I move amendment No. 17:
In page 5, subsection (1), line 46, to delete "(1) A solicitor acting" and substitute "A solicitor, if any, acting".
SECTION 4.
I accept the amendment. I think it is a correct drafting amendment.
I recognise the Deputy's almightly rush to have legislation enacted but at least so that we have proper legislation enacted, the Deputy should curb his impatience a little bit, like the young bull and the old bull. Just slow down a little bit and give me a chance to comply with what is required, so that nobody will at some stage say to Deputy Shatter —"you made a hames of your legislation by rushing things too much".
I hope the rest of us will not have to endure too much moaning between the two bulls.
I am not even sure whether you should be here. You were thrown out of the other House a few minutes ago.
I am not too sure that you should be here at all but that is another day's work.
You should be seen and not heard.
At Question Time, you should be seen and heard and answer questions that are put to you.
I thank you for giving me the facility of moving the amendment. It is a small drafting one. Section 4(1) refers to a solicitor who is acting for the applicant for a decree of judicial separation. It may of course be the case that an applicant's spouse is not or does not wish to be legally represented. This amendment covers that circumstance by the insertion of the words "if any" after "solicitor". In fact, subsection (3) as it stands, line 19, page 6 of the text will include those words.
I thank the Minister for his amendment. His amendment is a correct one in that obviously there will be instances where people will seek separation decrees without being legally represented.
Amendment agreed to.
I move amendment No. 18:
In page 5, subsection (1) (a), lines 51 and 52, to delete "parties to a marriage" and substitute "spouses".
This is also a small drafting amendment to section 4(1), namely the substitution of the words "the spouses" for "parties to a marriage". The proposed change is in line with the phraseology in other family law legislation.
I tabled a similar amendment to the Minister's amendment and I am quite happy to accept the Minister's amendment on that.
Amendment agreed to.
Amendment No. 19 not moved.
I move amendment No. 20:
In page 6, lines 8 to 17, to delete subsection (2).
Chairperson
There are a number of other amendments related to this amendment — amendments Nos. 23, 25, 27, 28, 33 and 34. Amendment No. 34 is consequential on Deputy Shatter's amendment No. 20 so I put it to the committee that we take all these together for the purpose of discussion.
With regard to amendments Nos. 23, 25 and 33, the effect of these amendments would be to delete subsections (2), (3) and (4) of section 4 and to substitute them with more detailed provisions. The section as it stands provides certain safeguards to ensure the spouses are aware of alternatives, namely, counselling and mediation, to court proceedings. These, as far as they go, are to be welcomed. The purpose of amendment No. 33 is to bring about greater involvement by the court itself as far as these alternatives are concerned. Under the amendments, the court would be required to address itself to the possibility of reconciliation or, if reconciliation is not possible, to whether mediation procedures designed to achieve the maximum degree of agreement between the parties on the terms of their separation should be invoked. Under the Bill, as it now stands, the court may adjourn proceedings for reconciliation purposes only on the application of either party.
Unlike the Bill which leaves the matter entirely to the solicitor, my amendment would also empower the court to pursue the question of mediation with the parties. It is particularly important that the court has this power since there may be cases where no solicitor will have been retained. Since the court will have direct involvement in considering the possibility of reconciliation or mediation, as the case may be, the question of the provision of a certificate by the applicant's solicitor that he has discussed the question of reconciliation and mediation with the applicant assumes less importance. For that reason my amendment proposes to drop the requirement of a certificate. Subsection (7) of amendment No. 33 is designed to facilitate a full and free exchange between the parties in attempts at reconciliation or mediation. This, of course, would be unlikely were there any danger that any matters discussed could be brought forward as evidence in the court proceedings.
I will deal with each of the specific amendments because there is agreement between us on some of the amendments. The first amendment upon which there is agreement is in page 6 of the Bill, lines 8 to 17, to delete subsection (2). That subsection is then in my own amendment transferred to appear further on in the Bill in a more detailed section. There is no general disagreement between us on amendment No. 20.
With regard to amendment No. 28, which is also an amendment that I proposed, this amendment will provide a new section in page 6 of the Bill before section 5. It is this amendment which incorporates a new approach to some aspects of the Bill. As the Bill reads at present, there is a provision which ensures that, before a solicitor commences court proceedings seeking a decree of judicial separation on behalf of a spouse, the solicitor will discuss with the husband or the wife the possibility of reconciliation and furnish to that person names and addresses of persons qualified to help effect a reconciliation. Where reconciliation is not impossible, the Bill is also designed to ensure that husbands and wives do not unnecessarily become embroiled in court proceedings in circumstances where there is a possibility they may be able to separate by agreement and work out the consequences of separating by agreement by concluding either a separation deed, through negotiations with the assistance of lawyers, or with the assistance of a mediator.
It is of particular concern that at present many husbands and wives may find themselves embroiled in court proceedings without being fully aware that, when their marriage has broken down, there is an alternative approach which can be adopted where reconciliation is not possible to effect separation on an agreed basis in a civilised way. The Bill seeks to ensure, as I said, that before court proceedings are commenced in section 4 of the Bill, a solicitor will fully advise the spouse who is intent on commencing court proceedings on all the different options. Some lawyers who work in the area of family law regularly so approach matters but there are many lawyers unfamiliar with family law who may not realise an inter-disciplinary approach is necessary and that there are avenues a husband and wife may follow other than court proceedings. The Bill seeks to ensure that before a husband or wife are embroiled in court proceedings they are given advice as to what the alternative options are, that where there is some possibility of reconciliation they are at least furnished with information as to who can assist them, what marriage guidance agencies exist within their area. Where there is no such possibility it is designed to ensure that a lawyer will discuss with his client the possibilities of separating by agreement and he will also direct their attention to the availability of mediation services. There is little point in including such a provision in this Bill unless there is some way of ensuring that it is complied with.
The provision of section 4(4), which the Minister in one of his amendments seeks to delete, seeks to ensure that before proceedings are processed by the courts a certificate will be lodged with those court proceedings where someone is legally represented by the solicitor acting for them, confirming that the various options have been presented to them. This is a provision designed to do a number of things. It is designed to ensure that, where there is some possibility of reconciliation, avenues that a husband or wife may not have travelled are brought to their attention as a possibility well before they get embroiled in court proceedings. It is designed to ensure that the solicitor complies with that approach and also complies with the provision to bring to the attention of someone the possibility of mediation or of concluding an agreement. The certification process will enable the court to have confirmation that those procedures have been followed.
It is a process that has worked well in a number of other countries in the context of not only trying to ensure that people do not unnecessarily go to court to seek divorce decrees but also in the context of seeking separation decrees to ensure couples do not find themselves before the courts. The certification process will mean that when a couple come to court seeking a decree of separation the court will know whether they have had the possibility of availing of other approaches opened up to them. I hope the Minister will reconsider withdrawing the provision contained in the section which seeks to provide that rules of court be made to certify that these requirements are fully complied with.
The Bill as originally drafted was imposing an obligation on a lawyer acting for an applicant spouse but did not contain a provision to ensure that the husband or the wife who was served with court proceedings was made aware of the alternatives to going to court. It is possible that a husband or wife may issue court proceedings without seeking legal advice, without being advised of the alternatives, and the spouse may find himself or herself served with court proceedings and being embroiled in court proceedings in circumstances where they do not wish to be so embroiled. The new section 5, which is amendment No. 28 which I proposed, seeks to ensure that prior to the court proceedings coming to fruition, well before the date of the hearing of the court proceedings, at a time when they are served, the minimum information is supplied to the respondent spouse to ensure that he or she is aware of alternatives. I would like formally to propose that a new section be inserted in the Bill which will read:
"Either prior to or at the time of the service on a respondent of an application for a decree of judicial separation, there shall be served on the respondent a notice of alternatives to separation proceedings, which notice shall refer to (a) the availability of marriage counselling agencies which can help estranged spouses to effect a reconciliation; (b) the availability of mediation services which can help estranged spouses who intend to separate to effect a separation on an agreed basis and (c) the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement."
Subsection (2) will read:
"An applicant for a decree of separation or the solicitor, if any, acting on his behalf shall certify to the court that he has complied with the provisions of subsection (1) herein and the court shall not process any proceedings issued under this Act in the absence of such certification, save where the whereabouts of the respondent are unknown. The court may dispense with the necessity for such certification provided any conditions imposed by the court for notification to the respondent of the issuing of such proceedings are complied with."
Subsection (3) provides:
"Provision shall be made by rules of court for the form of the notice of alternatives to separation proceedings required for the purpose of subsection (1) of this section and for the certification required for the purposes of subsection (2) of this section."
The provisions provided here will require, therefore, the applicant's solicitor, where there is a solicitor, to certify that the applicant has been advised of the alternatives and also to certify that the respondent husband or wife has been advised of the alternatives. It would seem if we are anxious to ensure that people whose marriages have run into difficulties do not unnecessarily embroil themselves in court proceedings these provisions should be welcome amendments to the Bill. These amendments are being proposed by me in the light of representations I have received from organisations that work in the area of marriage guidance counselling and mediation following the publication of the Bill.
I would like briefly to deal with the Minister's amendment to section 6 which is, amendment No. 33. There is a difficulty with the amendment the Minister is proposing. The difficulty relates to the fact that it would allow a court continuously, even against the wishes of a husband and wife where a marriage has broken down, to go on adjourning proceedings. It could in the circumstances where a husband and wife were anxious that their judicial separation proceedings be resolved by the courts, create a situation where a judge reluctant to reach a decision kept on adjourning and did not allow proceedings to come to some degree of finality. It could also create a situation in which a husband or a wife might try to pretend to a court that they are interested in involving themselves in reconciliation or mediation when they were not serious as to what they were doing, simply to delay the processing of court proceedings where a wife or husband were living under great strain and stress in a family home where a marriage had totally collapsed.
It is necessary that there be some directions to the courts as to the circumstances in which court proceedings can be adjourned and that there be some degree of time limit proposed. It might be appropriate that we discuss amendment No. 33 having dealt with some of the other amendments because there are two separate aspects to amendment No. 33 and they could probably be discussed separately.
There is one aspect of the Minister's amendment that I agree with and it is my intention to incorporate this in Part IV of the Bill. I have received representations from marriage guidance agencies and mediation services about this and I believe it is essential, that any communications a husband or wife have with a marriage guidance counsellor or a mediator with a view to resolving their problems are privileged.
That is a general evidential matter that should apply to all court proceedings brought under the Bill and to any applications made both in the context of proceedings for the decree of separation as well as in dealing with applications for property orders and other orders. Subsection (7) of the Minister's new proposed section 6 needs to be fleshed out more so as to ensure that privilege extends in such circumstances.
As many members of the committee may know, at present if a marriage guidance counsellor is a priest engaged in counselling or someone in a religious order, there is no doubt that counselling is privileged and there has been a court decision which suggests that that privilege is extended beyond that but there are no court decisions currently about mediation. It would be appropriate that there be a separate additional section at the end of the Bill to ensure that privilege extends right across the board, not just in the context of judicial separation proceedings but in the context generally of marriage guidance counsellors and mediators seeking to assist couples so as to ensure that they are immune from being brought unnecessarily into court proceedings, not just where judicial separation proceedings have been brought but even where there is a maintenance action or a barring application brought in the district courts under current law, which law will remain the same after this Bill has been enacted.
It is my intention to put down an amendment to Part IV of the Bill to deal with the provision the Minister has in subsection (7) of his new section 6. I presume that we either have to adopt section 6 as it is in its entirety, or it must fall and that we cannot simply at this stage incorporate subsection (7). I urge the Minister, in the light of what I have said, to withdraw amendment No. 33. He may consider proposing a more detailed amendment dealing with the issue of privilege to be included in a later part of the Bill to ensure that it covers all family proceedings. I urge the Minister to seriously consider what I have said about the difficulties that can be created for a husband or a wife if a court has a general power to keep on adjourning proceedings, even in circumstances where both the husband and the wife wish the court to reach a decision. In the family law area and, in particular, in the marital breakdown area that can add to a couple's difficulties on occasion rather than helping them to resolve them.
Would it be best if somebody formally moved amendment No. 27 in the name of Deputy Mervyn Taylor?
Chairperson
We are still on amendment No. 20. We are just discussing the amendments and then we will formally move them.
On a point of order, could we have Deputy Shatter's response to amendment No. 27 as I would be interested to hear what he has to say about that one.
Chairperson
Sorry, I have called Deputy Colley.
I may be wrong but I thought we were dealing with section 4 of the Bill and the amendments related to it. Then it was discovered that there was a relationship between the Minister's amendments and so we were treating them en bloc at one time. I may be totally out of order in this.
Chairperson
We are dealing with all the amendments that are related to section 4, including the Minister's.
I welcome the provision in section 4 to allow for alternatives to separation proceedings to be brought to the attention of the applicant and the respondent. Nevertheless, I see difficulties arising in the implementation of this section. I have had a look through the alternatives suggested by the amendments and am not entirely certain that any of those will get over the difficulties.
The main difficulty is that a solicitor will have to discuss with the applicant the possibility of reconciliation and, as Deputy Shatter's amendment allows, serve on him a notice of alternatives to separation proceedings. The very title of that is disturbing because it smacks of rubberstamp and I am afraid that this is what it will become. To put it in context, I would wish that the applicant and the respondent be definitely made aware of alternatives but I would wish that it would happen in a situation where they are more likely than not to take advantage of it.
The services are simply not available in the community for this type of reconciliation, advice, counselling or mediation. It simply is not available in the quantity in which it is required. We have one pilot mediation project in existence which is due to finish, as far as I know, next year. There are two groups offering counselling on a voluntary basis, albeit highly skilled, and there are some independent people who, on a professional basis, offer counselling. A number of questions arise. First, whose names and addresses will be given under the section as proposed in the Bill? In the notice of alternatives, the same question arises. Who will compile this list of names and addresses? Is this a service that will simply be available to those who can afford it? If we write into legislation the possibility that these services exist, who will pay for these services?
I realise that this is a Private Members' Bill and it cannot put a charge on the revenue but we should address ourselves to the realities of the situation. I was going to suggest that the Minister might like to take something of this on board but in his absence I am sure his party colleagues will make representations to him on it. It is essential that, as a first step on the way to implementing this legislation, there should be a proper system of mediation and counselling available to couples who apply to the court for a separation.
The Minister's amendment suggests that on application to the court for a decree of judicial separation, at that stage the spouses may be offered the opportunity to take the assistance of a third party. That is far too late to start offering as it may well be the case that a couple may have had counselling and it was not successful. If they go to court they can at another time take advantage of counselling but it should be part of the initial process before they consider going to court. They should go through counselling or mediation, mediation being one of the essential tools to cut down on court applications. Deputy Shatter probably referred to this but it is acknowledged in other countries to be a very suitable method of allowing couples who have decided to separate to agree on the terms on which they are going to separate. If we are trying to avoid unnecessary difficulties between spouses who have enough difficulties to start with, mediation should be part of the process before getting to the stage of court applications or appearances.
I appreciate what Deputy Shatter has put down in amendment No. 28 under the new subsection (2) where the whereabouts of the respondent are unknown. It is very important to allow for that because there are many cases where one of the spouses may disappear for lengthy periods, or may never be found, or is not willing to be found. It is necessary to cater for that. The confidentiality aspect of any counselling relationship with spouses is of the utmost importance and counselling simply will not work — it would be detrimental to the whole concept — if confidentiality is not guaranteed and privileged.
I would like the Minister to give consideration to the possibility of effecting some system of counselling and mediation outside the terms of this Bill because, as I said while the Minister was absent, this is a Private Members' Bill and cannot incur a charge on the Revenue. The requirement of a solicitor to refer a couple to mediation or counselling will simply not work in the present circumstances because there are not enough counsellors or agencies. It is an essential part of the process but as it is here I fear it will become a rubber stamp and the existing services for counselling will become clogged with those who are going through the motions of making appointments with counsellors just for the sake of having a rubber stamp somewhere for the purpose of getting a decree.
In his amendments the Minister appears without any doubt to be doing everything possible to ensure that people are properly advised and that the marriage is given every possible chance. That is as it should be. I am absolutely amazed to hear Deputy Shatter say that the court could go on adjourning the case again and again and not ever come to a conclusion. The reason I am amazed is that either Deputy Shatter is deliberately misrepresenting the amendment, as has happened to other amendments, or he genuinely does not understand what is in the Bill. I greatly suspect that Deputy Shatter knows full well precisely what is in the amendment. It states quite clearly that both parties must consent to an adjournment and if both parties do not consent to an adjournment then the court must give its decision.
I am saddened that Deputy Shatter should try deliberately to mislead the public by saying that the court could go on adjourning and adjourning under the Minister's amendment. It is palpably untrue. It is clear from the amendment that both parties would have to consent to the adjournment. It merely provides that people would have the chance to reconcile their marriages if they both so wished to adjourn to have the opportunity to do that. I greatly fear that Deputy Shatter in misrepresenting the amendment would now appear to be introducing a situation whereby the marriage would be at an end and let us get it over with as quickly as possible. People do not go into court and wish to adjourn the proceedings unless they are quite seriously intent on adjourning the proceedings, no more than people go into court to seek a judicial separation if they are not serious about seeking a judicial separation. It is a gross insult, in my view, to the Judiciary to suggest that the Judiciary would engage in deliberately delaying decisions of this nature. That is what I have to say in relation to those amendments.
In relation to the certificate required under subsection (4) of section 4, it seems to me that that is merely a formal requirement which will ultimately and in practice turn up like the health warning on the package of cigarettes, which will be a formal requirement put in in small print but which will not have any great significance. Nevertheless, it is probably as far as one could go in breaking down the relationship of confidentiality and trust between a client and a solicitor. I think it runs contrary to the ordinary relationship of client and solicitor and, that being so, it will be consigned very much to the background. As Deputy Colley said, it will be a rubber stamp. I am afraid that is the reality from which we cannot escape.
In that context it appears to me that once the solicitors have exercised the rubber stamp of giving the certificate or even serving the notice of alternatives to judicial separation contemplated by Deputy Shatter they are going to settle in and play their clients' game as strongly as they possibly can, of course hopefully within their own ethical diktats. They will push their clients' case without fear or favour. I find that in practice the lawyer acting in that situation is bound by the experience of practice to warn clients of doing anything which will prejudice the obtaining of the type of order which the client in the solicitor's view has instructed him to obtain for the client.
In practical cases one finds that certain solicitors and counsel will actually act as a barrier to reconciliation because they see reconciliation as having some sort of a fudging effect on the type of product which they have been ultimately engaged to deliver through their services. This type of end product orientation of the legal profession has in my experience ended up with clients being encouraged by lawyers not to do certain things. Husbands have been advised not to be nice to alcoholic wives and wives have been advised not to make tomato sandwiches for the husband when he comes home lest the court might construe that as something upon which the hope of reconciliation might be built, or as something which would run contrary to other evidence, which might be hotly disputed, that there was a very unhappy and violent relationship between the spouses. That is the role of solicitors.
One would sometimes think that solicitors run contrary to a natural form of ethic in pursuing that type of activity and advice with their clients. They are in a difficult situation. Generally when they are retained they are retained to produce the goods in identifiable form. The unfortunate thing for the legal profession is that no client will thank a solicitor or a barrister for effecting a reconciliation. The client will say: "Well, that is what we did for ourselves. The lawyers had nothing to do with it". They will, however, be able to identify in clear terms the end order of the court whether it be a judicial separation or an order for distribution of property or a barring order or for maintenance or for the custody and guardianship of children. These are identifiable end products which motivate a solicitor to work towards achieving and, of course, in respect of which a client is prepared to pay money to the solicitor. Very often that is the bottom line, that the solicitor is required to produce value for money which is identifiable.
Everything seems to direct client and solicitor and counsel into this headlong rush to finish up the proceedings, to get identifiable court orders of whatever kind are desired and finish up, and everything points away from a reconciliation. That is a fact of life. We can moan about it. We can decry it and we can say that some solicitors are far more aggressive than they should be in pursuing their clients' interests and far less caring about their clients' interest in moving them and cajoling them away from a reconciliation in a situation, but we are not going to change the world. We are not going to change the fundamental relationship between client and solicitor in this committee. No legislature is going to change that. That is the way of the world and it is a sad situation.
It is against that environment that I would consider that the Minister's amendment in relation to leaving with the court the discretion to move on its own motion a proposal to the parties or the spouses that there would be a reconciliation or at least that there would be some steps taken, such as an adjournment, to move towards a reconciliation. That is a great protection for the spouses in the face of the very intense relationship that develops between each spouse and his or her legal advisers who can be intent on delivering the product in the form of a court order.
I have always felt very strongly about this. I have raised it with delegations of lawyers who spoke to the Women's Rights Committee. It is not something that strikes me here in this committee. It is something about which I have thought a great deal down the years as a practitioner in family courts right through from Dublin into the country, that it is a discretion we should always insist that the court should have. Courts have it in other cases in practice. Very often one is glad after fighting for two or three days in a case where two parties are locked in mortal combat which both of them would, apart from considerations of pride, love to abandon, when eventually a kind hearted judge realises the situation is futile and that it will bring about great havoc to both parties if they continue to fight and suggests that time be taken off for a reconciliation. I pay tribute to any judge who would have the humanity to take an interest in a case in that fashion. It is a very salutary jurisdiction for the courts to have which is being preserved by amendment No. 33.
In this context, I wonder what view the courts would take in the event of section 4 as proposed in amentment No. 33 by the Minister not being in the Act. If at the end of this discussion Deputy Shatter's proposals in relation to this matter are accepted and the Minister' amendment is defeated, is the court then to consider that it would have no residual jurisdiction to invite the parties to have a reconciliation or adjourn the proceedings to enable reconciliation to take place? I would think that the courts would look at the debate here and the voting on it and might well think that it would have no residual jurisdiction to adjourn the proceedings. The courts could find themselves powerless in a situation where they could see two parties locked in combat with each of their lawyers driving them further into it and where objectivity and humanity would require that there would be an adjournment to consider some sort of reasonable settlement and reconciliation. I would be very worried about that.
This brings us back to the debate we had earlier on about the inadequacy of the legislation in relation to allowing the court on its own motion to consider the welfare of the children. This again is something that runs in the face of the humanity of any court. It is very much in the interests of children that a reconciliation would take place. The legislation as proposed in general by Deputy Shatter seems to run on the basis of a laissez-faireattitude towards the rights of parents in relation to their marriage vis-�-vis their children. There is the interest of a third party in this whole matter as it arises in relation to the children of a marriage. The children have every right to expect that a court would protect their interests to ensure that there would be a reconciliation or a chance of reconciliation either partially or fully.
One should not view the situation in relation to a reconciliation in totally black and white terms. There may not be a reconciliation of the marriage but there can be reconciliation on various issues within the marriage, even within the break-up of the marriage and the judicial separation. This is a further area in which this committee should be very vigilant so that if there were one or two residual points, say in relation to the family home or in relation to the question of custody, even when the court would have decided that there was irretrievable breakdown and that there should be a primary decree for judicial separation, it can be very beneficial to have negotiations and efforts at reconciliation. To blank out totally the possibility of the court having either express or implied jurisdiction to allow that type of adjournment to clarify various matters is, with respect, to run in the face of reason and of practical court practice when one finds the courts are constantly giving people opportunities to run out for five minutes to discuss whether things can be organised between them.
Even this committee has had proposals today and yesterday that if we had only a five minute adjournment we would sort everything out — none better for proposing the five minute adjournment than Deputy Shatter. I say this with the greatest respect to Deputy Shatter in relation to his own experience in court work. The maximum possible flexibility should be given to everyone in court to ensure that the court process is used as little as possible and that the art of negotiation and settlement is used to the absolute maximum.
These comments are all the more important in relation to this matter in view of the fact that the use of this legislation in going to court under it for a judicial separation carries with it very many incentives. There are great privileges attached to parties to a marriage who have invoked this legislation over and above the privileges that might attach to them if they were to invoke the old-fashioned maintenance legislation, guardianship of infants legislation and the married women's property legislation for the break-up of property between spouses. Under this legislation you can have far more extensive relief in all of these areas, give or take a few details, than you would have if you decided not to use them and veer away from seeking a judicial separation and from the concept of irretrievable breakdown.
My view has been and continues to be that many more people will seek judicial separations under this legislation than would have sought judicial separation before, not because they want a judicial separation or because they want a declaration that their marriage has irretrievably broken down but because they want the more extensive substantial relief in relation to ancillary matters such as property, maintenance and guardianship matters. Given that we will have a greater number of people applying, we will have to give even more extensive and far-ranging powers to the court to ensure that the court will not be clogged with this type of litigation. What better way of ensuring that the courts would not be clogged with people seeking to get the fringe benefits of this legislation than to ensure the ability of the court to encourage people to get out of court, talk to their solicitors and counsel in the most efficient possible way and resolve their differences? This would keep the courts moving in relation to cases that are absolutely necessary to be decided on in court and not cases where people are merely looking for fringe benefits which are not really cases of family separation at all but are nominally cases of family separation where people are looking for basic property and custody adjustments.
I implore Deputy Shatter to reconsider this, in the light of his own practical experience as a lawyer and to view the whole situation in a schematic way rather than in a formalistic way where we have a sort of a contest about a mere formula of words from one side of the floor to the other. He should look at it from the practical point of view of ensuring the courts work in their traditional efficient way and not have the courts clogged due to unnecessary formality and inflexibility in the legislation.
It is very difficult not to respond in part in making a contribution at any stage in the debate to what has immediately been said. The point has to be made that it would always be a great pity if the art of the advocate was taken out of all of these proceedings and we were all put into the negotiating rooms, as was well illustrated by Deputy Abbott in his fine contribution.
I think the first thing that has to be said is that we can never legislate away or be allowed to encroach upon the functions and workings of a court to such an extent that we are seen in any way to depart from the established separation of powers that exists between the Judiciary and the legislature. On the other hand, I do not think there is any fear that anything we would say or do in this legislation would ever interfere with the overriding constitutional duty of a judge to see justice done. Having said that, I think there is a lot of merit in what Deputy Abbott has said and in borrowing some of the remarks he has made I just want to address the amendments very briefly.
As to the amendment in the name of Deputy Taylor, I think we are all agreed we should expunge subsections (2) and (3) from section 4 and talk about some form of better régime. Deputy Taylor approaches it, I believe, in a better way because he borrows the exact same language for a lawyer dealing with a respondent as the Bill allows for a lawyer dealing with an applicant. I think that is a good model to work towards. The duties should be on a lawyer dealing with a respondent as with an applicant and that is not something that pertains in Deputy Shatter's amendment No. 28.
I want to say at this stage that I have a very open mind and I welcome the opportunity to tease out some of these ideas. I presume Deputy Taylor, through his substitute, would agree that his amendment should read in the first line "a solicitor, if any, acting" because that in fact follows down further in the wording of the amendment as he has it and we have agreed to it already in section 4 by reason of amendment No. 17 already agreed to. We have a situation where for the first point as I said the language of format, of régime, should be the same for applicant and respondent and for that reason I am inclined more to Deputy Taylor's wording.
Because we have now recognised the situation where there will often be cases in which solicitors do not act, we have got to look to a régime that allows for some one other than the solicitor to play a role of supervision in the whole area of ensuring that the prospects of reconciliation have been addressed or would be addressed in the course of proceedings. This is where I think the amendment in the name of the Minister, No. 33, has got to be looked at a bit more closely and a bit more seriously because in that amendment clearly the role of the court is being looked to. If we recognise that there are cases where there will not be a solicitor acting, then someone has got to take the job that the solicitor would otherwise fulful as we currently propose in section 4 and in section 5 if either amendments Nos. 27, 28 or 33 are adopted.
For example, in subsection (2) of Deputy Taylor's amendment, we talk about seeing that certain steps have been satisfied and seeing that certifications are made to the court by the solicitor. If there is not a solicitor acting, someone must take on the job of fulfilling that role and that does not seem to be addressed, dealt with or provided for in amendments Nos. 27 or 28. For that reason, I think we have to look towards accommodating amendment No. 33 in the Minister's name.
I do not see amendment No. 33 at the moment, and subject to listening to argument further on this, in any way being at odds or at variance with what is being proposed either by Deputy Shatter or by Deputy Taylor in their amendments. I think they can work together. I have to say I am not at all impressed by the suggestion that amendment No. 33 would lead to a possibility where proceedings would become indeterminable. Although I like dwelling in fantasy, as often as I can, we have to deal with our legislation and I derive great pleasure out of and I would commend it——
You would be a lifelong member of The Workers' Party.
I attribute that to the Minister.
——to Deputy O'Donoghue more often if he was here but nonetheless we have to recognise that the courts are there to see that their proceedings are conducted properly. We would be imputing a certain amount of almost disreputable conduct to our courts if we were to suggest that they would allow proceedings to be protracted endlessly. I am looking at the order of amendment No. 33. There is motion available to each party to bring the proceedings back before the court. I do not think that is a bad thing. In regard to subsection (7), I would like to hear a bit more about how that has to be fleshed out. It is quite concise and succinct in its point. I am not too sure what Deputy Shatter has in mind in terms of fleshing it out more, what more flesh it needs.
Having said all that, I go along with the idea that we should delete subsections (2) and (3) and in terms of substitution, Deputy Taylor's amendment commends itself more to me because it borrows the same language and it is useful to that extent. I do not see anything contradictory in it looking to a supervisory overall role of the court and, in fact, we will need it where there are proceedings in which lawyers are not acting. I would like to hear the response of Deputy Shatter or anyone else on those matters. Those are my views for the time being.
A very brief contribution. I do not really see much difference in the objectives being sought by the Minister's amendment No. 33 and Deputy Shatter's amendment No. 34. There is a greater degree of detail. I think the objective is the same and it should be possible to reach agreement on what should be achieved under that section. What Deputy McCartan refers to as the art of advocacy, others would refer to as the art of bullying. One of the things I would be afraid of is that once people get across the threshold into this outmoded legal system we have, they get enmeshed in the whole outmoded system including this nonsense of wigs and gowns, and even if they are gone the practices that are there among lawyers. For that reason it is probably a good idea that some facility for adjournment be allowed so that common sense prevails and not just the technicalities of law or the niceties of technical argument.
I feel strongly that this sort of case should either be heard in a court where there is a lawyer on the bench and argument is put by lay persons or there are lay persons on the bench and argument is put by lawyers. It falls into that realm of family problem where the whole question of legalities and the normal argumentative approach to the case as operates in the normal court room has to be abandoned. I would like to see a greater involvement for trained professional family law experts who are not lawyers but who take a broader view of the family problems in trying to bring about reconciliation. Therefore, I think some amendment along the lines of amendments No. 33 or 34 should be incorporated in the Bill.
Listening to some of the contributions, I became totally confused. With respect to Deputy Abbott, I assume we are taking amendment No. 34 with this debate.
Chairperson
Yes.
Deputy Shatter's amendment No. 34 is making provision for the court to adjourn proceedings if it is considered that there is reconciliation possible. If there is to be reconciliation, of course one party must recognise that there is a possibility of reconciliation taking place. In this debate there is a danger and I say this with respect to everybody — I am expressing a personal opinion — that people may think that members of this committee are not acting in good faith in trying to resolve marriage difficulties. Irrespective of what side of the House we sit, we should eliminate that suspicion straight away. I speak for myself and I certainly want to do everything that is possible to see to it that where reconciliation is possible it does take place and before the formal proceedings would go ahead in relation to a judicial separation that all steps would be taken towards reconciliation. Therefore, I believe that Deputy Shatter's amendment No. 34, coupled with his amendment No. 28, provides for a situation where there is any possibility of reconciliation taking place, that an opportunity will be given.
I was rather struck, because I have no practical experience in this, listening to Deputy Abbott telling us that solicitors would advise their client to be very careful about giving a tomato sandwich to her husband because it might jeopardise the possibility of getting a judicial separation. If the legal profession are going to adopt that attitude in advising their clients, they are certainly acting contrary to what all of us sitting around this table are trying to achieve. If that is the attitude of some members of the legal profession it would be wise to have an obligation on those individuals to give formal notice of the availability of reconciliation services. We should be satisfied that that notice has formally been given even though you might think that it is too formal in the way it is presented in Deputy Shatter's amendment No. 28.
At the end of the day, irrespective of what happens in a court, remember that under section 2 a court cannot grant a judicial separation unless it is satisfied that the marriage has irretrievably broken down. The court will be obliged, if there is any doubt that the marriage has not irretrievably broken down, to adjourn or postpone the hearing of the application for a judicial separation until they are satisfied as to that fact.
Deputy Colley made a very fair point. Irrespective of what we do to try to help people to reconcile their differences, there is no point in either a court adjourning or formal notice being given of the availability of marriage counselling services if we do not have the personnel available to help the people in difficulty. We should make certain, if we are to treat this matter seriously, that those sort of services are made available irrespective of the cost. because the alternatives in cost to the Exchequer are quite frightening. The few pounds you might spend in making certain that these services are available would be recouped in what it might cost if marriages were to break down without people being given any chance at reconciliation.
I hope I am not being unfair to anybody. I think we should forget about the fear that one side of this House is not serious about trying to get marriages back on the rails if there is any possibility of it happening. I am very serious and I think it would be in the interest of everybody that we should approach the matter in that respect. If there is wisdom in the Minister's amendment and in Deputy Taylor's and in Deputy Shatter's amendments, we should get together and produce an amendment that meets all the needs rather than having this dealt with argy-bargy across the floor. We should be extremely careful to let it be known publicly that this committee is about trying to resolve a very difficult situation and that the last resort should be judicial separation. If there is any possibility of reconciliation we should see to it that the facilities are available.
Chairperson
I should like to make a point and it follows on from what Deputy O'Donoghue and Deputy Abbott said. It is basically in relation to amendment No. 34 by Deputy Shatter and also in relation to what he said. It seems he has a suspicion that a court may endeavour to keep a marriage going on. The reference to the fact that an adjournment shall not last for a period longer than two months seems to indicate that there is suspicion that perhaps the court would try to prolong in marriage in an effort to keep it together. The Minister's amendment gives a broader power to the court in relation to reconciliation particularly where someone is not represented by a solicitor. It is now 5.55 p.m. and we have to decide on the next meeting. Deputy Desmond wants to speak as well.
Could I move amendment No. 27 because it is germane to the discussion?
Chairperson
We are still formally on amendment No. 20. We are taking them together for discussion purposes.
Deputy Taylor was anxious that they should be discussed contemporaneously. He sees a good deal of sense in trying to involve the solicitor with the respondent in giving some added social dimension to the role of the solicitor. The amendment is self-explanatory. We had a lot of discussion on it. I share very much the views of Deputy Colley that there is virtually a total absence of effective mediation services, organisations or qualified persons. However, I do not propose to press that point or elaborate on it at this stage. It should be possible to have a meeting of minds on an effective amendment. I have some reservations about two months. It is too tight. The Minister's amendment is very effective. Deputy Taylor has a very strong view which is a coherent contribution. It should be possible to have an effective amendment on Report Stage.
There are a number of comments I want to make which will certainly take more than three minutes. We are going to discover there is a greater margin of agreement between us having teased this out somewhat. There are one or two misconceptions about some of the amendments. I would like to deal with those. We are clearly not going to finish them this evening. I would be quite happy to deal with them the next day. In theory we have another meeting two weeks from yesterday. On yesterday's agenda we set aside ten minutes to work out the future arrangements for meetings. Perhaps we should just finalise that aspect of matters.
If we have more meetings like this, we will make much progress——
Now I know why Deputy Taylor wanted me to act as a substitute today.
We have a meeting on Wednesday week.
On the basis of meeting every second week we are talking probably about no more than three or a maximum of four meetings for this committee between now and the end of June. It is highly unlikely that we will complete Committee Stage. We asked the Minister to consider the possibility of having meetings in the months of July so that we can process that. Has he had an opportunity to look at that?
When we get to the third week in June we can see what way things are going and we can make decisions at that stage.
That is reasonable.
Progress reported.
The committee adjourned at 6 p.m. until Wednesday, 1 June 1988.