The purpose of this Bill is to enable the State to ratify two international conventions — described as the Rome and New York Conventions — which will assist claimants in Ireland who wish to recover maintenance from persons living abroad. The Bill will also assist foreign claimants who wish to enforce their entitlements to maintenance in Ireland.
A strengthening of the law in relation to the recovery of maintenance payments is one of the principal objectives of the Government's family law reform programme. The Family Law Bill, 1994, which is currently before the Dáil, extends the range and type of maintenance payments that may be awarded by courts. It also gives courts new powers to enforce such payments. While this measure will be of considerable benefit in recovering maintenance from persons who continue to reside in the State, additional provisions are required to deal with the increasingly common situation of maintenance debtors who go to live and work in other countries.
There have always been unique difficulties associated with the inter-state enforcement of maintenance orders. In Ireland, under the common law as it applied up to recent times, an order for periodic maintenance payments made in another country could not be recognised or enforced. Similarly, Irish maintenance orders could not be enforced abroad in the absence of an agreement which was based on reciprocity. As a result the maintenance creditor was left powerless to pursue the claim, unless of course her financial resources were such as to allow her to institute fresh maintenance proceedings before the appropriate foreign court.
The Maintenance Orders Act, 1974, was the first major attempt to address this problem. That Act gave effect to an agreement with the United Kingdom for the reciprocal recognition and enforcement of maintenance orders — an agreement which remains in force to this day. A unique and far-sighted feature of the agreement was that it covered not alone the legal aspects of recognition and enforcement but also the provision of administrative assistance to maintenance creditors who sought redress through its provisions. There are no fees or lawyers required. The system has worked well and will remain undisturbed by the enactment of the Bill.
The situation in relation to other European Union countries was improved considerably in 1988 when Ireland acceded to a convention signed in Brussels in 1968. This convention provides a simple and standardised legal basis for the reciprocal recognition and enforcement of civil and commercial judgments, including maintenance orders, between the member states of the EU. The procedure for recognition and enforcement of these judgments in the State is set out in the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988.
Last year, in this House, I initiated the Jurisdiction of Courts and Enforcement of Judgments Act, 1993, to give effect to another convention — the Lugano Convention — which provides for similar arrangements between member states of the European Union and of the European Free Trade Association. The net effect of the two Acts is that Irish maintenance orders can now be recognised and enforced in all EU and EFTA countries, with the exception of Austria and Iceland, who have yet to ratify the Lugano Convention.
However, these conventions differ in one important respect from the earlier Ireland/United Kingdom agreement — no administrative assistance is provided for a maintenance creditor who seeks to avail of the simplified legal procedures. The maintenance creditor still has to travel to or engage a lawyer in the country involved, despite the fact that the international procedural and jurisdictional obstacles which formerly militated against the enforcement of Irish orders have been removed.
The Rome Convention, which was finalised during the Irish Presidency of the Council of Ministers in 1990, is intended to address this problem as it affects European Union member states. The main feature of the convention is the establishment of central authorities in each member state which, in co-operation with each other, will assist maintenance creditors in having maintenance orders recognised and enforced. The central authorities can deal with both incoming and outgoing applications, help with documentation, ascertain the whereabouts of debtors and ensure that moneys due are paid over. The Rome Convention does not come fully into force until it has been ratified by all 12 member states, but it can apply between individual member states which have ratified it prior to that date.
The other convention dealt with in the Bill, the New York Convention on the Recovery Abroad of Maintenance, is currently in force in over 40 countries worldwide, including many countries with large Irish populations, such as Australia and New Zealand. This convention is based on a similar network of central authorities, which are referred to in the convention as transmitting and receiving agencies. There are, however, some important differences between it and the Rome Convention.
The assistance given under the New York Convention is broader in scope than under the Rome Convention. There is no requirement under the New York Convention that a claimant must first obtain a maintenance order in his or her own state. The New York Convention obliges central authorities to assist a claimant who wishes to recover maintenance, whether he or she already has a maintenance order. The central authority in the receiving state is free to initiate proceedings for a fresh order or, alternatively, to apply for the recognition and enforcement of a foreign order, if one exists. The Rome Convention applies only to the enforcement of maintenance orders already obtained.
Neither the United States nor Canada are parties to the New York Convention. Nevertheless, the provisions of the Bill are intended to be sufficiently flexible to enable similar type arrangements to be made with individual states or provinces within those jurisdictions without the need to have recourse to further legislation. Discussions are currently taking place between officials from my Department and their US and Canadian counterparts with a view to achieving this goal. The same will apply to other countries which may be less relevant in an Irish context.
I turn to the details of the Bill. Section 2 states that the legislation will come into force on a date or dates to be fixed by order. This is a standard provision in legislation giving effect to international conventions and is necessary to allow for the different timescales required for ratification and entry into force of the two conventions. Section 4 provides for the setting up of a central authority to perform the functions required of it under the Act and the Rome and New York Conventions. Subsection (1) is modelled on similar provisions in the Child Abduction and Enforcement of Custody Orders Act, 1991. The central authority proposed in the Bill is very similar to the central authority for child abduction which has been operating most successfully for the past three years. In 1993, that central authority dealt with 82 cases involving 144 children who had been removed from the State or to the State.
Section 4 (1) (b) provides that, pending the appointment of a central authority, its functions will be discharged by the Minister for Equality and Law Reform, as is currently the case with the central authority for child abduction. In the short term it is the intention to maintain this position, given my Department's expertise on the conventions themselves, its international contacts and its experience in the operation of the central authority for child abduction.
Part II of the Bill covers the recognition and enforcement of maintenance orders from what are termed "reciprocating jurisdictions". In order to qualify as a reciprocating jurisdiction, a country must be a contracting party to either the Brussels or the Lugano Convention and must operate a central authority system to assist maintenance creditors. In fact, all the contracting parties to those conventions already have a central authority system in place by virtue of having ratified the New York Convention or the Rome Convention.
The Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993, already provide a simplified procedure which may be availed of by a maintenance creditor who seeks recognition and enforcement in the State of a maintenance order made in a country which is a party to the Brussels or Lugano Conventions. However, as I said, the maintenance creditor must travel here or engage an Irish lawyer to avail of this procedure.
By virtue of section 7, the central authority can step into the shoes of the creditor once it receives an application to enforce a maintenance order. It will send the application to the Master of the High Court who will consider it privately. The master will make an order for the enforcement of the maintenance order, unless it appears from the accompanying documents or from the master's own knowledge that enforcement is prohibited by the Brussels or Lugano Conventions.
This procedure corresponds with that of the Maintenance Orders Act, 1974. Once the order has been made enforceable by the Master it will be enforced by the District Court and in accordance with section 7 of the 1988 Act unless, in the case of a lump sum order or arrears, it would be more effective to have the order enforced by the High Court.
Sections 9 to 12 amend various provisions of the 1988 and 1993 Acts. The main purpose of these amendments is to allow the District Court to enforce lump sum maintenance orders. This will add to the District Court's existing powers to enforce periodic payment orders and is consistent with a similar extension being made under the Family Law Bill in respect of domestic maintenance orders. The District Court is also being given power to enforce maintenance orders where the debtor is employed by an Irish based firm but does not in fact reside here. In such cases an attachment of earnings order may be effective. For convenience of reference sections 6 and 7 of the 1988 Act, which are quite lengthy, have been set out in full in their amended form.
There are several references in these sections to "authentic instruments" and "court settlements" which require further explanation given that they are unknown to Irish law. Authentic instruments are enforceable in the country where they are drawn up in the same manner as a judgment but without the need to have recourse to the courts. The instrument must be authenticated by a public authority, normally a notary. Court settlements — known in German and Dutch law — are approved by a court in the course of proceedings and are enforceable without further formality. They differ from court settlements under Irish law which are not enforceable unless they are embodied in an order of the court.
Applications for recognition and enforcement of these instruments and settlements are made not to the Master of the High Court but to the High Court itself under the Brussels and Lugano Conventions. This procedure will continue. However, the District Court is now being empowered to enforce an instrument or settlement which the High Court has declared enforceable in so far as it provides for the payment of maintenance.
Part III of the Bill deals with applications for the recovery of maintenance from "designated jurisdictions", that is, jurisdictions which are contracting parties to the New York Convention. Other jurisdictions, such as individual states and provinces in the United States or Canada, may also be declared to be designated jurisdictions by order of the Minister for Foreign Affairs if, as I hope, similar arrangements can be negotiated.
Section 14 is the key provision of this Part. That section sets out the procedures to be followed by the central authority when it receives an application for the recovery of maintenance on behalf of a claimant from its counterpart in a designated jurisdiction. The application may be accompanied by a maintenance order already made on the claimant's behalf by the courts in his or her own country. Alternatively, it may represent the first attempt by the claimant to have the matter determined by any court.
European Union and EFTA states — other than Austria and Iceland — may be both reciprocating jurisdictions for the purposes of Part II of the Bill and designated jurisdictions for the purposes of Part III. This will operate as follows. Applications for recognition and enforcement in Ireland of maintenance orders which are made in those countries will be dealt with under Part II because those orders come within the scope of the Brussels and Lugano Conventions. However, where there is no actual order these conventions will not apply and an application from one of those countries to commence maintenance proceedings here will be dealt with under Part III.
If the application for the recovery of maintenance is accompanied by a maintenance order made in one of those countries, it will be transmitted by the central authority to the Master of the High Court for determination. If the application is accompanied by a maintenance order made in any other country, the central authority will apply to the District Court for enforcement of the order.
In section 22 I am taking the opportunity in the Bill to give statutory effect to very recent changes in common law rules concerning recognition and enforcement of foreign maintenance orders. These changes were as a result of a High Court judgment in a case entitled McC. v. McC. on 22 June 1993 and had a major impact on the approach adopted to this section. Previously, under common law, Irish courts would not recognise or enforce a foreign maintenance order if, as was usually the case, the order was for payment of periodic amounts by the debtor. This was because such an order was not regarded as being final and conclusive, because it could be varied, as regards future payments, by the foreign court which granted it. The 1974 agreement with the United Kingdom and the Brussels and Lugano Conventions made this rule obsolete in respect of orders made in the European Union and EFTA area. The position in relation to orders made in other countries remained unaffected.
The effect of the High Court decision is that the recognition or enforcement of a foreign maintenance order can no longer be refused just because the court which made the original order has the power to vary or revoke it. Statutory effect is being given to this principle by section 22. That section amends the common law rules in one other respect also in order further to facilitate the enforcement of foreign maintenance orders. It abolishes the rule that prevents a foreign order being denied enforcement simply because the respondent was not resident or present in the foreign country when the proceedings began. However the claimant must have been resident there at the time. The other grounds for refusal — that the judgment was obtained by fraud or was contrary to natural or constitutional justice or public policy — will continue to apply.
Thus the District Court will be able to recognise and enforce foreign orders under section 14 (1) (b) even where the respondent has absconded from the foreign country before the order was granted. If the District Court decides the order is enforceable, it will be enforced under the provisions of the 1988 Act mentioned earlier.
If a request from a designated State is not accompanied by a maintenance order or if a request for the enforcement order is refused by the District Court, section 14 (1) (e) of the Bill authorises the central authority to apply for a maintenance order to the Circuit Court or the District Court under the Family Law (Maintenance of Spouses and Children) Act, 1976. Section 14 (4) lists various options open to the court in the event of the respondent disputing the evidence of the claimant. Special measures are needed to deal with such cases given that the claimant may be living thousands of miles away and through lack of resources may not be in a position to attend the hearing.
The court is being empowered to ask the respondent to make his case by swearing an affidavit outside court or by way of a sworn deposition in the courtroom there and then. The affidavit can then be sent to the central authority in Ireland for transmission to the central authority where the claimant lives with a request that the claimant provide an answering affidavit. Alternatively the court may ask a court in the foreign jurisdiction to take evidence on the matters raised by the respondent in his affidavit.
If the court is not in a position to give a decision on that basis it has the further option of requiring the claimant to give evidence through a live television link. The necessary facilities can be provided in the equipment already in use in the Four Courts, although similar facilities may not be available in all of the foreign jurisdictions concerned.
It is probable that in most cases the question of whether to make an order can be decided on the basis of the documentary evidence. In this context it is relevant to note the foreign central authority is obliged to satisfy itself the application is made in good faith and is authorised by the UN Convention to express to the central authority here an opinion as to the merits of the case. However, provision is being made for cases where the respondent may have a bona fide wish to cross-examine the claimant whether by television link or otherwise. That is done in section 14 (5).
Section 15 deals with the case of an Irish claimant who wishes to recover maintenance from a person residing in a designated jurisdiction. It provides that such a claimant may give evidence on sworn deposition before the District Court as to the facts of the claim. The court may then certify that the claim sets out facts from which it may be determined that the respondent owes a duty to maintain the claimant.
The object of this provision is to ensure that the most convincing evidence is given on behalf of the Irish claimant to the foreign court or tribunal. If a maintenance order has already been made in Ireland in favour of the claimant, the registrar or clerk of the court will give the claimant a copy of the order and a certificate of other particulars relating to it. A similar provision is not included in Part II of the Bill because it is already covered by section 12 of the 1988 Act. The type of evidence provided for in this section should be of great assistance to Irish claimants in pursuing their applications before foreign courts.
Section 18 empowers the High Court to grant provisional, including protective, measures upon the application of the central authority arising from a request for the recovery of maintenance under Part III. The 1988 Act contains similar provisions which would apply to applications under Part II. Such measures could include an injunction to restrain a defendant from disposing of goods or from removing them out of the jurisdiction with the object of defeating any future maintenance order that might be made.
Part IV of the Bill applies to both reciprocating and designated jurisdictions. Section 20 empowers the central authority to obtain information about a defendant's whereabouts or his or her assets. The Rome Convention imposes this obligation on central authorities. The New York Convention contains no similar provision but such a course is certainly not precluded by it and is in keeping with its spirit.
Section 20 (1) places a statutory obligation on Government bodies or office holders to provide such information. In the case of other bodies or persons the central authority must obtain an order of the District Court requiring the disclosure of information. I should emphasise that the information the central authority is allowed to seek is limited to that which is necessary or expedient for the performance of its functions.
Part V of the Bill deals with miscellaneous matters. Section 22, to which I have already referred, amends the common law rules on the enforceability of foreign maintenance orders. Section 23 states that payments under a maintenance order shall be made in Irish currency. The rate of exchange used in converting the amount due under a foreign maintenance order is the exchange rate prevailing on the date the order is declared enforceable. A maintenance order for periodic payments could have a different exchange rate for each periodic payment and that would result in a totally unmanageable situation.
Those are the main provisions of the Bill. Although many of its provisions are quite technical, its successful passage through the House will represent far more than a technical change as it now stands. The Bill is a significant step forward in the protection of the rights of spouses and children who have been deserted by those whose responsibility it is to maintain them. It is a measure which is particularly appropriate in this the International Year of the Family. Ratification of these international conventions will also serve as a statement to the international community that Ireland is not and does not intend to be a safe haven for those who wish to evade what is perhaps the most fundamental of responsibilities — the responsibility towards one's family.
I am confident that, in principle at least, the Bill will receive support from all sides of the House and I look forward to a good and constructive debate in accordance with the best traditions of the House.
I commend the Bill to the House.
