I move amendment No. 11:
In page 8, lines 41 and 42, to delete "of the 1968 Convention".
SECTION 11.
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No. 12:
In page 11, subsection (1), lines 4 and 5, to delete the definition of "the Act of 1976".
Amendment agreed to.
Question proposed: "That section 13, as amended, stand part of the Bill."
The central authority sends documents to the Master of the High Court. Will the Master of the High Court always be the deciding body on the legality of documents? Will the people or the State carry all the expense of applying and dealing with the High Court? The question of appeal was was referred to, can you appeal a decision of the central authority?
The central authority is a forwarding and receiving agency. The Master of the High Court is a permanent position and the person is appointed under the High Court rules.
I know that, but in terms of this Bill, will he always be there to decide on all the documents which come in?
That is the intention.
Will that lead to costs for clients in the High Court?
If there was an appeal and a hearing before the High Court obviously there would be costs involved. No costs are involved in the Master's hearing as it is in private and the parties do not appear before him; he examines the documentation to see if the order is to be enforced.
The next section provides that the District Court will be able to handle such matters, although the High Court will still be available. Obviously the District Court would be much more suitable from the point of view of clients' costs etc.
It would only be a rare and exceptional case that would be sent on appeal from the Master of the High Court to the High Court, and that provision has to be allowed for.
I do not like to see money being wasted — there are many other areas where we would like to spend more money but cannot — and I would not like to see a situation arise where a maintenance order is won for a woman but the man is not in a position to pay it. Is there a facility whereby a person's means can be established before we go through all the different channels?
I would refer to the length of the procedure and appeals. The central authority is described as a receiving agency. However, it will also determine where the money will end up. The Minister's amendment to section 4 has altered the nature of the central authority. I am still not clear about its power. Obviously a woman can appeal a decision in court but can she appeal a direction made by the central authority?
I welcome the concept of a central authority but would like to ask the Minister a very important question. If a separated woman resident in this country is pursuing her husband who lives abroad for maintenance and the court requires the presence of the woman in court in order to give evidence, this will give rise to considerable expense for somebody. It appears that the central authority will not take care of such an expense and the woman concerned will have to raise the necessary funds herself. However, in many cases she will not be able to do so. Will the concept we are introducing benefit people who are better off or will it benefit people who are less well off and are unable to raise the necessary funds to enforce an order in a foreign court?
I have listened very attentively to the points made. The example of a husband living in Germany is not very realistic but the examples of husbands living in England, Scotland and Wales are. Will the Minister outline the way in which the legislation will ensure that the hundreds of men living in England, Scotland and Wales will pay maintenance to their deserted wives living in Ireland?
To answer Deputy Harte's question first, the legislation will not improve the position of a woman whose husband is living in the United Kingdom to any great extent because the 1974 Act already deals with the recovery of maintenance in the UK. Reciprocal enforcement arrangements in respect of maintenance orders between this country and the UK are already in place. This legislation will bring into play enforcement procedures for the EU countries, the EFTA countries and other countries under the New York Convention.
I dealt earlier with the point raised by Deputy O'Donoghue. The legislation recogises that expenses could be involved in cases where key evidential facts are in dispute and a person has to travel. Provision is being made in the legislation to deal with evidence by way of affidavit of both parties, which should be sufficient. I would envisage that in most cases an exchange of affidavits would determine the facts. In many cases one would not be talking about issues of dispute that would lead to a full plenary hearing, for the simple reason that the plenary hearing would have already taken place in the country of origin. Rather one is talking here about enforcing in the country where the husband is living a court order which has already been made in the country of origin.
There could be an occasional case where basic evidential facts would be in dispute and in such situations evidence on affidavit would not be sufficient. The Bill provides for the possibility of dealing with that by the taking of evidence by way of television linkup — I am not sure what expense is involved. In modern technology there are provisions for doing that. Normally this would not be allowed without special statutory authorisation, for which we are providing, and it could be helpful in a number of cases. If the person has to travel abroad then the question of the expenses would arise. I am not sure whether the Legal Aid Board would be in a position to provide grant aid but it may consider providing grant aid in appropriate cases.
Deputy McManus was not correct in saying that the central authority is a determining authority. If the law of the claiming country designates a public authority as the recipient the central authority will have to comply with that directive. No discretion as such is vested in the central authority. The disposition of moneys which arrive in the central authority in Ireland will be determined by social welfare provisions, and not by this Bill.
Deputy Power referred to the possibility of determining the means of a respondent before expensive proceedings get under way. Very often it is difficult to determine the means of a respondent even after the proceedings have been concluded and court orders obtained. That would involve considerable costs. We have tried, in so far as possible, to keep costs at a minimum by giving the District Court jurisdiction in such cases. As the Deputy is aware costs are as low as possible when cases come before the District Court.
In view of what the Minister said about setting up a central authority, it is obvious that a great deal of legal representation on both sides would be involved in obtaining maintenance orders. Does the Minister intend placing a ceiling on legal representation costs?
In regard to Deputy O'Donoghue's question, in certain cases wives may have to travel to another country to give evidence, causing considerable difficulties. Has the Minister provided for that type of eventuality? Will assistance be provided for people whose presence at hearings is essential, or will they have to travel at their own expense with, perhaps, financial aid from a health board?
My second question relates to the point raised by Deputy Harte. Has the Minister specific figures for the number of defaulting husbands residing in England, Scotland or Wales against whom maintenance orders have been made?
I do not believe the Minister understands my question. I understand regulations in this regard are in place between Great Britain and Ireland, but are not very successful. In what way will the new legislation help wives whose husbands live in England, Scotland or Wales and fail to pay maintenance regularly? How will the new legislation cope with "mobile husbands" who say, are arrested in Manchester, disappear, and turn up sometime later in Edinburgh or Aberdeen? Will this legislation cover only those who cannot move around because they have not established roots in a particular area? It appears the legislation will not assist the wives of husbands who move around and change jobs regularly. Is that a correct interpretation?
The Deputy is correct. That frequently causes difficulties in securing maintenance and it applies to husbands residing in both England and Ireland. There are many "mobile husbands" in Ireland who evade their responsibilities to their wives and children. I am not suggesting that legislation for the enforcement of maintenance orders either here or in England, is a panacea. I do not know the success rate, but in a very high proportion of cases — even in Ireland — maintenance is not recovered. That is a cause of concern. I am not suggesting this legislation will be new panacea in that regard, but in many cases, where a husband is settled in employment abroad the new central authority will simplify procedures and make it much cheaper to recover maintenance. Steps will be taken between the two central authorities to enforce an existing order or to obtain a new one where necessary. We are also giving powers of inquiry to social welfare authorities to locate such people.
I do not have the figures which Deputy Deasy requested, but if he tables a Dáil question I will supply him with the details. Deputy Foley asked if I would impose a ceiling on legal representation costs. That is not the intention. So far as the procedure for the central authority or the decision of Master of the High Court is is concerned, it is not envisaged that costs would be increased. Costs could be increased in a District Court hearing, but they would be minimal and would have to be met by the respondent.
I welcome this Bill. It is necessary in that a number of husbands defaulting on maintenance payments reside in countries other than the United Kingdom. A major effort is being made by the Department of Social Welfare to follow errant husbands to retrieve some of the money paid out in lone parent and deserted wife's benefits. A big effort is being made to claw back maintenance from husbands who reside here or on the neighbouring island. Will this legislation make it more difficult for spouses in receipt of social welfare assistance because of missing husbands? Will they be pressurised into finding their husbands? Since the Department of Social Welfare stepped up its efforts in this regard many women in receipt of lone parent benefits are being pressurised to find their errant husbands.
That is really a social welfare issue. The purpose of this legislation is to facilitate the recovery of maintenance payments from people who should be paying them. In other words, the primary responsibility for the maintenance of a wife and children should rest with the husband if he is in a financial position to do that. This legislation will facilitate the recovery of maintenance payments from spouses living abroad who fail to meet their responsibilities. The downstream effects that may have on the social welfare position and the interplay between a spouse and the social welfare authorities here and in other countries is a separate matter that will be governed by the social welfare position. It does not give rise to a different position from that where the husband resides in Ireland. Whatever position applies from a social welfare point of view, it would not be different from that where a husband lives abroad and maintenance payments — which he should be paying in the first instance — are successfully recovered from him.
I am unhappy with that response. There is a major difference between cases where a husband lives in Ireland or lives abroad in that if he disappears or defaults on maintenance payments it is more cumbersome to enforce maintenance orders against him abroad. In such a case there is extra onus and stress on the wife. I ask the Minister to meet the Minister for Social Welfare to look at this aspect of the Bill. There is not much point in introducing a Bill which technically enables women to get maintenance from errant husbands only to find that the social welfare safety net may no longer be available as they will be told to seek maintenance from their husbands through the central authority. At present the procedure for seeking maintenance from husbands living in Britain is extremely slow and cumbersome. That problem may not be dealt with in this legislation. In view of the potential spin-off effects of the Bill when enacted, what does the Minister intend to do to ensure that women are protected when it comes to social welfare payments?
Given the trend of the debate and the answers given by the Minister, it has occurred to me that some legislation should be jointly sponsored by at least two Ministers because we are criss-crossing between the areas of equality and law reform and social welfare. The Minister for Social Welfare and possibly the Minister for Justice would need to be present to get satisfactory answers on the issues raised. This country is paying out vast sums of money to wives deserted by their husbands who are working and earning money, particularly in Britain. The British authorities have too much work to do in their sphere to pursue those people. Co-operation with the British authorities is required to allow Irish investigative social welfare officers into Britain to follow up those people. The lack of follow up procedure in this area is an appalling loss to the State. The cost is considerable and would be unnecessary if the investigative work was done in Britain. We are not getting to the root of the problem. We are talking around it; much of it is wishful thinking that the British authorities will do the work we could do if we had a reciprocal arrangement whereby social welfare investigative officers worked in Britain. Such work is successfully undertaken here in respect of the unemployed, where people are double jobbing or claiming unemployment benefit while working on the side. A strategy should be adopted to unearth husbands who could afford to pay maintenance to their wives, which otherwise has to be paid out of resources which are badly needed for other purposes.
We must be realistic. Often in cases where husbands leave their wives and go to live in a foreign jurisdiction they enter second relationships. If they do so they find it difficult to pay maintenance to their wives and families. We should also note that if divorce was introduced the probability of husbands entering into second relationships would increase and in tandem with that the probability of being able to pay maintenance to their wives and families at home will decrease.
In those circumstances matters would have been regulated by the courts and court orders would be in place to provide for the payment of maintenance if appropriate and the disposition of property if there was any. Deputy Deasy was making a very important point. Most women in poor family circumstances are faced with a choice of claiming social welfare benefits on the basis of desertion or pursuing their husbands for maintenance. In many circumstances it is difficult to encourage wives to pursue their husbands for maintenance because they will receive less than they would be eligible to claim from social welfare and often they will not be able to recover maintenance payments. Should the onus be on wives to pursue their husbands or should that be the responsibility of the State? I accept that cost issues are important but aside from those a powerful case can be made for a central authority to pursue, on behalf of the Department of Social Welfare, husbands defaulting on maintenance payments.
Deputy McManus raised the question of extra stress if the husband lives abroad and I accept that. The purpose of this legislation is to set up a central authority to assist wives to prosecute husbands if wives so wish and to arrange with the central authority in the countries in which their husbands live to follow up the matter and to recover maintenance where possible. The success rates in recovery in Ireland and England are not great and some new ideas and measures are contained in the Family Law Bill which is going through the House at present. The purpose of this Bill is limited. We are talking about setting up reciprocal arrangements with foreign countries. Deputies will agree that within the limitations of securing maintenance payments, that will be of major help in many cases. It will not be successful in all cases because some husbands evade maintenance, others travel and so on. It will enable many women who would not otherwise be in a position to do so, to avail of recovery procedures for substantial maintenance payments.
I am informed that there is a high level of co-operation between the social welfare authorities in Ireland and in the UK, maybe there is room for improvement there. The Minister for Social Welfare would have further information on that. The question of the disposition of moneys recovered, as I said earlier, does not fall within the ambit of this Bill. This Bill seeks to facilitate and put new procedures in place that will clearly be of help in trying to recover moneys properly due. Obviously it will be to the benefit of this State if moneys are recovered from husbands who should be supporting their wives and children, provided, of course, they are in a financial position to do so. Many are and many others are not.
While welcoming the Bill its provisions will apply only to spouses who come from a family reasonably well off because it is in their interests to pursue the errant or wayward husband. In that case, probably the wife would not be able to obtain social welfare because of their family circumstances. On the other hand, there are deserted spouses who will not have the wherewithal to chase their husbands all over the world. While the provisions put in place a system for everybody, I worry that in some way perhaps the wife who is reliant on social welfare will be subjected to a greater onus to pursue or to assist in the pursuance of the errant husband. The Department of Social Welfare, quite rightly, recently took over the role of the wife in chasing the errant husband. I fear that wives will be in a position in which they will be obliged to co-operate in the pursuance of the errant husband which would inconvenience wives and cause them unnecessary distress. I am aware that, in some cases the Department of Social Welfare is extremely adept at ascertaining whether or not a maintenance order has been granted by a District Court or a Circuit Court, that the Department is following up on these cases putting pressure on both wives and husbands, in effect, to cough up and claw back money the State has already paid out in social welfare payments.
There may be many such cases. The Bill will have a particular reference and usefulness, to a case in which, for example, a wife in Ireland is in poor financial circumstances as a result of having been deserted by her husband. The husband could be doing very well in good employment in Germany, or even carrying on business there. This procedure would enable the wife who is in poor circumstances in Ireland, without incurring any expense whatever, to go to the central authority, give them the information, and they would do the job for her, perhaps in many cases, recovering maintenance for her and her children. The husband may have gone to take up highly-paid employment and then did not bother about his wife and children.
The central authority, without imposing a charge, would try to enforce the maintenance order, but the wife would have to go into court and get that order, incurring some expense in that respect. If somebody can obtain deserted wife's benefit, lone parent allowance or whatever, there would be no compunction on them to proceed. My fear is that the legislation we have in place to follow the husband may be used against the wife.
The Bill will apply in two cases. First, it will apply where there is already in existence a maintenance order and the question of enforcing that existing maintenance order abroad arises. That is one case with which the central authority deals. The Bill also deals with a case where there is no existence maintenance order, when the two central authorities co-operate to obtain a maintenance order in the foreign country where none existed before. Affidavits are prepared here by arrangement with the central authority and forwarded to the country abroad and a maintenance order obtained there. I do not say it will be a panacea in every case but certainly it will have a very useful relevance in many cases.
Question put and agreed to.
SECTION 14.
I move amendment No. 13:
In page 12, subsection (1) (a), line 11, to delete "the Act of 1993" and substitute "the Acts of 1988 and 1993".
Amendment agreed to.
I move amendment No. 14:
In page 12, subsection (1) (a), line 14, to delete "section 7 shall apply accordingly" and substitute "Part II and the other provisions of those Acts shall apply accordingly, with any necessary modifications".
Amendment agreed to.
I move amendment No. 15:
In page 12, subsection (2) (b), line 36, to delete "the said section 7" and substitute "sections 6, 7 and 8 of that Act".
Amendment agreed to.
I move amendment No. 16:
In page 12, subsection (3), line 39, to delete "or 5A" and substitute "or section 5A or 21A".
Amendment agreed to.
I move amendment No. 17:
In page 13, subsection (8), line 38, to delete "subsection (1) (b)" and substitute "subsection (1) (c)".
Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."
We have been talking about expense and so on. Under section 14 (1) (c) the central authority may go to the Circuit Court to make an application for manintenance. In rural areas the Circuit Court would not constitute the quickest means of getting any order made because it would depend on what case was being heard at any given time. Will the Circuit Court have any specific duties here? Will it be a Circuit Court in Dublin or, alternatively, will it be one that will have a special judge dealing with these types of cases? Certainly, time would not be of the essence in the case of Circuit Court hearings.
Under section 14 the application would be made to the District Court — if the amount is within the District Court jurisdiction — or, failing that, it would be made to the local Circuit Court. I take the Deputy's point on delays. I understand my colleague, the Minister for Justice, has plans under way to tackle such delays.
All of us would be concerned that delays be eliminated. I look forward to whatever proposals emanate from the Department of Justice in that regard. Undoubtedly, there will be considerable costs incurred by the central authority, leading to considerable costs for the Minister's Department. Has he any idea at this stage what provision will be made for such increased costs being borne by his Department? Is there any way of estimating at this stage how many cases will be pursued, what exactly this would mean in relation to legal costs and so on? Would that form part of the Estimate of the Minister's Department?
That would be part of the Estimate of my Department. That matter will be considered in that context for 1995.
Is there any way of predicting an estimate at this stage?
It is difficult to predict. We will have to wait and see how it transpires. We will keep it under review depending on how it develops.
Section 14 (5) states:
Where it appears to the court that the claimant or respondent bona fide desires the production of a witness for cross-examination and that witness can be produced the court shall define to permit the evidence of the witness to be given by affidavit.
Is there any protection there for a husband who may have gone to, say, Germany, in the case of a wife who wants to have her husband brought to court when he may not have anything further to add to what he will have furnished by way of affidavit? Can he be forced to go to another country to give evidence?
Subsection (5) does not deal with that position. Rather, it deals with a reverse situation. That would be a circumstance in which, let us say, the wife is living in Germany, the husband is living in Ireland, and she seeks to enforce a maintenance order against him and issues the procedures through the two central authorities. In such circumstances, on her complaint, the matter comes to an Irish court initially and, if possible, the matter is dealt with on affidavit rather than having to bring witnesses to court. If that man says that what she is saying on affidavit is not correct and he insists and requires her to come into the court so that she can be cross-examined by his solicitor or counsel and if the court decides that is a bona fide request then, notwithstanding the expense involved, that has to happen. One cannot in the event of dispute decide a case purely on affidavit. You can only do it if you can dispense with the necessity for the witness making the allegations to be present in court. If the person insists that there is a dispute on evidence and the court is satisfied that is bona fide, there is no way around that, as it is a constititional right.
Even if someone does it for spite and decides to make it as hard as possible for his or her former partner?
That is an excellent point and that is precisely why I have included in subsection (5) the words "bona fide desires". There must be good faith and the court has to be satisfied about it.
Who decides on the question of good faith?
The court.
Section 14, as amended, agreed to.
Section 15 agreed to.