I welcome the Minister of State, Deputy Fahey, and his officials to the committee. We have only one item on the agenda, the Protection of Children (Hague Convention) Bill, 1998.
Protection of Children (Hague Convention) Bill, 1998: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 4, subsection (3), line 33, after "text" to insert ", in the English language,".
This is a technical amendment to clarify that we are talking about the English language version.
I will accept the amendment. I thank the Deputy for bringing it to our attention.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 2:
In page 5, subsection (2)(b), line 6, after "subject" to insert "in particular to Article 23.2 and".
I tabled this amendment because there is a drawback to the Bill in that the State must recognise the position of foreign courts in relation to child welfare. We cannot always be sure that the decision of foreign courts is in the child's best interests. Article 23.2 of the Hague Convention gives protection in cases where we can refuse recognition. It is appropriate to require the courts to have regard to that provision.
This amendment 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)(b). Section 3(2)(b) already requires the District Court to exercise its jurisdiction pursuant to Chapter IV of the convention, which will have the force of law in the State by virtue of section 2 of the Bill. Chapter IV of the convention comprises Articles 23, 24, 25, 26, 27 and 28. Consequently, it is clear that the basis for the exercise of the court's jurisdiction in such cases is found in those Articles, including Article 23.2. If I 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 mentioned. This seems to be an attempt to qualify the convention and on that basis the amendment is not acceptable.
Is the Minister of State satisfied we are not giving a blank cheque to different countries which sign up to the convention? If the Irish courts are genuinely concerned that a decision in a foreign court may not be in the best interests of the child, is the Minister satisfied there are adequate safeguards so that we can apply the standards in this country? How will the Minister of State ensure that is the case? The convention is good but I am concerned that we will have to rubber stamp decisions taken in foreign courts with which we may not fully agree.
There are adequate provisions in the convention to ensure the courts are protected and that countries are not given a blank cheque. We do not feel it necessary, therefore, to restate that in the way suggested in the amendment as it would have implications for the other articles.
It is fine to say that today, but it would strengthen the position of the Irish courts and our views on the protection of children if there was a reference to Article 23.2. I will press my amendment.
Article 23 states that recognition may be refused. Article 23d states that “if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child” and we are satisfied it is adequately catered for in that article.
That is what I want the Minister of State to emphasise in the legislation. That is why we should be cognisant of Article 23.2.
That will amend the convention which we are not in a position to do.
It will not amend the convention. We should make particular reference in the legislation to Article 23.2 of the convention to strengthen it. We should emphasise that provision of Article 23.2.
If I 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 mentioned. I accept the Deputy's point but by accepting this amendment, we would over step our brief.
I do not agree we would over step our brief. We are giving particular recognition to one important article in the convention, which I hope we would seek to uphold and which is also one of the provisions of the UN Convention on the Rights of the Child. The best interests of the child should be the guiding principle in relation to all decisions and we must abide by that principle.
That is stated. How can one give unequal status to the different articles and provisions of the Bill?
I am not suggesting we give unequal status.
That would be the effect of the amendment.
I want to give particular recognition to that provision. That would be a guiding principle in our compliance with the convention. Our legislation should not give carte blanche to Irish courts to rubber stamp decisions of foreign courts. We should seek to operate the convention in light of our commitments under that article.
It is not suggested that the Irish courts would rubber stamp the decisions of foreign courts.
There might be a tendency to do that having signed the convention. Given that the legislation has been drawn up to enable us to comply with the convention, we need to identify that part of the convention which we hope will hold regardless of decisions taken by foreign courts. I will press the amendment.
Amendment put and declared lost.
I move amendment No. 3:
In page 5, subsection (2), between lines 20 and 21, to insert the following:
"(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.".
The purpose of this amendment is to copperfasten the previous amendment. I take it that the Minister of State will not support this one given that he did not support the previous one.
The words "manifestly contrary to public policy" used in the amendment are to be found in two separate articles of the convention, namely 22 and 23. Article 22 enables the court to refuse application of the provisions under applicable law if application will be manifestly contrary to public policy.
Taking into account the best interests of the child, Article 23D addresses a separate matter. It 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 exemption in the convention, as specified in those articles, it is required to assess that exception taking into account the best interests of the child. If the court is satisfied that recognition is contrary to the best interests of the child, then it has jurisdiction to refuse recognition under the convention. Section 2 gives the force of law to the provisions of the convention and this includes Articles 22 and 23 to which I referred.
The issue raised by the Deputy is, in part, already provided for in the convention as it would be part of our domestic law by virtue of section 2. However, the amendment would require us to direct our courts to go further than is provided for in the convention and to allow the court to refuse recognition of a foreign order in circumstances other than those provided for in Articles 22 and 23.
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. It may be that in certain cases the jurisdiction of the 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 the child in such cases, the principle being that the authorities in the country with which the child has a closer connection, usually the country of the child's habitual residence, is a better place to do so. This is not unusual because it can and does arise under another convention, the Hague Convention on Child Abduction, which is part of our law since 1991 - the Act has on several occasions been upheld by decisions of the High Court and the Supreme Court. This Bill, for its part, has been examined and approved by the Attorney General.
The Convention on the Protection of Children requires that the rights conferred by the virtue of the law applicable in a contracting state and measures taken by authorities in a contracting state shall be recognised by operation of law in all other 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 these include an exception where recognition is manifestly contrary to public policy in the requested state, taking into account the best interests of the child. Therefore, I do not propose to accept the amendment because it would appear to qualify the convention in a way which is not necessary or permissible.
That is certainly not the intention of the amendment which is to strengthen the legislation and restate the principle of the best interests of the child. I would not be as confident as the Minister of State in assuming mutual trust between different jurisdictions in relation to the rights of children. That was the thinking behind the amendment.
Amendment put and declared lost.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5.
I move amendment No. 4:
In page 7, subsection (2), line 9, after "Convention" to insert "dated the 15th day of January, 1997".
This is a drafting amendment which inserts the date of the explanatory report for clarity and information purposes.
I appreciate this is only a minor drafting amendment in that it merely provides for the date, as the Deputy said, of the official explanatory report on the convention prepared for the Hague Convention on Private International Law and that it should be mentioned in section 5. This section contains reference to the report. However, my information is that it is not the practice to give dates in legislation. I am guided by the draftsman's practice in this area which seems reasonable. Given that there is only one explanatory report involved in the circumstances, I do not wish to accept the amendment.
I accept the Minister's explanation.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 to 8, inclusive, agreed to.
SECTION 9.
Amendments Nos. 5 and 6 not moved.
I move amendment No. 7
In page 8, between lines 34 and 35, to insert the following subsection:
"(4) The Central Authority shall take steps to inform the public of its services.".
This amendment seeks to ensure that the authority takes appropriate steps to the publicise itself, which is in the public interest. It is important to include such a requirement in the legislation for the authority to do that.
The numerous functions of the central authority under the convention are specified in various articles of the convention. In so far as the amendment suggested by the Deputy is concerned, Article 30 of the convention is relevant. It requires central authorities to co-operate with each other but also to promote co-operation among the competent authorities in their states to achieve the purpose of the convention.
The latter provision is one which will be of significant practical importance because it will require the central authority in the state to inform various authorities of its functions and to ensure that in that connection there is a delivery of service, as may be necessary. This may extend to such matters as the need to provide a report on the situation of a child or to consider the need to take measures for the protection of the person or property of the child. The measures or protection may include the placement of or provision of care for a child. These are matters which are fundamental to the operation of the Convention.
It will be the duty of the central authority under the convention to engage in communications largely on an inter-central authority basis and, in the state, on an inter-institutional basis. It follows that the central authority will, as a matter of course, be engaged directly or indirectly in information exercises as provided for in the convention.
There is no need in the Bill to make it mandatory on the central authority to inform the public about its services. We can rely on the central authority to use its own good sense and discretion in the light of experience as to what type of information needs to be given to the public about its services.
I do not share the Minister of State's confidence. There is a need to make available information on our international obligations and international protections. I had in mind the production of leaflets to make the public aware of the protections available. There is an information deficit.
We agree with the Deputy's point. The Minister, who will have responsibility in the early days, and the authority, when it comes into being, will have a significant role in information and communication. It is not necessary to put that in legislation.
The difficulty is that the Minister may say that but a future Minister may not be of the same view. In the interests of openness and ensuring people are provided with basic information on legal protections, it would be a good idea to have leaflets on what is available to people.
I will not push the matter further, but we should adopt a different approach to the legal system generally by opening it up, making it more available and making people more aware of their entitlements. That is what I had in mind. There is a need for a culture change and I hope it comes with the new Courts Service and its chief executive officer. There needs to be greater openness and more information should be made available to people. That is what I had in mind.
We accept in principle what the Deputy says and we will ensure that fact is reflected.
We will wait and see.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 8, between lines 34 and 35, 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.".
The purpose of this is to ensure that solicitors inform clients that a free service is available before taking expensive international proceedings. This problem arose before with the child abduction central authority and has never been rectified. Where there are protections and entitlements to free services, the public should be made aware of them. We cannot just hope they will hear about it along the way. It is reasonable to place a requirement on solicitors to notify clients of that entitlement prior to their engaging in what could be expensive proceedings.
The assumption in the 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 prescribed to that authority are not of a type which could be carried out by a solicitor. The amendment, on that basis, lacks any meaning by reference to the provisions of the convention. It cannot be supported and I oppose it.
If a decision is taken by a foreign court on custody which causes difficulty for a person residing in Ireland, it is likely that the first move they will make is to contact a solicitor here rather than the authority. To protect clients and to ensure people have access to the free service to which they are entitled under the convention, it is important that solicitors be required to notify clients that the service is available. It provides a protection for clients. The service exists and they should receive it. If a person has a custody difficulty or problem, they will probably not ask about the cost but will want the problem dealt with. That is their main priority. There is a danger that solicitors would agree to take on potentially lucrative cases without informing people about certain entitlements to a free service. It is a reasonable requirement that solicitors would have to do that.
The Deputy confuses this central authority with the central authority on child abduction. There are two central authorities. Although central authorities are provided for, they may operate as points of reference within each contracting state. They oversee the system of co-operation and provide information on the laws and child protection services in their respective states, but they do not have major responsibilities in individual cases similar to those which the separate central authority has under the Convention on Child Abduction. The areas of co-operation include the provision of assistance in locating a missing child, the furnishing at the request of authorities in one state of a report or other information which may be relevant to a decision concerning the protection of a child in another state, the notification of the fact that a child who is seriously at risk has moved from one state to another, or consultation in respect of a decision by authorities in one state to place a child in care, for example, foster care or an institution in another state. Those are the areas of co-operation covered by this central authority but not by the other one.
This problem arose regarding the child abduction central authority and it was not rectified. We should ensure that provision is in place in this case. There is the potential for solicitors to exploit situations where people are in difficulty.
People can approach the central authority to act on their behalf. There is nothing to stop them from approaching a solicitor or being accompanied by one.
The purpose of the amendment is to require a solicitor to notify a client that the service is available from the central authority.
To require a solicitor?
Yes.
The Deputy is mixing up the two authorities. Her amendment may apply to the other one, but not to this one which is intra-institutional.
Does the Minister of State accept that a significant level of service is available to clients free of charge on an intra-country basis through each of the central authorities in each of the countries?
On child abduction.
It is also proposed in this Bill.
The point Deputy Shortall raises has wider implications in a range of areas involving solicitors. It does not belong as an amendment in the Bill and I oppose it on that basis. However, the Minister of State and the Department should contact the Law Society regarding practice by solicitors. There are a number of areas where people contact the Law Society and obtain direct contact with a solicitor when the service is available to them for free or at least more cheaply. It should be a code of practice of the Law Society that people should be told in the first instance that this service is available for free, but it should not be part of the legislation.
The experience with the Law Society is that it does not regard this as a requirement of solicitors nor does it regard it as desirable that it should be a requirement.
Perhaps the Department should tell it.
This authority does not deal with individual cases.
In other words it does not give advice.
It does not deal with individual cases. It is a central authority dealing with courts and other institutions in different countries. It does not deal with individual cases which are dealt with under the convention on child abduction.
However, it provides a service relating to the establishment——
It provides an inter-agency service but not a service for private individuals.
Yes, but it provides a service to the client in so far as it establishes decisions of foreign courts, for example, where a case is taken in an Irish court, or where a custody agreement is experiencing difficulties.
The central authority will not take a case in an Irish court. That is a matter for the individual.
Yes, but the central authority provides a service in establishing what has been the decision of a foreign court. Is that correct?
No.
What service will the central authority provide for clients?
The job of the central authority is purely to convey the decision of the foreign court. It is covered by Article 31 which states:
a [to] facilitate the communications and offer the assistance provided for in Articles 8 and 9 . . .
b facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the convention applies;
c provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested State. It is an inter-agency authority which is separate from the other authorities.
Which performs a service.
Not for individual cases.
Presumably it establishes decisions of foreign courts where that decision is being queried.
"Mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the aforementioned apply". Surely that applies to the client?
The person has to take the case themselves through the Irish courts, in which situation the person would normally be using a solicitor.
Yes, but——
This is a separate issue from the matter of the amendment.
For a solicitor here to establish the ruling of a foreign court would entail a lot of expense. That service is available through working with the central authority in the relevant State, from my reading of the legislation.
I suggest the Minister of State looks at this and comes back on Report Stage to clarify this.
We are talking about two different central authorities and the Deputy is mixing them up. With all due respect, there are two separate authorities involved.
I accept that and it is because this issue was not dealt with in relation to child abduction——
That is an issue for that situation, not this one.
The same principle applies. If there is a service available free of charge clients should be made aware of that. Can we put this on hold and ask the Minister of State to clarify it further?
We can clarify it further, but there is not much more clarification that can be given.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Section 10 agreed to.
NEW SECTION.
I move amendment No. 9:
In page 9, before section 11, to insert the following new section:
11.-(1) Section 30 of the Judicial Separation and Family Law Reform Act, 1989, is hereby amended by the addition of 'the Protection of Children (Hague Convention) Act, 1999;’.
(2) Proceedings under this Act shall be heard otherwise than in public.".
The purpose of this amendment is to ensure that these cases are dealt with in the same way as other family cases - as informally as possible and without people wearing wigs and gowns. It must be child-friendly and in camera. The amendment seeks to ensure that the same thinking that informs family law cases here would apply to cases brought under this Act.
One effect of this amendment is that such proceedings as may be determined by the Circuit Family Court in relation to the convention would take place at a different place from and time to ordinary sittings of the Circuit Court. In addition, it would result in sittings of either the High Court or the Circuit Court in an informal manner and without wigs or gowns being worn by lawyers or judges.
I am prepared to consider the amendment further between now and Report Stage and I thank the Deputy for raising the matter. However, if the amendment were accepted, drafting matters would have to be considered in consultation with the draftsman. The other effect of the amendment is that proceedings under the Bill would have to be heard otherwise than in public and this could have unintended consequences if it were accepted. Let us take for example the case of a custody dispute being dealt with by the courts under the Guardianship of Infants Act, 1964. If a child is habitually resident in a contracting State to the Hague Convention, the courts' jurisdiction here will be governed by the 1964 Act and Article 5 of the convention, which is given the force of law by section 2 of the Bill. In contrast, it could arise that the court might be asked to exercise its jurisdiction under the 1964 Act in circumstances which are not covered by the convention. This might arise, for example, in the context of a dispute between parents where the father is resident in the State while the mother and child are resident in a non-contracting State. Paragraph 39 of the explanatory report specifically envisages such a situation. In such a case the court would exercise its jurisdiction outside the provisions associated with the Bill and the court would, under the proceedings law which operates in relation to the 1964 Act, have the discretion as to whether or not to hear the proceedings in public. The effect of the amendment could be to create different rules depending on whether the child in question was habitually resident in a contracting State or not. That is something we should avoid.
The amendment could also prejudice the operation of certain cases. Article 36 of the convention empowers the authorities in one contracting State to notify the authorities in another contracting State that a child who is seriously at risk has moved from its jurisdiction to that other contracting State. In that context it might be necessary for a health board here, for example, to institute court proceedings to compel a person to disclose the precise whereabouts of the child. The exercise of such a jurisdiction would be permissible under the provisions of Article 11 of the convention. In that context it might be advantageous for the proceedings to be held in public and the amendment would preclude such a public hearing. For these reasons I cannot accept the second part of the amendment. However, we will look at the first part of it.
I accept the Minister of State's undertaking to examine this.
Amendment, by leave, withdrawn.
Sections 11 to 16, inclusive, agreed to.
NEW SECTION.
Acceptance of amendment No. 10 involves the deletion of section 17.
I move amendment No. 10:
In page 11, before section 17, to insert the following new section:
"17.-The Child Abduction and Enforcement of Custody Orders Act, 1991, is hereby amended by the insertion after section 36 of the following section:
'36A.-The Central Authority in the State may, for the purposes of obtaining any information that is necessary or expedient for the performance of its functions under Article 7(a) of the Hague Convention or, as may be appropriate, Article 5(1)(a) of the Luxembourg Convention, require any holder of a public office or body financed wholly or partly by means of monies provided by the Oireachtas to provide it with any information in the possession or procurement of the holder or body which would assist in discovering the whereabouts of a child and any such request shall be duly complied with.'.".
Amendment agreed to.
Section 17 deleted.
Section 18 agreed to.
SECTION 19.
I move amendment No. 11:
In page 11, subsection (1), lines 34 and 35, to delete "the Protection of Children (Hague Convention) Act, 1998" and substitute "the Family Law (International Protection of Children) Act, 1999".
This is a drafting amendment. The existing title seems a bit unwieldy and the title we are suggesting was the original title used in the Department prior to it going to the draftsman's office. It is easier to get one's tongue around this.
The attempt to change the title of the Bill in this amendment, which would bring it within the group of enactments designated as family law Acts is misconceived. The fact that existing legislation, which gives the force of law to international conventions, although they may relate to family law matters in full or in part, does not fall within the series we know as family law Acts. We should not depart from that practice and for that reason I am not in favour of the amendment. The existing title of the Bill may be unwieldy but it conveys properly the subject matter of the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 11, subsection (3), line 40, to delete "Sections" and substitute "The Courts (No. 2) Act, 1991 and sections".
This covers an omission from the Courts (Supplemental Provisions) (Amendment) Act in that the Courts (No. 2) Act, 1991, was omitted. This amendment rectifies the problem. The Minister of State corrected a problem with a citation on a previous occasion. This is the last remaining problem and this amendment would solve it.
While in the ordinary course there is merit in constructing sections of legislation in courts Acts with relevant provisions in other legislation for the purposes of construction and collective citation, I am advised that the amendment proposed by the Deputy is not required because the Courts (No. 2) Act, 1991, deals only with criminal law matters whereas the Bill only deals with civil matters. Accordingly, I am not prepared to accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 11, subsection (3), line 41, to delete "1998" and substitute "1999".
This is a technical amendment. Currently the citation of the Courts Acts refers to the Acts from 1961 to 1998. Since publication of the Bill a new enactment, the Courts (Supplemental Provisions) (Amendment) Act, 1999, has been passed, and the amendment updates the citation to include this Act.
Amendment agreed to.
Section 19, as amended, agreed to.
Schedule agreed to.
Title agreed to.