We will proceed to consideration of section 24, amendment No. 126 in the name of An tAire. Amendments Nos. 127 and 128 are related. Therefore we will take amendments Nos. 126, 127 and 128, by agreement, together. I should point out that it is the substitute amendment No. 126 on the additional list of amendments we are dealing with while amendments Nos. 127 and 128 are on the main list.
I move amendment No. 126:
In page 13, line 34, to delete "a care order or a supervision order" and substitute "an order under Part III or IV".
The original draft of this section requires the court hearing an application for a care order or a supervision order to inquire whether the person in respect of whom the order is sought is, a child, that is, a person under 18 years of age who is not and has not been married. It is essential that the court establishes this as care orders and supervision orders can only be made in respect of children. It was originally our intention in amendment No. 126 to extend this to include a reference to emergency care orders. However, as a result of the acceptance of amendment No. 81, it is necessary to extend the provision to interim care orders as well. Rather than listing different types of orders, the substitute amendment No. 126 refers to any order under Part III or Part IV. The effect of this is to extend this provision to emergency care orders, interim care orders and access orders as well as care orders and supervision orders. This means that a court, hearing an application for any of these orders, will have to inquire whether the person in relation to whom the order is sought is, in fact, a child.
The other two amendments deal with the second part of the section. At present this provides for two matters. Firstly, where false or incorrect age is given to the court, this does not invalidate any order or direction of the court. Secondly, where the age of the person cannot be established exactly, the court may presume the person to be of a particular age and that age is deemed to be his true age for the purposes of the Bill. I am concerned that these provisions, if interpreted strictly, could give rise to difficulties. For example, if a court made a care order in respect of a person whom it presumed was 17 years but whom it later transpired was 19 years, this would seem to mean that the care order would have to remain in force, even though the person involved was no longer a child. This makes no sense and I am, therefore, proposing in amendment No. 127 the deletion of the phrase "but an order or direction of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court". For the same reason I am proposing in amendment No. 128 that where a court presumes or declares a person to be a particular age, that presumption or declaration shall be valid until the contrary is proved.
I move amendment No. 127:
In page 13, lines 36 to 38, to delete all words from and including ", but an order" down to and including "stated to the court,".
I move amendment No. 128:
In page 13, line 39, after "shall," to insert "until the contrary is proved,".
We proceed to consideration of section 25, amendment No. 129 in the name of An tAire. Acceptance of this amendment involves the deletion of section 63 of the Bill.
I move amendment No. 129.
In page 13, before section 25 but in Part IV, to insert the following new section:
"25.—(1) For the purpose of ensuring the expeditious hearing of applications under Part III or IV or under section 29 (4), 32 or 33, rules of court may make provision for the service of documents otherwise than under section 7 of the Courts Act, 1964 (as amended by section 22 of the Courts Act, 1971) in circumstances to which the said section 7 relates.
(2) This section is without prejudice to section 17 of the Interpretation Act, 1937, which provides for rules of court.".
At present, this provision is contained in section 63 of the Bill. In view of the decision to create a new Part V dealing with court jurisdiction and procedure, it is more appropriate that it be included in the new Part V. This is what is proposed here and I hope we can agree to same.
Is this a repositioning of the section?
There are slight technical changes.
There are fewer lawyers here than usual. Is there anything of substance that would be incomprehensible?
I would like to elaborate for the benefit of the Committee. This section enables rules of court to make special provision for the service of court documents, for example, a notification to parents of the health board's intention to apply for a care order in respect of their child. Generally, court documents are served by registered post in accordance with the Courts Acts, 1964 and 1971. In child abuse cases, this method of service might be too slow. This enables special arrangements to be made in such cases, for example, handing the document directly to the parents or leaving it at their last known address. The opportunity has also been taken to limit the scope of the section to certain specified proceedings, rather than applying it to any provision of this Bill, as is the case with section 63. The reason for this change is that while it is desirable that the facility of short service of documents be available in relation to emergency care orders, interim care orders, care orders and supervision orders etc., it would not be appropriate in the case of the various offences created by the Bill. Persons charged with offences must be given an adequate period of notice and the usual safeguards of the criminal law. The amendment, therefore, proposes that the special rules of court under this section may only be made in relation to proceedings under Part III — emergency care orders; Part IV — care orders, interim care orders, supervision orders and access orders; section 29(4) — removal of a child from foster care or residential care; section 32 — recovery of a child who was removed from care, and section 33 — applications for directions in relation to children in care. If the Committee accept this amendment, section 63 will be deleted from the Bill in its entirety.
Mainly in criminal proceedings the service of documents is by personal service, by Garda or whatever. In civil proceedings, the most frequently used procedure is by registered pre-paid post. There are instances in civil proceedings where if there is difficulty in serving someone by regisitered post, the person will look for what is called substituted service. I have no doubt that this is what this amendment is about — to allow rules to be brought in to make arrangements for substituted service of particular documents, like the application for an emergency care order. There are other provisions in this Bill, for instance in the last section which we discussed, relating to prosecution for publication. In that instance, you would most likely have to have, as in all criminal offences, personal service rather than postal service. I would not see any grave objection with that.