Amendment No. 5 involves a potential charge on the Revenue and is, therefore, out of order. Similarly with amendments Nos. 6, 7, 8 and 9, which are also out of order.
SECTION 5.
Amendments Nos. 5 to 9, inclusive, not moved.
Amendments Nos. 10, 11, 12, 15, 16 and 17 are related while amendments Nos. 13 and 18 are consequential and all may be taken together. Is that agreed? Agreed.
I move amendment No. 10:
In page 9, subsection (4) (a), line 36, after "matter" to insert "and by a certificate signed by a person qualified to help to effect a reconciliation between the spouses, that the applicant has attended that person and has discussed the possibility of a reconciliation, and where appropriate a certificate signed by a person qualified to provide a mediation service, that the applicant has discussed with that person the possibility of engaging in mediation to help effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse.".
The purpose of the amendments is to impose an obligation on the spouses in divorce proceedings to attend a counsellor to discuss reconciliation and to produce a certificate from the counsellor which proves they discussed the issues with him or her. If in due course this fails, the spouses will be obliged to attend a mediator. The attendance with a counsellor is to try to effect a reconciliation while the sessions with the mediator are to help to resolve disputes and conflicts arising from the marriage breakdown, separation or divorce.
This would be better than the proposal in the Bill that a solicitor is only required to discuss counselling and mediation and provide names of qualified people. It is almost a token approach to counselling that one is required to discuss it with a solicitor who is obliged to provide a list of qualified people. It is an attempt to ensure counselling takes place, but the concern is that it could become an empty formula and counselling would not take place in many cases.
The point of the four year waiting period is to allow for a lengthy gap between the origins of the conflict and the final resolution, if that is possible. The idea is to allow the dust to settle and to ensure partners who decide to break up and apply for a divorce have given due consideration to all the implications and aspects which arise. In the four year delay period there is time and space for much of the anger which surrounds the conflict at the point of the breakdown to subside. It makes sense, therefore, to re-evaluate the position at or near the end of the four year period.
Feelings may have altered and some people may be willing to reconcile. For this to happen, a structure is required to start the process. The amendment requires the couple to attend a counsellor and this may be the catalyst for reconciliation. In cases where there is no possibility of reconciliation the requirement to attend a counsellor is a minor extra in terms of the many things people must do if they apply for a divorce.
Surveys over many years show that 50 per cent of couples who remarry later regret that the first marriage broke down. A proportion of those people feel they did not do enough to ensure a reconciliation at that time. Everybody agrees counselling should be available and the Minister has made additional provision for such services. However, the suggestion is that there is scope for successful counselling four years after the break up. The court is constitutionally obliged to be satisfied that there is no possibility of reconciliation.
The amendments would place an obligation on a couple to engage, in as real a sense as possible, in counselling and in mediation if it is obvious nothing will be achieved by the counselling. Evidence over the years is that the more counselling, mediation and information sessions available to diffuse the bitterness and antipathy and improve the environment, particularly for children, the better. It emerged in the research we conducted that the greatest adverse effect on children arose from the conflict between the parents. If the conflict between the parents can be resolved, the negative effects on the children will be greatly reduced. Parental support for the children is crucial to their development in the long term. This all points to ensuring the counselling is real and adequate.
The amendments suggest making counselling obligatory and many people say counselling should be available if couples with to use it. However, other administrations decided to make counselling obligatory and good results have been achieved. In Australia, the Family Law Act, 1975, established mandatory court annexed counselling and conciliation services for child and property disputes. Counselling for matters involving children is also available to be voluntarily taken up before the court proceedings commence. The experience there is that these services proved highly effective in assisting couples to reach agreements without costly and lengthy litigation. While such counselling and conciliation services are viewed as progressive and necessary, some argue they should not be placed in the court context.
I agree with increasing the availability of counselling and providing voluntary organisations with greater resources for counselling. The Minister has done that to some extent.
Some years ago when I was in the North I inquired about its divorce legislation. Its experience in this regard is closer to ours than to the British experience. I was told it had a huge beneficial effect in areas where there was good counselling. I was also told the Government was always promising to do more about counselling but that it never did and they deeply regretted that. They knew what was necessary to reduce conflict and to help the children in these situations. The Government agreed that counselling was important but did not provide resources for it.
I emphasise these issues because this is a historic time when the people have decided by a referendum on a particular line of action. All minds must be focused on what we are doing and how to achieve our aims. It is particularly important to do what is right now. Deputy Browne mentioned past discussions and debates. The present is significant because we have made a decision and we must decide how best to implement it.
It is important to ensure that counselling is provided. The Minister has included a provision that a solicitor must issue a certificate stating that the person has been told about counselling and has been given a list of people involved in this activity. We could benefit considerably by ensuring that counselling takes place. I know some people will not participate in counselling, while others will participate in mediation. If people participate in mediation and counselling processes, they will see the benefits for themselves and for their children. I ask the Minister to support the amendments.
I omitted to refer to amendment No. 14 in the name of Deputy Keogh. For the purpose of debate, we will include amendment No. 14 because it is broadly similar to those moved by Deputy Woods.
There was a lot of debate both before and since the referendum about reconciliation and mediation. As Deputy Woods said, while the Bill places great emphasis on reconciliation and mediation, there is no provision for the regulation of the reconciliation and mediation profession. The Bill takes account of the consensus that reconciliation and mediation should be part of the process. The purpose of amendment No. 14 is to focus on the fact that the profession must be regulated and that the Minister should make regulations in this area. Attention should be given to the establishment of recognised training for mediators. We should aim for a professional service and ensure that the provider is a registered practitioner or a member of an appropriately recognised professional organisation which meets all the criteria, such as entry requirements, training and post training, ethical standards and continued education. This area of mediation and counselling is beginning to develop. The purpose of this amendment is to allow the Minister to introduce regulations for the mediation profession.
Amendments Nos. 10 and 15 provide that where a solicitor is acting for the applicant or respondent, the originating document, by which the proceedings for a divorce are instituted, must be accompanied by a certificate signed by a counsellor or a mediator, respectively, to the effect that the applicant and the respondent have attended to discuss the possibility of a reconciliation or have attempted a mediated settlement.
Amendments Nos. 12 and 17 provide similarly in the circumstance where a solicitor is not acting for the applicant or the respondent. Amendments Nos. 11 and 16 provide that if the originating documentation is not accompanied by such certification, the court may adjourn the proceedings for such period as it considers reasonable to enable the applicant and the respondent to engage in discussions with the person qualified to help effect a reconciliation and, where appropriate, the person qualified to provide a mediation service. Amendments Nos. 13 and 18 are drafting amendments consequential on the above amendments.
It appears that the amendments serve no particular purpose in the context in which counselling and mediation, as is the case under the Bill, is envisaged as a process to be engaged in by parties on a voluntary basis. A requirement to provide such certificates from counsellors and mediators would have relevance only in circumstances where parties are compelled to undergo counselling to effect a reconciliation and mediation. I assume the Deputy does not have any such compulsion in mind. I appreciate and share the view that every effort should be made by parties to effect a reconciliation and, failing this, to engage in mediation as an alternative to engaging in legal proceedings on all issues before the court. However, I do not accept that these amendments contribute to that process. They would merely add an unnecessary process of certification. Accordingly, I oppose Deputy Woods's amendments.
Amendment No. 14 would provide for the Minister for Equality and Law Reform to make regulations establishing a register of persons qualified in the field of counselling and mediation. It suggests that I should have a role in the regulation and certification of persons as counsellors and mediators. In a reply to a question in the House on 20 October 1993 on the subject matter of this amendment, I indicated I was unable to agree it is a function of my Department or the Family Mediation Service to establish a national register of persons who are deemed to be qualified to practise as family mediators. I remain of that view which also represents my position in relation to the question of a register of qualified counsellors. My Department has certain responsibilities which relate to the funding of marriage counselling organisations as well as the funding and administration of the Family Mediation Service. However, it would be wrong to think I am in a position to regulate generally the certification of persons as counsellors or mediators.
The question of who is qualified to act as a counsellor is best answered by the organisations employing such persons. The system, as it operates on that basis, works well. Counselling organisations such as Accord and Marriage Counselling Services, for example, set certain standards for their members and, as far as I am aware, engage in a great deal of dialogue between themselves with a view to standardising practice and procedures. Similarly, I understand that mediators, through the Mediators' Institute of Ireland, have set standards necessary for accreditation and training of mediators. I cannot accept that there is a need for me to intervene in the system as it operates at present. Therefore, I oppose the amendment.
(Carlow-Kilkenny): We would like to see as much reconciliation and mediation as possible. However, I would have serious questions if this were made compulsory. This brings to mind the old saying about bringing a horse to water. If a person approaches a solicitor to establish divorce proceedings, under the terms of the Bill the solicitor must discuss the possibility of reconciliation with the client and provide the names and addresses of individuals qualified to help. The solicitor must also discuss mediation. If clients do not wish to become involved in either process, it will be very difficult to obtain their co-operation. The matter then becomes compulsory. Like the right to silence, a client can state at the outset that they are not interested in reconciliation or mediation.
I doubt whether there is any advantage in making reconciliation or mediation compulsory. I am in favour of putting in place facilities for such services because it is important that a person seeking divorce proceedings is first informed that an alternative exists. They can also be informed that perhaps divorce is not the best route and discuss their problems with a professional counsellor or mediator. It is important that people are given this opportunity when they contemplate instituting divorce proceedings. If they are forced to meet an adviser and do not want to do so, very little will be achieved and such people may become more dogged in their views.
I respect the Deputy's point of view and I have considered its implications. The Bill as drafted states that a solicitor must advise and inform his clients about reconciliation and mediation services. Solicitors will be seeking the establishment of a register of those with professional expertise in this area. As it stands, they need only provide clients with a number of names of counsellors. This is an empty formula and a token gesture. However, I accept it is a step in the right direction, because solicitors are required to show that they informed their clients about counselling and provided the names of counsellors. I recognise the points made by Deputy Browne and the Minister in that regard. However, if counselling is desirable and helpful, why not permit people who do not want to participate to attend one meeting with a counsellor and state that they are not interested in proceeding? The partner who is seeking a divorce could attend all the meetings and listen to the counsellor's advice. Both partners could then receive a certificate. If neither wishes to participate, they cannot obtain a divorce because they will not have a certificate to prove they attended counselling.
We can learn much from Australia because its citizens pioneered a new country and considered issues from fresh perspective. A number of years ago, I returned from New Zealand with the idea for the Strategic Management Initiative. I have always believed in management by objectives and wrote a book on the subject in 1970.
The Deputy's book was before its time.
Yes, it was. The chairman lives in the midlands and should know the peat products emanating there during that valuable research period — which provided novel perspectives on not being afraid to tackle new ideas — were patented in my name.
A future meeting of this committee will deal with the issue of children and what must be done about them. Parents must be made to engage in a reconciliation or mediation process, not merely comply with an empty formula whereby their solicitor provides names of counsellors. An increased percentage of people will avail of professional counselling if it is made compulsory.
I spared the Chair by not reading out the amendments in their entirety. I take it they will be placed on the record when the question is put?
The Deputy not only spared the Chair, he also spared the committee.
Yes. Basically, these amendments are aimed at giving people the opportunity to reconcile their differences. If they were accepted, the percentage of those who reconciled would increase. In so far as any marriage break-up can be happy, the percentage in this regard would also increase. If we are to believe the research carried out on this subject, it is better for children's long-term well-being that marriage break-ups are as amicable as possible. I believe it is worth making counselling compulsory for that reason.
There is a national register of accredited members which is produced by Accord and the MCS. I accept the merit of Deputy Keogh's proposal that the Minister could, by regulation, provide a register which would be available to everyone. The register produced by Accord and the MCS and the names of suitably qualified independent professional counsellors, on whom people could rely, could be incorporated in that register. A comprehensive national register would be very welcome and would improve on the substantial register already in existence. There is merit in the Minister taking an interest in this matter by way of introducing regulations. It is important that counsellors are trained on a professional basis.
Accord and the MCS certifies people as counsellors when they have received sufficient training. These bodies have a core——
There are others.
Yes, the Irish Association of Counselling Therapists and there are also individual counsellors. It would be a good idea to agree standards, which could be introduced by means of regulations, with these groups to cater for everyone. From that point of view, I support the amendment tabled by Deputy Keogh. I believe, as does the Minister, that counselling is important. Where we part is that he feels it sufficient for the solicitor to tell people the names of counsellors and to certify that it has been done. What is the point in that? Nothing much will happen from that. Would it not be better if people were required to take a session with a counsellor or mediator? A good number of people are doing that and the mediation service, which is receiving support from the Minister, is having good results. Some of the people attending it are reconciled which is not supposed to happen because they are beyond that point. It happens because people get a chance to sit down with a professional counsellor and go through things in detail and, after some time has elapsed, they think again. A proportion are reconciled at the mediation stage. Its main purpose is to help people who have decided to part to do it amicably. That is especially important where there are children because it means parents can part on a reasonable basis and, from all the research, that is good for children. That is all that is between us. We feel it should be there as an obligation and a requirement and that is what is provided for in amendment No. 10.
Amendment put.
The Select Committee divided: Tá, 9; Níl, 11.
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Tá |
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Ahern, Noel. |
O'Keeffe, Edward. |
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Browne, John (Wexford). |
Power, Seán. |
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Fitzgerald, Liam. |
Wallace, Dan. |
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Kenneally, Brendan. |
Woods, Michael. |
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O'Donnell, Liz. |
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Níl |
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Browne, John (Carlow-Kilkenny) |
McDowell, Derek. |
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Byrne, Eric. |
Mulvihill, John. |
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Dukes Alan. |
Taylor, Mervyn. |
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Flanagan, Charles. |
Timmins, Godfrey. |
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Harte, Paddy. |
Walsh, Éamon. |
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Kemmy, Jim. |
Amendment declared lost.
I move amendment No. 11:
In page 9, subsection (4) (a), line 40, after "subsection (2)" to insert "and the applicant to engage in the discussions with the person qualified to help effect a reconciliation and where appropriate the person qualified to provide a mediation service.".
Amendment put and declared lost.
I move amendment No. 12:
In page 9, between lines 45 and 46, to insert the following subsection:
"(5) Where a solicitor is not acting for the applicant, the originating document by which proceedings under section 4 are instituted shall be accompanied by a certificate signed by a person qualified to help to effect a reconciliation between the spouses, that the applicant has attended that person and has discussed the possibility of a reconciliation, and where appropriate a certificate signed by a person qualified to provide a mediation service, that the applicant has discussed with that person the possibility of engaging in mediation to help effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse.".
Amendment put and declared lost.
I move amendment No. 13:
In page 9, subsection (5), line 46, to delete "A certificate" and substitute "Certificates".
Amendment put and declared lost.
Amendment No. 14 not moved.
Section 5 agreed to.
SECTION 6.
I move amendment No. 15:
In page 10, subsection (4) (a), line 33, after "matter" to insert "and by a certificate signed by a person qualified to help to effect a reconciliation between the spouses, that the respondent has attended that person and has discussed the possibility of a reconciliation, and where appropriate a certificate signed by a person qualified to provide a mediation service, that the respondent has discussed with that person the possibility of engaging in mediation to help effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse".
Amendment put and declared lost.
I move amendment No. 16:
In page 10, subsection (4) (a), line 37, after "subsection (2)" to insert "and the respondent to engage in the discussions with the person qualified to help effect a reconciliation and where appropriate the person qualified to provide a mediation service".
Amendment put and declared lost.
I move amendment No. 17:
In page 10, between lines 42 and 43, to insert the following subsection:
"(5) Where a solicitor is not acting for the respondent, the memorandum or other document delivered to the appropriate officer of the court for the purpose of the entry of an appearance by the respondent, shall be accompanied by a certificate signed by a person qualified to help to effect a reconciliation between the spouses, that the respondent has attended that person and has discussed the possibility of a reconciliation, and where appropriate a certificate signed by a person qualified to provide a mediation service, that the respondent has discussed with that person the possibility of engaging in mediation to help effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse.".
Amendment put and declared lost.
I move amendment No. 18:
In page 10, subsection (5), line 43, to delete "A certificate" and substitute "Certificates".
Amendment put and declared lost.
Section 6 agreed to.
When will we conclude today?
A number of Members have indicated they have other meetings so it is proposed that we adjourn at 4.40 p.m.
What arrangements are proposed for tomorrow?
It is proposed to meet at 11.30 a.m. and to sit until we complete Committee Stage of the Bill, so the finishing time will depend on Members. Is that agreed? Agreed.