Amendments Nos.1 and 2 are related and can be discussed together.
Private Members' Business. - Age of Majority Bill, 1984: Committee and Final Stages.
Limerick East): I move amendment No.1:
In page 3, subsection (4) (b), line 32, to delete "and".
Amendment No.1 is consequential on amendments Nos.2 and 3. Amendment No.2, by exempting the provisions referred to by the application of section 2, will ensure the continuation of the existing statutory powers of the courts to make maintenance orders in respect of children up to 21 years of age. At present a maintenance order may be made under the Family Law (Maintenance of Spouses and Children) Act, 1976, or the Illegitimate Children (Affiliations Order) Act, 1930, as amended by the 1976 Act in respect of a child up to 21 years of age if he is receiving full time education. Under the Guardianship of Infants Act, 1964, a maintenance order may be made for a child up to 21 years without any requirement as to full time education.
The Bill, as initiated, will have the effect that reference to 21 years in these statutes would be construed as reference to 18 years after the commencement of the Bill. Consequently maintenance orders could not be made for children over 18 years of age except in respect of incapacitated children in respect of whom there is no upper age limit. The Law Reform Commission considered the question of maintenance of children who had attained the age of majority. In their working paper they indicated they were in favour of continuing the existing law relating to entitlement of maintenance up to 21 years. In their final report, in paragraph 67, they concluded it would not be desirable to impose continuing maintenance obligations on parents of children other than those who are mentally or physically disabled who had reached the age of majority even if they were receiving full time education.
The commission considered that the balance of the argument favoured the view that a necessary implication of attaining majority is that a person is sufficiently mature and independent to be responsible for his or her own maintenance rather than looking to their parents for support. The Bill was drafted on the basis of the recommendations in the commission's final report.
There are arguments on both sides. On the one hand, maintenance under our laws has never been payable beyond the age of majority except in the case of handicapped children. It can be argued that once the law accepts that a person has attained adulthood, obligations on his parents to support him beyond that age, where there is no question of handicap, should not be imposed by law. It can also be argued that it is only where parents are separated and in dispute that one or other will, in practice, be obliged by law to maintain a child in higher education and that this is unfair. For the majority of children whose parents are living together there will be no question of one or other of the parents being obliged to maintain the child in higher education. This argument is really on the lines that children of separated parents should be treated no differently from other children. It is leaving it to the parents themselves to decide up to what age beyond 16 years that they should maintain their child.
On the other hand, it can be argued that a reduction in the age of majority which is intended to be of benefit to young people should not operate to the detriment of some of them who may be in difficult family circumstances and not in a position to support themselves but whose parents can afford to support them. Having listened to the views of Deputies who referred to this question and in particular to the persuasive argument put forward by Deputy Shatter and having weighed the arguments for and against, I have come to the conclusion that we should preserve the present position under which maintenance may be ordered up to the age of 21 years.
This is, as the Minister said, a point which was raised on Second Stage in general terms and very specifically by Deputy Shatter. We agree with the Minister's proposal and support it.
There is a small drafting point and that is that the Minister is continuing the term that provides for payments to be made for maintenance or support of children up to 21 years of age. That occurs in a number of places. We are taking the age of 18 years as being the adult age. It might be desirable to say something like "for minors up to the age of 18 and thereafter for eligible persons of full age up to the age of 21 years". It is purely a drafting point. Perhaps if the Minister was not under such pressure of time it might have been possible to look at that concept. However we can discuss it again. We support this amendment.
(Limerick East): The amendment was drafted on the basis that the provisions of the Illegitmate Children (Affiliation Orders) Act, 1930, or the Guardianship of Infants Act, 1964, or the Family Law (Maintenance of Spouses and Children) Act, 1976, provide for payments to be made for the maintenance of children up to the age of 21 years. The word “children” refers back to the Acts where the powers are being preserved.
The Minister could get around that by putting in "eligible persons". Then he would be taking the term out from here on. It might make his or someone else's job easier in the future.
I thank the Minister for introducing this amendment. It was badly needed. I appreciate his flexibility in dealing with it in this way. I know the original provisions of the Bill created some anxiety. I have had contacts from people who followed the debate on Second Stage and who welcomed the fact that the Minister indicated that he would introduce such an amendment. It is an important one.
One matter is still left open and the Minister did not deal with it. It could be dealt with in the context of the recommendations being made by the Joint Oireachtas Committee on Marriage Breakdown. What the Minister is doing is preserving the legal position as it was before the introduction of the Bill. That is desirable, but we need to go a step further. In the context of recognising that this is a support provision to enable children of broken marriages to have the facility of education, and in many cases of third level education, one of the problems with the existing law is that very often children in those circumstances will not be able to complete their education until they are about 22 years of age. I hope the committee might make a recommendation that this area of law should be amended to allow the court some degree of flexibility to extend support payments to a stage where a young person has completed undergraduate education. Obviously it cannot be openended, but where a person was proceeding in undergraduate full time education between the ages of 18 and 21 and where a further year is required to complete the course, we should be more flexible, as they are in other jurisdictions.
I thank the Minister and wish to draw one matter to his attention — no one appears to have tabled an amendment about it — and that is the new provisions in section 6 which also relate to support payments and the Guardianship of Infants Act. It refers to the age of 18 in the context of continuing maintenance payments beyond that age for young people who suffer from some form of permanent disability. It would seem that that needs to be tidied up in the light of the Minister's amendment. The Minister might want to consider that.
(Limerick East): I move amendment No. 2:
In page 3, subsection (4)(b), between lines 32 and 33, to insert the following:
"(viii) any provision of the Illegitimate Children (Affiliation Orders) Act, 1930, the Guardianship of Infants Act, 1964, or the Family Law (Maintenance of Spouses and Children) Act, 1976, that provides for payments to be made for maintenance or support of children up to the age of twenty-one years,".
(Limerick East): I move amendment No. 3:
In page 3, subsection (4)(b), line 35, after "twenty-one years" to insert the following:
any statutory provision relating to prisons, to Saint Patrick's Institution or to any other place for the custody of persons".
The purpose of this amendment is to exclude from the effect of section 2 statutory provisions relating to sentencing, imprisonment, commital for trial, detention, remand in custody etc. It was not intended when the legislation was being drafted that references to 21 years of age in such provisions should be construed as 18 as a result of a change in the age of majority.
Deputy Woods expressed concern about this and it is in response to comments he made that I am introducing this. There were a number of references to the age 21 years in statutory provisions relating to imprisonment, detention etc. For example, under the Criminal Justice Act, 1960, where a person who is not less than 16 years of age and not more than 21 is convicted of an offence for which he is liable to be sentenced to penal servitude or imprisonment, he may instead be sentenced to be detained in St. Patrick's Institution. The Prisons Act, 1970, amended the 1960 Act to empower the Minister for Justice by order to reduce the maximum age for commital to St. Patrick's Institution to 19 years, but no such order has been made. It is 21 rather than 19 that is at issue here. Other examples of references to 21 years of age in this type of legislation are to be found in the Prevention of Crime Act, 1908, and the Criminal Justice Administration Act, 1914.
The considerations that have to be taken into account when age limits have to be fixed in relation to imprisonment, detention etc, are not related to the age of majority and it would be quite inappropriate to effect any change in such ages in legislation dealing with the age of majority.
I thank Deputy Woods for pointing this out and giving us an opportunity of putting down an amendment.
I welcome this amendment, naturally. We saw this as something which could be very undesirable. I appreciate that it was not in any way intended initially. Obviously it is quite important that young persons would continue to be treated in the way they have been in the past, and I know this was the Minister's intention especially with the new facilities for young people being built currently in Wheatfield. One can expect that these would be much more appropriate to the treatment of younger offenders and in that light we would not like to see any change in relation to the age which applies in their case — for instance, that they could be committed to Mountjoy or some of the other prisons. Therefore, we welcome the Minister's amendment.
There are a number of things to say about the section in general. Let us take section 2 (4) (b) and remove paragraphs (i), (ii), (iii) and (iv), and replace them with the following "Section 19 of the Marriage (Ireland) Act, 1844, as amended by section 7 of the Marriage Act, 1972 is hereby amended by the substitution of 18 years for the word `21' in subsection (1) thereof". The effect of such an amendment is to allow for the free age for marriage over 18 years without any consent. A simple amendment such as that would make that change at this time. The Minister said that this question is left to another Minister and to a later date, but it would be very simple at this stage to amend the Bill in the way I have suggested and thereby to introduce the free age for marriage at 18. In this Bill we are creating an age of majority of 18. At 18 young people now generally become adults, but one major question that remains is the consent for marriage. A simple amendment of that sort at this point would effect that change. The Minister on Second Stage gave his reasons for not wanting to do this at this time so we will not press the matter any further.
(Limerick East): Yes, but marriage legislation has always been the subject of separate legislation. The 1972 Marriage Act was promoted by the Minister for Health and I envisage that changes in the Marriage Act would be proposed by the Minister for Health. We do not need an amendment at all to change the free age of marriage from 21 to 18. There is provision in the Marriage Act for the Minister for Health to do this by order. The Minister for Health could by order say that the free age of marriage is 18 from tomorrow if he wished to put the order together. Therefore, it is not only a question of the difficulties of amending this legislation or the ease with which we could amend it. It is appropriate that it would be the subject of separate legislation sponsored by a different Minister, but also it is a matter of policy rather than amendment or drafting.
There are a number of issues about the age of marriage. There is the issue of what the free age should be. It is now 21. One needs the consent of parents or guardians between 16 and 21 years and below 16 there is provision for the consent of the High Court. A number of questions arise on the age of marriage. What would the free age be? What would the minimum age of marriage be? What exceptions would be made? It is very easy to make a statutory provision to change it, especially to change the free age from 21 to 18; it simply requires an order from the Minister for Health. The policy question would be a matter of more fundamental debate. We have to deal with the issue of both minimum age of marriage and the free age of marriage and they may not necessarily be the same age.
In section 2 (4) (b) (iv) "the Social Welfare Acts, 1981 to 1984", here again we are making young people adults at 18 and we are having equal treatment legislation in the House, or it is coming on Friday according to the Minister. We have had a motion here tonight and last night in relation to equal treatment. Again there would have been an opportunity here to reduce to 18 the qualifying limit for unemployment assistance without reference to the parents' means. In other words, if a young person becomes an adult at 18, as we say in this instance, something which is of fairly wide application at the moment, it would not be a very grave consequence in terms of expense, to alter the Social Welfare Acts in such a limited way since we make young persons adults at 18 by making them liable on their own means without taking into consideration their parents' means, while of course taking into account accommodation or whatever else they were getting. There would appear to have been an opportunity here for that, but any alteration to these Acts was excluded from consideration here.
In relation to section 2 (4) (b) (iv), there will be an anomaly, if the Social Welfare Acts are excluded, for instance in relation to such matters as blind persons' pensions. We pointed to these on Second Stage. They will remain anomalies once this Bill has gone through. I appreciate that there are financial considerations, but for blind persons' pensions, for instance, again these would not be very great. However, these are all being left to a later date apparently by a decision of the Government and by reference to the fact that the Minister presumably considers that it would be more suitable in some other legislation.
(Limerick East): One can take the point the Deputy is making but there is another side of the coin. The reduction of the age of majority to 18 and the application of that to social welfare payments would rule out for payment dependants between 18 and 21. There are persons who at present quite obviously are entitled to social welfare payments in respect of children between 18 and 21. If in logic we apply the social welfare code to the new age of majority, 18, then while there would be gains to certain individuals along the lines the Deputy suggests there would be a major reduction in the income of certain families because they would no longer be dependants under the social welfare code. Consequently, if the changes are to be made in the Social Welfare Acts it is much better to leave it to the Minister for Social Welfare. It is not a simple matter, and here we are saying that the social welfare legislation will not be affected by this Bill. Arguments are to be made, some to the advantage of young people and some to the disadvantage of the families of young people when we are considering whether the appropriate age now for all social welfare legislation should be 18 in regard to independence or dependence.
That kind of point could be covered here because it concerns eligible persons, dependent persons under 21. Language like that would cover that point. There is no problem in drafting. The Minister is very good at coming back with some reason or other, but the main point is that he does not want in the context of this legislation to make any of these changes. I am pointing out some of the anomalies which are there to be dealt with, presumably on another day. Nevertheless, they become greater anomalies now because we have made young people adults at 18. I ask the Minister to communicate some of these to the Minister for Social Welfare. In the context of the budget it is normal for the Minister for Social Welfare to draw up a list of big, expensive items and little items and the things he can do. I know it well because I have had many of these lists myself drawn up on previous occasions. Some of these anomalies can be taken out. Now that this change has been made here I ask the Minister to convey to the Minister for Health and Social Welfare the fact that this is an anomolous situation and that he should, where it is feasible without great expense, correct it — for instance in regard to blind pensions as one clear example. That might be done in the context of the budget.
Naturally, we agree that a person who is not of a full age be described as a minor instead of an infant.
(Limerick East): I move amendment No. 4:
In page 4, subsection 3 (b), line 12, after "1942 to", to delete "1983" and substitute "1984".
The reason for the amendment is that the Referendum Act, 1984, contained a collective citation under the Referendum Acts. The necessity for the amendment was drawn to our attention by the parliamentary draftsman on 2 October 1984 and it refers to section 4 (3) (b) (iv) "the Referendum Acts 1942 to 1983" and it is simply changing 1983 to 1984.
(Limerick East): I move amendment No. 5:
In page 5, paragraph 1, line 35, after "attaining full age" to insert "and any provision in such order or directions referring, whether expressly or by implication, to the period before which, or the time at which, a person attains the age of majority shall be construed accordingly".
This is a technical drafting amendment. The existing paragraph provides that court orders or directions in force before the commencement of the Act, relating to the control of money payable to an infant as a result of proceedings shall have effect as if any reference therein to the attainment of 21 years of age were a reference to full age, that is, 18 years or time of marriage. The amendment is designed to ensure that a court order that uses expressions such as minority or age of majority instead of speaking of attaining 21 years will be caught.
The existing practice of the High Court when making an order of this kind is to refer in the order to the investment of the funds and accumulation of interest during the infant's "minority" and to payment of the proceeds to him when he "attains majority".
Doubt has arisen whether the paragraph would cover orders worded in this way.
The additional words being inserted by the amendment are intended to ensure that any references, whether express or implied, to the period before majority or the attainment of majority will be construed by reference to the new age of majority.
In relation to the power of trustees to apply income to the maintenance of a minor, within the terms of this Bill this will not apply to instruments made before the commencement of the Act. What are to be the trustees' powers concerning instruments that will be made after this Bill is enacted?
(Limerick East): Paragraph 3 of the Schedule proposes that where a trust instrument made before the commencement date is concerned with land or property to which an infant is beneficailly entitled, the powers of the trustees under sections 42 and 43 of the Conveyancing Act, 1881 in respect of the income of the land or property will continue until the infant reaches the age of 21.
At present sections 42 and 43 of the Conveyancing Act, 1881 empower trustees to apply income from land or property held under a trust instrument for the maintenance, education or benefit of an infant beneficiary or to pay such income to his parent or guardian for the same purposes, until the infant reaches 21 years of age. Subsection (1) provides that the change in the age of majority will not affect that power in relation to a trust instrument made before 1 March 1985.
In the case of a trust instrument made on or after 1 March 1985 the change in the age of majority will affect the trustees' powers under sections 42 and 43 of the Conveyancing Act, 1881. References in those sections to infancy and 21 years will be then construed as relating to the new age of majority. Accordingly the power to apply income or to pay it to a parent or guardian will cease at 18 years or on earlier marriage.
Will this require amendment of sections 42 and 43 of the Conveyancing Act?
(Limerick East): It will not.
(Limerick East): I thank Deputy Woods and the other Deputies who have contributed to the debate and I am grateful to the House for the expeditious manner in which it has dealt with so many sections of the Bill this evening.
I thank the Minister for having taken note of what was said at Second Stage. We have made clear the points we consider should be given attention following the passage of the Bill. There is one aspect which we mentioned earlier and which I intended referring to at Committee Stage, that is, that there remains an element of lack of protection from loan sharks. We mentioned this on Second Stage. The Minister may say that we cannot have it both ways, that we cannot make an adult of the young person, allowing him to take on loans and so on without his having to take risks also. Of course we want to see that arrangement. Nonetheless I would ask the Minister to see if any further measures can be taken to protect young people between the ages of 18 and 21 from the activities of loan sharks.