Section 7 refers to the High Court. We have highlighted the need for concern for the child's position. I would like to ask the Minister to comment on the suggestion that a family-type court would be more appropriate in the circumstances because of the unique situation for the child, in the first instance, and also because of the family dispute aspect of the issue we are discussing. Would a family-type court be more appropriate than the more strict legalistic approach of the High Court?
Child Abduction and Enforcement of Custody Orders Bill, 1990: Committee and Final Stages.
Sections 1 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
I thank Senator Neville for his query. We dealt with this in the other House. First, it is normally the High Court which deals at present in cases where a child is abducted to Ireland by a parent and the other parent seeks the return of the child. In order to secure the immediate welfare of the child the court may exercise the jurisdiction it has in relation to wardship or proceedings by way of habeas corpus. It is the only court with this jurisdiction. It might make orders as appropriate under the Guardianship of Infants Act, 1964, but the essential point is that the High Court is experienced in child abduction cases which have an international dimension and on which constitutional questions may arise. The High Court would have the right, being a higher court, to give an adjudication on the constitutional question. While the Supreme Court would be the final arbiter and final authority in any interpretation of anything to do with the Constitution, the High Court would be in a much better position to give a clear direction pertaining to the constitutionality of a situation as distinct from the lower courts.
The Law Reform Commission in its report, LRC 12 of 1985, recommends that jurisdiction under the Conventions be vested solely in the High Court. It considered whether the Circuit Court should also be given jurisdiction but decided not to recommend this, because it is the High Court which has a unique jurisdiction in habeas corpus applications and in the constitutional issues which may arise in these cases. What the Law Reform Commission was saying was that they acknowledged the necessity that the High Court should be the only court with the power to give a decision to the defendants or to a person or persons involved in abducting a child or preventing a child from being made available to his parent or to another parent. The High Court has the right to pronounce that that person must produce the child, which is a habeas corpus decision, and other courts do not have that power.
In the context of the Conventions we are obliged to provide interim or provisional measures to secure the welfare of the child and to prevent prejudice to interested persons or changes in the circumstances relevant to the determination of applications under the Conventions. Sections 12 and 23 of the Bill give the High Court power to make interim orders for these purposes. The High Court, because of its experience in such matters particularly as to wardship and habeas corpus proceedings and because it is always available to sit — it usually sits five days a week and will also sit at weekends at very short notice if necessary — would be ideally placed to carry out the obligations under the Conventions in this area.
The Conventions also set out grounds for refusing the return of a child, which generally have regard to what is best for the child. I should like to refer in particular to certain of those grounds. The Hague Convention provides in Article 20 that the 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. Under the Luxembourg Convention recognition and enforcement of a foreign custody decision may be refused on the grounds provided for in Article 10 (1) (a) that the decision is manifestly incompatible with the fundamental principles of the law relating to the family and children in the state. These provisions in the Conventions will in effect enable the High Court to refuse an order to return a child where this would be unconstitutional. In the light of these provisions in the Conventions to which the Bill gives the force of law the House will agree that there really is no choice regarding the court which will have jurisdiction in this country to deal with Convention cases. The only court which should have that jurisdiction is the High Court and this is provided for in the Bill.
Family court procedures are provided for in section 39. This section applies, also section 33 (3) and 33 (4) of the Judicial Separation and Family Law Reform Act, 1989, to proceedings in the High Court under the Bill. The effect is that proceedings under the Bill will be as informal as is practicable and consistent with the administration of justice and that neither judges, barristers or solicitors appearing in those proceedings will wear wigs or gowns. Subsection (3) provides similarly in respect of proceedings in the District Court under the Bill.
The situation is very clear. Due to the constitutional situation, the rights of the child, the paramouncy clause and due to the international situation involving other contracting states, you need a High Court with clear powers to ensure that an order can be made that the child be produced and to interpret the international and constitutional situations. It would be unwise for us to vest the power in another court that would not have the same type of jurisdiction to make the most powerful decision possible in the interests of the child.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
Concern has been expressed in many areas with regard to section 8 in that it states:
...unless and until the Minister appoints a Central Authority under this section, the said function shall be discharged by the Minister and references in this Part to the Central Authority in the State shall be construed, accordingly, as references to the Minister.
If a child is abducted the person to be contacted is the Minister. I know that his has been debated at length but it deserves to be raised again. Is it practical for the Minister or his agent to be the authority and if an agent of his becomes the authority how will that agent be selected? I referred in section 7 to the necessity for a trained person in the area of dealing with children. It is very easy to ignore the needs and wishes of the child when you get into a situation of conflict between adults. The child can become incidental to the proceedings. It is always important to take cognisance of the needs, wishes and rights of the child. If the Minister is to be the reference and the authority, according to the explanatory memorandum he would have to take steps to trace the child. He would have to 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 who has been abducted into the State. He would also have responsibility where the child has been abducted from the State. Is it practical that a Minister should have to be contacted at 12 o'clock on a Saturday when a child has gone missing?
Senator Neville has raised a question which we teased out in the other House. Section 8 of the Bill as it stands enables the Minister for Justice at his discretion to appoint a central authority, a person or body not being himself or his Department, and it provides that unless and until he appoints a central authority the functions of the central authority shall be discharged by the Minister for Justice. It is intended for the foreseeable future that the Minister for Justice will, through his Department, act as the central authority. This is in line with the recommendation of the Law Reform Commission in its report LRC 12 of 1985 on the Hague Convention and it is also in line with the position in the vast majority of other contracting states to the Hague Convention as well as to the Luxembourg Convention.
We are being consistent. The central authority in 90 per cent or more of the other member states is vested in the Minister for Justice and the Department of Justice of the relevant country. It is universally accepted that Departments of Justice are in the best position to carry out or cause to be carried out the functions of a cental authority.
Article 7 of the Hague Convention firstly sets out the general duty of central authorities to co-operate with each other and, in addition, to promote co-operation among the authorities in their respective states so as to achieve the objects of the Convention. Secondly, the Article lists in broad outline the different stages of intervention by central authorities in the typical case of child removal. The first obligation of a central authority under the list of obligations in Article 7 is to discover the whereabouts of the child. Clearly, in our case the Garda Síochána will be asked to trace the whereabouts of the child when there is difficulty in locating the child. The Department of Justice as the central authority will liaise with the Garda Síochána in this matter. There have already been consultations with the Garda Síochána in this regard.
The central authority must prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures. Since all applications will be transmitted to the Legal Aid Board for proceeding to be taken in the High Court for return of the child, it will be a matter for the board's solicitor to take interim measures, as provided for in section 12 of the Bill, where appropriate to secure the welfare of the child. The central authority must aim to secure the voluntary return of the child or to bring about an amicable solution of the issues. In this context the central authority will, if necessary, avail of the professional expertise that is available to the Department.
These among others — and I have already outlined a long list — are the functions of the central authority. It seems to me entirely appropriate to vest these functions in the Department of Justice to be performed directly or indirectly. In the broadest context and the Department of Justice, representing the State and responsible for law and order in its close co-operation with the Garda and with the legal aid board, has available to its three distinct strata: the Department with their expertise, the Garda Síochána as the people on the ground implementing law and order and in a position to seek the abducted child and thirdly, the legal aid board who, at the request of the Department, will carry out the legal proceedings and take the necessary action. This is consistent with the position in other countries. We have tremendous legal expertise in the Department of Justice together with administrative expertise and various other experts who would all be part of the team reporting to the central authority, ensuring that everything would be done in accordance with the law and with proper standards of human behaviour.
We also intend to ensure that there is maximum co-operation — and we spoke about this in the Dáil — with the Department of Foreign Affairs who, regardless of whether it is 6 o'clock in the morning or 12 o'clock at night, will be available to people in distress in this situation at airports, ports and at the Department of Foreign Affairs a line of communication will immediately trigger into action the relevant operations that are needed through the central authority. I do not think anybody can be in any doubt as to our commitment to ensure that we discharge our responsibilities, both nationally and internationally, in this very important area.
Question put and agreed to.
Sections 9 to 36, inclusive, agreed to.
NEW SECTION.
I move amendment No. 1:
In page 16, before section 37, to insert the following new section:
"37.—(1) It shall be an offence to take, send or keep a child, under the age of sixteen years, who is habitually resident in the State, out of the jurisdiction 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.
(2) Where a person has been charged with an offence under subsection (1), it shall be a defence to show that the defendant—
(i) honestly believed the child was over sixteen years of age,
(ii) obtained the consent of the requisite person or of the court,
(iii) has been unable to communicate with the requisite persons, having taken all reasonable steps, and there was reasonable grounds to believe that their consent would have been forthcoming, 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.
(3) No prosecution of an offence under this section shall be brought without the consent of the person in breach of whose rights that child was abducted out of the jurisdiction.
(4) A person found guilty of an offence under this section shall be liable—
(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding five years or to both.".
For this I draw support from the Law Reform Commission which the Minister has so liberally quoted throughout the Committee debate on this Bill. I will quote from this:
The Commission believes that the offence of abducting a child out of the jurisdiction should apply where the child abducted is under 16. It believes that it is important to formulate a precise definition of the offence which at the same time does not place unrealistic restrictions on those having charge of children. In the case of parents, guardians or others having custody of a child, the offence should not be committed unless there is an intention to deprive others having guardianship or custody rights in relation to the child of those rights.
The Commission is also of the opinion that the proposed offence should cover cases where a person decides to keep a child out of the jurisdiction in defiance of a court order or without the approval of its guardians. The offence should be confined to children habitually resident in the State as it is doubtful if we should be concerned to secure the presence in the State of those not so habitually resident.
I know that the Minister in his contribution today on Second Stage gave an opinion that existing law on kidnapping and on contempt of court, together with provisions in section 37 of the Bill giving extra power to the Garda to detain child abductors, would adequately cover the matter. I am convinced that the views of the Law Reform Commission should be brought to bear on this. There should be a specific offence to strengthen the situation by making it an offence to abduct a child from the State. This would have the added benefit that the Garda, if this amendment is accepted, would have the powers to arrest without obtaining a warrant and could, therefore, act quickly in situations that need quick action.
I have listened with interest to what Senator Neville has said. I thought I had clarified that in my opening speech. Where it is feared that a child may be removed from the jurisdiction in violation of a custody or access order, the position is that application may be made to the High Court or the Circuit Court for an injunction prohibiting the taking of the child out of the jurisdiction. Any person in breach of this injunction may be committed to prison for contempt of court. Also, any person who, with knowledge of the injunction, assists in its breach is also guilty of contempt.
Another procedure is for the parent to apply to have the child made a ward of court. The child becomes a ward of court as from the making of the wardship application and to take him out of the country thereafter without the permission of the court is a contempt of court. The difficulty referred to by the Law Reform Commission in its report LRC 12-85 from which Senator Neville has quoted on The Hague Convention 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 fled 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. Indeed, that section goes further than the Commission's recommendation which confined the power of the Garda Síochána to detain the child to the case where a custody order is in existence. Section 37 gives the power to detain the child in cases also where an application for a custody order is pending or is about to be made. The creation of a special offence of child abduction would only be of very limited application and could be counter-productive and a double-edged sword in that it might inhibit the voluntary return of a child by the abductor or a reconciliation between the parents or, in the absence of reconciliation, an agreed solution to their problem. It is the child's welfare and his quick return to the custodial parent that is the primary consideration in the emotional context in which these cases occur. The pursuit of the parent as a criminal, except in an extreme case, should not be a feature of such cases. Indeed, a view among many of the contracting states to these Conventions is that in child abduction cases, since one is primarily dealing with the civil family law matter, nothing should be contemplated that might make the prospects of reconciliation or an agreed solution impossible.
It is important to note that the amendment before us is based on a change in the law in England which was brought in because it was thought the offence of kidnapping did not apply as between a parent and child. I very much doubt if that legislation would have been regarded as necessary if a House of Lords decision which decided that the offence of kidnapping did, in fact, apply as between a parent and child had been available at the time. The criminal law in family mattres can be a very blunt instrument and, in spite of the defences listed in the amendment, prosecutions could occur which might result in far more harm than good.
Not all abductions will be totally blameworthy. The conventions themselves recognise that there will be cases where the child may not be returned to the country from which it has been abducted. For example, The Hague Convention, Article 13, provides that a state need not return the abducted child where it is established that there is a grave risk that the child's return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation. These are matters which can be properly taken account of only in civil proceedings under the Conventions. In the criminal area they would represent no more than mitigation of the accused's conduct.
Let me give an example of a case here a request for extradition on foot of a charge of abducting a child caused severe problems for the requested country. The court was placed in the unenviable position of having to return the mother who had abducted the child by virtue of the extradition request. It subsequently transpired that it would not be in the best interest of the child to return and the requested country was left with an almost insoluble problem. The case illustrates the dangers of involving the criminal law with its own distinct and separate criteria and procedures in what is essentially a civil law matter where the welfare of the child is the paramount consideration.
In another case a country let it be known that if it knew in advance that the abducting parent was to be arrested and charged with child abduction on returning to the state of origin with the child, it might have decided not to return the child.
I am not at present convinced that the enactment of a specific offence of child abduction would necessarily be in the child's interest. However, it is a matter I will keep under review. Our present priority must be to enact the legislation now before us, ratify the Conventions and put the central authority in place.
I would remind Senators that the Conventions themselves contain no requirements in relation to the criminal law and are concerned only with affecting the return of the child, where appropriate, as quickly and as humanely as possible. In view of all I have said, I respectfully suggest to Senator Neville that he consider withdrawing this amendment because I will not be in a position to accept it.
I am not happy to withdraw the amendment. The offence of abduction is particularly upsetting and bearing in mind the enormous difficulty it puts a child under and the stress difficulties they experience, it should be an offence. The Law Reform Commission, after long deliberations, has suggested this as well and has suggested safeguards for what the Minister has said. Under those circumstances I do not wish to withdraw the amendment.
Amendment put and declared lost.
Sections 37 to 43, inclusive, agreed to.
First and Second Schedules agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
Before we conclude I wish to sincerely thank Senators for their excellent contributions and for their co-operation in giving this Bill a speedy passage. It will ensure early ratification of The Hague and Luxembourg Conventions. I wish to thank also the Law Reform Commission, many of whose recommendations in their report on The Hague Convention have been taken on board in the Bill. I look forward to the setting up of the central authority in my Department, to operate the administrative measures in the Conventions. When the legislation has been brought into operation we propose for the benefit of the public to publish information about the new legislation and the central authority.
The Bill reflects the commitment of this Government to a programme of reform in the family law area and I am sincerely grateful for the co-operation of the House. I look forward to coming back to conclude the Child Care Bill and I also look forward to taking further child Bills before the House as quickly as possible.
I would like to thank the Minister for being present and taking the Bill. I add my congratulations on his new position in the Department of Justice and wish him well. As party spokesman for justice and law reform I look forward to debating many Bills.
I would also like to join in the expression of thanks to the Minister and in particular to thank him for the very comprehensive way he dealt with the various points we raised on Second Stage and Committee Stage.
Question put and agreed to.