I move amendment No. 4:
In page 6, before section 4, to insert a new section as follows:—
"4.—(1) In this section the "Act of 1964" means the Guardianship of Infants Act, 1964.
(2) Section 11 of the Act of 1964 is hereby amended by the insertion of a new subsection after subsection (2):—
"(2A) Without prejudice to the law of contempt of court where a person contravenes an Order under this section he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200, or at the discretion of the court, to imprisonment for a term not exceeding six months or both."
I propose that there would be inserted before section 4 a new section relating to the Guardianship of Infants Act, 1964. The proposed new section starts off by reciting what it says in this section, "the Act of 1964" means the Guardianship of Infants Act, 1964. It is proposed to insert a new subsection which says:
Without prejudice to the law of contempt of court where a person contravenes an Order under this section he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200, or at the discretion of the court, to imprisonment for a term not exceeding six months or both.
It will be necessary for me to refer to more than this legislation to explain why I consider this to be an appropriate insertion in this Bill. In the first place this is a Courts Bill and what I am proposing to insert is a procedure to be followed by the court in this regard. A problem has arisen of which the Minister and his Department are aware concerning the enforcement of orders under the Guardianship of Infants Act, 1964. I would like to refer to that.
The three most frequent applications before a District Court under the heading of Family Law include guardianship and they would be barring, maintenance and custody. The legislation in 1981 which included the barring provision contained within it a section which dealt with the enforcement procedures of complaint, arrest and penalty including the power to remove an excluded person forcibly by the gardaí. Some of the terminology which I have used as a result of this amendment comes from that. The maintenance legislation of 1976 contains a similar provision. The House will be aware of the 1976 legislation in this regard and the Family Law (Maintenance of Spouses and Children) Act, 1976. In that Act provision is made for the enforcement of the proceedings by various means ultimately, as in all enforcement proceedings leading to a penalty being imposed on a person who defies the court in refusing to carry out maintenance orders specified and attachment orders specified under the 1976 Act.
In this case a complaint when it is properly made in accordance with the Act and the regulations made there under can be enforced by arrest and imprisonment. The problem arises that custody and access applications under the Guardianship of Infants Act, 1964 fall into the trap that there is no enforcement procedure for them. The reasons are historical. Under the Petty Sessions (Ireland) Act, 1851, section 9, it is provided that:
...if any person shall wilfully insult any Justice or Justices so sitting in any such Court, or Place, or shall commit any other Contempt of any such Court, it shall be lawful for such Justice or Justices by any verbal Order either to direct such Person to be removed from such Court or Place, or to be taken into Custody, and at any Time before the Rising of such Court by Warrant to commit such Person to Gaol for any Period not exceeding Seven Days or to fine such Person a sum not exceeding Forty Shillings.
It has been long established that an inferior court of record like the District Court cannot commit a person for contempt unless that contempt is committed in the face of the court. That is the nub and the kernel of the problem.
The Petty Session (Ireland) Act of 1851 is still operative even though the District Courts were set up under the Courts of Justice Act, 1924. In the Guardianship of Infants Act, 1964, this Act was one of the early Acts to which I am now referring, which dealt with the question of family law. At that time people felt with some justification that it would be sufficient to give the rights and the privileges under that to the High Court and the Circuit Court. Because that right was given to the High Court and the Circuit Court under the Guardianship of Infants Act, 1964 it was not felt necessary at that time to make any specific provision with regard to punishing somebody who disobeyed an order of the court. The Members will be aware that if anyone disobeys an order of the High Court that order can be dealt with by the High Court even if the person is not present. They can be sent for and they can be punished in the normal way for contempt of court. That is the background.
The Guardianship of Infants Act, 1964 did not contain a specific provision whereby people could be punished for disobeying the guardianship and access orders which were granted primarily by section 11 of that Act which I am proposing to amend. That section provides that 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. A court may make an order under this section and give directions as it thinks proper concerning the custody and the right of access to the infant of its father and mother.
The problem that arises is that in the Courts Act, 1981, at that stage from 1964 the 1976 Act and the other Acts had been passed and it was felt proper to remit all the matters dealing with family law as far as possible to the District Court. The intention was to give jurisdiction to the District Court to deal with all family matters that usually arise. Members who were Members of the House at that time will remember that that was the objective of the Minister of the day, which we all shared. Not only was it the intention that the jurisdiction be given to the one court but that matters would be dealt with at one sitting, that there would be one occasion when matters would be primarily dealt with. There might be successive applications in later years, if people were expressing dissatisfaction or if variations were necessary. That is the nature of these kinds of proceedings. The substantive issue would be decided at one sitting or a series of sittings around the same central body of facts. It was felt that the District Court, being the most accessible court in the country, was the most expeditious procedure for doing this. It was obviously more readily accessible than the other courts. It was obviously felt that it was a cheaper and a more efficient way of dealing with the various problems that arise. That is particularly true in relation to the Circuit Court, which may not visit an area for quite a long time, expecially in the larger circuits.
The problem that arises is that when the jurisdiction under the Guardianship of Infants Act was remitted by the Courts Act, 1981 to the District Court, no provision was made for the question of enforcement. That was an oversight. The enforcement provision was not specifically necessary in the 1964 Act because the courts within whose jurisdiction it was orginally intended that the 1964 Act would operate had an inherent constitutional and common law jurisdiction law of their own, and, therefore, it was not necessary that this would be specifically referred to within the Act.
When the jurisdiction was remitted to the District Court it became necessary to have a specific provision which would deal with the case where a person who was subject to an access or custody order refused to obey that order. At the moment it is true to say that this problem, in fact, does arise. The District Court access order is effectively only a piece of paper to which a person gives consent and obeys at his discretion. There is no way in which the access provisions specifically can be enforced within the District Court. There remains an inherent jurisdiction in the Circuit Court and the High Court, and applications can be made to these courts in various circumstances in addition to the application that was made to the District Court, but that brings us back to the situation that in order to have an effective set of decisions it is necessary for proceedings to be commenced in more than one court. This has given rise to a considerable problem. It is always open to the parties to recommence proceedings in a higher court. Of course, in those courts there is an inherent jurisdiction concerning attachment and commital. In fact, what happens is that on the ground people normally try to commence proceedings in the District Court. It is very late in the day they find out that the aggrieved party, the party against whom the access order in particular is made has not intention of obeying it. Then, very often, in these circumstances new, separate and distinct proceedings have to be commenced.
It was intended that the access provisions and other provisions governed by section 11 of the 1964 Act would be capable of being implemented, but it was overlooked and no District Court remedy was allowed. As I explained, under the Petty Sessions (Ireland) Act, 1851 it is only when contempt is committed by a person in the face of the court — in other words, only if a person is foolish enough to come in to court as a result of a request, and is contemptuous of the court in their presence — that he can be committed for contempt. In the event of a person just refusing to obey an order, there is nothing which can be done against that person. Effectively, what is happening on the ground is that these orders are either being obeyed because people believe they should be obeyed or being obeyed in ignorance but in a significant number of cases they are being ignored.
I do not practise in this area at all, but friends of mine who practise in this area tell me that the following is the situation. It is very often that it is the husband who finds himself in the position where he needs access. One finds oneself in the situation where at the end of a family law proceeding that may be the only thing the husband has — access to his children. He is in the position where he cannot stop paying maintenance because he is not getting access, because he could be in contempt of court or would be subject to the criminal problems arising in respect of the Family Law (Maintenance of Spouses and Children) Act, 1976, but on the other hand there is not a quid pro quo on the other side. The person to whom the access order was addressed is under no obligation other than a moral obligation and under no penalty, if he chooses to ignore an order made under the 1964 Act by the District Court.
There is an additional problem that arises. The Minister will be aware of it. In the civil legal aid scheme there is an obligation placed on the board to grant a certificate in relation to proceedings taken at a court. Normally, they only grant a certificate in relation to a court which is the lowest court having jurisdiction to hear a matter. It is not the lowest court having effective jurisdiction, but actually the lowest court having jurisdiction in the matter. Very often they find that they cannot really help somebody who needs to go to a higher court in respect of an access custody matter, because there is a lower court with jurisdiction in relation to these proceedings. This obviously is an anomaly which the board seeks to overcome in the best way they can, but there is an obligation imposed on them to do something which is quite ludicrous.
The provisions of my amendment have been given considerable thought. I am sure the Minister will come back and make one or two comments about the amendment, but the lobby group, shall we say, who brought this matter to my attention would have liked, in the initial stages, for me to have put down a very different kind of amendment for the following reasons. The amendment which I put down is, in effect, creating a new criminal offence in this area. It would have to be, in the absence of any additional sub-section, enforced by the Garda. Effectively, that is how it would be enforced. A person would be guilty of an offence and the Garda would have to take proceedings in the normal way. There is no provision in my amendment, even though I would have liked to have had such a provision, whereby the offender can be prosecuted either by the District Court clerk or by the aggrieved party. I felt that I should, in so far as possible, stay as close to the existing legislation as possible, recognising that the Minister's Department may be committed to an amendment in this area of a more fundamental nature and may be willing in the longer term to bring about a situation where the Garda are removed from this area and greater power and responsibility is given to the District Court clerks on the one hand or, alternatively, that powers be given to the offended party to institute proceedings in respect of the offence created by misdemeanours under this and similar-type legislation.
However, I did not feel that it was proper in this Courts Bill that I should so fundamentally try to change the law. I felt that it would be better if I kept as closely as possible to the existing provisions under the Family Law (Maintenance of Spouses) Act and the other barring legislation. I felt I would be bringing the law as closely as I possibly could into line with other legislation and that the legislation would be as inherently and internally consistent as possible, recognising that there is a substantial argument to be made to remove this area altogether from the criminal side and to give the power to initiate and prosecute a complaint under this section to the aggrieved party. Taking all those circumstances into account I decided to mirror as closely as possible the other legislation. I, therefore, propose that the law would be amended by a very simple section. Section 11 of the Guardianship of Infants Act is made up of four subsections. The first subsection deals with giving the guardian of the infant power to apply for the direction of the court. The second one is giving the court the power to make an order under the section. What I propose to do is simply to insert an additional subsection there, which would make it an offence to contravene an order under this section, and make it an offence which would make a person liable to six months in prison or a fine not exceeding £200.
I realise, of course, that this would be without prejudice to the law of contempt. In other words, the inherent jurisdiction of the High Court and the other jurisdiction which resides in the Circuit Court would remain. There would not be any diminution of their powers in this regard. It would be open to them, or to any other court, to use this power if they wanted to use this power, if they wanted to enforce their proceedings in that way. Effectively what would happen is that this offence would be prosecuted only in a case where a person had refused to obey an order and where that order had been made by the District Court. That is the reason for my amendment. That is the purpose of it.
It is generally recognised that there is a problem in this area. I feel that the Minister's Department are committed to solving the problem, but I think it would be a pity if we did not tackle the problem, even on a short term basis, by a less then perfect solution. If we waited until such time as there was fundamental revision of all the enforcement law as it relates to family law matters that could be a very long period indeed. There is no way that the Minister will be able to get such legislation in place before the summer. There is no question of that. I would go as far as to say, with the schedule of legislation which we have now, that it would be, in my opinion, impossible for the Minister to get it in place prior to the general election. That is my problem. This Minister might not be the Minister after the next general election. He may have gone to another Department. Therefore, it appears to me to be an appropriate time to tackle the problem now. If there is a better solution which would solve and decriminalise the procedure under this Act and under the other Acts and if there is such procedure on the drawing board under the protection of spouses and the maintenance of spouses legislation, that procedure can go ahead because we could be confident in the knowledge that in the interim there is a procedure whereby the court, having the primary jurisdiction now and having the jurisdiction given to it by this House, with the intention that that jurisdiction would be acted upon, can enforce its orders. It will practically never be necessary for this provision to be used because it will be sufficient to say to people: "the provision is there and if you do not comply with an order of the court you will be committing an offence. You will be sent to jail or you will be fined £200".
That is all that will be necessary. In 99 per cent of the cases that will solve the problem. At the moment the situation is that one cannot look people straight in the face and say: "if you disobey this order something is going to happen to you". One can say to them: "if you disobey this order, I am going to another court to get you punished". That brings, in my opinion, court orders into disrepute and subsequently increases the difficulty of enforcing court orders in general if any one of them is incapable of enforcement because of a lacuna in the law.
Before sitting down I should say that Senator McGuinness wanted also to propose this amendment. There may be an error in the actual amendment slip to that effect. I just do not want to say that it is only my amendment because Senator McGuinness specifically sought me out last week and we discussed it and we agreed that it would go in our joint names.