The purpose of this important Bill is to give the force of law in the State to two international Conventions: The Hague Convention on the Civil Aspects of International Child Abduction; and the European Convention on Recognition and Enforcement of Decisions concerning custody of Children and on Restoration of Custody of Children.
These Conventions have already been signed, subject to ratification, on behalf of Ireland. During the course of my speech I will refer to the Conventions as The Hague Convention and the Luxembourg Convention, respectively.
The Law Reform Commission made recommendations in its Report LRC 12-1985 on The Hague Convention and these have been taken into account in the preparation of the Bill. I should like to thank the commission for its work in this area.
The Conventions deal with the problems that arise when a parent abducts his child across frontiers in defiance of a court order or against the wishes of the other parent. A key feature of both Conventions, which apply to children under 16 years of age, is that they require the establishment in each contracting state of a central authority to facilitate the operation of the Conventions and they provide for expeditious judicial procedures for the return of the child who has been abducted to another contracting state.
The main difference between the two Conventions is that the Luxembourg Convention has a scheme of recognition and enforcement under which custody order of one state are recognised and enforced in other contracting states while The Hague Convention can operate in the absence of a court order in the state from which the child was removed. There are no arrangements at present under which a foreign custody order will be recognised or enforced in this State. The fact that a custody order has been made by a foreign court does not prevent the issue being re-opened before an Irish court. The new administrative and judicial measures which will be put in place, therefore, on our becoming party to the Conventions, will represent a major improvement over existing procedures in child abduction cases.
Child-snatching by parents is a growing international problem because of increasing levels of family breakdown in various states, of growing mobility of individuals between states and of easier international travel. The Conventions came into force in 1983 having been ratified in each case by a minimum of three states. The number of contracting states has increased to 16 in the case of The Hague Convention and to 13 in the case of the Luxembourg Convention. The Hague and Luxembourg Conventions have been ratified by seven and eight EC states, respectively and it is expected that all EC states will have ratified both Conventions by 1992.
An explanatory memorandum was circulated with the text of the Bill on its initiation. The memorandum deals with the provisions in the Bill as well as the Conventions. Having regard to the technical nature of a number of the provisions in the Bill and the Conventions, I believe that this explanatory memorandum will prove particularly useful.
The main provisions in the Bill are section 6 in Part II concerning The Hague Convention, and section 21 in Part III concerning the Luxembourg Convention which provide that the Conventions shall have the force of law in this State. The Conventions are drawn up in the English and French languages, each of those languages being equally authentic. The English language texts of the Conventions are scheduled to the Bill for ease of reference.
The provision in the Bill concerning the setting up and operation of the central authority in this country for the purposes of both Conventions are similar and are contained in Parts II and III of the Bill. Sections 8 and 22 provide for the establishment of the central authority in the State to facilitate the operation of the Conventions. The Minister for Justice, through his Department, will act as the central authority in the State. This arrangement is in line with the position in most other contracting states.
Sections 9 and 24 deal with incoming applications, that is, applications under the Conventions to our central authority for the return of a child who has been abducted to Ireland. Both sections make clear that the central authority shall take or cause the appropriate action to be taken under the relevant Convention. The functions of the cental authority are set out in the Conventions. Where, for example, the central authority has to trace the child, as required by both Conventions, it will normally contact the Garda Síochána who will put the necessary procedures into effect. Where court proceedings are concerned, the application will be transmitted by the central authority to the Legal Aid Board for attention since applicants will be entitled to legal aid under both Conventions.
Sections 10 amd 32 deal with outgoing applications, that is, applications under the Conventions for the return of a child who has been abducted from the State. In these cases our central authority will assist applicants by transmitting applications and any documentation that is required to the central authority in the contracting state to which the child has been removed. Setions 14 and 30 give the central authority power and authority for the purposes of the Conventions to request a probation and welfare officer, a health board or a court to provide information on the background of a child for transmission to a central authority in another contracting state for use in court proceedings in that state.
Sections 7 and 23 of the Bill are also similar in that they give the High Court jurisdiction to hear and determine applications under the Conventions. Sections 12 and 26 provide interim powers to the High Court for securing the welfare of a child prior to the determination of an application under either Convention.
The Conventions, which are being given the force of law by the Bill and will, therefore, become part of our domestic law, are based on the premise — set out clearly in the preambles to both Conventions — that where the custody of a child is in issue, the child's welfare is of overriding or paramount importance. The principle in both Conventions is that where a child has been abducted across international frontiers its welfare will normally be best served by its immediate return to the State from whence it was abducted. While both Conventions make it clear that the substance of custody decisions are not to be reviewed in the country to which the child has been abducted, each convention has detailed provisions for the purpose of safeguarding the interests of a child to cover those cases where it is manifest that his welfare would not be served by his return to the country from which he was abducted.
Briefly the provisions are the following. In the case of The Hague Convention return of the child may be refused under Article 12 if it is demonstrated that the child is settled in its new environment, or that there is a grave risk that the child's return would expose him to physical or psychological harm or otherwise place the child in an intolerable position, or where the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of his views. Of particular importance in the Irish context, because of our constitutional requirements, is Article 20 of the Convention under which return of a child may be refused if it would be contrary to the fundamental principles of the State relating to the protection of human rights and fundamental freedoms.
In the case of the Luxembourg Convention, the welfare of the child will be safeguarded principally by Article 10 (1) (a) which provides grounds for refusal of recognition and enforcement of a foreign custody decision if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed. Since the principle that the welfare of the child is paramount is a fundamental principle of our family law, this will be applied where an Irish court is the court addressed.
Article 10 (1) (b) also protects the welfare of the child by providing that a State may refuse to return a child if it is found that, by reason of a change in circumstances, including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the child's welfare. Section 28 (1) of the Bill provides that the High Court may, in effect, refuse an application under the Luxembourg Convention on the grounds I have mentioned.
The explanatory memorandum, which accompanies the Bill, deals at length with the grounds of refusal under both Conventions.
Provisions of some procedural importance concerning applications made under the Conventions while other proceedings relating to custody of the child are pending before any court in the State are contained in sections 13 and 27. The effect of section 13, as required by Article 16 of The Hague Convention, is that any custody proceedings, which are before any court in this State when proceedings under The Hague Convention are commenced in the High Court, must be stayed until it has been determined that the child is not to be returned under the Convention, or unless there is delay in bringing the application for return of the child before the High Court.
Section 27 takes into account Article 10 (2) (b) of the Luxembourg Convention and concerns the case where an application is made to the High Court under the Convention while an application relating to custody of the same child is pending before any court in the State. This section provides that, where the custody proceedings before any court in the State were commenced before the foreign custody proceedings were commenced in the state of origin, the proceedings in the High Court in respect of the foreign custody decision may be suspended until the other custody proceedings have been determined. Conversely, the section also provides that the foreign custody proceedings in the High Court will have the effect of suspending the powers of any court in the State in any custody proceedings which commenced after the commencement of the proceedings in the state of origin.
Section 28 (2) avoids possible conflict between applications to the High Court made under both Conventions in respect of the same child. The section makes clear that where an application for recognition or enforcement is sought in the High Court under the Luxembourg Convention and proceedings in the High Court under The Hague Convention are pending, the Luxembourg Convention proceedings shall be stayed until the other proceedings have been determined.
Part IV of the Bill contains supplementary provisions, the more important of which are sections 36 and 37.
Section 36 concerns what may be referred to as "chasing orders". The section empowers the High Court, in proceedings under either Convention, where there is not available to it adequate information as to the whereabouts of the child, to order any person who it has reason to believe may have relevant information, to disclose it to the court. In cases where the child has been produced, the court may also order disclosure of any information that is relevant to proceedings under either Convention. The court will have similar powers in cases where the child has been abducted out of the State and application is made to the court for information that may be necessary for any proceedings in another contracting State.
Section 37 is also of considerable practical value. It gives the Garda Síochána power to detain a child who, they reasonably suspect, is being removed from the State in breach of any custody order (including orders made under either Convention) or while proceedings in relation to custody orders are pending or are about to be made. In addition, the section makes detailed provision about what must be done where the child is detained. The Garda Síochána must return the child to the person who has rights of custody or return the child to a health board where the child has been in the care of that health board.
There may also be circumstances where a child will have to be delivered into the care of a health board — for example, where the parent is not available to take immediate delivery of the child — and that is also provided for in section 37. In such cases the Garda Síochána will be required to inform a parent of the child, or in appropriate cases the central authority, of any such delivery of the child to a health board, and the health board will be required to make application at the next sitting of the District Court in the district court district where the child resides or was, at a material time, residing for directions as to the child's release from such care or otherwise. Where the next sitting of the court is not due to be held within three days of the date on which the child is delivered into the care of the health board, a special sitting of the District Court will be held within three days. This provision may be of importance in venues outside Dublin during Christmas, Easter and August vacations when there are no daily sittings of those courts. These are the main provisions of the Bill and the Conventions.
The Law Reform Commission in its report on The Hague Convention considered that an offence of abduction of a child should be created. This, of course, is not required by The Hague or the Luxembourg Conventions which are concerned exclusively with the civil aspects of child abduction. I should like to say, however, that the matter was carefully examined in the preparation of the legislation but it was considered that the existing law on kidnapping and on contempt of court, together with the provision in section 37 of the Bill giving extra powers to the Garda to detain a child who is being abducted, will adequately cover the matter. Under the law as it stands a parent can be guilty of the common law offence of kidnapping his or her own child. Moreover, in cases where there is a court order relating to the custody of, or access to, a child, the court has powers for enforcing its orders by way of committal or fine depending on what court is in question.
A difficulty, of course, referred to by the Law Reform Commission in its report LRC 12-1985 is that, though the Garda have power to arrest a person who has been committed for contempt of court, the abductor is likely to have fied the jurisdiction with the child before the committal order is obtained. The solution which has been recommended by the Law Reform Commission in this context is being implemented in section 37 of the Bill which, as I have mentioned, gives the Garda power to detain a child.
I think you will agree that the important thing is to secure the return of the child and the Bill provides the necessary measures in that regard. My concern is that any such new offence might, in fact, be counter-productive in that it might deter a parent who has abducted his or her child from returning voluntarily, and eliminate any possibility of reconciliation between the parents or of an agreed solution for return of the child. I prefer to look at this whole matter in the light of what is best for the child. I am convinced that a specific offence of child abduction such as was recommended by the Law Reform Commission would necessarily be in the child's best interests or indeed the interests of a resolution between the parents of the problem in these unfortunate cases.
This legislation will be an important addition to our laws in the area of marital breakdown. It will ensure that we can play our part in international efforts to deter child-snatching by parents across national frontiers and to secure return of the child in cases where abduction has occurred. With your co-operation I look forward to a speedy passage of the Bill so that The Hague and Luxembourg Conventions can be ratified by this country shortly.
I commend the Bill to the House.