Seanad Éireann debate -
Wednesday, 16 Nov 1994

Vol. 141 No. 8

Death of Former Member. - Maintenance Bill, 1994: Second Stage (Resumed).

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

Mr. Enright

Under the New York Convention it is not necessary to obtain a maintenance order in one's own country but in Ireland for a person to obtain the deserted wife's allowance a maintenance application must be brought. I will give an example. A woman in a small town has been deserted by her husband and all her neighbours know this. She is living with somebody else in the town who may be in a poorly paid job. She knows he has difficulty financially maintaining the new relationship and she must bring a maintenance application against her husband. I ask the Minister to look at it because it is causing problems. I do not know if it would be possible to resolve this.

This Bill has a great deal to commend it and we support it. We want to make sure that when there are applications, the persons against whom claims are made will have an opportunity to make sure that they too are treated fairly. Family breakdown is, regrettably, a fact of life. There are about 55,000 cases of family breakdown in Ireland and a number of these people have entered into other relationships. I hope that if applications are brought all their incomes will be assessed rather than extreme measures being taken against them in relation to payments because this could cause great problems. This Bill is significant in that, at long last, wives who have been deserted have redress with the minimum of fuss and red tape. This is welcome.

Mr. Roche

In the day that is in it, it is a little ironic to be addressing the issue of maintenance. I compliment the Minister on more excellent legislation. As Senator Enright said, there is a common sense approach in the Bill which gives effect to two conventions which help to overcome injustice. The Bill is part of a package of progressive and humane legislation which the Minister has brought forward. These have been the hallmarks of his Ministry and I hope he will be in the same Ministry in the weeks and months ahead to steer us through a whole series of other legislation.

Mr. Enright

He might take the Senator up on that remark.

Mr. Roche

I hope he will be here because he has done an excellent job. I will not go any further into that matter.

Both conventions address a form of injustice which has been growing over time and has gone unchallenged. Breakdown in marital relationships is bad enough but when injury is heaped on insult we all, at a human level, would accept that something seriously needs to be done. Under the present arrangements, a deserted or separated spouse, whose financially more powerful ex-partner has deserted and gone to another jurisdiction, finds herself — and we are usually talking about women in these cases — in an appalling situation. The abandoned spouse in these cases is in an invidious position and unless they have tremendous financial capacity or considerable personal stamina they will not be able to pursue the person who has abandoned them, destroyed their trust and left them and their children in a state of financial impoverishment.

Although this legislation is short and technical, it is important in terms of expanding economic and social justice and it must be commended on all sides. Under the arrangements introduced as a result of this Bill and through the two conventions, a relatively simple central authority procedure is being put in place to allow the abandoned spouse to seek vindication without having to go through the hoops they previously had to go through. The strengthening of the law in relation to the recovery of maintenance payments is an objective which every person who has a sense of justice must commend. The Bill achieves that objective in a sensible way.

One aspect, which the Minister mentioned in his speech, relates to the requirement of additional provisions to deal with the increasingly common situation of maintenance debtors who have gone to live in other jurisdictions. Perhaps the Minister would elaborate on this point because I am not sure what he meant.

Not only has this legislation much to commend it but, having read through it, one must ask oneself why it was not put in place before. It is also a good vindication not just of membership of the EU but of membership of other international bodies. It also seems to indicate that a tremendous transmission of legal ideas across national boundaries is being undertaken at present. We have seen the importation of a number of legal ideas over the last 14 years, for example, starting with legislation relating to the Ombudsman. As the Minister said, we are introducing new terms and concepts into Irish law. Such cross fertilisation is valuable because our legal system has been narrowly focused on the traditions of our nearest and dearest partner.

The idea that a central authority can step into the shoes of a creditor is given legal effect in section 7 of the Bill and it is a sensible one. It will provide real support for the abandoned partner which is not in place at present. One thing which struck me while the Minister was making his speech was that the model for the central authority, which is provided for in section 7, could be applied elsewhere. For example, one of the problems in Clonmannon estate in my own constituency is that a number of creditors — unfortunately they are old age pensioners — are not able to sustain court actions on their own behalf because they do not have the means or the energy to do so. The introduction of the model for the central authority to deal on their behalf is valid. It is an extraordinary coincidence that today I made a submission to the commission, which was established by the Minister for Justice, arguing along those lines.

Another interesting aspect of the Bill is the section 22 provisions where statutory effect is given to the principle established in the High Court judgment of McC. v. McC. That was a good piece of judicial law and the Legislature is now following that. The Minister has used this Bill to good effect to bring a good principle, established and enunciated by the courts, into our legislation. It is one example where the Legislature has followed judicial interpretation. I welcome the provisions in section 14 (1) which are an intelligent addition to the general provisions.

The Bill is interesting because it provides a novel use for technology. For example, the idea that a live television link up could be used to tape evidence is interesting and a good example of how modern technology can be used in an intelligent way to overcome boundaries of space and time. It is interesting that a number of years ago University College Dublin used live television link-ups to give lectures to people in Saudi Arabia. If it can be used to give lectures, I do not understand why television and technology cannot be used to humanise and reduce the trauma of a woman seeking justice.

I welcome unreservedly the provisions in section 15 which are at the heart of the Bill. The provisions in section 18 which empower the High Court to grant protection in the case of tying down assets is a model which could be used in other circumstances. As we all know, there are grave difficulties when people, who do not have any scruples, can strip assets, thereby denying justice to a creditor, as is envisaged in this situation. The model for the provisions which the Minister is bringing into law could be more widely used.

The Minister concluded his comments on this Bill by referring to responsibility towards the family. Unfortunately and regrettably, there has been a growth of irresponsibility towards families, whether they are formed within the traditional marital arrangements or as a result of partnerships. It struck me while reading the Bill and listening to the Minister's contribution that we also have another form of separated family, which is too common in this country, where a father has deserted the mother of his children and the children and has left them and the State to pick up the pieces. One of the commendable aspects of this legislation is that in the context of separation it will not only force the abandoning spouse to face his responsibilities but it will take a financial burden for looking after the abandoned parties off the shoulders of the State. I am talking in the context of relationships which have produced children and where the man has walked away from that relationship.

We should also look at some form of central agency to force all fathers — and we are talking about fathers — to accept their responsibility. I know that is outside the scope of this Bill and the Minister's responsibility but it is something which this Government, or the next Government, should address. In addition to the separated families we are looking at in the context of this legislation, there are, unfortunately and regrettably, a growing number of women who have been abandoned by partners to attend children, and the State, the women and their extended families have had to pick up the costs. It is time we addressed this issue, although it is beyond the scope of this Bill. This is fine legislation and it is my pleasure to support it. I congratulate the Minister.

Dr. Henry

I welcome this Bill which has taken a long time to come into this House. The first time I remember this issue being discussed was when Mrs. Nuala Fennell was Minister for Women's Affairs ten or more years ago. I am glad the Minister has brought it before the House. It is interesting that the protection of children should be discussed on the same day that inadequate protection of children in another sphere is being discussed in another part of the Oireachtas.

We constantly talk about how we value and cherish children in this country and how the family is protected under the Constitution yet our children have few rights. This Bill deals not only with maintenance but with the rights of children to some sort of maintenance from those who have this responsibility; those who brought them into the world and who have left them not only without the emotional support of a father — in most cases it is the father — but without financial support. If a woman is deserted and has no children, it is a great deal easier for her to go out into the world and resume her career, or start a new one. However, she is in an invidious position if she is left with young children. Because of our lack of child care facilities, it is almost impossible for her to get a job where she can pay for the care of her children while she is working outside the home. This Bill is only the first in a series of measures aimed at improving the lot of the children in our State.

Senator Roche raised an important matter. This Bill addresses the case of spouses living abroad but I hope the Minister will also consider the serious situation of deserted women in this country who are left with little in the way of maintenance and who find it impossible to have those orders maintained. Usually maintenance awards are low and the rate of defaulters is high. I strongly urge the Minister to come forward with all the legislation and improvements he proposed to increase the number and funding of free legal aid centres. I realise he has done some work in this regard but this is such a serious issue that I hope it will be kept at the top of his Department's agenda, which has shown great commitment to introduce some improvement in these long neglected areas.

The notion that even well off women could go abroad to pursue maintenance orders was ridiculous; indeed, this is what was required before now. I know of one woman who was married to a lawyer and she said that she gave up pursuing her spouse for maintenance in a foreign court after 14 years. She said that since the children were 20 and 21 years of age at that stage, what was the point. She had the money to make representations in a foreign court but what hope is there for the majority of Irish women who are left in a similar situation?

When this legislation comes into force, I hope those who are making maintenance orders will take the trouble to read the documents produced by the Combat Poverty Agency on the cost of rearing a child. Sometimes when I look at the maintenance orders awarded by the courts I wonder if the judges have any notion of the cost of a pair of runners, never mind the cost of a school uniform, books, food or the increased amount of maintenance needed as a child grows older. Are any of these situations ever addressed when these low maintenance orders are made? I urge anyone making maintenance orders to equip themselves with some sort of realistic costs before they make low maintenance orders.

My last point concerns the central authority. The Minister's notion of a central authority looks slightly better than the Child Support Agency in England. I have been following that agency with some interest because it was brought into effect with more thought for the Treasury than the child. I understand what Senator Roche is saying. Some 13,000 deserted wives and 22,000 deserted children here are currently claiming maintenance, which naturally puts a huge cost on the Treasury. However, I do not think it is too grudgingly borne. Most people are appalled by the situation in which these women find themselves.

Around Christmas, all of us like to go out and do our various piece of Christmas goodness. I remember going to a house of a deserted wife during that period a few years ago. There was nothing in the front room, apart from a huge motorbike under a bedspread. When I went into the kitchen to leave the gifts I had brought for this lady, I accidentally burst a bag of peanuts. She did not even have proper cups into which we could put them. The abject poverty in which she was living was unbelievable. I do not think anyone would begrudge that woman, or any woman like her, proper maintenance award.

I am rather pleased — I must confess to some socialist leanings here — that Britain's target driven Child Support Agency had to be given another £70 million to improve its administration last year. I do not want to see fathers tortured to death by paying increased amounts of money they cannot afford but I hope the interest of the child will be of paramount importance to this agency and that it will ensure adequate maintenance for these children. Not all those children are deserted by penniless fathers; many of them are deserted by well off men. Private responsibility in this issue is as important as public responsibility.

The Archbishop of Canterbury was obliged to berate the Conservative Party — I am delighted he is coming here tomorrow and is being given a reception by the Taoiseach. Even he was brought into the Conservative Party controversy. At last year's Conservative Party Conference, several of their Ministers seemed to imply that lone mothers were the cause of the current financial downfall of the United Kingdom. I do not see anything like that being suggested here. Fortunately, our spirit of generosity towards those in real disadvantage is too high.

I hope the Minister will do something about the free legal aid centres, which are vital. I also hope he can ensure adequate maintenance orders are awarded. I know that is not within the Minister's remit because he cannot interfere with the Judiciary, but he can certainly make his feelings known. I hope our central authority will be child centred rather than Exchequer centred.

I congratulate the Minister on the Bill and warmly welcome it.

Ms Gallagher

I welcome the Minister to the House. I am always delighted to be present when the Minister for Equality and Law Reform is here. To be party political, the emphasis the Labour Party has placed on that issue is significant as is evident by the very fine legislation the Minister has brought before this House, each and every part of it badly needed. I take this opportunity — in case we do not get another chance — to thank the Minister for providing law centres in Cavan and Monaghan which were badly serviced before this in terms of free legal aid.

The benefit this Bill will give to spouses and partners is immeasurable. Whatever the official number of separated couples in this country, the higher unofficial number shows that this legislation is badly needed. I work as a solicitor and every day I see examples of cases where deserted wives, in the main, come to me asking what they can do. If the legislation on ordinary maintenance orders in this jurisdiction could be simplified, all the better. Some spouses and partners may now be willing their partners to go abroad to avail of this legislation; it may be simpler than what they have to face at home. At present spouses who are left at home to carry the can, to look after their children, their schooling, etc. have to cope with the breakdown of their marriage and then find themselves being hauled through the court system in a none too friendly fashion.

I live and work on the Border. The absconding of a spouse or partner to Northern Ireland is an everyday fact of life. I accept that the convention allows for chasing them under the previous legislation to which the Minister referred, but it does not make it easy for any spouse or partner to chase their spouse whom they may not want to chase but have to in order to achieve the necessary maintenance and to keep the bread on the table. It is a serious matter.

The Bill has been thought out. It is not often you see a Bill that deals so comprehensively with every possible situation and aspect. When I read legislation dealing with various matters I often ask "But what if?" However, every time I asked "What if?" when reading this Bill, the question was covered. It is a job well done. While being comprehensive, the Bill also manages to remain within the subject matter. I have a personal dislike of seeing little sneaking sections at the end of a Bill which are unrelated to the title. I commend this Minister for sticking to the topic in hand and for dealing with it in such a comprehensive fashion. It is very practical.

We often see changes in our law that really make little difference on the ground because the people who need to know about it do not, and the people who do know about it cannot afford to do anything. Such situations are much too complicated and unworkable. In this case the Bill introduces a simplified system in terms of conventions. It sounds complicated but the administrative procedures provided for in the Bill appear to be workable. It is marvellous that the law is being made workable for those who need it. That is something of which we, as legislators must always take account because we all too easily pass legislation in both Houses, yet fail to see how it will actually translate for those who need it. This Bill does that. The administrative provisions are practical and will work well.

Allowing the District Court to deal with the maintenance aspect of a High Court order is good and practical. Allowing the District Court to recognise and enforce orders made in foreign countries is another practical aspect. Section 15, allowing an Irish claimant to make a sworn deposition before the District Court and to let that go abroad, is also practical. The Bill facilitates people in awkward situations in the best way the law can. That is something I welcome.

It has already been mentioned that the Bill obviously saves the taxpayer money. However, I would not agree with an earlier contribution suggesting that we should be wary of not burdening the "poor" father with having to maintain two families. I am strong on honouring one's responsibilities and any adult in this country must do that. It is something that we fail to do in many cases and Irish people are not good at that. We need to be taught our civic and personal responsibilities. In saying that I may sound like an old granny but it is most important that when you have parented a child the responsibility is yours and you must realise that. I welcome anything the State can do to enforce that responsibility and have no qualms about it.

When we talk about this Bill we refer in the main to women spouses; the woman taking the application to court, etc. Real equality will have been achieved when we stop talking about women claiming maintenance, and when it is not automatic to think it is only women we are talking about. That day often seems a long way off but legislation like this will ensure that those who are placed in a disadvantaged situation, having no independent income, will at least be facilitated as far as possible to obtain the necessary funding to carry on their responsibilities which a spouse or partner has reneged on.

This legislation may appear complicated at first sight but it is practical. I hope the Minister or the Government of the day would take it upon itself to provide a simplified explanation of what the Bill does. A leaflet or pointer system is required that could be widely publicised and distributed so that people would know what the law provides. It is all very well for us to talk about that here, but people generally need to know what this law does. While I have faulted Bills that have come before the House on previous occasions. I cannot fault this one. I commend the Minister on his marvellous work.

Ms Honan

On behalf of the Progressive Democrats I welcome this Bill and congratulate the Minister. It was one of the recommendations of the Commission on the Status of Women of which I was a member, so I am pleased to see the Minister bringing forward another of the commission's recommendations. The main problem with the maintenance procedure seems to be the difficulties in enforcing maintenance orders. The results of a recent survey of maintenance applications under the Family Law (Maintenance of Spouses and Children) Act, 1976, gives useful information on how ineffectual and limited the maintenance system is in supporting dependent spouses and children. It shows the low level of maintenance awards and the high rate of default. In the majority of cases the amount of maintenance awarded was less than the lowest social welfare payments. In fact, many women would be much better on the deserted wives allowance, which is now called the lone parents allowance, than they would be receiving maintenance.

The recent survey by Peter Ward also showed that maintenance was not paid regularly in 87 per cent of cases; in 28 per cent of cases there was no record of any payment ever having been made and in 49 per cent of cases they were in arrears of six months or more. The enforcement of maintenance awards was an issue the commission addressed. It looked at the limited remedies available to enforce the payment of court orders for maintenance. The remedies consist of imprisonment or the attachment of earnings, neither of which is ideal. Imprisonment may be the answer where there are not sufficient assets to pay but, if there is deliberate default, it is difficult for women to force men to pay maintenance orders. Generally speaking, if there are no assets and a man is imprisoned, then there are no resources by which he can pay the maintenance order.

A form of automatic enforcement was recommended by the commission which looked at the system in existence in the province of Manitoba in Canada. That programme, which seems to work well, has a computerised system for monitoring maintenance payments. All amounts enrolled in the programme are automatically monitored by the computer and in the event of the maintenance not being paid, enforcement proceedings are immediately initiated. It is not necessary for the woman to initiate the enforcement proceedings herself. That is one of the difficulties here because women do not have the wherewithal to enforce the maintenance proceedings. The usual action taken in Canada is the attachment of the man's earnings. As last resort, the debtor can be summoned before the Master of the Family Division of the Court of the Queen's Bench where he is required to show cause why he has not paid. The system is obviously effective because 85 per cent of order registered are collected. The system operates quickly because any default detected within ten days after the payment is due and enforcement proceedings are commenced immediately. The reason for the success of the Manitoba system depends, in part, on the fact that the maintenance creditor — usually the woman — does not have to institute the proceedings.

I would ask the Minister if the State could play an active part in ensuring that the money due on maintenance orders is paid promptly. The State itself would benefit financially because women who do not collect money through maintenance are, in effect looking to the State to support them. As well as deserted wives, unmarried mothers are also entitled to apply for payment under the 1976 Act.

If the State ensured that the father and a child pays maintenance it could encourage fathers to take an interest in the welfare, upbringing and education of their children which they might otherwise neglect. If they have to pay child maintenance, they will probably maintain an interest in the child. It is important to realise that fathers should have rights as well as responsibilities. We should not just look at his financial responsibilities but at his maintenance of emotional links with the children. This is very important.

The Second Commission on the Status of Women looked at the role of the father. In this country, 75 per cent of potential claimants are in receipt of unmarried mother's allowance, not lone parent's allowance. The father not cohabiting with the mother and child. This makes the Irish experience fundamentally different from that other countries. In Denmark, for instance, where the non-marital birth rate is much higher than here, most children are brought up in households in which both the father and mother are present. In most cases in this country, the father does not pay any child support and therefore does not have any financial responsibility for the child. In many cases this may lead to the father not having any contact with his child.

Available data from Australia tends to reinforce the link between maintenance or support payments by the father and long term contact. In cases of divorce, men who pay child support are more likely to maintain contact with their children. This is a very important point. There is no point in generalising, but two interested and caring parents must be better for any child than only one.

In this country, it seems likely that many women apply for the lone parent's allowance rather than look for maintenance from the father because if they receive lone parent's allowance they are sure they will be paid every week. If a mother looks for maintenance and the father defaults, she must then engage in a long procedure, she must try to have the arrears paid and to have the payment re-established. The Second Commission on the Status of Women recommended that some form of procedure should be instituted by the State and I ask the Minister, while complimenting him and welcoming the Bill before us today, to look into this matter.

Minister for Equality and Law Reform (Mr. Taylor)

I thank the Senators who contributed to this debate. I appreciate the general welcome they gave to this legislation. Although it contains many provisions of a technical nature, the Bill's essential purpose is straightforward. The Department of Social Welfare estimates that over 3,000 families in the country are dependent on social welfare because the so-called breadwinner has chosen to emigrate rather than face up to his or her family responsibilities. While the Bill has been drafted in a gender neutral manner, there is no doubt that the principal beneficiaries of the measure which I have outlined will be women who have been deserted by their husbands.

A number of points were made by Senators. The free legal aid system was referred to and I wish to report to the House that enormous improvements in that service have been brought into being since this Government took office: the number of people working for the free legal aid service has doubled since this Government took office, 16 new centres have been opened and now, for the first time, there is a law centre operating in every county. I am pleased to report that huge increase. I hope to make improvements in the family mediation service. Substantially increased funds have been provided for counselling and all these things are on the advance since this Government took over.

Reference was made to the central authority. I can assure Senator Enright and others that I am most anxious that red tape be avoided to the greatest extent possible. The central authority which operates already in my Department on the child abduction issue works extremely well without red tape. It works very efficiently and the whole concept is a very user friendly one. The information is given to the central authority, the work is done in the central authority of the other country involved; likewise we take action here when information is received. The emphasis is on simplification and speeding up the procedures and on avoiding the necessity of incurring substantial legal costs.

A number of Senators referred to the level of maintenance awards being made in the District Court. I do not want to comment too much on that; it is for the District Judges who are supposed to assess — and I have no reason to suppose that they do otherwise — to the best of their ability the information on the financial situation of both spouses in the cases that come before them. They have to take into account the means of the respondent, usually the husband. The saying is that you cannot get blood out of a stone. All factors must be taken into account and there is an appeals procedure if the amount is inadequate.

A much more difficult aspect of the matter is the actual recovery of the amount that is awarded. That has been and continues to be a problem, but I would remind Senators that this very issue is being addressed in the Family Law Bill which is at present before the other House. In that Bill I am proposing to take on board one of the key measures recommended by Peter Ward to improve that situation, that is, to make an attachment of earnings order the norm when the initial order is being made so that it is not necessary to come back to the District Court a second time to have earnings attached in the event of default in the payments on the initial occasion. That was one of his main recommendations and it is already in draft form in the Family Law Bill.

In regard to the question of the Manitoba legislation referred to by Senator Honan, I will consider that but the State is already very involved in the monitoring of maintenance payments in an appreciable category of cases. I am not quite sure what proportion of maintenance cases it would be, but in a pretty substantial proportion the payments are directed by the court to be made through the District Court Clerk. That is a common form of order. Then the District Court Clerks in the family law offices who do such wonderful work in this regard automatically monitor the payments coming in and in the event of default will immediately issue attachment proceedings.

The range of proceedings is there; there is considerable room for improvement and many possible improvements are being addressed in the Family Law Bill and, of course, I will keep those procedures under review at all times. Finally, I thank Senators again for their warm welcome to this measure which will improve matters so far as foreign recovery is concerned.

Question put and agreed to.