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Select Committee on Legislation and Security debate -
Wednesday, 17 Jul 1996

Expression of Sympathy.

The reason for our late start was to allow Members to pay their respects at the funeral of Emmet McCabe, son of John McCabe, the head service officer in the House. I would like to convey the sympathy of the committee to the parents and family of Emmet McCabe.

I would like to be associated with the expression of sympathy to John McCabe, his wife Patty, and his family on the tragic death of his son, Emmet. John, a well known personality in the House, is one of the most obliging and helpful officials in Leinster House. He sets a high standard in that regard and, consequently, all committee Members would know him well. I was particularly pleased that many Members and officials from the House attended the funeral, including the Ceann Comhairle. That was greatly appreciated by the family at this very difficult time for them. I join with the Chairman in expressing our sincere sympathy to John McCabe and his family. We will give him every support we can.

I would like to be associated with the expression of sympathy and join with the words of the Chairman and Deputy Woods. It was a horrific event to cope with for any parents and we feel for John McCabe and his family. On behalf of the Government, I would like to be associated with the sentiments expressed.

On behalf of my party and on my own behalf I join in the expressions of sympathy to John McCabe and his family on the loss of their son. We all know John and, as Deputy Woods said, he is a most obliging and friendly member of staff and fellow worker with us in the Oireachtas. I hope we can support him and his family at this time.

I would like to be associated with the remarks also and extend my sympathy to John McCabe and his family on the tragic death of their son. It is a very difficult time for the family but the support we can give John in his work may ease the terrible problem he and his family are faced with.

I join with my colleagues in the expression of sympathy to John McCabe and his family on this tragic event.

Members rose in their places.

Family Law (Divorce) Bill, 1996: Committee Stage (Resumed).

NEW SECTION.

I move amendment No. 21:

In page 11, before section 9, but in Part II, to insert the following new section:

"9—In any proceedings brought under this Act which affect, or may affect, a child, the court may appoint a guardian ad litem where it is satisfied that it is in the child’s interests and in the interests of justice to do so.”.

The Bill seeks to give effect to the expressed will of the people in the referendum. Our job is to legislate to reflect the authority and consent of the people with regard to marital breakdown and subsequent divorce proceedings. Many of the amendments yesterday focused on the obligation on us to recall how narrow the margin of consent to divorce was in the referendum. Many of our citizens who voted "yes", like me, had serious fears about the rights of children whose lives are fundamentally altered by the divorce of their parents. Almost an equal number voted "no" for a variety of reasons but including the concerns about children to those failed marriages.

The Bill, and the procedures being provided for, must reflect the genuine concerns of all Irish people about the separate rights of children as distinct from the rights of parents. It quite properly places obligations on the courts to be satisfied that proper provision will be made for the spouse and any dependent children and may give such provision as it considers proper regarding the welfare, access to and custody of children in such failed marriages and divorce proceedings. These stated obligations on the court which were spoken of yesterday must be real and not just a formality.

Now that we are introducing a divorce jurisdiction the protection and welfare of children must be central to the process. We must be mindful that concerns for children almost tipped the referendum the other way. The Bill emanating from that referendum must, if democracy is to mean anything, reflect and champion children's welfare. The Law Reform Commission report on the family courts points out that the need for a guardian ad litem may arise in certain cases.

The Progressive Democrats propose that in any divorce proceedings involving a child, the court may appoint a guardian ad litem where it is in the child’s interest and in the interest of justice to do so. The guardian is intended to provide not only another but a different voice based on the position of independence. The inclusion of a guardianad litem in the proceedings would help to ensure that the rights of the child are upheld and that their opinions and wishes are listened to and represented properly in court. The inclusion of a guardian ad litem could assist in balancing the drawbacks of the adversarial system.

Most importantly the guardian's function would be to safeguard the interests of the child and to ensure that all matters connected with the welfare of the child and of relevance to the proceedings are presented to the court. The presence of the guardian would allow the court to ascertain the child's preferences if the child was, for example, too young to instruct a solicitor directly. There may also be a need for a more indepth background report than that envisaged by section 47 of the Family Law Act, 1995, which is included in this Bill.

A guardian ad litem is not a substitute for a legal representative, but should be an option where the court considers that something more than the standard social report is required for its adjudication. An independent panel of social workers could be established from which the court may appoint such guardiansad litem. Any person who has individual experience of family law cases, whether as a professional or a distraught litigant, knows that very often in separation, divorce, custody and guardianship proceedings children are used as weapons in the emotional crossfire between their parents. The role of the guardianad litem in such cases could be helpful to the court in reaching decisions about the welfare of the child.

That is the background to this proposal that the court may appoint a guardian ad litem in certain cases where the court feels it is right, given the circumstances of the individual case, that an independent voice be heard to represent the wishes of the child to the court. I look forward to the Minister’s response.

We support this important amendment. As Deputy O'Donnell said, it seeks, as we did, to protect children in particular circumstances. The amendments which we proposed suggested a commissioner for children. We believe there is a wider role to be fulfilled, wider duties and a need for a considerable body of expertise. That is why we proposed the commissioner and we will continue to pursue that line. However, we support the proposal put forward by Deputy O'Donnell in the name of Deputy Keogh. We recognise the point Deputy O'Donnell has made. In certain circumstances it may be necessary to have someone appointed specifically to look after the interests of the children and the court should be free to do that. That court should have the power to do that in any event.

The first point which needs to be stressed is that the law already provides in extreme cases covered by section 26 of the Child Care Act, 1991, that the court may appoint a guardian ad litem if it is satisfied that it is in the child’s interest and in the interests of justice to do so. The section operates in proceedings where a health board applies to the court for a child care or protection order and in proceedings involving a child in the care of the health board. That section would also apply in proceedings for divorce where a child care or protection order was in question.

I assume that the purpose of the amendment is to apply the guardian ad litem procedure to cover situations in divorce proceedings on a wider basis. I am aware that in its report on family courts the Law Reform Commission recommends a system of appointment of guardians ad litem in cases generally concerning children. I am giving consideration to that recommendation in its wider context and if its provision proves, on further examination, to be feasible and warranted I intend to bring forward proposals on the matter either in the context of this Bill or in the context of the Children’s Bill which is being drafted on my initiative.

Until that examination is completed and the necessary consultations have been made on the matter as to the legal, financial and staffing implications, I am not in a position to accept the amendment. I, therefore, ask the Deputy to withdraw her amendment on the basis that I will consider it between now and Report Stage.

I welcome the Minister's response to this matter. As the Minister said, the 1991 Child Care Act provides for the guardian ad litem service in child care cases where a child protection order is in force. However, in the context of introducing a divorce jurisdiction the comments made by the Law Reform Commission in its report should be taken more seriously. It would be a missed opportunity if we passed this Bill without giving effect to the serious concerns about the championing of children’s welfare in divorce proceedings of everybody who voted, whether negatively or positively, in the referendum.

I note that the Minister is considering the matter and I hope he will give positive and real consideration to it on Report Stage. I will move this amendment again on Report Stage and we can revisit this concept. The ISPCC made a formal and comprehensive submission to the Government in 1993 offering to run this service. It needs to be put on a more formal footing so that the guardian ad litem service will be formally, appropriately and comprehensively available to the courts, not only in child care cases but where the welfare of a child is being adjudicated upon by the courts in divorce proceedings.

I would prefer the Minister to take the option of dealing with it in this Bill rather than postponing the championing of those rights to another Bill as he has indicated. I do not believe the welfare of children's rights can be postponed to other legislation because there was such concern in the debate for and against divorce that the welfare of children should be stitched in and dealt with by this legislation. I will withdraw the amendment at this point and revisit it on Report Stage. I thank the Minister for his comments.

Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 to 12, inclusive, agreed to.
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