We are dealing with amendment No. 6 in the name of the Minister. Amendment No. 7 is an alternative, and amendments Nos. 8, 9, 11, 12, 13, 14 and 15 are related. Therefore, we are taking amendments Nos. 6, 7, 8, 9, 11, 12, 13, 14 and 15 together and in conjunction with this grouping it is proposed to take amendment No. 14(a) in the name of Deputy Mervyn Taylor which is on the additional list. This is an alternative to amendment No. 14 in the name of Deputy Alan Shatter which is also on the additional list.
Status of Children Bill, 1986 [Seanad]: Committee Stage (Resumed).
Debate resumed on amendment No. 6:
In page 7, lines 17 to 23, to delete the definition of "father" and substitute the following definition:
"`father' includes a male adopter under an adoption order, but, subject to section 11 (4) of this Act, does not include the father of an infant who has not married that infant's mother unless either—
(a) an order under section 6A (inserted by the Act of 1987) is in force in respect of that infant, or
(b) the circumstances set out in subsection (3) of this ection apply;".
—(Minister for Justice.)
Since on the last day it seemed that a consensus was emerging about a particular matter which arose under the original amendment No. 14, Deputy Taylor and I have tabled virtually identical amendments to replace the original amendment No. 14. The point being made then was that there would be many situations in which a child would be born outside marriage, where the mother and father of the child had no dispute between them, where there was no doubt as to the father and where the mother may have a stable ongoing relationship in a variety of different circumstances and may wish, and indeed be anxious, that the father acts jointly as parent of the child born to them. In other words, the father should be a joint guardian with her in the same way that a married couple are automatically joint guardians of their child.
The various amendments we were going through on the last day, some of which encapsulated a somewhat different approach by the Minister to the approach I was adopting, also had some similarities. One area we spent some time discussing was the issue of parents having to involve themselves unnecessarily in court proceedings. Under the terms of the Bill, no matter what the circumstances relating to the birth of a child outside marriage are, if the father is to have joint guardianship rights with the mother a court application is required. On the last occasion I made a point that in most other jurisdictions, including member states and in countries like New Zealand and Australia, it is not necessary to make a court application in such circumstances. Where there is a dispute between a mother and a father, the father, in order to acquire guardianship rights, will often have to seek a court order. Where there is no dispute it is putting an unnecessary burden on parents to require that a court order be sought. That does not seem to be in the interest of the child, if it can be assumed that a child has a right to have a relationship with both parents.
Under my original amendment which sought to add a new section a father would automatically be joint guardian if registered as father in the register of births. During the course of the discussion on that amendment it was suggested that in some circumstances a father could register as father without the consent of the mother. However, under the Bill the father will only register with the mother's consent or as a result of a court order. On the last day it appeared that a consensus was emerging in the House — the coincidence of Deputy Taylor and I tabling similar amendments shows that — which seemed to indicate that in circumstances where it was agreed by the mother that the father should have joint guardianship rights and where a child was registered under the name of the mother and the father there should automatically be joint guardianship rights. That would cut out the necessity for a large number of court applications that might otherwise arise under the original provision. Under the Bill as drafted, even where there is agreement between a couple under the new section 6 (a) to be inserted in the Guardianship of Infants Act — section 12 of the Bill before us — for a father to get joint guardianship rights a court application will have to be made.
My proposal is to replace the amendment we discussed on the last day and my new amendment, if adopted, would become section 6 (b) of the Guardianship of Infants Act and would read:
6B.—Where the father and mother of an infant have not married each other and where the father is registered as the father of an infant in a register maintained under the Births and Deaths Registration Acts, 1863 to 1987 and, where the mother consents in writing to the appointment of the father as guardian, the father shall automatically be a guardian of the infant and no application by the father to be so appointed as provided for in section 6A of this Act shall be required.
I urge the Minister, in the interests of improving the Bill, reducing the necessity for people to incur legal expense by making court applications and with a view to providing a mechanism that would extend guardianship rights to fathers in circumstances where the mother agrees that they should be extended, to accept my amendment.
The only basis on which it could be argued that the amendment should not be accepted would be if there was an assumption that generally speaking it was not in the interest of children born outside of marriage to have a relationship with their fathers, even in circumstances where the mother wishes that such relationship should be maintained. It seems to me that some of the underlying currents in the Bill are based on a value system of a nature that is introducing a new discrimination into our law. We are getting rid of the stigma of illegitimacy and regarding it as a duty on Members of the House through legislation to provide effective statutory provisions to place children in a position of legal equality and give mothers of children born outside of marriage as much protection as possible but are regarding the fathers of children born outside marriage in a somewhat different position. It could be argued that in seeking to remove the stigma of illegitimacy and whatever stigma attaches to being an unmarried mother we are seeking to reimpose and copperfasten by legislation a very severe social stigma with regard to unmarried fathers. We are seeking to make it as difficult as possible in the Bill for the unmarried father to acquire guardianship rights towards children born outside wedlock.
The Minister referred to organisations that represent single parents and unmarried mothers as objecting to fathers having automatic guardianship rights but my amendment would not confer an automatic guardianship right. It would confer guardianship rights where the mother consents as is provided in the Act. It provides that where the mother consents the father can become guardian but a court application is required. We should examine the logic of that. If the mother agrees that the father should become guardian and if they both apply to the court, the court has to decide the issue on the basis of the welfare of the child but I wonder in what circumstances the Minister would envisage where there is such a joint parental application the courts refusing to grant joint guardianship rights. Are we going to say to judges who may disapprove of unmarried fathers that in those circumstances they should not grant joint guardianship rights? We are seeking to create a situation that where a child is born outside marriage the law will be phrased in such a way that will encourage the mother and father to play a constructive role in the upbringing of that child and act as joint guardians, particularly in circumstances where there is no dispute between the parents.
I urge the Minister to accept amendment No. 14 or No. 14a. There is no great difference between them. They would improve the Bill and limit the circumstances in which court applications are necessary. They would help to provide a mechanism which would enable fathers of children born outside marriage to, in a simple way, acquire guardianship rights. It should be remembered that we are not talking about the father in circumstances where a man and woman have been living together for a time and have never been through a ceremony of marriage. We are talking about extending guardianship rights by agreement to fathers in circumstances where, perhaps, the father has previously been party to a marriage which the Roman Catholic marriage tribunals have declared null and void and the father may have gone through a second ceremony of marriage in Church and be living happily for many years with his second wife. Under our curious legal system there are hundreds of couples in that position and none of them has the possibility of having a valid civil legal marriage but in the context of the religious area and their social position they are regarded by everybody as being a married couple. It would seem to me anomalous that couples bringing up three or four children should be forced to make court applications if the father is to acquire guardianship rights. I urge the Minister to accept the amendment which deals with some of the worries and objections the Minister raised with the original amendment. It deals with some of the fears of groups who represent single parents and adequately ensures that court applications of an unnecessary nature will not have to be made.
Perhaps the Minister is accepting our amendments? If he will indicate he is doing so he will save the time of the House.
I am not.
I am disappointed to hear that and I am at a loss to understand why.
Do I take it that Deputy Taylor is moving amendment No. 14a?
I will withdraw my amendment because it is virtually identical with Deputy Shatter's. I support the substance of Deputy Shatter's amendment, the sole purpose of which is a very basic and simple one, to save parties the necessity in the circumstances outlined of having to go to the court, to retain solicitors and counsel, to obtain an order. That burden is being imposed on them at a time when the Minister is failing to provide an adequate degree of free legal aid to enable them to do so. People should be able to have access to the law. If the Minister was providing a full and adequate free legal aid service there would be some grounds for refusing to accept the amendment. If the father is on the birth certificate as the father of the child and the mother consents in writing to the father being joint guardian of the child I cannot see why the Minister should tell those unfortunate people that he is sorry but they must have recourse to the law and to see their solicitor. In other words, even if they agree, they must go through the whole legal process with all the time, trouble, expense and reluctance which many people have to get involved with the law. This is understandable and in many cases justifiable. What is the purpose of this?
The Minister on the last occasion made a remark about the wife having her arm twisted to agree to the joint appointment of guardianship. However, that stretches the imagination because, if a man has been put down on the birth certificate as the father, he will create pressures on the woman to have himself appointed as a guardian. In such a case he is showing an interest in the child and should be encouraged to do so. Even if the Minister is right, arm twisting could also apply in a court case as it would always be open to the woman to claim that she was compelled to sign the letter of consent. Why put these people, quite unnecessarily, to the trouble, annoyance and expense of going to court? There is no rhyme or reason to it. It is a very simple amendment which I thought the Minister would accept as it makes a lot of sense. I am curious to hear his reasons for objecting to it.
There are two important issues dealt with by these amendments which must, for technical reasons, be debated together, first, whether the father of a child of parents who have not married each other should be appointed guardian without court approval and, secondly, when should a father be guardian following the grant of a nullity decree.
The first of these questions is raised in a substantive way by Deputy Taylor's amendment No. 14a and Deputy Shatter's substitute amendment No. 14, which is worded almost identically. I note that Deputy Shatter has now forsaken the earlier approach in his original amendment No. 14, which would have made the father guardian of his child born outside marriage virtually automatically. No doubt the Deputy was persuaded in this course by the weight of argument in my contributions when we were last debating these matters.
The proposal in Deputy Taylor's amendment No. 14a, acceptable to Deputy Shatter, does, admittedly, have a certain initial appeal, but would be unsatisfactory in general respects for reasons which I will now outline. It cannot be assumed that, generally speaking, fathers of children born outside marriage have an interest in those children of such a kind as to justify them becoming guardians merely with the consent of the mother. In many instances this would not be true and the facts of many affiliation cases show this.
Guardianship is an important responsibility — a guardian has in his or her hands the destiny of the child. It is important that the fact of guardianship be ascertainable by the public at large; that a public and verifiable record of the relationship of guardian and child be available. There must be some means by which people involved in the child's upbringing, such as doctors and teachers, would be able to check from public records who is guardian of a child in a situation where there was doubt about it and important decisions required to be taken about the child's welfare. In the case of the child of a married couple, the facts of marriage and of birth, on which the guardian-child relationship is based, are matters of public record. In the case of a testamentary guardian, the will which makes the appointment also becomes a public document. Where a guardian is appointed by a court, the court records will show this. In the case of a child whose parents are not married to each other, the births register points to the mother as sole guardian of the child.
If the father were to become guardian following entry of his name on the births register and the mother giving her consent in writing, there would be no public record of this transaction. One method of giving such a document the status of a public record would be to have it registered as a rule of court, in much the same way as an agreement between spouses for maintenance can be registered under section 8 of the 1976 maintenance Act. But registration with a court implies approval by the court; and if the court is to approve such a document it must, in arriving at its decision, consider the welfare of the child as the first and paramount consideration. While I would be prepared to consider a provision along these lines, there seems to me to be little distinction in kind, or in convenience to the parents, between a hearing to approve such a document and a hearing of the type envisaged by the proposed section 6A (3) of the Guardianship Act, at section 12 of the Bill.
The principle seems to be generally accepted that, where parents enter into an agreement which involves the provision of maintenance for a child, or a property settlement which will affect the child's interests, court approval is necessary to ensure that the child's interests are secured. Section 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976, is one example of a statutory provision on these lines. It is concerned with a child of the family; but section 20 of the Bill proposes a similar provision in the case of a child whose parents are not married to each other. If it is necessary to have court approval to a maintenance agreement or a property agreement which affects the child's material needs, how much more important is it to have court approval for what is, in practical terms, an agreement between the parents which would affect also his religious and moral, intellectual and social welfare by the appointment of a guardian.
In many cases the child, his mother and his father may have been living in a marriage-like situation where the father shares de facto guardianship with the mother. This does not mean, however, that, if the father's position as guardian of his child is to be put on a legal footing, it should be done in a way which circumvents the safeguards that a court hearing, however informal, offers for the child's welfare. The proposal in section 12 of the Bill as it stands will enable the court to give proper consideration to all the relevant factors in each case, including, in an informal hearing, whether the mother's consent was free and informed.
In regard to the inclusion in the section of guidelines for the court, it is not possible to formulate any such guidelines which will not either be so restrictive as to exclude otherwise suitable cases, or else so loosely expressed as to be capable of admitting otherwise unsuitable cases. The wide variety of circumstances that can arise from case to case means that it would be futile to attempt to guide the court in any more particular way than that set out in section 3 of the guardianship Act, which is in the following terms:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant ... etc., is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
The term "welfare" is defined in the Act as comprising the religious, moral, intellectual, physical and social welfare of the infant.
The two Government amendments, and the remainder of Deputy Shatter's amendments, in this group deal with the position of the father as guardian of his children following on the annulment of a marriage. The matters raised by these amendments fall into two areas and I will deal with the more straightforward of these first, that is, the question of ancillary orders in nullity proceedings. As I indicated the last day, I am considering the principle underlying Deputy Shatter's amendment No. 15. I again ask for this amendment to be withdrawn on the basis that if I consider that anything should be done in the context of the Bill I will come back to it on Report Stage.
I now come to the substance of the Government amendment No. 8 and Deputy Shatter's alternative amendment No. 9, both of which deal with the question of when a father should be guardian of the child of a void or voidable marriage by operation of law.
As I pointed out earlier, the Government amendment does not alter the substantive thrust of the Bill as it stands. It merely re-words the provisions of the Bill dealing with this matter so as to ensure that the desired result is achieved without running the risk that wider significance might be read into the provision than what is intended, having regard to the position of the family based on marriage under the Constitution.
The Government amendment, Deputy Shatter's amendment and the provisions of the Bill to which they relate do not deal with the establishment of paternity — that is dealt with elsewhere in the Bill — but only with whether a father should be a guardian in certain circumstances. As Deputy Shatter has acknowledged, this matter is complex enough as it is and we should endeavour to avoid making it more complex if that is at all possible. The Government amendment sets out the circumstances in which a father will be guardian by operation of law. If the identity of the father is put in issue, in this as in any other matter, that issue can be resolved by the courts.
In one respect at least, there seems to be little difference of principle between the Government's amendment No. 8 and Deputy Shatter's amendment No. 9: that is, in regard to voidable marriages. In relation to the case where a voidable marriage ceremony took place before the birth of the child, both amendments will ensure that the father would remain guardian after the marriage was annulled. The obvious justification for such a provision is that, since the marriage ceremony is presumed to be valid, the father has been presumed to be joint guardian and will have been acting as such, possibly up to the pronouncement of the decree; to declare at that point that he is no longer guardian would most likely unsettle the child and would be unjust. That being the case, then it is hard to justify excluding from the provision, as Deputy Shatter's amendment does, a father whose voidable ceremony of marriage took place after the birth of the child, since up until the decree of nullity that too will be treated as a valid marriage, and the father will have been, accordingly, presumed to be the child's legal guardian since the date of the ceremony.
The other point of divergence between Deputy Shatter's amendment No. 9 and Government amendment No. 8 concerns marriages which were, or have been found to be, void ab initio. The Government proposal is that, where the father went through the ceremony in the belief, held on reasonable grounds, that it resulted in a valid marriage, then he should be guardian of the child. This is based on the same justification as for fathers in voidable marriages: the father in a void marriage, and in many such cases the mother too, will have been acting on the assumption that the marriage ceremony was a valid one and that, accordingly, the father is joint guardian of the child. Subsection (b), incidentally, provides for a presumption that the father's belief in the validity of the marriage was reasonable.
Clearly, there is little practical difference between a petition for a nullity decree based on grounds which would make it void ab initio— indeed, the same petition may have alternative arguments on both grounds. In each case, the trigger for the nullity proceedings will usually have been the fact that unhappy differences have arisen between the couple; it is only then that lawyers are consulted with a view perhaps to obtaining a divorce a mensa et thoro, and the existence of possible grounds for an annulment emerges. It is reasonable that, in such circumstances, a similar rule regarding the father's guardianship should apply to both voidable marriages and those that are void from the start.
There are other possible circumstances where a marriage thought to be valid can turn out to have been void from the start much to the dismay of the parties, who may be very happy together; for instance, a case where the couple find out after years of "married" happiness that they are in fact within the prohibited degrees of relationship. Even though such a relationship never was a marriage, it had all the appearances of one to the parties, to their children and to the world at large. Once again, it is reasonable that in such circumstances the father should be guardian of the children by operation of law.
A line must be drawn at some point, however; and it is drawn in the Government amendment at the point where the father underwent the marriage ceremony knowing it to be a sham. It would not be right that a bigamist could, by knowingly entering into a bigamous so-called "marriage", be guardian of the children of that union by operation of law, while at the same time another married man, who sets up a new relationship with a woman not his wife and has children by her, is constrained, by his honesty in not going through a spurious marriage ceremony, to apply to court to become the guardian of his children. Hence the requirement that, in relation to void marriages, only the father who acted bona fide will be guardian by virtue of the proposed provision.
In order to avoid uncertainty in the day-to-day application of this provision, and for obvious practical reasons, the Bill, as I have already mentioned, provides that there will be a presumption in any such case that the husband did have a reasonable belief that the marriage was a valid one; this will enable the parents, the children and the court to act on the presumption that the father is guardian unless and until his mala fides have been determined by the court in which the father's guardianship is challenged.
These provisions are designed to lessen hardship and provide certainty in as many nullity cases as appropriate, and to avoid unnecessary recourse to the courts, with consequent trauma and expense to the parties and their children.
As I said the last day the difficulty with the discussion is that we are dealing with a number of amendments in areas of law which are particularly complicated. In trying to bring these matters to a conclusion may I point out to the Minister in a nutshell the problems with the current structure of the Bill. I invite the Minister in the context of Report Stage to consider tabling a similar amendment to amendment No. 15. I also invite the Minister to consider dealing with the issues which I am now going to raise. If the Minister is willing to do that I am prepared not to push any of these amendments to a vote on the basis that we can come back to them on Report Stage when the Minister has had a further opportunity to consider them.
If we take the amendment as tabled by the Minister and the structure of the Bill as it would emerge following the Minister's amendments being adopted — if they were to be adopted — a whole series of problems would arise. The first is the one which the Minister acknowledges in the context of nullity proceedings. At the end of a nullity hearing in the High Court in which a decree of annulment is granted, be it a void or voidable marriage, the reality is that a father may retain his rights as guardian but the court cannot currently make any of the ancillary orders. If there is a dispute as to which parent should have custody, the court cannot currently resolve it. If there is a dispute about visitation or access rights, the court cannot currently resolve it. If there is a dispute concerning the future education of the child between the parents, the court cannot currently resolve it. If there is a dispute with regard to income support payments to be made to the mother of the child, the court cannot currently resolve that in the context of making ancillary orders after nullity proceedings.
The parents are forced, if they cannot reach agreement, to resort either to the District or the Circuit courts and they can get caught up in ongoing litigation. The Minister has acknowledged that this is an area that should be dealt with in this Bill. Section 15 was designed to deal with that area. The Minister has indicated that he is willing to come back to the House, having considered this amendment, on Report Stage with his own proposal and I am prepared to accept that, but if he does not do so we will be tabling our own amendment to section 15.
The other matter I should like to raise in the context of this amendment is that, if a voidable marriage is declared void, the parties to that marriage will remain joint guardians of any children and if there is a reasonable belief that his marriage was valid on the part of the father and if the marriage is declared void, he will remain a joint guardian. The Minister may not be aware that in practice there have been a number of nullity cases in which decrees of annulment have been granted by our courts in circumstances in which at the time the decree of annulment was granted, one or both parties have already been involved in relationships with other people and have had children by other people. I can recall a case in which a decree of annulment was granted on the grounds of the husband's impotence at a time when the wife was residing with somebody else and she had two children by that other person. On the basis of the Minister's proposal in the context of that voidable marriage there would be an assumption that the "husband", the male party to the marriage which is annulled, is the guardian of his wife's children, even in circumstances in which the wife is living with someone else and has given birth to a child or children by another party. I believe there is a case for allowing joint guardianship to remain, or assuming it will remain after a voidable marriage. There is also a case, in amendment No. 15 which I tabled, for allowing the courts at the conclusion of nullity proceedings, where there is a dispute as to parentage — even in circumstances where the Minister's amendment with regard to voidable marriages is accepted — to resolve the matter.
If we take the case to which I am referring where marriage is annulled on the grounds of the husband's impotence and the wife has two children by somebody else at the date of the nullity proceedings, there is little point in leaving the legal position at the end of those proceedings in such a way that the former husband is assumed to be a guardian and the only orders the court can make are about guardianship or custody rights vis-á-vis the parties to the nullity proceedings. It may be necessary in the context of those proceedings to make a declaration as to parentage. It would seem highly unnecessary to leave the parties in a position whereby there would be a necessity for further court proceedings to clarify the status of the child and the guardianship rights of the former husband or the father of the child who may be a different person.
There is a need not merely to give the High Court, in nullity proceedings, ancillary powers to determine issues of custody, access and maintenance support payments. There is also a need, even in the context of what the Minister is saying, to give the High Court jurisdiction to determine parentage disputes or to make a declaration of parentage in circumstances where it is clear that the former husband in the marriage is not the father of the children. I ask the Minister, when dealing with amendment No. 15, to deal also with that issue. The effect of the Minister's amendment would be that the former husband would be regarded as guardian of children he may not have fathered. A great problem would arise in that case and the courts would not have jurisdiction at the conclusion of a nullity case to deal with that issue. On the one hand, there is an advantage in some instances in allowing former husbands of voidable marriages to retain guardianship rights but there is a necessity for a mechanism to allow those rights to be lifted in circumstances where the former husband is not the father of the child, without the parties having to resort to the other provisions of this Bill which allow a parentage proceeding to be brought in the Circuit Court. That is a portion of what should be dealt with in the context of nullity proceedings.
The Minister stated, in the context of void marriages, that there would be an assumption that the father entered into the marriage with a reasonable belief that the marriage was valid. I fail to see what that has to do with fathering. If he believed the marriage was valid but it was not reasonable to do so and nevertheless lived with the mother for some years and was involved in the rearing of his child, I do not understand why that father should be in a different category in his relationship to his child from the father who did have a reasonable belief that the marriage was valid. It seems we are going around in very complicated circles in dealing with this matter and that is not necessary.
Amendment No. 14 which I have tabled would cover that matter. If a marriage is void and the birth of a child of that marriage is registered and the mother consents to the father being guardian, this elaborate provision in relation to void marriages would not be necessary. It would not matter whether or not the father had a reasonable belief in the validity of his marriage. What would be more effective is that the child has been registered in the name of the father and the mother consents to him being a guardian. If the reasonable provision is to be included, even where there is an assumption that the belief is reasonable, in the context of nullity proceedings the mother could raise that as an issue and say: "This man knew he was not party to a valid marriage and he could not have reasonably believed he was." If the Minister is going to adhere to this somewhat illogical approach which was copied from British legislation there should, at the very least, be some formal jurisdiction conferred on the High Court to determine at the end of nullity proceedings, if the parties wished the court to do so, whether or not the father had a reasonable belief that the marriage was valid.
When marriages break down the unfortunate reality is that very often there is a great deal of vindictiveness between husband and wife. The wife and mother far too often seeks to exclude the father, even when the marriage is valid, from an involvement in the day to day care and upbringing of his child or children. I could see many cases arising in which nullity decrees are granted where it is alleged by the "wife" who is a party to a so-called void marriage that the father could not have reasonably believed that the marriage was valid. The decree will be granted simply because there is an anxiety on the part of the mother to exclude the father from an involvement in the decision-making process regarding the upbringing of his child or children. If the Minister's approach about reasonable belief is to be adopted, it would seem that unless the court is conferred with a jurisdiction, after nullity proceedings, to determine that issue, it will give rise to endless practical problems in the day to day workings of nullity cases in the High Court.
There are a number of problems inherent in the manner in which this Bill has been approached by Government, even taking into account the various amendments tabled by the Minister. It seems that all the arguments the Minister is making with regard to requiring some judicial authority to agree to a father becoming a guardian in circumstances where a child is born outside marriage are based on the concept that generally speaking, fathers of such children are somewhat inferior and unmeritorious people to whom a social stigma should be attached. It seems that is the premise behind this argument.
It would be ludicrous to suggest that where a mother has a child outside marriage — one can imagine the outcry this would cause — the courts would have to decide whether the mother was a proper person to act as guardian of her child. That has not been suggested and, indeed, it would be extraordinary for someone to suggest it. Yet is seems that when a mother has a child outside marriage and there is no dispute as to who the father is and if the father wants to act as guardian and the mother consents, that is not good enough; the courts must determine whether it is in the interests of the child's welfare that a particular father act as guardian. There would be an extraordinary public outcry if it was suggested that in order for an unmarried mother to have guardianship rights over her own child she must first of all have her background checked by the courts. Equally, there should be a similar outcry in the case of that suggestion being made in the context of unmarried fathers.
In so far as there are some fathers who should not have such rights — for example, where a child is born as a result of rape — it is quite clear under the amendments tabled that such a father would not have such a right because the mother's consent would not be forthcoming. The vast majority of children born outside marriage in Ireland today are born as a result of a consentient sexual act taking place between mother and father. If this Bill is seeking to ensure that the father meets his financial obligations, it should equally seek to ensure that the father is encouraged to have a full parenting relationship with his child where possible and that he should not be excluded from it. This Bill seeks to create a new stigma, the stigma of the unmarried father and it does everything possible to discourage fathers from exercising parental rights. A void marriage is a marriage which in law has never taken place so there is little logic in saying that a person who has gone through a void marriage should automatically get guardianship rights but that if somebody forms a relationship and does not celebrate a void marriage, they will not have guardianship rights. There is little sense in that approach and I would urge the Minister to have another look at the whole structure of these sections of this Bill with a view to seeing if we can remove the necessity for court applications, with a view to seeing if we can encourage the fathers in couples with a stable relationship to exercise their guardianship rights and with a view to seeing if we can confer on our courts the ancillary powers required to determine disputes in circumstances relating to the parenting of children following the granting of decrees of annulment.
I understand that Deputy Shatter, in the context of the response from the Minister, may not now be pursuing the amendments he has tabled at the moment. The Deputy raised important points for the Minister to consider on Report Stage, and I have brief observations on some of them. I previously indicated the opposition of The Workers' Party to the original amendment No. 14 tabled in the name of Deputy Shatter. I welcome the direction taken in the substitute amendment No. 14 in his name and in amendment No. 14a tabled by Deputy Taylor. Before we move on to the section Deputy Shatter might respond to some of the points that still concern me about this amendment. The amendment indicates that a father would assume full guardianship rights on the signing of consent by the mother. While the birth of a child can be a happy event for the parents it can also be a time of great trauma for the mother. It will be accepted that a mother in those circumstances is vulnerable and susceptible to pressure and indeed a lot of pressure. I am concerned that there should be some safeguard in the amendments. If these amendments are not being pursued this issue might be considered on Report Stage and perhaps the Minister and his officials will bear it in mind with a view to drafting a suitable amendment concerned with the procedures adopted to secure consent from a mother soon after a child has been born.
The Act envisages an informal procedure, a procedure as informal as is practicable and consistent with the administration of justice. To what extent does the Minister consider that there will be elements of formality in a procedure that is consistent with the administration of justice? A procedure currently in use in the High Court dealing with a change of name by deed poll involves a formalised document being lodged and once lodged and acknowledged by the registrar, it becomes a document of record. Is it something like this that the Minister has in mind in this application, or will there be more to it? If the procedure is to be informal we should not be too worried about putting the onus on the father in going through the applications on an informal basis where there is consent, and allowing a third party then to have the right to review. If on the other hand the procedure is to be somewhat more formal that may require recourse to legal advice and assistance. Then, in the absence of legal aid, the balance would have to be in favour of the amendment proposed by Deputy Shatter. These are my two questions. They relate first to the circumstances in which the consent would be sought from the mother and then to the ultimate procedures that would need to be gone into if one was to have recourse to the Act without the amendment in terms of registering a father's right to guardianship. I would like these matters explored a bit more before ultimate decisions are taken.
In the probate section of the High Court a person is appointed who works on behalf of the applicants. A member of the public can get the full assistance of the person dealing with the applications in that area. The applications are set out and the applicants are guided and advised on them. It involves virtually no expense to the person coming in. Will the Minister consider appointing such a person to the staff of the High Court to deal with the type of applications referred to as being as informal as is practicable but at the same time consistent with the administration of justice? That might be an easy way of overcoming some of the difficulties that Deputies Shatter and Taylor had when they said they were concerned that in the absence of comprehensive legal aid, people would have to go through the costly process of having to go back to court to get agreements registered, which to all practicable purposes are a foregone conclusion, because of the consent existing between the parties.
Amendment No. 15 is a very sensible amendment and I would be sorry if the Minister did not give it due regard on Report Stage. I support Deputy Shatter in that amendment and I recommend to the Minister that he take on this whole question of ancillary orders before we pass this Bill.
How do the amendments in the name of Deputy Shatter stand now?
I am just asking the Minister to give some assurances with regard to some of the other amendments. The Minister has given me an assurance with regard to amendment No. 15 and if I get the other assurances I will withdraw the amendments at this stage.
I assure Deputies Shatter and McCartan that I will look into the matters mentioned by Deputy Shatter and supported by Deputy McCartan. I will see what I can do on Report Stage.
On that basis I am willing at this stage to withdraw my group of amendments and to accept the Minister's amendments as tabled. We can come back to this aspect on Report Stage.
Amendment agreed to.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 7, to delete lines 41 to 46, and in page 8, to delete lines 1 to 22, and substitute the following:
(3) (a) The circumstances referred to in paragraph (b) of the definition of "father" in subsection (1) of this section are that the father and mother of the infant concerned have at some time gone through a ceremony of marriage and the ceremony resulted in—
(i) a voidable marriage in respect of which a decree of nullity was granted after, or at some time during the period of ten months before, the birth of the infant, or
(ii) a void marriage which the father reasonably believed (whether or not such belief was due to a mistake of law or fact) resulted in a valid marriage—
(I) where the ceremony occurred before the birth of the infant, at some time during the period of ten months before that birth, or
(II) where the ceremony occurred after the birth of the infant, at the time of that ceremony."
Amendment agreed to.
Amendment No. 9 not moved.
Section 9, as amended, agreed to.
Section 10 agreed to.
NEW SECTION.
I move amendment No. 10:
In page 8, before section 11, to insert the following new section:
11.—Section 5 of the Act of 1964 (inserted by the Courts Act, 1981) is hereby amended by the substitution in subsection (2) of "£60" for "£30".
Amendments Nos. 10 and 26 may be taken together as they are related.
Yes, they are interrelated. Amendment No. 26 seeks to insert the following new section which states that "section 23 of the Act of 1976 is hereby amended by the substitution in subsection (2) (a) (inserted by the Courts Act, 1981) of `£60' per week for `£30' per week".
Let me briefly explain the reason for these amendments. The Guardianship of Infants Act, 1964, in the context of District Court proceedings, currently allows the District Court to make a maintenance order for child support up to £30 per week. The Guardianship of Infants Act proceedings up to now for child support payments would only have been brought between husband and wife and the maximum a wife could get in the District Court from her husband for the support of children was £30. That has been the maximum since the Courts Act, 1981.
If the mother brought identical proceedings in the Circuit Court, the Circuit Court has an unlimited financial jurisdiction and can order a far higher figure which is based solely on the income and earnings of the parties. Similarly, under the Family Law (Maintenance of Spouses and Children) Act, 1976, the position is that a wife can bring maintenance proceedings against her husband in the District Court and get £30 a week by way of child support for each dependent child; she can get £100 per week for her own support. Under the same Act, if a wife goes to the Circuit Court she can get a maintenance order for child support that is unlimited in amount and, again, the amount would ultimately depend on the financial circumstances of the husband and wife. The Status of Children Bill seeks to extend to the mother of the child the right to seek a maintenance order for child support both under the Guardianship of Infants Act, 1964, and under the Family Law (Maintenance of Spouses and Children) Act, 1976. In doing so it effectively abolishes what is the Affiliation Orders Act, 1930. That Act currently allows an unmarried mother to go to the District Court to get an affiliation order made against the father of her child for a sum up to £30 a week and the unmarried mother can go to the Circuit Court and look for a higher figure which is, again, unlimited in amount.
The financial amounts that I am concerned about relate to the limitation currently imposed in the District Court's jurisdiction. The District Court's jurisdiction has been changed. In 1976 the jurisdiction conferred powers on the District Court to order sums up to £15 a week by way of child support. In 1981 the Courts Act increased it to £30 a week. Since 1981 there has been substantial inflation to the extent that the sum of £30 a week, as enacted in 1981, would be the equivalent of a sum just under £60 a week currently. What these amendments are designed to do, in the context of this Bill and of child support payments, is to increase the jurisdiction of the District Court to allow the court to order child support payments of up to £60 a week for the support of both an illegitimate child — as the child would formally be termed under the Affiliation Orders Act — and a legitimate child. In other words, a parent seeking a maintenance order should be able to get up to £60 a week by way of child support whether they bring proceedings against a parent who is a spouse or against a parent who is not a spouse.
I would hope the Minister could accept this amendment. The current position is that the majority of affiliation proceedings are normally brought in the District Court. Because the financial limitation on the District Court is now becoming somewhat outdated due to inflation some mothers are having to make a choice, either go to the District Court and get a lower order than the order to which they might be entitled, or go to the Circuit Court to get the higher order and, by bringing proceedings in the Circuit Court, incur far more legal expense than is necessary or should be warranted in a matter of this nature. What I am trying to do is bring the financial limits with regard to child support up to date, taking into account the approach adopted in 1976 and 1981 when it was acknowledged by this House that these limits on payments should be increased.
This is a simple amendment. It is designed to help unmarried mothers to secure the type of maintenance support order that will allow them to reasonably provide for children born outside marriage without forcing them to go to the Circuit Court. I suspect that if we do not make this change today the current financial limits are likely to remain in this area for a number of years. I hope this amendment will receive the support of all Members of the House.
As Deputy Shatter said, this is a sensible amendment and one I hope the Minister will accede to for all of the reasons he has outlined. Times have changed and the sum of £30 is now unrealistic. The point has been made that it is the ceiling figure, the maximum for which an application can be made in the District Court, forcing many simple and straightforward applications into a higher jurisdiction with the attendant extra legal costs. The Minister will be aware also of the very long lists of applications pending in the metropolitan area. Many of these applications are unnecessarily in the higher court and are more suitable to be dealt with in the lower District Court which is much more widely available to litigants. The Minister should be doing everything to ensure that the District Court jurisdiction is enhanced so that these applications can be kept within it. It is not outrageous to increase the ceiling figure from £30 to £60 a week in keeping with inflation. I hope the Minister will take this one on board.
I understand the main thrust of the amendment tabled by Deputy Shatter and I appreciate the support for it by Deputy McCartan. These amendments would double the maximum amount which the District Court has jurisdiction to award by way of maintenance for a child under the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses and Children) Act, 1976.
These amendments do not arise out of the need to remove discrimination in the law against children based on the marital status of their parents which is the purpose of the Bill we are debating this morning. The appropriate way of providing for an increase in the jurisdiction limits of the courts in matters of maintenance would be a maintenance Bill or a courts Bill dealing with jurisdiction matters in general. It would then be possible, as it would not be in this Bill, to consider also the maximum level of weekly maintenance which the District Court might award as between spouses. I would suggest that a practical test as to the appropriateness of an amendment to this Bill would be to ask oneself where would a practitioner be likely to search for a particular provision. In the case of maintenance limits the answer surely is not in an Act dealing with the status of persons but in one dealing with maintenance or the jurisdiction of the courts.
I do not believe the Minister believes what he is saying at the moment.
I most certainly do. I was going to suggest to the Deputy he should understand that I am not necessarily objecting to what is the main thrust of the amendment but the Deputy, as a practitioner, should surely recognise this is the wrong place for it. Also, the amendment only covers the children but not the spouse. The Deputy knows as well as I do that if it did the amendment would be outside the scope of the Bill. I am not opposing what the Deputy is saying. In fact I would agree. I am saying, and I am sure the Deputy will agree with me, that it is a matter for another day. It is something we should turn our attention to some other time.
To preserve one's sanity in this House one would have to have a sense of humour; if one did not, one would not survive very long. In this Bill we are dealing not only with the status of children but repealing the entirety of the Ilegitimate Children (Affiliation Orders) Act, 1930. This is the measure which made provision for unmarried mothers seeking support payments from fathers to require the fathers to contribute towards the children's support. That Bill, which was very modest in its aims, initially allowed an unmarried mother to get something like £2 a week. This was increased to £15 in 1976 and £30 in 1981. The measure with which we are dealing today is providing, in effect, the new maintenance provisions for child support with regard to children born outside marriage. My amendment will allow child support payments made in the District Court to be increased to a maximum of up to £60 a week, which is not exactly a royal sum. It is based on the approach adopted in previous legislation and takes into account inflation so nobody in this House can suggest that I am doing something new. It would also benefit spouses and I have no excuse to make for that. Currently, a wife can get only £30 a week in child support in the District Court, which has been the position since 1981. If this measure succeeds, it will allow both unmarried mothers and wives to get up to £60 a week in the District Court for child support. As the Minister correctly said, one cannot increase the £100 a week that a wife can get currently, but it would provide the District Court with more leeway and flexibility in maintenance cases and, in the context of maintenance cases brought by a parent of a child born outside marriage and by a spouse with regard to children born within marriage, that would allow the parent to seek a sum of maintenance that bears some realistic relationship to modern costs of minding a family and also bears a relationship to the income of the person against whom the maintenance order is sought. I do not believe that the Minister is really serious in what he is saying. As we see so often in this House — and in fairness my party are the sinners in this as much as the Government party — the Minister seems to have the endemic view that one should never accept any amendment put forward by somebody on the Opposition benches. He is advancing the most tenuous of reasons for opposing this amendment, suggesting that it is not appropriate. It is an appropriate amendment which will benefit children — that is what this Bill is about — and will benefit unmarried mothers and, incidentally, wives. It will also do something which the Minister should be anxious to do. Not only will it ensure that the many unmarried mothers who may currently feel they must go to the Circuit Court will be able to have matters dealt with in the District Court but it will also reduce the number of family maintenance cases going into the Circuit Court when marriages break down. As a result of this, wives may be able to get a more adequate maintenance order than was the case up to now. There will be the added assistance to the Minister and his Department of the reduction in some of the legal costs incurred when people have to go to the Circuit Court to get maintenance orders and are represented by the law centres. Some may now be able to do this in the District Court. This is a relatively simple provision, basically saying that in the case of an unmarried mother or of a wife wanting a child support order from the District Court, the maximum jurisdiction of that court, which originally in 1976 was £15, increased to £30 in 1981, would now in 1987, going into 1988, become £60. That is in the interests of the children concerned, of the unmarried mothers and wives so if the Minister is unwilling to accept this amendment, I shall put it to a vote.
Very briefly, I am not objecting to the thrust of this amendment. In his last contribution the Deputy has made some very sound arguments. I am not contesting the case he is making. However, as I have already said, this is the wrong Bill entirely and the wrong place. As a practitioner he should know that more than anybody else. I would refer the Deputy to the Bill about which we are now talking. The very first two lines state "Bill entitled an Act to equalise the rights of children and amend the law relating to their status ..." That is what we are talking about here and nothing else. A case has been made by Deputy Shatter which I would readily accept if we were discussing a maintenance Bill or a courts Bill here.
What the Minister is forgetting to tell the House when referring to the long Title of the Bill is that it is a Bill to amend the law relating to the guardianship of infants, to amend and extend the Family Law (Maintenance of Spouses and Children) Act, 1976 and to amend further the law relating to maintenance, which is in the long Title. The Minister is offering a most spurious argument on what should be a totally uncontentious issue.
Deputy Shatter, as I intended to do, referred a little beyond the first two lines of the long Title to the many other features which are to be considered, including maintenance. The next part of the Bill which we will be discussing and which has a great many sections, to one of which amendment 26 relates deals with maintenance. The Minister cannot seriously argue that this is the wrong place to be discussing this item. It is not. I would even say that as a practitioner and despite his having tried to entreat Deputy Shatter to abandon his good sense and return to his practitioner's hat for a moment.
I have never known the accusation of being in the wrong place to be levelled at sensible legislation, publicly or elsewhere, either in the law courts or in the Dáil. If it is doing the right thing, it will be welcome. Certainly, a proposal to increase the ceiling from £30 to £60 and in that way to aid the courts and the applicants who want to go to the most available, amenable, least costly and cumbersome court, the District Court, should be facilitated. The Minister has said he agrees with the whole idea, that his only reservation is that it might not be the right place to talk about it. I ask him to review that opinion. He might avoid this present tangle if he could give some indication as to when, for example, a courts Bill or a jurisdictions Bill would be before the House to deal with this and the many other outdated ceiling figures fixed within the jurisdiction of the District Court, particularly in the area of family law. If he gave some indication that he had something in mind that would mirror what Deputy Shatter is trying to do, perhaps we could retreat quietly to our corners. Otherwise, I am in support of Deputy Shatter.
We had legislation in 1971, 1976 and 1981. It is very likely that we will have a further Bill within, say, a matter of 12 to 18 months. I am not objecting to what Deputy Shatter wants. His arguments are good, they would impress me and are arguments that I would accept if we were discussing a different Bill. Deputy McCartan referred, as did Deputy Shatter, to the Title of the Bill. Let me read it out again, because they are missing out something important.
Bill entitled an Act to equalise the rights of children and amend the law relating to their status.
The next four words are "and for those purposes"— those being the purposes mentioned in the first two lines.
If the Minister does the right thing, nobody will criticise him.
It is not a question of doing the right thing; it is a question of doing the proper and sensible thing.
The entire Part IV of this Bill is headed "Maintenance". Following this discussion we will go on to deal with elaborate criteria which the Minister says the court should take into account in determining maintenance applications made by unmarried mothers. This Bill deals with the amounts the court can order and as somebody who is a practitioner in the area of family law, I can tell the Minister that most such practitioners look to family law legislation to find out the jurisdiction of the courts in family law matters. They do not go looking at courts Bills. In my naiveté I thought this amendment would get support across party lines, including the Minister. I hope all Deputies will support the view that 18 months is a very long time for an unmarried mother trying to get adequate support payments. My proposal would not cost the State anything; it might save it money. I am putting the amendment to a vote.
Question put: "That the new section be there inserted".
The Committee divided: Tá 67; Níl, 71.
Tá
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Begley, Michael.
- Burke, Liam.
- Carey, Donal.
- Clohessy, Peadar.
- Colley, Anne.
- Connaughton, Paul.
- Cooney, Patrick Mark.
- Cosgrave, Michael Joe.
- Creed, Donal.
- Crotty, Kieran.
- Cullen, Martin.
- Deasy, Austin.
- Deenihan, Jimmy.
- Desmond, Barry.
- Dukes, Alan.
- Enright, Thomas.
- Farrelly, John V.
- FitzGerald, Garret.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Gibbons, Martin Patrick.
- Gregory, Tony.
- Griffin, Brendan.
- Harney, Mary.
- Harte, Paddy.
- Hegarty, Paddy.
- Higgins, Jim.
- Howlin, Brendan.
- Hussey, Gemma.
- Birmingham, George.
- Boland, John.
- Boylan, Andrew.
- Bruton, John.
- Bruton, Richard.
- Kavanagh, Liam.
- Keating, Michael.
- Kelly, John.
- Kemmy, Jim.
- Kennedy, Geraldine.
- Kenny, Enda.
- McCartan, Pat.
- McDowell, Michael.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Molloy, Robert.
- Naughten, Liam.
- Nealon, Ted.
- Noonan, Michael.
- (Limerick East).
- O'Keeffe, Jim.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Quinn, Ruairí.
- Shatter, Alan.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Wyse, Pearse.
- Yates, Ivan.
Níl
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Burke, Ray.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCreevy, Charlie.
- MacSharry, Ray.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Kennedy, Michael.
- O'Leary, John.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
Tellers: Tá Deputies Farrelly and Flanagan; Níl, Deputies V. Brady and Briscoe.
Question declared lost.
Amendment No. 11 not moved.
Section 11 agreed to.
SECTION 12.
Section 12 and amendment No. 12 in the name of Deputy Shatter. Amendment No. 12 was discussed with section 9.
Amendments Nos. 12, 13 and 14 not moved.
Section 12 agreed to.
Section 13 agreed to.
Section 14 and amendment No. 15 in the name of Deputy Shatter. Amendment No. 15 was discussed with section 9.
Amendment No. 15 not moved.
Sections 14 to 17, inclusive, agreed to.
SECTION 18.
Amendment No. 16 in the name of Deputy Shatter. Amendments Nos. 16 and 18 are consequential. I suggest that they be discussed together if that is satisfactory.
I move amendment No. 16:
In page 11, line 37, to delete "section" and substitute "sections".
The second amendment seeks to insert a new section 5B in the Family Law (Maintenance of Spouses and Children) Act.
The section would read:
A court may when making a maintenance order pursuant to section 5 or 5A (inserted by the Act of 1987) of this Act for the support of a dependent child provide that the sum ordered to be paid by it be backdated to the date when the maintenance application was issued but no earlier where it is deemed appropriate that such order be made having regard to all the circumstances of the case and may in so doing order that any arrears of maintenance it accordingly deems to have accumulated be paid by the maintenance debtor by way of a lump sum by a specified date and may in ordering the payment of such lump sum give credit to the maintenance debtor for any relevant moneys paid by him to the maintenance creditor in the period between the date when the maintenance application was issued and the making of a maintenance order and any lump sum so ordered to be paid shall be deemed, for the purposes of section 9 and Part III of this Act to be a maintenance order.
Let me deal with this amendment in a non-legalistic way and explain its intent and why I believe it is desirable. Currently if maintenance proceedings or affiliation proceedings are brought by an unmarried mother and the court decides that a maintenance or support payment order should be made, the court under the existing legislation and under this Bill as phrased can make a support payment order to apply only on and from the date of the court hearing. Therefore, if an unmarried mother issues court proceedings and six weeks or six months later her case is finally heard, the support payment that the court can order will apply only from the date of the hearing of the case. It is quite usual that when affiliation proceedings are brought there is in the region of at least a three months' gap between the time proceedings are issued and when the proceedings are heard by the court. The case may not be heard on the day it is originally scheduled to be heard by a court. It may be that the court has too many cases on the court list. The case may not be reached and it can be put back for a number of weeks. Also on occasions, particularly in the context of proceedings brought by an unmarried mother, the person alleged to be the father of the child may engage in a variety of delaying manoeuvres to put off the date when the court proceedings will be heard. For example, a summons may be served on the father for a court hearing that is to take place in approximately eight weeks' time and the father may not communicate at all with the mother. On the day of the court hearing the lawyers acting for the father might suggest that the father is going to dispute paternity, and to ensure that there is not a row over that, might propose that blood tests or tissue tests be carried out. Everybody may agree to that and the case might be adjourned for a further two or three months while the necessary tests are carried out and the results obtained. Ultimately the case may come to the court and the person alleged to be the father may be so held to be and may be required to make payments. As things stand at the moment there is a distinct financial advantage for a father in such circumstances to seek to delay the court hearing. By delaying the court hearing you are delaying the time from which you must start making payments.
In most other European countries and under English legislation in the context of maintenance orders there is a provision which allows the courts to backdate a maintenance order to the date when the court proceedings were issued. In other words, if a court is asked to hear an application for maintenance support from an unmarried mother and the mother has issued her proceedings in July and they come up for hearing in November, the court can decide that the father should pay, say, £30 a week by way of child support from the date of the court hearing. In the context of this amendment the court will also be entitled to say that the sum of £30 a week is backdated to the date when the mother issued the summons. This amendment seeks to ensure that mothers do not lose out by fathers engaging in delaying tactics.
It is done also to confer a discretion on the court. For example, when the court makes an affiliation order under current law and what will be a maintenance order under this Bill, there may be circumstances where such an order is made but where the father, in the intervening period, has been making some support payments to the mother. This amendment allows the order to be backdated if necessary to the date of the order. It allows the court to give the father credit for the payments he has made. In doing so it makes the provision that if the court calculates that there is a sum of arrears of payment to be made between the time of the court hearing and the date of court proceedings being issued the arrears can be ordered as a lump sum payment. For instance, if proceedings were heard some four weeks after the summons was issued, which would be extremely quickly, and if the order was for £30 a week, the court could say that from that stage the father must pay £30 a week. Four weeks would have passed since the court summons was issued and that would mean that arrears of £120 had accumulated. Those arrears of £120 must be paid in a lump sum by a particular date. If during that period the father had paid, for instance, £30 to the mother as a contribution the court might credit him for that.
This amendment is designed to give greater protection to unmarried mothers and their children, to give the court a discretion with regard to making payments — a discretion which courts in other countries have — and to backdate them to the date when the summons was issued rather than to date them only from the date when the court hears the case. It is a discretionary matter and will depend on the overall financial circumstances. This would apply in the context of this amendment to support payment orders sought both by spouses for dependent children and by unmarried mothers for dependent children. I urge that the Minister accept this amendment, but having regard to the approach adopted by him on the previous amendment I suppose there is no chance of his doing so. Nevertheless, this amendment is designed to provide additional protection for unmarried mothers and to ensure that where it is decided by a court that there is a duty to make support payments for the children those support payments can be taken to apply from the date when proceedings were issued. While it is appropriate that such order be made, it does not oblige the court to do that. It gives the court a discretion to do it. It would provide welcome relief to many unmarried mothers to know that between the time when they bring their court proceedings and the case is heard they are not forfeiting those weeks with regard to any support they might get for their children.
The same position applies with regard to spouses where a wife seeks a maintenance order when her husband is paying her nothing at all and she has to wait six, eight or ten weeks for her case to get into court. It is reasonable that the courts should have a discretion to make an order to require the husband to make up payment to the wife of some of the moneys she would otherwise have received if the court had been able to hear the case earlier. Often the delay is the fault of neither the father nor the mother. It is the fault of a court system that is clogged up, overworked and unable to cope with the numbers of family law applications coming before it. I urge that this amendment be supported and I hope it will have the support of other Members of the House.
The substantive amendment here is amendment No. 18. This proposes to insert a new section into the Family Law (Maintenance of Spouses and Children) Act, 1976, providing for the backdating of maintenance orders in relation to dependent children to the date of application. This is a matter of general maintenance law and has no bearing on the equalisation of the rights of children or on the amendment of the law relating to the status of children.
The amendment is in substitution for one which was ruled out of order. I understand that this was because it would have covered maintenance orders not only for dependent children but also for dependent spouses, something clearly out of place in a Status of Children Bill. By retabling the amendment with a clause limiting its application to dependent children, Deputy Shatter has succeeded in making it technically in order, but that does not alter the fact that the substance of the amendment is appropriate to the general maintenance Bill, which this Bill clearly is not.
Whatever the merits of the notion of backdating maintenance payments — I do not propose to enter into debate on them — it does not seem to make very much sense that it should apply to maintenance orders for children only, and should be precluded from applying to orders where a dependent spouse is covered. I have no doubt that, if this proposal were enacted by way of Government amendment, it would be criticised in textbooks on family law as being anomalous and piecemeal. Maybe the Deputy will withdraw the amendment.
I rise to say yet again that this is an amendment of very practical import. It is based on the very real world that exists particularly in the metropolitan family law courts where a lapse of time from the initiation of proceedings to an ultimate determination can often run for weeks and months and on occasion when given appeal to the higher courts it can take years before an ultimate decision is taken and an order fixed. It would seem to be very desirable that in the interim period a successful applicant at the end of the day has some recourse to recover the moneys that would have lain in abeyance through the weeks and months that the proceedings were before the courts. A mother should not be punished for the intricacies and tortuous routes of our court proceedings and should not be punished for the very long lists of cases that exist. It is not so much the mother we are speaking about but the infant child and this is what the amendment seeks to address.
I cannot accept the Minister's suggestion that we are out of place. When you are doing the right thing, no one will trip you up and say: "This is not the appropriate legislation; it should be slotted in under the heading of another Act." I do not accept that argument. This amendment deals with maintenance which is a very practical instance that arises on a daily basis in our courts. For that reason I think the amendments should be supported.
However, I could not let the opportunity pass without saying that the previous vote shows an agreement to help the Government between parties other than The Workers' Party who commented on earlier Stages. I was disappointed that more members of Deputy Shatter's party were not here to support his amendment.
This amendment comes reasonably within the ambit of this Bill. Those of us who practise law know that these delays can adversely affect needy litigants and in simple terms this is what the amendment is designed to deal with. The Minister said it would be an anomaly if it was confined to the children covered by this Bill. That may be so and it would be a matter for the Minister to ensure that any further commensurate or co-equivalent amendments would also be made to cover spouses or other situations that would arise. The House is faced with the anomaly that a court is confined to giving maintenance for the child as from the date of the court order. That is an anomaly because the child and the problem were there as much before the hearing of the court application as they were after it. It behoves both the Minister and the House to address that anomaly and deal with it.
I am disappointed that the Minister was not more receptive to many of the amendments which are not political issues. They ought not to be controversial issues and the House and the political parties ought not to be dividing on them. They are not of that nature. They attempt in a small way to help people who have to avail of this legislation. I ask the Minister to accept these amendments in that light.
The first outstanding feature of the debate on this Bill in the Seanad was the high level of debate and the consistency in attempting to bring about the very best legislation in this area. The second outstanding feature of the debate was the willingness of the then Minister to listen, accept and recognise that no one side of the House has all the wisdom. I appeal to the Minister to make the Committee Stage of the Bill in this House as serious and constructive as it was in the Seanad by taking on board amendments which have been put down by people who have experience and expertise in family law and who know what the court systems are like. They also know the reality of what women's lives are like where it can be a matter of grim reality and poverty to be delayed through the court system to the extent that they are.
I ask the Minister to consider this amendment seriously and to see that it would strengthen this Bill. Not alone would the amendment cover situations where a woman can be faced with delays that are none of her fault but which she has to bear. Deputy Shatter has also included in his amendment the words "any lump sum so ordered". After the passage of the Bill through the Seanad, Cherish made the point that there would be many occasions when the availability of a lump sum would represent a more feasible and preferable means of obtaining maintenance for a single woman.
I do not want to delay the House but I ask the Minister to consider both of the points raised by Deputy Shatter and supported by other Members of the House. All of us want the greatest protection, recognition and acknowledgment of mothers and children and this amendment goes a long way towards ensuring that.
I would like to ask Deputies to understand that the Status of Children Bill is aimed at removing discrimination and the amendments we are discussing raise matters of general maintenance law. Deputies must understand that a line has to be drawn. Otherwise there would be no end to this Bill which covers several major areas of law, for example, guardianship, maintenance and succession matters. I can only reiterate that this is not the Bill for proposals of this kind.
The anomaly to which I referred is that if an application was made for dependent children alone, the proposal in the amendment would apply. If, however, the application was for dependent children and a spouse, the proposal would not apply. This anomaly serves to illustrate the inappropriateness of trying to do something in this Bill which does not belong to it. This is not to deny the persuasiveness of the arguments in favour of the substance of the amendments. I appreciate, as was said by Deputy Taylor, that these are not political or controversial issues but I hope that, in turn, the Deputy will appreciate the situation as I have outlined it.
One of the difficulties in this House is that Deputies are constantly urged by people outside this House to take legislating as a serious occupation. It is very difficult to take legislating, or the Committee Stage of a Bill, as a serious occupation when faced with the approach the Minister is adopting to the amendments tabled to this Bill. In reality, this amendment, together with the previous amendment which the Minister's party sought to vote against, would improve the position of children and improve the protections afforded to women, which are uniquely within the competence of the Bill. The Minister says that if the maintenance order was sought by a wife, she could not get a lump sum or a back payment for her support but only for the support of her children. When we come to deal with maintenance legislation relating to spouses a similar provision should apply to wives.
If you asked a wife who was not being supported by her husband and who had to go to court for maintenance if she had the possibility of getting no back payment ordered at all for the period between the commencement of the proceedings and when they were heard, or if she had the possibility of at least getting a back payment to cover the sum the court allocates to her by way of child support which would she prefer, she would say she would like to get some of the money that the court orders to be backdated for child support. If you asked an unmarried mother which would she prefer, a maintenance order which starts at the date when the court hearing takes place or a maintenance order which can be backdated to the time the proceedings commenced, giving her an entitlement to a lump sum payment for the intervening period, she would wish to get the lump sum payment.
This amendment seeks to deal with an aspect of maintenance law that relates to children generally. If I had tabled an amendment with regard to children born outside marriage, the Minister would have criticised me for introducing discrimination in a Bill that seeks to deal with the equality of children. Because I am extending the provisions to apply to children born inside marriage the Minister says I am dealing with a measure that can only be dealt with by way of spousal maintenance. If children are to be placed in a position of equality we have to deal with both situations.
I am disappointed that the Minister did not accept the previous amendment and I am astonished that he will not accept this amendment. We are talking about enacting legislation that would cost the State nothing but would merely provide a more efficient and sensible legal mechanism to afford protection for children and mothers. That is the stuff of many speeches delivered by Members outside this House. It is a favourite topic of the day. We are all in favour of providing protection for mothers and children and the measures in this Bill try to increase that protection.
I find it incomprehensible that the Minister will not accept this amendment. The objections he raises to it are spurious. He suggests that because we can only do part of the job today, we should do none of it. I would prefer to do part of it and, in the context of children born outside marriage, this is all the job we can do. The continuous harping that this legislation does not deal with maintenance is little short of fanciful. We just nodded through an entire section running to a page and a half that deals solely with maintenance and the criteria the courts are to apply in determining maintenance applications. As the Minister clearly will not accept this section I will put the amendment to a vote.
Deputies have to accept that this Bill is not about improving the position of spouses, although no one will deny that improving their position is a good thing. This Bill is about equalising the rights of children. If we were to start making changes in the substantive law in the various areas the Bill covers there would be no end to the Bill.
It would be good legislation.
Later on the Minister will be asking this House to accept an amendment relating to succession law which will change the succession law and does not just equalise the position of children but brings in new provisions. There are new provisions of law throughout this Bill. There is no logic in the Minister's argument beyond the usual logic — which I think means that this House is taken less seriously by the people and deservedly so — that a Government Minister never dares to accept an amendment tabled by a Member of the Opposition. I formally put the amendment.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 71; Níl, 59.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Kennedy, Michael.
- O'Leary, John.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCreevy, Charlie.
- MacSharry, Ray.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- Noonan, Michael J.
- (Limerick West).
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Begley, Michael.
- Boland, John.
- Boylan, Andrew.
- Bruton, John.
- Bruton, Richard.
- Carey, Donal.
- Clohessy, Peadar.
- Colley, Anne.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Creed, Donal.
- Cullen, Martin.
- Deasy, Austin.
- Desmond, Barry.
- Dukes, Alan.
- Enright, Thomas.
- Farrelly, John V.
- FitzGerald, Garret.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Gibbons, Martin Patrick.
- Griffin, Brendan.
- Harney, Mary.
- Harte, Paddy.
- Hegarty, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Keating, Michael.
- Kelly, John.
- Kemmy, Jim.
- Kennedy, Geraldine.
- Kenny, Enda.
- McCartan, Pat.
- McCoy, John S.
- McDowell, Michael.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Molloy, Robert.
- Naughten, Liam.
- Nealon, Ted.
- O'Keeffe. Jim.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Quinn, Ruairí.
- Shatter, Alan.
- Sherlock, Joe.
- Spring, Dick.
- Taylor, Mervyn.
- Wyse, Pearse.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Briscoe; Níl, Deputies Flanagan and Farrelly.
Question declared carried.
Amendment declared lost.