I move amendment No. 5 (d).
In page 16, line 9, to delete " two years " and substitute " three years or such longer period as the Minister may, by order, determine ".
My purpose for putting down this amendment is quite clear. I am seeking to amend section 26.
This is to substitute three years for two years.
Yes. The section is amending the making of affiliation orders under the Illegitimate Childrens Act, 1930. The section purports to increase the time of six months for the initiation of these proceedings to two years. I am very strongly advised by social workers and others working in this area that they would infinitely prefer three years and some of them would wish that there would be no limitation at all. I have tried to devise a compromise in suggesting that the time limit be " three years or such longer period as the Minister may, by order, determine ". I want to introduce the maximum possible amount of flexibility into the situation and, at the same time, provide some statutory limitation. I recommend the proposal to the committee. I recognise that the Minister is proposing an improvement by extending the period from six months to two years. I am doing this at the instance of a number of very concerned people working in the field in these areas who ask that the period be increased to three years and that the Minister be given the power to increase the period further by order if circumstances warrant it.
It is difficult to decide what is the proper limitation in an area such as this. I have given a great deal of thought to this and I think two years would be the fairest limitation period. There is a strong case that the existing period of six months which has lasted since 1930 is altogether too short. The law imposes limitation periods to ensure that parties will not be prejudiced in their situation vis-�-vis each other by reason of a lapse of time and that circumstances will not change which will make it more difficult to defend an assertion of a legal position, that circumstances would have altered and memories would have become blurred and the circumstantial evidence that might be very relevant would disappear. In a situation such as this, which is depending very often on one word against the other, supported by some circumstantial evidence, I would be apprehensive of extending the limit to as long as three years.
It is a matter we could discuss for a long time without convincing each other that two years, three years, five years, is absolutely correct, but having regard to the situation in which such application would arise following the birth of the legitimate child, the denial of paternity, the seriousness of that for those parties, in such cases circumstances and conduct at the time of and before the birth, are of extreme relevance, more so than, say, in the case of a running down where the limitation period is three years, and where invariably you will have a lot of permanent records, Garda reports and so on. In a case such as this, where there would obviously be no records and where the entire case would have to be based on recollection and pointing to transient circumstances, any longer than two years would militate too much against the person who would be defending himself.
Two years is a long enough period to enable a mother to decide whether or not to bring proceedings. Any longer than this could have the danger that it could prejudice the adequate defence of such proceedings. We had to bear in mind that there is no guarantee that all such proceedings would be bona fide. It is not beyond the realm of possibility that such prosecutions or such applications could be amounted mala fide and the longer it goes on the less chance there is of the defendant disproving the charge. There is an element of proving innocence on the part of any person who has to resist an application such as this.
I would be very hesitant in accepting the amendment. Two years is a fair and equitable time. The argument that was raised against the six-month limitation was that the girl was still suffering from the trauma of the birth and was unable properly to come to a rational decision as to her position. Clearly, that objection would be removed by extending the period to two years. As that was the main objection to the original limitation period and is now adequately removed by the figure of two years, I would suggest to the committee that in all the circumstances of these cases anything longer than two years might be dangerous.
Could I suggest to the Minister that, certainly prior to Report Stage, he would be well advised to seek the views of child welfare social workers, quite a number of whom hold the view that the period of two years, even with the major amendments the Minister is now proposing —certainly six months was grossly inadequate and very discriminatory—is not sufficient. An adequate number of them made strong representations to me to deal with it in my own constituency. While, admittedly, a particular defendant may have the sword of Damocles hanging over his head for two years, and admittedly defence may have lulled after that, nevertheless we should err on the side of the rights of the child. I know that the child welfare section of the association of social workers, among other eminently responsible social workers, feel there can arise certain circumstances. Indeed I know of some where quite a number of Irish children are born in Britain and the particular tangle of relationships that develops.
Why do they say two years is too short?
On the ground that circumstances can arise where after the two years an irrefutable case can be made in relation to paternity where there is no defence.
The Minister's arguments, to me, sound a little bit thin. I am not purporting to give anything like an authoritative personal opinion here but I am very strongly influenced by those who have worked very devoutely in this area. I think it is readily recognised that there is a very considerable line of public questioning about our attitude to this whole area of the unmarried mother. I think we have all heard very important and perhaps harrowing programmes on radio and elsewhere about the problem of the unmarried mother. The point Deputy Desmond has referred to is very important, that in this country there is a tendency to banish the unmarried mother from normal source of contact and very often they have to leave the country and go to Britain to have their children born. In all those circumstances, we should err on the side of the unmarried mother.
Although the Minister mentioned that there is the other case, I think we can all recognise the overwhelming number of cases where these suits are brought legitimately and justifiably. It is a traumatic experience for the person concerned. It is not difficult to visualise a mother being upset, disorganised and quite incapable of taking logical decisions, particularly if she has to go abroad to have the child. My advice is that three years is a reasonable period. I do not see how, by extending the period from two to three years anybody can be seriously disadvantaged. I do not think the Minister's argument of there being no records and that it would be difficult to establish the circumstances after a lapse of time are very convincing. I have a feeling, with respect, that it is an argument he is making, for the purposes of the argument. I do not think he sounded very convinced of the validity of what he has brought forward himself. This is a case where, I feel, we should not be particularly wedded to what is in the Bill. Just because two years is in the Bill there is no reason why if we all agree that it should be a longer period we should not decide on it. That is what we are here for. That is why we have this special committee, to see if we can improve the Bill in any way. I am very strongly advised by people whose judgment I respect in these areas, that they would very much like to see three years and, indeed, if, with the element of flexibility, the Minister decides that a longer period is necessary, he could do so by order. I would not press that very strongly. I would be satisfied with three years if the Minister would agree to that.
The difficulty with regard to something like this is that we are all relying on our instincts and it is very difficult to get what one might call quantifiable reasons for a particular time limit. We have to make a subjective value judgment as to what is fair. If we say three years, why not four years? What we have all said here could be equally relevant as an argument for and against a limitation period of four years. There is no statistical evidence to show that people tend to or would want to take these applications after a particular lapse of time, or that there would be greater prejudice against the child's mother after two years than after three years or vice versa. We have to keep the balance between the two parties, the mother and child on one side and the putative father on the other side, and we have to look at what this legislation is doing. It is amending the existing law and by common case the existing law is inadequate because the period is much too short; the reason advanced as to why it was too short was that the girl very often suffered a trauma and was unable to make a considered decision. If that is the reason, and that is the only reason I have heard advanced as to why the period was too short—I have never heard any other reason advanced—then I think that reason is well met.
what about the reason being abroad? The girl may have gone away to have the child.
I have talked to many people in this field and that aspect was not put to me. Even assuming that that was the reason, that the girl was not within the jurisdiction, I think changing it to two years would remove both of those reasons unless we chose to lay down the jurisdiction for longer than two years, but if she knew that her right depended on returning to commence an action within two years it would be up to herself to return to take this action. Looking at the only reason that has been advanced as contrary to the existing short term limitation, I submit that the term of two years in the Bill adequately answers that reason. We will have to look at the matter from the point of view of making our subjective value judgment as to what we feel is the right limitation period. I am conscious of the danger of a fraudulent action being taken in this particular field. I say this without intending to be offensive, but it is not only good girls who have babies. This is something we have to consider. We must ensure that both parties to such an action are protected. I would be apprehensive of extending the period beyond two years because recollection, which is so important, could be impaired by the lapse of time. In order to protect one party on that point, I am not at the same time prejudicing the other party. The other party has two years and it seems a long time to make up her mind whether or not to commence an action.
Does the Minister really think he is putting a defendant to any serious disadvantage or being in any way injurious to his position in making it two years instead of three years? Quite frankly, so far as the putative father is concerned, I cannot see that he would be put to any disadvantage by permitting proceedings to be initiated after three years. It is not such a long time in the life of a child or the life of a person. There is a great deal to be said for letting the action be taken at any time, of having no limitation whatever. If the person is the father, and that can be established, then surely affiliation proceedings should be taken at any time that the unfortunate mother either plucks up her courage to do it or is forced by economic circumstances. A very strong case can be made for no limitation whatsoever. I cannot see any validity in suggesting that memories grow dim after three years. The more I think about it and discuss it now with the Minister the more I am inclined to come down even more definitely on the side of no limitation at all.
That particular point has been made to me by a social worker, a member of a religious order, a child welfare officer in Dublin. For example, a father may exchange correspondence with a particular woman and she may detest the sight of him. There is proof and two years and ten months after the date of conception, whatever alleged date that is, that is the end of that prospect under this section.
This is a very important amendment.
I am not suggesting that my mind is entirely made up on this matter, but I would suggest that the Minister could consider it between now and Report Stage.
I have listened to the arguments and I can see some validity in what Deputy Haughey and Deputy Desmond say but, essentially, is it not a question of a subjective value judgment as to what is the appropriate period?
No, it is not. The point I was going to make very briefly was that the Minister used the words, that members of the committee would be discussing this particular aspect of the section by virtue of " instinct ". But the proposed amendment by Deputy Haughey was motivated by people who are operating not from instinct but rather from experience. There can be no question of a subjective value judgment by these individuals; these are people actually working in this field, concerned people, who have thought sufficiently about this particular Bill to bring to the attention of Deputy Haughey the extension of the period of limitation from the Minister's proposal of two years to three years. Like Deputy Haughey, the more one discusses this matter in committee, the more one feels limitation should be abandoned altogether. The amendment as proposed by Deputy Haughey is not instinctive.
May I say that, before deciding on two years, I also talked to the people in the field and I am aware that the people in Cherish are not keen on any limitation period at all. That may be an extreme view and I think they might, perhaps, reluctantly agree that it would be a minority view of theirs. There are other people in the area and I could not get anyone to be really positive on what was the proper period.
You have them now.
I have now from Deputy Haughey and Deputy Desmond. Would we leave it until Report Stage?
May I say I would be opposed to any extension of the time of six months as it stands at present. If you add to that nine months——
When these things——
May I finish? I have some experience of these matters in courts. I agree with what the Minister mentions for not extending the time further, but I think it should not be extended at all. It is sufficient because a putative father could be very severely prejudiced in his defence for the want of witnesses after a long period. After all, the unfortunate putative father must also be considered. There was a provision in the old Workman's Compensation Act, and this would probably meet both the Minister's point and Deputy Haughey's, which provided that the time for taking proceedings could be extended where reasonable cause could be shown on evidence, absence from the jurisdiction, mental illness, duress, coercion or incapacity of some kind or another. That would cover everybody's situation.
Can I come in here for a moment? There are two types of cases here. We have the case where the father does not admit paternity and another case where there is firm evidence that he has admitted paternity. I agree with Deputy Brosnan. I have defended in these cases and I am aware of the difficulties that can arise, even in a period of six months when a complaint is made. If the paternity is disputed then I would be concerned if there was a delay in bringing proceedings. There are two parties involved and the scales must be kept balanced equally between them. Deputy Brosnan's suggestion is a very sensible one.
I cannot see it as two equal parties at all.
I would be prepared to compromise that if the period of two years were not sufficient the court could extend the period. I could amend it at Report Stage and state the circumstances in which the court could extend the period of two years.
For one year with that qualification.
No. Two years.
We heard the chairman speaking about the difficulty of defending the fathers.
Very considerable proof may be available, but people, for their own reasons——
I am anxious to facilitate the work. We are all anxious that these special committees should be successful. If amendments are put forward and can be reasonably sustained and appear to have fairly general support in the committee, there is an onus on the Minister to accept them in the interests of making the committee system work.
I accept that point, but on the other hand, if there is reasonably valid argument for maintaining the provisions in the Bill, it is equally valid and it does not take from the value of the committee or from the value of the discussion arising on Government or Opposition amendments.
However, to show that we are reasonable people on this side of the House but I hope not letting down those who asked us to put forward these amendments, I would be prepared to wait for Report Stage if the Minister would undertake to put down an amendment along these lines.
I undertake to do that.
Will the Minister consider my suggestion to extend the time to any length where reasonable cause can be shown for the delay?
Yes, that the limitation period would be increased to two years with power given to the court thereafter to extend the time for a further year.
Where reasonable cause can be shown.
Yes.
Just extend the time.
I move amendment No. 5f.
In page 16, lines 43 and 44 to delete paragraph (g) and substitute the following:
" (g) by the making of an order under the said Act for the payment by the alleged father of a weekly sum of money commensurate with his weekly income,".
The proposal in the particular subsection of the new section 26 is the substitution of £10 for £5 in section 19 (3) (a) of the Courts Act, 1971. My amendment would effectively take care of the awkward word " inflation ". We believe that the fixing by a Bill of the upper limit is wrong because of the devaluation of money. We all agree that money is losing its value. The amendment is proposed in view of the deteriorating economic circumstances of our times. Alternatively the Minister could increase the amount by order.
We are back again to the constitutional difficulty. If I accepted the amendment this would give the District Court unlimited jurisdiction and we would be in trouble there.
.Andrews: I can see that.
Unfortunately, we have to prescribe. What is prescribed here is the figure of £10 per week, repeating section 22, where the figure occurs in relation to maintenance applications. The support of a child is laid down at £10 per week in the District Court. The other courts have jurisdiction to award greater sums. We are caught by the point of jurisdiction, having to specify the jurisdiction.
I move amendment No. 5g:
To add to the section a new subsection as follows :
" (2) The Minister may, by order, vary the amounts specified in paragraphs (b), (f) and (g) of the foregoing subsection."
This amendment is pursuing the same line of thought as that of Deputy Andrews. I would like to give the Minister power to vary the amounts specified in paragraphs (b), (f) and (g), by order. As we see from section 26 the amounts which I propose to give power to the Minister to change are £200 in paragraph (b), £200 in paragraph (f) and £10 in the case of paragraph (g). The Minister's argument probably is that I am exceeding the jurisdiction.
It will cover them all, but traditionally changes in jurisdiction have been by legislation only and there would be resistance by me, as there was by my predecessors, to have changes made by way of ministerial order where jurisdiction of the courts is involved. It is better, where somethings as basic as that is concerned, that it would require legislation.
This amendment goes back to a point I made on section 22. If the limits were raised by legislation then the Minister could change these particular provisions by order. I imagine his answer to that is, if he is raising the jurisdiction of the District Court by legislation that legislation would automatically raise all these limits.
It covers them all. If it were to be raised in one instance there is probably need to raise the jurisdiction in all matters.
I accept that.
