I move: "That the Bill be now read a Second Time."
The Government supports the principles of this Bill and, because of the significance of its provisions concerning the welfare of children, it was the decision of the Government it should be brought before the House without delay. It will be necessary to make some amendments and I will address these matters on Committee Stage.
The position of children under our law is of special importance and our constitutional and statutory provisions and administrative policies reflect that. The Guardianship of Infants Act, 1964, which the Bill amends, provides that any court, in deciding questions relating to children, shall regard the welfare of the child as the first and paramount consideration. The law concerning children has been updated and developed on a systematic basis in recent years and we have a body of law comparable with the best in other countries. Important provisions regarding children have been provided for in the Family Law (Maintenance of Spouses and Children) Act, 1976, the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, the Child Abduction and Enforcement of Court Orders Act, 1991, and the Child Care Act, 1991. The 1992 White Paper on Marriage Breakdown, prepared in the Department of Justice, reviewed the law concerning children and the family and made important recommendations for change. The Domestic Violence Act, 1996, strengthens provision for the protection of children enshrined in legislation of 1981, and the Family Law Act, 1995, and Family Law (Divorce) Act, 1996 give powers to the court to make financial, property and pension orders for the benefit of children.
There has been a wealth of reform in our family laws in the past decade under various Governments. These reforms have meant that many fundamental issues relating to children and the family are now being addressed in one form or another. The Bill is a continuation of those reforms. It is about children, especially their welfare. It is a child-centred measure in keeping with commitments given in the Government's Action Programme for the Millennium relating to the support of parents and their children and to a review of the operation of the courts system to further protect children. The Government has shown its political commitment towards children with the appointment to the new Department of Health and Children of a Minister of State with special responsibility for children.
The main objects of the Bill are to update the law on guardianship, custody and access by: allowing a father who has not married the mother of his child to be appointed guardian by agreement with the mother without the need to go to court as at present; obliging the court, where appropriate, in proceedings concerning custody or upbringing of a child to give consideration to the child's wishes; making it clear that in appropriate cases custody of a child may be granted by the court to a father and mother jointly and allowing certain relatives of a child to apply for access to the child.
It introduces a comprehensive range of measures, which I would characterise as a "charter for children", designed to safeguard the interests of the child by: encouraging alternative disputes resolution mechanisms in guardianship, child custody and access disputes and providing for a system of guardian ad litem and separate legal representation. It addresses the difficult question of the evidence of children in civil cases by providing for: children giving evidence in certain civil proceedings through a television link; admissibility of hearsay evidence of children in certain civil proceedings subject to safeguards; and for a court to hear the evidence of children under the age of 14 in civil cases without requiring them to take an oath or make an affirmation.
The Bill takes into account recommendations in the Law Reform Commission's reports on child sexual abuse, on oaths and affirmations, on the rule against hearsay in civil cases and on family courts. I thank the Law Reform Commission for its enlightened work in those areas. It is my intention to take on board as far as possible in the legislative work of my Department reports of the Law Reform Commission. The commission's work is of fundamental importance to law reform and its tremendous work should be acknowledged from time to time.
The Bill will help put Ireland at the forefront of the international community, in so far as children's rights are concerned, by facilitating ratification of the European Convention on the Exercise of Children's Rights, which Ireland signed in January 1996. That convention complements the United Nations Convention on the Rights of the Child which was ratified in 1992. The expressed aim of the European convention is to promote the rights of children in family proceedings affecting them, to grant them procedural rights, and to facilitate the exercise of these rights by ensuring children are informed of them and allowed to participate in the proceedings.
Part I contains standard provisions relating to short title, commencement, collective citation, interpretation and expenses. The Bill will come into operation one month after the date of its passing, with the exception of section 11 and Part III which are subject to commencement provisions. Commencement orders are required in respect of those provisions to ensure the administrative arrangements necessary for their successful application are in place. The provisions of section 11, for example, will have an impact on the work of the Probation and Welfare Service and the health boards and these organisations will have to be consulted about the manner in which these new responsibilities can be accommodated. Similarly, the provisions of Part III may necessitate the installation in courthouses of additional facilities for evidence to be taken by live television link or by means of a video recording, although such facilities are already available for the purposes of criminal proceedings in the Circuit and District Courts in the Four Courts in Dublin.
Part II gives effect to substantial amendments in the law on the guardianship of children. It does so mainly by amending the Guardianship of Infants Act, 1964. That Act remains the definitive legislative measure dealing with the rights and duties of parents concerning their children. It provides that the married parents of a child are jointly the guardians of that child. In the case of unmarried parents, the mother is sole guardian of the child. Until the Status of Children Act, 1987, there was no way by which an unmarried father could establish guardianship rights other than by subsequently marrying the mother of the child. The 1987 Act amended the 1964 Act by empowering the court, on the application of an unmarried father, to appoint him to be a guardian of his child jointly with the mother. It also provides for a special informal court procedure to be used where the mother consents to the appointment of the father as guardian and the father's name is registered as such on the births register. The effect of what is provided for in section 4 is to remove the need to go to court where the father and mother are in agreement on the question of guardianship.
The House would readily share my view that the law should facilitate as far as possible the sharing of responsibilities of parents in relation to children. At present some 700 applications are made to the court each year by unmarried fathers who wish to become guardians of their children jointly with the mother. Of these, some 400 are by agreement and under the new provisions they can become joint guardians of their child through a simple procedure without having to go to court. Some 12,500 children annually are now born to unmarried parents.
Section 4 repeals and re-enacts section 2 of the 1964 Act. The main differences between the old section 2 and the new section 2 are that new subsections (1)(c) and (4) have been added. The effect of these amendments is to extend the definition of "father" to include the father of a non-marital child whose relationship with the mother of the child satisfies conditions specified in subsection (4). Where these criteria are satisfied the unmarried father can acquire guardianship rights jointly with the mother without having to go to court. The conditions are that the father and mother have not married each other; that both agree to the appointment of the father as guardian of the child; that they have entered into arrangements regarding the custody of, and as the case may be, access to the child; and that the mother and father have made a statutory declaration to the effect that they have complied with all these conditions.
Sections 5, 6 and 8 make certain consequential technical changes only to the 1964 Act. Section 7 makes clear that where the father is appointed guardian by virtue of the new procedure he may be removed from that appointment only by the court.
Section 9 inserts three new sections — sections 11 A, 11 B and 11 C — into the 1964 Act. Section 11 as it stands in that Act empowers the court to give any direction it thinks proper in disputes concerning custody of or access to children. This includes a power to make orders granting custody of a child to the father and mother jointly in suitable cases. The perception among some interest groups appears to be that the law does not permit the making of such orders or that the courts too rarely grant such orders. The new section 11A is intended to allay any such perception and to highlight the discretion that the court already has under section 11 to order joint custody.
The Bill does not attempt to define joint custody although in practice the term applies to a variety of custody arrangements. These may range from a situation where a child spends a certain number of nights separately with each parent during the week to a situation where parents, although formally separated, continue to live in the same household and are in a position to operate a less specific joint custody arrangement. Neither is any attempt made in the Bill to draw a line indicating where joint custody ends and sole custody or access begins or to specify a list of criteria which should be used by the court in reaching its decision. Decisions of this nature are premised on such an array of considerations in an infinite variety of cases that such distinctions serve only to distract from the main issue which is the welfare of the child. However, l intend to look again at this area of the law to see whether there is scope for strengthening the law any further.
The new section 11B gives blood relatives of a child or blood relatives of the parents of a child an independent right to apply for access to that child. The intention is to reflect the fact that continued contact with relatives such as grandparents can often be in the child's best interests. This circumstance may particularly arise in cases where the ties between the parents of children are broken. In such cases the court would in making orders continue, by virtue of section 3 of the 1964 Act, to have regard to the welfare of the child as the first and paramount consideration. Subsection (2) provides that a party must first apply for the leave of the court to bring an application under section 11B and subsection (3) specifies various matters to be taken into account by the court in deciding whether to grant leave. These include the wishes of the child's guardian or parents, the applicant's connection with the child and the risk, if any, of the application disrupting the child's life to the extent that the child would be harmed by it. The purpose of this filter process is to ensure that clearly unmeritorious or vexatious claims are prevented from proceeding to a full hearing. The power to make application under this section in the Bill as it stands is confined to blood relatives. I am concerned that this power may be unduly restrictive as regards the class of persons to be covered. I am giving consideration to the question as to whether the class of persons should be extended and may bring forward an amendment in this regard on Committee Stage.
The new section 11C is a technical amendment which gives legislative backing to a District Court rule which provides that an access order shall not be stayed pending the outcome of an appeal against that order unless the court directs otherwise. I am giving consideration to the question as to whether the Bill should make similar provision in the case of appeals against custody orders and, again, any amendment I may have will be brought forward on Committee Stage.
Section 11 inserts a new Part IV in the Guardianship of Infants Act, 1964 containing 12 new sections, sections 19 to 30, with which I will now deal. These new sections are in effect a charter for the rights of children in cases of dispute. They offer a comprehensive range of provisions which are designed to safeguard the interests of children in guardianship, custody and access proceedings. They bring Ireland to the forefront of modern thinking in these matters and, as I said at the outset, will enable Ireland to be among the first countries to ratify the European Convention on the Exercise of Children's Rights.
As Deputies will be aware, counselling and-or mediation can be of immense benefit in helping couples to sort out their difficulties. In too many cases immediate resort to the law can affect the prospect of a voluntary settlement. We must recognise that the courts are and should always be a last resort for the settlement of differences between parents. Even parents with the widest of differences may have within them the ability to work out their difficulties. If that is so, they can perhaps move on to a resolution that may be for the betterment of themselves and their children. The reality is that a high proportion of custody and access disputes could be settled on a voluntary basis without ever getting to court. Part III of the Bill gives legislative backing to that approach, which is urged on states by the 1996 Council of Europe Convention on the Exercise of Children's Rights.
Subsection (2) of the new section 20 requires a solicitor before instituting proceedings on behalf of an applicant under sections 6A, 11 or 11B of the Act to discuss with the applicant the possibility of engaging in counselling or mediation to resolve the dispute. Where appropriate, the solicitor must also discuss the possibility of a deed or agreement with the other party on the issues in dispute. Subsection (3) requires the solicitor to certify to the court that he or she has done so at the time of the institution of proceedings and that he or she has provided the names and addresses of persons qualified to give counselling or mediation to the applicant. If the documents instituting proceedings are not accompanied by such a certificate the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to fulfil these obligations.
The new section 21 contains provisions in relation to the respondent's solicitor similar to those in the new section 20 about the applicant's solicitor.
The new section 22 empowers the court to order an adjournment or further adjournment to facilitate attempts by the parties to reach agreement on some or all of the terms of a settlement. Either party may at any time request that the hearing be resumed and the court shall resume the hearing subject to any other power it has to adjourn proceedings. The new section 23 provides that any oral or written communication between the parties and a third party for the purposes of seeking agreement and any record of such communication is not admissible as evidence in court. This mirrors a similar provision in judicial separation and divorce legislation and is intended to encourage free and frank discussion of the issues involved.
The new sections 20 to 23 are aimed at facilitating as far as possible a non-adversarial approach to disputes in relation to children and to provide an alternative dispute resolution mechanism. I am happy to note the Incorporated Law Society has drawn up a code of practice which mirrors the provisions for mediation and counselling already contained in our separation and divorce laws and which are proposed in this Bill. I am encouraged by that code which directs solicitors to appraise clients of the advantages to the family of a constructive and non-adversarial approach to the resolution of the couple's difficulties and advise their clients of the impact of disputes on children and on ensuring that the interests of the children should be of primary concern.
The new section 24 enables agreements relating to rights of custody and access to a child to be made a rule of court and will enable the enforcement powers of the court to be invoked in respect of any breach of the agreement as if the agreement had been an order of the court.
The new sections 25 to 28 are concerned with ensuring that where litigation is under way the rights of children are not alone protected but actively promoted. The new section 25, therefore, requires the court as it thinks appropriate and practicable having regard to the age and understanding of a child to consider the wishes of the child in proceedings in which the welfare of the child is in question. Children will have insights into their lives that are important for the court to take into account in any decision making. Furthermore, particularly as a child gets older, failure to make an order which takes account of his or her wishes may, at least in some cases, be very upsetting for the child and therefore counter-productive to the enhancement of the child's welfare. It is important to acknowledge that in many cases there are real problems in placing weight on the wishes of the child or even in ascertaining the child's wishes. These are factors which the judge must decide upon when taking into account the unique circumstances of each case.
The new section 26 extends to the District Court the power in the High Court and Circuit Court to order social reports in proceedings under the 1964 Act from the probation and welfare service, a person nominated by a health board or any other person. The new section 27 provides that a child to whom custody or access proceedings under sections 6A, 11 or 11B of the 1964 Act relate need not be brought before the court to be present for the hearing unless the court so directs.
The new section 28 takes into account recommendations made by the Law Reform Commission in its report on family courts. It empowers a court to appoint a guardian ad litem in proceedings under sections 6A,11 or 11B of the 1964 Act where the court is satisfied that it is in a child's best interests to do so. The role of the guardian ad litem will be to interview the child, to assess his or her needs, to inform the court of these needs and of the child's views. Subsection (2) specifies criteria which the court must take into account in deciding whether to appoint a guardian ad litem. These include the age and understanding of the child; the content of any social reports which are available on any question affecting the welfare of the child; the wishes of the child and any submissions made to the court by the parties to the proceedings or any other person to whom they relate. Subsection (3) provides that the person from whom a social report was obtained may, notwithstanding that fact, also be appointed guardian ad litem.
Subsection (4) of the new section 28 empowers the court to order that the guardian ad litem be legally represented where exceptional and grave circumstances exist. Subsection (5) provides that the costs of such legal representation may be paid by such parties to the proceedings and in such proportions as the court may determine. The new section 29 provides similarly in relation to the cost of any mediation or counselling services.
In its report on family courts the Law Reform Commission recommended that the court should of its own motion or upon application to it have power to appoint an independent representative for a child whose welfare is in issue in family proceedings where this appears to the court to be necessary in the interests of the child. The commission also recommends that the court should have the power in the proceedings which affect a child to appoint a guardian ad litem where the court is satisfied it is in the interest of the child and in the interests of justice to do so. In making its recommendations the commission took into account similar provisions in child care legislation in other jurisdictions, namely Australia and the UK, requirements which are set out in the United Nations Convention on the Rights of the Child which Ireland has ratified and the European Convention on the Exercise of Children's Rights which Ireland has signed and which it will be possible to ratify on the enactment of this Bill. Section 11 provides more specific conditions for the appointment by the court of guardians ad litem than are recommended by the commission. While section 11 does not fully accord with those recommendations, it goes a long way to implement them.
The new section 30 confers jurisdiction on the Circuit Court or the District Court except where an application is made under the new section 24 in respect of a separation agreement. This is because jurisdiction in respect of separation and divorce proceedings is vested exclusively in the Circuit Court concurrently with the High Court. Provision is also made to hear applications to have custody and access agreements made a rule of court under the new section 24 together with similar applications in respect of maintenance agreements under the Family Law (Maintenance of Spouses and Children) Act, 1976 without the need to initiate separate proceedings under both Acts. This completes section 11 of the Bill.
I now turn to section 12. This is a technical provision which provides for the use of modern terminology in the 1964 Act. It provides that the term "child" replaces the term "infant" where it is used in the 1964 Act except for references to "infant" in the Short and Long Titles of that Act.
Section 13 makes amendments to section 28(5) of the Civil Legal Aid Act, 1995, and allows for the granting of a civil legal aid certificate by the Legal Aid Board to a guardian ad litem appointed under the 1964 Act where either of the parties to the proceedings is in receipt of civil legal aid.
Section 14 amends section 5 of the Courts (No. 2) Act, 1986, to ensure that the enforcement powers which the District Court has at present in relation to breaches of orders made under the 1964 Act extend to orders made under the new section 11B.
Section 15 amends sections 8 and 8 (a) of the Family Law (Maintenance of Spouses and Children) Act, 1976. Those sections of the 1976 Act allow maintenance agreements to be made a rule of court in the Circuit Court. The effect of section 15 is to allow maintenance agreements, other than separation agreements, to be made a rule of court in the District Court.
I will now deal with the provisions of Part III regarding evidence of children. Section 19 defines the scope of Part III. In short, it applies to civil proceedings before any court concerning the welfare of a child provided they have commenced after the commencement of that Part.
A particular difficulty is how to treat the evidence of children and the hearsay evidence of expert witnesses such as social workers in proceedings involving children. Over the years the courts have in certain circumstances admitted hearsay evidence of social workers in wardship cases while in others, the evidence of social workers has been treated as expert testimony. Such decisions have resulted in quite a degree of uncertainty in this area of the law. The provisions in Part III are designed to eliminate this uncertainty and have already been welcomed by members of the legal and social work professions.
The changes are intended to provide greater flexibility in receiving the evidence of children in proceedings affecting their future welfare by amending existing provisions in three major respects. First, it will be possible for children to give evidence in court via a live television link. Secondly, the Bill provides for the admissibility of out of court statements made by children which up to now were excluded by virtue of the rule of law relating to hearsay. Thirdly, the Bill enables the court to receive the evidence of children under the age of 14 years otherwise than on oath or affirmation.
Section 20 provides that children may give evidence in cases concerning their welfare by live television link from in or outside the State with the leave of the court. This mirrors similar provisions in the criminal law where sexual offences or offences involving violence or threats of violence are concerned. Subsection (2) provides that this evidence shall be video recorded. The intention is to remove from the child the burden of having to give evidence a second time should circumstances so require it. Section 22 provides for the admissibility of such a video recording in evidence, subject to conditions, if for example the case is appealed to the Circuit Court. Subsection (3) makes clear that a child who knowingly gives false evidence from outside the State by television link shall be guilty of an offence.
Section 21 empowers the court, in cases under section 20 where evidence is being given through a television link, to appoint an intermediary to convey questions to a child witness, if it is satisfied that such is required having regard to the witness's age or mental condition. The intermediary may adapt the question where appropriate to take account of the stage of development of the child witness and the questions put by the intermediary and the answers by the witness will be heard in the courtroom. The witness in such a case will not have to see and hear the questioner. The intermediary must be someone who in the court's opinion is competent to act as such.
Section 22 is an important new provision which provides that statements made by a child which up to now would have been inadmissible as evidence by virtue of the rule relating to hearsay can now be admitted subject to certain conditions. Subsections (2) and (3) contain the safeguards to ensure that the new powers do not offend against the principles of fairness. Subsection (2) empowers the court to refuse to admit hearsay evidence, in part or in whole, where it is not in the interests of justice to do so. As a further safeguard, subsection (3) provides that a person proposing to adduce evidence to which this section applies must give notice to the other party to the proceedings of that fact and must also give particulars of or relating to the evidence for the purpose of enabling the other party to deal with any matter arising from it being hearsay. Subsection (4) provides that parties may agree among themselves to disapply this provision.
Section 23 contains provisions regarding the weight to be given to evidence admitted under section 22. The weight to be given to such evidence will vary according to the circumstances. Subsection (2) lists various factors to which regard may be had including, for example, whether or not the original statement was made contemporaneously with the occurrence of the matter stated and whether or not the evidence involves multiple hearsay.
Section 24 allows evidence to be admitted concerning the credibility of a child who supplies information contained in a statement admitted under section 22. A common problem at present is that where a child does not appear as a witness there is no mechanism for testing the child's credibility by cross examination. Section 24 seeks to address this problem by providing that the fact that the child has not been called to give oral evidence does not prevent evidence from being adduced to challenge his or her credibility. For example, evidence tending to prove that the child had made a contradictory statement after supplying the information shall also be admissible if not already so.
Section 25 provides that where a document is admissible in evidence in proceedings to which Part III applies it may be given in evidence by producing an authenticated copy, including a fax copy, of it. This section also applies to sound recordings and video recordings. Section 26 is a jurisdictional provision which empowers the court to transfer proceedings to which Part III applies to a Circuit or District Court which has the necessary technical facilities for enabling evidence to be given through a television link or by means of a video recording.
Section 27 is significant to the extent that it enables the court to receive the evidence of children under the age of 14 years otherwise than on oath or affirmation. This provision applies to all civil proceedings involving children and not just those to which Part III applies. At common law the test of competence is whether the child had sufficient intelligence to justify the reception of his or her evidence and understood the nature of the oath. It is now recognised that a child's ability to answer questions about events may be better than both the law and common belief recognises and that even very young children can respond to the demands of testimony when questions are posed in a developmentally appropriate way. The Law Reform Commission recommended that in the case of children under the age of 14 years there should be no requirement as to the taking of an oath or affirmation and that a judicial test of competence should be substituted. The test should focus on the cognitive ability of the child rather than his or her moral or religious understanding. The criminal law was subsequently amended to give effect to these recommendations but no such leeway is allowed in civil cases as was made clear in the Mapp v. Gilhooley, 1991, Supreme Court, IRLM, page 695.
Subsection (2) provides that a child who makes a statement which he or she knows to be false during the course of his or her unsworn evidence shall be dealt with as if he or she was guilty of perjury. This provision is necessary because the crime of perjury only applies to the giving of false evidence on oath or affirmation. Subsection (3) ensures that these provisions are also applicable to a person with mental disability who has reached the age of 14 years, reflecting another recommendation of the Law Reform Commission. Finally, subsection (4) provides that the unsworn evidence of a child may corroborate evidence sworn or unsworn that is given by another person.
These are the main provisions of the Bill. I am sure its general aims will be supported by all sides of the House and look forward to a good and constructive debate on the issues involved. This is a very lengthy Bill, dealing with extremely important matters. I thank the Chair and the Members for their forbearance.
