Dáil Éireann díospóireacht -
Tuesday, 12 Mar 1991

Vol. 406 No. 3

Private Members' Business. - Child Abduction and Enforcement of Custody Orders Bill, 1990: Report and Final Stages.

Mr. McCartan

I move amendment No. 1:

In page 4, line 35, to delete "High Court" and substitute "Circuit Court".

The issue here is simply to insert into the definitions section the proposition that the primary court of jurisdiction should be not the High Court as suggested but that the Circuit Court should be given primary responsibility to deal with these applications. The reasons for that are straightforward in so far as it is as readily available a court as the High Court and it is the court to which we have given the primary responsibility for dealing with other matrimonial matters. In Dublin where invariably, if not inevitably, all the applications under this legislation will be dealt with, there is located a fully equipped and very adequate system of courts policed and presided over by judges of competence, knowledge and expertise in the general area of custody and child care. For those reasons I argue that the Circuit Court should be given preference.

In addition, the Circuit Court is much less expensive. I acknowledge that while the majority of these applications will be brought through the good offices of the law centres, if they can cope, nonetheless, for them the procedures, the rules and practice and the workload will be much easier and in the long term less expensive for the State to operate.

The Minister agreed to look at this matter. Indeed, if I remember correctly he agreed to look at many different matters we raised on Committee Stage for Report Stage. I am somewhat dismayed, if I may note by general remark, that I do not see any Report Stage amendment emanating from the Minister and that does not bode well. This was one of the matters, after persuasive argument from Deputy Barrett and me, but especially from Deputy Barrett, who put this proposition on Committee Stage, where we believed the Minister showed an inclination towards the good reasoning behind it. I am sorry the Minister has not taken the initiative here but in view of the opportunity presented to him on Report Stage, perhaps he would accept the idea that as a matter of good practice, good economics and good effective administration — legal and otherwise — the Circuit Court should, in the circumstances, be given the primary responsibility. Clearly, if any matters of dispute are not dealt with to the satisfaction of either of the parties or the litigants in the Circuit Court, they have the right of appeal and redress to the High or Supreme Courts.

Mr. S. Barrett

I raised this matter also on Committee Stage but I did not table an amendment on Report Stage because I had not seen any amendments and I assumed the Minister, having listened to the arguments put forward the last day, would have agreed in this instance that it would be a good idea to have these cases dealt with in the Circuit Court. In line with what Deputy McCartan has said, leaving aside the cost factor and other factors of convenience and so on, it is essential that we have uniformity in matters appertaining to family and children. For that reason when the Judicial Separtation Bill was going through the House we made provision for Circuit Court hearings. The whole object of the exercise was to have in place judges who were used to dealing with family law matters which, in my opinion, is a very sensible arrangement.

Because he did not give us any reasons the last day that this legislation should refer to the High Court I thought the Minister would agree to our suggestion that we should bring uniformity into the whole area of family law and matters dealing with children, amend the legislation as presented after Committee Stage and provide in the interpretation section that the word "court" would refer to the Circuit Court.

I want to stress that it is vitally important that we get away from the said way in which we have dealt with certain aspects of our law. Circuit Court judges deal with family law matters every day of the week and I have not heard any complaints about the ability of these people to deal with such issues. It is in the interests of the public whom we serve that there is uniformity in this area and that we have judges who deal consistently with family law matters so that they get a feel for the type of problems which arise in different areas.

With regard to child abduction, at the end of the day we are dealing with children who, unfortunately, may be the victims of broken marriages or whatever. For that reason, judges should have a feeling for the type of problems with which they may be confronted. Like Deputy McCartan, I am extremely disappointed the Minister did not see fit to introduce his own amendment. Therefore, I ask him to agree to the amendment submitted by Deputy McCartan.

Mr. Bell

I support Deputy McCartan's amendment for the reasons outlined by my colleagues. However, there is another important point I should like to make. People believe that the situation in the High Court and the Four Courts in Dublin is chaotic enough from a physical point of view without sending more cases of this nature into the building. People would feel much more at ease if these sensitive problems were dealt with in their own localities; for example, in Drogheda or Dundalk in the case of County Louth. People in rural areas can be in dread of the High Court. In view of the sensitive nature of these cases it is important for women in particular to have their friends and family close by. Reference has been made already to the cost of transporting people to Dublin, Limerick or Cork. This is ridiculous. Like my colleagues I believe these cases could be adequatley dealt with by the Circuit Court. I support the amendment.

Minister of State at the Department of Justice (Mr. N. Treacy)

I am very sorry my colleagues are disappointed but they will recall we had a very full debate on Committee Stage about the use of the High Court and no other court to hear and determine applications under both The Hague and Luxembourg Conventions. I indicated I would consider again what Deputies had said in favour of giving the Circuit Court jurisdiction, which I have done. However, for the following reasons I am satisfied that the High Court only should be empowered to deal with Convention cases.

First, it is normally the High Court which deals at present with cases where a child is abducted to Ireland by a parent and the other parent seeks return of the child. In order to secure the immediate welfare of the child, that court may exercise the jurisdiction it has in relation to wardship or proceedings by way of habeas corpus. It might, of course, make orders, as appropriate, under the Guardianship of Infants Act, 1964, but the essential point is that the High Court is experienced in child abduction cases which have an international dimension and in which constitutional questions may arise.

The Law Reform Commission in their report, LRC 12-1985, recommend that jurisdiction under the Conventions be vested solely in the High Court. They considered whether the Circuit Court should also be given jurisdiction but decided not to recommend this because it is the High Court which has a unique jurisdiction in habeas corpus applications and in the constitutional issues which may arise in these cases.

In the context of the Conventions we are obliged to provide interim or provisional measures to secure the welfare of the child and to prevent prejudice to interested persons or changes in the circumstances relevant to the determination of applications under the Conventions. Sections 12 and 23 of the bill give the High Court power to make interim orders for these purposes. The High Court, because of its experience in such matters, particularly as to wardship and habeas corpus proceedings, and because it is always available, will be ideally placed to carry out the obligations under the Conventions in this area.

The Conventions also set out grounds for refusing the return of a child which generally have regard to what is best for the child. I should like to refer, in particular, to certain of those grounds. The Hague Convention provides in Article 20 that the return of a child may be refused if it would be contrary to the fundamental principles of the State relating to the protection of human rights and fundamental freedoms. Under the Luxembourg Convention, recognition and enforcement of a foreign custody decision may be refused on the ground, provided for in Article 10 (1) (a), that the decision is manifestly incompatible with the fundamental principles of the law relating to the family and children in the State.

These provisions in the Conventions will, in effect, enable the High Court to refuse to order the return of a child where this would be unconstitutional. In the light of these provisions in the Conventions to which the Bill gives the force of law, I think Deputies will agree that there really is no choice regarding the court which should have jurisdiction in this country to deal with Convention cases. The only court which should have that jurisdiction is the High Court as provided for in the Bill.

In any event, Deputy McCartan's amendment would be inoperable since the amendment has no venue provision as regards the exercise of the Circuit Court's proposed new jurisdiction. Regrettably, I will not be able to accept the Deputy's amendment.

Mr. McCartan

I will take the Minister's reasons for not accepting my amendment in reverse order. The third and most succinct reason he gave is that it would be inoperable because there is no venue provision. However, equally there is no reference to a venue in the Bill in the case of the High Court. Section 2, the interpretation section, merely states that the court means the High Court. There is no reference to a venue for the High Court. If this is the case, why should there be a need to mention a venue for the Circuit Court? Both courts have jurisdiction throughout the country in all areas. Therefore, I do not understand how the substitution of the word "Circuit" for the word "High" would render that provision inoperable. It would simply mean that references to the court in the legislation would mean Circuit Court and not the High Court in the first instance.

The second reason he gave was that there are fundamental grounds upon which a court here might refuse to allow a child to be returned, on the basis of infringement of the constitutional or fundamental rights of a person. The suggestion here is that the appropriate court to deal with such matters is the High Court. That is a reasonable proposition but my amendment would not deny the High Court the opportunity to have a say in all of these matters. I am simply arguing that the most convenient court in terms of accessibility, the necessary facilities and resources, particularly in the Dublin area where most if not all of these applications will be heard, and experience in dealing with matters of custody and care of children is the Circuit Court. Therefore, there should not be any difficulty. Any matter which is not resolved to the satisfaction of the parties concerned can be taken, by way of simple appeal, to the High Court, which will finally adjudicate on the matter, or by way of case stated by the Circuit Court judge to the Supreme Court, the highest court in the land, which will adjudicate on matters of fundamental importance. The second objection referred to by the Minister can be overcome and should not cause any problems.

The first reason given by the Minister for not accepting my amendment is that the current practice is for the High Court to deal with matters of inter-State child abduction, child care and the return of children. I accept that this is so. As he said, complaints can be taken before a court either by way of wardship application, that is making the infant a ward of the court, which is reposited exclusively in the High Court, or by way of habeas corpus, which is to secure the body before the court. Both of those are jurisdictions exclusive to the High Court and cannot be dealt with elsewhere in the first instance. That does not get away from the fact that we are introducing here a whole new process which is a creature of statute, and there is no reason, in doing that, we cannot give the statutory powers to the Circuit Court. There would be some merit in the Minister's argument against the Circuit Court dealing with these matters if heretofore it never had to decide issues dealing with the care, custody and wellbeing of a child, issues we identified the last day as being the paramount consideration. Every day of the week the Circuit Court decides who should have custody and who should care for a child. The only added dimension here is the international feature, the fact that the child is coming from or going to another country. What is the difficulty? Are we suggesting that the Circuit Court is incapable of adjudicating inter-State matters or of understanding the interplay of the laws and conditions of one country vis-á-vis this country? That is not a very ingenuous argument to advance. It is one that has not due regard for the competence of the Circuit Court Judiciary and the practice in those courts.

The Minister has treated this matter somewhat flippantly. He has not given enough regard to the very good reasons advanced for this proposition on Committee Stage, reasons relating to accessibility, availability, recognition of the competence of the court and its facilities and the fact that it would prove a far more effective and less costly court in these matters. For those reasons I regret the Minister's attitude and I therefore ask that the question be put.

Question: "That the words proposed to be deleted stand" put and declared carried.

Amendment declared lost.

Mr. McCartan

I move amendment No. 2:

In page 7, between lines 35 and 36, to insert the following:

"11. —In deciding all applications under this Act, the Court shall have regard to the welfare of the child as the first and paramount consideration.".

This amendment arises form a debate held on Committee Stage when I moved a broader amendment which stated there there is nothing in the Bill preventing the court from returning a child to another state merely because the return was not required by the convention. I went on to suggest that in dealing with such applications the court shall have regard to the welfare of the child as the first and paramount consideration.

The Minister of State in response to that amendment identified that the first part of the amendment was somewhat superfluous because of the principles incorporated elsewhere in the legislation and in the conventions. However, he did not convince me that it was superfluous and unnecessary to include the proposal for which I now argue on Report Stage, namely, that the legislation should have incorporated into it a declaration that the underwriting principle for a court in all these matters shall be that the welfare of the child be the first and paramount consideration. I suggest that that should be part of our legislation. The Minister did not see the reason for it on Committee Stage but said he would look at the matter before Report Stage. Again the absence of an amendment from the Minister in this area augurs poorly and not very optimistically for this debate.

My simple reason for putting forward this amendment is that the Law Reform Commission recommended it. The Minister's report to that is there is no need for it because it is included in the Guardianship of Infants Act, 1964. My answer to that is that the Law Reform Commission must have been well aware of that fact but nonetheless said it should be incorporated in this legislation. I instanced the previous statutory practice where in passing the adoption legislation in 1974 the House incorporated into the legislation, ten years after the passing of the 1964 Act, a proposition that in regard to adoption matters the paramount consideration should be that of the child.

The Law Reform Commission believe this is necessary and the House, when dealing with the custody and care of children in the context of adoption ten years after the passing of the Guardianship of Infants Act, believed it was necessary. I hope the Minister does not repeat the rather vacuous proposition he put forward on Committee Stage, that because it is included in the 1964 Act the matter is covered. There should be no difficulty on the Minister's part in accepting the amendment. My proposition is that it makes clear that as far as the working of this piece of inter-State legislation is concerned, those coming here from another country and looking at the basic legislation can have no doubt where our courts are expected to stand in adjudicating on these matters, namely, that the child will be the paramount and first consideration. From the point of view that we are dealing with inter-State legislation, where foreigners and outsiders will be looking at our basic laws, they will have a clear and concise declaration of what is the first and paramount consideration in these matters. I suggest for those reasons that this amendment should be acceptable to the Minister at this stage.

Mr. N. Treacy

Deputy McCartan's amendment on Committee Stage concerned cases other than those covered by the Hague Convention. However, the amendment now proposed concerns only cases covered by the Hague and Luxembourg Conventions. The amendment, therefore, is quite different in effect from that proposed on Committee Stage because it would mean that in deciding all applications under the conventions, the High Court would be required to have regard to the welfare of the child as the first and paramount consideration. In putting forward his new proposal Deputy McCartan would appear to misunderstand the nature and purpose of the conventions.

Firstly, the conventions, which are being given the force of law by the Bill and will therefore become part of our domestic law, are based on the premise —set out clearly in the preambles to both conventions — that where the custody of a child is at issue, the child's welfare is of overriding or paramount importance. The principle in both conventions is that where a child has been abducted across international frontiers its welfare will normally be best served by its immediate return to the State from whence it was abducted. While both conventions make it clear that the substance of custody decisions is not to be reviewed in the country to which the child has been abducted each convention has detailed provisions for the purpose of safeguarding the interests of a child to cover those cases where it is manifest that his welfare would not be served by his return to the country from which he was abducted. The Minister for Justice dealt at length with these on Second Stage and the explanatory memorandum which accompanies the Bill also deals with those provisions at length.

The provisions briefly are the following. In the case of the Hague Convention return of the child may be refused if it is demonstrated that the child is settled in its new environment, or that there is a grave risk that the child's return would expose him to physical or psyschological harm or otherwise place the child in an intolerable position, or where the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of his views. Of particular importance in the Irish context because of our constitutional requirements in Article 20 of the convention under which return of a child may be refused if it would be contrary to the fundamental principles of the State relating to the protection of human rights and fundamental freedoms.

In the case of the Luxembourg Convention the welfare of the child will be safeguarded principally by Article 10 (1) (a) which provides grounds for refusal of recognition and enforcement of a foreign custody decision if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed. Since the principle that the welfare of the child is paramount is a fundamental principle of our family law this will be applied where an Irish court is the court addressed. Article 10 (1) (b) also protects the welfare of the child by providing that a State may refuse to return a child if it is found that, by reason of a change in circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the child's welfare.

In the light of these very specific provisions in the conventions which are founded on the paramountcy of the child's welfare it is not necessary, nor indeed would it be proper, to require our High Court to deal with all applications under the conventions on the basis proposed in the amendment. In many cases the welfare of the child will be secured by an immediate order for its return under the speedy measures of the Hague Convention or the measures of the Luxembourg Convention which facilitate enforcement of foreign custody decisions. In other cases were grounds for refusal are claimed by the defendant the specific provisions in this regard set out in the conventions will be looked at by the High Court.

The amendment fails to address itself to the conventions which, as I have said, deal specifically with the welfare of the child. I do not support the amendment which I consider to be misconceived. I have, as I promised on Committee Stage, given the question of the welfare of the child in non-convention cases further consideration.

I have looked again at the Law Reform Commission report and in particular the case law in this area since that report was published. The point made in the commission's report, LRC 12-1985, is that certain judgments to which they refer do not provide a definitive statement of the circumstances in which an Irish court will order the return of a child to the jurisdiction whence it came without examination of the merits of the case. The report states that the judgements indicate that the principles applicable may be affected by the degree of comity with a particular jurisdiction. The report emphasises, however, that the courts here are also bound to have regard to the interests of the children in abduction cases because section 3 of the Guardianship of Infants Act, 1964, requires that the welfare of the child must be the first and paramount consideration in taking decisions on custody.

The commission considered that our courts should not decide cases other than on the basis of their view of the welfare of the child. The commission were speaking of cases other than those covered by the Hague Convention. In those cases outside the Convention the commission made their recommendation that the court should be required to have regard to the welfare of the child as the first and paramount consideration. They suggested that the restatement, in legislation giving effect to the Hague Convention, of the principle contained in the Guardianship of Infants Act, 1964, should be effective to remove doubts created by recent case law on this matter.

I should like to point out there have been developments in the courts since the commission's report was published some years ago. In recent cases concerning child abduction the courts have emphasised that the welfare of the child is indeed the first and paramount consideration in proceedings relating to custody. The existence of a foreign custody order does not necessarily determine the issue although it may be a strong factor having regard to the doctrine of comity of courts. Clearly, the fact that a custody order has been made by a foreign court does not prevent the issue being reopened before an Irish court and careful consideration being given to the evidence, in particular that concerning the welfare of the child.

I am satisfied, having looked at the various cases on the matter, that there is no uncertainty in the law about the application of the welfare principle enshrined in the Guardianship of Infants Act to child abduction cases. On the other hand, to insert the amendment which was proposed on Committee Stage would, it seems to me, call into question the general applicability of section 3 of the 1964 Act in cases relating to the custody of children. Such an amendment, as I have explained, is not necessary and it could lead to difficulties which do not exist at present as to the interpretation of section 3 of the 1964 Act. The amendment before us, therefore, fails to address itself to the conventions which, as I said, deal specifically with the welfare of the child. I do not support the amendment which I consider to be misconceived.

Mr. McCartan

I will be very brief, we are short of time and I should like to hear the Minister's response to our next amendment before we conclude the Bill. The Minister borrowed the preamble to both conventions suggesting that it lays the matter beyond doubt but it should have been quoted at length because it would then be seen that it is nothing more than an aspiration which is motivating the contracting partners to move in the area. It states: "firmly convinced that the interests of children are of paramount importance in matters relating to their custody". That is the motivating factor and no more. The issue about which the Law Reform Commission talked was that in specific disputes which can arise in deciding what is in the best interests of the child, the position of the child should be paramount. That is the point but, unfortunately, the Minister has missed it. I must ask that the question be put.

Amendment put and declared lost.

Mr. S. Barrett

I move amendment No. 3:

In page 16, between lines 8 and 9, to insert the following:

"37. —(1) It shall be an offence to take, send or keep a child, under the age of sixteen years, who is habitually resident in the State, out of the jurisdiction in definance of a court order, or without the consent of each person who is a parent or guardian or to whom custody has been granted.

(2) Where a person has been charged with an offence under subsection (1), it shall be a defence to show that the defendant—

(i) honestly believed the child was over sixteen years of age,

(ii) obtained the consent of the requisite person or of the court,

(iii) has been unable to communicate with the requisite persons, having taken all reasonable steps, and there was reasonable grounds to believe that their consent would have been forthcoming, or

(iv) being a parent, guardian or person having custody of the child had no intention to deprive others having rights of guardianship or custody in relation to that child of those rights.

(3) No prosecution of an offence under this section shall be brought without the consent of the person in breach of whose rights that child was abducted out of the jurisdiction.

(4) A person found guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding five years or to both.".

This matter was also referred to on Committee Stage and the Minister gave an undertaking that he would reconsider the whole position for Report Stage. The Minister does not appear to have tabled an amendment, perhaps he will accept mine? Somehow I have my doubts, judging by the smile on his face.

We debated this matter on Committee Stage. The Minister refers to the Law Reform Commission report when it suits him, as he did in relation to the High Court, but he should now refer to Recommendation V of the same report which clearly indicated that the commission recommended that the offence involving the abduction of children should be an offence in relation to those under 16 years of age.

Deputy McCartan's amendment — and mine — make special provisions where certain circumstances prevail where it would be inconceivable that one would press ahead with charges; those are outlined in subsection (2) and (3) of the amendment. It is important that this House, as I said before, clearly indicated, loudly and clearly that we regard child abduction as a heinous offence. It should be regarded as a criminal offence. We should not pussyfoot around this matter, the reality is that we are not talking about simply the question of marriage breakdown and perhaps a child being torn between parents. If there is a misunderstanding, it is covered in subsection (2) of the amendment. It is important that the House makes it clear that in circumstances which are nothing short of kidnapping those responsible should be charged and certain penalties imposed. For that reason — and because of the shortage of time — I ask the House to support the amendment in my name and the amendment tabled by Deputy McCartan as they are in accordance with the recommendations of the Law Reform Commission.

Mr. N. Treacy

As I undertook to Deputies on Committee Stage I have looked at this matter again. Let me say at the outset that my first priority in this legislation — apart that is from enabling us to ratify these two very important conventions — is the welfare of the child. I have examined the amendment from the viewpoint of whether what is proposed will be to the advantage of the child or children at the centre of these unfortunate cases of abduction.

It is also important to note that the amendment is based on a change in the law in England which was brought in because it was thought that the offence of kidnapping did not apply as between a parent and child. I very much doubt if that legislation would have been regarded as necessary if the House of Lords decision in R v. D, which decided that the offence of kidnapping did in fact apply as between a parent and child, had been available at the time.

One of the arguments I advanced on Committee Stage against a special offence of child abduction was that it might be counter productive — that it might deter a parent who has abducted his or her child from returning voluntarily, and eliminate any possibility of reconciliation, or in the absence of a reconciliation, an agreed solution to the family's problems. That argument was countered by the proposition that it would be up to "the wronged spouse" to consent to the prosecution. I have thought about this counter-argument since and it leaves me very uneasy. It would be like the sword of Damocles in the hands of the wronged spouse and rather than assist in the voluntary return of the child or be an aid to reconciliation it might very well have the opposite effect.

The criminal law in family matters can be a very blunt instrument and, in spite of the defences listed in the amendment, prosecutions could occur which might result in far more harm than good. Not all abductions will be totally blameworthy. The Conventions themselves recognise that there will be cases where the child may not be returned to the country from which it has been abducted.

An Ceann Comhairle

As it is now 10.30 p.m. I am required to put the following question in accordance with an order of An Dáil of this day: "That Fourth Stage is hereby completed and that the Bill is hereby passed."

Question put and declared carried.