Seanad Éireann debate -
Thursday, 21 Mar 1991

Vol. 128 No. 5

Child Abduction and Enforcement of Custody Orders Bill, 1990: Second Stage.

Question proposed: "That the Bill be now read a Second Time".

Minister for State at the Department of Justice (Mr. N. Treacy)

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.

Mr. Neville

On behalf of my party, I welcome the Bill and I welcome the Minister to the House and hope to facilitate him in the speedy passage of the Bill and the ratification of the Conventions.

The Bill creates a legal framework to cater for the problem of child abduction which has very sad consequences for the child and for the parents. Unfortunately, the incidence of child abduction is on the increase, and it is on the increase because of changes in society both in our own State and internationally. These changes have involved the increased incidence of marriage breakdown and marriage between parents of different national and cultural backgrounds. The increase in child abduction is also due, to an extent, to the increase in international travel; the internationalising of movement between countries which facilitates the cheap and easy abduction of a child by a parent or guardian to a different jurisdiction.

The Bill before us will include Ireland in one of 30 countries which has ratified both The Hague Convention on the Civil Aspects of Child Abduction and the European Convention on Recognition and Enforcement of Dimensions Concerning Custody of Children and the Restoration of Custody of Children. While the Bill, welcome though it is, will ratify these two Conventions, the unfortunate fact is that the countries creating the biggest problem in the area are not likely to sign them. Their judicial systems are far different from our western system, especially in Moslem and some European countries.

The most important aspect of the Bill is where the child taken out of the country is returned to the jurisdiction; in other words, is returned home. The Conventions which I referred to earlier cater for this. The parent can exercise his or her rights in any country party to the Convention. However, where a child has been taken against the will of the parent in this State to another state the courts in that country are obliged to return the child to the jurisdiction of this State. Ireland, of course, will reciprocate this arrangement and will return children to the country from whence they were abducted.

The Hague Convention puts an onus on the State to take all measures to discover the whereabouts of the child, to protect the child, to voluntarily return the child, to initiate judicial action if required and to keep the requesting state informed of developments. This will be done in most cases without incurring the expense of the parent travelling abroad.

With regard to section 8, this deals with the central authority for the purposes of The Hague Convention. The primary task of this authority is the transmission of incoming and outgoing applications for the return of children who have been abducted to any contracting state. With regard to this, the Minister should consider the appointment of a children's commissioner or guardian to represent the interest of the child both in Ireland and abroad. Such a person should be attached to the central authority and should have an independent role in relation to the children, subject to hearings. The main job of such a guardian would be to focus on the interest of the child. This role would be valuable where the interests of the adults were conflicting as they do in such circumstances. The person I referred to should be experienced in working with children. He or she should be a skilled professional who can discuss, communicate and identify the needs of the child and, more important, communicate the child's interest to any court hearing, not similar to a domestic situation with regard to the Child Care Bill which we dealt with last week. Both should have the facility to express to the authorities not alone the parents' interests but, above all, the child's interest and have the skill to gain the child's interest by communicating with and relating to the child.

It is important to clearly define the role of the central authority and the controlling mechanism on its function, who it reports to, how its chief executive officer will be appointed, etc. The Bill before us has failed to introduce the concept of abduction as a criminal offence. The Law Reform Commission in its Report No. 12 of 1985 recommended the provision of an offence of abduction of a child under 16 years of age. I quote from the Law Reform Commission's report:

The legislation should also contain provision for an offence of abduction of a child under sixteen out of the jurisdiction. This offence would be committed by anyone who takes or sends or keeps a child (being a child habitually resident in the State) out of the State in defiance of a court order or without the consent of each person who is a parent or guardian or to whom custody has been granted unless the leave of the court is obtained. It should be a defence that the accused either.

(i) honestly believed the child was over sixteen: or

(ii) obtained the consent of the requisite persons or of the court; or

(iii) has been unable to communicate with the requisite persons, having taken all reasonable steps, but believes that they would all consent if they were aware of all the relevant circumstances; or

(iv) being a parent, guardian or person having custody of the child had no intention to deprive others having rights of guardianship or custody in relation to that child of those rights.

No prosecution should be brought without the consent of the person in breach of whose rights in relation to the child that child was abducted out of the jurisdiction.

If the Minister is worried that such a measure would be counter-productive, he should introduce the protection referred therein, introduce a defence of any charge that the accused believed the person was under 16 or that the person obtained the consent of the other party or the abductor did not intend to deprive the other party of access to the child and so on.

While the Bill is essentially a civil matter it is important that a criminal sanction is incorporated against the offender. Most European countries have enshrined in law a sanction against child abduction and it is important that this recommendation be incorporated into the Bill.

The special statutory provisions for the removal of a child out of the country will remove the uncertainty that at present exists in the whole legal area. It will act as a deterrent against child abduction and will also permit the Garda Síochána to arrest without warrant those engaged in abduction. The Minister in his speech said the Garda will have a key role in tracing the whereabouts of children. The position is that they are over-stretched in their present duties. I wish to ask the Minister whether more manpower will be made available to the Garda to carry out their proposed role, what training they will have because of the specialised nature of the task given to them under the Bill or whether there will be a special task force available to carry out the requirements under the Bill. We must not have a situation where members of the Garda are taken off their present duties which will result in an increase in the crime rate. Specialist members of the force should be recruited for the purpose of tracing abducted children.

I welcome the Bill. It is very important and is necessary. The Minister referred to the Legal Aid Board and the role the board will play in the matter. Again, I refer to the need for adequate funding for the board to carry out its added responsibilities under the Bill.

I also refer to the difficulties that will arise for rural areas where there are no legal aid offices. This will create more difficulties for people in rural areas. This is an indication of some discrimination against people in those areas. The facilities will not be available to rural people to the same extent as to urban people. I would ask the Minister to refer to this and to give his views on the matter.

The health boards have a key role to play in this. They will be required to involve themselves in catering for the child until the situation is sorted out. This is a further responsibility of the health boards and will require extra officers, extra training, extra expertise to be available to financially stretched health boards. I ask the Minister what extra funding will be made available to the health boards to carry out this very important duty. We dealt at length last week under the Child Care Bill with the necessity to properly fund the health boards to carry out their duties under that Bill. This is a similar situation. We have health boards at present not able to carry out the necessary function of catering for the health of our people. Daily we witness complaints of people waiting for five, six and seven months for services to which they are entitled in any democracy. I would ask the Minister what funding will be made available to carry out the duties under the Act.

Overall, with the reservations outlined, we welcome the Bill and will facilitate its early passing through this House to enable the Minister for Justice to sign the Bill as quickly as possible and thereby bring Ireland in line with its European partners in signing the conventions before us.

Mr. Mullooly

I would like to extend good wishes to the Minister on his recent promotion to the Department of Justice and to wish him a very successful term of office. Like the previous speaker, I welcome this Bill. I would also like to thank the Minister for the very detailed explanatory memorandum that was circulated with the Bill.

The short title of the Bill is the Child Abduction and Enforcement of Custody Orders Bill, 1990. It is quite a complex and technical measure as it provides for the ratification of two very important international Conventions both dealing with child abduction. In addition to dealing with the provisions of the Bill and the Conventions, the memorandum outlines the present position in Irish law and I found this very helpful as I am sure other Senators did also.

The Conventions covered by the Bill are the Convention on the Civil Aspects of International Child Abduction, known as The Hague Convention, and the European Convention on Recognition and Enforcement of Decisions Concerning custody of Children and on Restoration of Custody of Children known as the Luxembourg Convention. The purpose of the Bill is to give the force of law in the State to both Conventions. It is interesting to note that both Conventions were signed in 1980. Almost 11 years have passed since they were signed, it is only now we are giving the force of law in the State to them. It goes to show how slowly we move in these matters.

In relation to the Luxembourg Convention, I would like to ask the Minister whether it is open to states other than member states of the Council of Europe to be party to this Convention. The title of the Convention starts with the adjective European. It would appear that only European states have ratified it to date. The Convention itself defines "child" as a person of any nationality. Perhaps the Minister in his reply would clarify the exact position in relation to this Convention.

Both Conventions are concerned exclusively with the civil aspects of international child abduction. Their main aim is to secure the speedy return of children who are removed from any contracting state in definance of a court order made in another contracting state or against the wishes of a parent with custody rights.

At present Ireland is not a party to any international agreement dealing with child abduction and there is no legislation specifically aimed at the matter. Neither are there any arrangements under which an Irish custody order will be recognised and enforced in another State. Therefore, in order to recover a child who has been abducted from this State legal proceedings have to be taken in the state to which the child is brought. Such proceedings are invariably both very expensive and very time consuming.

There have been cases in recent years of children who have been wrongfully removed to this country from their country of residence. These cases also have had to be dealt with through the courts and the fact that a custody order has been made by a foreign court does not prevent the issue being reopened before an Irish court. International child abduction is a growing problem and such abductions almost invariably involve one or other of the child's parents. I understand that there are no official figures available which would enable the extent of the problem to be assessed in so far as Ireland is concerned. It is a great pity that some statistics regarding the number of cases which have been reported in recent years are not available. The number is probably not very high but there may have been cases other than those of which we are aware because of the level of media attention which they attracted. Indeed, I am sure that many Members of the House will have personal knowledge of some particular case in their own areas or in which they themselves were involved as public representatives.

Various factors have been identified which are undoubtedly contributing to the increase in the number of incidents of international child abduction. Marriage breakdown is on the increase everywhere. There is the growing mobility of individuals between states, faster and cheaper international travel and better communications all make life easier for would-be international child abductors. The number of international marriages is increasing all the time. These are all factors which will not go away. They are a feature of life in today's world and while those factors are there the problem of child abduction will remain with us.

It is a fact of life that most cases of international child abduction involve parents of different nationalities. Indeed, it is true to say that in the majority of cases which have made the headlines in this country in recent years one of the spouses was from a very different cultural and social background to the other spouse. This will probably continue to be the case but unfortunately the state's from which these spouses have come are unlikely ever to become a party to this or to any other similar Convention. All we can do is hope that every contracting state will endeavour to persuade as many other states as possible to ratify these conventions. I am confident the Minister and the Government will play their part in seeking to achieve this objective.

In sections 8 and 22 the Bill provides for the establishment of a central authority in the State to facilitate the operation of each Convention. I take it that under these sections the Minister could, if he wished, appoint a separate authority for the purposes of each Convention but that the intention is that the Minister for Justice, through the Department of Justice, will act as the central authority for both Conventions. The explanatory memorandum states that where a child has been abducted into the State the central authority will initiate steps to trace the child, seek the child's return or secure access to the child and arrange, if necessary, for court proceedings to secure the return of or access to the child. Where a child has been abducted from the State, the central authority will assist the wronged party in seeking the return of the child and it will collate and send to other central authorities information about the abducted child. It would appear that applicants under both Conventions will be entitled to legal aid but I would like to ask the Minister if this will apply in every case irrespective of means. I would also like to ask if any other financial assistance such as assistance with travel costs will be available to people in poor circumstances who may be involved in such cases.

I welcome the fact that there is an obligation on the central authority to provide information to all applicants under both Conventions in relation to whatever proceedings are being taken and to keep applicants informed of the progress being made. I also welcome the fact that under both Conventions the most expeditious proceedings are required to be used. The Garda Síochána are also being given increased powers in relation to suspected child abductions. This power is provided for in section 37 of the Bill. If a member of the Garda Síochána reasonably suspects that a child is being or is about to be abducted from the State illegally, then that garda may detain such a child and the section goes on to make detailed provision for what must be done where such a child is detained.

I would also like to ask the Minister if it is intended to establish or designate a special unit within the Garda Síochána to deal with cases of child abduction or if it is intended to maintain a register of children who may be at risk of abduction. I believe that a file in the case of such a child or children could be of very considerable benefit if the worst were to happen and that such a file could contain a considerable amount of information which would be helpful in ascertaining the whereabouts of the child or where the child was most likely to be taken and in having the child returned. This section of the Bill which gives these powers to the Garda Síochána is very important and it is one which I welcome very much because in this, as in other matters, prevention, where possible, is always better than cure.

In a way, it could be said that this Bill complements the Child Care Bill because this measure also aims at safeguarding the welfare of children who are at risk. The type of situation which is addressed in this Bill can be a very difficult and traumatic one for the child concerned. I see the introduction of this Bill as a further indication of the Government's commitment in this very important area of child protection and, accordingly, I wish it a speedy passage into law.

Dr. Upton

I, too, welcome the Bill. I see it as non-contentious and I expect it will speedily pass through this House.

The Bill arises from an increase in international business, an increase in international transport, an increase in international marriages as it were and an increase in cross-cultural marriages. All of these developments inevitably lead to the problem of the abduction of children. It is very unfortunate that in the rows that develop children are the unfortunate and innocent victims.

There are a number of points in the Bill to which I would like to refer specifically. The first one that concerns me is the question of the ratification of the Conventions internationally which are embodied in the Bill. As Senator Mullooly said, it can be expected that a number of countries will be very reluctant to ratify the provisions of the Conventions which are dealt with in the Bill. That is a pity. The United Nations is probably the best way in which we can use our influence to encourage these countries to ratify what is contained in this Bill and the Conventions which are embodied in it.

I am concerned also about the fact that the Minister and the Department will be the central authority which is required to be established under the provisions of the Hague Convention. I would like to see this central authority broadened out to include a number of people who would be outside the Department of Justice. Of course I would like to see the Department of Justice involved in this, but it would be desirable also that the Garda would be represented on such an authority and that the various representatives of social work agencies and so on would be involved. I understand that the Minister has not accepted suggestions in this regard in the debate in the other House. I would ask him to consider the possibility of establishing some sort of an advisory group who would advise the Minister on this matter, even if it is an informal group of the various experts would have a knowledge of the issues involved. I would also like to know what is the situation in relation to the composition of the central authority in other countries and if a pattern similar to the one which is being followed in this country is being pursued elsewhere?

Another item which concerns me about the Bill is the question of resources. Extra resources are going to be needed arising from the implementation of this Bill and there are two specific areas which concern me. First, the Legal Aid Board will have an involvement in some of these court proceedings which take place arising from the passage of the Bill. Presently the Legal Aid Board is very stretched for resources; indeed one could say that it is stretched beyond the limit. I would be very concerned that the Legal Aid Board would have the funding which would be necessary for it to properly fulfill its functions in relation to the provisions of this Bill.

My second area of concern relates to the resources which will be made available to the Garda, who are given extra responsibilities in this Bill. The Garda are being given an increasing role in this area. In recent legislation their responsibilities have been increased and are going to be increased further under the Child Care Bill. That, of course, will further put pressure on the limited resources which the Garda have at present. They are very strectched at present and I would be concerned that they would be given the necessary resources so that they can properly fulfil their functions in relation to the responsibilities which they are being given in this Bill.

Like Senator Mullooly, I also wonder whether or not a special unit will be established within the Garda to deal with social matters. I would very much welcome the establishment of such a unit. I would welcome the resources being made available to the Garda to obtain the necessary expertise. I have every confidence that they have the capacity to do that if the resources are made available to them to allow them to take the necessary courses and to develop the necessary expertise. I would be very concerned that they would be facilitated properly to fulfill their role in this matter.

The Bill is not contentious. I welcome it. I do not have any problems with it. Finally, while the Bill is very welcome and very worthwhile, it does raise questions of priorities. One wonders why this Bill has the priority it now has, why it has been given time to be debated here in the House while there are many other pressing problems in relation to children crying out to be resolved by way of new legislation. The age of criminal responsibility for children is still stuck at seven. There is the ongoing problem of home-lessness among children, the rights of homeless children and so on. There is the question of children finding themselves in adult prisons. I know and I accept that these are not items which are being directly covered in the Bill; but I urge the Minister, now that this Bill is likely to be passed very rapidly, to direct his attention to these other very pressing matters.

Mr. Farrell

Ar an gcéad dul síos, ba mhaith liom fáilte a chur roimh an Aire. It is the Minister's first time here as Minister of State at the Department of Justice and we are delighted to welcome him. We know he will do as excellent a job there as he did in the Department of Health.

This Bill relates solely to the care of the child. It is most important because the child is the most vulnerable unit in our society. We live in an age, as the Minister said, where movement from one nation to another is being made easier by the day and where children can be kidnapped and taken out of an area. It is right therefore that there should be comprehensive law spanning various countries to ensure that any child taken under those circumstances can be brought into care and custody and restored to its proper home.

It is important that there would be a positive link between the central authority and local Garda stations, community care offices of the local health boards and the teachers. Those would be the first people to become aware of new children in an area, children who might be in peculiar circumstances. It is important that teachers be notified of anything like that, because children are at their most vulnerable when they are at play, on the way to school or in the playground, on the way to church, etc. If the people who would be dealing with them at such specific times were forewarned, then they would be able to keep a close watch on them and ensure that it would be made difficult for a person to kidnap them.

Most kidnapping happens in broken marriages, with one parent kidnapping from another. That is not that serious. But you could also have the element of criminal kidnapping, too, which would be a very serious situation. It should not put any great strain on the resources of either the Garda or the health boards because the number of kidnappings we are aware of is somewhere between five or ten in the last three years. The number of kidnappings is so small that it certainly will put no strain on resources. It would be very foolish to employ people full time and have them standing idly by, because that is all they would be doing. It is well within the capabilities of all concerned. The important thing is that the people concerned are notified well in advance, that as soon as the central authority knows of something it communicates without delay with the local Garda, the local schools and particularly the community care officers of the health boards.

I welcome the Bill. It is a very good Bill. If the need arises, I am sure there will be the provision of a child psychologist and social worker to talk with the child and to give all the help and assistance needed. I have no doubt that the health boards, particularly the community care officers and community workers, will be excellent at that job and will give a good service.

Mr. Foley

First, I wish to be associated with the compliments to the Minister of State, Deputy Treacy, on his first appearance in this House in his new appointment.

The main purpose of this 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. This legislation will be welcomed by the families and parents who have become caught up in situations involving child abduction in the past. It appreciates the problems faced by these people caused by family breakdowns and, most important, the ease of travel between countries.

The Bill will enable Ireland to ratify The Hague Convention, which deals with children being taken from one country to another without the consent of one of the parents. The Bill will also enable Ireland to ratify the Luxembourg Convention where a court order dealing with the custody of a child has been breached. These Conventions were designed to deal with situations where children are removed from the country of residence against the will of one or other of the parents.

This has become a big problem in recent years. We have seen it more often in situations where the marriage breaks down and one parent takes the child to his or her native country. A person abducting a child in that manner may gain an advantage over the other parent. If this happens, the custody case can be reopened before the courts in the country to which the child is brought. Even if the parent who has taken the child cannot get custody, the other parent has to go to substantial expense to seek the return of the child. This Bill sets out ways in which this can be rectified, especially with the defects in our existing law. It provides for administrative measures designed to secure the speedy return of a child without imposing a heavy burden on the parents.

The position of children who are the subject of a custody order made by the Irish courts will be safeguarded as a result of this Bill. At present there are no arrangements under which an Irish custody order will be enforced in another state. This is a serious deficiency in our international legal arrangements. For a parent whose child is removed from Ireland and who starts court proceedings in the foreign country not only would this be very expensive and time-consuming but the case would be determined on its merits by the standards of that foreign court. It may happen that a foreign court would take a different approach to the welfare of the child, despite the fact that the matter had already been considered and decided by an Irish court. A parent in Ireland who has obtained a court order is left without a remedy, while the parent who abducts a child can get custody. This may happen in only a small number of child abduction cases, but when dealing with the interests of children we should try to protect them to the fullest extent possible.

The Minister for Justice, through the Department and the Legal Aid Board, will provide the essential administrative and legal arrangements to assist a parent whose child has been taken into this jurisdiction. This means that such parents will be provided with an inexpensive and speedy remedy for the return of their child. I know that applications seeking the return of children who have been abducted to Ireland will be entitled to legal aid for court proceedings for the return of such children. The Legal Aid Board has been under a lot of pressure in recent years and I compliment the Minister for making arrangements for the recruitment of extra solicitors for the board.

I am concerned about the slow pace of law reform generally. It is five years since the Law Reform Commission published their report on The Hague Convention and it has taken that time to bring this Bill before the House. In addition there is a wide range of areas where there is urgent need for updating and consolidating our legislation. Much of our criminal law dates back to the middle of the last century when society was very different. I have no doubt but that the Minister will examine the difficulties he faces in trying to make our laws more appropriate to current circumstances.

I welcome the Bill and I congratulate the Minister and the Minister of State for their commitment to this amending social legislation which puts in place the detailed data to deal with child abduction. Fundamental to its success is the provision of the necessary finance. This will be the key to its future effectiveness.

Mr. Lydon

Very briefly, I will not go over what I said before. I would just welcome the Bill. It is non-contentious and it is very important that we ratify The Hague Convention and Council of Europe Convention in relation to child abduction.

I have one or two questions. I would be concerned that this Bill might not cover abduction to the Middle East, but I know we may not have much control over that. A previous speaker spoke about the need for legislation in the area of children generally, and I admit that there is a need for some. But the commitment of the Government in this regard is very good. I would like to put on record the personal commitment of the Taoiseach in this regard in his Ard Fheis speech when he outlined his own thoughts on child welfare generally. This is just one example of the commitment of the present Government to the welfare of children in general.

Minister of State at the Department of Justice (Mr. N. Treacy)

Tá mé an-bhuíoch de gach cainteoir anseo mar gheall ar an tacaíocht a thug siad don Bhille.

I am sincerely grateful to the Members of the House from all the main parties for their very positive contributions and for the very warm welcome which has been given to this Bill.

This is a very important piece of legislation in an area that has given rise to concern internationally.

The recent United Nations Convention on the Rights of the Child included a recommendation that states become party to multilateral international Conventions dealing with trans-frontier child abduction. At the European Community level all member states have been encouraged to ratify both The Hague and Luxembourg Conventions before the end of 1992. Ireland will be well within that timetable.

In his contribution Senator Neville asked about the role of the Garda in the operation of this Convention. There have already been consultations with the Garda authorities pertaining to the whole operation of this Bill when it is enacted. It might be helpful if I briefly outline what will happen when we ratify these Conventions. We propose to have a well defined organisational structure with clear lines of communication between the central authority, which will be located in the Department of Justice, and other Departments and bodies concerned, including the Garda Síochána — in other words, there will be total co-ordination between the central authority in the Department of Justice and all the other relevant Departments and agencies, including the Garda and the health boards. This will be similar to the structures existing in the other contracting states and the details will be fully worked out before these Conventions come into force in our State.

Senators Upton, Neville and Mullooly referred to the impact of legislation on the Legal Aid Board and the health boards. I should like to point out that the number of cases presently being dealt with by the Legal Aid Board is about ten per annum. The number of cases coming under the new legislation will be very small. It is not expected, therefore, that the Legal Aid Board or the health boards will require any extra financial or staffing resources as a result of this Bill being enacted.

In reply to Senator Mullooly, it will not be the case that persons with little means will not be able to afford proceedings in other contracting states. The Luxembourg Convention is quite specific on that matter in that legal aid must be provided in the requested state without a means test. While The Hague Convention is not so specific, the position is that legal aid in one form or another is available in all contracting states under that Convention. Basically, under international consensus all member states who are a party to these Conventions, who sign and ratify the Conventions, feel it obligatory on themselves for international co-operation to ensure that in cases like this legal aid is made freely available and, indeed, any other expenses incurred. If it is possible to recoup them as a result of a court decision or otherwise, that would be something the courts could look at. But there is no way that the rule of the law, the protection of children and the rights of people could be circumvented by not having proper recourse to the necessary funds to ensure that court cases can be held and decisions taken and implemented.

Senator Mullooly asked about various expenses and costs. There may be no need for the parents of the abducted child to travel to the country to which the child has been abducted. Legal proceedings will be looked after by the central authority of the country to which the child has been abducted. In regard to the cost of the return of the child, the court may order the abductor to pay those costs. However, in a situation where there is no finance available to return a child, the contracting states are generally in agreement that the state addressed should bear the costs on a contingency basis and seek recoupment at a later stage. I and the Government intend that successive Ministers for Justice will have a contingency fund available to enable us to play our part in this process.

Senator Mullooly also asked a very important question pertaining to the number of countries that would be a party to these Conventions and the type of co-operation available. I refer to page 37 of the Bill. I will quote from Articles 21 and 23 of the Council of Europe Convention. Article 21 states:

This Convention shall be open for signature by the member States of the Council of Europe. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

All the member states of the Council of Europe are expected to be a party to these Conventions and we are very confident that this will be the position.

Article 23 states:

After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may invite any State not a member of the Council to accede to this Convention, by a decision taken by the majority provided for by Article 20.d of the Statute and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee.

Article 21, therefore, covers membership of the Council of Europe and makes it binding within the European context. In an effort to achieve an international consensus in the area, the Ministers of the Council of Europe from the contracting states may invite other states to become a party to the Conventions in order to have it more broadly binding internationally. This is the road we would hope to travel. Ireland, as a small country with its great record on human rights and peace would always be positively in favour of expanding the membership that would be a party to these Conventions.

This Bill will ensure more prompt return of children abducted across international frontiers. This is the whole purpose of the Bill. The Conventions establish an administrative and judicial system among the contracting states which will lead to the prompt return of children who have been abducted. The Conventions, which have very specific provisions, will generally have regard to what is best for the child.

Senator Neville referred to the need for the creation of a special offence of child abduction. I dealt with that matter in my opening speech. For the reasons given, I am opposed to any such change in the law.

Senator Neville also talked about the need for a child commissioner and Senator Upton asked about the possibility of an advisory committee in connection with the operation of these Conventions. There is no need for any elaborate organisation to operate this legislation. If I might put this matter in perspective, on past experience there will not be more than perhaps five, ten or 12 cases a year involving this country. Even in England, where there are more cases due to the larger population, one full time official is regarded as sufficient to operate the central authority.

The Convention lays down in fairly precise details what is required of a central authority. The central authorities should co-operate with each other and promote co-operation among the competent authorities in their respective country or state to secure the prompt return of children and to achieve the other objects of the Convention. In particular, either directly or through any intermediary, they shall: take all appropriate measures to discover the whereabouts of a child who has been wrongfully removed or retained; to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues; to exchange where desirable information relating to the social background of the child; to provide information of a general character as to the law of their state in connection with the application of the Convention; to initiate or facilitate institutional, judicial or administrative proceedings with a view to obtaining the return of the child; and in a proper case to make arrangements for organising or securing the effective exercise of rights of access; where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers.

I might add, in reply to Senator Upton that, generally speaking, in other contracting states the central authority is located in the relevant Department of Justice.

I would also like to say, in response to Senator Upton's final contribution, where he infers that we were neglecting other areas of child problems, that the record of this Government is unequalled in the history of this country. We have brought forward the new Child Care Bill, which is the first Bill in this area since 1908. Seven Governments, including a Government in which Senator Upton's party were involved, published Bills but never brought them forward. We have given a lot of time and attention to the Child Care Bill. We discussed it in Committee for one year, we passed it through the Dáil and we are about to enter the Committee Stage in this House. We have this Child Abduction Bill before us. We also have another Bill on child sexual abuse under consideration.

We are totally committed to ensuring that the rights of children are protected, that facilities and services are available in this country that will be on a par with anything in any part of the world in the interests of ensuring that equality of opportunity prevails in the broadest context for the children of the land. This Bill is part of our contribution to the broader international situation and I look forward to the further co-operation of this House in ensuring its speedy passage. I thank everybody for their positive contributions.

Question put and agreed to.

Agreed to take remaining Stages today.