I welcome the Minister to the House.
Children Bill, 1997: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
The Children Bill, 1997, provides for important changes in the operation of the law in relation to guardianship of children, rights of access to children, the conduct of proceedings in relation to family disputes concerning children and the hearing of evidence in those proceedings. It creates, in the interests of children, a system of guardian ad litem and of legal representation of such guardians. The Bill is in line with commitments given in the Government's Action Programme for the Millennium in relation to support of parents and their children and in relation to a review of the courts system to protect children. The Government supports the principle of the Bill and it took early action to have it restored to the Dáil Order Paper.
The Bill now before the House is substantially the Bill which was restored to the Dáil Order Paper but it has, following detailed examination and debate, undergone a good deal of technical amendment. It is a Bill which, I think the House will agree, will help to build on the many reforms of our family laws which have been introduced over the past decade under various Governments and which have received the benefits of debate in both Houses.
The Guardianship of Infants Act, 1964, which the Bill amends, is the definitive legislative measure for resolution of disputes in relation to children. It provides that any court in deciding questions relating to guardianship, custody of, or access to, a child shall regard the welfare of the child as the first and paramount consideration. Senators will, I am sure, quickly appreciate that the principle of what is best in the interests of a child is one that will continually come to mind in the course of our debate on the Bill and that it is as relevant today as it has been in earlier decades. That is the experience in other jurisdictions. It is the principle which has guided international conventions in relation to children.
Before I set out the main details of the Bill for the information of the House, I should like to point out that the Bill takes into account recommendations contained in a number of reports of the Law Reform Commission. These are the reports on child sexual abuse, oaths and affirmations, the rule against hearsay in civil cases and family courts. I take this opportunity to thank the Law Reform Commission for its enlightened work in those areas. It is expected that the Bill will facilitate, in due course, ratification of the European Convention on the Exercise of Children's Rights which Ireland signed in January 1996. That European Convention complements the United Nations Convention on the Rights of the Child. The aim of the European convention is to promote the rights of children in family proceedings affecting them, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are informed of them and allowed to participate in the proceedings.
Part I of the Bill contains standard provisions in relation to short title, commencement, collective citation, interpretation and expenses. The Bill will come into operation one month after the date of its passing with certain exceptions which are to be the subject of commencement provisions. These exceptions relate to six of the proposed 12 new sections which are being inserted into the Guardianship of Infants Act, 1964, by section 11 of the Bill and to Part III of the Bill in its entirety. Commencement orders are required in respect of those provisions to ensure that the administrative arrangements necessary for their successful application are in place.
Some of the excepted provisions of section 11, for example, will have an impact on the work of the Probation and Welfare Service and the health boards and these organisations will have to be consulted about the manner in which these new responsibilities can be accommodated. Similarly, the provisions of Part III may necessitate the installation in courthouses of additional facilities for evidence to be taken by live television link or by means of a video recording, although such facilities are already available for the purposes of criminal proceedings in the Circuit and District Courts in the Four Courts in Dublin.
Part II of the Bill gives effect to amendments in the law on the guardianship of children. It does so in the main by amending the Guardianship of Infants Act, 1964. Guardianship is a long standing concept in the law. It is the collection of rights and duties which a parent has towards his or her child. It includes the right to custody of a child and the duty to care for and control the child. All guardianship rights are subject to limitation by order of a court. For example, where married parents separate a court may make an order under section 11 of the 1964 Act granting one parental guardian custody of his or her child. The non-custodial parent retains the status of guardian and he or she must be consulted on all matters affecting the welfare of the child. No custody order made in guardianship proceedings is ever final but is subject to review at any time if it is established that factors taken into account by the court since the previous order have changed. A child ceases to be subject to guardianship when he or she attains the age of majority, that is to say 18 years of age.
The 1964 Act provides that the married parents of a child are the guardians of that child jointly. In the case of unmarried parents, the mother is sole guardian of the child. Until the Status of Children Act, 1987, it was not possible for an unmarried father to establish guardianship rights in respect of his child other than by subsequently marrying the mother of the child. The 1987 Act amended the 1964 Act by empowering the court, on the application of an unmarried father, to appoint him to be a guardian of his child jointly with the mother. It also provides for a special informal court procedure to be used where the mother consents to the appointment of the father as guardian and the father's name is registered as such on the births register.
I think Senators would readily share my view that the law should facilitate, as far as possible, the sharing of responsibilities of unmarried parents in relation to children. Some 12,500 children are now born to unmarried parents annually. At present, approximately 700 applications are made to the court each year by unmarried fathers who wish to become guardians of their children jointly with the mother — representing an increase of 200 per cent since 1990. Of these 700, 400 are by agreement. The effect of what is provided for in section 4 of the Bill is to remove the need to go to court where the father and mother are in agreement on the question of guardianship.
Section 4 repeals and re-enacts section 2 of the 1964 Act. The main differences between the old section 2 and the new section 2 are that a new paragraph (c) has been included in the definition "father" and a new subsection (4) has been added. The effect of these amendments is to extend the definition of "father" to include the father of a non-marital child whose relationship with the mother of the child satisfies conditions specified in subsection (4). Where these criteria are satisfied the unmarried father can acquire guardianship rights jointly with the mother without having to go to court.
The conditions are that the father and mother (a) have not married each other; (b) declare that they are the father and mother of the child concerned; (c) agree to the appointment of the father as guardian of the child; (d) have entered into arrangements regarding the custody of, and as the case may be, access to the child and (e) have made a statutory declaration to the effect that they have complied with all these conditions. The requirement of a statutory declaration will attach the necessary degree of formality to the process.
Sections 5, 6 and 8 of the Bill make certain consequential technical changes only to the 1964 Act. Section 7 of the Bill makes clear that where the unmarried father is appointed guardian by virtue of the new procedure he may be removed from that appointment only by the court.
In so far as disputed applications by unmarried fathers for guardianship, custody or access are concerned, and for that matter applications by spouses or former spouses for custody or access are concerned, the new section 11D of the 1964 Act, as inserted by section 9 of the Bill, is relevant. It provides that, in considering whether to make an order in relation to guardianship, custody of or access to a child, the court must have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis. This new provision in the Bill is inspired by a provision in the United Nations Convention on the Rights of a Child.
These earlier sections 4 to 8, inclusive, of the Bill have generated the most interest among some commentators but I think, on further analysis, Senators will agree that the remaining sections are also of particular significance. Section 9 inserts four new sections — sections 11A, 11B, 11C and 11D — into the Act of 1964. Section 11 as it stands in the 1964 Act is the section under which most applications in relation to custody and access disputes are made in the courts. That section empowers the court to give any direction it thinks proper in disputes concerning children. This includes a power to make orders granting custody of a child to the father and mother jointly in suitable cases.
The perception among some interest groups is that the law does not permit the making of such orders or that the courts too rarely grant such orders. The new section 11A is intended to highlight the discretion that the court has under section 11 to order joint custody. Joint custody may involve a variety of arrangements. These may range from a situation where a child spends a certain number of overnights separately with each parent during the week to a situation where parents, although formally separated, continue to live in the same household and are in a position to operate a less specific joint custody arrangement. The Bill does not draw a line indicating where joint custody ends and sole custody or access begins nor does it specify a list of criteria which should be used by the court in reaching its decision. Decisions of this nature are premised on an array of considerations in an infinite variety of cases and discretion in the matter is best left for the courts to exercise, having regard to what is in the best interests of a child.
Again, new section 11A regarding joint custody should also be read in conjunction with new section 11D which requires the court to have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.
In the course of preparation of the Bill, representations were made that persons who are closely related to a child in one form or another should have an independent right to apply for access to that child. The new section 11B caters for such cases. It provides that any person who is a relative of a child or has acted in loco parentis to a child may apply to the court for an order of access to that child. The intention is to reflect the fact that continued contact with relatives such as grandparents can often be in the child's best interests. This circumstance may particularly arise in cases where the ties between the parents of children are broken. The court would, in making orders, have regard to the welfare of the child as the first and paramount consideration.
Subsection (2) provides that a party must first apply for the leave of the court to bring an application under section 11B and subsection (3) specifies various matters to be taken into account by the court in deciding whether to grant leave. These include the wishes of the child's guardians, the applicant's connection with the child and the risk, if any, of the application disrupting the child's life to the extent that the child would be harmed by it. The purpose of this filter process is to ensure that unmeritorious or vexatious claims are prevented from proceeding to a full hearing.
The new section 11C is a technical amendment which gives legislative backing to rules of court which provide that any order made under the 1964 Act shall not be stayed pending the outcome of an appeal against that order unless the court directs otherwise. The new section applies to any court. I have already dealt with new section 11D.
Section 11 of the Bill inserts a new Part IV in the Guardianship of Infants Act, 1964, containing 12 new sections — sections 19 to 30, inclusive —— with which I will now deal. These new sections are, in effect, a charter for the rights of children in cases of dispute. They offer a comprehensive range of provisions which are designed to safeguard the interests of children in guardianship, custody and access proceedings.
It is well recognised by those involved in the area of family conflict that counselling and mediation can be of immense benefit in helping couples to sort out their difficulties. The instinctive tendency towards a court based solution can often undermine the ability that even the most embittered couples have within them to reach a voluntary settlement.
We must recognise that the courts are, and should always be, a last resort for the settlement of differences between parents for the betterment of themselves and their children. The reality is that a high proportion of custody and access disputes could be settled on a voluntary basis without ever getting to court. The proposed Part IV of the 1964 Act gives legislative backing to that approach. It mirrors, to some extent, provisions which apply under the laws in relation to judicial separation and divorce and they will have application for the most part in the District Court. It is the approach which is urged on states by the 1996 Council of Europe Convention on the Exercise of Children's Rights.
The new provisions provide as follows. Subsection (2) of the new section 20 requires a solicitor, before instituting proceedings on behalf of an applicant for guardianship, custody of or access to a child, to discuss with the applicant the possibility of engaging in counselling or mediation to resolve the dispute. Where appropriate, the solicitor must also discuss the possibility of a deed or agreement with the other party on the issues in dispute. Subsection (3) requires the solicitor to certify to the court that he or she has done so at the time of the institution of proceedings and that he or she has provided the names and addresses of persons qualified to give counselling or mediation to the applicant. If the documents instituting proceedings are not accompanied by such a certificate the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to fulfil these obligations.
The new section 21 contains provisions in relation to the respondent's solicitor similar to those in new section 20 in relation to the applicant's solicitor. The new section 22 empowers the court to order an adjournment or further adjournment so as to facilitate attempts by the parties to reach agreement on some or all of the terms of a settlement. Either party may at any time request that the hearing be resumed and the court shall, subject to any other power it has to adjourn proceedings, resume the hearing.
The new section 23 provides that any oral or written communication between the parties and a third party for the purposes of seeking agreement and any record of such communication is not admissible as evidence in any court. These new sections 20 to 23, inclusive, are aimed at facilitating as far as possible a non-adversarial approach to disputes in relation to children and to provide an alternative dispute resolution mechanism of the issues.
The new section 24 enables agreements relating to rights of custody and access to a child to be made a rule of court and will enable the enforcement powers of the court to be invoked in respect of any breach of the agreement as if the agreement had been an order of the court. The new sections 25 to 28, inclusive, are concerned with ensuring that, where litigation is underway, the rights of children are not alone protected but actively promoted. The new section 25 requires the court, as it thinks appropriate and practicable having regard to the age and understanding of a child, to consider the wishes of the child in proceedings to which section 3 of the 1964 Act applies — in other words, proceedings in which the welfare of the child is the primary consideration. Children will have insights into their lives that are important for the court to take into account in any decision making.
Furthermore, particularly as a child gets older, failure to make an order which takes account of his or her wishes may, at least in some cases, be very upsetting for the child and, therefore, counterproductive to the enhancement of the child's welfare. It is important to acknowledge, of course, that in many cases there are real problems in placing weight on the wishes of the child or even in ascertaining them. These are factors which the judge must decide on, taking into account the unique circumstances of each case. The new section 25 replaces in more modern terms section 17 of the 1964 Act.
The new section 26 extends to the District Court, in proceedings under the Act of 1964, the power that the High and Circuit Courts have to order social reports from the Probation and Welfare Service, a person nominated by a health board or any other person. The new section 27 provides that a child to whom custody or access proceedings relate need not be brought before the court to be present for the hearing unless the court so directs.
The new section 28 takes into account recommendations made by the Law Reform Commission in its report on family courts. It empowers a court to appoint a guardian ad litem in proceedings under the 1964 Act where the court is satisfied that it is in a child's best interests to do so. The role of the guardian ad litem will be to interview the child, assess his or her needs and inform the courts of those needs and of the child's views. Subsection (2) specifies criteria which the court must take into account in deciding whether to appoint a guardian ad litem. These include the age and understanding of the child, the content of any social reports which are available on any question affecting the welfare of the child, the wishes of the child and any submissions made to the court by the parties to the proceedings or any other person to whom they relate. Subsection (3) provides that the person from whom a social report was obtained may, notwithstanding that fact, also be appointed guardian ad litem.
Subsection (4) of the new section 28 empowers the court to order that the guardian ad litem be legally represented where exceptional and grave circumstances exist. Subsection (5) provides that the fees and expenses of a guardian ad litem and the costs of legal representation may be paid by such parties to the proceedings and in such proportions as the court may determine. The new section 29 provides similarly in relation to the cost of any mediation or counselling services. The new section 30 is a jurisdiction provision only.
Section 12 is a technical provision which provides for the use of modern terminology in the 1964 Act. It provides that the term "child" replaces the term "infant" where it is used in the Act of 1964 except for references to "infant" in the Short and Long Titles of that Act. Section 13 makes amendments to section 28(5) of the Civil Legal Aid Act, 1995, and allows for the granting of a civil legal aid certificate by the Legal Aid Board to a guardian ad litem appointed under the 1964 Act where either of the parties to the proceedings is in receipt of civil legal aid.
Section 14 amends section 5 of the Courts (No. 2) Act, 1986, to provide for an increase in the maximum penalties for breaches of custody and access orders in the District Court. The fine is being increased from £200 to £1,500 and the term of imprisonment from six months to 12 months. The existing penalties are out of line with the jurisdiction generally of the District Court.
Section 15 amends sections 8 and 8(a) of the Family Law (Maintenance of Spouses and Children) Act, 1976. Those sections of the 1976 Act allow maintenance agreements to be made a rule of court in the Circuit and High Courts. The effect of section 15 is to allow maintenance agreements, other than separation agreements, to be made a rule of court in the District Court also.
I will now deal with Part III of the Bill regarding evidence of children. Section 20 defines the scope of Part III; it applies to civil proceedings before any court concerning the welfare of a child provided they have commenced after the commencement of that Part. A particular difficulty is how to treat the evidence of children and the hearsay evidence of expert witnesses such as social workers in proceedings involving children. Over the years the courts have in certain circumstances admitted hearsay evidence of social workers in wardship cases while in others the evidence of social workers has been treated as expert testimony. Such decisions have resulted in a degree of uncertainty in this area of the law. The provisions in Part III of the Bill are designed to eliminate this uncertainty and have been welcomed by members of the legal and social work professions.
The changes are intended to provide greater flexibility in receiving the evidence of children in proceedings affecting their future welfare by amending existing provisions in three major respects. First, it will be possible for children to give evidence in court via a live television link. Second, the Bill provides for the admissibility of out of court statements made by children which up to now were excluded by virtue of the rule of law relating to hearsay. Third, the Bill enables the court to receive the evidence of children under the age of 14 years otherwise than on oath or affirmation. I ask Senators to note as I go through Part III that these provisions apply to a person, who is of full age but who has a mental disability to such an extent that it is not possible for him or her to live independently, as they apply to a child.
Section 21 provides that children may give evidence in cases concerning their welfare by live television link from within or outside the State with the leave of the court. This mirrors similar provisions in criminal law where sexual offences or offences involving violence or threats of violence are concerned. Subsection (2) provides that this evidence shall be video recorded. The intention is to remove from the child the burden of having to give evidence a second time should circumstances require it.
Section 23 provides for the admissibility of such a video recording in evidence, subject to conditions, if, for example, the case is appealed to the Circuit Court. Subsection (3) makes clear that a child who knowingly gives false evidence from outside the State by television link shall be guilty of an offence.
Much can be said about the remaining sections. However, Senators have heard a sufficient amount to enable them assess the legislation. I look forward to the debate and I will deal with the other sections as required.
I welcome the Minister. Before I deal with the Bill, I wish to refer to the horrendous case involving a pregnant 13 year old child. At present, she is at the centre of the same type of controversy I witnessed when I was in the Seanad between 1989 and 1992 regarding the X case. The broadcaster Pat Kenny referred to the current case in his interview with the Minister this morning as the X2 case. We thought at that time such a case would never arise again.
There are references in The Irish Times today to President McAleese's view of Ireland as a forward looking, progressive country. The newspaper states that this view is a counterpoint to the stark reality of the position of the 13 year old and the awful predicament in which she, her family, the health board and the State find themselves. We have collective responsibility as citizens of Ireland. As a teacher I witness 12 and 13 year old children coming into first year in secondary school. They appear so vulnerable at that age. It shocks us all to the core to discover that a child who should be going through the normal traumas of teenagehood has taken on the enormity of adulthood while still a child.
I welcome the Bill, particularly with regard to the upgrading of the law on guardianship, custody of and access to children and the evidence of children in civil proceedings. We have always prided ourselves on the fact that the nation cherishes its children. However, the welfare of children is one of the most important issues facing us. We must accept the changing nature of society, the enormous level of family breakdown and the changes in family life. These are due to the pressures people face as the country teeters towards the new millennium. In many cases it is not an ideal society for young people. It is consumer driven and family life is constantly under attack. The Bill is a symptom of that society and I am glad it is being addressed. However, I have a number of queries about points raised by the Minister.
The nuclear family which was relatively new ten or 20 years ago is fading away. The extended family now exists only in Third World countries or Eastern society where grandparents are very much part of family life. That is not the case in urban Ireland or, because of demographic decline, in rural Ireland. The Minister was very eloquent when being interviewed by Pat Kenny today. He referred to crime, the marginalised and drugs, all of which are relevant to this Bill. The Minister should show the same enthusiasm toward the disadvantaged, particularly children, that he displayed in Opposition for introducing zero tolerance.
The Celtic Tiger is a cruel type of image. Tigers are not known for their compatibility with humans, and the Celtic Tiger is extremely voracious, feeding from certain elements of society. It is alive in the prospering economic life of Ireland, but in Limerick, for example, there is still a wide gap between the haves and the have nots. Our enthusiastic acceptance of the Celtic Tiger image tends to camouflage the hidden Ireland of poverty, disadvantage, child abuse and violence against women, and those matters are being kept from the media. If we want to enter the new millennium progressively and ideally, we must take steps to ensure that our children and grandchildren, who will be the adults after the year 2000, will bring our moral codes and values with them.
The Bill refers to guardianship ad litem. I am particularly happy the Bill provides that a court can appoint a qualified person to act solely in the interests of the child being the minor infant, representing his or her interests in loco parentis, with no other reference to the parents or the State. The court must have discretion to grant legal representation to the guardian ad litem, and this provision is very welcome. However, it is regrettable that in cases of severe marital breakdown, where there may be a lack of parenting skills, the child can be sidelined by parents in their wrangling and emotional trauma. This can happen in their fight for emotional or even financial supremacy. I welcome the provision that guarantees the child's interests solely will be represented by a professional person where the court sees fit.
It is becoming more and more frequent in cases of marital breakdown that grandparents or near relatives apply for access to children. That is visionary and is to be welcomed. It is a realistic appraisal of the situation by the Minister. The child will feel welcome with a grandparent, aunt, uncle or any other relative. Does the Minister envisage the involvement of an interested neighbour who would have the interests of the child at heart? This would not necessarily be in an adoptive or fostering situation. Does the Bill include situations where a person unrelated to the child could be granted access if deemed fit by the court? The bonding between a child and a grandparent or other relative happens over a period, and this bond should be kept intact. This Bill takes that into account; this was not the case with previous legislation which did not take changing society into account.
The issue of counselling, mediation or legal representation of the guardian ad litem is extraordinarily important. Court procedures can be traumatic for adults, let alone children and should be the last resort. Mediation and counselling are very important. Will those facilities be readily available to people who do not have the financial resources to avail of expert advice? The Minister may say they will have free legal aid, but the people involved in that scheme are not in a position to deal immediately with these family problems in my area.
People will want this Bill implemented immediately, and if the financial and personnel resources are not there to do so, it will be a sad day for all sections of society. Backup services and funding must be addressed. That is crucial because this remedial action will prevent a great deal of distress and marital disorder. Bringing an ordinary person into a court puts the fear of God into them, whether it is for a minor or major offence, and the emotional life of children would be thrown into turmoil. Therefore, every effort should be made to address the problem before the case comes to court.
Could another word be found for "custody" in this Bill? This point was raised in the Dáil. "Custody" has very negative connotations and "care" may not be appropriate either; references to children being taken into care has changed the perception of that word. Legal expertise could give us another word, perhaps "ongoing parenting", as "custody" is too legislative and is very emotive. The Minister should examine this matter on Committee Stage, otherwise we are sending the wrong signals. Finding exactly the right word might be impossible, but it should be examined.
Regarding evidence given by children through live television link in certain civil proceedings, district court judges in my area have refused to sit in 18th century courtrooms. In that century the rooms may have been attractive but they have deteriorated since then. Without appearing negative, before we discuss technology that is obviously needed we should look at the physical arrangement of these rooms. They are grim and formidable outside, but there should be basic accommodation inside. Limerick County Council has had to supply chairs to courts around the county. Is it practical to believe video link-ups and television cameras will be available immediately in courts? I hope they will, otherwise this legislation will be idealistic rather than practical.
I hope video evidence will not be taken in courthouses because they are not particularly suitable venues for children who would prefer evidence to be taken elsewhere, for example, in judges chambers, although I know that would not be possible in areas other than the capital city. Perhaps we should consider the type of family courts we see regularly on American television. Such a facility, rather than stark and Dickensian courthouses, should be available to children, particularly during their vulnerable teenage years.
I wish to refer to what might be a contradiction in the Bill. Section 28 (1) states that in civil proceedings "the evidence of a child who has not attained the age of 14 years may be received otherwise than on oath or affirmation if the court is satisfied that the child is capable of giving an intelligible account of events which are relevant to the proceedings.". Section 28(2), however, states: "Any child whose evidence is received in accordance with subsection (1) and who makes a statement material in the proceedings concerned which the child knows to be false or does not believe to be true, shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of perjury.". I consider that extremely harsh and a contradiction given that the child has not taken an oath.
Hear, hear.
We will not know if a child giving evidence has been grilled or drilled by a parent. Will we be able to ascertain whether a child is speaking from his or her viewpoint or if a child is under stress and is saying something, as teenagers do, which will get him or her out of court as quickly as possible? A parent may drill a child to say what they want. In such instances, it would be extremely harsh to find a child guilty of perjury. A child may be frightened and in an environment with which he or she is unfamiliar. This is an extremely harsh measure and may be contradictory.
The Minister referred to the UN convention which will be reflected in our legislation. It is stated that in considering whether to make an order under section 6A, 11, 14 or 16 the court shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis except if it is contrary to the child's best interest. That is probably an improvement but is it in accordance with the thrust of the UN convention? I hoped for a more positive provision to establish joint custody as the preferred option. Given all the equality legislation on the Statute Book, a stronger case should have been made for joint custody.
The Commission on the Family produced an interim report. While I would not like the Bill to be delayed, how much of the interim report has been taken on board in this legislation? I presume there has been close contact between the Minister and members of the commission, which I hope will be ongoing. Perhaps the recommendations of the Commission on the Family will be taken on board on Committee Stage. Although we await the final report, the interim one is important.
It is also important that the main elements of the Bill are implemented. I hope the Minister has taken on board what I said. We are all concerned about the rights of children. We must ensure the effective implementation of the Bill and, therefore, provide the necessary financial resources and personnel to do so.
I laud the Minister who has brought six Bills before the Oireachtas, even though he is six months only in office. If he continues in that vein, we will be extremely busy. In Opposition the Minister gave clear commitments which were included in the Programme for Government on which he is acting. I would like to place that on the record because often Ministers are criticised unfairly.
The most important feature of the Bill is the rights of children in cases of guardianship. We are dealing with the rights of children, not parents. The Bill makes an important provision which allows a father, who is not married to the mother of his child, to be appointed guardian of the child with the agreement of the mother and without the need to go to court. That was a contentious area and this is a step in the right direction. Apart from its concern for children, this Bill makes some important changes.
There have been changes in society over the past 20 to 25 years. If this Bill had been brought before the House 20 to 25 years ago, I am not sure it would have been passed. At that time there was considerable moral opprobrium and stigma attaching to children born outside wedlock. That stigma also attached to the mother and the family. In most instances children born outside wedlock were not recognised and were given up for adoption. Over the past two decades mothers, in most cases, have opted to keep children born outside wedlock and to rear and acknowledge them openly. That is a welcome development as far as I am concerned. This Bill recognises that the father has rights to his child.
Statistics show the broadening of society's views. Seven hundred applications are made to courts by unmarried fathers each year, which is an increase of 200 per cent since 1990. While 700 applications out of the 12,500 children born to unmarried parents is only a small proportion, the number will increase in the millennium. I welcome that more applications will be made by unmarried fathers for guardianship of their natural children. Four hundred of those applications were made by agreement. This Bill provides for consensus, counselling, mediation and that every effort be made, by agreement, outside the court. No-one wants to force a child to go to court in this situation. The previous speaker mentioned the trauma suffered by a child in court, in front of judges, solicitors and lawyers.
The development in this Bill to allow for unsworn evidence is welcome. The child can give his or her evidence to the judge in a simple manner or can do so by video link. There was a fear for many years that children would be intimidated. In this day and age, we often lose sight of the ability of children aged five, six or seven years, in first, second or third class in national school to make decisions. They are more intelligent and clever than we give them credit for. We will never have a Utopia but these new developments ensure that children can give evidence without fear of a systematic court system involving wigs and gowns.
Where a father can apply by consent for sole or joint custody, certain criteria must be laid before the court. This is important and will speed up the process as it can be done in the District Court. If there is agreement by the parties, through statutory declaration, the father can gain joint custody by consent. Hitherto, under the Guardianship of Infants Act, 1964, the father was not entitled to such custody. If he had the courage to pursue such rights he had to go through the courts which, apart from the stigma and moral opprobrium, involved major costs. In many cases, fathers forgot about the issue.
The conditions with which parents must comply are set out clearly. They must not be married to each other, they must both declare they are the parents of the child, they must both agree to the appointment of the father as guardian of the child and declare that they have entered into an arrangement regarding the custody of, or access to, the child. This is done by statutory declaration which simplifies proceedings.
Section 20(2) specifies that a solicitor for the applicant conducting a case must certify that certain advice was given and that counselling and mediation were made available. From my legal experience, I know of the amazing lack of knowledge regarding the provision of counselling and mediation. In circumstances where this may fall through the court will eventually resolve it. The solicitor for the respondent, normally in a dispute between the father and mother, has similar obligations. If the judge believes the certification required by the court from the solicitor is not adequate the case can be adjourned to ensure that avenues of counselling and mediation are fully explored.
Section 14 provides for the increase of minimum penalties by the District Court for breaches of custody and access orders. The monetary penalty will increase from £200 to £1,500 and the term of imprisonment will increase from six to twelve months. This provision is welcome as the previous penalties were not a sufficient deterrent to breaches of custody and access orders.
Section 15 amends sections 8 and 8A of the Family Law (Maintenance of Spouses and Children) Act, 1976. Those sections of that Act allow maintenance agreements to be made a rule of court in the Circuit and High Courts. This Bill provides that these agreements, other than separation agreements, can be made a rule of the District Court. This will also speed up the process.
This Bill provides greater flexibility for the receiving of evidence from children. They can give evidence in court via live television link or provide out of court statements, which was hitherto prohibited under the hearsay rule. This is important because outside the confines of the court, a child may make an honest and open statement to a guardian, friend or grandparent. Such a statement can now be admitted as evidence. The requirement of giving evidence under oath or affirmation no longer exists. There is also an important provision that, where one parent moves with the child to another state evidence can be given by television link from outside the State.
This Bill is very welcome. As Senator Jackman said, there is not enough time for a more detailed and intense debate on this Stage. Because of the number of Members who wish to contribute to the debate, I wish to share my remaining time with Senator Chambers.
There is no provision to share time on Second Stage.
There should be, it has been done before.
Acting Chairman
If the House agrees we will allow time sharing. Is that agreed? Agreed.
I welcome the Bill and the Minister. I listened to his radio interview this morning and I pay tribute to his work as Minister for Justice, Equality and Law Reform. I wish him well in his good work. One can see from the changes which have taken place and the legislation which is being introduced that he is using his able mind in the interests of the State and its citizens.
Health board social workers, most of whom are involved in the protection of children, have one of the most difficult and trying jobs. As society changes, the workload of health boards substantially increases. The breakdown of traditional marriage structures places a huge burden of responsibility on the State and those employed to protect the interests of children. I welcome the Bill which I hope will provide those employed to safeguard the interests of children with a more effective and efficient way of so doing, particularly where relationships have broken down.
Under the Bill the interests of the child are paramount, which is necessary and reflects the wish of the people. There is a human aspect to this legislation in that it obliges solicitors to discuss with applicants for custody or guardianship the possibility of seeking advice and counselling on such applications. If legislation does not have a human element it is merely an instrument rather than something which helps people.
I welcome the changes on the taking of evidence which will help the difficult work of social workers who deal with children and protect their interests. I hope these changes will help to protect children in the future.
You will have noted, Sir, my enthusiastic support for the principle of sharing time. I wish to share my time with Senator Henry.
Acting Chairman
Why did I anticipate that?
Because you are a wise and good acting chairman.
Acting Chairman
Is it agreed that Senator Norris share his time? Agreed.
I welcome the Minister to the House. He has spent a good deal of time here and I hope he enjoys his visits as much as we do. I wish the print media would follow the example of RTÉ in covering these debates. The Europol Bill, which was very important, was covered by RTÉ only.
This is a very important Bill. It is essentially the same Bill which was proposed by the former Minister, Deputy Taylor, on 25 April 1997, updating the law on guardianship, custody, right of access to children, giving greater say to children in custody disputes, encouraging the resolution of such disputes out of court, giving a right to the child's natural father to become a guardian by agreement with the mother without having to go court and providing access rights for grandparents. I received numerous items of correspondence on this matter so I am glad this Bill has been introduced.
I welcome, in particular, the emphasis on alternative dispute resolution procedures and the introduction of the guardian ad litem concept under section 11. That battle was fought in this House. I proposed the introduction for the first time of a guardian ad litem in the Child Care Bill. We had a huge argument on it. The Minister's colleague, the Minister of State, Deputy Treacy, took that debate and, with great courage, went back to Cabinet and the Bill was recommissioned. Therefore, the guardian ad litem concept came from this House and I greatly welcome its automatic inclusion in this Bill.
It is worth looking at the context of this Bill, for example, article 7.1 of the United Nations Convention on the Rights of the Child states:
The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, in as far as possible, the right to know and be cared for by his or her parents.
The House should note the use of the plural "parents". Article 9.3 states:
State parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
Article 9.1 states:
State parties shall ensure that a child shall not be separated from his or her parents against their will, except when such separation is necessary in the best interests of the child.
That seems to be the moral and intellectual context in which this Bill should be placed, together with article 42.1 of the Constitution in which the State "guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children".
However, this Bill seems to have an exclusive emphasis on article 42.1. The Minister of State, Deputy Mary Wallace, stated on Report Stage in the Dáil on 5 November 1997:
What we know at present, as the Constitution group has indicated, is that the rights as such of a child are not expressly referred to in article 41. Rather, the focus is on the right of the family, not the individual members. For this reason, the new section 11D of the 1964 Act, as inserted by section 9 of the Bill, is drafted in a way that coheres with article 41 of the Constitution as it stands.
Must this be so? Although the Bill redirects some of the emphasis, it does not seem, due to this hesitation, to place the interests of the child at the centre of our focus. Does this suggest, for example, that the Guardianship of Infants Act is unconstitutional because it refers to the right of the child? It seems a rather extreme interpretation of the Constitution. I would like, also, to refer to the fact that, in some of the wording, it appears to assume that it is unnatural and exceptional for a father to wish to have access to a child or to assume custody. I would like to think that things have changed greatly in this country over the last few years. It is a lovely sight to see young men with their children in tow, pushing them in prams or slung across their shoulders. It is very moving to see the way in which men are no longer ashamed to be seen in the role of parents. This transformation has taken place over the last 20or 30 years. We must make the assumption that most fathers will naturally wish to have an involvement in the family as is proper. In the words of John Waters in The Irish Times of 13 May, “By presupposing irresponsibility as the natural response of an unmarried father the culture builds a wall against him ensuring that he could only apply for, or obtain, guardianship in a manner subservient to the wishes of the mother”. This, regrettably, remains the case under the provisions of this Bill and for this reason I will put down amendments.
We must look at a whole series of assumptions. I refer to a subsequent article in The Irish Times.“Statistics give the lie to the myth of a good mother,” by John Waters on November 11. John Waters looks at a situation where video cameras had been placed in hospital wards and cases of child abuse had been recorded. It was not said in the earlier sections of the news that in all 39 cases the abusing parents were mothers. There were attempted suffocations, the actual breaking of limbs, one broken arm, recorded on camera. I would not wish this to be seen as any kind of misogynistic impact of my own but Mr. Waters makes the very effective point that if these abusers had been fathers that aspect would have been splashed across the media. We must bear in mind the equality of parenthood as stated very clearly in those sections of the United Nations convention on the Rights of the Child.
Section 4 of the Bill has the effect that an unmarried father need not apply to the court in order to become a guardian of his children if the mother agrees — we require the agreement of the mother straight off — if the parents have made a statutory declaration and they have made arrangements regarding custody. In so far as the Bill removes the requirement to go to court it is welcome but it falls a long way short of what is required in order to redress the position of unmarried fathers. Unmarried fathers should be entitled to have relations with their children on an independent basis. It should not be merely at the whim of the mother particularly as, very often, children are used as weapons of revenge, and access to custody is a very significant weapon in this matter. The Bill should provide that mothers cannot unreasonably withold their consent to the father obtaining guardianship so that we have a level playing field.
With regard to maintenance section 8 appears to be good. However, I would like the Minister to address the point of whether this provision discriminates against unmarried parents. It is a pity there is no mechanism to ensure that where those payments are made they are spent exclusively on the child. We make sure they are paid to the parent or the guardian but we do not know where they go. They could be spent on bingo, on booze or on cigarettes. The Bill does not monitor the spending of that money and I think that is a pity.
Section 9 provides for three new sections to be inserted: section 11A makes a declaration that the court may, if it thinks it appropriate, make an order granting custody of a child to the child's father and mother jointly. I think that is a pity because it places the burden of proof on the father; "where it is appropriate" implies that this is exceptional. The burden of proof immediately is put on the parent who is trying to uphold and protect the custodial rights and obligations of both parents and consequently the best interests of the children. The burden of proof should, of course, be on the other parent, the one who is trying to prevent a biological parent having access to the child. Again, for that reason, I have put down another amendment about which I will be arguing. I am merely signalling at this stage.
Section 11B allows members of a child's extended family to apply an order giving access to the child. I should like to raise a couple of questions about this. I think it is a very good idea because I know there are grandparents, aunts and uncles who, maliciously, have been denied access and they should be given a legal status. However, having first to apply for and be granted leave to apply for the right to access seems an unnecessary complication. It would simply add to the delay and the expense. I wish we could get some legal definition of who is covered by this. Does it have to be a blood relative? Can long familiarity be taken into account? Could a beloved teacher be considered? We have to look at this particular test. I should like clarification of "the court shall have particular regard to. . .the wishes of the; child's guardians" in section11B (3)(c). Does this regard for the wishes of the guardians constitute a veto?
The question of mediation is extremely important. One welcomes this. Section 11 introduces new sections 19 to 30 to the Guardianship of Infants Act, 1964. These sections 19 to 22 are intended to promote and facilitate alternative methods of dispute, resolution, etc. I would like to see the Minister giving consideration to the introduction of mandatory mediation in all cases before court proceedings can be initiated. If we believe in mediation surely we should try it before we get into court at all. Research should also be carried out into the success rate of mediation, the reasons for failure and finally why mediation is not availed of in many cases.
I have been briefed by an excellent group called Parental Equality. They have done their own research. Their view is that the well known bias against fathers in custody cases undermines the effectiveness and usage of mediation services. Mediation in custody cases can only be effective where both parties are committed to achieving a reasonable solution which respects and upholds the status and dignity of both parents and facilitates ongoing shared parenting. This cannot happen if the sex of the parent is known to be the key determining factor in the outcome of the case. The devotion of the members of Parental Equality to their children is exemplary. One man said to me that if you are a man you go into court five goals down before the first half commences.
I welcome this Bill which puts the rights and the interest of the child almost centre stage. I have had a long involvement with Cherish, the association for single parents; I am now its president. We have always sought the involvement of the non-marital father with the child. About 12,000 children are born outside marriage in this country every year but a substantial number of these children have little or no involvement with their fathers.
We have encouraged mothers to try to get the non-marital father involved in the upbringing of his child because a child has a natural curiosity about their father and there is nothing better than getting first hand information from that person. We have run courses for mothers teaching them the best way to maintain a relationship with the fathers of their children but, regrettably, a very large number of fathers do not want to become involved in the upbringing of their children. This is extraordinarily hard on those who want to become involved in their children's lives. Of course, joint custody should be the norm but I do not think it can be considered possible in all cases. There are a substantial number of men who do not want to be co-operative.
I was very interested to get an article dealing with the need for women who are pregnant, or who hope to become pregnant, to take folic acid to reduce neural tube defects. The article is entitled "An Important Step in Planning a Baby", and the photograph on the front of the magazine is of a man holding a child. I think that is interesting. It is important for men to think more about the planning of pregnancies and the consequences in terms of lack of access to their children.
There are cases involving incest, rape, child prostitution and so on, where it is impossible for the father to become involved. While blanket recognition cannot be given, fathers should be encouraged to become involved in the upbringing of their children. In this regard I welcome the fact that they do not have to go to court.
Fathers could give financial assistance towards a child in cases where the mother is reluctant to allow access. Even in marriages where couples have separated there is extreme difficulty in obtaining support for children. It would be a start if the man demonstrated a financial commitment to his child.
The concerns expressed by Senator Norris regarding the way in which money is spent can be addressed later. If there is abuse of expenditure the man can take action. However, if the woman sees that money is being provided by a man on a regular weekly or monthly basis towards the support of his child it would make it much more difficult for her to disallow access and to be unamenable to the father assuming his rights and responsibilities.
I welcome the interest taken by the Minister in cases involving children where a marriage or partnership has broken up. He has put mediation rather than the courts to the forefront. Nothing is more distressing for children than court cases. I hope that service will be given the resources it needs because lack of resources prevents many who would wish to do so from becoming involved in mediation.
The provisions regarding access by relatives is to be welcomed. Perhaps the Minister could broaden them as blood relatives are not necessarily closest to the child. Child minders or supportive neighbours may have been closer to the child when a marriage was in trouble. It is regrettable that such people have been excluded. Perhaps it would be better to include them and provide that they may be excluded if they are being vexatious or troublesome.
Excellent changes have been made regarding the receiving of evidence by children. The Law Reform Commission is to be applauded for the work it has done in this area. The ability to understand and answer questions is given greater importance than the chronological age of the child. Sometimes young children have a strong sense of what happened.
I welcome the recent publication of legislation on court services. Delays of trials, often of a few years, are bad enough for parents but they are intolerable for children because it is difficult for them to place in context events of several years previously as well as having to recall the trauma they may have endured. The admission of hearsay evidence and the use of video links from abroad is to be welcomed.
I am alarmed about the comments made by Senator Norris on the article by John Waters in The Irish Times of 11 November. I was a young doctor when battered baby's syndrome was first recognised in the early 1960s. It was recognised that the mother could be the abuser and was as likely to be involved in the physical abuse of the child, although not so much in sexual abuse. A letter from a sociologist was published in The Irish Times a few days later in response to the article which pointed out that an enormous amount of research had been undertaken on the subject and that in a large number of cases women who abused were being abused within the family. A report by the Casualty Department of Saint James's Hospital found that women presenting with physical abuse were often afraid to stay for treatment because of the abuse that may have been perpetrated on their children at home. This is a well known condition and nobody is attempting to say that there are not women who do not become involved in the abuse of their children.
However, we must look at family situations. Family dynamics can be dramatic, as we have seen with the publicity surrounding a pregnant 13 year old child. Without all of the facts of the case it is hard for us to fully know these dynamics. The Bill encourages dealing with children in a more straightforward manner, which I welcome and I congratulate the Minister on introducing it so rapidly to the Houses of the Oireachtas.
I wish to share my time with Senator Fitzpatrick.
Acting Chairman
Is that agreed? Agreed.
The Minister is as prolific in Government as he was in Opposition with regard to producing legislation. I heard his interview this morning on "The Pat Kenny Show" and I welcome his commitment to the Employment Equality Bill and the Equal Status Bill. There was great disappointment among all those involved in drafting these Bills when they were struck down by the Supreme Court.
I welcome this Bill which is similar to but improves the Bill introduced last April. We are all on the same side with regard to family law. All Senators wish to improve the legislation and because of the issues that have been raised, it appears that the same lobbyists have approached Members on all sides of the House.
A number of Senators referred to the tragic case involving a 13 year old child. When I was last a Member of this House the tragic X case arose. At the time many people thought it was a single incident which could not arise again. It is awful that similar circumstances should occur. While family law has come a long way since then, we still have vulnerable children in society who can be subjected to trauma and who need protection.
A 13 year old is a child. Senator Jackman referred to seeing 13 year olds in school. As a teacher I remember students attending first year at the age of 12 or 13 years. They are children, even those who look mature. It is awful to think of children having children, especially under such traumatic circumstances.
I welcome this legislation which updates the law on guardianship, custody of and access to children and of evidence of children in civil proceedings. I acknowledge the work of the Law Reform Commission. The commission has been the backbone of many improvements in legislation, especially in the area of family law, and that is something we should acknowledge.
It is gratifying to know that, as a result of this Bill, there is a possibility we will be able to ratify the Council of Europe convention on the exercise of children's rights which we signed in January 1996. It complements the UN Convention on the Rights of the Child ratified in 1992. Any of us involved in dealing with legislation and who have spoken to people outside this country at conferences will be aware of the intense embarrassment felt at our inability to ratify those conventions. We at least have less cause for embarrassment now. This is a good Bill which is child-centered and child-friendly. It seeks to ensure the best interests of the child are vindicated at all times and, by and large, it succeeds in doing so.
Many references were made to the section which allows a father to be appointed guardian of the child by agreement with the mother. There are differing views on this. I have had many dealings with Parental Equality and I am very impressed by the case they put forward. It comprises mainly men who feel disenfranchised, although they want to assume responsibility for their children. They believe this Bill does not go far enough in that regard. I have often said that children do not only have mothers, although in this society that is often the case as many fathers do not assume any parental responsibilities. When a group is anxious to assume the rights and responsibilities of parenthood we should encourage and enhance its work. Some 12,000 children are born each year to unmarried parents out of which 700 applications for guardianship are made by fathers.
Unmarried fathers assume varying degrees of responsibility for their children, which leads organisations such as Cherish to be understandably diffident in advising about guardianship rights for unmarried fathers. It argues parental rights should be contingent upon full acceptance of parental responsibilities and that is a good point. Unmarried fathers have a choice as to whether or not to develop a relationship with their child and, as we know from statistics, many unfortunately reject that option. Nonetheless, there are many fathers who want to play a fully responsible role in the rearing of their children, and we should try as much as possible to make that easier for them. I hope it is indicative of a change of attitude within society that men would take on the role and responsibility of parent to their children. Senator Norris is right when he says there is a more visible involvement of fathers with their children today. That is something which is very welcome and of which we shall see more.
However, we are still very conventional. I know my husband will kill me for saying this but I still largely take on the responsibility for organising my daughters and the household, although we have what many would consider an equal relationship, something on which my husband is often congratulated. That is indicative of the type of household which exists in Ireland. Where both parents work outside the home, women still unfortunately have to take a greater role in organising the family home and bear greater responsibility for rearing children. That is changing and more men are willing to work share so as to participate more in this regard. That development is indicative of the changes in our society and is something we should examine further within the confines of the Bill.
I welcome the provision that custody of the child may be granted to relatives, such as grandparents, and that they will be allowed access to the child. This was a bone of contention when we were discussing the divorce legislation. Many grandparents felt they would never see their grandchildren again. It is widely agreed that there is a tender link between the old and young and this can develop into a loving relationship which is very beneficial for the children, the grandparents and society. We should try to nurture that. I accept the point about other people who have a loving relationship with the child also being considered for access and perhaps the Minister might examine that.
There will be an emphasis on counselling and mediation in alternative dispute resolution procedures. Following on the provisions of the divorce legislation, it was agreed that there should be separate counselling available for children. The issue here is about the resources made available. I remember having many disputes with the Minister's predecessor in the area of equality and law reform about the availability of mediators, for example. This is a significant issue because there is an insufficient number of trained mediators. It is easy to provide for it in print but it is very difficult to resource it properly. It is essential that we do so if this is to remain a child-friendly Bill which ensures the child's interests are vindicated.
I welcome the court being obliged to take account in its proceedings of the child's wishes because we make assumptions when deciding for children. They should be listened to. Adults often think they listen to children but they do not hear what they say and that is a concern. Being able to listen is a great and essential skill.
Provision is made in the Bill for evidence to be given through a live television link. We all know the appalling condition which the so-called family courts are in and I hope they will be improved substantially. Improvements have been slight and we have a long way to go. It is extremely bad for children to be in any kind of adversarial circumstances, especially when they are living through a traumatic time. The provisions on live television links are welcome. Some questioned the validity of children's evidence. I read the Dáil debate on this Bill and was not entirely satisfied with the Minister's response. Perhaps the Minister might address this issue further when he replies.
This is excellent legislation which I welcome and commend to the House because it is a step forward in the area of family law.
I am delighted, but not surprised, that this Minister is introducing the Bill. As a Member of the other House, I was Chairman when Committee Stage of the Children Act, 1989 — the first child care Bill to be passed by the Oireachtas since 1908 — was discussed. The Bill had lain on Second Stage for eight years, not because the Dáil was not aware of its duties but because no one could agree on even the bones of the Bill. This applied to all parties. With the agreement of the Whips, the then Minister, Deputy O'Hanlon, advanced the Bill to Committee Stage. Deputy O'Donoghue played a leading role in ironing out the difficulties. There was a mixture of skills and professions discussing the Bill and the Deputy brought uncanny legal brilliance to the deliberations. However, he not only brought the hard diamond of legal brilliance, he also brought humanity. The Deputy would not take all the credit for getting the Bill through but he played a leading role. I am not surprised to see him introducing another Children Bill.
How we have moved on since passing the Children Act, 1989. We were innocent men and women trying to do our best. We then had a flood of scandals, both in institutions and families which showed how children were abused and, in one or two cases, killed, by people whom they originally trusted, who were in positions of authority and were supposed to be looking after their welfare. These people failed in their duties.
Attitudes to, and relationships with, children have changed greatly since then. The post-1960s generation, who let it all hang out, are now the parents and, in some cases, the grandparents of today's children. Their attitudes are moving away from total freedom. I do not want to sound ponderous or to look down on children but, in this day of nuclear families, we are coming to regard children as people to be treasured and protected. They are to be brought up like a valuable tree which is staked but given freedom to grow and blossom in the sun.
That is the ideal at which we should aim for our children. However, being human, we sometimes fail. Politicians are not exemplars of parenthood. They are often away from home. Senator Keogh praised her husband. I am not surprised, he was a neighbour of mine growing up and she was only stating the facts. However, sometimes we find it difficult to be present at the most important times in our children's lives. That is the nature of the job and our wives and husbands have to take up the slack.
This is a child focused Bill. It is strong on supports for the child in a court. The Minister is responsible for the family courts. I receive many complaints, mainly from fathers, who have been before these courts. They tell me that they are not listened to and that the weight of judgment normally comes down on the mother's side. In many cases this is just. However, our judges may have to go for training, if not counselling, in modern family thought, sociology, etc.
Most people agree that a court is a poor and a crude place in which to try to sort out family difficulties. In the end, the judge may be forced to seek refuge in the Statute Book rather than dispensing justice and what he feels may be right. Sometimes this is not the correct decision. No matter how young, children have a strong sense of justice. This is one of their stronger senses. As we get older that sense of justice is blunted. When talking and listening to young children and teenagers, one knows that they have a strongly developed sense of justice. I welcome this Bill. However, the Minister or his successor will be back with further children Bills.
I am sure that the House appreciates the Minister's interest in the various matters he has brought before us and I compliment him on his performance on the "Pat Kenny Show" this morning.
Unfortunately, this Bill is a lost opportunity. Is the Government scared to deal with the rights of fathers? This Bill should provoke serious debate as to the natural rights which fathers should have but which the law still does not permit. It is for the Government to legislate and not for the courts to make the law. The likelihood is that the issue of fathers' rights will be lost for another ten years. Worse still, it will be lost until the next blatant anomalous case where a father will lose out because of the lack of legal recognition for his rights. The father should be an automatic guardian except in specified circumstances provided for in legislation. The essence of the problem is that there is an absence of legislation to deal with the rights of the natural father.
I concur with Part III of the Bill and commend it to the House. We already have provision whereby children can give unsworn evidence in criminal matters and it only seems sensible that the civil system should have parity with the criminal system where the sanctions are far more severe. The UK Children Act, 1989, enables children to give unsworn evidence in civil proceedings provided they satisfy a watered down test of competency. The British experience has not provoked serious complaints about these provisions. In the case of Johnson v. Ireland the European Court emphasised the State's obligation as follows:
To respect the individual's private and family life and to act in a manner calculated to allow family ties develop normally as between non-marital parents and their children.
Deputy Alan Shatter's Family Law states:
The changes effected by the 1987 Act do not equate the position of the natural father to that of the natural mother. The mother is automatically by statute the guardian of her child. The father is merely entitled to apply for guardianship. The mother's right to her child is given constitutional recognition (under Article 40.3), the father's is not.
Presently, therefore, fathers of children born outside marriage are treated as constitutional outcasts; are in an inferior legal position to that of mothers; have no automatic guardianship rights and can only obtain them by means of a court order under section 6A of the Guardianship of Infants Act, 1964.
The constitutional position is set out by the Supreme Court in the State (Nicholao v. An Bord Uchtála) 1966 Irish Reports, which held that a father has 'no personal rights in relation to his child under Article 40.3º of the Constitution. The natural father has the right to apply to the court to be appointed a guardian but this does not give him the right to be appointed as such.
This Bill goes nowhere near amending this anomaly surrounding the lack of rights of a natural father. It allows a father who has not married the mother of his child to be appointed guardian of the child by agreement with the mother without the need to go to court as at present. However, in a judgment in December 1989 in the case of K v. W, the late Mr. Justice McCarthy in the Supreme Court cited the decision of Nicholao v. An Bord Uchtála, holding that the unmarried father had no constitutional right to the custody or society of the child. He raised the question of whether the fact of there being a prospective adoption in train was to be taken into account in a guardianship application. If so, then a spiteful mother could wilfully defeat a father's claim by setting the adoption process in motion. Mr. Justice McCarthy felt that the purpose of the Status of Children Act, 1987, was to promote the father to the position of having rights. He found it difficult to accept that a loving father who with the mother, wished to have a child had no natural right to the society of the child. Shatter's Family Law states:
The father ultimately failed in his application, the High Court ruling that the child's welfare required that she remain with the adopters. He had seen his child on only one occasion, being two days after the child's birth. At the date of the final court decision, the child had been with the prospective adopters with whom it had bonded for 15 months.
The 1982 report of the Law Reform Commission on illegitimacy recommends that both parents of a child born outside marriage should be joint guardians of their child with legislation providing for the courts to exclude a father from joint guardianship or from a right to custody where such order is in the best interests of the child. Such legislation could be enacted subject to the proviso that no right to joint guardianship or custody vest in a father where the child was conceived as a result of rape or by use of donor sperm through artificial means of procreation.
The late Deputy John Kelly, in the second edition of his book The Irish Constitution, when dealing with the natural personal rights as contained in Article 40.3º of the Constitution suggests “that it seems wrong to close the door on principle against the father” having a natural personal right in relation to his child. He argued for recognition of such a natural personal right “even if a highly contingent and easily defeasible one”. Recognition of the natural father's right under Article 40.3º could still allow for flexibility and should not be absolute.
Clearly, this Children Bill goes nowhere near implementing the Law Reform Commission's proposal. It seems unfortunate that we have lost an ideal opportunity to properly tackle the legal rights of natural fathers. The reform contained in the Bill is slight and grants no rights. It gets rid of the ridiculous situation where a father had to get a court order to be a guardian where the mother had consented.
I welcome the Bill as a civilised advance in dealing with children. The interests of the child should be paramount and I particularly welcome the extremely important power to appoint a guardian ad litem. I also welcome the provisions which make it easier for a child to give evidence and ease the stress on a child in court. I have seen examples from other places, and one difficulty is that these provisions could be negated because of lack of resources. The provisions imply substantial modification of courthouses and courtrooms and involve considerable expense. I hope resources are made available if the Bill is passed.
I support the point made by Senator Coghlan regarding the rights of the natural father. At present we are dealing with very difficult social situations with the state of wedlock becoming less defined. What were seen as the concepts of marriage and the single nuclear family no longer apply. The law has to attempt to keep pace with these changes in society. Where a child is the product of a loving and natural relationship the father should have some established rights in law to access and be concerned with the child subject to the paramount interests of the child. Despite this slight reservation, I welcome the Bill.
It would be remiss of me not to speak on this matter. As one who spent the greater part of his political career on the side of equality between the sexes, there is a need to defend men. There is an implied subtext about the behaviour of all men in much of our legislation pertaining to family violence, guardianship, etc. We have all been lobbied by the same interest group to which a number of speakers referred. The fundamental point made by that interest group, and which this Bill inadequately attempts to address, is that there are many cases where both parents, in the case of unmarried couples, ought to have rights of guardianship. While it is a step in the right direction and facilitates agreement where such agreement is possible, it does not yet recognise that where both parents are meeting their parental responsibilities there ought to be a presumption that both have a right to guardianship.
When the Status of Children Bill was introduced in 1987 there was considerable controversy because the presumption that it would guarantee guardianship rights to both parents was not included. Time has passed and we can now understand the problems involved. However, the fact that we can understand the problems involved in automatic guardianship is not a reason to create unnecessary legal hurdles.
I take grave exception to much of what is portrayed as the liberal left view on this issue, particularly in the United Kingdom. Children are better off having two parents. However, a newspaper of which I am fond, The Guardian, and, to a lesser extent, The Irish Times take the view that it does not really matter. When a parent loses a partner as a result of an illness or accident it is recognised that not just the spouse but the children suffer. It is therefore illogical to suggest it makes no difference to a child whether he or she grows up in a single parent family or in a two parent family. This is not an attack on single parenthood or on single parent families. It is simply an assertion of a reality. Whenever there is a tragedy which deprives a child of one of its parents we acknowledge it as a tragedy for the child and not just for the partner. It is therefore equally reasonable to suggest that it is preferable for children to grow up in circumstances where they have two role models and two parents to share the responsibility of parenting. That has benefits not just for the child but also for the parents.
I am a product of the 1960s to which Senator Fitzpatrick referred. I do not know how much I learned to let hang out over the years but I probably have a different attitude from my parents about many of these matters. However, I accept that one of the unfortunate consequences of that period is that many people have been allowed to talk themselves into believing that responsibility for their actions is everybody's but their own. I am a great believer in the role of society in supporting people who are in difficulty and in the negative effects of poverty and appalling living conditions. However, I do not believe people should have the right to behave as they wish, wherever they wish, and let somebody else take exclusive responsibility for the consequences of their actions. Regardless of whether it is the mother or the father of the child, we must tell people: "If you have a child, you have a responsibility; we have a responsibility to support you but you have a responsibility too".
I am concerned that the other subtext of the dilution of the right to guardianship is a dilution of our commitment to pursue with vigour fathers who are reluctant to accept their responsibilities. One of the more revealing facets of life is listening to men talk about women in exclusively male company. Their attitudes to many things, including sexual responsibility, are often not as noble in the company of hard men as they might be in front of a different audience. There is a degree to which macho male society regards men who father children as symbols of male potency. We therefore must redefine our culture. Men have rights and obligations. Parents have rights and obligations. Children have rights and, in so far as it is possible, they have a right to access to and support from two parents, preferably of different sexes although others might have a different view on the latter. We must create a framework in which we will support people but in which it is also recognised that people have responsibilities.
In our attempts to protect women from unpleasant and dangerous men and men they regret meeting, I worry that we might put obstacles in the way of men who wish to play an equivalent role in the rearing of their children. One of the consequences of the distorted view we had of parental roles was that it deprived men of many of the joys of rearing children. Men were seen as the breadwinners who went to work each morning, brought the money home, behaved properly, were singularly faithful to their spouses, at least sexually, but who did not have much involvement in the experience of intimacy that is involved in the rearing of children. The absence of these expressions of intimacy and affection brutalised men to a greater or lesser extent but we cannot now move in the opposite direction and pretend men are no longer needed. A balance must be struck.
Having spent time with the lobby group I mentioned, there is a case for rewriting the law to recognise the rights of the considerable numbers of men who are fathers of children, who wish to take on their responsibilities and about whom it would be correct to presume they are fit and proper people to have guardianship of their children for the sake of their children. The law should not be allowed to exclude from children the right to have two parents simply because we cannot find a way of writing the law which would protect women and children from unpleasant men and fathers. The law should permit children to have two parents where that is obviously the preferable option.
Even though it is late in the day and we are rushing this legislation to a degree, I hope the Minister will reconsider the language used in the Bill, which many men would consider negative in its presumptions about men, and rewrite it in the type of language which recognises that many men want to be full and equal partners in the rearing of their children. The only way to do that is to recognise their right, qualified by the necessary conditions, to guardianship.
I agree with Senator Ryan's comments.
That is the first time in 16 years the Senator has agreed with me.
It is also the first time liberalism has changed to my way of thinking. In the early years of our membership of the House, the Senator and I opposed each other's views, but our views are now converging at last. Conservatism is becoming fashionable again.
We must be careful in how we proceed because men are not getting a fair crack of the whip in the present climate. I am aware of cases where men are the real abused partners but nobody listens to them. They are thrown out of their homes because barring orders are always applied against husbands, never the wives. There is no rational method whereby a mediator can go into a home and check which spouse is wrong or right. This is not an easy problem to solve. Only a coward and a bully strikes a woman. A person who strikes a woman is not worthy of being called a man. He is no different from the bully who attacks an innocent child.
Having said that, we must put in place a system which carefully examines both sides before the case comes before the court. Justice may be done in the courts as far as the legal system is concerned but it is not always done for the children. Children should always be put first but on "Coronation Street" at present we see a typical example of children being used as pawns in a game between husband and wife. This brings home that we must take a more balanced view. The system should involve much more mediation and a method of assessment before families are broken up. It is becoming too easy to do this now — there have been cases in England, including some involving alleged child sex abuse, where children were wrongfully taken into care. There is a thin line between right and wrong in those cases but we must ensure that children are not traumatised in any way. As Senator Ryan said, it is traumatic for children when one parent dies but it is also traumatic when their parents split up.
I welcome the Bill. The Minister is doing an excellent job in achieving justice and not only in this legislation. He is a brilliant Minister for Justice, Equality and Law Reform who is working sincerely and with dedication. I have no doubt the Bill will make life easier for families and children.
I am pleased to welcome the Bill.
It was first introduced by my Labour Party colleague, the former Minister, Mr. Mervyn Taylor, last April and it is a significant step forward in the promotion and protection of children's rights. It is a wide ranging Bill which introduces many new, important and necessary provisions. It is forward-looking legislation which is not afraid to consider what may be needed in the future as regards, for instance, representation for children in court or the taking of evidence. It recognises that the context in which it arises is one of massive social change, not least in the pressures under which families operate. The Bill also considers the rights of fathers, mentioned by many speakers.
It is significant that we debate this Bill in a week in which the terrible plight of a child has come to public attention. We find ourselves unable to resolve or even discuss this matter in a rational fashion. I welcome the Minister for Health and Children's comments in the Dáil yesterday, which were thoughtful and forward-looking, but it will be necessary for us as legislators to grasp the nettle we have avoided until now. We must legislate for difficult cases involving children, where circumstances are not ideal and which parents are unable to handle. That is our role as legislators and I hope that, in the context of modernising our democracy and community, we will be able to put aside the old battles and deal with these complex, tragic and difficult issues in a rational way which does not demean the role of women and does not make any more difficult the decisions they sometimes have to take.
The Bill has a number of wide-ranging powers. Many of us have been lobbied by or have spoken to groups representing unmarried fathers. It is notable how their position has changed — not only are young unmarried or single fathers taking their responsibilities as parents much more seriously, they are enjoying it. This is to be welcomed. There was a time when society thought it was acceptable for a man to father a child and then walk away.
One reason that view has changed is single women have lobbied for a change in their status as unmarried parents. When I hear unmarried fathers express fears about their rights, I cannot help thinking back to a time not long ago when unmarried mothers bore the entire responsibility for children, were often stigmatised by society, cast out by their families and, in many cases, forced to go abroad. To a large extent we should welcome the change in attitude which means that fathers now want a look in, but it is not long ago since we would have asked fathers to take their responsibilities seriously.
Our amendments, which we will discuss tomorrow, attempt to push the boat out further in that regard, attempting to balance the rights and responsibilities of natural fathers. If we give them more responsibility we will send out a strong signal and encourage them not only to do their duty but to experience the great joy of parenthood. As parents, we know this is to the benefit of offspring, even if the father does not remain with the mother of the children.
The Bill recognises, for the first time, that grandparents and other relatives can have access to children but is this change introduced in a balanced fashion? This change should be generally welcomed. Although circumstances have changed, the extended family is still an important source of support for single parents and they have a definite role in the upbringing of children. However, what I mean by a balanced provision is that the rights of parents must come first. I appreciate the efforts made to strike such a balance in the Bill.
This is a fine Bill and I look forward to discussing the amendments with the Minister tomorrow.
It is good to have the opportunity to contribute on this Bill. Although the legislation, from first to last is the work of the former Minister for Equality and Law Reform, Mr. Taylor, I warmly commend this Minister on introducing it to both Houses in its original form. It is another welcome reform of and improvement to the law governing the care and welfare of children.
In the past ten years an entirely new corpus of law has been introduced in the Houses of the Oireachtas dealing with the care and welfare of children. We now recognise that the abuse of children is a major phenomenon in society. While it is difficult to legislate directly against abuse, we can at least put the legal framework in place to ensure, in so far as any statute can, adequate levels of care and welfare of children who are vulnerable or endangered as a result of abuse. The Parliament and the country have measured up well to that problem.
Undoubtedly, the abuse of children is one of the major issues of our time. This will remain the case well into the new millennium. Not a day goes by but we read reports of what happened to children in the care of people who were trusted to educate them and provide them with health care. These people often behaved like monsters, destroying the normal development and lives of thousands of children. This was taking place up to 40 years ago but it was not discussed or addressed. However, the victims of these awful deeds of abuse are now coming forward and speaking out about what happened to them. The result is that judicial punishment is being applied to the perpetrators.
I congratulate the courts on the firm approach they are taking to such offenders, lay or otherwise, who usually receive punishments which fit their crimes. I am glad the length of time which has elapsed since the committal of the crimes against children or the age of the offender is not used as extenuating circumstances to lighten the sanction applied or allow the offenders go free. A good sign of our times is that the wall and conspiracy of silence which often surrounded cases of child abuse in the past is breaking down. People are coming forward and reporting child abuse. Those who were given special privilege because of their position and who so often abused it, can no longer feel safe and immune from the law whether they wear a business suit or a clerical cassock.
If one wants to place a value on the worth of a society, a major test is how it looks after its children. The world is full of societies which fail that test. Children suffer terribly in developing countries distressed by debt, food shortages, poor health services and few resources for education. The number of children who die in the first year of life in poor and developing countries because they did not have access to the most elementary health care, such as a measles prevention injection or simple treatment for diarrhoea, is appalling. The number of children in developing countries who die in the first five years because they do not have access to clean safe water is equally appalling. The number of children, particularly girls, in the developing world who have little or no access to even the most elementary primary education is a scandal.
The United Nations' annual publication, The State of the World's Children, is an excellent commentary on a yearly and country by country basis of the position of the world's children. It is also backed up by excellent statistics, showing how key indicators in countries are improving or disimproving. In comparison Ireland is among the best in the world in the report in terms of the key indicators of child mortality, access to proper health care and education. However, the state of Ireland's children in 1997, while bearing no relation to what happens to so many children in the developing world and countries which call themselves developed, such as China, is not everything we would wish.
The vast majority of children in Ireland enjoy the protection of a stable parental and home situation. Most children have access to excellent education and health care services. However, that is not the case for a minority. While I have no statistics to prove my point, I am satisfied that excluded minority is growing. The shocking case of a 13 year old girl who is pregnant as a result of rape is dominating the news today. The child at the centre of this dreadful tragedy is, according to media reports, the victim of unacceptable economic and social conditions. Ireland in 1997 has produced the atrocious conditions in which that young girl and her family of ten other children and parents live at the side of the road. Despite the country's prosperity and the roaring Celtic tiger, this problem has not been adequately addressed. The girl is a product of the environment in which she was reared.
She is in the care of the Eastern Health Board on foot of an order made in the courts. I understand she may be removed from its care today so that her parents can make a heartrending decision for her. If she is returned to her parents, the State agency will be let off the hook but that is not good enough. Under the Child Care Act, health boards are given unclear instructions regarding cases involving children in care. The board must always act in the best interest of the child. They are fine words but they are much too vague in tragic, complex and controversial cases such as this one. The health board has no option but to resort to the courts for a decision. However, the courts, which often have an intimidatory and combative atmosphere, are the last place in which such cases should be aired for a decision. The law must be clarified so that when State agencies face extremely difficult dilemmas, such as the current case, they can rely on more than a well meaning but vague line in relevant legislation.
This year in Ireland there is also the unacceptable phenomenon of child prostitution. The Eastern Health Board recently produced a report on this in its area, principally in Dublin city. It is extraordinary that young children, boys and girls between the ages of 13 and 18 years, are involved in prostitution on the streets of Dublin. Something must be done about this matter.
From the explanatory memorandum, one of the main features of the Bill is that it allows a father who is not married to the mother of his child to be appointed guardian of the child by agreement with the mother without the need to go to court, which is the current position. I was in the Seanad in 1986 when the then Minister of State, Nuala Fennell, introduced a Child Care Bill which became the Child Care Act, 1987. Until then a father had no right of guardianship.
Debate adjourned.