Seanad Éireann debate -
Wednesday, 29 Nov 2000

Vol. 164 No. 15

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

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

Mrs. Jackman

I welcome the Bill, which will enable us to ratify the Hague Convention of 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children. Why has there been a time lapse of two years in introducing the Bill in the Seanad? Is this due to the volume of legislation which has had to be processed before it?

The purpose of the convention is to provide better protection for children under easily identifiable rules of private international law. The Bill will give the convention the force of law and will give effect to its provisions in their application in the State. The Bill and the convention do not apply to persons over the age of 18 years, paternity, adoption decisions, social security, general public welfare measures, criminal matters or asylum and emigration. The convention states that it will deal with rights of custody, relocation and visitation in so far as they are international. It does not deal with guardianship, fostering placement and matters relating to children's property.

One of the most important aspects of the treaty is that it gives jurisdiction over custody to the country of the child's habitual residence. If the habitual residence changes, jurisdiction changes. For children such as refugees who have no habitual residence, the country in which they are located will have jurisdiction. All this is laudable.

The treaty allows countries to transfer jurisdiction to other signatory countries and suggests that such countries might be those where the child has nationality – this is very acceptable – where a divorce case is pending between the child's parents and with which the child has a substantial connection. The most important aspect is that before accepting jurisdiction the new country is required to consider whether accepting the child would be in his or her best interests.

Mary Banotti is rapporteur in the push by the French Presidency towards a particular regulation aimed at ensuring right of access for non-custodial parents. This matter is a source of some concern in a number of states, particularly France and Germany. Parents seem to be running into problems in this area. Justice Ministers may not agree on the issue. There is a meeting scheduled for 8 December in Nice. There is also a need for ministerial attention at the Council of Ministers in March to further develop the convention. I ask the Minister to attend and support the convention.

Parental alienation syndrome, the alienation of one parent from the child, has come to the fore in the United States of America. It is given a high status in court in cases where there is a denial or change of custody. In some states this is a criminal offence.

For some time we have had a central authority dealing specifically with all issues relating to child abduction. I have the figures up to and including 1998. The total number of cases dealt with under the Child Abduction and Enforcement of Custody Orders Act, 1991, was 1,016, of which 584 were the subject of application to the central authority. Many of the cases related to abductions between the United Kingdom and Ireland, nine related to other EU member states and 9% to the United States. I am glad Ireland was one of the first countries to deal with the issue and is to the fore in handling such cases, many of which are referred to the High Court, the judges of which are au fait with the procedure involved. This is not always the case in other countries where cases are dealt with by a more minor magistrate who would not be au fait with the procedure involved in what is a very delicate and sensitive area.

The national children's strategy was launched recently on which I laud the Minister of State, Deputy Hanafin. I would prefer the establishment of a full ministry for children to the establishment of a Cabinet sub-committee of relevant Ministers chaired by the Taoiseach to ensure its implementation. While I appreciate that this is a justice issue and that there is an overlap – this is reflected in the fact that I am speaking as my party's spokesperson on health and children, was preceded by the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, and will be followed by the Minister of State – fragmentation could be avoided by the establishment of a ministry for children. I accept there is a need for an ombudsman for children.

Because this is such a positive Bill I am very anxious that it proceed. We are already two years behind. I hope it will have a swift and speedy passage.

Mr. O'Donovan

I welcome the Minister of State, Deputy Hanafin, and commend this very important legislation to the Seanad. I compliment my colleague, Senator Jackman, on being brief and to the point. In researching the issue, I read extracts of some of the contributions in the Lower House where the debate ranged from paedophile rings and child sex abuse to homeless children and related matters. By comparison, the contribution of my colleague was to the point and remained within the scope of the legislation, which has nothing whatsoever to do with paedophile rings, child sex abuse or homeless children. It purports to deal with civil law, not criminal law, and it is important to make that distinction.

The Bill will enable us to ratify the Hague Convention of 1996 on jurisdiction and other matters concerning the protection of children. This is crucially important when one considers that we are dealing with such matters as guardianship and the custody of infants and access to children, which is defined in the Bill to mean people of 18 years or younger.

The crux of the matter is that within the European Union – this is a UN convention which applies across the world – there are many different systems of law. For example, like the United Kingdom, we operate the common law system. On the other hand, French, German and Italian law is based on the Napoleon code, a system of civil law of slightly different complexion. This highlights the need for coherence, consistency and synchronisation of law across the European Union in dealing with matters of jurisdiction. The scope of the Bill is confined to a number of prime issues. One is to determine the state whose authorities have jurisdiction to take measures directed to the protection of the person or property of a child. This is important.

Another central issue is to ensure and determine that any issues regarding the protection of children or of property related to children will be dealt with concisely and in an efficient manner and that the vulnerable person who is the subject of any such application, being the child or a person of minor age, would not be thwarted or frustrated by the various jurisdictions, laws and courts. This also applies to orders made by health boards. The convention will determine which law is to be applied by such authorities in exercising their jurisdiction.

The convention uses the term "habitually resides". That is the crux of the issue. The jurisdiction where the child habitually resides will determine which jurisdiction or state will take precedence when dealing with the issue of domi cile. We are familiar with the terms "normally resident" or "usually resident" but the phrase "habitually resides" is new to me and denotes the domicile for the purposes of which state law comes into effect.

Senator Jackman mentioned the delay of over two years since this matter was debated in the Lower House. It is important to note, however, that only two states, Switzerland and the Czech Republic, have adopted the convention. Ireland is ahead of other European countries. This is an important issue and we should not drag our heels when dealing with it. I presume the Bill will become law prior to the Christmas recess or early in the new year. The Hague Convention follows on the 1991 convention which deals with the abduction of children. Ireland ratified it and it is working well.

There is another important aspect to the Bill which should be noted, the establishment of the central authority for the purpose of assisting children who are involved in these legal wrangles involving different states. The world's population is relatively mobile and there is free movement of persons within the EU. There is freedom to travel from eastern Europe to the British Isles and throughout the Mediterranean countries. In such circumstances, it is possible that one parent might live in Italy, for example, and the other might live in Ireland. A row could develop where one parent might have custody and control of the child and the other is seeking a basic right, such as access. It is in that type of environment one can see the importance of this Bill.

To ensure the Bill is effective, all EU countries and other international states should adopt the convention. If the convention is not adopted by a country, it cannot be a player when dealing with cases of custody, parental responsibility and related matters. I welcome this timely legislation. It deals with another strand of the child care issue. Various Ministers in this Government have taken a keen interest and a progressive and proactive role in producing an atmosphere of responsibility and care for our young people.

This Bill highlights the rights and privileges of people under 18 years of age and in that context it is most important. I hope it will get a speedy passage through the House.

Dr. Henry

This Bill deals with parental responsibility. I have been grateful to the Minister of State in the past for the concern she showed about the movement of children around the world who were the responsibility of people other than their parents. Two years ago, when the Minister of State was newly appointed, I brought it to her attention in the course of an Adjournment debate that adoption agencies from third countries were operating in this country. I suggested that this was undesirable and that only our adoption agencies or adoption agencies in the child's country of origin should be involved in the adoption of children. I was extremely grateful for her immediate action on that issue.

I have just returned from eastern Europe where I had the privilege of giving a lecture. To my horror, people there are most concerned about the trafficking of children, particularly children from Russia. On television I watched the arrest of a man and his mother who were the uncle and grandmother of a five year old child who was being sold for $90,000. Bizarre suggestions have been made that the child, who was shown in the car with the people who intended to drive him away, was being sold for his organs. I cannot say whether this was correct. I watched it on television in Bratislava and it was recorded in Russia. It is difficult to think that children who are in orphanages could be so vulnerable.

This legislation is more than welcome but a great deal more time and thought must be given to the trafficking of children. The Minister of State will be aware of the arrests which took place recently in Italy where a huge paedophile ring was exposed involving children who had been trafficked from Russia. I am most grateful for the interest she is taking in this issue.

The most frequent occurrence is the removal of children by an aggrieved parent, who is in dispute with the other parent, from one jurisdiction to another. Of course, we must sign this convention. I congratulate Senator Quinn on bringing to the attention of the Leader of the House the fact that the Bill had languished for a long time on the Order Paper. I am sure the Minister of State would have liked to have pushed it forward as quickly as possible.

It is extraordinary to think that there are between 100 and 200 of these cases in this country every year. About the same number of children come into the country as are removed from it. It is not, therefore, a distant problem. I am concerned, however, that the Bill appears to apply only to marital children. I note that the Minister of State's official is shaking his head. I am delighted. Many children are born outside marriage so I am relieved that it applies to those who have parental responsibility for the child. That is most important. Otherwise a large number of children would not be covered by the legislation.

The free travel area between Ireland and Great Britain means it is particularly easy for people to come here with children. It is also easy for people to move around in the Schengen agreement area. Sometimes children are taken extraordinary distances. Mary Banotti, MEP, who is the President's adviser in this area, had to go to Western Samoa at one time in pursuit of a child who was the subject of a dispute between an Irish mother and a German father. Court orders are easily ignored by parents when they are intent on scoring points off each other.

I have no desire to delay the House any longer. I wish, however, to congratulate the Minister of State on the firm action she has taken in respect of the areas to which I refer. I hope that, at any ministerial meetings she attends in Europe, she will do her utmost to ensure that the trafficking of children from eastern Europe is given careful consideration. This problem is of great concern to people living there who are anxious, particularly in light of the advent of a new and enlarged European Union, about children who might be transported through their countries on their way to western Europe where, unfortunately, most of the money is to be made from these appalling transactions.

Mr. Costello

I welcome the introduction of this legislation which provides for mutual contact between contracting countries in relation to the care and welfare of children, makes particular provision in respect of parental responsibility and sets out other measures for the protection of children. Most of us are disappointed that the Bill, which was debated in the Lower House last year, is only coming before the House now. We often bemoan the fact that so much legislation passes through this House only to gather dust while waiting to be dealt with by the Lower House, but the reality is that there is far more legislation passed by the Lower House which is awaiting introduction in the Seanad.

This important issue was dealt with under the heads of a Bill prepared by Mervyn Taylor in 1996. The previous Administration's legislation dealing with this matter was almost ready to be introduced when it left office. That would have been apt, given that the Hague Convention had only been agreed and its measures could have been incorporated into law at that stage. The substance of the Bill before us had already been agreed by the time the current Government entered office.

It would have been good if we had been able to ratify the convention in law at an earlier stage in order that we could take the initiative in respect of the protection of children. There is not much point in our introducing legislation to ratify a convention unless there are other contracting countries. The Minister of State provided no indication of the number of contracting countries that exist. Unless we have a reciprocal arrangement with other countries, any measures we introduce will be irrelevant. We cannot deal with children who pass into our jurisdiction from another unless that jurisdiction has passed this convention into law. Perhaps the Minister of State will indicate the other countries that have signed up to the convention.

I am disappointed Ireland is quite far behind other countries in terms of making statutory provision for the protection of children. The Minister of State will be aware that we are still awaiting the introduction of the juvenile justice Bill which will replace the 1908 legislation. Perhaps she will indicate when that Bill will come before us. It is outrageous that almost a full century has passed since the area of juvenile justice has been tackled by the Legislature. In addition, it is scandalous that the age of criminal responsibility still stands at seven.

Deputy Owen introduced a Bill dealing with this matter in 1996 but its passage was never completed. Four years have passed and the Government has neither re-introduced that Bill so that it could be amended or produced its own Bill. I understand the Minister of State intends to introduce legislation on this matter. Will she indicate when it will appear because a serious lacuna exists in terms of the lack of provisions for children at risk?

There are serious difficulties in the area of juvenile justice, particularly in terms of parental responsibility. There are far more dysfunctional families now than was previously the case. The Garda Síochána is constantly complaining about its inability to encourage parents to become involved in caring for children who are at risk.

I suggest that the most advantageous approach might be to incorporate in the Constitution the UN Convention on the Rights of the Child. Perhaps that could be done by means of a constitutional amendment which would mean that the rights of children would be enshrined in the Constitution. We would then be well to the fore in relation to this matter.

A tribunal is currently investigating incidents of child abuse, some of which were highlighted on the television programme "States of Fear". We have not fully dealt with the problem of child abuse in this jurisdiction. We have been slow to deal with matters involving the protection of children and there are a number of actions pending in relation to children who were in the care of the State, which did not exercise a proper level of responsibility in dealing with them. We must put our own house in order in respect of this area and we will then be able to deal with matters involving other contracting countries, as envisaged under the legislation.

The question of free legal aid must also be considered. If free legal aid is not available, parents who are poor will not have equal access to the law. I am concerned about the legal aspects of establishing a central authority. I am also concerned about the question of parental responsibility. What is the position vis-à-vis providing free legal aid to someone taking a case in a country adjacent to Ireland, such as Northern Ireland or England, or one farther afield in Europe or elsewhere? Travel is part and parcel of people's everyday lives and children move between jurisdictions in greater frequency and in larger numbers than heretofore.

I welcome this legislation which places on the Statute Book a measure which should have been there a few years ago. There are many other matters which should also be dealt with by way of statute. The legislation will not have much meaning unless we put in place other legislation that enshrines in law the aspects of parental responsibility we consider important. We cannot very well deal with contracting countries without that level of concern and provision being expressed in statute. We must know precisely where we stand and we should no longer rely on provisions that were put in place almost a century ago.

Minister of State at the Department of Health and Children (Ms Hanafin)

Go raibh maith agat, a Chathaoirligh, agus gabhaim buíochas leis na Seanadóirí uilig as an méad a dúirt siad.

Even though this legislation is restricted, it encompasses many areas. We could discuss a number of those areas at length and I thank the Senators for their comments in respect of them. The debate has shown that the international dimensions of child protection are becoming more acknowledged whether they arise in the context of runaway teenagers or otherwise displaced children, the cross-frontier exploitation or abuse of children or the breakdown of international marriages.

As the preamble to the convention indicates, its provisions were framed to take into account the United Nations Convention on the Rights of the Child which was ratified by Ireland in September 1992. The recent publication of the national children's strategy goes a long way towards fulfilling our role in implementing the convention in relation to the rights of children. The UN Convention on the Rights of the Child, in effect, a bill of rights for children, and the Hague Convention of 1996 promise to form one important strand in the legal fabric required for the effective international protection of children.

Senator Jackman referred to the 1980 convention. Article 50 of the 1996 convention, which we are discussing, provides that the 1980 convention, which as Senator Jackman pointed out has worked well, has priority over the present convention in abduction cases. When a child has been wrongfully removed the return of that child is still the main priority. Article 50 is given effect by section 12 of the Bill.

Senator Jackman asked for figures on the child abduction central authority. I do not have those figures to hand but I will ensure they are forwarded to the Senator. The Senator also referred to the draft EU regulation on the mutual enforcement of access orders. Some time ago the House passed a motion approving Ireland's opting into consideration of this measure. The significance of the draft regulation is that an access order of one EU state would be enforceable in another member state without the need for a declaration of enforceability in the latter state. This is not the case with the present legislation. Under section 3(2), the request for the enforcement of foreign orders, whether regarding access or other matters, must be made to the District Court.

Senators Costello and Jackman raised the time lapse in bringing the Bill to the House. The Bill was published in 1998 but only passed through the Dáil in April 2000. Senator Costello rightly said that the pressure of the parliamentary programme delayed the Bill. However, Senator O'Donovan pointed out that the fact that only two states have ratified the convention means we are still ahead of the posse.

Senator Jackman expressed disappointment that the children portfolio is not a full ministry. Much as I would like to be a Cabinet Minister, even I must admit it is not possible to take responsibility for children away from Departments dealing with education, the family and health. At the launch of the national children's strategy, the Taoiseach pointed out that creating a Minister for children would lead to a Department comprising three quarters of the Government. The Cabinet sub-committee and the national children's office, which will be a permanent office established on an interdepartmental basis, will carry out the co-ordinating role we have all recognised as essential for dealing with all issues regarding children. The fact that this office will come from and work with different Departments will ensure that each Department plays its role in implementing the strategy. The expanded role of the Minister of State with responsibility for children will be to ensure that the strategy works, and I will see to that.

Senator Henry referred to our joint concern about adoption agencies. I visited some of the orphanages in Russia and welcome the Russian Government's decision to clamp down on the system in that country. This decision makes it difficult for us to facilitate adoptions for Irish parents in the interim. However, once the system has been properly worked out it will guarantee that Russian children who are available for adoption and who come to this country will do so with the full consent and legal backing of Russia. This is very important in the interests of the child and protecting children.

Senator Costello asked about the Children Bill. This is very important legislation under which detention will be a last resort. The Bill is on Com mittee Stage in the Dáil. The committee is to hear submissions from a number of groups next week and the week after and will then debate the Bill. This Bill is at quite an advanced stage in the Dáil and I look forward to debating it in this House as it is important legislation which will overhaul our juvenile justice system.

Senator Costello also raised the possibility of a constitutional amendment. One of the suggestions of the constitutional committee some time ago was for an amendment to the Constitution to underpin the rights of children as children, and not as citizens. This is also one of the recommendations of the national children's strategy. Copies of the strategy were circulated to Senators and we might have an opportunity to discuss it at a later stage.

The points made concerning child abuse are important and valuable. Real progress has been made regarding the publication and implementation of guidelines on child abuse, its detection and how to handle such cases. These guidelines are being used by all those who come into contact with children. The White Paper on mandatory reporting is being completed in my Department and is almost ready to go to Government. These two measures, in addition to the child trafficking Act, will ensure we are introducing strong measures to protect children at all stages.

We share concerns about children and the protection of children at national and international levels which we are discussing in the context of this Bill. We recognise that the international community has a role to play. Legislation such as this Bill and the ratification of conventions reflects our intention to protect children in all situations. I thank Senators for their comments.

Question put and agreed to.

Acting Chairman (Mr. J. Cregan)

When is it proposed to take Committee Stage?

Mr. T. Fitzgerald

Next Wednesday.

Committee Stage ordered for Wednesday, 6 December 2000.

Acting Chairman

When is it proposed to sit again?

Mr. T. Fitzgerald

At 10.30 a.m. tomorrow.

The Seanad adjourned at 9.05 p.m. until 10.30 a.m. on Thursday, 30 November 2000.