I move: "That the Bill be now read a Second Time."
The Bill is one of a series of important law reform measures promised in the Programme for a Partnership Government and for which I have responsibility as Minister for Equality and Law Reform.
This Bill will enable the State to ratify two international conventions — the Rome and New York Conventions — which will assist claimants in Ireland who wish to recover maintenance from persons living abroad. The Bill will also assist foreign claimants who wish to enforce their entitlements to maintenance in Ireland.
The Family Law Bill, 1994, which is currently before this House, contains new provisions which strengthen the power of the Irish courts to enforce domestic maintenance orders. However, the problem of enforcement is not just a domestic phenomenon; it has an international dimension also. Before turning to the details of this Bill, it may be helpful to give the House some background information on the law concerning enforcement of maintenance orders to date. Under the common law, as originally understood, an order for periodic maintenance payments made in another country could not be recognised or enforced in Ireland. Similarly, Irish maintenance orders could not be enforced abroad unless there was an agreement in place which was based on reciprocity. As a consequence the maintenance creditor was left with two options — either to institute time consuming and expensive legal proceedings in the relevant country or, as was more often the case, to take no action at all.
This position was improved by the Maintenance Orders Act, 1974. That Act enabled the State to enter into an agreement with the United Kingdom for reciprocal recognition and enforcement of maintenance orders. The agreement also provides a system to assist maintenance creditors. There are no fees or lawyers required. This system has worked well, and will remain undisturbed by the provisions of the Bill.
The position in relation to other European Union countries was advanced considerably in 1988 when Ireland ratified the European Union Convention on Jurisdiction of Courts and Enforcement of Judgments in Civil and Commercial Matters. This convention is generally referred to as the Brussels Convention. It provides a simple and standardised legal basis for reciprocal recognition and enforcement of civil and commercial judgments, including maintenance orders, by the courts of the member states. The procedure for recognition and enforcement of these judgments is set out in the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988.
Last year, I initiated the Jurisdiction of Courts and Enforcement of Judgments Act, 1993, to give effect to another convention, the Lugano Convention, which provides for similar arrangements between member states of the European Union and of the European Free Trade Association. The net effect of these two Acts is that Irish maintenance orders can now be recognised and enforced in all European Union and EFTA countries, with the exception of Austria and Iceland who have yet to ratify the Lugano Convention.
However, the difficulty faced by maintenance creditors who wish to avail of the Brussels or Lugano Conventions is that they do not receive any administrative assistance from the State. In other words, while the legal obstacles have been removed the administrative obstacles remain. Effectively, the maintenance creditor is left to his or her own devices, and has to travel to, or engage a lawyer in, the country involved, in order to avail of the simplified enforcement mechanisms provided for in the conventions.
The Rome Convention, which was finalised during the Irish Presidency of the Council of Ministers in 1990, is intended to address this problem as it affects European Union member states. The main feature of the convention is the establishment of central authorities in each member state which, in co-operation with each other, will assist maintenance creditors in having maintenance orders recognised and enforced. The central authorities can deal with both incoming and outgoing applications, help and documentation, ascertain the whereabouts of debtors and ensure that moneys due are paid over.
The Rome Convention does not come fully into force until it has been ratified by all 12 member states, but it can apply between individual member states which have ratified it prior to that date.
The other convention dealt with in this Bill — the New York Convention on the Recovery Abroad of Maintenance — is currently in force in over 40 countries worldwide, including many countries with large Irish populations, such as Australia and New Zealand. This convention is based on a similar network of central authorities, which are referred to in the convention as transmitting and receiving agencies. There are, however, some important differences between it and the Rome Convention.
The assistance given under the New York Convention is broader in scope than under the Rome Convention. There is no requirement under the New York Convention that a claimant must first obtain a maintenance order in his or her own state. The New York Convention obliges central authorities to assist a claimant who wishes to recover maintenance, whether he or she already has a maintenance order. The central authority in the receiving state is free to initiate proceedings for a fresh order or, alternatively, to apply for the recognition and enforcement of an existing foreign order, if there is one. The Rome Convention, however, applies only to the enforcement of maintenance orders already obtained.
I now turn to the details of the Bill. Section 2 states that the legislation will come into force on a date or dates to be fixed by order. This is a standard provision in legislation giving effect to international conventions and is necessary to allow for the different timescales required for ratification of the two conventions.
Section 4 provides for a central authority to perform the functions required of it under the Act and under the Rome and New York Conventions. Pending the appointment of a central authority those functions will be discharged by my Department. A similar situation obtains under the Child Abduction and Enforcement of Custody Orders Act, 1991. The central authority for child abduction has been in operation for almost four years — initially in the Department of Justice and more recently in my Department. In 1993 that central authority dealt with 82 cases involving 144 children who had been removed from the State or to the State. The central authority concept, therefore, is one with which officials in my Department have become familiar and its operation has been very successful. This augurs well for the system now proposed in the Bill.
Part II of the Bill covers the recognition and enforcement of maintenance orders from what are termed "reciprocating jurisdictions". In order to qualify as a reciprocating jurisdiction, a country must be a contracting party to either the Brussels or the Lugano Convention and must operate a central authority system to assist maintenance creditors. All the contracting parties already have a central authority system in place by virtue of the fact that they have ratified the New York Convention or the Rome Convention.
Under our Jurisdiction of Courts and Enforcement of Judgements Acts, 1988 and 1993, there are, as I mentioned, court procedures for recognition and enforcement in the State of judgements made in countries which are parties to the Brussels or Lugano Conventions. Section 7 provides that the central authority may avail of these procedures when it receives an application for enforcement of a maintenance order and may act accordingly on behalf of the foreign maintenance creditor.
The central authority, under this procedure, will send the application to the Master of the High Court who will consider it privately. The Master will make an order for the enforcement of the maintenance order unless it appears from the accompanying documents or from his or her own knowledge that enforcement is prohibited by the Brussels or Lugano Conventions. This procedure is based on analogous provisions of the Maintenance Orders Act, 1974. Once the order has been made enforceable by the Master it will be enforced by the District Court in accordance with section 7 of the 1988 Act unless, in the case of a lump sum order or arrears, it would be more effective to have the order enforced by the High Court.
Sections 9 to 12 amend various provisions of the 1988 and 1993 Acts. The main purpose of these amendments is to allow the District Court to enforce foreign lump sum maintenance orders. This will add to the District Court's existing powers to enforce periodic payment orders and is consistent with a similar extension being made under the Family Law Bill in respect of domestic maintenance orders. The District Court is also being given powers to enforce maintenance orders where the debtor is employed by an Irish based firm but does not in fact reside here. In such cases an attachment of earnings order may be effective.
Before leaving these sections I would like to say a word about authentic instruments and court settlements which are referred to in sections 10 and 11 and elsewhere in the Bill. Authentic instruments are unknown to Irish law. They are instruments which are enforceable in the country where they are drawn up in the same manner as a judgment, but without the need to have recourse to the courts. The instrument must be authenticated by a public authority, normally a notary. Court settlements, known in German and Dutch law, are approved by a court in the course of proceedings, and are enforceable without further formality. They differ from court settlements under Irish law which are not enforceable unless they are embodied in an order of the court.
Applications for recognition and enforcement of these instruments and settlements are made not to the Master of the High Court but to the High Court itself under the Brussels Convention. This procedure will continue. However, the District Court is now being empowered to enforce an instrument or settlement which the High Court has declared enforceable, as far as payment of maintenance is concerned.
Part III of the Bill deals with applications for the recovery of maintenance from "designated jurisdictions", that is, jurisdictions which are contracting parties to the New York Convention. Other jurisdictions may also be declared to be designated jurisdictions by order of the Minister for Foreign Affairs if similar arrangements can be negotiated. I am confident that the provisions of the Bill are sufficiently flexible to enable this to be done.
Section 14 is the key provision of this Part. That section sets out the procedures to be followed by the central authority when it receives an application for the recovery of maintenance on behalf of a claimant from its counterpart in a designated jurisdiction. The application may be accompanied by a maintenance order already obtained by the claimant, if one exists.
European Union and EFTA states — other than Austria and Iceland — will be both reciprocating jurisdictions for the purposes of Part II of the Bill and designated jurisdictions for the purposes of Part III. How this will operate in practice is as follows. Applications for recognition and enforcement in Ireland of maintenance orders which were made in those countries will be dealt with under Part II because they come within the scope of the Brussels and Lugano Conventions. However, where there is no actual order, these conventions will not apply and an application from one of those countries will be dealt with under Part III.
If the application for the recovery of maintenance is accompanied by a maintenance order made in one of those countries it will be transmitted by the central authority to the Master of the High Court for determination. If the application is accompanied by maintenance order made in any other country, the central authority will apply to the District Court for enforcement of the order.
In section 22 I am taking the opportunity in the Bill to give statutory effect to very recent changes in common law rules concerning recognition and enforcement of foreign maintenance orders. Previously, under common law, the Irish courts would not recognise or enforce a foreign maintenance order if, as was usually the case, the order was for payment of periodic amounts by the debtor. This was because such an order was not regarded as being final and conclusive because it could be varied, as regards future payments, by the foreign court which granted it.
The 1974 agreement with the United Kingdom and the Brussels and Lugano Conventions made this rule obsolete, but only in respect of orders made in the European Union and EFTA area. The position in relation to orders made in other countries remained unaffected.
However, the High Court judgment in a case entitled McC. v. McC. on 22 June 1993 altered this common law rule. The court decided that the recognition or enforcement of a foreign maintenance order could no longer be refused just because the court which made the original order had power to vary or revoke it. Statutory effect is being given to this principle by section 22.
That section amends the common law rules in one other respect also in order further to facilitate the enforcement of foreign maintenance orders. It abolishes the rule that prevents a foreign order being denied enforcement simply because the respondent was not resident or present in the foreign country when the proceedings began. However, the claimant must have been resident there at the time. The other grounds for refusal — that the judgment was obtained by fraud, or was contrary to natural or constitutional justice or to public policy — will continue to apply.
Thus the District Court will be able to recognise and enforce foreign orders, under section 14 (1) (b), even where the respondent had absconded from the foreign country before the order was granted. If the District Court decides that the order is enforceable, it can be enforced under section 7 of the 1988 Act, which I mentioned earlier.
If a request from a designated state is not accompanied by a maintenance order, or if a request for the enforcement of an order is refused by the District Court, section 14 (1) (c) of the Bill authorises the central authority to apply for a maintenance order to the Circuit Court or the District Court, under the Family Law (Maintenance of Spouses and Children) Act, 1976. In such cases, the Bill allows the courts to take evidence from the respondent by affidavit or sworn deposition, and to send a copy of that affidavit, via the central authority system, to the relevant designated jurisdiction with a request that the claimant provide an answering affidavit. The courts may also take evidence through a live television link and may make interim orders for the support of claimants until the proceedings are finally determined.
Section 15 provides for a claimant who is resident in Ireland and who applies to the central authority to recover maintenance from a person residing in a designated jurisdiction. Such a claimant may give evidence on sworn deposition before the District Court as to the facts of the claim. The court may then certify that the claim sets out facts from which it may be determined that the respondent owes a duty to maintain the claimant.
If a maintenance order has already been made in Ireland in favour of the claimant, the registrar or clerk of the court will give the claimant a copy of the order and a certificate of other particulars relating to it. A similar provision is not included in Part II of the Bill because it is already covered by section 12 of the 1988 Act.
Section 18 empowers the High Court to grant provisional, including protective, measures upon the application of the central authority arising from a request for the recovery of maintenance under Part III. The 1988 Act contains similar provisions which would apply to applications under Part II. Such measures could include, for example, an injunction to restrain a defendant from disposing of goods or from moving them out of the jurisdiction with the object of defeating any future maintenance order that might be made.
Part IV of the Bill applies to both reciprocating and designated jurisdictions. Section 20 empowers the central authority to obtain information about a defendant's whereabouts or his or her assets. The Rome Convention imposes this obligation on central authorities. The New York Convention contains no similar provision but such a course is certainly not precluded by it, and is in keeping with its spirit. Section 20 (1) places a statutory obligation on Government bodies or office holders to provide such information and, in the case of other bodies or persons, the central authority must obtain an order of the District Court requiring the disclosure of information. I should emphasise that the information which the central authority is allowed to seek is limited to that which is necessary or expedient for the performance of its functions.
Part V of the Bill deals with miscellaneous matters. Section 22, to which I have already referred, amends the common law rules on the enforceability of foreign maintenance orders. Section 23 states that payments under a maintenance order shall be made in Irish currency. The rate of exchange used in converting the amount due under a foreign maintenance order is the exchange rate prevailing on the date the order is declared enforceable. A maintenance order for periodic payments could have a different exchange rate for each periodic payment and that would result in a totally unmanageable situation.
These, then, are the main provisions of the Bill. The Bill is evidence of the Government's commitment to ensuring that persons who leave this country will no longer be able to divest themselves of responsibility for the maintenance of spouses and children who they have left behind. While the Bill has been drafted in a gender-neutral manner, there is no doubt that the principal beneficiaries of the measures I have outlined will be women who have been deserted by their husbands.
It is a measure that is particularly appropriate in this the International Year of the Family and I am confident that, in principle at least, it will receive support from all sides of the House. I wish to assure Deputies that I will be open to any suggestions they may have for its improvement, either during the present debate or by way of amendment later.
I commend the Bill to the House.