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Dáil Éireann díospóireacht -
Thursday, 20 Jun 1974

Vol. 273 No. 9

Maintenance Orders Bill, 1974: Committee Stage.

Sections 1 and 2, inclusive, agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

On the first defination of "appropriate authority" the subsection gives the definition as the person who, in a reciprocating jurisdiction, has the function corresponding to that of the Master of the High Court under section 18 (3). On the Second Stage the Minister several times in his speech and in his reply referred to the reciprocating authority in Britain as the Secretary of State. He did not specify which Secretary of State. Presumably it would be the Home Secretary, whose official title is the Secretary of State for Home Affairs, and presumably in relation to Northern Ireland it would be the Secretary of State for Northern Ireland and in relation to Scotland it would be the Secretary of State for Scotland. It strikes me that the functions of each of these three gentlemen are very different from the functions of the Master of our High Court and in no sense could they be stated to have a function corresponding to that of the Master of the High Court in Ireland.

There is, I understand, a Master of the English High Court and of the Northern Ireland Court. Presumably there is some corresponding official in Scotland but I do not know what his title is. Would it not seem logical, therefore, that the appropriate Masters of these courts should be the appropriate authority within the meaning of this definition rather than the three Secretaries of State, who are non-judicial figures? They do not purport, presumably, to exercise any judicial or quasi-judicial functions as the Master of the High Court here would. In fact, the nearest equivalent here to the Home Secretary in Britain would be the Minister for Justice. Would the Minister, therefore, clear up what does on the face of it appear to be an anomaly if it is the intention to have the Secretary of State for Home Affairs as the appropriate authority in Britain?

The confusion arises in that the functions are not the semi-judicial functions of the Master of the High Court under section 6 of this Bill but the very limited function of the Master under section 18 (3). That function is specifically the sending out of the documents in question. The "appropriate authority" means the authority in the other jurisdiction who is the appropriate authority within that jurisdiction to send out the documents corresponding to those which will be sent out of this jurisdiction by the Master.

The reason why the words "appropriate authority" were used rather than naming the official or the person in the other jurisdiction is to cover the eventuality of the other jurisdiction, possibly, making a change in the person exercising this transmitting function. We might, for example, say the Secretary of State. There might be a change in Britain and certain functions might be transferred from that office to some other office. We would have unnecessarily limited ourselves if we were to name him here, so I think the general term "appropriate authority" is the apt term to use.

It is not intended to say that the appropriate authority in the other jurisdiction is a quasi-judicial person. He is not. He is the person who exercises in the other jurisdiction the function of sending out documents and it is up to that jurisdiction to decide who that person is to be. We have decided that the person to do it here is the Master of the High Court.

Have Britain decided that the person there will be the Home Secretary?

Section 18 (3) refers to documents being sent by the registrar or clerk to the Master of the High Court. It is the sending of documents to him. The Minister referred to the functions of the Secretary of State as the appropriate authority as being simply the function of sending out documents and not in any way quasi-judicial. Section 18 (3) (ii) envisages them being sent to the Master of the High Court who shall transmit them to the appropriate authority in that jurisdiction if it appears to him that the statement referred to in paragraph (b) (v) gives sufficient information to justify that being done. That is a quasi-judicial function.

If the application is made to him by a deserted wife in this country the appropriate authority for transmitting the documents would be the Master of the High Court here and if the deserted wife is in England the appropriate authority to send them over here would be the Secretary of State. The initial application will have to be made to the court in England which will transmit it to the Secretary of State for Home Affairs, who will then send it over here to the Master of the High Court.

The Minister will appreciate that difficulties can arise here by virtue of the fact that the Master is envisaged in other sections as having a quasi-judicial function, particularly in section 6, and it may not be appreciated that the definition of proper authority is limited to the extent to which it apparently is. If one puts the process into reverse who in Britain will exercise the functions to be exercised here by the Master of the High Court under section 6?

The Secretary of State for Home Affairs will be the transmitting authority under the parallel British legislation. Their Maintenance Orders (Reciprocal Enforcement) Act of 1972 says that any document which has to be transmitted shall be sent to the Secretary of State and he is the person who will decide whether or not it is to be sent to the Master here.

If the Minister reads sections 6 and 7 together he will see there is an appeal in section 7; indeed, in the following section, section 8 there is a different type of appeal to the High Court from the decision of the Master. Is there any appeal in the reciprocating jurisdiction to the High Court from the decision of the Secretary of State for Home Affairs?

I could not say offhand if there is, but I presume there is. Any decision which is illegal or any administrative act which is illegal can be the subject of an appeal. What we have to do is to provide for what happens in our jurisdiction and we are providing within our jurisdiction that the Master of the High Court will be the person who will receive and transmit the documents to the appropriate District Court for enforcement. As the Deputy says, an appeal can be taken against the Master's enforcement order. In Britain when orders from this jurisdiction under this particular piece of legislation are sought to be enforced, the maintenance debtor will have precisely the same rights as any other citizen in that jurisdiction. We could not attempt in our jurisdiction to ensure that the rights of a person before the law of another jurisdiction should be on all fours with what we provide. Both jurisdictions are common law jurisdictions and the same basic legal principles apply so that exactly the same rights will accrue to a maintenance debtor in the other jurisdiction as obtain here.

The Minister will appreciate—this is something he acknowledged on Second Stage—that 95 per cent, or more, of the applications and proceedings under this legislation and the corresponding reciprocating legislation in Britain will be from Ireland to Britain and there will be comparatively few cases of husbands or putative fathers deserting to Ireland from Britain. It is important, therefore, that we should establish that Irish citizens, who will have to have resort to the procedures that will be open to them in Britain, will have rights that will be not less favourable than the corresponding rights British residents would have in making these applications here. It is unusual, for example, for an appeal to lie to the High Court here against a decision of, say, the Minister for Justice and, since he is the nearest corresponding office holder here to the Secretary of State for Home Affairs in Britain, I would have thought that under the British jurisdiction an appeal in a matter of this kind would be normally provided for unless it was by way of a writ of certiorari or some similar writ to have the Secretary of State's decision set aside.

No. The position will be as follows: Mrs. X obtains here an order for maintenance against her husband who lives in England. The merits of the case are decided in the court here and an order for maintenance is made in the court here and that is a final order as far as Mr. X is concerned unless he chooses to appeal it. If he decides not to appeal it, it is a judgment like any other judgment and it is final and absolute. What is involved thereafter does not go to the merits of the order or to the merits of the procedures leading up to the order because it is now final and conclusive. All that is involved thereafter are the mechanics of enforcing that order and this Bill provides for sending the order to the appropriate authority in the other jurisdiction. The appropriate authority is, at the moment, the Secretary of State for Home Affairs. All he does is pass the order to the appropriate court, the court having jurisdiction where Mr. X resides in England, and the order is then enforced in that court. That court cannot inquire into the merits of the case. The merits are purely a matter for this jurisdiction and they have been decided by the making of the maintenance order.

The only grounds on which the court in Britain can refuse to implement an order of the Irish court will be set out in the British legislation, as amended by Order in Council, and are exactly the same grounds as are set out in section 9 of our legislation, namely, enforcement would be contrary to public policy, or the debtor was not aware of the institution of the proceedings so that he could defend them, or the order is irreconcilable with a judgment given here between the same parties. The grounds for setting the order aside have nothing whatever to do with the merits of the case. These have been decided upon in the home jurisdiction. An absconding husband from Britain would be in the very same position here unless he could plead public policy or one of the other two grounds set out in section 9. If the question of an appeal arises there is, therefore, no prejudice to an Irishman in England or to an Englishman in Ireland because each has exactly the same rights in the other country as he would have in his own country.

There are two stages. There is first the making of the maintenance order. That takes place entirely in the home jurisdiction and, if the absconding husband decides not to defend, he takes the consequences of the order made against him being made final and absolute. After that it is a question of the mechanics of enforcement in the other jurisdiction. There is no question of an Irish citizen being prejudiced in England through not having the right of appeal. The role of the Master here, or the Secretary of State in Britain, in this transmission procedure is administrative rather than judicial. It so happened that the Master of the High Court was the person picked. It could just as easily have been the Minister for Justice.

I think the Minister misunderstands the point I am making. I do not want to labour it at any length because I can come back to it on a later section. I was not making any point in relation to the merits of the actual order for maintenance, or whether the amount was correct, or whether it was properly awardable. I was simply talking about the question of recognition and enforcement as contained in sections 6 to 10 inclusive. It is not a court in Britain in the normal way that will enforce the order made here. It will be the appropriate authority.

No. All that the appropriate authority would do would be to pass it on to a court for enforcement.

It is envisaged here that the Master will enforce it.

No. All the Master will do, once he has made an enforcement order, is pass it on to the appropriate District Court for enforcement where the defendant is residing in this country.

Presumably it does not have to be heard by the District Court unless the maintenance debtor applies in some way to have the matter questioned. Is that right?

The District Court will enforce it.

They will issue an order unless he takes some steps to the contrary.

And the only steps he can take are the ones in section 9.

In subsection (2) (a) the words "such an order which is incidental to a decision as to the status of natural persons" occur. What exactly does that mean?

This is to follow the phraseology of the EEC convention which provides that the convention shall not apply to the status or legal capacity of natural persons. Decisions as to status include decisions in divorce or guardianship proceedings. This Bill is not concerned with divorce or guardianship as such, but certain orders which may be sought to be enforced here may arise from divorce proceedings in another jurisdiction. As I indicated on Second Stage, this is a delicate area for me to comment on in detail because essentially it is a matter for our courts, having regard to the dictates of the Constitution, to lay down rules concerning enforcement here of maintenance orders consequent on divorce proceedings.

As the Deputy is aware, there is a case which, on the surface, appears to conflict with a later case indicating that in certain circumstances a divorce in England could be recognised. To cover that eventuality the definition of maintenance order includes "such an order which is incidental to a decision as to the status of natural persons", that decision being, in effect, a decision in divorce proceedings. We do not want to exclude maintenance orders consequential on divorce proceedings.

There are later sections on which we might more profitably go into this in more detail. What the Minister says raises a very broad field, indeed, which is relevant not only to this Bill but to a lot of other matters, not the least important of which are various social welfare problems which have arisen in recent years particularly as a result of some decisions taken by the Department of Social Welfare in relation to allowances for deserted wives.

I do not want to go into that in any great detail but the situation is not satisfactory to this extent. As the Minister says, there appear to be two judicial decisions which are in conflict. The one which seemed to stand for a long time was the Mayo-Perrott case which seemed to be quite clear. There was a subsequent one to which the Minister referred and there is also one the name of which I cannot remember, and I do not know whether it is reported, which was a decision by Mr. Justice Kenny in a case under the Succession Act.

I am sure the Parliamentary Secretary to the Taoiseach will fill us in on it if I go wrong. I understand that within the limitations of what he was asked to decide in that case, and within the limitations of the facts of that case, Mr. Justice Kenny recognised for the purposes of the Succession Act, 1965, the validity of a divorce in Britain between two people whose circumstances were particular. It does not necessarily follow from that, for the purposes of the Succession Act or any other purpose, other divorces would be recognised. Nevertheless, within those limitations that decision appears to conflict with Mayo-Perrott. Arising out of that are the non-judicial decisions, the administrative decisions of the Department of Social Welfare. The result is that there is a great deal of confusion amongst the people who are affected by British divorces, and who happen to be living here, as to what exactly their rights and their status are.

I appreciate that the Minister is not anxious to spell it out clearly. He said in replying to the debate on Second Stage that he did not want to purport to make judicial pronouncements, as it were, that these were matters for the courts, and that not much should be said about them in the debate on this Bill or similar Bills. I honestly do not think that is the right or appropriate attitude to take because the courts have shown that, to some limited extent at least, they are, on the face of it, in conflict on this point. It seems to me that this House and the Oireachtas generally should come to grips with a problem which will be a growing problem and should lay down precisely what the law should be on this point. It should not be left in the vague way it is at the moment.

This may not be the appropriate Bill on which to make very wide decisions in relation to the whole question of foreign divorce, but it is the appropriate Bill in which to lay down as the law of the Oireachtas what the situation is to be in regard to the obtaining and subsequent enforcement of maintenance orders where the deserting husband has gone to Britain and obtained a divorce, and where the wife here is either unaware of the divorce or is certainly not a consenting party to the divorce. She is in a very difficult position not just in relation to a maintenance order but in relation to allowances from the Department of Social Welfare.

I am afraid that the rather vague phraseology used in this Bill and the reluctance — although it is understandable, of course, up to a point— of the Minister to seek to put into the Bill the definitive expression of the views of the Oireachtas on this problem will continue the agony for many people. Quite a number are affected at present and one would envisage that with recent changes in divorce laws in Britain, and they are fairly drastic changes, the number of deserted wives who will be affected in the future will be quite considerable. We should seek in a Bill such as this to solve their problems. Why should somebody have to go to the Supreme Court, as it will have to be now, because on the face of it two decisions on different aspects of this problem appear to conflict, and possibly spend several thousand pounds, to have this matter clarified? In my view this matter is in doubt and it is the duty of the Oireachtas rather than the duty of the courts to clarify the doubt and lay down what the position is to be.

The Deputy is confusing two situations. The example he gave was of the husband who deserts his wife in Ireland, goes to England and subsequently obtains a divorce from the British courts. If the wife in Ireland obtains a maintenance order in the Irish courts before the divorce, that order will be enforced in the United Kingdom. There is no question of any difficulty arising and there is no need to clarify anything there because that position is quite clear and straightforward. There will be no constitutional impediment in the way of that order being obtained here and enforced in England. The difficulty arises where the reverse happens and a husband comes to this country having been divorced in England. If in those divorce proceedings an order was made for maintenance, which he failed to pay, and the divorced wife in England sought to enforce that maintenance order here the question of public policy would arise. That might give rise to a refusal to enforce that order here on the grounds that it is contrary to public policy as laid down in our Constitution. That is something that will have to be decided.

I do not think a subject as deep, involved and complicated as reform of our marriage laws—essentially that is what the Deputy is proposing —would be appropriate for inclusion in this Bill, which is designed to deal with a particular situation. It would be wrong to attempt to widen this debate to deal with an area of immense legal complexity. All we can do is provide in the Bill that an order incidental to such proceedings in England is not necessarily excluded from the enforcement powers given by this Bill to the courts here. It is for the courts then to decide whether they can apply those powers in each case that comes before them. There are a number of varying situations that can arise in regard to foreign divorces, such as where the marriage took place and where the parties were domiciled at the time of the divorce. These are factors that have to be taken into account by the courts and on which I would not attempt to give an opinion.

It would be wrong, as I said during the debate on the Second Stage, for this House to attempt to deal with the problem in that way. It will have to be dealt with by way of far-reaching and complex reform of our Irish laws. It would be wrong to attempt to do it in this Bill. All we can do is not to exclude orders consequent on such proceedings in England. It is up to the courts then to decide whether a particular order is or is not contrary to public policy.

The discussion on subsection (2), paragraph (a), has been useful because it has clarified the meaning of it. From what the Minister has said what obviously must be intended there is an order for alimony or maintenance consequential on or arising out of a decision as to the status of natural persons, that is presumably as to their marriage status, and that will be as a result of the hearing of a divorce action.

Or separation.

The Minister will, therefore, be immediately faced with the problem that was faced in the Mayo-Perrott case that an order will come from England for enforcement here, not necessarily a magistrate's court maintenance order, as a result of desertion, but an order for the payment of alimony as a result of a divorce action in which a divorce was granted. As our law stands, as I understand it and as the Minister has explained, consequential on Mayo-Perrott we cannot, notwithstanding our obligations under the European Convention, under our own Constitution enforce that order. There was an effort in the Mayo-Perrott case to enforce the payment of costs awarded in a divorce action against one of the parties who had come to reside in this jurisdiction and the High Court refused to reseal the decree for costs which had been given in the British courts although in the normal way that would be done automatically here. The grounds on which the court refused in Mayo-Perrott were that it was at least a partial recognition of divorce to seek to enforce any part of a divorce action.

Mayo-Perrott related to the legal costs of the divorce action itself. Subsection (2) (a) refers to consequential or incidental orders for the payment of alimony to the successful or innocent party in the divorce action and these are very common. I believe that unless some form of lump sum settlement is not come to at the time of the making of the divorce order that the usual provision is for a monthly or a half-yearly payment of what is commonly called alimony. It is only right that I should point out to the House that we seem, under our law as it stands, to be prevented from doing something which we would hope to do in this Bill.

It is better that we know this before we go into it. I am not to be taken as necessarily suggesting that the position as it arises out of Mayo-Perrott should be changed because the only way it can be changed is by an amendment of the Constitution. It is not my proposal that that particular Article of the Constitution should be amended but nonetheless, short of an amendment of it the law as it stands in Mayo-Perrott is perfectly clear. It would seem that the principle established there in relation to costs is equally valid in relation to alimony.

I want to take issue with the Deputy when he says that the law as laid down in Mayo-Perrott is perfectly clear. It may be in regard to the question of the costs of a divorce, but we are getting into an area into which, as I said on the Second Stage, it would be inappropriate for me to go. Nevertheless, I feel I should say, in fairness to the Bill and the help it will give to the people we are talking about, that Mayo-Perrott excluded the enforcement in this country of the divorce costs and the Deputy is aware that a subsequent case, Bank of Ireland v. Caffin, refined the findings in the Mayo-Perrott case. It seems to me not unlikely that a court could make a distinction between enforcing here the cost of a divorce action and enforcing here an order for the maintenance of a man's wife and children. If, for example, the court were to find that they could not enforce maintenance orders consequent on divorce proceedings in England, this country could become a haven for divorced husbands. The court might consider that that situation was not what was envisaged by the Constitution. Therefore, it is not by any means definite that the decision in the Mayo-Perrott case would mean——

Would the Minister not agree that it is at least likely or probable?

No, not having regard to the gloss that the Caffin case put on it. This is a matter that would have to be argued not between the Deputy and me but by gentlemen in another place.

But why put citizens to the expense of having the case argued in another place?

Because we happen to have a Constitution with that particular clause in it. There is nothing that the Deputy or I can do about that.

Surely the Minister answered his own point when he told us earlier that the Bank of Ireland-Caffin case was decided in relation to a divorce which took place in Britain when both parties were domiciled in Britain? There can be no question of both parties being domiciled in Britain in the case of a situation that would arise under subsection (2) (a) of this section.

The time of the divorce would be the critical time so far as the question of where the parties were domiciled was concerned.

In what we have in mind at least one of the parties would be resident here but whether the question of his domicile had changed would be another matter. In the Bank of Ireland case both parties were resident and domiciled in Britain at the time they were divorced. If I might be so bold as to pass comment on the judgment of Mr. Justice Kenny in that case, I do not think he could have decided otherwise because should he have decided otherwise, the result would have been that people who had never set foot in Ireland but who had married and divorced lawfully elsewhere while domiciled elsewhere could not have their divorce recognised here. That would be an untenable situation.

The Deputy will have noted that the Caffin case was never appealed.

That is why I say that Mr. Justice Kenny could not have decided otherwise, but that case is not relevant to that situation. What is relevant, though, is the Mayo-Perrott case because the principle was exactly the same and the Minister seeks now to distinguish Mayo-Perrott from this situation only by saying that the Mayo-Perrott case related to costs when what we are concerned with relates to alimony or weekly maintenance. I know that there is that distinction but there is no distinction in principle. What we are doing now is purporting to pass a Bill which we know cannot be enforceable in this country because of the findings in the Mayo-Perrott case.

That is not so.

We should not enact legislation when we know that there is a strong possibility that the High Court or the Supreme Court will be unable to distinguish this case in principle from the Mayo-Perrott case. If that is so what we are now purporting to do will be unenforceable. On that basis I suggest that it is our duty not to propose to do this.

We are not proposing to do any such thing and it is erroneous for the Deputy to say that this arises under this Bill. All we can do is to provide for the enforcement in this country of maintenance orders made in another jurisdiction. Subsequently it would be a matter for the courts to decide whether the enforcement of those maintenance orders would be contrary to public policy. It is wrong for us here to try to take over the courts' job and to speculate because we are only engaging in idle speculation. It is for the courts to make the definitive judgment as to whether, for how long and in what circumstances maintenance orders made in another jurisdiction on divorce proceedings will be enforced here. It is not necessarily right to suggest that they will not be enforced here. That does not appear to be an accurate statement of the present legal position, particularly as the Deputy is basing his statement on his interpretation of one case which has been refined in a subsequent case. Should we proceed on those lines we would be attempting to carry out what is in essence a judicial function—the interpretation of the Constitution as it applies to this piece of legislation. All we can do is to provide the legislation. It is a matter for the courts then, to decide whether the enforcement of particular maintenance orders is in accordance with public policy.

I should hope that, in the event of an issue arising, we would have a system of legal aid which would avoid the imposition of undue legal expenses on the parties involved. However, if any case should come before the courts in advance of the introduction of a scheme of legal aid, I would imagine that the present informal arrangement between the Attorney General and the Minister for Finance which covers important constitutional cases would be available in this instance too. That is beside the point though. I refute the Deputy's suggestion that we are passing a Bill which contains a provision that is unenforceable. That is not so. We are passing a Bill which provides for the enforcement here of maintenance orders made in another jurisdiction provided their enforcement is in accord with public policy here. It is the exclusive function of the courts to decide whether enforcement of any particular maintenance order is in accord with public policy. It is wrong for us to speculate as to what the courts might decide.

Deputy O'Malley rose.

Before the Deputy intervenes I wish to point out that the section we are dealing with is a matter of interpretation but we are engaging in a rather wide ranging debate and are entering into a complex area. We ought to get back to the section. All that arises at this stage is the interpretation of the terms of the section but we are going far beyond that in the present discussion.

Perhaps I could reply to the Minister regarding the interpretation of the term "maintenance order", which is what is under discussion here. The Minister has said that I sought to give the impression that maintenance orders coming here from Britain might be unenforceable. I was not talking of maintenance orders in the ordinary popular sense of something coming to us from a Magistrate's Court. I was talking of what are declared here to be maintenance orders for the purpose of this Bill, in other words, orders incidental to a divorce action or orders for the payment of alimony.

I accept that. I am sorry if I did not make that clear.

The discussion for the last ten or 15 minutes was not about maintenance orders at all. There is no doubt about them. It was about alimony orders incidental to or consequential on divorce actions. It is my suggestion and my view that there must at least be doubt as to their enforceability. I do not think the Minister denied that there must be some doubt. The Minister has referred to a refinement in one particular case.

If there is a doubt we cannot resolve it here.

It is my submission to the Minister that we should resolve it here. We should not force citizens of this country to go to the Supreme Court at great cost to themselves to have a matter like this worked out. If there is doubt the Legislature should solve it.

We cannot interpret the Constitution. The only way in which the doubt could be resolved would be by a complete overhaul of our laws of marriage. I agree with the Deputy that that is something desirable and something which I am anxious to see done in the near rather than the far distant future. That is something for a separate piece of legislation. It would not be at all appropriate to try to do it within the scope of this Bill. Until we can get our marriage laws revamped this cannot be done. It may even involve an amendment of the Constitution. When the whole subject has been examined and when there has been a full and informed public debate on it, large issues of policy will have to be decided. If doubts arise in a particular case so far as this Bill is concerned they can only be removed by the judicial arm of the State. We cannot do it here.

Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

Many people will feel aggrieved that arrears which have and will have been approved before the commencement of this Bill or Act, as it will be, should not be recoverable. There must be vast sums of money which are not alone legally but morally due to people who are in very bad circumstances as a result of desertion over a period of years. I would suggest to the Minister that he should regard the statute of limitations as being the appropriate limiting factor here rather than have the statement "but shall not have effect in relation to arrears accrued before such commencement". It may be quite unfair to people who are owed quite a lot of money by someone who is quite well able to pay but who will seek the protection of this section in order to avoid paying what is morally and legally due.

I sympathise with the point made by the Deputy, but there are a number of reasons why arrears have been excluded. The first is that there would be an element of retrospective legislation in the Bill if we were to allow all arrears to be included from the time the order was first made in the other jurisdiction until such time as it was sought to be enforced. There would be an element of retrospection in that. It would be contrary to the well-settled legal principle that laws should not be retrospective.

A person, even an absconding husband, is entitled to know what the law is at any particular time and to know that with certainty. If enforcement of arrears were to be allowed it might be possible that a person would be unable to pay them and could find himself imprisoned having assumed that there was no liability on him to pay the arrears. He might suddenly find himself years afterwards with such a liability. That would be unjust and possibly in breach of the Constitution.

If arrears were to be brought into it, the question of variation might also have to be provided for whereby the debtor would be entitled to seek a variation of arrears. It could happen that the original order granted might be unreal as regards his subsequent income. If he had known that it would later become enforceable against him he might have sought to vary it at an earlier date.

The question of arrears gave rise to some difficulty because by excluding them one is letting some people away with one of the effects of their desertion. A starting date had to be arrived at. Taking all sides of the case into consideration, I felt that the fairest thing was to exclude arrears accruing before the scheme comes into operation. As the Deputy is aware, there is reciprocal legislation in the UK. This decision had to be a joint one between the two sides. If we were to attempt to change our decision at this stage it would involve reopening the discussions. There would be serious practical difficulties. If arrears were allowed in, there would be complications and huge amounts of arrears. Enforcement in these cases could be oppressive. There would be numerous applications for variations and the possibility of many cases of imprisonment for non-payment, which could be counter-productive.

The simplest way to deal with this problem is to allow enforcement to commence from the date of coming into operation of the Act and to exclude earlier arrears. I sympathise with the Deputy's point of view. It is a humane point of view.

The Minister, if I paraphrase correctly what he has said, feels that it would be unfair, even to as unworthy a person as an absconding husband, to make him liable for arrears that would impose on him a liability for something which he did not previously have. I suggest that that is not correct. He was always liable to support his wife. He was morally liable and he was legally liable for as long as a maintenance order was in existence against him. The problem that arose was that the wife could not enforce the order because the husband had absconded out of the jurisdiction. That did not remove his moral or legal liability. He cannot therefore complain if this section were changed to enable his wife to recover what is both morally and legally due.

There would be no element of retrospection in collecting what was always morally and legally due. The question of liability never arose. There was never any doubt as to liability. The problem was confined solely to enforceability. This Bill gets over some at least of the problems of enforceability. It does not enter into the question of liability. The legal and moral liability was always there. The question of collecting arrears would only arise where an order had been made in, say, 1970, 1971, 1972 or some other time in the past. In that respect the Minister should bear in mind that up to the passing of the Courts Act, 1971, the maximum amount which could have been awarded to any wife, no matter how many children she had, was £4 a week. Therefore, the amount could never be more than £208 a year. It was only since early 1972 that the courts had jurisdiction to award any more.

Since there is no question in my proposal of creating a new liability that an absconding husband could not have been affected by, I suggest that there is nothing improper and, above all, there is nothing retrospective, in the worst sense of that word, about forcing him, where he can now be caught under the provisions of this Bill, to pay up what he was always morally and legally liable to pay. This would only apply where orders had been made. As I said up to the end of 1971 they could not pay more than £4 a week.

I sympathise with the Deputy's point of view when he says that these men should be made pay. We are looking at this in the context of the Irishman who has absconded to the United Kingdom which is where the bulk of the traffic goes. The Deputy is saying that we should renegotiate so that provision for the collection of arrears will be introduced into the reciprocating legislation. From the point of view of this jurisdiction, the implementation of such an arrangement would not be a difficult task because the number of deserting Englishmen in this country is small. They might belong to a more affluent section than the equivalent Irishman going east. From the point of view of the United Kingdom authorities, this could be a serious problem.

While we sympathise with the desire to catch these men and make them pay their arrears, we do not have the power to do so. It is the other jurisdiction who would have the burden of doing that. This is a matter which was discussed at some length in the negotiations. The matter was thrashed out very fully and as a result we have the provision as it appears in the Bill. There is a further argument to reinforce the position as it appears in the Bill and that is that there is a precedent—in an argument like this. The Deputy will appreciate the weight of a precedent being thrown into the ring—from The Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations. This states that:

Where a decision has been rendered prior to the entry into force of the Convention between the State of origin and the State addressed, it shall be enforced in the latter State only for payments falling due after such entry into force.

That precedent carries considerable weight. That precedent, plus the practical difficulties advanced by the other party to the negotiations, compelled us to introduce the legislation in its present form.

The Hague Convention is not necessarily relevant to or binding on this particular situation. This legislation relates to a bilateral agreement. It is temporary pending the acceptance by Britain and ourselves of the EEC Convention which may or may not contain similar provisions. Assuming it does not, there is no bar on what is now proposed. However, I will not push the matter any further other than to suggest that the Minister might raise with the British authorities the question of the possible inclusion of arrears in this and get their reaction. They may not be unfavourably disposed. It would be only fair to thousands of potential beneficiaries in this country that an effort would be made to collect what is legally and morally due from people who have absconded.

Question put and agreed to.
Section 5 agreed.
SECTION 6.

I move amendment No. 1:

In page 5, subsection (6), between lines 32 and 33, to insert the following paragraph:

"(b) Service of the notice may be effected personally or in any manner in which service of a superior court document within the meaning of section 23 of the Courts Act, 1971, may be effected."

This gives express statutory authority for service of notice of the Master's enforcement order. It removes any doubts about how it should be served by making it clear that it will be served either personally or in any manner in which service of a superior court document within the meaning of section 23 of the Courts Act, 1971, may be effected, that is, by leaving it at his home or place of business, by registered post or through a solicitor.

I have no objection to this amendment which is similar in intent, to amendment No. 4 and allows service in any manner in which service of a superior court document within the meaning of section 23 may be effected. Amendment No. 4 refers to any manner in which service of a District Court document within the meaning of section 7 of the Courts Act, 1964, may be effected. Since basically they are the same type of documents, perhaps the Minister could tell me why this particular distinction is drawn between the two modes of service.

The first amendment deals with a document which comes from the Master of the High Court and that is why the term "superior court document" is used there. The fourth amendment deals with notices instituting proceedings and these will be served in the same way as district court documents.

Amendment put and declared carried.
Question proposed: "That section 6, as amended, stand part of the Bill".

I have not much to say on this section as it is, except to point out that this relates only to maintenance orders which are made in a reciprocating jurisdiction—orders which come to us, which will be a very much smaller part of the traffic. The procedure to be followed is set out in this section and the following sections, and I have no objection to it as it is set out. It apparently conforms with the provisions of the EEC convention on the enforcement of civil and commercial judgments.

The only point I want to make about it is that we have no guarantee that a similar sort of procedure will be followed in the reciprocating jurisdiction in regard to Irish citizens or Irish residents who make corresponding applications in the other jurisdiction. This comes back to the point I made on section 3 in relation to the distinction between the Master of the High Court being the appropriate authority here, sending the applications or orders, and the Secretary of State for Home Affairs being the appropriate authority in Britain. The Minister will agree that sections 6 to 12, inclusive, set out a fairly elaborate procedure and it is quite clear what should be done by someone from abroad seeking to have an order enforced here.

However, this is not of great importance to us or to our people, if I may put it that way. What is of much greater importance is how they will get on abroad, particularly in London. Can the Minister give us an assurance that the British Order in Council—I understand it is not legislation in the ordinary sense—sets out in the same detail the procedure to be followed by Irish citizens there? Has the Minister seen a draft of the Order in Council?

Yes. All we can do here is to legislate for our jurisdiction. This is reciprocating legislation and the broad procedures are similar in each jurisdiction. The reciprocity is provided by an Order in Council which brings into effect in relation to maintenance orders made in this jurisdiction a British statute. That statute is broadly similar to ours from the point of view of the mechanics of enforcing our orders and for the protection of the rights of both creditor and debtor—the two measures are on all fours.

Question put and agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

A question that we have already discussed at some length arises again here. It is in relation to public policy. It involves the divorce problem and the consequential difficulties for us that arise out of that. I can see a different but perhaps corresponding difficulty arising in Britain in so far as public policy is concerned: where one of their residents, somebody domiciled in Britain, has got a divorce in the British courts and has remarried locally as he is entitled to do in Britain, would it be in accordance with public policy in Britain to enforce an Irish maintenance order which would disregard his lawful divorce and remarriage in Britain? In other words, we would be asking them, as it were, to recognise that for the purposes of this particular operation, that divorce and remarriage were not valid. The Minister may reply that as long as the maintenance order is valid according to Irish law that is enough.

That position would be excluded by paragraph (c) which states:

it is irreconcilable with a judgment given in a dispute between the same parties in the State.

The problem about thinking this one out is, of course, that it is not what is happening here that creates the difficulty but what is happening over there. Have they got paragraph (c) in their section 9?

Yes, because this is taken from Article 27 of the EEC judgments convention to which we will all be acceding.

The net result of that would be that a wife here who has been deserted would not run into the problem that she would be unable to enforce her order because it would be contrary to public policy in Britain, but she would run into the problem that the British courts would refuse to enforce her Irish maintenance order because it was not reconcilable with the judgment given in her deserting husband's divorce action in Britain. Is that correct?

It might be. I cannot go farther than that because again we are entering into what is a judicial area. It almost certainly would be if the maintenance order were got after the divorce in England, because at that stage it would be clearly irreconcilable with the judgment of the English court. The position would be different if the maintenance order were obtained before the divorce action in England. It would be a matter for the courts to decide. I do not think that in this matter we can attempt to deal with hypothetical situations. There would be no point in trying to think up situations with a view to putting them into the Act. It would be better to leave it to the courts.

It would appear therefore that divorce is the best refuge of an absconding Irish husband.

Question put and agreed to.
Section 10 agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."

Could the Minister give an example of where part of the order would be enforceable and part would not be?

Take, for example, a situation in which the maintenance debtor's financial position deteriorated. With the consent of the maintenance creditor, the court could decide that only part, £X per week, would be payable.

Is that not giving the enforcing authority the right to go into the merits of the original order, which I understand to be excluded?

No, not the merits of the order but the amount of it, and this only with the consent of the creditor at the time of the request.

That is fair enough.

Question put and agreed to.
Section 12 agreed to.
SECTION 13.

I move amendment No. 2.

In page 6, subsection (1) (c), line 43, after "debtor" to insert "outside the State or sent by registered post to him at an address within the State".

This amendment merely sets out more precisely what is meant by service of notice of a UK order on the debtor. If he resides outside the State when the order is made, UK methods of service will apply, and if he is within the State when the order is made, then it will be by registered post.

Amendment agreed to.

Amendments No. 3 and No. 5 in the name of the Minister are cognate and consequently, by agreement, may be taken together.

I move amendment No. 3.

In page 7, subsection (4), line 11, before "an" to insert "or at the instance of".

Amendments Nos. 3 and 5 are drafting amendments to avoid any implication that a request would have to be transmitted personally by the Secretary of State. As originally drafted there could be that implication in it.

Amendment agreed to.
Question proposed: "That section 13, as amended, stand part of the Bill".

Under section 13 (1) (d) it seems to be envisaged that the maintenance creditor in the reciprocating jurisdiction would, at times at least, have legal aid. If there is to be true reciprocation it should be available on equal terms for somebody in this country. I trust the Minister will be able to tell us now before this Bill comes into force that civil legal aid will be available here.

The Deputy, with his experience, knows very well I could not make any such statement. For a longer time than the period between now and the date on which this Bill comes into force, legal aid did not appear on the Irish scene. We hope to have civil legal aid here, having set up a committee to advise on the scope and format of it. Until such time as we have it, there is no doubt that the debtor here will be in an inferior position to a debtor in the other jurisdiction, in that if he wants to contest the enforcement of the order here he will have to do it out of his own pocket. Why subsection (1) (d) is in the Bill is in anticipation of a system of civil legal aid coming in here; the court here will know that this was a legal aid case in the other jurisdiction and will, therefore, have a guide as to whether legal aid should be granted in the proceedings here.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

Section 14 (2) (a) refers to orders made by the District Court under section 1 of the Married Women Act, 1886, and section 3 of the Illegitimate Children Act, 1930. It may be only a drafting point, but the jurisdiction of the District Court in respect of each of those two Acts was considerably increased by the Courts Act, 1971.

I would refer the Deputy to paragraph (b) as to that.

I think that refers to the situation where the High Court can award more than £15 a week.

Perhaps I interrupted too soon.

It is purely a drafting matter, but perhaps it would be wiser that the words "as amended" would appear after the citation of each of those Acts there.

I think the Interpretation Act covers that.

If it does, that will cover it.

Question put and agreed to.
NEW SECTION.

I move amendment No. 4.

In page 8, before section 15, to insert the following new section:

"15. —Service of a document relating to maintenance proceedings in a reciprocating jurisdiction which is received by the Master of the High Court from an appropriate authority for service on the person against whom the proceedings have been instituted may be effected in any manner in which service of a District Court document within the meaning of section 7 of the Courts Acts, 1964, may be effected."

This is analogous to the first amendment which is to provide in express terms for the service of documents and to remove doubt as to how they are to be served.

I agree with this, but if I could go back to the section before, there is a fine of £20 provided for failing to tell the District Court clerk your new address. Would the Minister not agree that that is rather unrealistic because the weekly payment might well be more than £20 anyway?

If it is unrealistic it will not arise because nobody would be seeking to enforce the order in the first instance, so there is no question of failure to give an address.

No, but let us assume the judgment debtor is caught, as it were. It is ascertained that he is at such-and-such an address within the jurisdiction and the various papers and orders are served on him and he makes payment in accordance with the order to the District Court clerk. He decides after a few weeks that he has enough of this and goes elsewhere. It is properly provided in section 14 that that would be an offence, but as the money involved could be pretty large, surely the proposed maximum fine of £20 would be inadequate to seek to ensure that he would give an address.

It is difficult to know what is the proper sanction. In England I understand the sanction is only £10.

They are more law-abiding there.

This will be an Englishman here, do not forget. Imposing a heavier sanction such as a jail sentence would put the absconding debtor out of circulation altogether and the wife would not get anything at all. Therefore we shall just have to put in some sanction in the hope that it will deter these people from skipping without leaving their address.

Amendment agreed to.
Section 15 agreed to.
SECTION 16.
Question proposed: "That section 16 stands part of the Bill."

This seems to me to introduce the concept of prosecuting someone who is resident outside the jurisdiction, perhaps not prosecuting in the most technical sense but at least taking proceedings and making an application against someone outside the jurisdiction. While my concern would be entirely with the applicant or prosecutrix, in this case, I think that the defendant, however unworthy he might be otherwise, has certain rights too. Is the Minister satisfied that in the other jurisdictions there would be adequate and proper service of the documents on the defendant and that he would get adequate notice? This and subsequent sections do not lay down any time limits or anything of that kind. Indeed there are a great many other matters which should properly be covered by rules of court. I should like to ask the Minister if it is proposed to make rules of court; if so, by what committee—whether the Superior Courts Committee or the District Courts Committee, or both, and whether this sort of application, which is an unusual one, will be covered by those rules of court. The defendant, however unworthy he may be, is at a tremendous disadvantage in that he is resident all the time in another jurisdiction and the period of notice he would need, if he bona fide wanted to contest the case, would be considerably more than a period of notice that might be adequate for somebody living in this jurisdiction. Is it proposed to have any provision that there would be a period of, say, not earlier than 21 days after service, or some such period? Ideally the place to provide that would be in the Bill in case an inadequate time was suggested in the rules.

Of course, new rules are being drafted. The court mainly involved will be the District Court because it will be the enforcing court as well as the court making the bulk of the maintenance orders. I am hopeful that the rules and the coming into operation of the Bill will be simultaneous or that there will be very little gap between them. I know that the work is proceeding on them as a matter of urgency. Indeed, the President of the District Court has been most helpful and these few words are an inadequate way of expressing gratitude for the work he is doing in this particular area. It is his and my hope that we will have District Court Rules to enable the Act be operated from the commencement date.

The Deputy can be assured that people who are outside the jurisdiction will receive adequate notice, in accordance with the law of the jurisdiction in which he resides. The Deputy will have noticed that, throughout the Bill, one of the defences—and there are very few defences open to a maintenance debtor—is that he was not given notice of the proceedings in sufficient time to enable him to defend them. There is a similar safeguard in section 17.

Question put and agreed to.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

I take it that the sending of all these documents will be a matter for the District Court clerk and, subsequently, the Master rather than the woman herself or her solicitor if she had one. Is it proposed to charge District Court fees for the services rendered by the clerk?

It is not proposed that there be any fee for the services of the District Court clerk. There may be certain stamps to be attached to certain court documents, in the normal way, but, beyond that, no fees as such.

Of course that is what I meant, because District Court fees are collected by way of stamps on the documents. I think that at the moment a maintenance summons is not subject to a stamp. I would suggest to the Minister that no fee should be collected, by way of stamps or otherwise, in relation to any aspect of these proceedings.

If the District Court rules being drafted provide for new documents, the fees order will have to be revised to bring those documents within it. I take it the Deputy's point is that they should not be brought within it?

I think there is a kind of final round up in the fees order which says something like: any other document which is not hereinbefore mentioned shall be liable to such-and-such a fee. I think these should be specifically excluded and it could be done in the rules of court rather than here.

If we are moving towards legal aid it would be a bit pointless having fees prescribed in the document.

Question put and agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."

I find it a bit difficult to envisage the circumstances in which what is laid down in this section would be necessary. Obviously it does not apply to either party to the proceedings; it applies to some third party or independent witness. It is somewhat difficult to follow what would be the circumstances in which this procedure might be followed.

For example, it could arise in the case of affiliation order proceedings. If you like it would be giving to the District Court, which would have seisin of those proceedings, a power analogous to the present power of the High Court and Circuit Court to take evidence on commission.

Because it is being taken in a jurisdiction other than that in which the case proper is being heard, presumably the parties will not have an opportunity of cross-examining the witness. The Minister will recall that in a document that I think is now forgotten about—a document issued a month or two ago—there was very elaborate procedure for going to other jurisdictions to examine witnesses with commissions. In fact, even the judges hearing the case would travel and listen to what was happening. I know that something like this is perhaps not at all as important but it could be important to the individuals involved.

Would the Deputy like that other document to be forgotten about?

I am not making any suggestion one way or the other. I am simply pointing out what appears to be a fact.

It is not a fact.

Well, then, we shall await with interest what may come of it. Perhaps we could go back to the fugitive fathers rather than the cross-Border terrorists. How will they be catered for?

The normal rules of taking evidence on commission will apply and this involves the right to cross-examine. If evidence is taken on commission in another jurisdiction the court which arranges the commission could arrange for cross-examination.

Question put and agreed to.
Section 20 agreed to.
SECTION 21.

I move amendment No. 5:

In page 11, subsection (1) (a), line 9, before "an" to insert "or at the instance of".

Amendment agreed to.
Question proposed: "That section 21, as amended, stand part of the Bill".

The only part of section 21 about which I want to say anything, is subsection (1) (e), which allowed a whole series of strange things as evidence. I know there is a general proviso in subsection (4) that gives the court discretion as to what weight, if any, should be attached to the matters that are allowed at 1 (e) and also at 1 (c) and 1 (d), but I (c) and 1 (d) are straightforward enough because, for the most part, they involve court documents. Those mentioned at paragraph (e) are very different and one in particular that strikes me as very doubtful is the question of the admissibility of a statement contained in a document which purports to be a letter written to a party to maintenance proceedings who is residing in a reciprocating jurisdiction. I am sure the Minister can see clearly and quickly the dangers in that sort of thing. That is hearsay to the ninth degree and particularly so where the other party resides in another jurisdiction.

In fact what would happen there under 1 (e) (vi) is that a wife who was not bona fide in these matters could write a letter to her husband or purport to write it, and send it to an address at which she knew he was not. He never got the letter and she knew that but still she could produce a copy of that letter and have it used in evidence in some degree against him. That runs contrary to everything we ever held dear in regard to the law of evidence. Indeed, a letter written by a party would normally be admissible against him only when it was proved that he did write it. Here you could have alleged copy letters produced which perhaps were never even sent. To allow that, even in the rather limited and cut-down form which subsection (4) suggests, seems to be very unwise.

I am very disturbed also by subsection 1 (e) (i) because it could imply the obtaining of information from the Revenue Commissioners or their British equivalents. The statement at (iv) that a statement or certificate that a person was employed or unemployed for a specified period is very vague. There is no indication by whom it should be made. The really disturbing provision is that of a letter being written to a party. I think there can be no suggestion that a letter written to someone would be admissible unless it was admitted that the letter was received. It could be relevant then, if it were admitted that it was received and statements made in it were not denied or if the letter was acknowledged and certain statements were not denied. Simply to produce a copy letter allegedly sent to someone without proof of its receipt would not, in my view, be fair particularly as in the vast majority of cases the defendant will not be present even though he has the opportunity of denying it.

A number of safeguards have been written into the section to avoid the situation the Deputy envisages. I do not know whose side he is on because what we want here is informality and effectiveness. In an attempt to get this the provisions of this section, which I must concede are in some respects novel, include a number of safeguards. The overriding one is that the court must see good reason for the documents being admitted or not admitted. If the court see documents which are doubtful on their face, no doubt that would be good reason to exclude them. The court, of its own motion or at the instance of either party, may decide to exclude documents. If a document is a letter of the type mentioned by the Deputy it would not take a very strong case to have it excluded. These documents will be admissible only to the same extent as oral evidence of the same content. There will be no inadmissible evidence included in that sense. The evidence contained in any document introduced can be rebutted and the court has the overriding power not to admit it. As with any evidence produced in a court, the court will decide what weight should be given to it in the context of all the circumstances.

I think there is sufficient protection in the section to ensure that no party will be prejudiced. The ordinary laws of evidence will still apply. What is intended here is to introduce a certain informality into the proofs, not to have the burden of strict proof in this type of proceedings which will be as informal as possible and as acceptable as possible to the parties to them. It would be contrary to the spirit of the whole idea of mutual enforcement if we were to have rules of evidence applied in the same way as they might be applied in some of the superior courts or if we were to have the particular technicalities of that code introduced into these proceedings. The protections I have outlined, with the overriding requirement for the court to see good reason, the fact that the court is not compelled to accept any of the documents, that the court will give them the normal weight to be attached to them and can refuse to accept them and that it can only allow written evidence of what would be permissible orally—I think these will ensure that no injustice will be done.

I shall not go on long about the doubtful things in this section but the Minister would go on if he were here and I were there.

I do not know what to make of that statement.

Is it agreed that the section stand part of the Bill?

Agreed, with terrible misgivings that the rights of citizens and individuals are being crushed under the weight of fascism.

Question put and agreed to.
Title agreed to.
Bill reported with amendments.

It is long and complicated and we had a good deal of talk about it and we have agreed to read it again. I take it it is not very urgent.

It is not, but we have to complete the Report Stage and get it to the Seanad and I do not know how long it will be in the Seanad.

It is really a matter for Deputy Andrews on this side of the House. Unfortunately, he could not be here today.

I make no comment on that although several times he commented on my absence.

Report Stage ordered for Wednesday, 26th June, 1974.
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