We now come to amendment No. 1. Amendment No. 12 is consequential on amendments Nos. 1 and 2 and is related. Amendments Nos. 1, 2 and 12 may be discussed together by agreement. Is that agreed? Agreed.
SECTION 3.
I move amendment No. 1:
In page 3, subsection (1), between lines 23 and 24, to insert the following definition:
"‘the Act of 1976' means the Family Law (Maintenance of Spouses and Children) Act, 1976;".
These are related drafting amendments. Amendments Nos. 1 and 12 have the effect of transferring the definition of "the Act of 1976" from section 13 where it applies for the purposes of Part III to section 3 which is the general interpretation section. The transfer is due to the insertion of a reference to that Act in section 4 (2) as proposed in amendment No. 2.
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
I move amendment No. 2:
In page 4, lines 31 to 36, to delete subsection (2) and substitute the following:
"(2) (a) For the purposes of section 8 of the Enforcement of Court Orders Act, 1940, of the Acts of 1976, 1988 and 1993 (as amended by this Act) and of this Act the central authority shall have authority to act on behalf of, as the case may be, a maintenance creditor or claimant, within the meaning of section 13 (1), and references in those enactments to a maintenance creditor or claimant shall be construed as including references to the central authority.
(b) Where the central authority so acts, payments of maintenance shall be made directly to the maintenance creditor or claimant unless the central authority requests that they be made to a public authority in the jurisdiction where the maintenance creditor or claimant resides.".
Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."
It is stated in the explanatory memorandum that a claimant must attend a court hearing if bona fide required for cross examination. In general the people who will be involved are not in a strong financial position. Will they be covered by the State or will they have to pay their own expenses? Will they be asked to attend a court hearing in America or some other foreign country or will the hearing be held here? The explanatory memorandum states that the central authority will also initiate fresh maintenance proceedings when required under the New York Convention, though the claimant must attend the court hearing if bona fide required for cross-examination". Will a person have to travel abroad to attend a court hearing?
There are two separate categories of proceedings. If a wife in Germany seeks maintenance from her husband in Ireland and wants that maintenance order made in Germany enforced in Ireland, if the husband wishes to defend those proceedings he may apply for free legal aid to the Legal Aid Board and, subject to the usual conditions, would be eligible to receive it. In the reverse case, it would depend on the legal aid position applying in those countries.
As to attendance in a foreign country, we are providing that evidence may be given initially in an affidavit; in other words, by submitting a sworn document. If that is not accepted and the court considers it is reasonable that the person concerned should present themselves in court, they will have to do so because the only satisfactory way of dealing with a witness where issues are in dispute is for that person to be present, to be examined and cross-examined by the other side.
If the written evidence is not acceptable the person concerned may not be in a position to travel to, say, Germany to defend their case. In that instance will the State offer them financial assistance? Can we give a guarantee that justice will be done and that they will be able to attend the court hearing? A person could lose out by his or her absence from court.
The Deputy is asking whether the Legal Aid Board would fund a person to travel to, say, Germany, to secure maintenance——
Free legal aid does not cover travelling expenses. Would the Minister consider introducing an amendment on Report Stage that would cover this point?
The question of providing expenses would be considered by the two central authorities involved. I take the Deputy's point and I will consider it.
The section, as amended, states:
Where the central authority so acts, payments of maintenance shall be made directly to the maintenance creditor or claimant unless the central authority requests that they be made to a public authority in the jurisdiction where the maintenance creditor or claimant resides.
What will be the position if a claimant objects to this procedure; in other words, will the central authority have complete autonomy in that regard? If an order is made, maintenance payments are received and there are arrears of lone parent's allowance or other social welfare payment would a difficulty arise if the central authority directed that this payment be made direct to the Department of Social Welfare as a repayment of claims? What recourse would the claimant have if such a difficulty arose?
The claimant would authorise the central authority to act on his or her behalf. The intention would be that in normal cases the payments would go directly to that foreign claimant but in some jurisdictions it might be the practice to send the payments directly to the central authority or, if the central authority so designated, to some other public authority in the state where the claimant was living. Much would depend on the practice in particular states.
In this amendment we are dealing with the procedure as it would apply in Ireland. In other words, if a claim was received from the central authority in Germany and the central authority said the disposition of payments recovered were to be sent to ourselves, the German central authority or to some other public authority they designated for this purpose — perhaps a maintenance collection agency or some public authority — the central authority would be entitled to say to us that moneys received are to be sent to the maintenance collection agency established for this purpose in Germany. If it tells us to do that, then that is what we would do.
Will that work the other way round? Our central authority——
If there is a similar provision in the equivalent Act in Germany it would be open to the central authority in Ireland to direct that the money be sent to a public authority in Ireland if there is legal justification for doing that.
That is not clear from this wording. The Minister mentioned earlier "in consultation" or words to that effect when referring to the claimant but that is not stated specifically here. In other words, it seems from the wording of this amendment that the central authority has complete autonomy; it does not actually specify the intention with regard to the spouse. Will there be a regulation to allow for that?
It is based on the instructions of the claimant, in other words, it is the claimant who authorises the central authority. The central authority can only act on the instructions and authority vested in it by the claimant. As regards how this would work in reverse, the Bill only refers to the operation in Ireland and what we are talking about are public authorities in the foreign jurisdiction. It would depend on the legislation in those foreign countries and if they had similar provisions. I do not know the answer to that question. Some of them possibly do and others do not.
Even I am not clear though the Minister has answered the question about the rights of the claimant where a woman may be under pressure to proceed through the central authority. In recent times there has been greater emphasis on encouraging men to pay maintenance rather than the State. It is possible that the Department of Social Welfare would exert pressure on the woman by telling her to take up this option or she will be putting her payments at risk. In that situation the claimant would unwillingly go the central authority and if, for example, the central authority managed to get the payments but directed them towards the public authority, and if she felt aggrieved about that, what recourse would she have? Is there a form of appeal?
That would depend on the relevant social welfare law on the subject.
If the central authority takes this option the woman may feel aggrieved. I am taking a hypothetical case; there may be other reasons she feels aggrieved. It is possible to envisage a woman feeling aggrieved that maintenance was being directed towards a public authority. The person from whom maintenance is being claimed may also feel aggrieved and may want the maintenance to go directly to the woman. Is there an appeals procedure for that person? The central authority cannot always be right.
The Bill states it will be paid to a central authority or to a public authority designated for that purpose. The Deputy is jumping to an erroneous conclusion, namely, that the purpose is to default the woman of her money.
I am not saying that.
If there was a public authority in Germany on the lines of the child agency in England — I do not know what the procedures are in foreign countries — to deal with these matters, the money would be directed either through that central authority or that public agency. It could well be that there might be a law in Germany, for example, and if a sum for maintenance is recovered by a woman and is vested either in the German central authority or in the appropriate German public authority, and if that woman owes money to the German social welfare authorities, it would have an involvement in that. That is a matter for German law. The position in Irish law on the reverse situation would depend on the appropriate social welfare legislation. I understand there are provisions where, if the Department of Social Welfare has paid the claimant and money is recovered from the husband pro tanto the Department could provide for that. We are talking about disposition of moneys that would be recovered.
In the case of a dispute on that decision, will the person have to go to the Department——
Do you mean a dispute as to whether there was a sum of money owing to the Department of Social Welfare?
Or whether this is the right decision. Is there an appeals procedure within the central authority?
That would be a matter for the social welfare code and the social welfare provisions. This is solely directed towards recovering the money.
Section 4 allows for the setting up of this central authority. Are there any guidelines for that? Is it simply that the Minister will designate the civil service to deal with it? Who will be the members of the central authority?
The Bill provides that I may set up an agency and unless and until I do so, the Minister is the central authority. It is a new procedure here but the concept of a central authority is not new. For example, in child abduction cases, my Department already acts as the central authority and would do the same for this purpose, in the short term at any rate.
The Minister will automatically fulfil the role of the authority but will there be a specific number of people appointed at some stage or is it simply a figure of speech or does it really mean the Minister's office?
It means initially the Minister unless and until separate authority, distinct from the Minister, is set up. That may or may not happen.
It states that the Minister "may by order appoint. . . ." Is that a far distant "may"? Is it someone in the legal department inserting words? It is giving the Minister authority to do it, but is there any real intention of doing it? It is of no major significance. Will a group of people who were helpful to the Labour Party at some stage be appointed?
There is nothing like that. In the short to medium term the intention is that my Department will operate as the central authority.
Question put and agreed to.
Section 5 agreed to.