I remind Deputies that we are discussing amendments 14 to 17, inclusive, together.
Children Bill, 1997: Committee Stage (Resumed).
Debate resumed on amendment No. 14:
In page 6, before section 5, to insert the following new section:
"5.—The Act of 1964 is hereby amended by the insertion of the following section:
‘2A.—In relation to cases to which section 2(4) would have applied but for the fact that the mother has withheld her consent, the court may order her to do so if it decides it was unreasonably withheld.'.".
—(Deputy Neville)
Deputy Shatter emphasised that the interests of the child are paramount and we all agree with him. He welcomed the provision of the Bill which will mean many people who have reached agreement on joint guardianship will not now have to go to court, and I thank him for that. He expressed concern about the need to distinguish between children born to cohabiting couples and those born as a result of one night or casual relationships. He drew a comparison with the domestic violence legislation but I do not think that is fair. In that case. before the legislation was changed, mostly women were victims and if they were married to the person inflicting violence they were unable to apply for a barring order. In that case the change had to be introduced for cohabiting couples whereas in this case there is no such prohibition on a father making an application for guardianship, he can do so under current legislation. The Deputy did not compare like with like. He queried the figures but I can confirm them — some 12,500 children were born outside marriage last year and roughly 6 per cent of unmarried fathers apply for guardianship, which is quite low.
Deputy McManus appreciated the many difficulties. She drew a comparison with illegitimacy but I do not think that is appropriate either — in such cases the best interests of the child were central, whereas here we are considering the interests of the parents. She referred to the old idea that birth inside marriage was good but birth outside marriage was not — we cannot go along with that but we must be able to define the position in some way. She queried the figure of 12,500 and asked why so few unmarried fathers look for guardianship. Under the new arrangements, if the couple reach agreement there is no need to go to court and I hope that will help these people.
Deputy Neville said fatherhood was good for children and that we are discriminating against those children who do not have access to their fathers. I agree that fatherhood is good for children but all these fathers have the option of applying for guardianship. It is a matter of whether they should apply for it or if it should be automatic. There is no presumption in section 6A of the Guardianship of Infants Act that a father is bad — the section is neutral. The manner in which the law operates is that in 90 per cent of cases going before court, where all details are available, it is decided that it is in the best interests of the child that the father be made a guardian. Those statistics should clarify matters — 90 per cent of cases brought to court are successful. I thank Deputies for their comments and I hope I have answered all queries.
Amendment, by leave, withdrawn.
SECTION 6.
I move amendment No. 15:
In page 7, paragraph (a), to delete lines 1 to 5 and substitute the following:
"‘(1) Where the father and mother of a child are not married to each other and have not made a declaration under section 2(4), the court shall, by order, appoint the father to be a guardian of the child unless there are compelling reasons, affecting the child's best interest, for not doing so.', and".
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment put and declared lost.
Amendments Nos. 16 and 17 cannot be moved in the light of the decision on amendment No. 15.
Amendments Nos. 16 and 17 not moved.
Section 6 agreed to.
SECTION 7.
I move amendment No. 18:
In page 7, line 11 to delete "Children (No. 2) Act, 1997” and substitute “Children Act, 1997”.
Amendment agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
SECTION 9.
Amendment No. 19 is in Deputy McManus's name, amendments Nos. 20, 22, 23, 26 and 31 are related, amendment No. 30 is consequential on amendment No. 31 and all may be taken together by agreement.
I move amendment No. 19:
In page 7, to delete lines 31 to 35 and substitute the following:
"11A.—For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11 shall grant custody of a child to the child's father and mother jointly unless there are compelling reasons affecting the child's best interest, for not doing so.".
There is a danger of repetition on this matter because we had an extensive debate on guardianship. However, I reiterate the principle that we must establish equality in parenting and new norms, which should be joint custody and guardianship. In this instance joint custody is at issue. I listened with great interest to Deputy Shatter differentiating between custody and residential responsibility or care and I appreciate that it is difficult for parents in dispute to resolve problems if a judge is not willing to deal with the residential aspect of custody when he or she decided joint custody would apply. However, that is not necessarily a sound argument for not having joint custody as the base or the norm from which alternative forms of custody can be established, allowing for compelling needs which may arise in particular circumstances. We must reinforce the principle that both parents have a responsibility for the care of their child and if we start from that norm we present a much better framework from which people can live up to their responsibilities. I recognise that many fathers do not do so but they are not unique — there are also mothers who are unable or unwilling to care for the children, although they are much less numerous. The law must establish basic principles and the principle of joint custody is appropriate to our day, as is joint guardianship. Parentage can no longer be established purely on the basis of marriage or, failing that, be the sole responsibility of one parent who is almost inevitably the mother.
I wish to speak to amendment No. 22. While this section aims to promote joint custody, it does the opposite. On cursory reading, the provision appears to be a legislative recognition of powers the courts already possess and will have neither a positive nor negative effect on efforts to promote joint custody. If the section becomes law it will prove a major impediment to parents trying to retain their custodial rights and obligations. As such it will further delay the slow but growing tendency in society and even within the Judiciary to believe that joint custody serves the child's best interests.
The provision arises from the premise that it is not appropriate for a father to have guardianship of the child when the parents are unmarried. The court must decide it is appropriate before granting joint custody. The addition of amendment No. 22 would provide that the court could grant sole custody to the father or the mother if it considers it appropriate. In other words, the amendment gives equal recognition to the father and the mother and, if it is appropriate, the father might be the sole custodian of the child.
I am still unhappy with the section because it is based on the premise that the court must decide if it is appropriate to grant even joint custody to both parents. Our earlier discussion was based on the premise that joint custody be considered the norm and that the court would have to decide whether such custody was appropriate. However, we must deal with the situation as we find it and it would strengthen the father's position if it were recognised that in exceptional circumstances the court could decide that the best situation for the child would be in the father's sole custody.
The three amendments seek to achieve the same objective although each is worded differently. My interpretation of the amendments is that they seek to provide that the courts grant joint custody except in exceptional circumstances and that the onus of explaining why joint custody would not be appropriate would rest with the court rather than, as happens in most cases, the father being obliged to justify his claim for joint custody.
Our court system has for many years favoured the mother in such situations. It is not provided for in legislation but, because of our history, the generation from which our judges are drawn and the structure of Irish society, custody of the children is invariably awarded to the mother. In many cases that is grossly unfair. The objective of the amendments is to provide for joint custody unless there are exceptional reasons to decide otherwise. If the Bill is not amended, the father will have to prove he is entitled to joint custody, otherwise the court will have to decide there cannot be joint custody because of certain circumstances. That would remove the onus on the father to prove his case and that would be worthwhile.
Strange decisions have been made by the courts over many years and to a large extent men have been badly treated. In our earlier discussions we said the best interests of the children should be the overriding consideration in these matters. Unfortunately, that has not been the case in the development of family law. I can offer a relevant example which involves a person I met recently. My heart went out to the man concerned. He is from the west and has a modest job in a State company. His take-home pay is a little over £200 per week. As a result of marital difficulties he and his wife went before the court to sort out their problems. The judge decreed that the man should leave the family home but continue to pay the mortgage on that home. The mortgage is approximately £50 per week. He must pay £100 per week maintenance for his wife and children. He has access to his three children, a 15 year old girl and two younger boys, every second weekend.
The remainder of his wages only enabled him to rent a one bedroom flat a few miles away from the family home. His children come to stay with him on alternate weekends but after a few weekends the teenage girl was not very happy to live in a one bedroomed flat with her father and two younger boys. The children were away from their friends and from the facilities in the family home, such as access to television and a computer. They were cut off from their usual surroundings, but the flat was the only facility available to the father to look after his children. Is that not a recipe for isolating the father from the care of his children? Shortly the children will turn against their father because he cannot give them anything. They believe they are living in terrible conditions for the weekend and consider that unfair. I foresee major difficulty arising in that situation.
Separation of families can be facilitated when the family is well off and can afford a second house and its attendant facilities. Indeed it can make separation easier. However, in the case of the man whose story I outlined, he feels shut out from the system. What generates the greatest sadness in him is his belief that the marriage breakdown was not his fault. He attributes it to his wife's difficulties.
We need to give direction to the courts as to how they should address such problems. These amendments are, in effect, telling the courts that the father should have a say in the care of the children. I made a suggestion some time ago which relates to the overriding consideration mentioned by Deputy McManus, that the primary concern should be the care of the children. If our primary concern is the care and well being of those children we should do everything possible to make life better for them and to ease the trauma of separation and breakdown. Parents should have consideration for that. The courts should be asked to examine a situation whereby, instead of children moving out to stay with their father at the weekend in terrible conditions, the parents rotate within the family home. When the children are in the mother's custody she looks after them. When it is time for the father's visits, he should take possession of the family home and live there. In that way the children are not discommoded. This has already happened in Denmark and, while it is a difficult system for parents to operate, it is perfect for the children. If our overriding consideration is the children's well being we should ask the courts whether this possibility could work.
I can see the difficulties involved. I can imagine that a mother would not be too happy having to pack her bags and move elsewhere for the weekend, while her estranged husband moves in and has the run of the house. When she comes back on Sunday night she is bound to say that he did not do the hoovering or the washing up. It might even be the other way around, with the man saying the same thing.
That has to be an option, however, if we come back to what should be our guiding principle — the children's welfare. I do not know how we can ask the courts to look at this as a possible option, but it is something we have to do. As legislators we should be able to ask judges whether they consider this option would work. It will take much adjustment and sacrifice by the parents involved but our focus is on the children, so surely it can work.
The thrust of these three amendments is similar and I am happy to support them.
All three subsections of my amendment No. 20 deal with the new section 11A which has been widely discussed. My subsection (a) seeks to create a situation where joint custody will be the natural assumption unless the judge has reasonable grounds to decide otherwise. We have had sufficient debate on that.
Subsection (b) of my amendment states "may, on the application of a guardian, order that access to a child be given to a relative or spouse of the guardian, on such terms and conditions as the court may order". That means that the guardian may be permitted to apply for an order giving access to a relative rather than having the relative apply separately on his or her own behalf to the court. I inserted this subsection because it would save valuable time and money.
If a relative, a grandparent for example, applies for access the guardian can apply to the courts for that facility rather than the person having to go to court themselves. The Minister of State should consider accepting this measure.
Subsection (c) of my amendment states "may order that mediation or counselling services be provided for the benefit of the child to whom the proceedings relate". That is self-explanatory. Children suffer terribly in a marriage break-up. Some children are luckier than others because their parents are able to sort out their difficulties before going to court. In many cases which go to court, however, parents are at loggerheads and, thus, the children are under severe pressure. It is important for such children to receive counselling. The Minister of State should consider accepting these amendments.
Before the Minister of State replies, I want to refer to amendment No. 26, which is an addition to the proposed section 11B. This amendment states:
"In page 7, line 41, after "order." to insert "In deciding any issue under this section the court shall have particular regard to the ability and willingness of each parent to encourage and facilitate the continued involvement of the other parent in the upbringing of the children." This introduces the concept that the law recognises that a parent encourages the involvement of the other parent where they are separated or single parents, or where the parents are not married to each other. It indicates to the couple that there is an expectation that they will encourage and facilitate the other parent's involvement in the parenting and care of the child. It would give a strong signal to the parents involved in 28 per cent of births this year that one of the first things they should consider after a birth is the role of both parents.
The involvement of both parents should be facilitated rather than at present where a decision is made to grant custody to the mother while the father must fight for joint custody through the courts if agreement is not reached. The mother has an upper hand in a case where the father is trying to become involved with the child. This amendment would give a signal to both parents that they should encourage and facilitate the involvement of the other spouse in the joint relationship with the children.
Section 9 of the Bill inserts three new sections, 11A, 11B and 11C into the Guardianship of Infants Act, 1964. As it stands, section 11 empowers the court to give any direction it thinks proper in disputes concerning custody or access to children. In making any such orders the court must regard the welfare of the child as the first and paramount consideration.
Everything would be wonderful if all this were straightforward, but it is not so when one is talking about situations in dispute. I was amused by Deputy McGrath's suggestion with regard to hoovering because in the best of marriages such problems cause difficulties, even without being in the situation he described.
With regard to the new section 11A, it is intended to make clear that a court may award custody of a child to a father and mother jointly. The new section provides that for the avoidance of doubt it is hereby declared that the court in making an order under section 11 may, if it thinks it is appropriate, grant custody of a child to the child's father and mother jointly.
Amendments Nos. 22 and 26 from Deputy Neville purport to declare for the avoidance of doubt that the court, in making an order under section 11, may, if it thinks appropriate, grant custody of a child to the child's father or mother solely if exceptional circumstances warrant it.
Amendment No. 19 from Deputy McManus and paragraph (a) of amendment No. 20 from Deputy Moynihan-Cronin are somewhat similar. The amendments seem to be an attempt to fundamentally alter the court's powers to give directions under section 11 on who, in the best interests of the child, should have custody of the child. The court, it seems, would be required as a matter of course to award custody to the father and mother jointly. The court would only award sole custody to the father or mother in exceptional circumstances.
The amendments are flawed in declaring for the avoidance of doubt that the court may operate on that basis. The plain fact is that the court does not operate on that basis because the 1964 Act is not framed to operate on that basis. It is wrong to suggest that it does by attempting to remove doubts on the matter. In making custody orders under the 1964 Act the courts are guided by the circumstances of each case and the best interests of the child. In the absence of agreement between parents the court will inevitably make hard and difficult decisions based on the evidence. If, on the basis of the evidence, sole custody is the best solution in terms of the welfare of the child the court will make an order giving custody to one parent and access to the other. If it is considered that joint custody is in the interests of the child the court will make the order for the parents to share custody. At present the courts do not usually make joint custody orders; normally the mother is awarded custody. This feature of the practice of the courts has little to do with the law and has much to do with the circumstances of each individual case.
The amendments tabled by Deputies Neville, McManus and Moynihan-Cronin propose that the present practice should be stopped and that joint custody orders should be the rule rather than the exception. The amendments would substantially change the rules of evidence in custody proceedings. However, the new rules could be more divisive and fault-based in practice than the existing ones and could be counterproductive in so far as the welfare of the child is concerned. I am not in a position to accept the amendments and the Minister's amendment No. 31 should go some way to meet the point which underlines their concerns and those of certain interest groups without sacrificing the fundamental principle of the 1964 Act, namely, what is in the best interests of the child.
Amendment No. 31 proposes that in considering whether to make an order relating to guardianship, custody or access under section 6A, 11, 14, or 16 of the 1964 Act, the court shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with his or her father or mother on a regular basis. This amendment is inspired by a provision in the United Nations Convention on the Rights of the Child. The fact that this aspect must be taken into consideration will alleviate many concerns. The amendment is intended to direct the court's attention, in making guardianship, custody and access orders, to the desirability of ensuring that children have ongoing and close contact with both their parents. The Minister said on Second Stage that he intended to strengthen the law in this area and his amendment is the most appropriate way of bringing about change under the 1964 Act.
Deputy McManus's amendment No. 23 is similar to amendment No. 31 in some respects. However, there are some technical legal difficulties with amendment No. 23 as it appears to apply to orders made under section 11 of the 1964 Act. The Minister's amendment is wider in that it applies not only to section 11 but also to sections 6A, 14 and 16 which are also relevant. I hope Deputy McManus is satisfied with the Minister's amendment, which is the better option.
Paragraph (b) of amendment No. 20 which provides that a court may order that access to a child be given to a relative of a child or guardian is not necessary as the High Court decided in the case of D. v. D. that a court is entitled to make an access order under section 11(1) of the 1964 Act to allow a child access to persons other than the natural parents. The Minister's amendment No. 28 provides that persons other than the natural parents may apply to the courts in their own right for access to the child. Hopefully this covers the Deputy's concerns.
Paragraph (c) of amendment No. 20 provides that a court may order the provision of counselling and mediation services for a child. Section 20 of the Child Care Act, 1991, already provides that where it appears appropriate in proceedings under the Guardianship of Infants Act, 1964, for a care or supervision order to be made in respect of the child the court may, of its own motion or on the application of any person, adjourn the proceedings and direct the health board for the area in which the child resides or is for the time being to undertake an investigation of the child's circumstances. The Minister's amendment No. 49 amends this section by extending its provisions to the new section 11B and the Family Law Act, 1995, and the Family Law Divorce Act, 1996.
The effect of the Deputy's amendment would be to introduce compulsory mediation. In view of the adverse effect which court proceedings can have on children it has been suggested that the parties to guardianship, custody and access proceedings should be compelled to use the services of a mediator to help effect a reconciliation of the issues before engaging in court proceedings. The Bill does not compel the parties to use the services of a mediator and only requires a solicitor to discuss with them the possibility of a reconciliation and to give them the names of a mediator. When a solicitor has brought the option to their attention the parents must be considered to be mature enough to be the best judges as to whether they need to use the services of a skilled mediator or some other person qualified to help effect a reconciliation. I have no doubt that if parents, the majority of whom are concerned to ensure their child's best interests are protected, believe there is a hope of reaching agreement with the help of the mediation services they will avail of them. To compel parties to use these services against their will could have a negative effect and lead to further disharmony and the prolonging of an already difficult situation. For all these reasons I am not in a position to accept amendment No. 20.
I used the word "may" instead of "shall" so that it would not be compulsory. The Minister said that in the majority of cases parents are in the best position to know whether they needed mediation services. However, people involved in court proceedings can be very irate and if they were able to solve their differences there would be no need to take the case to court. I take the Minister's point that this matter is dealt with in section 20 of the Child Care Act. This brings me back to my point about the Bill being all over the place, so to speak, because of the citation of all the Acts.
On the use of the word "may", the point is that when the court makes an order it is compulsory.
The Minister said that the norm is to grant the mother custody. That is the point I made. These amendments were tabled because many people are unhappy with the norm in the courts. I would prefer joint custody to be awarded in most cases and for custody to be awarded to either the mother or father only in cases where it is not possible to award joint custody. The purpose of these amendments is to change the norm.
The Minister said the 1964 Act does not provide that the mother should be granted custody. However, the practice in the courts over many years has been to grant custody to the mother. I and my colleagues want that practice changed so that joint custody will be the norm. A mother is normally granted custody of the children unless the father puts forward a compelling case why he should also be granted custody. Why should the father have to do that? He should be entitled to joint custody as of right. If there is a difficulty where he must be excluded because he abused the children, because of his lifestyle or whatever, that should come into play then, but under normal circumstances joint custody should be granted.
The Minister set out the present position, but the purpose of the amendments is to bring about change and if we do not do so in this Bill the present position will continue for years. We do not readily have statistics — most cases are held in camera and sometimes there are no stenographers present — to show that in 95 per cent of cases sole custody is awarded to the mother. Will the Minister consider this matter before Report Stage? Perhaps she will consider submissions by groups such as Parental Equality, which carried out much work in this area. I met that group on a number of occasions. It made presentations to the Joint Committee on the Family, which I chaired, and outlined horrendous cases to show that fathers are excluded in normal circumstances. The compelling case we are making today is that fathers should be included. The Minister should bear in mind the correspondence and submissions received, particularly from Parental Equality.
The Minister and I met the Parental Equality group and discussed the detail of the cases referred to. As regards awarding joint custody, the interests of the child must be paramount. All the facts are put before the court and in a majority of cases custody is granted to the mother. As regards the father having a say in the upbringing of a child, that is a matter of guardianship as distinct from custody. There should be a distinction between custody and guardianship rights.
Deputy McManus made a point referred to by Deputy Shatter this morning. Section 9, which inserts a new section 11 into the 1964 Act, provides that for the avoidance of doubt the court, in making an order under section 11, may, if it thinks it is appropriate, grant custody of a child to the child's mother and father jointly. The Minister said on Second Stage that the purpose of this new section is to allay the perception that the law does not permit the making of such orders. Courts make orders for what they term joint custody. There is, however, no clear definition of joint custody, nor does the Bill attempt to give one. The court sometimes awards what it terms joint custody where the arrangements provided for can range from a child spending a certain number of overnights separately with each parent during the week to cases where parents, although formally separated, continue to live in the same household and are in a position to operate a joint custody arrangement. Much of the confusion in this area stems from the mistaken belief that where custody is granted to one parent the other parent loses all say in the upbringing of the child. In general where one parent is granted sole custody the other parent continues to have joint guardianship of the child and a right to a say in the upbringing of the child.
Guardianship describes a group of rights and responsibilities automatically vested in guardians. Specifically, guardianship encompasses the duty to maintain and properly care for a child and the right to make decisions about a child's religious and secular education, health requirements and general welfare. Regardless of whether a parent who is a guardian of a child is granted custody, those rights are not affected unless a court specifically makes an order to that effect. A custodial parent cannot remove such rights. Where a court makes an order for custody it is important to be as specific as possible in regard to the arrangements to be made in the best interests of the child.
I have taken careful note of the points made by Deputy Shatter this morning. It is important that where there is doubt about the court's intention, counsel for the parties can have the matter clarified. Deputy Neville said the section is aimed at promoting joint custody, but that is not the case. It is intended to clarify the existing law where joint custody, sole custody or any other arrangements are given equal effect in the legislation.
Amendment agreed to.
Amendments Nos. 20 to 23, inclusive, not moved.
Amendment No. 24. Amendments Nos. 25 and 28 are related and it is suggested that Nos. 24, 25 and 28 be discussed together, by agreement.
I move amendment No. 24:
In page 7, to delete lines 36 to 41, and substitute the following:
11B.—(1) Any person who—
(a) is a relative of a child, or,
(b) has acted in loco parentis to a child, and to whom section 11 does not apply may, subject to subsection (3), apply to the court for an order giving that person access to the child on such terms and conditions as the court may order.”.
Amendments Nos. 24 and 28 extend the categories of persons under section 9 who may apply for access to a child. The Bill as it stands allows blood relatives of a child or of the parents of a child to apply for access to that child. The Minister said on Second Stage that the section as framed, appeared to be unduly restrictive and that there are other circumstances where it might be in the child's best interests that persons who are not related to a child by blood may be given access. Accordingly amendments Nos. 24 and 28 provide that a person who has acted in loco parentis to a child or a person related to a child through adoption may also apply for access to a child. Therefore amendment No. 25 is unnecessary.
I welcome the decision by the Minister to broaden this section and that he has lived up to his commitment to reconsider it. The section was generally recognised as being too restrictive. There is also the question of a father figure or mentor — not necessarily the father himself — and there are many people in an extended family or people who act in loco parentis who have tremendous influence on a child. The Minister's approach is welcome.
I, too, welcome this amendment. In my capacity as Chairman of the Oireachtas Joint Committee on the Family, of which the Minister of State is a member, we met Grandparents Obliterated. I recall an articulate presentation by ordinary people who were concerned that in circumstances outside their control where their own children's marriages were breaking up they had no contact with their grandchildren and felt badly about it. This amendment and some of the provisions in the Bill will give them a legal right to access to their grandchildren. This is welcome and I thank the Minister for it.
Amendment agreed to.
Amendments Nos. 25 and 26 not moved.
I move amendment No. 27:
In page 8, line 5, to delete "guardian." and substitute "guardians.".
This is a technical amendment. It merely substitutes the word "guardians" for "guardian" in paragraph (c) of subsection (3) of new section 11B of the Act of 1964.
Amendment agreed to.
I move amendment No. 28:
In page 8, between lines 5 and 6, to insert the following:
"(4) In this section, a relative of a child who is the subject of an adoption order includes—
(a) a relative of the child's adoptive parents,
(b) the adoptive parents of the child's parents, or
(c) a relative of the adoptive parents of the child's parents.".
Amendment agreed to.
I move amendment No. 29:
In page 8, lines 6 to 8, to delete "section 11 or 11B containing a direction as to access to a child" and substitute "this Act".
The Bill provides in section 9 for the insertion of a new section 11C in the Act of 1964. The effect is that an order under section 11 of new section 11B of the Act of 1964 containing a direction as to access shall not be stayed pending appeal unless a court directs otherwise. The effect of amendment No. 10 is to extend new section 11 to all orders under the Act of 1964. It means orders of guardianship and custody in addition to orders of access under the Act of 1964 shall not be stayed pending appeal unless a court directs otherwise. There are already District Court rules, order 58 rule 13 and superior court rules, order 61 rule 6, which have similar effect and the section in the Bill will give statutory backing to those rules.
Amendment agreed to.
I move amendment No. 30:
In page 8, line 11, to delete "otherwise.'." and substitute "otherwise.".
Amendment agreed to.
I move amendment No. 31:
In page 8, between lines 11 and 12, to insert the following:
"11D.—In considering whether to make an order under section 6A, 11, 14 or 16 the court shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.'.".
Amendment agreed to.
I move amendment No. 32:
In page 8, between lines 11 and 12, to insert the following:
"11D.—(1) The Minister for Justice, Equality and Law Reform may, by regulations made under this subsection, amend section 2 in order to provide for circumstances where the coming into being of a child involves the provision of medical treatment relating to human fertilisation or embryology.
(2) Where regulations are proposed to be made under subsection (1), a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made unless a resolution approving such draft has been passed by each such House.".
I wish to draw the Minister's attention to the amendment. I am putting down a marker that something will have to be done about the content of this amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 9, as amended, stand part of the Bill."
Will the Minister comment on section 11B. (2) which states:
A person may not make an application under subsection (1) unless the person has first applied for and has been granted by the court leave to make the application.
If my interpretation is correct this means a double application to the court and consequently double legal fees. It means that a father who applies for joint custody must first go to the court to obtain permission to apply. When he has obtained such permission he must reapply to the court for a final decision on his application. If my interpretation is correct this is an inhibitory factor in facilitating a father obtain joint custody of the child.
There are two issues here. The reason is to avoid vexatious claims and to protect the parents' rights under the Constitution.
Will the Minister confirm this necessitates two court hearings and two sets of legal fees which is unsatisfactory? Surely a mechanism could be found whereby obtaining a decision on joint custody would not require the expense of two court hearings?
Under the Constitution it is unavoidable. First of all the court has to satisfy itself that the person is a suitable person to make the application.
Why cannot the same court decide on joint custody and the right to apply rather than return to the court as the Minister is implying?
The court has to allow the person to apply before they can actually apply. Under the Constitution the parents' rights must be protected in regard to the person making the application. Application cannot be made in the same way.
I do not understand why it cannot be done. I am asking that an application be made and for the court to decide to accept that application before considering it. Even though the application is with the court, it can decide to accept or reject that application which satisfies the first part. The same court can then decide, if it accepts the application, to make a decision on joint custody rather than obtaining permission to apply for joint custody and returning six, eight or 12 months later to obtain joint custody.
I ask the Deputy to refer to the Minister's contribution on Second Stage which may help clarify the position. 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 unmeritorious or vexatious claims are prevented from proceeding to a full hearing. This is in the child's interest and it also protects the parents' constitutional rights.
I am not objecting to the principle or the procedure outlined.
Having gone through the process outlined by the Minister of State, why can the court not decide the application is permissible? Having made a decision to accept the application, the court would be in possession of many of the facts and in a better position to make a final decision on the matter. I have no difficulty with what the Minister of State said, but the court should accept further evidence on the basis of the application and then decide whether joint custody is acceptable. Otherwise two court cases, two sets of lawyers and two sets of legal fees would be involved in the final decision. Is it not possible for one court case to deal with the procedures outlined?
While I accept the Deputy's point, the filter process is important. It includes the constitutional right of parents to make their views known on the application. There would be constitutional and legal difficulties in dealing with the entire matter on the same day. I accept the section is cumbersome, but we do not have an option. It has to be done in this way.
This provision would mean a father on a marginal income and not eligible for free legal aid would have to incur the expense of two court cases to prove his right to joint custody of his child or children.
The section applies only to grandparent access, it does not cover the father's position. The parents or guardians would attend the first hearing on the right of the person in question to make the application and the child or children would be involved in a separate hearing.
If a person makes a vexatious claim and both procedures are taken on the same day, the child or children would have to be dragged along as well. The application must be deemed in order before compiling the facts for a hearing which the children may have to attend. This provision does not refer to the father.
Question put and agreed to.
Section 10 agreed to.
SECTION 11.
Amendments Nos. 33 to 38, inclusive, not moved.
Amendments Nos. 39 and 46 are related, by agreement, they may be discussed together.
I move amendment No. 39:
In page 12, line 14, after "appropriate." to insert "A custodial parent who breaches an access order may lose sole custody.".
The Minister of State said earlier that while the sanctions are in place, they are seldom applied because the majority of fathers would not push a case to commit the mother to prison. An example of this was outlined this morning. My amendment proposes that "A custodial parent who breaches an access order may lose sole custody.". The courts should have discretion to grant joint custody to both parents if the custodial parent consistently breaches an access order. When fathers are continually denied access many of them opt out of the relationship with their children because of the frustrations involved and damage that might be caused to the children. The court should have a right to deny sole custody to a parent who breaches an access order.
Section 5 of the Courts (No. 2) Act, l986 provides for the enforcement of custody and access orders under the Guardianship of Infants Act, l964. It provides that any person failing to comply with the terms of such orders shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or to imprisonment for a term not exceeding six months or both. Deputy McGrath stated this morning that in such circumstances the father usually makes a decision in the interest of the child or children. The necessary penalties are in place. However, as the maximum penalty and term of imprisonment is out of line with the jurisdiction in the District Court, the Minister has tabled amendment No. 46 to strengthen the position. It amends section 14 to provide for an increase in the penalties for breaches of custody and access orders to bring them into line with the current jurisdiction of the District Court. The sanction that may be imposed by the Circuit and High Courts for breaches of custody and access orders is imprisonment for contempt of court.
Deputy Neville's amendment would add a further layer of penalties for breaches of access orders and would mean loss of custody for the parent in question.
Not necessarily, it could mean joint custody.
It would mean loss of custody for the person who has sole custody. Deputy McGrath said it would be in the best interests of the child or children if the parent did not fight the issue. The fines are being strengthened. The amendment purports to penalise a custodial parent for breach of an access order, but it does not attempt to do so for breach of an access order by a parent who has access. The amendment is not appropriate because the courts impose severe penalties for breaches of orders made by them. As Deputy McGrath suggested, it is good policy to direct court sanctions for breaches of access in the direction of the child whose welfare might be in question if a parent's right of custody is removed. For that reason I am not in a position to accept the Deputy's amendment. I suggest amendment No. 46 which provides for updating the penalties for breaches of access and custody orders contained in section 5 of the Courts (No. 2) Act, 1986, is the way to proceed. The Minister's amendment strengthens the position by substituting a fine of £1,500 for the £200 fine and 12 months instead of six months imprisonment. The Deputy's amendment is not the most appropriate in the interests of the welfare of the child.
I note what the Minister of State said. She said my amendment would add a new layer of penalty, but I argue that layer of penalty seeks to overcome the difficulty created when access is denied. It is more important to base penalties so as to ensure a father has access where the courts decide he should have access. It should be possible to ensure such access is available to the father. That is provided in amendment No. 39. I have doubts about the Minister's amendment No. 46 which provides for putting a mother in jail for 12 months rather than six months. She claims that is preferable to introducing a clause which would give the parents joint guardianship where the court has decided that the father should have access and that access is denied. I accept my amendment introduces a new layer of penalty, but I challenge the Minister of State to say that increasing the fine to £1,500 and putting a mother in prison for 12 months is a better solution than giving the parents joint custody.
The courts will rarely imprison a person for breaches of an order, but the increase in the fine from £200 to £1,500 is a substantial deterrent. My amendment provides for that and that option will be available to the courts. I would prefer the person concerned to face a fine of £1,500, which would impact on the person causing the problem, rather than to remove custody from the parent solely on the basis that he or she is in breach of an order. To remove such custody would not only penalise the parent involved, it would also penalise the child. The imposition of a £1,500 fine would be a direct penalty on the parent concerned, while the removal of custody would impact on the rights of the child. A balance must be struck in that regard. The removal of custody rights from the child would have a major impact.
The Minister has misinterpreted my amendment. It does not seek to remove custody of the child from the mother, but provides for joint custody because it removes sole custody from a parent. Its intent is not to remove custody, but to remove sole custody and to replace it with joint custody. I may have worded the amendment badly and I can table another on Report Stage. My amendment, which states that a custodial parent who breaches an access order may lose sole custody, means that sole custody can be replaced by joint custody. The courts have decided it is in the child's interest to have access to the father and in this situation the mother is denying something the courts decided is in the best interest of the child. It is the view of the Minister of State that the solution is to put the mother in prison for 12 months rather than allow the father have joint custody of the child with the mother.
That is not how I interpret the Deputy's amendment. His amendment only mentions the custodial parent who breaches an access order may lose sole custody. It does not refer to the conversion of sole custody to joint custody.
The courts will decide that.
This amendment will not bring that about.
If sole custody is removed it must be replaced by something else under this Bill and the courts will decide on that.
If that is the Deputy's intention it should be included in the amendment.
Will the Minister consider that for Report Stage?
The Deputy could table an amendment to cover that on Report Stage. This amendment does not reflect the point he made. I am only now coming to terms with the Deputy view that his amendment will provide for the conversion of sole custody to joint custody, but it will not provide that. Rather than removing sole custody from the custodial parent which this amendment proposes, it would be better to impose a fine of £1,500. The Deputy wants to go one step further and convert sole custody to joint custody, but that is another day's work. That is not covered in his amendment and for that reason amendment No. 46 should be accepted. The increase in the fine will be a deterrent. No more than removing custody from a parent and the effect that would have on the child, I am not all that interested in putting parents in prison——
Custody would be removed if a parent were put in prison for 12 months.
It would be, but that option exists. Amendment No. 46 provides for increasing the period of imprisonment from six months to 12 months which would be a deterrent. Amendment No. 39 adds another layer of penalty. I cannot accept it and I highly commend amendment No. 46.
I have some concerns about the Minister's amendment. I do not know if indicating to the courts that a person who breaches an access order should be imprisoned for 12 months is the right way to proceed. If we insert the Minister's amendment we will indicate to the courts that it is the view of the Oireachtas, representing the people, that the penalty for such breaches should be imprisonment for 12 months. That would remove custody of the child from the mother. I will not press the amendment, but I will table another on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 13, line 29, before "costs" to insert "fees and expenses of a guardian ad litem appointed pursuant to subsection (1) and the”.
This is a technical amendment. The new section 28 of the Act of 1964, as inserted by section 9 of the Bill, provides that the cost of legal representation of a guardian ad litem of a child may be ordered to be paid by such parties to the proceedings as the court may determine. Amendment No. 15 makes clear that the fees and expenses of a guardian ad litem may also be the subject of an order from the courts.
Amendment agreed to.
Acting Chairman
Amendment No. 41 is in the name of the Minister, amendment No. 42 is related and it is proposed that amendments Nos. 41 and 42 be taken together by agreement.
I move amendment No. 41:
In page 13, lines 47 and 48, to delete "Where an application is made to the Circuit Court for an order under section 24, the Court" and substitute "Where an application is made to the court for an order under section 24, the court".
These are technical amendments to section 11 which take account of certain jurisdictional changes. The Circuit and District Courts have jurisdiction under the new section 24 of the Act of 1964 in respect of custody and access agreements being made a rule of court. Section 15 of the Bill makes similar changes to the Family Law (Maintenance of Spouses and Children) Act, 1976 in so far as making maintenance agreements a rule of court is concerned.
Amendment agreed to.
I move amendment No. 42:
In page 13, lines 53 and 54, and in page 14, line 1, to delete "Where an application is made to the Circuit Court for an order under section 8 or 8A of the Act of 1976, the Court" and substitute "Where an application is made to the court for an order under section 8 or 8A of the Act of 1976, the court".
Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12.
I move amendment No 43:
In page 14, between lines 10 and 11, to insert the following subsections:
"(2) The Minister for Justice, Equality and Law Reform shall, within 12 months from the date of passing of this Act, make and publish a consolidated version of the Guardianship of Infants Acts, 1964 and 1997, (‘the Acts') and judicial notice shall be taken of a document certified to be a true and accurate copy of the Acts so published.
(3) A consolidated version of the Acts published under subsection (1) may contain such modifications or amendments to the Acts designed for—
(a) the substitution of the terms ‘parental responsibility' for ‘guardianship' and ‘residence order' for ‘custody order',
(b) the removal of ambiguities and inconsistencies and the achievement of uniformity of expression, and
(c) ancillary or consequential matters, as to the Minister seems necessary or expedient; and every such amendment shall take and have effect as if included in an Act.".
We discussed this matter earlier. The Minister should consolidate all these Acts and make them user friendly. If nothing else, it would provide that when we are dealing with legislation we would not have to look up nine or ten Acts which are affected by amendments. Earlier the Minister agreed with me that such a consolidation would be helpful to everybody.
Many of those who read these Acts are in difficulty and do not have substantial financial means at their disposal. They like to be able to read and understand the Acts and I ask the Minister to consolidate them.
In subsections (3)(a), (3)(b) and (3)(c) I am asking for changes in the wording. It was said earlier that language is very important. I ask the Minister to think seriously about this amendment.
This amendment would, by way of a new subsection (2), compel the Minister within 12 months of the date of passing the Bill to publish, it appears, a consolidated text of the statutory law on guardianship of children. The text envisaged by the amendment would also apparently allow the Minister, under new subsection (3), to amend the law on guardianship in some respects by the introduction of new concepts to replace the concepts of guardianship and custody. Those amendments would have effect as if included in an Act.
Under the amendment judicial notice would require to be taken of the text that is published by the Minister. First, the Minister has no departmental function in relation to publication of texts of Acts of the Oireachtas, including texts which would somehow combine the statutory law on a particular subject matter. I am aware that some commercial publishers have published such texts on English law and it may be that the same could be done by publishers in relation to aspects of Irish law. I doubt, however, that judicial notice could be required to be taken of any such texts.
Second, the Deputy will appreciate that the passage of legislation must be in accordance with the constitutional requirements and that there cannot be a primary legislative process outside of that system. In effect, that is what the wording of the amendment proposes. There could be no question whatever of giving the Minister power to circumvent the legislative process — I do not think that was the intention but that is the effect of the wording of the amendment.
Third, the bizarre notion of the amendment as it is worded is further highlighted in subsection (3) where it would allow the Minister to change the law without going through the legislative process. I do not think that was the Deputy's intention but that is what we take from the wording.
For all of those reasons the amendment is obviously totally unacceptable and cannot be supported on any basis. I appreciate that certain aspects of the law, including family law, would benefit from some consolidation, and we talked about this earlier. The approach of my Department on the matter is as set out by me in reply to a question in the House yesterday from Deputy Wall. I said that the legislative priorities of the Department in the civil law area are as announced on 25 September 1997 by the Chief Whip in the Government's programme of legislation for the current session and that none of those measures are confined solely to consolidation. I said, however, that in the context, for example, of the promised Jurisdiction of Courts and Enforcement of Judgments Bill the Minister is taking the opportunity to consolidate all the statutory law in this area. The Employment Equality Bill will also, among other matters, consolidate statute law. I indicated that, in the course of preparing reforming legislation, it is the intention of the Department to consolidate aspects of the law in such legislation where this is feasible and warranted, and that while there are no proposals at present for legislation which is confined solely to consolidation of civil law the matter will be kept under review having regard to the need to dispose of urgent reforming measures.
Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.
I move amendment No. 44:
In page 14, paragraph (c), lines 19 and 20, to delete "Children (No. 2) Act, 1997" and substitute "Children Act, 1997".
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.
I move amendment No. 45:
In page 14, paragraph (a), lines 27 and 28, to delete "Children (No. 2) Act, 1997" and substitute "Children Act, 1997".
Amendment agreed to.
I move amendment No. 46:
In page 14, lines 30 and 31, to delete paragraph (b) and substitute the following:
"(b) in subsection (2)—
(i) by the substitution of ‘section 7, 11 or 11B' for ‘section 7 or section 11',
(ii) by the substitution of ‘£1,500' for '£200', and
(iii) by the substitution of ‘twelve months' for ‘six months', and".
Amendment put and declared carried.
Section 14, as amended, agreed to.
Section 15 agreed to.
Amendments Nos. 47 and 48 not moved.
Section 16 agreed to.
NEW SECTIONS.
I move amendment No. 49:
In page 15, before section 17, to insert the following new section:
17.—Section 20 of the Child Care Act, 1991, is hereby amended by the substitution of the following subsection for subsection (1)—
‘(1) Where in any proceedings under section 7, 8, 11, 11B or Part III of the Guardianship of Infants Act, 1964, or in any case to which—
(a) section 3(3) of the Judicial Separation and Family Law Reform Act, 1989,
(b) section 6(b) or 10(f) of the Family Law Act, 1995, or
(c) section 5(2), 11(b) or 41 of the Family Law (Divorce) Act, 1996,
relates, or in any other proceedings for the delivery or return of a child, it appears to the court that it may be appropriate for a care order or a supervision order to be made with respect to the child concerned in the proceedings, the court may, of its own motion or on the application of any person, adjourn the proceedings and direct the health board for the area in which the child resides or is for the time being to undertake an investigation of the child's circumstances.'.".
This is a technical amendment. Under the Bill as it stands section 17 extends the provisions of section 20 of the Child Care Act, 1991, to proceedings under new section 11B of the Act of 1964. Section 20 empowers the court to adjourn any proceedings before it for the delivery or return of a child to enable the health board to investigate the child's circumstances.
Amendment No. 49 is more comprehensive. It substitutes a new section for section 20(1) with further amendments to allow the court to adjourn proceedings under the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996.
Amendment agreed to.
Section 17 deleted.
I move amendment No. 50:
In page 15, before section 18, but in Part II, to insert the following new section:
18.—Section 2 (as amended by the Family Law Act, 1995) of the Child Abduction and Enforcement of Custody Orders Act, 1991, is hereby amended—
(a) in the definition of ‘the Minister' by the substitution of ‘the Minister for Justice, Equality and Law Reform' for ‘the Minister for Equality and Law Reform', and
(b) in the definition of ‘probation and welfare officer' by the substitution of ‘the Minister for Justice, Equality and Law Reform' for ‘the Minister for Justice.'.".
Amendment agreed to.
I move amendment No. 51:
In page 15, before section 18, but in Part II, to insert the following new section:
18.—In any case where a solicitor proposes to act for a person in circumstances where that person could have recourse to the services of the Central Authority under the Child Abduction and Enforcement of Court Orders Act, 1991, the solicitor shall without charge inform the person of the availability of those services.".
This is an important new section. Every day we read in the newspapers about child abduction, which is a serious offence. When a child is abducted, the parent must act swiftly. The first place the parent goes for help is to a solicitor and it is often the case that the parent does not have any money. The reason I tabled this amendment is the solicitor should be obliged to advise the applicant that the Department of Justice, Equality and Law Reform provides these services free of charge. People whose children are abducted undergo terrible trauma and do not know what to do. Will the Minister of State include the proposed new section in the Bill so that people will be at ease when they are advised by their solicitors that they will incur no charge and that the State will look after their affairs?
While I accept the principle the Deputy is attempting to address, the amendment as it is worded would compel members of the legal profession to inform, without charge, persons who seek legal advice in respect of cases of abduction of a child into or out of the State of the services available in my Department through the central authority for child abduction. That central authority acts on the basis of the Hague and Council of Europe Conventions on Child Abduction which are given the force of law in the State by the Child Abduction and Enforcement Court Orders Act, 1991.
My assumption is that members of the legal profession would act in the manner required by their profession and the code of practice which applies in such cases. If individuals have cause for complaint about solicitors who act improperly or overcharge, such complaints can be brought to the attention of the Law Society. The proposed amendment seeks to prohibit solicitors from charging for certain legal advice but fails to state what will happen if such a charge is made. In effect, the amendment cannot achieve any purpose by the manner in which it is framed. I regret that I am not in a position to accept it.
The amendment is designed to ensure that people applying to their solicitors will be advised that there is no cost involved because such services are provided free of charge by the State. Does the Minister of State agree that people should be so advised? I see no difficulty with the amendment being accepted. The affairs of people working in the legal profession with whom I am acquainted are above board. However, there are those who would not advise the applicant of their rights in this area. It is important that they should do so. Will the Minister of State reconsider this matter?
I do not know if the Deputy is suggesting that legal aid be made available in respect of all cases of abduction regardless of the income of those making applications. The financial aspects of this matter are probably not of most concern to people making such applications, particularly if those involved can afford the cost. I do not know if the Deputy is suggesting that the State should pay for all such cases regardless of the income of the people making applications.
Perhaps I am wrong, but I understand that this service is available free of charge in all cases.
In that case, what is the Deputy's point?
People consulting solicitors should be advised that this service is available from the State because they are not aware of it at present.
Most of the cases referred to the central authority are referred to it by solicitors. If a person consults their local solicitor, are charged for this service but are not informed that they can seek legal aid, the individual can take the matter up with the Law Society. The Deputy made the point that individuals might not be aware of the service and, on consulting a solicitor, they might not be informed of its existence. The only course of action open to them is to take the matter up with the Law Society when they subsequently become aware of the service. Solicitors are aware of this information and should pass it on.
What is the Minister of State's difficulty with accepting the amendment? I do not believe it will cause any legal difficulties. In many of the cases under discussion, people do not have adequate funds to pay a solicitor or approach the Law Society.
The difficulty with the amendment is that it states that a solicitor shall, without charge, make information available to people. I do not know that we can direct in law that private solicitors should operate free of charge with regard to any aspect of advice given.
Is the Minister of State indicating that if I reworded the amendment before Report Stage there is a possibility that she might accept it?
The amendment cannot be accepted in its current form. The principle it advocates cannot be accepted at all. I do not know if the Deputy wishes to propose a different amendment for Report Stage but there is no way in which we can enshrine in law that solicitors should provide any services, even initial advice, free of charge. There is a problem with accepting the amendment and I do not know if the Deputy can frame the point she is making in a different manner.
Will the Minister of State inform me whether she will be precluded from accepting an amendment advising people of their rights? I want people to be advised of those rights. I am familiar with cases where distraught women whose children were abducted sought advice from solicitors and were not aware that the services they required are available, free of charge, from the State. The cost involved is prohibitive. I will reword the amendment and table it on Report Stage.
Amendment, by leave, withdrawn.
Sections 18 to 26, inclusive, agreed to.
SECTION 27.
I move amendment No. 52:
In page 18, after line 39, to insert the following subsection:
"(5)(a) A person who, in relation to the giving of evidence by a child, whether in accordance with subsection (1) or otherwise, counsels or procures the making by the child of a statement material in the proceedings concerned which that person knows to be false or does not believe to be true, shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of subornation of perjury.
(b) For the avoidance of doubt, an offence is committed under paragraph (a) regardless as to whether—
(i) the statement counselled or procured to be made was or was not given in evidence by the child, or
(ii) if the statement was made, the child knew or did not know it to be false, or believed it to be true or untrue.".
This amendment is necessary because there is an English authority to the effect that if a child witness does not know that what he or she is saying is untrue, and is, therefore, not guilty of perjury, the person who persuaded them to give false evidence cannot be guilty of this offence either. The amendment attempts to close that gap by making the person who coaches a child to give false evidence guilty of an offence even when the child is innocent.
I have severe difficulty with cases where children enter court in such circumstances. As I stated earlier, in many cases parents are able to deal with their difficulties outside the courts. However, children often become pawns when cases go to court and, in certain instances, they are advised to give false evidence. A child who is advised to give false evidence cannot be guilty of perjury, but the person who advised the child should be guilty of perjury because it would be very wrong of any adult to advise a child to tell lies, and particularly to tell lies in court. We are talking about the welfare of children. In rearing children, basic honesty should be the first thing parents think about. However, when parents go into court and things get hot and heavy children may be told to say anything. Children who are told to tell lies find it very difficult to do so, but that is what is happening, and I ask the Minister to take it on board because it is a very serious problem.
Section 27 of the Bill enables the court in civil cases to receive the evidence of children under the age of 14 years otherwise than on oath or affirmation. The section also provides that a child who gives false evidence in civil proceedings otherwise than on oath or affirmation by virtue of section 27 shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of perjury.
The main purpose of amendment No. 52 is to ensure that a person who counsels or procures the making of a false statement by a child who gives evidence under section 27 of the Bill shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of subornation of perjury. Under the law as it stands, perjury is an offence when it is committed by a person who asserts upon oath the truth of some matter or fact, which assertion he or she does not believe to be true. Subornation of perjury is the offence of procuring a person to commit perjury which he or she commits in consequence of such procurement.
Under the law as it stands in section 7 of the Criminal Law Act, 1997, any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as the principal offender. That provision in the Act of 1997 would apply to the type of case intended to be covered by Deputy Moynihan-Cronin's amendment. In other words, there are already sanctions in place to deal with a person who encourages a child to give false evidence of the kind referred to in section 27 of the Bill. For that reason there is no need for the amendment.
Have there been any convictions under this section of the Act?
I will get that information for the Deputy.
Amendment, by leave, withdrawn.
Question proposed: "That section 27 stand part of the Bill."
I have a comment on this which relates to Deputy Moynihan-Cronin's amendment. Under section 27 a child who gives false evidence in civil proceedings otherwise than on oath or affirmation by virtue of section 27 shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of perjury. Are children being criminalised in that section of the Bill? What penalties would a 15 year old be subject to if found guilty under this section of the Bill? Under subsection (4), the unsworn evidence of a child may corroborate evidence sworn or unsworn given by another person. Can the unsworn evidence given by a child stand on its own without corroboration and be considered by the court?
We are certainly not trying to criminalise children. We are just expanding their rights with regard to giving evidence before the courts.
The Minister has not answered my question. What are the court's options for sentencing if a child is found guilty of an offence under this section?
A child under 15 would obviously not be imprisoned but would be sent to a relevant institution. The provisions are similar to those in the Criminal Evidence Act, 1992. The crime of perjury is very serious. A child under 15 could be committed to a relevant institution and, if over 15, will be treated as an adult.
I accept it is a serious crime, but I would be concerned that a child of 15 might be found guilty of perjury and sent to an institution for a considerable period of time, especially where that child is experiencing family difficulties, where his or her custody is being considered and both parents are arguing about who shall have custodial rights and putting pressure on the child.
In regard to the Deputy's question on subsection (4) in relation to unsworn evidence, subsection (4) provides that the unsworn evidence of a child may corroborate evidence, sworn or unsworn, given by another person. Certain types of evidence are regarded as being inherently weak or suspect and so deemed to require additional support or corroborative evidence. This could arise, for example, in a case that is dependent on visual identification evidence.
The Minister has said that if a child under 15 is found to have given misleading evidence on oath, that child shall be considered to be guilty of perjury or subornation of perjury and could therefore be sentenced, and in the case of a child under 15, it could be to one of several kinds of institutions. Is the Minister saying that, for example, in the case of a child under 15 who is induced to make a statement that is false that child, as well as the person who induced the child, could be found guilty in this way? Does the Minister really think it is appropriate in a case where a child under 15 is induced to give false evidence that a penalty should be applied to the child? In a case such as this children are under severe pressure. I doubt whether it could be held in such circumstances that a child under the age of 15 would be a knowing party to perjury. If that is what the Minister of State is saying I ask her to reconsider the matter between now and Report Stage. It amounts to extraordinarily harsh treatment, apart from the question of whether there are institutions to which children can be committed on conviction. That is another day's work.
That was the thrust of amendment No. 52 in my name. The Minister of State advised me that children are protected under section 7 of the Criminal Law Act, 1997. Is she now saying that is not correct?
Subsection (2) states:
Any child whose evidence is received in accordance with subsection (1) and who makes a statement material in the proceedings concerned which the child knows to be false or does not believe to be true, shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of perjury.
Judges are well aware of the dangers inherent in the coaching of children giving evidence by parents. This has been adverted to in many High Court cases. It is unusual for a judge to take the matter further than that. It is not the child who will suffer but the adult, in this case probably the parent, who induces them to give false evidence.
The Minister of State started off by saying that if a child is found to have given false evidence he or she can be convicted. If an adult, in this case a parent, is found to have induced or obliged a child to give false evidence he or she can also be convicted. Nothing that the Minister of State said indicates that a child found to have given false evidence will be convicted without an inquiry being held to discover whether they were induced to do so. If it is found that a child has given false evidence, is there a provision in existing legislation which would require the court to ascertain whether they were induced or obliged to do so? If not, there should be. As we are talking about children under the age of 15 in highly stressed circumstances it appears utterly disproportionate and harsh to provide for the application of penalties to that child. One cannot reasonably claim that a child under the age of 15 would be a willing or knowing actor in giving false evidence in a case such as this. Almost without exception they would be acting under an inducement from an adult.
The Bill states at line 32, page 18: ". ..which the child knows to be false or does not believe to be true. ..". In such circumstances the relevant penalties would apply.
That is Dickensian. Queen Victoria would never have stood for that.
We cannot have people committing perjury no matter who they are.
In a case such as this where everybody involved is stressed, no child under the age of 15 will give false evidence unless they are put under pressure to do so. The Minister of State has informed me that if a child is found to have given false evidence he or she can be convicted. She has not said that children will be convicted only where it can be shown to the satisfaction of the court that no inducement was offered and no pressure put on them. It is absurd — Dickensian — to provide for the application of penalties to a child under the age of 15 who is found to have given false evidence in a case such as this. At the very least, the court should ascertain whether pressure was put on the child to do so. It is not appropriate in our legal system to convict a child of perjury in a case such as this. If the Minister of State is not in a position to suggest a change, will she reconsider the matter between now and Report Stage? To send a child to prison or a place of detention for acting in this way goes against the spirit of what we are trying to achieve for children.
I have read the subsection twice and the language is clear and distinct. It states that any child who makes a statement which he or she know to be false or does not believe to be true shall be guilty of an offence. In a custody case a ten year old child will make statements knowing them to be false to gain access to the parent, probably the father, who has left the family home. The Minister of State is saying that the child is guilty of perjury and should be sentenced. As Deputy Dukes said, that is ridiculous. The Minister of State should reconsider the matter. Although I asked three times, she has not informed us of the penalties. They are listed in the Criminal Law Act, 1992. I am aware that they are severe, rightly so for a person over the age of 18.
This Bill does not contain anything that is not contained in the Criminal Law Act, 1992. Irrespective of the age of the person concerned, perjury can have an enormous impact on the outcome of a case. Children cannot say what they like in court. The important words are "which the child knows to be false or does not believe to be true". No one should be allowed to give false evidence. We will however look at the matter again to allay the genuine concerns expressed. I will obtain for Deputy Neville the details of the penalties included in the Criminal Law Act, 1992.
If the Minister will re-examine this matter and report back to us on Report Stage so that we are supplied with the relevant information I shall be grateful. I fully accept that there must be some sanctions but, from my knowledge of sanctions for perjury, these should not be issued in the case of a ten year old child. The Minister of State has already said there are custodial institutions, rather than prisons, for children. I accept that but do not accept that children should be sent to such institutions at the tender age of ten years, thus removing them from the custody of both parents.
Bearing in mind Deputy Neville's genuine concern about this matter, I will obtain all the relevant information and furnish it to him before Report Stage when he can assess the position.
Question put and agreed to.
Amendments Nos. 53 and 54 not moved.
Title agreed to.
When is it proposed to take Report Stage?
I suggest Wednesday, 5 November 1997, subject to agreement between the Whips.
Report Stage ordered for Wednesday, 5 November 1997.