Protection of Children (Hague Convention) Bill, 1998: Second Stage.

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

The purpose of the Bill is to give the force of law in the State to the Hague Convention of 1996 on the protection of children. It provides a framework within which effect is given to the provisions of the convention in their application to the State.

The convention will determine what civil law should apply in cases of guardianship, custody of and access to children who have links with the jurisdiction of two or more contracting states. It will also determine what court should exercise jurisdiction in such cases. The convention results from the work of the Hague Conference on Private International Law. Many Senators will be aware of the work of that conference which has led to, for example, the Hague Convention on the private international law aspects of child abduction. Since ratification of that convention by the State in 1991, my Department has operated a central authority for the purpose of applications for the return of children who are abducted into or out of the State by a parent. The 1996 convention will in some respects supplement the convention on child abductions but its scope is a good deal wider because it deals generally with co-operation in respect of matters of parental responsibility and measures for the protection of children and it deals in those areas with jurisdiction, applicable law and recognition and enforcement of judgments.

We live in a world where travelling between different states is becoming ever easier and more frequent. The custodial and other interests of children need to be protected in an environment where children for one reason or another are moved by a parent or parents from one jurisdiction to another. There is increasing awareness of the international aspects of the law as it relates to children and a recognition that conflicts of jurisdiction between the authorities of different states may not be in the best interests of children. The best examples are custody disputes where parents are residing in different jurisdictions and they apply, separately, to the courts in those jurisdictions for a determination on the matter. As a result, conflicting judgments may emanate from each court on the issues involved. The convention addresses this long standing problem by setting out clear and uniform rules to be applied in such cases in all contracting states and it provides for the speedy and effective recognition and enforcement of judgments in those states.

Since some understanding of the provisions in the convention is a prerequisite to an understand ing of the provisions in the Bill, I propose to outline the main provisions of the convention before dealing with the Bill. The full text of the convention is scheduled, for ease of reference, to the legislation. There also exists an explanatory report on the convention as published by the Hague conference. Copies of that report, known as the Lagarde report, have been made available in the Oireachtas Library.

Chapters I to V contain the main provisions of the convention. Chapter I sets out its general scope. It applies to children up to the age of 18 and is concerned with "measures directed to the protection of the person or property of a child". The view of the Hague conference was that, since measures of protection vary with each legal system, any enumeration of those measures could only be in terms of examples. Consequently, the convention gives a non-exhaustive list of the measures to which it relates. In general terms, it applies to measures related to guardianship, custody and child care. It does not apply to matters such as determination of parentage, adoption, maintenance, succession, social welfare or health.

Chapter II deals with jurisdiction and lays down a basic rule, namely, that the authorities in the contracting state where the child habitually resides should exercise jurisdiction in matters of guardianship, custody and child care. This was regarded during negotiations on the convention as providing the most realistic basis for determining jurisdiction taking into account the child's interests and the availability of relevant evidence.

In the event, say, of the unlawful removal of a child the convention ensures that the first state retains jurisdiction over the child and it restricts the means by which the second state can acquire such a jurisdiction. This is particularly important by reference to the Hague Convention on child abduction and ensures that convention can continue to operate as successfully as it has done up to now.

Special provision is made in the convention in regard to courts which have competence to determine an application for divorce, annulment or judicial separation and where one of the parents and his or her child does not have habitual residence in the jurisdiction. This might arise, for example, where an Irish court was seised of a divorce application in a case where the applicant is habitually resident in the State but the respondent and a child are resident in another contracting state.

The view taken by the Hague conference was that it ought to be possible, from the point of view of convenience and cost for both parents, where they both accept the jurisdiction of the divorce court, for issues concerning the welfare of the child to be dealt with by the one court. Jurisdiction to take such measures may, under the convention, only be exercised where it is in the best interests of the child and it ceases as soon as the divorce proceedings have been finalised.

The potential role of other states with which the child may have a substantial connection is also recognised, but in a subsidiary capacity. Thus, for example, the authorities of a state of which the child is a national may request the authorities of the child's habitual residence to authorise them to take appropriate measures of protection if they believe that in a particular case they are better placed to assess the child's best interests. The authorities of the habitual residence of the child may themselves initiate the transfer mechanism if they think it appropriate.

The convention also allows the authorities of any state in whose territory the child, or property belonging to the child, is present to take measures in cases of urgency or to take provisional measures of protection, subject to the competence thereafter of the authorities who would normally have jurisdiction.

Chapter III sets out the law to be applied by courts when taking measures of protection. The basic rule is that the relevant judicial or administrative authorities should apply their own law but with sufficient flexibility to allow such authorities to take account of other relevant laws where the protection of the child or his or her property so requires. The convention provides that the law of the child's habitual residence be applied to the question of whether parental responsibility has arisen by operation of law or by agreement. If there is a change in the child's habitual residence, any such existing parental responsibility continues to be effective, but the law of the new habitual residence will determine whether any additional parental responsibility is attributed.

The thrust of chapter IV is that measures taken in one contracting state for the protection of a child or a child's property must, subject to conditions, be recognised in all other contracting states. Those measures will become enforceable as if they had been taken by the authorities of the state in which enforcement is sought. The basic principle is that a measure relating to the protection of a child should not cease to have effect merely because a border between contracting states has been crossed.

The guardian of a child whose parents are deceased, for example, should not have to go to the expense and trouble of obtaining a new order in the second state to satisfy the authorities there. Recognition and enforcement may be refused, however, in certain circumstances. These include lack of jurisdiction in the state of origin, breaches of considerations of natural justice or grounds of public policy and any interested party may apply to the court for a decision on the recognition, non-recognition or enforcement of a measure where difficulties arise.

Chapter V requires contracting states to designate a central authority to co-operate with other central authorities for the purposes of the convention. A central authority's functions will include facilitating communications and offers of assistance between courts and administrative authorities in different contracting states, facilitating agreed solutions for the protection of a child's person or property in cases to which the convention applies and, at the request of a competent authority, providing assistance in discovering the whereabouts of a child who may be present in its territory and in need of protection. Such co-operation has been singularly successful in the context of the Hague Convention on international child abduction. According to the latest information available, some 53 countries have acceded to that convention.

I now turn to the main provisions of the Bill. Section 1 contains some standard definitions. Senators should note that particular definitions are given to the words "decision", "judgment" and "measure". These are necessary because the convention will apply to court judgments and to decisions made, for example, by health boards under the provisions of the Child Care Act, 1991. The main provision in the Bill is section 2 which gives the force of law to the convention and provides that judicial notice shall be taken of it. These are standard provisions in Bills of this kind.

Section 3 is a technical provision dealing with the application of the convention in the State. The terms "authority" and "authorities" are used throughout the convention. In some contexts they mean courts in the State, whereas in some contexts they mean administrative agencies concerned with the protection of children. Section 3(2)(a) transposes such references in various articles of the convention, in so far as they apply to courts, into references to the appropriate court in the State. Paragraphs (b) to (d) provide for the manner in which the District Court is to exercise jurisdiction in relation to certain matters in respect of which it did not previously exercise jurisdiction.

Section 3(2)(b) provides for the manner in which the District Court is to exercise jurisdiction in regard to the recognition or enforcement of a measure taken in another contracting state and section 3(2)(c) provides that a measure in respect of which an order has been made shall, to the extent to which recognition or enforcement is authorised, be of the same force and effect as if the measure was an order of the District Court.

Section 3(2)(d) is also of interest because it provides for the manner in which the District Court is to give its opinion on the suitability of a parent to exercise access to a child who does not habitually reside in the State, on the application of a parent who resides in the State. This is provided for in Article 35.2 of the convention. The article reflects the view that the authorities in the state where the parent resides are in the best position to gather information on the suitability of a parent to exercise access rights.

Section 3(2)(e) makes clear that the definition of “father” in section 2 of the Guardianship of Infants Act, 1964, includes the father of a child who has by virtue of Article 16 of the convention, acquired parental responsibility by operation of the law of another state. Article 16 provides that where a parent has acquired parental responsibility by operation of law in the state of the child's habitual residence, without the intervention of the relevant judicial or administrative authority, it subsists after a change in the child's habitual residence. The maintenance of some continuity and certainty in this area is regarded, under the convention, as being in the interests of the child.

Paragraphs (f) and (g) of section 3(2) allow for the fact that the State may reserve to the jurisdiction of its authorities the power to take measures directed to the protection of the property of a child in the State and not to recognise any measure taken abroad that is incompatible with any measure taken by authorities in the State. These reservations are permissible under Article 55 of the convention. In keeping with the principle that the law which should apply to measures for the protection of a child should be the law of the country in which a child habitually resides, paragraph (h) provides that, subject to Article 52 which relates to agreements between contracting states on matters governed by the convention, any enactment or rule of law which confers jurisdiction on a court otherwise than in accordance with the convention shall cease to have effect.

Sections 4 to 8 provide for standard matters of jurisdiction in relation to the Circuit Court and the District Court for the purposes of applications under the convention in the State. Section 5 provides that judicial notice shall be taken of the relevant judgments of courts of other contracting states concerning the provisions of the convention. Where cases having an international dimension are concerned, it will be of importance that a court is seised of all relevant material relating to a child who is the subject of proceedings in that court. Accordingly, sections 6 and 7 deal with the provision of documents and evidence in court proceedings for the purposes of the convention.

A court in the State may, by virtue of section 8, address letters of request for the purposes of Articles 8 and 9 of the convention to courts or similar authorities in other contracting states. The court may do so either directly or with the assistance of the central authority it is proposed to establish in the State for the purpose of the convention.

Section 9 implements that part of the convention which requires contracting states to designate a central authority to promote co-operation among competent authorities to achieve the purposes of the convention. That section, which authorises the Minister for Justice, Equality and Law Reform, by order, to appoint a central auth ority is based on provisions which already apply to the central authority for international child abduction and the central authority for maintenance recovery which operate successfully in my Department.

By virtue of section 10, the central authority under the 1996 convention will have authority, if requested, to provide information to the competent authority of another contracting state under Articles 31, 32 or 34. It may require a probation and welfare officer, a health board or the registrar or clerk of any court to which a written report relating to a child has been sent to provide information on the child. It will also have authority to require any public office holder or body to provide it with any information which will assist in discovering the whereabouts of a child. A corresponding power is proposed in section 17 for the central authority for child abductions.

Article 26 of the convention requires states to apply a simple and rapid procedure to applications for enforcement of orders under the convention and section 11 accordingly provides for the making of rules of court to provide for the expeditious hearing of proceedings under the convention.

Section 12 is a saving provision which makes clear that nothing in the Bill shall affect the application in the State of the Child Abduction and Enforcement of Custody Orders Act, 1991, which gives the force of law in the State to the Hague and Council of Europe conventions on child abduction. When a child has been wrongfully removed from one jurisdiction to another, the priority will remain that of ensuring his or her immediate return, and that it will only be after this return that other measures of protection may be pursued. Section 12 also makes clear that nothing in the Act shall affect the existing jurisdiction of the Irish courts to take measures directed to the protection of the person or property of a child, who is not habitually resident in a contracting state, except where the convention specifically governs the taking of such measures in, for example, cases of urgency. The jurisdiction of the courts in the recognition, enforcement or non-recognition of measures taken in noncontracting states will remain similarly unaffected.

These are the main provisions of a Bill which is, at its heart, child centred and reflects international concern at the increasing incidence of parental conflict relating to children who may be the subject of decisions or proceedings in different jurisdictions. Lengthy and protracted court hearings as to forum and jurisdiction are not in the best interests of children and the convention attempts to minimise those problems. The convention is of recent origin and states are in the process of preparing for membership of it. I am sure the House will agree that we should be to the forefront in this matter. The Bill will enable the State to ratify the convention. I commend this Bill to the House.

Debate adjourned.