Amendments Nos. 1, 2, 3, 4 and 5 are related and may be discussed together by agreement.
Children Bill, 1997: Committee and Remaining Stages.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (2), lines 31 and 32, to delete "20, 21, 22, 26, 28 and 29" and substitute "26 and 28".
Amendments Nos. 1 to 5, but specifically amendment No. 5, seek to put an 18 months time limit on the bringing into operation of regulations under the Bill in order to concentrate the minds of the Department and the Minister on the question of resources. Yesterday we said this was a substantial Bill and it will place pressure on various agencies which will be required to take up the additional responsibilities given to them. We want to ensure that the Bill is implemented as quickly as possible and I do not think an 18 month time limit is stretching the resources of agencies. For example, the Welfare and Probation Service of the Department of Justice, Equality and Law Reform, which was originally related to criminal cases, has been given a substantially increased workload over the past number of years. Since this Bill will further increase that workload the question of resources arises.
I look forward to the Minister's response regarding a time limit on bringing the Bill into operation. What is the point in legislation if it is not brought into force? For example, the regulations made under the Child Care Act which dealt with pre-schools, nurseries and crèches and in which I have a particular interest, did not come into operation for some years after passage of the Bill. This is a bad habit and we must draw a line in the sand. That is the object of this amendment and I commend it to the House.
I support Senator O'Meara.
Amendments Nos. 1 to 4 are cosmetic in that they tidy up drafting arrangements. However, amendment No. 5 is simple, short but very important. It makes provision for the definite implementation of the sections referred to. There was much criticism of previous child care legislation by the various agencies involved in child care because sufficient resources were not provided and the legislation was not implemented until an extended period of time had elapsed. We are making a mockery of legislation if we do not give a specific commitment to implement it within a timeframe and to provide the resources for doing so. This is an important amendment and I hope the Minister of State will accept it.
I support the amendment. It is a great pity this important section of the Bill cannot be implemented immediately. There are major problems with the Probation and Welfare Service but those problems have existed for a long time. The Minister should have recognised them and taken steps to provide the necessary resources for this service while the legislation was being drafted. The Minister is seeking to leave implementation of this legislation open ended. That will result in a major section of the Guardianship of Infants Act, 1964 being put in abeyance because that legislation is affected by this Bill. Recruitment of additional personnel and so forth will be necessary but 18 months is a lengthy period of time in which to implement this section. I cannot see why the Minister of State would not accept the amendment.
Section 11 inserts 12 new sections, sections 19 to 30, into the Guardianship of Infants Act, 1964. Section 1 of the Children Bill, 1997 makes the operation of those new sections the subject of a commencement order or orders. On the basis of ministerial amendments agreed in the Dáil, new sections 19, 23, 24, 25, 27 and 30 will not be subject to a commencement order and will come into operation one month after the passing of this Bill.
Amendment Nos. 1, 2, 3 and 4 provide for the provisions relating to counselling, mediation and certain provisions relating to the evidence of children coming into effect one month after the passing of the Bill. Amendment No. 5 proposes that other provisions in section 11 and Part III be brought into effect not later than 18 months after the passing of the Bill. The provisions being introduced by section 11 which relate to mediation and counselling, social reports and guardian ad litem will require consultation with the Probation and Welfare Service, health boards, the Family Mediation Service, the Department of Social, Community and Family Affairs and the Department of Finance. It is only following such consultation that the provisions can be brought successfully into effect.
A matter of particular concern to myself and the Minister is that section 47 of the Family Law Act, 1995, which gives the Circuit Court the power to order social reports in family law proceedings, although brought into effect in August 1996 by a commencement order was not matched with the necessary resources for the Probation and Welfare Service and the health boards. That section was extended to divorce proceedings by the Family Law (Divorce) Act, 1996 which came into effect in February 1997. It is the Department's intention to use any additional funding that might be provided in 1998 to enable the Probation and Welfare Service to provide a service to the courts to meet the needs of family law legislation. Recruitment of the professional staff concerned will inevitably take time and it will be essential initially to address immediate needs under the 1995 and the 1996 legislation and then to address needs under provisions of the Children Bill.
Additional demands placed on mediation services and, indirectly, counselling services will also have to be assessed. The reality is that without proper resources the new provisions of the Bill cannot be operated. The commencement provision in section 1 is essential to allow time to properly fund and to recruit the necessary staff. In effect, it takes into account the responsibilities which already exist in relation to both the 1995 and the 1996 Acts.
For these reasons I cannot accept the amendments.
I am disappointed with the Minister of State's response. Eighteen months is not an unreasonable period of time. If we had proposed six months the response might have been reasonable but 18 months is a lengthy period considering the importance of this legislation. We pay lip service in this House and in other fora to the rights of children and the need to put resources in place to care for them. This morning we talked about the tragic case of one child and I wonder to what extent more of these tragedies are happening. I accept the Minister of State's comments about resources, staffing and so forth but 18 months is not an unreasonable time in which to remedy these problems. I cannot accept the Minister of State's response.
I agree with Senator O'Meara. Will the Minister outline what is needed in terms of staff in the Probation and Welfare Service and in the health boards? A period of 18 months to put the various pieces in place for the operation of this Bill appears to be sufficient. An open ended period for implementation is being sought. How long is envisaged? Are two, three, four years or longer required before everything is ready? What exactly needs to be done in terms of personnel? Where are the personnel shortages? The Minister of State might also explain why it will take so long to put everything in place.
Today we were told £40 million will be invested in the health services. That is good but I am sure the Minister for Finance, in these times of buoyant Exchequer returns, will be able to provide the Minister with additional resources for 1998. The Minister should be fighting for those additional funds in Cabinet. What amount of additional funds will be necessary to operate this legislation in a full year when the necessary trained personnel are in place?
I am seriously disappointed with the Minister of State's response. She has not indicated a timescale for the consultation process with the various agencies involved. What time is required for such consultation? What is the purpose of introducing this legislation if the Minister of State has no concept of when it will be implemented? She has given no indication of the amount of resources that will be required. Is there an obstacle in that regard? Has she consulted the Minister for Health and Children in this respect? Will some of the funding which was announced last night be available for the consultation process with the relevant agencies?
It is highly unsatisfactory that, in the process of enacting legislation, we are not given any precise information by the Minister of State. She is reserving to herself total responsibility for the timescale under which she will operate and the amount of resources that will be allocated without having to refer back to the Oireachtas. In years to come we could find sections of the legislation have not been implemented and we will have been at fault. We have a responsibility to demand a specific response on the timeframe for implementation. We have suggested a generous period of 18 months. The Minister of State should describe the obstacles she envisages and say why she cannot give a specific response at this time.
I appreciate the sincerity and concern of my colleagues on the other side of the House. The problem of resources is a general one. It is ironic to note that the outgoing Government, during a span of in excess of two years in office, provided and planned no funding whatsoever for the mediation, counselling and probation services advocated by the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996.
It would be unfair and impractical to ask the Minister of State to provide definitive answers at this stage as to what exactly the sources of funding are and to restrict her to a particular timescale. The most pressing matter for us is that this Bill, which is broadly acknowledged and accepted by the House as being a step forward, should proceed. While I understand the relevance and importance of the questions asked, we should not become bogged down on these particular issues. It should be clearly noted that the previous Government, when faced with a similar situation, did not provide for any funding, although our economy has been buoyant for the past five or six years.
While I understand their concerns, I ask my colleagues to accept the Minister's and the Minister of State's commitment to this Bill and to the provision of resources as soon as is practicable. It is not practical, in my view, having regard to the workings of Government, to tie a Minister into a specified timeframe and to seek hard commitments.
I concur with Senator O'Donovan. It must be accepted that the Government's commitment is clear and unambiguous in relation to the welfare of children. The fact that a Minister has been named as having specific responsibility for children is, in itself, a definitive and clear statement of commitment.
I was a member of the legislative committee which processed the legislation referred to by Senator O'Donovan. Time and again the need for resources was raised, resources which are now being discussed as essential. At no time — although I stand to be corrected if I am in error — was it suggested to the then Minister for Equality and Law Reform, Mr. Taylor, that the legislation should not have been introduced at all as he did not have all the required resources available to him. It was acknowledged that the aspects of the Bill which were laudable, essential, vital and urgent were welcome and should have been introduced at an even earlier stage. I would borrow that argument in the context of the present Bill.
I commend the Minister of State and her colleague, Minister O'Donoghue, for bringing forward the Bill at this time even if the resources referred to in these amendments are not available at this time. I commend the Minister of State for her caution in ensuring that she provides herself and her Department with the necessary flexibility to ensure the adequate and proper professional provision of the disciplines referred to. It is all very well to say that a finite period — 18 months — is adequate to recruit and train people or to identify the level of resources needed to bring sections of the Bill fully into operation. I remind my colleagues that all too often in the past controversial situations have arisen in the very delicate area of the care and welfare of children as it was deemed that resources were inadequate or misplaced. I urge caution in this matter.
I am disappointed that my colleagues on the other side of the House seem to be criticising the Minister for introducing this Bill at all given that all the required resources were not available. It appears that they do not want to accept any of the provisions of the Bill. That is the logical extension of their argument as I see it.
It is not the logical extension of the argument. We merely want to know what is the commencement date for the introduction of these measures.
Perhaps there is a logic in their argument on which my colleagues will enlighten me. They seem to want all or nothing in relation to the Bill. We should run with what we have at the moment, namely, what the Minister of State and the Minister have deemed will be in operation one month after the enactment of the Bill. We will continue to urge the Minister and the Minister of State to come forward with all the required professional resources at the earliest possible date to ensure the full implementation of the Bill.
We must be realistic in Government. During my time in Opposition when the Family Law Act and the Family Law (Divorce) Act were before the House, I recall questioning the then Government about funding. That Government seemed to adopt the notion that it could keep its head down, keep going and not worry about funding.
That is what is happening now in this Children Bill.
No staff was provided by the outgoing Government in the area of family law. We are not fools; we all know that the Family Law Act and the Family Law (Divorce) Act, which have been in operation for the past 12 months, have a huge impact on the services we are discussing. The previous Government, when introducing the legislation, provided no resources at all for that. We must redress the issue and make up for the mistakes made.
Surely it is possible to do that within 18 months.
We will provide resources at the earliest possible date to deal with the 1995 and 1996 Acts for which no resources were provided. As regards any additional funding which may be provided in 1998, it is the Department's intention to enable the Probation and Welfare Service to provide a service to the courts to meet the needs of family law legislation. We must examine that issue.
Senator Connor referred to recruitment of professional staff; that will inevitably take time. It will initially be essential to address the 1995 and 1996 Acts. The Senator also asked about the length of time it would take to provide resources. We are not necessarily saying it will take longer than 18 months; it may take less. The issue of resources will be addressed at the earliest moment.
Marriage counselling and mediation services are now being dealt with by the Department of Social, Community and Family Affairs. That Department must address that issue in its Estimates. We must be realistic; there is no point pretending there is not a resource implication for people involved in the marriage counselling and mediation services.
We have thought about all the Minister of State has said. I would never question her personal commitment to ensuring that the necessary resources will be put in place. She spoke about being in Opposition herself; we are all aware of what happens when open ended situations occur. I gave an example of what happened in other Bills which were left open ended. Deputies and Senators will continue to ask the Minister when certain sections will be implemented and when the necessary resources will be made available. It seems that a bad practice has built up in this area.
We are not asking for something unreasonable; 18 months is not an unreasonable period. We are aware of the professionalism of the Department of Justice, Equality and Law Reform, the ability of its officials and the ability of those working in State agencies. The 18 month date would draw a necessary line in the sand. If a timescale of 18 months was indicated we would be in a position to accept what the Minister said. However, given what we are trying to achieve, not only in relation to this Bill but in terms of the principle which must be laid down, the other legislation which will arise, and the people we are trying to protect, we must press the amendment.
Question put: "That the figures and words proposed to be deleted stand."
The Committee divided: Tá, 25; Níl, 19.
Tá
- Bohan, Eddie.
- Callanan, Peter.
- Cassidy, Donie.
- Chambers, Frank.
- Cox, Margaret.
- Dardis, John.
- Farrell, Willie.
- Fitzgerald, Liam.
- Fitzgerald, Tom.
- Gibbons, Jim.
- Glynn, Camillus.
- Keogh, Helen.
- Kett, Tony.
- Kiely, Rory.
- Lanigan, Mick.
- Leonard, Ann.
- Lydon, Don.
- McGowan, Patrick.
- O'Donovan, Denis.
- Ó Murchú, Labhrás.
- Ormonde, Ann.
- Quill, Mairín.
- Walsh, Jim.
Níl
- Burke, Paddy.
- Caffrey, Ernie.
- Connor, John.
- Coogan, Fintan.
- Cosgrave, Liam T.
- Costello, Joe.
- Cregan, Denis (Dino).
- Doyle, Avril.
- Hayes, Tom.
- Henry, Mary.
- Manning, Maurice.
- Norris, David.
- O'Dowd, Fergus.
- O'Meara, Kathleen.
- O'Toole, Joe.
- Quinn, Feargal.
- Ross, Shane.
- Ryan, Brendan.
- Taylor-Quinn, Madeleine.
Tellers: Tá, Senators T. Fitzgerald and Keogh; Níl, Senators Costello and O'Meara.
Question declared carried.
Amendment declared lost.
Amendments Nos. 2 to 5, inclusive, not moved.
Amendments Nos. 6, 7 and 8 are to be taken together by agreement. Amendments Nos. 6 and 7 are related, and amendment No. 8 is an alternative to amendment No. 7.
Government amendment No. 6:
In page 4, subsection (5), line 5, after "Act of 1964" to insert "(as amended by the Succession Act, 1965, the Courts Act, 1981, the Age of Majority Act, 1985, the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, the Child Care Act, 1991, and the Courts Act, 1991)".
Amendments Nos. 6, 7 and 8 are technical drafting amendments. Amendment No. 6 expands the collective citation in section 1(5) to make clear that the Guardianship of Infants Act, 1964, has been amended by various Acts, namely the Succession Act, 1965, the Courts Act, 1981, the Age of Majority Act, 1985, the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, the Child Care Act, 1991, and the Courts Act, 1991.
The effect of amendments Nos. 6, 7 and 8 is to substitute the collective citation of Guardianship of Children Acts, 1964 to 1997 for the Guardianship of Infants Acts, 1964 and 1997. The amendments reflect modern terminology and are in line with the intention of section 12 of the Bill. I thank Senators for raising this matter.
I thank the Minister.
Amendment agreed to.
Government amendment No. 7:
In page 4, subsection (5), line 6, to delete "Guardianship of Infants Acts, 1964 and 1997” and substitute “Guardianship of Children Acts, 1964 to 1997”.
Amendment agreed to.
Amendment No. 8 not moved.
Section 1, as amended, agreed to.
Sections 2 to 4, inclusive, agreed to.
NEW SECTION.
Acting Chairman
Amendments Nos. 9, 10 and 11 are related, and are to be discussed together by agreement.
I move amendment No. 9:
In page 6, before section 5, to insert the following new section:
"5.—The Act of 1964 is hereby amended by the insertion of the following section:
‘2A.—In relation to cases to which section 2(4) would have applied but for the fact that the mother has withheld her consent, the court may order her to do so if it decides it was unreasonably withheld.'.".
The purpose of this amendment is to strengthen the role of the father. There is a presumption in law that the role of the mother is greater, and there is an opportunity here to strengthen the position of the father. This Bill is a step forward in that it provides for a father to be granted guardianship by agreement; before this Bill he had to go to court. The mother may withhold her consent for perhaps vexatious or vindictive reasons.
The insertion of this section will ensure the court will have an opportunity to examine the mother's reasons for opposing an application for guardianship by the father if they are unmarried. Such a measure would be proper in such cases so justice would be done and the rights of the natural father would be fully vindicated. The courts should have the power to examine in detail any objections raised by the mother and to grant guardianship in such cases. We are trying to reinforce the natural right of the father who should have the right to guardianship and to have custody of his child if he so desires. The law should not give a superior right to the mother. Although we acknowledge the progress which has been made, we request that this section be inserted to strengthen the arguments we made.
Amendment No. 10, which relates to amendment No. 9, states:
In page 7, to delete lines 11 to 18 and substitute the following:
"(1) Where the father and mother of a child have not married each other and have not made a declaration under section 2(4), the court shall, by order, appoint the father to be a guardian of the child unless there are compelling reasons, affecting the child's best interests, for not doing so.", and".
It is appropriate to appreciate the natural centrality of the father. The legislation, to some degree, marginalises the father and makes certain assumptions and preconceptions about the role of the father and his natural entitlement to be a guardian as opposed to the natural entitlement of the mother to be one. That seems to be discriminatory.
I would like to put on record words from John Waters in a column in The Irish Times on 13 May 1997 which address the problem specifically. He refers to the Bill introduced in April by the former Minister for Equality and Law Reform, Mervyn Taylor, which is almost identical to this legislation.
The Children's Act, 1987, in Mr. Taylor's words, allowed a father who is not married to the mother of his child or children to apply "to the courts be appointed as a guardian if he so wished". In this phrasing resides a clue to the nature of the culture pertaining to the legal rights of fathers and their children, and to the tactics of Meryvn Taylor in seeking to maintain that culture.
I distance myself from that criticism of Mervyn Taylor who was a deeply committed reforming spirit and a humane and decent man.
Even if he did not have the resources.
This will require no additional resources. I know this Minister is intelligent because I worked with her on the Joint Committee on Women's Rights in recent years and I do not underestimate her political acumen and knowledge of the way in which this House works. I would be surprised if she raised that matter because it would not be appropriate nor would it succeed.
Mr. Waters continued by saying:
The implication of the wording is that a father may or may not wish to apply for guardianship of his children, which in turn is based on a deeply prejudiced view of unmarried fathers, presupposing reluctance, recalcitrance and general fecklessness.
This may be true in some cases, but it represents a gross defamation of the generality of such fathers. The problem is that, because this thinking forms the cornerstone of both the culture and the laws and legal processes deriving from that culture, it governs every relationship between an unmarried father and his child that comes up for judgment.
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.
That is wrong. We are talking about a cultural shift in our society. I ask the Minister to accept and endorse that shift and to encourage fathers to take a more responsible view. There is no question but that they are already beginning to do so because the evidence is all around us. Rather than inhibit this development, the Minister should endorse and encourage it.
I have no amour propre about the wording which was suggested to me by Parental Equality lobbyists but I would be grateful if the Minister accepted the principle. Government amendments have been tabled so there can be no concealed reasons for not accepting amendments. The Government has already amended the legislation in this House so the door is open to amendments. I would welcome the endorsement of the work of Parental Equality and an encouragement to fathers to continue to develop their sense of responsibility as natural fathers.
I support Senator Norris's amendment. He spoke from the heart in outlining his concerns and in hoping the Minister will consider the substance of the amendment, although there may be technical difficulties. I was jolted by the fact that there are 12,000 births outside marriage each year and yet only 700 unmarried fathers apply for guardianship. That is an enormous disparity which we should aim to reduce. It would be desirable if unmarried fathers accepted their obligations to the children they fathered and this should be encouraged by the State. Senator Norris is attempting to encourage that and underpin in it law. In that context, Senator Norris's amendment is a move in the right direction.
If an unmarried father accepts obligations to his child, then he should be entitled to automatic guardianship. I welcome the provision in the legislation which gives a father guardianship without going to court if the mother agrees. The right to guardianship does not arise solely because of the wishes of the mother. It should arise from a combination of factors: the biological fact of fatherhood combined with acceptance by the father of his obligations. If both those factors are evident, then guardianship should be automatic. This amendment attempts to put that in place. I hope the Minister will consider the amendment and explain any difficulties which may arise.
These are important amendments which will have a direct effect on the lives and experiences of people, particularly natural fathers. Our amendment, which is related to the others, attempts to include a presumption in favour of joint guardianship. I echo remarks made by colleagues on this side of the House. This legislation will send an important signal.
In the past, legislators, public commentators and others decried unmarried fathers who walked away from their obligations to the mothers of their children. Single mothers were isolated and lived in poverty, often abroad. Happily, we have dealt with these issues but in the process we have given all the support to the single mothers, and quite rightly. We have reached a stage where single fathers, particularly younger men, are taking their responsibilities seriously, which is a good development. I have come across some cases which caused me concern and which these amendments could address. For example, I know a young man in his twenties who became a father as a result of a short relationship. He and his family accepted responsibility. However, the relationship did not end in marriage and the mother left the jurisdiction without his knowledge, taking the child with her. Over the period of a year, he and his parents developed a good relationship with his daughter. He, as the natural father of the child, was left with no comeback or rights. By the time he found out about the mother leaving, it was too late.
This is not the only example of someone who wanted to play a role in his child's upbringing and was unable to do so.
I am anxious to hear the Minister's response to these amendments. I know the Department and the previous Minister for Justice, Equality and Law Reform must have had good reason for limiting the Bill by allowing an unmarried father to be appointed guardianship by agreement with the mother and not including an automatic presumption of joint guardianship.
We oppose the amendments. While I concur with the sentiments of my Opposition colleagues, the paramount importance of this Bill is the interest of the children. I said on Second Stage that society has evolved over the past 20 or 30 years. Legislation has progressed greatly since the Guardianship of Infants Act, 1964, acknowledging trends in society. This Bill is another step in that direction.
We must not forget that statistics show that 12,500 children are born out of marriage annually. In 1996, 700 applications for guardianship by natural fathers were made to the courts. Six per cent of natural fathers were prepared to admit paternity, although I accept what Senator O'Meara said. Of the 700 applications, 400 were by agreement. This Bill recognises that there should be no problem if there is agreement and a simple declaration will suffice. In 90 per cent of these 700 applications, the courts accepted the father should have guardianship.
These statistics are alarming because only a small percentage of fathers are prepared to apply for guardianship. The mother goes through the trauma of pregnancy and birth, but these amendments place the onus on the mother to prove the unsuitability of the father for guardianship. This is wrong. This Bill goes a long way in the right direction, but should go no further. The creation of automatic guardianship for the father might be imprudent, given the statistics.
As Senator O'Meara and Senator Norris said, fathers are right to come forward and admit paternity openly and honourably. Twenty or 30 years ago, a stigma was attached to unmarried parenthood and neither family wanted to know. The legislation should not be changed unless the statistics change substantially and more fathers are willing to apply for guardianship. Ninety per cent of applications are granted, which is a substantial number. The courts are slow to deny a father guardianship and will only do so in the proper circumstances.
I concur with my colleague. On a positive note, I welcome the spirit of the amendments and in a more mature society I would enthusiastically endorse them. I commend fathers who come forward to take responsibility for children born from relationships with partners or ex-partners and this Bill encourages that. However, as Senator O'Donovan said, it goes so far but stops short of what the Opposition propose. There are compelling reasons for not accepting their amendments.
For example, I know a young couple who had a second child. The father was a drug pusher and the mother a drug addict dependent on him. They gave terrible grief to her parents. I frequently tried over a period of four to six months to get the State services to deal with the case effectively and they did their best. It was a case of sheriff and outlaw, with the couple constantly evading the best efforts of the State services. If the principle promoted in these amendments was applied to this case, the mother would not be in a position, emotionally, psychologically or otherwise, to prove her partner——
She was scarcely a guardian herself.
——unsuitable as a guardian.
There are many other cases.
I am sure the Senator will have an opportunity to respond later. There are many other examples where it would be wrong to shift the onus onto the mother. I know of cases where girls became pregnant as a result of ephemeral relationships. The mother only decided in the latter stages of pregnancy or when the child was born that she wanted to be a mother in every respect. The pregnancy in its earlier stages was not a cause of happiness.
From what I understand, many mothers find it difficult to take on the full responsibilities of motherhood immediately. My colleague cited statistics which illustrate that, unfortunately, many fathers have no interest in guardianship or custody, perhaps because it was only a passing relationship. Accepting these amendments would send a very strong signal to such irresponsible fathers that they have a right to guardianship.
Absolutely.
Perhaps I am wrong, but my interpretation, as a non-legal expert, is that such fathers would be told there is a binding obligation on the courts to grant them automatic guardianship unless the mother is emotionally and psychologically fit to come to court——
Every father has a right to natural justice.
The Senator will have an opportunity to tell me I am wrong in a moment.
Acting Chairman
Senator Fitzgerald, without interruption.
The onus will be on the mother to prove in court that the father is not a fit person. That is a dangerous step, particularly in our drug ridden society. Children are often born in circumstances of considerable disadvantage and in which drugs are involved. There may be statistics to disprove what I am saying but I am speaking about my experiences in public service. We should be reticent in promoting what, in other circumstances, would be a very laudable principle because the consequences in such cases could be catastrophic.
While the principle of equality of esteem, status and rights between fathers and mothers is very laudable and one to which we would aspire in most cases, given our long and sad history of irresponsible fathers who either disappear or deny parenthood, we must allow society to evolve a little more before we can enthusiastically grasp that principle.
The Minister, Deputy O'Donoghue, and I met with Parental Equality and Cherish about this issue. Both groups put forward very strong points which we addressed.
Senator Quinn asked for a detailed explanation why we have taken this position. The effect of these amendments is to provide that where an unmarried father applies to the court for guardianship he shall be made a guardian of the child jointly with the mother, unless there are compelling reasons he should not. The general position on guardianship under the current law is that an unmarried father is not automatically a guardian of his child but he may apply to the court under section 6A of the Guardianship of Infants Act, 1964, to become a joint guardian with the mother. Section 6A, as inserted by the Status of Children Act, 1987, provides that where the father and mother of an infant have not married each other the court may, on application of the father, by order appoint him to be a guardian of the infant.
It is important to stress that the court in all its decisions in relation to children must, under section 3 of the 1964 Act, regard the welfare of the child as paramount. In its 1996 report the Constitutional Review Group considered the question of guardianship rights of unmarried fathers. The review group pointed to the fact that a natural father has no personal right in relation to his child which the State is bound to protect under Article 40.3 of the Constitution. It also pointed out that any criticism of the fact that a natural father does not have a constitutionally protected personal right in relation to his child can readily be understood in relation to natural fathers who live in a stable relationship with the natural mother or have an established a relationship with the child. It stated, however, there does not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links.
Senator Quinn referred to the number of children born each year to unmarried parents. The figure in 1996 was 12,500 such births. In that year, as Senator Quinn pointed out, 700 applications were made to the courts by unmarried fathers for guardianship. Senator Liam Fitzgerald made the point that almost 90 per cent of those applications were granted. Some 400 of those 700 applicants were in agreement with the mother.
The statistics are strong evidence of the fact that, in many cases, unmarried fathers are not prepared to take on the responsibility of guardianship for their child. Much of the criticism of the position of unmarried fathers under the current law stems from the common belief that unmarried fathers who apply to the courts to be made joint guardians of their child are discriminated against and that if the mother opposes the application the father has little chance of succeeding. Senators may have some concerns in this regard. In fact, this is not the case. The courts will refuse guardianship to an unmarried father only in cases where the father is clearly unsuitable to be a guardian, given all the facts before the court. The rights of the child are paramount in such decisions. Regardless of whether the mother contests the case, 90 per cent of applications for guardianship are successful.
The effect of the amendments would be to create a presumption in favour of the unmarried father, as Senators O'Donovan and Fitzgerald said, irrespective of the relationship, stable or otherwise, which exists between him and the mother of the child. The mother would then have the onus of displacing or refuting this presumption. Given the very vulnerable position of many unmarried mothers, particularly where they have taken on all the responsibilities in relation to their child, we do not think they should be placed in this position.
As far as it is understood, the law is currently operating in the courts without particular difficulty. There is no need for the fundamental and unnecessary contentious changes proposed in the amendments. Those changes would not only affect applications in the courts but also many situations outside court because unmarried mothers would feel compelled to agree guardianship rather than have to refute a strong presumption in the courts.
The Bill improves the existing position of unmarried fathers and mothers by allowing joint guardianship by agreement without the need to go to court, as is the case at present. It will make our law in this regard broadly similar to that pertaining in the UK.
The new section 11D of the 1964 Act, as proposed to be inserted by section 9 of the Bill, provides that a court, in considering whether to grant guardianship to an unmarried father, must have regard to whether the child's best interest would be served by maintaining personal relationships and direct contact with the father and mother on a regular basis. That provision, which is inspired by the provision in the United Nations Convention on the Rights of the Child, will have a bearing on the practice in the courts in cases where unmarried fathers seek guardianship and the mother is in dispute.
Advances, are being made in the Bill on the position of unmarried fathers and mothers and their children. Those advances are in relation to the parties in stable relationships and to those who are in dispute. The evidence in those very many cases where unmarried fathers do not concern themselves with children suggests that further change in the law is not warranted. I stress, because I know some Members have a concern with regard to this, that the court grants guardianship in 90 per cent of cases even where the mother objects. It is important to recognize this as we put the child first and as we say to the court that all the facts are before it and, based on these facts, it may grant guardianship to the father.
I was very interested in the Minister's reply. I agree that the child is central and the welfare of the child should be the most important consideration but the sense of the amendment proposed by Senator Jackman and Senator Connor is very close in feeling to a briefing document I have which states, "This Bill should provide that mothers cannot unreasonably withhold their consent to the father obtaining guardianship". I am sure it would not be the position of the Minister or of my distinguished senatorial colleagues from Fianna Fáil that the Bill should provide that mothers can unreasonably object.
Amendment 9 is very close to that. It states:
In relation to cases to which section 2(4) would have applied but for the fact that the mother has withheld her consent, the court may order her to do so if it decides it was unreasonably withheld.'.".
What could possibly be wrong with that? If we reject that we are saying that the mother can unreasonably object. Surely this is a nonsense? Why is there resistance to putting something which is so plainly common sense into the Bill unless we believe that women have some God given right, unreasonably, to object? Surely the purpose of this legislation is to introduce reasonableness?
Statistics have been used. Of 12,000 births outside marriage only 700 fathers made application for guardianship. Is the Government really suggesting that there are 11,300 irresponsible fathers every year; that 90 per cent of natural fathers are grossly irresponsible? This is an extremely shocking assertion of heterosexual immaturity. I wonder how you can so dreadfully libel yourselves, gentlemen, in this manner. I shall not explore that because it would lead me into waters that are far too murky, even for me. The phrase "only six per cent owned up" was used. Even in that phrase there is an implication that this is some dirty little deed which must be guiltily acknowledged. I do not believe that 11,300 men out of 12,000 felt that this was some dirty little deed that had to be guiltily acknowledged. The Government underestimates men in this case.
One must listen with respect to public representative such as Senator Liam Fitzgerald who had a long and distinguished career in the Dáil and in local government and who has, undoubtedly through clinics, come in contact with case histories. One listens with respect because these are the human stories that matter. Having accepted his evidence I would interpret it rather differently. He mentioned a tragic incident from his own experience of a mother and father who were both heavily involved in drugs. He indicated that he felt it would be extremely difficult for this mother, in her confused drug induced state, to object to the father being made a guardian with her. There is an automatic assumption that she is fit to be a guardian simply because she is a woman even though, according to Senator Fitzgerald, she is too screwed up to be able to make it into the court. Simply by virtue of her sex she is assumed to be a proper person to be a guardian. I do not accept that. If the mother is automatically assumed to be fit to be a guardian and a barrier is placed before the father we have a situation which is getting perilously close to being unconstitutional, that is, discrimination on the grounds of sex alone. The man is being discriminated against simply because he is male.
Senator Fitzgerald is 100 per cent right when he says that if we accept these amendments — with which he is generally speaking in agreement but heterosexual men have not yet reached that state of maturity where it would be appropriate, which would be very regrettable if it were true — we would be sending a signal to many irresponsible fathers. Good, let us send them the signal that I would anticipate this Government wants to send them — that we expect men to be responsible. What we are saying is that it is in the nature of men to be grossly irresponsible and have hit and run sexual collisions and disappear off as fast as they can. This is what we expect; this is man's nature, there is nothing we can do about it and if we look to men to be responsible we will only be sending them a signal. I would like to increase the level of heterosexual responsibility in this country. I would regard this as a very important achievement if I was able to do it. I am surprised that Senator Fitzgerald feels that this should not be done.
Reference was made to the burden placed on women who might have a medical, psychological or other difficulty in appearing in court. If they are not fit to appear in court how can they be fit to be guardians? Guardianship is a legal responsibility. How can they exercise this responsibility if so many of them are in this awful state. I am sure that the Minister, having worked on the Joint Committee on Women's Rights, will understand that this is a situation that women very frequently put forward. The majority of people do not like going to court. They are unlike me. I am a man of extremely litigious nature. I love going to court. If anyone says to me "if you repeat that, I'll see you in court", I say "next Tuesday, 11.30. I'll get my solicitor to accept service". I love it. It is an entertainment. It is the purest form of theatre. There is one performance only and there are real stakes at issue. I adore it but most people do not.
I frequently hear women in, for example, rape cases say that they are reluctant to go to court for very real, human reasons. This is true of men as well particularly if they are as immature as Senator Fitzgerald says. He is shaking his head but he cannot have them mature when it suits him and immature when it does not. He will confuse the poor creatures if he keeps changing his mind about the level of their maturity. For quite a large proportion of men the nuisance, the fear or the perceived expense present a barrier.
In the recent referendum a pathetic number of people sought to inform themselves. If any kind of barrier is placed before the mass of people many of them will not take the trouble to do anything about it. We should encourage men to take responsibility. This would only be for the good of society. A court would still decide if it was not in the interest of the child but a mother could not, simply by virtue of her sex, unreasonably oppose guardianship. I appeal for reason to prevail in the interest of the child, the father and, ultimately, the mother.
I agree with the comments Senator Norris delivered with tremendous eloquence. The Minister stated that our amendment would create a presumption in favour of the father. If we want to create any presumption it is one of absolute equality. Article 9.3 of the United Nations Convention on the Rights of the Child 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.
We are attempting to ensure that this principle, among others, is implemented to the optimum extent. This amendment provides that a court may order a mother to grant consent if it decides that it was unreasonably withheld. The decision of the mother to withhold consent could be scrutinised by and decided on by the court.
The Minister of State pointed out that in 90 per cent of cases, guardianship is granted by the courts. However, it is not granted in 10 per cent of cases where fathers are regarded as being unsuitable. What constitutes unsuitability? Will the Minister of State indicate a number of typical reasons guardianship is refused on the basis that the father is attempting to become guardian by court action?
The figures indicated by the Minister of State were debated in the Dáil when it considered this legislation. I dispute the use of the figure of 700 applications for guardianship as evidence that in 1996 only this number of fathers was interested in applying for guardianship. Many single fathers in informal situations are probably unaware that they need to go to court. Even if the relationship with the mother continues, they see an informal situation as sufficient on the basis that they see their child at weekends and fulfil their responsibilities, for example, by taking their child to school.
I know of a couple with a child who are no longer involved in a relationship. No application was made for guardianship but the couple have a regular arrangement whereby the father sees his child, who is now going to school, on a regular basis. They get on well, but the father has not applied to a court for guardianship. That does not make him any less of a father, although it does not give him any rights. I am concerned about the number of people who are unaware of the dangers inherent in an informal relationship.
The Minister of State referred to the constitutional rights of natural fathers. We do not seek a constitutional amendment on this issue. We are asking for the inclusion of the presumption of joint guardianship. I am reliably informed by legal sources that guardianship does not confer any automatic right of custody or access. We do not propose to give an irresponsible individual who may abuse a child automatic right to enter a house, take a child away or whatever.
The Minister of State mentioned the child's best interests. The amendment will not pose a threat because other avenues are open to anybody who considers that the child's best interests are not being taken into account.
Much reference has been rightly made to the rights of fathers. However, let us not create a situation where mothers are seen as the enemies of single fathers. While this is not the time to debate how mothers have taken responsibility for children, we should welcome the considerable and growing number of natural fathers who are interested in their children, who wish to take responsibility for them, who want to do the best thing for them and who want a good relationship with them. This must surely be in the child's best interests.
I accept the points which Cherish will make to the Minister of State. A fear may arise from past experience that this measure may go too far. However, this is not the case. Senator Liam Fitzgerald said that we need to be more mature. This is an important amendment in furthering that process because of the signal it sends to single fathers that we want them to assume their responsibilities. It is important that we signal to them that they do not have to go to court to uphold that automatic right. We are not saying that the door is closed until they open it, rather that the door is open until they behave in such a way that it has to be closed to them. It is important to make that distinction.
I support Senator Norris in his attempts to improve heterosexual responsibility. On Second Stage I said that there may be less grief for fathers if they planned for fatherhood, rather than allowing for the haphazard arrival of some children.
The figures indicated by the Minster of Sate regarding the few number of fathers interested in the welfare of their children are taken from the small number who apply for guardianship. Many could view this as a reluctance not to go to court. It could also indicate a lack of knowledge of the formalities required to become involved in guardianship.
Does the Minister of State have information on the number of men who put their names on the birth certificates of children born outside marriage? This would be useful because we have always encouraged men to recognise the existence of their children in this way. It means an enormous amount to the child.
We can all produce anecdotal evidence in both directions. Some of the saddest situations arise where people feel that they have a stable relationship, a child is conceived and the mother is deserted by the male partner because he had not planned on becoming part of a family. By contrast, a man on finding that his girlfriend is pregnant may be enthusiastic about starting family life with her only to find that she is uninterested in marriage, thus depriving him of access to a child he is anxious to support.
Could the Minister of State not come some way on this issue? We are all agreed that, for the benefit of the child, the father should assume responsibility for his child. Cherish has always promoted this. The one parent family is not an easy situation for children. It is easier if they have access to both parents, unless there are compelling circumstances otherwise. Perhaps it would be possible to go a little further to encourage the involvement of men.
What underlies the development of the argument on the principle of equality is the belief that the absence of that equality in law obstructs what should be the natural development of the bond between father and child. I have not come across any such cases. It is also an assumption that because the Minister is cautious in taking that extra step at this time, it will send the wrong signal to the biological father. I do not agree. I concur with Senators that an increasing number of fathers are taking responsibility for their children. This is encouraging and a signal of maturity in our society. Nevertheless, a significant number of fathers do not take on this responsibility. I do not believe that legislation to bestow such responsibility on fathers would be effective. I do not agree with Senator Norris that bestowing such a responsibility would send out a positive signal. Given that there are fathers who have children outside of marriage and run away from their responsibilities, I would assert they would take this action in a negative rather than a positive way. I subscribe to the principle of equality as being very laudable, nevertheless, equality between father and mother must take second place to the primacy of the welfare of the child.
Though I agree with much of what has been said in this House, I am not satisfied that sufficient evidence has been put forward by the Opposition, nor have I found sufficient evidence in my work as a politician, to suggest I plead with the Minister to take an extra step in this matter at this time. If I am to be accused of labelling certain fathers as reckless and irresponsible, so be it. Equally I would balance my opinion by saying it is heartening to find an increasing number of fathers are coming forward and taking paternal responsibility. I repeat, I do not find in such cases the absence of legislation to enshrine equality in law inhibits or obstructs them in allowing their natural paternal instincts to come to the fore.
I know the Minister of State is aware that what we are trying to do is ensure fairness in this legislation. I am concerned about the father who has met his obligations, has an acrimonious dispute with the mother and finds he does not have an automatic right to guardianship. We do not want to get into the rights and wrongs of the split up between both parents, but it seems to me that the mother would be unlikely to give consent in that case and the father must go to court to get guardianship. That should not be necessary in a simple and non-controversial case. In the event of a breakdown, a father who has up to that point met his obligations should have an automatic right to guardianship. Guardianship should not become a bargaining point in the aftermath of a breakdown. Except in exceptional circumstances, guardianship should continue to be enjoyed by both parents.
Similar concerns were expressed during the debate on the Freedom of Information Bill and the Cabinet Confidentiality Bill. During the debate on the Freedom of Information Bill the point was made that everything was secret unless a case could be argued to make it open. The Freedom of Information Bill changed that attitude and said everything is open unless a case can be made for it to be secret. The Minister should give serious consideration to making guardianship "automatic unless..." rather than the other way round. In this case guardianship seems to be "not automatic unless..". The Bill as worded puts the onus on the father to make a case for guardianship. Here I am talking about a father who has met his obligations and finds himself making a case to be allowed guardianship. I believe such a father should not have to make a case for guardianship. We are attempting to ensure that the legislation is fair to those who have met their obligations and continue to do so.
The children must be of paramount importance. This Bill recognises that a father outside of marriage who wants to take responsibility for his child must be allowed to do so. Under the legislation grandparents and other family members are also encouraged to take an interest in the child. This is a welcome step. At all times a father can make a simple application for guardianship to the court. Currently a very small percentage of fathers make application for guardianship to the courts. There is a very simple method of doing so. In excess of 90 per cent of such applications the father is successful. In cases where there is an acrimonious dispute there is a procedure by way of statutory declaration whereby both parents, having agreed the child is theirs, can make a simple application to the court and this is recognised. Historical and statistical facts regarding natural fathers have not been very encouraging, much to their shame as men.
The automatic right of fathers to guardianship would create more problems than it would solve. The reality is that a huge percentage of natural fathers do not want to live up to their responsibilities. Should we give a huge percentage of insincere natural fathers, who have no interest in maintaining the child or the child's mother, automatic guardianship? We know from experience that when financial support from the State is sought in most cases the natural father cannot be found. In my view it would be a retrograde step at this juncture to give automatic guardianship to the natural father. I do not wish to take that extra step which would create more problems than it would solve. The reality is that there is a very simple method of applying for guardianship to the courts.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
I know there is a history to the relative rights of mothers and fathers and we have learned a little in the past ten years. Society must begin to send explicit signals at this stage that the choice of single parenthood is not equivalent to the presence of two parents in the rearing of children. There is a fashion in western society which suggests that having one parent is equivalent to having two. While the necessities of life may dictate that only one parent may be present to rear a child, we should not accept it is as being the same as both parents being present. The degree to which legislation has unintentionally excluded men from the rights and responsibilities of guardianship has, perhaps, made that choice too easy. That is one reason it is now time for a review of the legal framework so that the unmarried father of a child is presumed to have guardianship rights unless there are reasons it should be otherwise.
I do not accept some of the statistical arguments. Recourse to the courts is something most citizens avoid as much as possible. The argument that only a small number of men seek guardianship is more a commentary on our legal process than on the wishes of men.
Many unmarried couples make presumptions about the guardianship of children and operate a situation where they are de facto joint guardians although there may be no legal basis for that. While the Status of Children Act endeavours to sort out matters such as inheritance and pension rights, the peculiar position on the guardianship rights of fathers is unsatisfactory. I strongly resist the idea of children being anyone's property, and I have no time for a legal framework which describes children as the chattels of a couple. Society must assert that children ideally need two parents. The sharing involved makes the rearing of children more positive and reduces the strain of the dull routine of caring for them. The involvement of two people introduces two styles of personality and two equal but different gender roles.
The difficulty of establishing the right of a father to be a guardian, introduced with the intention of protecting mothers from unpleasant men, is now in danger of becoming a hindrance to a proper environment in which a child can grow up. A child may be fathered by a brutish husband, and there are as many of them as there are brutish unmarried fathers. There is no reason to believe that, because a couple is married, the father will be more sensitive, committed or caring than a man who is not married.
Why are we prepared to give unqualified rights of guardianship to married fathers, irrespective of their behaviour before or after the child is born, and not even countenance movement towards similar rights for unmarried fathers? I do not understand why that is so. I agree that where a man is behaving badly or unreasonably or has a record of violence, it should be a relatively straightforward procedure for the mother to ensure he does not have guardianship of a child. The difficulty and dilemma is the assertion that a father does not have guardianship rights until he seeks and goes through a procedure of interrogation. I do not understand how we can accept the biological fact of fatherhood and, at the same time, assume a father must start from a presumption of unreliability and irresponsibility. I accept fathers have a record of considerable irresponsibility and this is not something of which men as a group can be very proud. However, I am not sure the correct solution to that is to make it so difficult to establish guardianship that, where there is disagreement, an elaborate court procedure must be gone through.
In the case of a separated couple where the wife has a child by another man, what is the legal status of her separated husband vis-à-vis the guardianship of that child, given that the couple are married? This question relates to the philosophical basis of the assumption that men should have to claim guardianship rather than be denied it. If we give any credence to the possible guardianship rights of a man who is married to a woman but is not the father of her child, then we are talking about the legalities of marriage rather than the rights of the child. That is not a good reason to deny fathers the presumption of the right of guardianship because it is not about the rights of the child but the status of the legal marriage contract.
Senator Connor raised the suitability of the unmarried father for guardianship. I accept Senator Ryan's point with regard to married fathers. However, when talking about unmarried fathers, we are discussing a range of people from loving, attentive fathers, one night stand fathers and even rapists. We must bear this in mind when discussing their suitability for guardianship.
Senator Ryan mentioned a situation in which two people share the strain of waking up at night and so on. Giving automatic guardianship to a father does not mean that he will be there at night to perform any of the necessary duties.
I was not saying that.
The Senator was concerned that there was no movement in this direction. However, there has been substantial movement in this Bill. For example, the Bill will mean that unmarried couples will not have to go to court if there are no difficulties between them. Senator Norris was alone in stating that he likes going to court. Everyone else wished to stay out of court.
Senators Norris and O'Meara expressed concerns that we were suggesting that 90 per cent of unmarried fathers are irresponsible and that 12,000 were not coming forward for court cases. We are not saying that. We are providing for people in stable relationships who do not have any disagreement, both of whom wish to be involved in the rearing of the child. In the past, such cases had to go to court for the father to become a guardian. This Bill will take such cases out of the court system.
Senator Henry asked if we could not go a step further and encourage fathers to be more involved. We are taking that step in terms of ensuring that fathers who wish to be involved can be involved where there is agreement.
The Bill will mean that a court will have to have regard to whether the child's best interest will be served by maintaining personal relations and regular direct contact with the father and mother. The court will have to consider all the evidence in making its decision.
When talking about the rights of fathers we are including rapists or someone who is a one night stand. In such cases we must establish what is in the child's best interest.
I asked the Minister about the guardianship rights of separated husbands who are not divorced. If the mother has a child by someone other than her husband, what rights, if any, does the State give to the woman's separated husband?
None, because he is not the father of the child.
How is this established?
On medical grounds.
It is a wise child that knows its own father.
I understand the point the Senator is making but the estranged husband would not have any rights. We are talking about the rights of the child being to the fore.
Senator Henry asked about birth certificates on which the father's name appears. Does the Minister have that information?
No, but I will try to obtain that information for the Senator. I referred to a question raised by Senator Henry concerning Cherish. Cherish is very supportive of the provisions concerning guardianship.
James Joyce said that "paternity was a legal fiction." He also said "who is any man that I should call him father" and "what joins them together is but an instant of blind rut." That seems to be the position emanating from the Government benches. I deplore the low view of human reproduction.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.
Amendments Nos. 10 and 11 not moved.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
Before discussing this section, there is a technical amendment on the scope of section 11 which I will not pursue.
Question put and agreed to.
SECTION 9.
An Leas-Chathaoirleach
Amendments Nos. 13 and 14 are alternatives to amendment No. 12. Amendments Nos. 15 and 17 are related.
I move amendment No. 12:
In page 7, to delete lines 45 to 49 and substitute the following:
11A.—In making an order under section 11, the court shall grant custody of a child to the child's father and mother jointly (on such terms and conditions as to the child's residence as the court may order) unless it considers that, having regard to all the circumstances and the welfare of the child, it would not be reasonable, practicable or appropriate to do so.
This amendment may appear to be in spirit of the previous set of amendments. However, it is important to make a distinction. There is an underlying principle of entering a presumption of joint custody. I would consider this a more serious situation which must be viewed with greater gravity. Custody implies a greater set of responsibilities than simple guardianship. That is why this amendment includes certain conditions. For example, it states that the court must have regard to the circumstances and welfare of the child and where it would be reasonable, practicable and appropriate to award joint custody. This is an important amendment for some of the reasons already discussed with regard to the sense of exclusion felt by an increasing number of natural fathers.
I wish to refer to amendment No. 13. This is a question of shifting the emphasis and dislodging the burden of proof from the father who is seeking to exert his rights — it is the father who is principally involved, although it could pertain to the mother — onto the parent who is trying to disadvantage the other parent. There needs to be a substantial reason for disadvantaging one of the parents. It is up to the parent who wants to place the other party under disadvantage to demonstrate why this should be so.
I agree with Senator O'Meara and do not wish to hold up the proceedings of the House. However, I wish to place on the record some material that has been sent to me because it expresses the argument more cogently than I, after a heavy and enjoyable lunch, could do. The October issue of Parental Equality News quotes the existing section 11A and make the following comments:
If this is an attempt to promote joint custody as the optimum solution — which I presume it is — it will not only fail but will do the exact opposite. On a cursory reading the provision would appear to be just a legislative recognition of the powers the courts already have which will have no effect, either positive or negative, on the efforts to promote joint custody. However, if this section as worded becomes law there is no doubt that it will prove to be a major impediment to parents who are trying to retain their custodial rights and obligations and as such will further delay the slow but growing tendency, even among the judiciary, to recognise that joint custody best serves children's interests.
The provision as it is worded implies that joint custody should only apply in certain circumstances, i.e. where it is proven to the court that appropriate circumstances obtain to merit the granting of joint custody, and that otherwise sole custody should apply. This gives a legislative basis to the idea that sole custody is the norm and that joint custody should only be applied in exceptional circumstances.
This is the direct opposite of what should apply as the submission on parental equality made to the previous Minister, Mr. Mervyn Taylor, in February 1997 clearly pointed out. Parental Equality News continues:
Should this provision become law it will provide the framework in which custody disputes will be decided. By stating that a court may grant joint custody "if it thinks it appropriate" the burden of proof is immediately 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 parent who is trying to remove the other parent's rights and obligations, thereby diminishing his or her status as a parent and his or her involvement with children.
A balance of emphasis is what is in question. I am inclined to agree with the view suggested to me that the burden of proof should be on the parent who is trying to remove the other person's responsibilities and not the other way around. We should accept that joint custody ought to be the norm rather than the exception. As phrased, the Bill appears to suggest that joint custody ought not to be automatically accepted as being in the best interests of the child.
Section 11 of the 1964 Act empowers the court to give any direction it thinks proper in disputes concerning custody of or access to children. In making any of these orders the court must regard the welfare of the child as the first and paramount consideration. The new section 11A as proposed to be inserted by section 9 of the Bill is intended to make clear that a court may award custody of a child to a father and mother jointly. The new section provides that:
For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if it thinks it appropriate, grant custody of a child to the child's father and mother jointly.
Amendment No. 13 proposes to declare, for the avoidance of doubt, that the court in making an order under section 11 may, if it thinks appropriate, grant custody of a child to the child's father or mother solely only if exceptional circumstances warrant such. Amendments Nos. 12 and 14 are somewhat similar.
The amendments are an attempt to fundamentally alter the court's power to give directions under section 11 of the 1964 Act on who should have custody of a child. The court would be required as a matter of course to award custody to the father and mother jointly and would only award sole custody to the father or mother in exceptional circumstances. Having regard to the fundamental changes proposed in Senator Norris's amendment No. 13, it is odd that he wishes to declare, for the avoidance of doubt, that the court may operate on the basis he proposes. The court does not operate on that basis because the 1964 Act is not framed to operate on such a basis and it is wrong to suggest it does.
Senator Norris has also tabled amendment No. 15 which does not seem to take account of section 11D of the Bill and seems to reflect a parent centred rather than a child centred approach to the problem. The new section 11D is a ministerial amendment which was agreed in the Dáil. It provides that, in considering whether to make an order in relation to guardianship, custody or access:
the court shall 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 or mother on a regular basis.
This provision should go a long way towards meeting the concerns which underlie these amendment and those of certain interest groups without sacrificing what is fundamental to the operation of the 1964 Act, namely, the principle of what is in the best interest of the child.
The purpose of amendment No. 17 is to mirror more closely the wording in the UN Convention on the Rights of the Child in new section 11D. The section as it stands takes this into account as it is inspired by wording in the UN convention. I am disposed to getting as close as possible to the convention wording. However, the matter is not as straightforward as it seems and I would like to give some background information to the House which may help clarify the situation.
Senators will be aware of the work of the constitutional review group which identified a number of issues under Article 41 of the Constitution which concern the family. Among the issues were an expanded constitutional guarantee for the rights of the child and the relative balance between parental and child rights. The group in its deliberations considered the provisions relating to family and marriage in other constitutions and in the UN Convention on the Rights of the Child. It pointed out that the focus of Article 41 of the Constitution is on the rights of the family as a unit as distinct from the rights of individual members of the family. The group considers that the focus of Article 41 emphasises the rights of the family as that unit to the possible detriment of individual members and considers that the best approach in any revised form of the Article would be to recognise the family as the primary or fundamental unit in society entitled to the special protection of society and the State but recognising that the rights and duties that derive from marriage, family, parenthood or as a child are guaranteed to or imposed on individuals. The group recommended the inclusion of a number of rights for the child, including the right as far as practicable to be cared for by both parents. It also recommended that consideration should be given to having an express obligation to treat the best interests of the child as the paramount consideration in any actions relating to children included in the Constitution.
In making its recommendations in relation to children, the group took into account the various provisions of the UN convention which concern the child's right to be cared for by his or her parents and the desirability of continuing that in a child's upbringing. Ireland's ratification of the convention in 1992 does not in itself create the right at issue here. Senators will appreciate that the area under discussion in the Bill is complex, involving as it must the question of what is provided for in the Constitution. As the review group has indicated, the rights of a child are not expressly referred to in Article 41, rather the focus is on the rights of the family and not individual members. For this reason, the new section 11D of the 1964 Act as is inserted by section 9 of this Bill is drafted in a way that coheres with Article 41 of the Constitution. At the same time it reflects to a large extent what is contained in the UN convention and should achieve its purpose which is to direct the court's attention to the 1964 Act when making decisions.
The reality which I ask Senators to appreciate is that courts are and should be seen to be a last resort. This is the thrust of the debate today. They should be a last resort so far as the settlement of disputes in relation to children are concerned. This is why the Bill encourages the use of counselling and mediation, but if cases must come to court the court will inevitably have to make difficult decisions based on evidence put forward. If the evidence demonstrates that joint custody is in the interests of the child, the court will make an order for joint custody. The courts should not, in effect, be compelled to award joint custody orders. To do so would be a departure from the principle that decisions in relation to guardianship, custody, access and upbringing should be on the basis of the welfare of the child which is the first and paramount consideration.
Having examined the issue in detail, the best approach is to make the decision on the basis of the facts before the court relating to the specific child and its parents. That is the correct way to deal with the matter in the interests of the child concerned in each case.
I am a little confused and I doubt that it is due to the ingestion of enormous quantities of peach sundae in the restaurant. The Minister of State's focus appears to have shifted. Earlier we listened to her speak about the centrality of the child. Now we have been treated to a rehearsed statement which the Minister of State previously produced in the Dáil. It is about the constitutional review group and its opinion of the provision.
The group says the rights of the child are not expressly referred to in Article 41. However, that is not necessary. One of the glories of the Irish Constitution is that it has been held to contain a vast quantity of unenumerated rights and it is likely that the rights of a child are among them. There is no conflict. They might not be specifically mentioned in the Constitution but that is not to say they are excluded.
Before we broke for lunch, the Minister of State and her colleagues on the Fianna Fáil benches were lyrical about cherishing a child. However, it appears to be a case of laud them before lunch and extinguish them after lunch on the basis of the same approach to law. I do not understand it because it does not appear to be logical.
I am happy to see the inclusion of the new section 11D after a battle in the Dáil. The Minister of State graciously accepted the amendment and I applaud her. I urge her to go a little further by bringing it more directly in line with the United Nations Convention on the Rights of the Child. We are currently in the anomalous position of having ratified the convention but, as is the case with regard to the European Convention on Human Rights, we have not yet adopted it. Therefore all its provisions are not held to be part of domestic law.
If this is a stumbling block, is the Minister of State considering a constitutional referendum to incorporate the United Nations convention into the Constitution? Would that not be a positive course of action instead of holding so many awful referenda which never get us anywhere? It will be necessary to hold a referendum on the Amsterdam Treaty. Why not put some meat on that by incorporating the European Convention on Human Rights and the United Nations Convention on the Rights of the Child into domestic law? That would resolve a number of problems. Will the Minister of State, with reference to new section 11D, consider moving, at least to some degree, towards the wording in our amendment?
It has been accepted by constitutional lawyers and by the constitutional review group that there is a serious need to examine Article 41. The concept of family is rather narrowly defined in that provision and does not take current circumstances into account. When de Valera and his colleagues were drafting the Constitution in 1937 they did not envisage the new era in which we are living. The Article is worthy of review and the Constitution might have to be amended.
Senator Norris pointed out that as the family is mentioned in Article 41 it might also encompass single parents and children born outside wedlock. However, there is an established interpretative phrase in common law, inclusio unius exclusio alterius, which also applies to statute law. It means that if one thing is specifically included, all else is excluded. In this regard, my learned colleague's interpretation of Article 41 might be incorrect. The constitutional review should be continued by the all party review group.
An Leas-Chathaoirleach
I ask Members to keep their contributions within the scope of the amendments.
With regard to the issue raised by Senator Norris, I have been advised by the Attorney General that a provision which expressly refers to the rights of the child would have potential constitutional difficulties. That is why the wording of new section 11D does not mirror the wording of the UN convention. We went as far as we could.
I would be inclined to risk it. Far be it for me to say the Attorney General is wrong but, secretly, I believe he is. The Attorney General has been known to be wrong before. However, I thank the Minister of State for going so far in this regard. It is most welcome.
Amendment, by leave, withdrawn.
Amendments Nos. 13 to 15, inclusive, not moved.
I move amendment No. 16:
In page 8, line 19, after "the" where it firstly occurs to insert "rights and".
This is a simple amendment to make the provision read "the rights and wishes of the child's guardians". The section relates to the new right of relatives to apply for access to children. It is a widening of the law in this regard and is to be welcomed as it is appropriate to the declared principle of the Bill, which is to care for the interests of the child. The amendment would strengthen the section.
This amendment would require the court in deciding under new section 11B whether to grant leave to a relative of a child or a person who has acted in loco parentis to that child to apply for access to a child to have regard to the rights of the child's guardian. The section as it stands requires the court to have regard to all circumstances, including, inter alia, the wishes of the child's guardian. These circumstances would undoubtedly include the rights of the child's guardian. The amendment is considered unnecessary.
Amendment, by leave, withdrawn.
Amendments Nos. 17 to 19, inclusive, not moved.
I move amendment No. 20:
In page 8, between lines 38 and 39, to insert the following:
"11G.—(1) The Minister for Justice, Equality and Law reform may, by regulations made under this subsection, amend section 2 in order to provide for circumstances where the coming into being of a child involves the provision of medical treatment relating to human fertilisation or embryology.
(2) Where regulations are proposed to be made under subsection (1),a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made unless a resolution approving such draft has been passed by each such House.”.
Amendment No. 20 is quite unusual in so far as it raises the issue of human genetic engineering if only to draw attention to the fact that no statute exists to regulate the issue in this country. While the issue has not been a major one in Ireland to date, it may arise in the future.
This amendment would allow the Minister to make regulations which would, for example, define the words "father" and "mother". A child may be born to parents who are not its biological parents through the phenomenon known as "womb renting". In such cases, the whole question of what the words "father" and "mother" mean becomes clouded to say the least. What do those words mean in the context of the Bill? This question may appear somewhat esoteric but we are aware of situations abroad where babies are born to parents who are not their biological parents by means of donor sperm and donor eggs. In that context, we felt it was important to raise this issue. I know it is a huge area and the Minister may tell me it is not appropriate to raise it in the context of this particular legislation. Nevertheless, I would be interested to hear her views.
I am sure that, even if the matter were deemed to be inappropriate in this context, the Minister would agree there is no harm raising it. I am glad Senator O'Meara has raised this issue which has caused problems in other jurisdictions and could do so here. Donor sperm is imported and used here in spite of the fact that we have no legislation in this area. The Swedish courts dealt with a case in which donor sperm had been imported from Denmark. A challenge was brought before the court to see whether the Dane who had donated the sperm could be described as the child's father. The Dane thought he had donated the sperm anonymously for the good of womankind but was subsequently deemed to be the child's father. Senator O'Meara's amendment is timely. I do not know how our courts would rule in that kind of situation.
The fact that we have no legislation on in vitro fertilisation is an issue I have raised “repeatedly and futilely”, as one newspaper once reported. This is perhaps another opportunity to do so. Perhaps the Minister of State, realising that Members are concerned about the lack of legislation in this area, would urge the Minister for Health and Children to introduce some. The issue is not as esoteric as one might think. In the past, we have found that we cannot always be sure how a court might rule, in spite of the advice given by Attorneys General.
This amendment would give the Minister power to make resolutions to amend section 2 of the 1964 Act which contains definitions to provide for the circumstances where a child is conceived by artificial insemination or by in vitro fertilisation. The amendment fails to specifically indicate the powers to be given to the Minister and their purpose other than that they may provide for circumstances where the coming into being of a child involves the provision of medical treatment in relation to human fertilisation or embryology.
In so far as any new law is called for in this area, it must be said that secondary legislation in the form of regulation would not be appropriate. Since fundamental issues could be involved, the matter is one for primary legislation. Where a woman conceives as a result of artificial insemination by her husband or by in vitro fertilisation of her ovum, the assumption is that she is the legal mother. On that basis, there is, therefore, no need for changes to the 1964 Act to cover such a case.
It would seem that the amendment might be an attempt to address a situation where the person giving birth is not the child's genetic mother but the carrying mother as a result of egg or embryo donation in vitro fertilisation. The questions which arise are: who is the legal mother and who is the legal father of the child? In England, where medical facilities are available which give rise to these circumstances, new laws, medical and otherwise, have been developed. The area is not without considerable controversy and complication. No laws have been developed in relation to this issue in Ireland and there are no proposals for such laws at present.
Except for the last line of the Minister of State's response, I am largely in agreement with her. She stated that this amendment was not an appropriate way to deal with the issue and I accept her advice but it obviously does require primary legislation. I expected the Minister of State to say that the Department would look at proposals in this area. I urge here to look at proposals in this regard and to return to the House with them at a future date.
I support Senator O'Meara. One can see, from the Minister of State's reply, how urgently this legislation is needed. There is very little technology available in England, apart from the freezing of fertilised eggs, which is not available here and we should be aware of that because we may have the unfortunate problem of seeing cases of this nature settled in the courts without the Oireachtas having brought forward any legislation to deal with it. In the past, judges have been inclined to make unfavourable remarks about the Houses of the Oireachtas for allowing these sort of situations to arise in which issues we know will require legislation are not tackled. Such issues were discussed in the other House earlier this week; these matters cannot be put on the back burner. Technology is progressing so rapidly that any legislation introduced must contain clauses which can be constantly amended.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 8, between lines 38 and 39, to insert the following:
"11H.—On or after the making of an adoption order in respect of a child, the Court may, with the consent of adoptive parents, appoint a natural parent of the child who is not an adoptive parent as a guardian, and may remove a guardian so appointed.".
I would like to hear the Minister of State's view on this amendment which deals with adoption orders and the role of natural parents or the potential appointment of a natural parent as a child's guardian. How many such cases could be contested in that regard?
I have a particular interest in adoption as I had the good fortune to travel to Romania with my sister to facilitate the adoption of two Romanian boys. It made me realise the procedures which must be followed and the difficulties which arise in relation to adoption. If I am correct, the natural mother may decide not to go ahead with the adoption up to the time the child is six months of age.
The introduction of this amendment would, in my view, create confusion and I would be concerned that the amendment is inappropriate. I have represented clients in the courts on issues of law in the area of adoption. It is a difficult area and I would be concerned that this amendment could reverse a lot of good work which has been done.
The effect of this amendment is that a natural parent who gives a child up for adoption may, with the consent of the adoptive parents and on the basis of a court order, be appointed a guardian of the child. Reading this amendment the Senator seems to misunderstand the concept of guardianship and the law in this area. Guardianship is the collection of rights and duties which a parent, including an adoptive parent, has towards his or her child. The concepts of parenthood, adoption and guardianship become inseparable on the making of an adoption order. In other words, the child attains the same status as if born in wedlock to the adoptive parents and the legal rights and duties arising from the relationship between the child and his natural mother or guardian automatically cease.
The amendment would allow the natural parent, father or mother, who has given up guardianship to regain it. It would mean that instead of having two adoptive parental guardians, the child would have three or four guardians. An amendment of this magnitude would require a comprehensive review of the adoption code for which the Department of Health and Children has responsibility and constitutional issues would arise in the context of that review. I doubt that any such review would result in a proposal of the kind provided for in the amendment, which I am unable to accept.
Amendment, by leave, withdrawn. Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
An Leas-Chathaoirleach
Amendment No. 23 is cognate to amendment No. 22 and both may be discussed together.
Government amendment No. 22:
In page 10, line 3, to delete "sections" and substitute "section".
Amendment agreed to.
Government amendment No. 23:
In page 12, line 1, to delete "sections" and substitute "section".
Amendment agreed to.
Government amendment No. 24:
In page 12, lines 37 and 38, to delete "after the commencement of this Part".
Amendment agreed to.
Government amendment No. 25:
In page 13, line 6, to delete "paragraph (a)(i) or (ii)" and substitute "subparagraph (i) or (ii) of paragraph (a)".
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 26 and 29 are related and may be discussed together by agreement.
I move amendment No. 26:
In page 13, line 8, after "appropriate." to insert "The court may, in the event of a custodial parent being in breach of an access order—
(a) grant joint custody to the parents or
(b) grant sole custody to the parent who is not in breach of the access order.".
I ask the Minister to comment.
The effect of amendment No. 26 is that, where the parent who has custody of a child contravenes the terms of an access order, that parent should be penalised by the court either by the making of a joint custody order or by taking custody from that parent and giving it to the other parent. The amendment is misconceived for a number of reasons.
First, there should be no question of using the welfare of a child as a means of getting back at a parent for contravention of the court order. It is wrong to suggest that penalty for the breach of such an order should be loss of the custody of a child in one form or another. I remind Senators that decisions by the court on custody and access must, under the law as it stands, be made on the basis that the welfare of the child is first and paramount. The amendment as framed is far from that concept. It is not child-centred and is, in many respects, vindictive in its approach.
Second, the law as it stands is well capable of addressing a case where the terms of an access order are not being observed by the custodial parent. It is open to either parent at all times to seek the direction of the court under section 11 of the 1964 Act on any matter affecting the child. The court can vary any order it has made where there is a change in circumstances. Any orders made under section 11 or varied by the court must be made on the basis of the best interests of the child.
Third, there are already penalties under the law for breaches of access orders. The amendment would add a further layer of penalties.
The apparent intent of amendment No. 29 is to leave the maximum sanctions under the 1986 legislation for breaches of access and custody orders at their current levels and not to allow for increases in those penalties in order to bring them into line with the present day jurisdiction of the District Court. I do not accept that the message should go out that, in serious cases of breach of custody and access orders, the District Court should be specially limited in terms of the sanctions which can apply. In any event, the sanctions in question are the maximum the court can impose and, although they may not be invoked frequently, it is important that the court should have the necessary powers to cover exceptional circumstances. For these reasons I am unable to accept the amendments.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 13, to delete lines 25 to 31 and substitute the following:
"(2) A child whose welfare is in issue may be present during the hearing of proceedings under section 6A, 11 or 11B, unless the court otherwise orders in the child's best interests.".
This is a simple amendment and the Bill may provide for such cases already. Does the court have discretion to have the child present during the hearing of proceedings? Perhaps the Minister could clarify that.
On Second Stage many Senators said, quite properly, that children should be protected in every way. In my experience as a practising lawyer, the presence of a child, unless it is strictly necessary, is of more harm than benefit. The court would request that the child be present should it be of significance. The children in these cases are often of tender age. When children reach the ages of ten or 12 they tend to decide for themselves who they want to stay with, but it would be wrong to involve younger children in court proceedings except in the most extenuating circumstances.
The short answer to Senator O'Meara is yes. The effect of the amendment would be to delete the proposed new section 27 to the 1964 Act and to replace it with an alternative subsection (2) to the present provision. The effect of the proposed wording is that, where the court has decided under subsection (1) that the attendance of the child is not necessary at a guardianship, custody or access hearing, the child may attend of his or her volition unless the court, of its own motion or on application to it, otherwise orders in the child's best interests. This differs from the existing subsection (2) in that the child's attendance in such circumstances requires the express permission of the court in all cases. The policy in the Bill is the same as that of section 32 of the Child Care Act, 1991 as it applies to care and supervision order proceedings. I see no good reason to pursue a different policy on guardianship, custody and access proceedings, which may contain issues of equal sensitivity.
Amendment, by leave, withdrawn.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13.
Government amendment No. 28:
In page 15, to delete lines 10 to 16 and substitute the following:
"‘(d) where the court has ordered that a guardianad litem appointed under section 28 (inserted by the Children Act, 1997) of the Guardianship of Infants Act, 1964, should be legally represented in proceedings under subsection (4) of that section, and any of the parties to those proceedings is in receipt of civil legal aid.’.”.
Amendment agreed to.
Question proposed: "That section 13, as amended, stand part of the Bill."
I congratulate the Minister on this section. It was Senator Norris, in a previous incarnation, who introduced the ad litem concept to the Child Care Act and it is splendid that it is to be continued. Recent cases have again shown us how important it is for children to have an independent person to represent their interests in the court. I commend the Minister on incorporating this in the Bill, and I commend Senator Norris on ensuring that this concept became acceptable in Ireland.
I thank my colleague for her remarks. It took a long battle to have the guardian ad litem concept included in the Child Care Act but I was pleased to see it pass almost automatically into this Bill. I assume that this trend will continue in any parallel legislation in the same way that clauses on sexual orientation and to protect travellers, which were initially accepted only after a tough battle, automatically became part and parcel of legislation. I join Senator Henry in expressing pleasure that this provision has been included.
Question put and agreed to.
SECTION 14.
Amendment No. 29 not moved.
Section 14 agreed to.
Sections 15 to 18, inclusive, agreed to.
NEW SECTION.
I move amendment No. 30:
In page 16, before section 19 but in Part II, to insert the following new section:
"19.—(1) In any case where a solicitor proposes to act for a person in circumstances where that person could have recourse to the services of the Central Authority under the Child Abduction and Enforcement of Custody Orders Act, 1991, the solicitor shall inform the person in advance of so acting of the availability of those services.
(2) A solicitor shall not be entitled to charge for services rendered or recover costs incurred as a result of acting in contravention of subsection (1).".
This is a sensible, undramatic amendment. The European convention obliges a central authority, the Department of Justice, Equality and Law Reform in our case, to act in the event of child abduction. This amendment requires a solicitor to inform clients that the central authority is the Department of Justice, Equality and Law Reform and that such services are available. Part (2) of the amendment provides that a solicitor shall not be entitled to charge for services rendered or costs incurred as a result of acting in contravention of subsection (1) of the amendment.
This amendment would compel members of the legal profession to inform persons, without charge, who are seeking legal advice in cases of child abduction into or out of the State as to services available from the Department of Justice Equality and Law Reform through the Central Authority for Child Abduction. This is the authority which acts for the purposes of The Hague and Council of Europe conventions on child abduction which are given the force of law in the State by the Child Abduction and Enforcement Court Orders Act, 1991. I am unable to accept this amendment, which purports to prohibit a solicitor from charging for legal services. We should assume that if a solicitor merely informs a person about the services available from the Central Authority for Child Abduction, then the solicitor will not charge for that information alone. It is another matter if a solicitor, of necessity, spends time in consultation with his or her client to establish facts. It is being suggested that the solicitor in those circumstances is not entitled to charge for his or her professional services.
The amendment is vague and, in effect, meaningless, because if a solicitor charges for simply telling a person about the central authority there is no sanction of any kind in the amendment for the solicitor's action. It should be noted that there is express provision in The Hague and Council of Europe conventions to the effect that persons seeking the return of a child under the conventions may invoke those provisions without recourse to the central authority. In such circumstances, it is open to any person to engage a solicitor to act on its behalf and not avail of the assistance of the central authority. We should rely on the good sense of the legal profession in child abduction cases and assume they will act properly. If cases come to light where solicitors overcharge or act improperly, there are procedures for redress within the Law Society, and if Senators are aware of cases of abuse, it is open to them to bring those cases to the attention of the Law Society at any time.
Amendment, by leave, withdrawn.
Sections 19 to 27, inclusive, agreed to.
Members of the staff of Cahill Printers, which has been responsible for the printing of all our documentation since the foundation of the State, are in the Gallery. I extend to them a very warm welcome to the Seanad, and, on behalf of the Members, I thank them for all their work which has facilitated our operation over the years.
SECTION 28.
I move amendment No. 31:
In page 20, lines 7 to 11, to delete subsection (2).
I, too, welcome the members of this distinguished Dublin firm. We are all indebted to them. It cannot be easy to get amendments printed for people like me who often want them inserted at the last minute. They do a very good job for us and it is nice to have a human face on them.
Amendment No. 31 seeks to delete subsection (2), which states that any child whose evidence is received in court under 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.
This is astonishing. The Minister of State has been breaking our hearts about children and the centrality of children, and now we are to put them in jail. This cannot be right. The Minister of State cannot wish to subject children to the penalties that properly attach to the adult crime of perjury. Perjury is the crime of an adult and not a child. I would think badly of criminalising children in the tail end of this Bill. It seems there is sting in the tail here like that of a scorpion. I will be interested in what Government Senators have to say on this matter, as they were interested in protecting the child. How can that be squared with making a child guilty of a criminal offence? I cannot understand it and I urge the Minister of State to delete it.
I, too, welcome Cahill Printers and urge them to use recycled paper. I have repeatedly raised this issue. The paper's colour may be slightly different, but in view of what are euphemistically described as landfills but which are actually dumps, it would be a good idea to use recycled paper in the Houses of the Oireachtas.
Especially in the Seanad, where we have recycled Members of the Dáil.
On behalf of the people of Kill, Rush, Mulhuddart and other areas with landfills, I suggest we use as much recycled paper as possible.
I support Senator Norris. On Second Stage I stated that taking into account how much the child could understand and how well he or she might answer was much more preferable than accepting his or her chronological age. We now see that if the child is found to have lied without knowing the circumstances the child is to be convicted of perjury. What will be the penalty?
The penalty will be the same as that for perjury.
That is how it looks.
The child will be liable to be dealt with as if guilty of perjury.
The Minister of State should tell us what she proposes to do.
I agree with what has been said. One is doubtful on the issue of asking children under 14 years to give evidence. It may not be given in the normal atmosphere of a court, but a child can be put under influence to repeat something. Children are very impressionable, and it is altogether wrong that a child under 14 years can be held liable for perjury. What will be the punishment? Perjury is accepted as a serious offence which carries a mandatory jail sentence. Are we to apply those mandatory sentences to children? A child may relate something to the court that he or she has been forced to say under undue influence.
If I shared the Opposition's interpretation of this provision, I would be as full of outrage as they are. I taught children under 12 and 13 years of age for 12 years. There is no need for such outrage because the Bill provides for the taking of evidence from children under 14 years without oath or affirmation. If evidence taken otherwise than an oath or affirmation is deemed to be false, it could not be regarded as perjury, although I may be wrong. In my experience a child who is deemed to have deliberately given false and misleading evidence is not sent to jail but to places of rehabilitation and, in some cases, is placed in custodial care for rehabilitative purposes.
Another assumption is that children are innocent and cannot commit a crime and, therefore, there should be no suggestion of a punitive measure as regards children giving evidence. If we accepted that assumption, we would be living in a type of Walter Mitty world. Having dealt with children in a professional capacity for many years, I — and I am sure others who have dealt with them professionally or as parents — am only too well aware that children are whimsical and are open to suggestions and, in some cases, are capable of deviant behaviour and appear quite calculated. We cannot dismiss the idea of providing safeguards against children giving false or misleading evidence. The proposal in the Bill is not anti-children. I understand why Members who see the word "perjury" in the context of children giving evidence are extremely concerned. This section does not supersede existing law and, therefore, will not have the effect Senators opposite are convinced it will.
My colleague is right in saying that to commit perjury a person must tell a lie under oath. This Bill is intended to be user-friendly to children. Perjury is a serious crime. A person between the ages of 14 and 16 could take an oath and commit such a crime, which should not go unpunished. Locking up children is probably not the answer but I am sure judges will make appropriate orders for the correction of this serious crime. It would be wrong to delete this section. The belief that this is a Draconian measure which would involve locking up small children is not correct. We are talking about extreme cases and are excluding children below 14 years of age.
Section 28(2) makes it an offence for a child to knowingly make a false statement in any civil proceedings where the statement is made otherwise than on oath or affirmation. Perjury is an indictable offence, the main penalty for which is a prison sentence of up to seven years. However, the method of dealing with children charged with offences is governed by the Children Act, 1908. That Act makes it clear that a child, being a person who has not attained the age of 15 years, cannot be sentenced to imprisonment but the court can order that the child be sent to a special school, as mentioned by Senator Liam Fitzgerald.
That could be as bad as imprisonment.
We are talking about a serious offence. We could not exclude a sanction in a case where a child commits an offence of this nature. We are talking about a case where a child makes a statement material in court proceedings which he or she knows is false. It would be wrong to remove the sanction even though cases of prosecution for perjury are rare. It is important to recognise this could have a material impact on a case before the court.
Senator Henry was concerned about other available options. A child could be sent to a special school, the parent or guardian could be ordered to give security for the child's good behaviour, an order could be made for the parent or guardian to pay a fine, damages or costs, and the court could decide to commit the child to the care of a relative or another fit person or to discharge the child and place him or her under the supervision of the Probation and Welfare Services. These options are governed by the Children Act, 1808. The provisions in section 28 correspond to those in the Criminal Evidence Act, 1992, and, as far as we are aware, no charges have been brought under the provisions in this Act.
The Government has restored the Children Bill, 1996, Committee Stage, to the Dáil Order Paper. The primary purpose of that Bill is to replace the Children Act, 1908, with provisions which will allow for the creation and development of a new juvenile justice system. During the debate on that Bill, Senators will have the opportunity to discuss sanctions the court should have in relation to children who offend.
I am grateful for the Minister's explanation and for the indication that the Children Bill, 1996, will be brought before the House. Some of the issues raised could be pursued further during the discussion on that Bill. Will a child who is prosecuted under this Bill and found to have committed an offence be guilty of perjury or will they be treated as if guilty of perjury? The distinction here is fine. Will the child have a criminal record? If a young person gets a criminal record, we will have left a permanent stain on their character in circumstances in which they may have been under considerable pressure.
I do not find it encouraging that somebody under 15 years may be sent to a borstal rather than prison. The record of borstals stinks to high heaven. Letterfrack echoes with infamy from one corner of this island to another. I am not thrilled that a child could be sent to such a joint for telling a lie in court.
I am not clear about the phrasing of section 28(1). Perhaps that is because I have no legal training or that it is vague. It states that 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. Does the impact and force of the word "may" suggest that there are circumstances in which a child will give evidence on oath or by affirmation? Are there circumstances in which the child will be treated as an adult? What is the force of the definition of "child"? I presume there is a reason for this remarkable vagueness? Section 4 states a child is someone who has not attained full age. What is the meaning of full age? I presume it is a legal definition. Is it 18 years of age? Are we dealing with an offence created specifically for persons between the ages of 14 and 18 years?
We are talking about children under 14 years of age. If a parent is known to be involved in coaching a child and induces him or her to lie to the court, the parent is guilty of procuring the commission of an indictable offence. This is dealt with under section 7 of the Criminal Law Act, 1997. It is a separate and serious criminal offence.
Will the child have a criminal record?
Yes.
At what age could that crime be recorded?
We are talking about a court proceeding and how this action could have a material impact on the court's decision.
The Minister should not lose sight of the fact that they are dealing with a child.
Yes. However, the matter could be serious and a lie in court is a lie.
What about evidence given in that way?
The Senator should allow the Minister to conclude her reply.
The Minister addressed me directly.
The Senator will have an opportunity to reply.
None of us can say it is in order for children to make false allegations in court which could have a material impact on the result of a case. Sanctions are taken into consideration in the case of a child.
I am more confused than ever. In this Bill, a child is defined as a person who has not attained full age. Does this mean up to 14 years of age?
Yes.
This may create difficulties. I thought full age was 18 years. Medically, we are warned to ensure we obtain consent for all children up to 16 years of age. We are urged to be careful to obtain consent for children of 14 and 15 years of age. Naturally this does not apply in an emergency. In a legislatory sense, I thought full age was 18 years and medically, 16 years. In this Bill it is 14 years.
Full age in the Bill is 18 years. This section refers to children between the ages of seven and 14 years. The age of criminal capacity is seven years.
This is getting worse. I have now heard everything. I heard about irresponsible hit-and-run heterosexuals before lunch and now we have criminal children. Does the Minister seriously propose to leave the stain of a criminal conviction on a person as young as seven years of age? I said I would not call a vote on this amendment but now I will.
Will the proposed new Children Bill address the problem?
Yes. Senator Norris may be relieved to hear we are talking about the Children Act, 1908, which is being revised in the Children Bill, 1996, Committee Stage of which has been restored to the Dáil Order Paper. The Senators' points may be better raised on Committee Stage of this Bill. This Bill is doing the same as the other legislation. The problems are with the Children Bill, 1996. We cannot do anything different in this Bill. We are bringing the legislation of 1908 up to date in terms of the Children Bill, 1996. Any amendments suggested should be put forward on Committee Stage.
I am beginning to get more curious about this. The Minister intellectually justified her argument, then said she did not believe it, it is ghastly but it has to be done because it is in the Children Bill, 1908, and Senators will get what they want on the Children Act, 1996. Why defend it if it is indefensible? Criminalising seven year olds should not be allowed. Why can it not be removed from this Bill because it is in other antiquated legislation proposed to be speedily abolished anyway? Those on the Front Bench should eat their words. They supported this and their Minister said she does not think it is a good idea.
I refute that. I said the Senator is raising these issues under the wrong Bill. I am not saying how they will be dealt with at a later stage.
Why can it not be removed now?
This is not the place to do so.
It is. Seanad Éireann is where we legislate.
The Minister may not be aware that promised legislation does not always come to fruition. It is dangerous to introduce a measure now on the basis of what will happen in the future. I would be happier if we rectified the problem here rather than piously hope for the future — God spare the Government and may it go on for the next four and a half years, especially if one is an Independent Senator. We do not know what may happen in the Government. I know the Minister proposes to introduce the legislation with due haste and efficiency.
This legislation is not promised in the distant future. Committee Stage of the Children Bill, 1996, has been restored to the Dáil Order Paper.
The Minister may have implied I was condoning certain criminality. I am suspicious of children under 18 years of age giving evidence under oath. They must be treated carefully. I am not satisfied that the 1908 Act, which is a Westminster statute, protects the rights of children, especially given the attitude regarding children in 1908. I welcome that it will be repealed under the Children Bill, 1996.
I did not say that.
The Minister implied it. We would not be very happy if the age of criminal responsibility on the Statute Book were to remain at seven years after the enactment of the Children Bill, 1996. This has grave implications for what we are discussing today. My colleagues and I are not happy that a child giving evidence in such cases can be convicted of perjury. I would like an assurance from the Minister of State that the setting of the age of criminal responsibility at seven years will be repealed in the forthcoming Children Bill, in light of the sections inserted in this Bill.
Yesterday Senator Connor eloquently praised the former Minister, Deputy Owen, for her input into this Bill. The matter was cogently debated and received almost full support from all parties at that time and is now being used as a red herring. Are we to accept that a person aged between 7 and 14 years, who would only be asked to take an oath in very extreme circumstances, is incapable of lying? Seven year olds are much more intelligent now than they were in 1908.
I agree we need to debate the matter. The Minister of State said there is a Bill on the Order Paper of the other House. As I said earlier, accepting this amendment would be very dangerous and would send the wrong signal. This Bill has come a long way and has been broadly welcomed by all speakers. It is a step in the right direction which protects children. We are now deviating from the Bill on a very technical issue.
Is Senator Norris saying that a person between the ages of seven and 14 years is incapable of telling a lie? This Bill reforms the existing law. In my experience, children under the age of 14 years are rarely asked to take an oath but those who do are advised about its implications. However, a ten year old who fully understands the oath and is cognisant of its significance and decides to deliberately mislead the judge or his parents has committed an offence which we cannot disregard. While it will arise in only very extreme circumstances, we should retain this prohibition. My children are quite capable of telling fibs at the age of eight or nine years.
There are provisions which oblige solicitors to explain about mediation, counselling and other factors. An 11 year old who says he understands the oath, takes it and then lies to the court has committed a serious crime. So be it if the child incurs a criminal record because he disregarded the advice of lawyers and the judge and possibly misled the court on a very crucial issue. I appreciate the sincerity of Opposition Senators but accepting this amendment would lead us down a very dangerous cul-de-sac.
The reason such concern has been expressed about this section is because it sticks out like a sore thumb from the rest of the Bill. I found it hard to believe it when I read:
Any child whose evidence is received. . . 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. . . to be dealt with as if guilty of perjury.
We know what that means. That language belongs in the era of the 1908 Act, which is why it cannot be allowed remain in this Bill which should reflect 1997.
This subsection cannot be regarded as being in the interests of the child, about which we have all expressed our concerns. I accept the forthcoming legislation will be taken on Committee Stage. My understanding is it will usher in a new era in terms of how children are dealt with before the courts. However, this highly offensive subsection will remain in force until that Bill is enacted.
Senator O'Donovan asked whether a child is capable of telling a lie. Of course, older children are very capable of knowingly telling lies and of knowing the implications of such lies. However, under this legislation children will appear before the courts on issues of guardianship, custody and access. These are matters of huge emotional importance to them in which what they say to the court will make a central difference to their lives in terms of, for example, which parent they live with. The Senator is saying that a child who lies in those circumstances, possibly in their own interests or because they think they are doing the right thing for their brothers, sisters, mother or father, should be convicted of perjury. What sort of system is that? It belongs to the era of the 1908 legislation and not to the spirit of this Bill.
As the Minister of State has clarified the matter, this is a case of soundbites gone mad. The Opposition is expressing emotional outrage about a formula of words which applies in all legislation for seven to 14 year olds. For years, under successive Governments, we said we were becoming more enlightened. The 1908 Act states that children under the age of 14 years of age are incapable of committing rape but we know, from recent sad events, that is not always the case. Each case must be taken on its merits.
We have entered a more enlightened era in terms of how we deal with juvenile crime, to which Members on both sides of both Houses have testified in their statements. Nevertheless, it appears the Opposition is suggesting, in a highly charged way, that the Minister of State should unilaterally take it upon herself to remove this provision from this Bill alone and ignore all other legislation for those over the age of seven years because of serious concerns about the way we administer juvenile justice. That would appear to be what the Members opposite are saying. If the Minister were to attempt this she would be——
——doing the right thing.
——on the one hand — as individual Members might say — doing the right thing in the context of this Bill and how we feel about children under 14 but, on the other hand, she would be delivering a most pre-emptive blow to all the submissions that have been received in recent years and which will form the basis of a juvenile justice Bill, or whatever it will be called, when it comes before the House. To allay Senator O'Meara's fears, there has been such a force of consultation and deliberation and such a holistic approach invoking all organisations involved in the care of children at the level of joint committees and legislative committees that there is no doubt that, in the near future, a juvenile justice Bill will address, very fundamentally and comprehensively, the whole area of juvenile justice and its administration since the enactment of the 1908 Act to the present. A unilateral action out of that context would be very wrong, irrespective of the concerns that we all feel.
We share Senator Norris' concern about the administration of juvenile justice in recent years. Parental responsibility is not invoked enough despite the fact that it is in the 1908 Act. This is an old hobby horse of mine. I have repeatedly said that parental responsibility needs to be invoked much more comprehensively and fundamentally in our laws in relation to the deviant, anti-social and sometimes criminal behaviour of our juveniles. That cannot be dealt with here because it is not within the terms of reference of the Bill. To do what the Senators rightly say should be done in the context of this Bill and to forget about the broader approach would be as criminally negligent as to leave it out, if not more so.
We are envisaging the criminalising of a seven year old child for perjury in a case which, as Senator O'Meara made clear to the House, is not a criminal matter in the first place. This Bill does not deal with criminal matters yet, in the margins, we are going to criminalise children where we are dealing with civil proceedings regarding the matrimonial difficulties, custodianship, guardianship and mediation of adults. A by-product will be to permit circumstances in which a seven year old child can have a criminal record. I do not believe this is caring, appropriate or necessary. Does the Minister maintain that the Bill would be made constitutionally unsound by the deletion of this section? It may look a little ragged and Senator Fitzgerald is absolutely right: what I am trying to do is to pull a stone out of the dyke in the hope that it will begin to crumble because I do not believe in the concept of criminal guilt attaching to seven year old children, and apparently neither does anyone else, but if we are waiting for it to be done wholesale then we may be waiting. Let us pull this little stone out because this would be a reproach to us if it was allowed to stay. It is utterly and completely wrong. Who is going to say whether the child knows it was telling a lie? Is it the judge? What is the test of knowledge for a child? Children know things differently from adults. A seven year old child may have begun to doubt the existence of Santa Claus, to be seasonable, but could very well, in evidence, say that Santa Claus had appeared on a certain date and was kissed by daddy under the mistletoe — not really believing this to be true. Children's reality is differently constructed at the ages of seven, 27, 47 or 57.
I thoroughly enjoyed the wonderful contributions of Senator Fitzgerald. They were beautifully put together and just as passionate as mine but they were full of bites and sticks. He said that we need the stick. Let me tell Senator Fitzgerald that he would not be let use a stick on a child. In our day we were, and we survived it, but his imagery harks back to the days when children were beaten for being assumed to have told lies. I see no reason, in this Republic, we should continue to be governed by an imperial statute of 1908. If we can pull a few bricks out of it and render it unstable then all the better.
The Minister is getting very loyal support, as they see it, from the front bench. They do not want their Minister to be exposed to the wrath of other colleagues or to the wrath within Departments for creating this untidiness but it will be creative untidiness. If it helps to undo the concept of infant criminality then we will have done a good day's work. The more I tease this out the more I think this is a very important issue. I have not heard one solid moral or intellectual reason this should be retained. Even from the Minister and from the Government benches I have heard all kinds of reasons we should do away with it — but not just yet. Let us not upset anybody. We are talking about seven year old children, as a by-product of a civil case, being found guilty and left with a criminal record and perhaps sent to a borstal for their improvement. I do not accept that and I will not vote for it.
Now I have found out what is going to happen to the children. Section 28(3) reads:
Subsection (1) shall apply to a person with mental disability who has attained the age of 14 years as it applies to a child who has not attained that age.
Am I to assume that subsection (2), therefore, applies to these people too or are they excluded? I am anxious about this because I see many adults who have Downs syndrome and many of them have the mental age of a 14 year old. They are pretty bright. You can have consultations with them and discuss what treatment they can have. If such a person, over the age of 18, involved in one of these cases — and the possibility is there — is found to have told some story which he knew to be false, is he also to have a criminal record?
Yes.
And where is he going to be sent? I am opposed to custodial sentences for anything other than serious crime. It is a serious matter if people are to be jailed for perjury, never mind those included in both these categories. Former Members of this House have apparently committed perjury, yet they can go free while it is proposed that the kind of people under consideration here may be subject to incarceration. It is difficult to imagine that a person with a mental disability could be convicted of perjury and given a custodial sentence.
The Minister of State must reconsider this matter. We are dealing with children who are often caught in litigation between their father and mother. They can be used, manipulated or influenced by either parent. While the consequence of an oath can be explained to children between the age of seven and 14 they usually do not know the difference between eternal damnation and eternal salvation with regard to committing perjury.
The Minister of State must look sympathetically at the points raised on this side. This is a more reflective forum than the other House. We have reached this conclusion on reflection and if Members on the other side were honest they would agree with us.
The word "know" is important because the child must knowingly commit this crime.
Who defines what a child knows?
The court will not allow a child to give evidence in the circumstances to which the Senator referred.
That is not an adequate safeguard.
We are dealing with children who know they are telling lies.
In whose opinion?
We have dealt with the situations where they are caught doing so by parents. Are Senators seriously suggesting that if a child of 7 or 13 years of age knowingly tells a lie there should be no sanction? Do they consider that if a judge decides the child's parents must ensure its good behaviour, which is one of the sanctions, a problem arises? I see no problem with that. The court will have all the evidence before it and may decide to dismiss the matter or take the child's evidence. If the latter is determined, action may be taken if the child knowingly tells a lie.
Senator Henry expressed concern about those with a mental age of under 14 years. That matter is covered by legislation, which provides that they can be treated in such a manner.
The Senator said a mental age of 14 years.
We are dealing with people up to the age of 14 years. The word "knowing" is important. Senator Connor proved the point when he said that the child may not know. If the child does not know, the wording here——
Who decides?
This arises in situations where the court has determined that the child is in a position to give evidence. The decision by a child to knowingly tell a lie could have a huge impact on the result of a case. There must, therefore, be sanctions and a number of them are outlined, including the committal of the child to the care of a relative, to the probation and welfare service or to the parents to secure his or her good behaviour. Alternatively, a fine may be imposed on the parent. These are reasonable in cases where the child knowingly tells a lie.
A criminal record for a seven year old child is not reasonable.
The matter is well covered at this stage.
I do not see judges incarcerating children. The criminal record is the problem, not the sanction that will be put on the child.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 21; Níl, 14.
Tá
- Bohan, Eddie.
- Bonner, Enda.
- Cassidy, Donie.
- Chambers, Frank.
- Cox, Margaret.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Liam.
- Fitzgerald, Tom.
- Fitzpatrick, Dermot.
- Gibbons, Jim.
- Glynn, Camillus.
- Keogh, Helen.
- Kett, Tony.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Leonard, Ann.
- O'Donovan, Denis.
- Ó Murchú, Labhrás.
Níl
- Connor, John.
- Cosgrave, Liam T.
- Costello, Joe.
- Doyle, Avril.
- Doyle, Joe.
- Hayes, Maurice.
- Hayes, Tom.
- Henry, Mary.
- Manning, Maurice.
- Norris, David.
- O'Dowd, Fergus.
- O'Meara, Kathleen.
- O'Toole, Joe.
- Ridge, Thére se.
Tellers: Tá, Senators T. Fitzgerald and Keogh; Níl, Senators Henry and Norris.
Question declared carried.
Amendment declared lost.
Amendment No. 32 not moved.
I move amendment No. 33:
In page 20, after line 16, to insert the following new subsection:
"(5) (a) A person who, in relation to the giving of evidence by a child, whether in accordance with subsection (1) or otherwise, counsels or procures the making by the child of a statement material in the proceedings concerned which that person 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 subornation of perjury.
(b) For the avoidance of doubt, an offence is committed under paragraph (a) regardless as to whether—
(i) the statement counselled or procured to be made was or was not given in evidence by the child, or (ii) if the statement was made, the child knew or did not know it to be false, or believed it to be true or untrue."
I thought this amendment would be acceptable to the Minister of State in light of the long discussion on and her attitude towards amendment No. 31. The object of the amendment is to ensure that the adult rather than the child is penalised in the event of false evidence being given. In one of her earlier responses to Senator Norris's amendment, she referred to sections of other legislation which might meet our concerns in this regard. A child could be coached by an adult to give certain evidence and, given the scenarios which might occur under this Bill concerning custody and access, it could happen that a parent, for their own ends, could coach a child to give certain evidence. This would especially be the case where an acrimonious breakdown occurred between parents on issues such as custody and access. This amendment is designed to ensure it is the adult who is penalised in the event of a child being coached for a court case. If the Minister can tell me this eventuality is dealt with in the context of other legislation, I will be happy to hear it.
Under section 7 of the Criminal Law Act, 1997, a person who aids, abets, counsels or procures the commission of an indictable offence is liable to be indicted, tried and punished as the principal offender. Perjury is an offence committed by a person who asserts upon oath the truth of some matter or fact which he or she does not believe to be true. Subornation of perjury is the offence of procuring a person to commit perjury which he or she commits in consequence of such procurement. The provision of the 1997 Act would apply to the type of case intended to be covered in paragraph (a) of the Senator's amendment. There are sanctions in place to deal with a person who encourages a child to give false evidence of the kind referred to in the amendment.
In so far as paragraph (b) of the amendment is concerned, there would be difficulties in making an offence of something which is not evidence before the court and is not material in the proceedings. In making any matter an offence under law, we must be clear in the interests of justice that it is an offence and that the punishment for it can be enforced. The amendment is vague and open to doubt as to whether it would succeed in this regard.
Amendment, by leave, withdrawn.
Section 28 agreed to.
TITLE.
Amendment No. 34 not moved.
Title agreed to.
Bill reported with amendments, received for final consideration and passed.
An Leas-Chathaoirleach
When is it proposed to sit again?
At 2.30 p.m. on Wednesday next.