Amendments Nos. 1 and 2 are related and may be discussed together. Is that agreed? Agreed.
Protection of Children (Hague Convention) Bill, 1998: Committee Stage.
I move amendment No. 1:
In page 5, subsection (2)(b), line 6, after “subject” to insert “in particular to Article 23.2 and”.
These are the most important amendments. The purpose of the Bill is to provide protection for children and to ensure that parental responsibility matters and that enforcement orders, decisions and judgments can be implemented in a reciprocal fashion between two contracting states.
The other side of the coin is equally true – that a contracting state, for whatever reason, may have made a decision that might not necessarily be in the best interest of the child. Normally we must recognise the decision of that foreign court, but there is a little loophole here in Article 23.2 of the convention which gives some protection in a situation of this nature in that it enables us to refuse to recognise such a decision if we think it is not in the best interest of the child. I am sure no jurisdiction would do this for the wrong reason but it may well arise from time to time. I propose to make specific reference to Article 23.2 which allows us to refuse recognition so that, if something of this nature arises, we can draw the attention of the courts to the matter and to the entitlement as we deem appropriate in this respect.
The second amendment is similar and is self-explanatory. It states: "For the purposes of the Convention any requirement which is not in the opinion of the court in the best interests of the child shall be deemed to be manifestly contrary to public policy." That is something we should ensure. Because of the nature of the contract between the two contracting states under the convention and the possibility of this arising, it is important we introduce those two caveats or protective measures into our domestic legislation to ensure the interests of the child are paramount.
We must bear in mind that this is an attempt by this country to adopt and accept the convention. Within that convention, there are many international bodies of law from various countries, whether Monaco or the Czech Republic, which I understand has already accepted it. Senator Costello's amendment is attempting to modify the convention rather than adopt and accept it. The tenet of the Minister's speech last week and the purpose of this legislation is to ratify the convention.
Each country will have a different legal system. For example, Great Britain and Ireland have the common law system. We have a very similar system to Wales, Scotland and England. Some European countries have a different system of law which is based on the Napoleonic code. The American and Canadian systems are a cross between the Napoleonic code and the common law system.
Children are clearly paramount in the Bill but we must also accept that we cannot modify the convention to suit ourselves. We are adopting the convention and we have to suit it rather than have the convention suit us. If Senator Costello's amendment were accepted, it would be a direct attempt to interfere with or in some way water down the convention. That would be incorrect and would be the wrong approach.
There is a lot of give and take. We will be accepting the laws of Monaco, the Czech Republic and other countries and, consequently, our laws may have to adapt to international laws rather than international law being modified or weakened to suit Ireland. I fully agree with my colleague that the interest, safety and well-being of children are of paramount concern here but the Bill amply covers this while realising that we have to accept the Hague Convention. While I understand from where the Senator is coming, the amendment is inappropriate and unacceptable to our side of the House.
Amendment No. 1 would require the District Court to have regard in particular to Article 23.2 of the Convention in determining whether to recognise or enforce a measure taken by a competent authority in another contracting state under section 3(2)(c) of the Bill. Section 3(2)(b) already requires the District Court to exercise its jurisdiction pursuant to chapter 4 of the convention which will have the force of law in the State by virtue of section 2 of the Bill.
Chapter 4 comprises Articles 23 to 28, inclusive, of the convention. Consequently, it is clear that the basis for the exercise of the court's jurisdiction in such cases is to be found in those articles, including Article 23.2. Article 23.2 gives the ground on which recognition may be refused.
If I were to accept the amendment, the effect could be that it would require the court to exercise its jurisdiction by reference to Article 23.2 above and beyond provisions in the articles I have mentioned. This seems to be an attempt to qualify the convention. On that basis the amendment is not acceptable.
In relation to amendment No. 2, the words "manifestly contrary to public policy" are to be found in two separate articles of the convention, namely, Articles 22 and 23. Article 22 enables the court to refuse application of the provisions on applicable law, if application would be manifestly contrary to public policy, taking into account the best interests of the child. Article 23(d) enables a court to refuse to recognise a measure taken by a court or authority in another contracting state if such recognition is manifestly contrary to public policy taking into account the best interests of the child. Therefore, if the court here is asked to consider the “manifestly contrary to public policy” exception in the convention as specified in those articles, it is required to assess that exception taking into account the best interests of the child. Section 2 of the Bill gives the force of law to the provisions of the convention and this includes Articles 22 and 23.
The issue that is raised in the amendment is in part already provided for in the convention, and it will be part of our domestic law by virtue of section 2 of the Bill. However, we cannot go further than is provided for in the convention and allow the court to refuse to apply the relevant law or to recognise and enforce a foreign order in circumstances other than those provided for in Articles 22 and 23. In other words, we cannot adopt an à la carte approach to the convention.
To achieve its purpose, the convention obliges contracting states to accept the principle that the authorities in all contracting states are equally capable of ensuring a fair hearing to the parties involved and a skilled and humane evaluation of the issues of child welfare involved. It may be that in certain cases the jurisdiction of the Irish courts is ousted in favour of the jurisdiction of authorities in other contracting states under the convention. Consequently, it will not be possible for Irish courts to conduct an inquiry into the welfare of a child in all such cases, the principle being that the authorities of the country with which the child has a closer connection, usually the country of the child's habitual residence, are better placed to do so. This is not unusual because it can and does arise under another Hague convention, the Hague Convention on Child Abduction, which has been part of our law since 1991. That Act, in this connection, has on several occasions been upheld by decisions of the High Court and the Supreme Court.
The Bill, for its part, has been examined and approved by the Attorney General. The Convention on the Protection of Children requires that rights conferred by virtue of the law applicable in the contracting state and measures taken by authorities in a contracting state shall be recognised by operation of law in all contracting states. The virtues of such a system of automatic recognition are simplicity and certainty in the context of orders relating to the welfare of children. It is based on the assumption of mutual trust that the courts exercising jurisdiction under the convention will do so responsibly. This is not an absolute rule, and there is a degree of flexibility enshrined in the relevant provisions. Article 23, for example, specifies six instances where recognition may be refused, most notably those including exception where recognition is manifestly contrary to the public policy in a requesting state, taking into account the best interests of the child.
It is not my intention to water down the convention or to undermine or qualify it in any way. I do not think any of the amendments I have tabled is directed in that way or could be interpreted in that fashion. The amendments are designed to focus on the implementation of the legislation in this jurisdiction. This is enabling legislation, a framework Bill for the implementation of the Hague Convention on the protection and welfare of children. All of us have stated that our concern is the best interests and welfare of the children concerned.
The Minister of State said the jurisdiction of the Irish courts could be ousted by another jurisdiction – I am not sure if those were the words she used. Effectively what this convention means is that we have to accept the jurisdiction of a foreign court. We must do so with care because countries have different legal systems and different approaches to child welfare. We ourselves have been late in the day in cherishing all the children of the nation equally. The Children Act, 1908, is still in operation and the criminal age of responsibility is seven. Decisions of a court in a foreign jurisdiction will be at variance with decisions taken in our courts. There is no doubt about that because every country is at a different stage of development in relation to child welfare and the enforcement of children's rights and protective measures. It is proper for us in this House to draw the attention of the Irish courts to an area where a difficulty might arise.
I understand only two or three countries, besides ourselves, have signed up to the Hague Convention. Whatever about reciprocal arrangements between jurisdictions, we do not know the legal mechanisms operating there or the degree of child care in those countries. It is appropriate to ensure that the attention of the courts is drawn to the protective measures. Certainly Article 23.2 appears to provide the most protection in that there are grounds on which recognition or enforcement of decisions can be refused. If that is contained in the convention it is appropriate that the enabling legislation should reflect that also. What is the purpose of the enabling legislation unless it incorporates the convention and the core of the legislation is the protection of children's welfare? We are prepared to accept decisions of other courts but where there is a caveat let us direct the court's attention to it. It is in the best interests of the children that a particular reference should be given to protective measures whereby we can refuse to recognise or enforce a particular judgment.
I am not attempting to undermine the convention or to qualify it but rather to ensure it operates in the best interests of Irish children.
The purpose of this convention is to be a model for all jurisdictions. It addresses a long-standing problem by setting out a clear and uniform system set of rules. At present there are 14 or 15 states in Europe and beyond that there are several jurisdictions which have different rules. As Senator Costello rightly pointed out, the Children Act, 1908, is outdated. I am pleased the Minister mentioned that he proposes to bring in new legislation to deal with that. It is important that this legislation deals with civil law and not criminal law. Primarily, we are dealing in this convention with civil law regarding the custody of children, access and maintenance. We have a mobile society and many people reside in my constituency who come from all parts of Europe and beyond. It is important to have a uniform system in place in Europe. The convention is the model and this and other legislation is an attempt to raise our rules and laws to the model of the convention.
I understand that Senator Costello is anxious to protect the interests of children and that there should be a fall back whereby our legislation would take precedence over the convention. If that were to be allowed, and if every other country in Europe were to apply the same rule, the convention would break down. The convention is trying to create a level playing pitch in the interests of children in all these matters. The thrust of the convention would be defeated if each state were to build into its law an opt out clause when ratifying it. The convention is a model, the purpose of which is to create a uni form system of rules and regulations which will apply across Europe and beyond in the best interests of the children.
We may be somewhat tardy in ratifying the convention but Ireland will be only the third country to do so. The Labour Party amendments may unwittingly weaken or water down the power of the convention. That may not be the intention but it could be the upshot.
Senator O'Donovan has got to the core of what is at issue here. The quid pro quo is that a foreign court would enforce our decisions. The point Senator Costello is missing is that the authorities of the country with which the child has a closer connection, usually the country of the child's habitual residence, are better placed to take these decisions. What Senator Costello is saying is tantamount to claiming we should review the merits of the decisions of foreign courts. As Senator O'Donovan has pointed out, would we like it if the decision of an Irish court regarding a child whose habitual residence was here were to be reviewed in Monaco? Senators must accept that we are talking about whether to accept the convention. If amendment No. 2 was consistent with the convention it would have appeared in it.
The convention may sometimes involve us in recognising and enforcing judgments of foreign courts. Equally, it may involve foreign courts recognising and enforcing judgments made in our courts with regard to children who have a closer connection to this country. It is important to recognise that the courts involved will have assessed the interests of the child in a different way in cases where a child is situated in Ireland or has closer connections to here or vice versa.
Senators must appreciate that if court decisions in other jurisdictions were to be reviewed on their merits here or decisions of our courts were to be reviewed elsewhere, then the convention simply would not work. The Senator's amendments qualify the convention and this is not permissible. There is no point in our pretending to sign up to the convention and then trying to qualify it, or in other countries doing the same.
Senators must accept that the quid pro quo is that foreign courts will enforce our decisions. It is particularly important Members note that without this convention they may not do so. The benefit from our point of view, with regard to the children who have a closer connection with this country, is that foreign courts will enforce our decisions and that without the convention they might not.
Let us refer to my first amendment. Article 23.2 of the convention gives some protection because it states the grounds where we can refuse recognition and enforcement. The convention already recognises the possibility of what I sought to focus on in my amendment. Some protection is given in Article 23.2 to cases where recognition can be refused if it is deemed appro priate. It is important to require the courts to have regard to this provision. That is not qualifying the legislation or saying that the courts in our jurisdiction will make their own decisions. I am simply drawing the attention of the courts to this section.
In my last analysis there is only one purpose of this legislation, to try to improve the welfare of children. I am sure that decisions made by foreign courts will be enforced in this jurisdiction 99% of the time. I am also sure that decisions made in this jurisdiction will be enforced in foreign courts that are contracting parties. Is there anything wrong with drawing the attention of the courts to the fact that this article is in the convention and that they should take cognisance of it?
My amendment is not qualifying. It is highlighting, focusing and telling the courts that the best interests of the children are paramount. We want to ensure that this convention results in protecting the children of our country.
I assure Senator Costello that Article 23.2 will be part of Irish law under section 2 of the Bill and the courts must have regard for it. Therefore, the Senator's amendment is unnecessary.
Section 2 of this Bill states: "Subject to the provisions of this Act, the Convention shall have the force of law in the State". However, it does not specify the area. It is very different to have legislation that has a broad framework and is enabling. It is important to specify where the interests of children could be examined by the courts and to bring this matter to the attention of the courts. There is nothing in this legislation that even suggests that. We should state this in the Bill and ask the courts to take particular cognisance of Article 23 when it is a question of enforcement or the recognition of a decision.
Section 2(2) very clearly states that judicial notice must be taken of the convention. That means all of the convention.
It is very general. The convention is a large document.
Article 23.2 outlines the grounds on which recognition may be refused.
That is right.
If I were to accept this amendment the effect could be that the court would be required to exercise its jurisdiction by reference to Article 23.2 above and beyond provisions in other articles. That seems to be an attempt to qualify the convention. I cannot accept this amendment because the Senator is trying to highlight and give precedence to a particular article of the convention.
I want to highlight, not give precedence.
If you highlight something then you give precedence. What the Senator is trying to do is already covered in section 2(2) where it states: "Judicial notice shall be taken of the Convention". That provision means all of it.
My intention is to highlight it. Every piece of legislation will highlight certain provisions because that is the core of legislation. If it does not then it is bad legislation. What is legislation for? The purpose of legislation is to ensure that particular aspects of policy are incorporated in a framework. The text of legislation focuses on the core of the particular aspect of policy. All legislation is like that. All legislation has provisions that highlight the difficulties and problems it seeks to address. That is the whole thrust of legislation. It does not mean that you are undermining anything or wrong to present legislation that focuses on and highlights particular provisions.
I do not accept the Minister of State's argument. I know we will not go any further with my amendment because I cannot see her accepting it. However, my amendment is important and if it is left out we could find ourselves enforcing and recognising decisions made by a foreign jurisdiction in the future. Perhaps we will rue in the future that we did not insert an amending provision in this legislation to protect against those decisions. They may cause us difficulties in the future.
I move amendment No. 2:
In page 5, subsection (2), between lines 20 and 21, to insert the following paragraph:
"(c) For the purposes of the Convention any requirement which is not in the opinion of the court in the best interests of the child shall be deemed to be manifestly contrary to public policy.”.
I move amendment No. 3:
In page 7, subsection (2), line 13, after "Convention" to insert "dated the 15th day of January, 1997".
This is a simple amendment. I seek the inclusion of the date of Professor Paul Lagarde's report on the convention. Section 5(2) states: "Judicial notice shall be taken of the report by Professor Paul Lagarde on the Convention .. when inter preting any provision of the Convention". That report was published on 15 January 1997 and this date should be inserted in the legislation.
I do not know whether there was an interim report or a previous document published. However, it should be tied down in greater detail than at present, which would improve the legislation. It would also make it easier for researchers and others trying to find the seminal document. This is an excellent report by Professor Paul Lagarde on the background and framework of the convention. The first question a librarian would ask someone looking for a report would be the date it was published. The publication date would be of considerable advantage in dealing with this matter, which is important in terms of interpreting the convention.
The insertion of such a date is most unusual. I do not follow the arguments of my learned colleague. The Lagarde report is a unique and specific document. We often adopt the excellent work of the Irish Law Reform Commission in our legislation. Unfortunately, some of its reports lie gathering dust but many of them are taken into consideration when legislation is being drafted. I have never seen a particular Irish Law Reform Commission report or its publication date referred to in legislation. My colleague's amendment is unnecessary. The Lagarde report is unique. It is not the case that there are ten of them and one might be confused about which is referred to the convention. I see no good cause to accept this amendment.
I disagree with Senator O'Donovan and agree with Senator Costello. I second the amendment. It is necessary, for all the reasons Senator Costello stated, to include the date of the report. Paul Lagarde is an eminent expert and has written more than this report. This amendment gives the Bill the necessary clarity, by simply including the words "the 15th day of January, 1997", which is the date on which he published his report. That removes any doubt. Law should always be precise, which is why this amendment was tabled.
My information is that it is not the practice to give such dates in legislation. I am guided by the practice of the Parliamentary Counsel to the Government in this area. This seems reasonable, given that there is only one explanatory report, as Senator O'Donovan pointed out. The date is not of any particular significance. In the circumstances, I do not accept the amendment, as it is clear from the section what report is being referred to. There is only one explanatory report. The advice of the Parliamentary Counsel to the Government is that it is not normal to insert the dates of reports into legislation in this way. I cannot accept the amendment.
It is hardly good enough for the Minister of State to say it is not the practice, and then go on to say—
It is not the practice, it is not significant and it is not necessary – I said three things.
The Minister of State also said that in this case there is only one report. What would be the situation if there were more than one report? Would the practice change?
Paul Lagarde has written more than one report.
There is only one convention and one report on that convention. It is very clear.
Yes, but it could have been published in 1990 for all we know.
That is not relevant, it does not matter.
We do not know that. How will someone looking for information on this in a library or on the Internet, who knows that a seminal document, the Paul Lagarde report, preceded the Hague Convention and is the framework which will provide the interpretation of the convention, find that report?
Ordinary punters are not experts in law. While it will mostly be used by lawyers, this also concerns children, families, international jurisdictions and contracting parties. Many ordinary people will be interested in what might happen in relation to an enforcement order or a decision made in another jurisdiction. The intelligible part of that will not be this Bill or the convention, but the report of Paul Lagarde. I cannot see why the Minister of State does not want to help the people who will be affected by the provisions of the Bill.
I understand the dates of the reports in the Official Journal are stated in the Jurisdiction of Courts Act, 1998, and that it is the practice in many cases to give the dates of reports. This is not unprecedented.
I move amendment No. 4:
In page 8, between lines 34 and 35, to insert the following subsection:
"(3)The Central Authority shall take steps to inform the public of its services.".
Section 9 deals with the establishment of the central authority. The purpose of the central authority is "to perform in the State the functions conferred on it by this Act or by virtue of the Convention". I presume that should read "and by virtue of the Convention" rather than "or". Will the Minister of State refer to that in her reply? The section goes on to state that the Minister can perform the functions herself or himself prior to the establishment of the central authority.
The central authority is envisaged as the body that would deal with the whole operation of this legislation and the convention. As I said before, the purpose of this legislation is to deal with children and families. It is very important that its provisions, resources, supports and the funding available to help families ensure their children get the best deal out of the convention be publicised as broadly as possible. In past cases where lawyers were employed at great expense, the availability of free legal aid was not highlighted sufficiently.
I am not qualifying the legislation but pointing out the provisions that need to be highlighted because they will affect people. People regularly move between states and this legislation will be used on a much wider basis than would have been the case ten or 20 years ago. Families and children travel to a much greater degree now and it is very likely that there will be an increase in the number of contracting countries and the number of incidences in which there will be reciprocal matters to be dealt with by the courts, decisions made, measures taken and enforcement orders dealt with. It is important that the services to be provided by the central authority are highlighted and publicised as widely as possible.
This is a reasonable amendment. Many State services advertise to the public, although not as many as we would like. As this is a complicated area involving families where abduction may occur, it is important that the services to be provided be public friendly, so to speak, and clearly known. Proactive steps should be taken by the central authority to ensure that the public is aware of its existence and function.
There is a distinction between the central authority dealing with child abduction and the new central authority dealing with the protection of children. The numerous functions of the central authority under the convention are specified in the various articles. Article 30 is relevant to this amendment. It requires central authorities to co-operate with each other and to promote co-operation among the competent authorities in their states to achieve the purposes of the convention.
This last provision will have practical importance because it will require the central authority in the state to inform the various other authorities of its functions and to ensure that in this connection there is a delivery of the service that may be necessary. This may extend, for example, to such matters as the need to provide a report on the situation of the child or to consider the need to take measures for the protection of the person or property of the child. The measures of protection may include the placement of, or the provision of care, for a child. These matters are fundamental to the operation of the convention.
It will be the duty of the central authority to engage in communications, largely on an inter-central authority basis, and, in the State on an institutional basis. It follows from this that the central authority will, as a matter of course, be engaged directly or indirectly in information exercises provided for in the convention. There is no need to make it mandatory on the authority to inform the public about its services. We can rely on it to use its good sense and discretion in the light of experience as to whether and what type of information needs to be given to the public about its services. We should avoid being prescriptive about the role of the authority because it is set out in the convention and this is given the force of law by section 2 of the Bill. For these reasons I am unable to accept the amendment.
What plans has the Minister of State to establish the central authority? Section 9(2) states, "Pending the appointment of the Central Authority the Minister shall perform its functions". Despite the specific requirement in the convention that the two central authorities in contracting states co-operate, and the provisions regarding their mutual role in that respect, we may end up without a central authority.
I am not impressed with the Minister of State's preference for not having a specified requirement included in the Bill. She says we should not be mandatory or prescriptive but should leave it to the good sense or discretion of the authority. What is meant by that? Our function here is to legislate, not to leave it to the discretion of anybody.
To follow the role as provided for in the convention.
The convention does not specify the role in terms of communicating to the public the provisions of the central authority and, given this, enabling legislation should do so. Our function is to ensure that best practice on the implementation of the Hague Convention in relation to the protection of children is put in place. We will be negligent if we do not direct the central authority, which will have the major role in dealing with the central authorities in other countries, in the conduct of its business. A major function of the authority is to communicate its services to the public so that all those who may be affected by the convention will know of the role of the authority.
The Minister of State is too vague on this aspect. I hope she will indicate when the central authority will be established because we do not want it to function by ministerial diktat ad infinitum. We also need to know that the authority will let people know what it is going to do.
There is much merit in Senator Costello's remarks. Will Irish, English and international law change the old maxim ignorantia juris neminem excusat, ignorance of the law excuses nobody? I have often heard defendants plead ignorance of a law or by-law in the District and Circuit Courts, but it affords them no defence.
I understand the Senator's concerns about the need to publicise rights and so on. Most weekends in my advice clinics I meet many people, especially the elderly, who are unaware of their basic rights, for example, with regard to their pension and savings entitlements. This Bill covers an international convention that deals with probably no more than 3% or 4% of the population. One way to publicise it is for the Houses to promulgate the passing of the legislation. Even if advertisements were placed in the national newspapers and local newspapers such as the Southern Star or the Kilkenny People, people would still wonder what was involved two years later.
The establishment of the central authority will mean that the important agencies, such as the courts, probation officers and health boards are aware of its existence. This will assist most of those affected by this legislation. If, for instance, a couple in Germany separates and one partner moves here to live resulting in a civil law dispute over custody, maintenance, access or whatever else, it is my experience that most such people are very well informed, including in their knowledge of the law.
That cannot be presumed.
I accept that but, thankfully, we are dealing with a very small proportion of the public.
Children are involved.
No matter what plans are made in terms of publication it will be difficult to get the message across to the people concerned. For example, it could be pleaded that somebody did not see an advertisement placed in The Irish Times or the Irish Examiner six or seven months previously. I am not against what the Senator is trying to achieve, but I have serious doubts about its effectiveness in practical terms.
The numerous functions of the central authority under the convention are specified in the various articles of the convention. Under the convention it will be the duty of the authority to engage in communications. When we ratify the convention we must establish a central authority and implement the provisions in the convention governing it. We will consider when the central authority should be established. When we ratify the convention, we must have the central authority in place. However, we must also be practical.
During debate on legislation in recent years we have spoken about authorities such as the new Equality Authority or the National Disability Authority and the question of the date of establishment always came up after the passage of the legislation. There was no point discussing it earlier because we had to have legislation in place before we could do that. The Senator can rest assured that when we ratify the convention, we must have a central authority in place.
I move amendment No. 5:
In page 8, between lines 36 and 37, to insert the following subsection:
(4) A solicitor shall not provide a service which may be obtained free of charge from the Central Authority without first informing the client that the service is so available.
This amendment relates to the previous amendment and is designed to publicise the extent of the services available from the central authority. This arose in the child abduction case where I understand a solicitor embarked on an expensive case without availing of the civil legal aid available. It is important for solicitors to inform their clients if there is a free service available before they embark on an expensive international set of proceedings, as happened in the child abduction case.
I ask the Minister of State to clarify what level of free legal aid will be available from the central authority. Proceedings which involve two contracting states can be expensive if difficulties arise. At least one client incurred considerable expense in the child abduction case, although legal aid would have been available if the solicitor had bothered to inform the client. This amendment would prevent that happening in the future. We should ensure that families are protected against the possibility of expensive court proceedings when the State can provide funding for them. I ask the Minister of State to clarify the level of legal aid available to such families.
I support the amendment. It is a pity the Minister of State did not accept the previous amendment. There could be a serious gap in the information available to a person affected by this legislation. They may have to pay expensive fees or costs when they do not need to do so, particularly if the central authority provides the service. If the central authority was allowed to advertise its services – the Minister of State will not allow that because she did not accept the previous amendment – it might not be necessary to seek to include this type of amendment in the legislation. This amendment attempts to inform the public of an important fact which could save them a lot of money. An example was given in another case where a client or appellant had to pay expensive costs when they did not need to do so. I appeal to the Minister of State to accept the amendment.
I would like to say—
That a solicitor would never do it.
I will come to that in a moment. A solicitor would not be involved with the central authority on a day to day basis. A solicitor would be involved in a prior hearing of the court, so there would not be a need to be directly involved in the workings of the central authority. Perhaps the Minister of State might verify that.
Tomorrow evening my apprentice, a young bright girl from west Cork, will receive her parchment in the Four Courts. This has led me to think about how long it is since I qualified. I have been qualified for 23 or 24 years and I have not yet met a client who asked if they had to pay. If they cannot pay, one must ascertain if they are entitled to free legal aid. The judge will decide, based on certain criteria, if a person can afford to pay and, if so, he or she will not get free legal aid.
There is a fairly comprehensive system of free legal aid, perhaps not in rural areas where I practise but in Dublin in particular where barristers make a better living than Senators or Deputies from the free legal aid system. The figures reported in the newspapers are frightening. It would be foolish for any solicitor, where free legal aid is available, not to advise his or her client because he or she might not get paid. If a solicitor does not get a free legal aid certificate before a court hearing and tells the judge afterwards that he or she had four days in court with Joe Soap and gave him so many hours of advice for which he cannot afford to pay, the judge will tell the solicitor to forget it. A barrister or solicitor would be foolish not to advise a client about the availability of free legal aid, particularly if there is a likelihood they will not be paid. It has happened to me on a few occasions that a person was not able to pay.
I remember going to Clare on one occasion to defend a neighbour's son in a relatively minor matter as they were afraid he might get a custodial sentence for a silly act. He could not afford to pay me as he was a student. I took it on the basis that I win some and I lose some. I did it out of the goodness of my heart. If payment comes from a source, whether it is free legal aid or otherwise—
He would have been entitled to free legal aid as a student.
He may have been entitled to it.
The solicitor should have informed him of that. That is my point. The Senator was the good solicitor at the time.
It was my mistake. If a person is entitled to free legal aid, it is the solicitor's fault if he does not inform them. From my experience, 99.9% of people will say they cannot afford to pay and will ask about free legal aid. Sometimes people will look for free legal aid although they are not entitled to it. If a client has money and they can afford to pay, they will not get free legal aid. The criteria are quite strict in this regard.
The assumption in this amendment is that a solicitor would provide services of the type prescribed in the convention to be carried out by the central authority. The special functions so prescribed are not of the type which could be provided by a solicitor. Examples of the functions of the central authority, as set out in Chapter 5 of the convention, are to co-operate with other central authorities and to promote co-operation between relevant authorities in their own state. That is provided for under Article 30.1. Another function is to provide information on laws and services relating to the protection of children under Article 30.2. A third function would be to facilitate communications between national authorities about the exercise of the jurisdiction to facilitate mediated solutions and to provide assistance in finding out the whereabouts of the child in Article 31. A fourth and final function would be to provide directly or through other relevant authorities a report on a child situation or request a competent authority to take measures for the protection of that child under Article 32. They are four examples of the functions of the central authority which could not be carried out by a solicitor.
It is clear from these provisions and other provisions of the convention relating to the functions of the central authority that its role is inter-institutional with its own authorities, such as the health boards and the Garda authorities and the central authorities and competent authorities in other contracting states. To clarify the issue for Senators Connor and Costello and outline what Senator O'Donovan has said, it is not a role which could be carried out by a private professional such as a solicitor. For that reason, I cannot accept the amendment.
Senators raised concerns in relation to costs and so on which are matters for the Legal Aid Board. However, the normal rules will apply. As Senator O'Donovan pointed out, if there is a need to go to court – under the legislation that court would be the District Court which would be at the lower end of the scale in terms of fees – in relation to an order, etc., parallel to what the authority is doing, one would be talking about the District Court and the application of normal legal aid rules. For obvious reasons I cannot accept the Senator's amendment because it states that a solicitor shall not provide a service which may be obtained free of charge from the central authority. This is not a role they could carry out. Therefore, the amendment is incorrect.
I accept what the Minister has said. However, it is not clear where the distinction lies between the role of the central authority and that of the legal service. One can imagine a situation where a decision on a child has been taken in a foreign jurisdiction. Naturally, the family would consult with their family lawyer or another lawyer, whether a solicitor or a barrister. It is natural that when dealing with a foreign jurisdiction legal services might be sought by those concerned. I do not accept what the Minister of State says that the central authority deals with everything. The central authority does not deal with everything because there are always points of law. We are talking about the enforcement of measures and decisions in other jurisdictions. If this is exclusively the role of the central authority, why do we not communicate and publicise that fact widely so that lawyers cannot get in on the act? Perhaps there should be a prohibition on lawyers getting involved. Where an expense might be incurred and where a service is already being provided by the central authority, there should be an onus on the lawyer to inform the family seeking his or her services – this service could be expensive because we are talking about international jurisdictions – that the service can be provided by the central authority.
I am not sure if what the Minister of State is saying is accurate, that is, that the legal profession has no role to play. She is saying that the role of the central authority could not be provided by a solicitor. There are aspects of the role of the central authority which could be provided by a solicitor because there are legislative aspects to the work of the authority. Solicitors deal constantly with health boards, the Garda and the provisions of the law. If someone in this country is dealing with a country in the European Union or in central Europe, they would want to employ someone with the necessary expertise to represent them. In such an instance, the normal choice would be the family lawyer. The same applies if one is ill where the family doctor is the normal choice. Can the Minister of State give some idea of the personnel who would liaise with a family in this type of situation? Who would communicate to them the full provisions, services, supports, funding and legislative back-up which they might need to satisfy themselves that the matter is being dealt with adequately? It is not clear that there will be any level of communication through the central authority for those who need it most.
The Minister of State has not outlined how the central authority will work. She has just made a couple of general statements on the issue. This is a human situation, dealing on a person to person basis. There is concern about children which involves legislative decisions such as enforcement orders in foreign jurisdictions.
Perhaps I should spell out how the provision will work, including the child abduction issue, so that the Senator will see the differences between the two.
Under the Child Abduction Convention, central authorities arrange for the institution of legal proceedings on behalf of an aggrieved parent with a view to obtaining the return of the child. Unless the contracting state has made a reservation to the convention, any legal assistance is provided free of charge by the central authority. Consequently, the administrative burden and the cost of having to engage a lawyer to initiate legal proceedings in the contracting state in question is removed from the applicant. However, the applicant is free to engage his or her own lawyer to initiate such proceedings if he or she wishes without recourse to the central authority. While the Irish experience has been that in some cases the parents choose to go to the trouble and expense of engaging a lawyer, the reality is that in the vast majority of cases they leave that to the central authority. This relates to the Child Abduction Convention.
Under the 1996 convention, applications to courts for recognition and enforcement orders will be a matter for the parties themselves rather than the central authority. Consequently, the individual litigant will not be able to rely on the central authority to institute proceedings and will in most cases have to engage a lawyer to apply to a court in the contracting state where he or she wishes to have the order recognised and enforced. In that case, under the convention, the task of the lawyer will be greatly facilitated in that he or she can proceed in the certain knowledge that the courts in all contracting states are operating under the same rules and not under varying national requirements as happens at present. Thus, if a lawyer applies to the courts of another contracting state, for example, to have an Irish custody order recognised and enforced in that jurisdiction, the rules governing that court's determination of the matter will be those set out in chapter 4 of the convention. The foreign court will be required to recognise and enforce the order except in exceptional cases to which Article 23.2 applies. In addition, the foreign court will be obliged to apply a simple and rapid procedure. These provisions will also benefit Irish lawyers in advising clients regarding the enforceability of Irish orders in other contracting states.
The Senator is saying that in his opinion a solicitor can do what the authority can do. For example, we are talking about the protection of the child. The measures of protection may include the placement of or provision of care for that child, therefore, the central authority would be in contact with the relevant health board in terms of taking the child into care. That is not a role in which a solicitor could become involved; it is an inter-authority role. That is a fairly clear example of what I am talking about. This is not a role which could be carried out by a solicitor, therefore, if one engaged a solicitor to deal with inter-institutional work, he or she would advise people to contact the central authority whose role that is. It is clearly a different role.
I move amendment No. 6:
In page 11, subsection (1), lines 28 and 29, to delete "the Protection of Children (Hague Convention) Act, 2000" and substitute "the Family Law (International Protection of Children) Act, 2000".
This amendment suggests a change in the proposed Title. The latter clearly designates the intention behind the legislation and is less unwieldy and more appropriate.
The intent of amendment No. 6 is to change the Title of the Bill so that it would come within the group of enactments designated as family law Acts. This is somewhat misconceived because the existing legislation, which gives the force of law to international conventions or gives effect, in one way or another, to those conventions – although they may relate, in full or in part, to family law matters – does not fall within the series which we know as family law Acts. I agree with the Parliamentary Counsel's view that the existing Title of the Bill, as drafted, conveys properly the subject matter it contains.
I move amendment No. 7:
In page 11, lines 34 to 37, to delete subsection (3) and substitute the following subsection:
(3)The collective citation ‘the Courts (Supplemental Provisions) Acts, 1961 to 2000' shall include the Courts (No. 2) Act, 1991 and sections 1, 3, 4, 6, 8, 11 and 12, and those Acts, that Act and those sections shall be construed together as one.
This amendment seeks to update the collective citation "the Courts (Supplemental Provisions) Acts, 1961 to 1999" by including reference to the Courts Act, 2000. In addition, the Courts (No. 2) Act, 1991, seems also to have been omitted and I also have made provision for this in the amendment. Perhaps the Minister of State will reconsider the citation and amend it to ensure it covers the entire gamut of relevant legislation.
While in the ordinary course there is merit in construing sections of legislation in Courts Acts with the relevant provisions in other legislation for the purpose of construction and collective citation, I am advised that the amendment sought by the Senator is not required. This is because the Courts (No. 2) Act, 1991, deals only with criminal matters, whereas the Bill deals only with civil matters. I am, therefore, unable to accept the amendment.
With regard to the first part of the amendment, in accordance with Standing Orders I wish to ask the Cathaoirleach to direct the Clerk to the Seanad to make the following correction of a formal nature to section 19(3), namely, the substitution of "2000" for "1999" in page 11, line 34. The subsection provides for the collective construction and citation of certain sections of the Bill within the Courts (Supplemental Provisions) Acts and since the Bill was passed by the Dáil the Courts (Supplemental Provisions) Bill, 2000, has been enacted. The correction, which is of a formal nature, is to take account of this. I understand that this change is allowable under Standing Order 121.
Is that agreed? Agreed.
I am glad the Minister of State has updated the provision to take account of the first part of my amendment. However, I am not satisfied with her refusal to include the Courts (No. 2) Act, 1991, on the grounds that it refers exclusively to criminal matters. It is my understanding that the Courts Acts refer to both criminal and civil matters and I would have thought it would have been appropriate to include the Act to which I refer.
The Act to which the Senator refers deals with situations where a person has been convicted of an offence and, for that reason, we do not believe the amendment is relevant.
Will it be necessary to refer the Bill back to the Dáil in respect of changing the collective citation to read "the Courts (Supplemental Provisions) Acts, 1961 to 2000"? Will there be an opportunity to raise the matter again in both the Lower House and the Seanad? If that is the case, perhaps the Minister of State might reconsider some of the other amendments that were tabled.
I understand it is not necessary to return to the Dáil in circumstances where the Cathaoirleach has directed a correction of a formal nature to be made under Standing Order 121.
When is it proposed to take Report Stage?
I object to Report Stage being taken now.
If possible, I wish to comment on that decision.
The House has already made the decision to take Report Stage now.
I object to Report Stage being taken now.
The question was put and declared carried and the Senator did not call for a vote.
The Chair was moving through the procedure as I was objecting.
The question was put to the House and declared carried.
I dispute that. I objected to Report Stage being taken now.
When the question was put and declared carried the Senator did not seek a vote.
I objected and I rose to explain my objections. I object to Report Stage being taken in this fashion because I intended to put down an amendment I had already tabled on Committee Stage. I will now not have an opportunity to do so.
The Senator is allowed to table amendments for Report Stage.
I could table amendments if I had time to do so.
There will have to be a sos to allow the Senator to table such amendments. I call the acting Leader, Senator Fitzgerald.
I discussed this matter with the Whips this morning and I was under the impression that there was no difficulty with taking Report Stage now. However, we have no objection to suspending for 15 minutes.
Ten minutes will be sufficient.
Is that agreed? Agreed.