
I understood that all Stages would be taken today, that that had been agreed.
Are we going ahead and taking the remaining Stages now?
That was the intention of the House. In view of what Senator O'Leary has said, if it would not cause any great inconvenience to the Minister I would be inclined to suggest that we should defer the next Stage until the next sitting day.
Is that agreed?
My understanding is that the matter would be completed today and that all Stages would be taken. That was the understanding on this side of the House.
The question is: "That Report Stage be taken today."
I do not agree.
I could not put down an amendment on Report Stage for two reasons. One is that I did not have time, the Report Stage being taken immediately; second, such an amendment would require a seconder, and I doubt if I could have found one.
I would like to refer to the problem disclosed in section 2 (4) (viii). I made representations on two lines. The main one is that the maintenance of one adult by another adult was not a unique concept or a concept already in existence in Irish law, and I specifically referred to the question of the mutual responsibility of spouses to maintain one another.
That arises as a result of a contract which exists between husband and wife under which one or other may put himself or herself at a financial disadvantage in pursuance of their duties under that contract. As a result, they are entitled to be financially maintained as a result of the disadvantages and disabilities under which they have placed themselves over a period. That is the reason that there is a duty of maintenance on one spouse or another. I can enter into a contract to maintain another adult, and that contract will be perfectly enforceable in law. It is not impossible to enter into a contract.
Here we are not talking about somebody entering into that contract: we are talking about a situation under section 2 (4) (viii) of the parent, who is an adult, and the child, who is also an adult, being in a unique relationship. The parent has no guardianship over the child because when the child reaches the age of majority that guardianship ceases. The parent has no right to tell the child what to do with its life. The child is in every sense a free agent, but the child has the right to call on the parent to maintain him even during the period between 18 and 21 years of age, provided he is in full time education. I do not think that would survive any kind of a real challenge. If it arose it would disclose a particularly unhappy relationship between children and parents. These situations seem to have a habit of happening, and we have a duty to ensure that legislation which we pass will be examined and its implications fully thrashed out.
What the Minister said previously is quite true. It is possible that any legislation which we pass will be found to be in conflict with the Constitution, but that does not release us from the obligation to do the best we can to ensure that what we pass is in conformity with the Constitution. The reason that it might not conform with the Constitution is that we are not the arbiters of the way the Constitution should be interpreted. I cannot see any principle which is compatible with the free and independent status of citizens under the Constitution, imposing on one adult, in no special circumstances, the responsibility to maintain another adult. I do not see any way in which that could come about.
I am not happy with the possibility that the child could make application in these circumstances. The Minister has been advised that that right was limited to a situation where the husband and wife had been separated and there was a situation where the court recognised somebody in a position of guardianship, because of desertion or some other matter like that. It appears that there are possibilities for the child to make an application independent of that. If one of the parents refused to join as plaintiff in a case where a child is looking for maintenance between the ages 18 and 21 years, I doubt that the court would allow that situation merely because of refusal of the wife. If the husband was the person with the money and the maintenance order was being sought against the husband and if the wife refused to act on behalf of her adult child, I doubt that the court would refuse to consider the adult child in that regard. The court would hear and determine the merits of whether that child should be supported in the intervening period between 18 and 21. That appears to be imposing a considerable additional duty on the parent and a considerable right on children which goes far beyond what is intended by those who framed this law.
(Limerick East): On the constitutional point raised by Senator O'Leary, the precedent I quoted was that a spouse at present is obligated under the law to maintain the other spouse. There is a precedent for the situation of one adult being obliged under law to maintain another adult. Up to now that has not been challenged. When people marry they do not contract to maintain each other — that is not part of the contract. The obligation to maintain a spouse is imposed by law, but it is not part of the initial contract of marriage. There is a very strong precedent there and I am urging that the precedent is applicable when we are talking about a young adult over 18 years and under 21 years to whom a maintenance order applies. That is enforceable by law.
On the second question as to whether a child can apply to the courts for maintenance, separate from parents or guardians, I will quote from Family Law in the Republic of Ireland, second edition, by Alan Joseph Shatter. There is reference to the financial provision for children of spouses and he goes through the background and refers to the situation in common law, poor law and alimony and comes to the Guardianship of Infants Act, 1964. It states:
Finally with the coming into force of the 1964 Act a parent was able to apply to the Circuit Court or High Court for a maintenance order to be made in his favour requiring the other parent to provide support for a child in the applicant's custody.
He goes into detail on page 283 and in the last paragraph of the page there is a section which is headed, "Who may Apply". I quote from that section.
The great majority of applications for maintenance for the support of dependent children are made by a spouse when seeking maintenance for her own support. However, the Act also permits a third party to seek a maintenance order for the benefit of dependent children in certain circumstances where a spouse is (a), dead, (b), has deserted or has been deserted by the other spouse or (c), is living separately and apart from the other spouse and there are dependent children of the family who are not fully maintained by either spouse. Then the court may order a spouse to make a periodic payment of maintenance for the support of each dependent child to the person applying for the order.
It goes on to state that a provision could be used, for example, by a grandmother or an aunt to force a grandson or nephew to support a child of his in either of their care. A social worker could also bring proceedings under this section to force a parent to maintain his or her child. An interesting question that arises is whether a child himself could bring proceedings against the parent to obtain support in the absence of a third party or other parent seeking maintenance on his behalf. He says it is arguable that this could be so, but no such proceedings could be brought against parents still living together, but there is no provision in the Bill for it.
They would have to be living apart.
(Limerick East): He is allowing for the possibility of the argument the Senator raised, but there is no provision under the Family Law (Maintenance of Spouses and Children) Act, 1976 to do so.