If I could, first of all, take the Minister's amendment. Could I say that, first I am not sure that the amendments the Minister is tabling are particularly necessary in that, if the Minister wishes to confer a concurrent jurisdiction on the High Court, it seems to me that is the reality because of the High Court's original jurisdiction under the Constitution. As a result of a judgment delivered since this Bill was published, in a case called F and F, by Mr. Justice Egan in the High Court in February of this year, the High Court automatically has a concurrent jurisdiction in any case, although the ideal is that these matters are dealt with at Circuit Court level to keep the costs down. In the Courts Act, 1981, which deleted all references to the High Court in the Family Law (Maintenance of Spouses and Children) Act, 1976, and the Guardianship of Infants Act, 1964, and in some other legislation, it was sought to remove the High Court's jurisdiction and to confine jurisdiction to the District Court and the Circuit Court. Indeed, the court jurisdiction as conferred on the Circuit Court in this Bill to some extent mirrors the phraseology of the Courts Act, 1981.
It has now been clearly decided in the most recent case this year, in February 1988, that despite the Courts Act, 1981, not expressly conferring a jurisdiction on the High Court to deal with maintenance matters and custody matters, the High Court has such a jurisdiction by virtue of the Constitution. Clearly, under the Bill, the High Court would have such jurisdiction. It might be as well, in the light of that judgment, just to spell the matter out. I must say I have no particular objection, having considered them in some detail, to the new sections 21 and 22 that the Minister proposes. There is one aspect though of section 21 about which I have a limited reservation. If we accept these sections I would like an assurance from the Minister that this aspect of it can be dealt with by agreement on Report Stage.
The Bill is designed to ensure that, when family law proceedings are brought, any matters in dispute between a husband and wife can be resolved in the context of those proceedings without multiple court actions being necessary. Section 21 in the original Bill, refers to the jurisdiction to be exercised in the Partition Acts. The Partition Acts are evoked where there is property which is jointly owned by a husband and wife and where normally this is disputed between them and one or other of them wants the property sold and the other does not. The property that people most often identify with as being involved in a dispute between a husband and wife about sales is the family home, but under the Partition Acts, in my experience when marriages have broken down, there can be applications for the sale of all sorts of other property. There might be a small family business, such as a grocery shop, or a large business such as a public house, the property of which is held in joint names. The wife or husband may wish to sell it and have the proceeds divided. In the way section 21 of the Bill, as I have it, is phrased clearly that matter can be dealt with.
This peculiar phraseology is at the bottom of the Minister's proposed definition section where he talks about proceedings between spouses under the Partition Act "where the fact that they are married to each other is of relevance to the proceedings". When there is a dispute about the sale of the family home, the fact that they are married to each other may be of relevance. In the context of a dispute about the sale of a business premises or, perhaps, a small property divided into a couple of flats or something of this nature, the fact that the marriage has broken down may be the reason why the couple want the property sold, but the fact that they are married to each other is not of necessity of relevance to the proceedings. What is of relevance is that the properties are jointly owned and one of the joint owners wants to effect a sale. I would be anxious that that provision is not construed as delimiting the court's powers and forcing husbands and wives back into the arena of being involved in these two sets of court proceedings where one should be sufficient.
In the context of accepting the Minister's amendment which now spells out the High Court position which probably in the light of the recent High Court judgment should be expressly spelt out, it would seem to me that the phraseology relating to the Partition Acts that should be included ultimately on Report Stage, would be simply a reference to proceedings between spouses under the Partition Acts. I do not really see any purpose in having the words "where the fact that they are married to each other is of relevance to the proceedings". If it is simple proceedings between husband and wife, under the Partition Acts, and at the same time they have brought separation proceedings, they should be able to have the Partition Acts proceedings dealt with in the separation proceedings. Subject to the Minister's assurance on that, I am happy to accept the two new sections the Minister is going to insert.
The Minister might clarify one thing for me and confirm that my reading of this is right. There is a reference to the Adoption Acts, 1952 to 1976 in this. I am assuming this is just generally for the purpose of the definition of family law proceedings in particular as it will go on to apply as regards the High Court. The Circuit Court, of course, currently has no jurisdiction under the Adoption Acts at all. Only ten days ago we passed a very complex Bill relating to the adoption of abandoned children born to married parents, which would confer a jurisdiction on the High Court solely with regard to adoption proceedings. In my belief, it is of importance that the High Court retain sole jurisdiction in adoption proceedings in the context, both of the recent Bill that was passed and of the previous adoption legislation, because these proceedings always involve constitutional issues which I think are beyond the competence of the Circuit Court.
I am assuming that I am right in interpreting this amendment as saying that the Adoption Acts reference here is merely as regards the definition of family law proceedings for High Court purposes. I would like that confirmed.
Finally, may I deal with Deputy Desmond's amendment? At the time when this Bill was drafted I was anxious to ensure that judicial separation proceedings will be as accessible as is possible to people who require to avail of such proceedings. I was also anxious to ensure that we would get as close as we could, within the limitations of a Private Members' Bill, to starting to establish a structure for a family court system as opposed to a system in which every single court in the land exercises a different jurisdiction in family law matters. I was also anxious to ensure that when this Bill came into operation there would be a uniformity of approach on the part of the Judiciary in operating its provisions so as to ensure that both husbands and wives who sought assistance under the Bill were truly equally treated before the courts. I was anxious to ensure that there would be a degree of interaction within the Judiciary so as to ensure a uniformity of approach. The ideal court system — as I keep on saying endlessly — is not provided for in this Bill and it cannot be. The ideal court system is a unified family court which can only be established with the Minister passing the necessary legislation and making the necessary financial allocation. I cannot provide for that.
We are going as close as we can to it in this Bill by centralising the jurisdiction in the Circuit Court. There are far fewer Circuit Court judges than there are District Court justices and that gives a better opportunity to ensure a uniformity of approach on the part of the courts in dealing with family law matters. It also seeks to ensure that there is a greater possibility of the judges developing a specialist knowledge of the areas they are dealing with. The problem with the District Court is that there is a large number of judges, many of whom are competent to deal with family law matters and I am afraid many of whom are not competent enough to deal with family law matters. Anyone who comes before those courts is fully aware of that. Indeed, I have on occasion heard members of Deputy Desmond's party suggesting that other matters that the District Court currently deals with should not be dealt with at District Court level.
I do not believe that Deputy Desmond's proposal, or Deputy Taylor's proposal which was made with Deputy Desmond, would in fact improve the situation at all. I think you then have three different disparate sets of courts, District, Circuit and High Court, all dealing with judicial separation proceedings, different judges at different levels adopting different approaches. No one would know what the approach is because, in particular, District Court decisions are never published or made known. There would be no coherent body of law developing that either lawyers could look to to advise their clients or that husbands and wives could look to to get any guidance as to what would happen in proceedings they were involved in. Indeed, the amendments that have been tabled could give rise to a situation where a District Court case was taking place and it could emerge during the course of that case that in order to afford protection to a wife she should get, for example, a large lump sum payment. It may be discovered during the course of the District Court case that a lump sum payment in the order of £30,000 could be made by husband to a wife and the court could feel it should so order or the court may feel that it should order the transfer of a home from the husband to the wife as it can under this Bill. The District Court will suddenly discover under Deputy Taylor's amendments that it could have no jurisdiction to do this. The wife might have to discontinue her proceedings, go off to a Circuit Court and start all over again.
It would seem to me that that is not the correct procedure we should be adopting. Even in the context of people who have low means, they may be living in family homes that are certainly worth in the region of £25,000, £30,000 or £35,000. In the context of dealing with inheritance rights or family property, so as to give a dependent wife a degree of protection that she cannot be given by making a low maintenance order, it may be in her interest that the court make an order transferring, for example, the family home from her husband to her. The complicated provisions that Deputy Taylor's amendments would insert into this Bill could leave many dependent wives embroiled in District Court proceedings and being told half way through them by district justices, "You should not be in this court; you should go to another court because it is a different sort of order that should be made". It seems to me that rather than simplifying the procedure and making the law more accessible and indeed providing protection for dependent wives who are very often the people who seek their protection even more so than husbands, Deputy Taylor's proposals would spread total chaos in the operation of this Bill and could create problems with people seeking to transfer from one court to another and recommencing court proceedings which were formally half way dealt with in another court. Indeed, a wife may discover, if a district justice makes an order which is the maximum order that can be made on the application, for example, of her husband, that if her case had been brought in the Circuit Court she could have done a great deal better and it may be too late for her to do anything about it because the court has dealt with the case. It is not as simple as the issue of maintenance.
Within the context of the current legal framework I very much agree that the District Court should continue to retain a maintenance jurisdiction to make maintenance orders under the legislation that Deputy Desmond referred to that was enacted in 1976. Indeed, the court's financial jurisdiction should be increased. To spread this jurisdiction into the District Court in the way it is set out by Deputy Taylor could, I think, effectively sabotage the workings of the Bill and place everyone in a state of confusion and more particularly those who seek benefits from it.
The final point that should be made is that the case is made that that would in some ways save people legal costs. In fact, Deputy Taylor's amendment could more likely increase legal costs. We all know there is a lack of uniformity of approach at District Court level in dealing with what I would describe as the more simple family law applications in the areas of maintenance and custody. They may be simple but they are matters of great concern for the families who are affected by the court decisions. To put it mildly, there are differences of approach. There are some justices who reach decisions that are automatically appealed currently into the Circuit Court. There are others who in most cases make the correct decisions. Deputy Taylor's amendment provides that having dealt with matters at District Court level there can then be a full oral hearing on appeal at the High Court level. It would mean that people having gone into the District Court will then, under Deputy Taylor's amendment, head off to the High Court. There would be an endless series of appeals from District Court to High Court and instead of people having their family problems dealt with by and large at a Circuit Court level with a small number of appeals, people would have their problems dealt with at District Court level with a large number of contested oral High Court appeals in which they will incur a great deal more legal costs than is the case under the Bill as drafted and in respect of which, according to Deputy Taylor's amendment, the High Court on appeal would then assume a completely different jurisdiction from the jurisdiction exercised by the District Court in the initial hearing which is of a more limited nature. You then have the High Court dealing apparently with an entirely new case based on entirely new principles and possibly reaching a decision that neither the husband nor the wife envisaged was possible which then neither of them could appeal to anywhere else. It seems to me that these particular amendments, while they may be well meant, are particularly badly put together and instead of saving legal costs could greatly increase them, could create a great deal of chaos, could result in dependent spouses not having the benefits to which they are entitled under this Bill and could greatly add to the amount of time in processing family court proceedings to a conclusion.