Seanad Éireann - Volume 164 - 06 December, 2000

Protection of Children (Hague Convention) Bill, 1998: Report and Final Stages.

An Leas-Chathaoirleach: Before we commence I remind Senators that a Senator may speak only once on a Report Stage amendment, except the proposer of the amendment who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded.

Mr. Costello: I move amendment No. 1:

In page 5, line 6, after “subject” to insert “in particular to Article 23.2 and”.

I proposed a similar amendment on Committee Stage. Its purpose is to protect against the situation in which a different ethos existing in another jurisdiction might not be in the best interest of a child, in terms of an enforcement order or recognition of some decision.

The Minister and I disagreed about the intent of the measure. However, my intention is not to interfere in any way with the provisions of the Hague Convention. The amendment does not seek to qualify the provisions of the convention as the Minister suggested. The purpose is to focus on what needs to be done. As I said, the purpose of all legislation is to focus on particular areas that need to addressed. Article 23.2 gives a level of protection where the enforcement of a decision taken in another jurisdiction would not be in the best interests of the child. My amendment would ensure that is brought to the attention of the courts, which is appropriate for us as legislators.

The difference in approach to child care and the welfare of children in terms of the legal profession and the laws in another jurisdiction is the only serious drawback in the legislation. Legislation in relation to children's welfare is in different stages of development in different jurisdictions. As I said earlier, the Children Act, 1908, is still operative. Senator O'Donovan said it related to criminal rather than civil matters. However, the 1908 Act deals with many civil matters.

Ireland is backward in certain areas in relation to the protection of children. The fact that the criminal age of responsibility in Ireland is seven years rather than the norm in other countries indicates how backward the country is in that regard. Progress has been made, but the legislative provisions in some areas are still backward and I hope they will be updated in the future.

An increasing number of countries are becoming contracting states under this legislation and the disparity between legislation in relation to the custody, welfare and protection of children will be greater all the time. Undoubtedly, difficulties will arise and we will find that decisions made in other jurisdictions are not in line with best practice in this jurisdiction. If that happens, there should be a focus on the protections that are available to ensure that the interests of the child are paramount. The amendment does not materi[1306] ally qualify any legislative provision incorporated in the Bill or the Hague Convention. It seeks to draw attention to decisions in foreign courts that may not be in the best interests of the child.

Dr. Henry: I second the amendment. Senator Costello's case is well made. The amendment would not in any way interfere with the legislation; it would only reinforce part of it.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): Article 23 specifies six instances where recognition may be refused. These provisions were carefully drawn up by international experts because they were aware of the necessity for exceptions to the general recognition rule. This is the area about which Senator Costello is concerned.

It is not open to a contracting state when implementing the convention to qualify these rules or to give a higher priority to certain rules when implementing the convention. If every contracting state adopted such a course, the benefit to be derived from the convention would be totally undermined. However, the amendment tabled by Senator Costello is unnecessary because the subsection to which it relates provides that, in deciding whether to recognise and enforce a foreign measure, the District Court must act pursuant to chapter 4 of the convention, which includes Article 23.2. It is not necessary to highlight Article 23.2.

Senator Costello is concerned that the court would ignore or forget about the article if it is not highlighted in the Bill. However, it is unrealistic to think that a court might ignore or forget about Article 23.2 when it is considering a foreign measure. The court must act pursuant to chapter 4 of the convention which includes Article 23.2. It is not necessary to highlight this aspect as suggested in the amendment.

Mr. Costello: That is where the Minister and I differ. She said that the amendment would qualify the provisions, but my view is that it would not be a qualification. It only highlights this aspect. The function of all legislation is to highlight certain important provisions. The amendment would not interfere with the thrust of the convention and it would not in any way change the provisions.

It is not sufficient to state that the measure is incorporated in the convention. The function of this enabling legislation is to direct attention to the convention's provisions. The core of the Bill is how the central authority will operate and the legislation dwells on that aspect. Why should it not also dwell on the protective measures? The purpose of the Bill is to protect the interests of the child. I disagree with the Minister's interpretation that it would be in any way an interference with the Hague Convention if the Bill directed the attention of the courts in this jurisdiction or the central authority to areas where there might be a difference of approach in relation to the wel[1307] fare of children and which might not be in the best interests of the child.

This would not interfere with the legislation. It only highlights the provisions in the Hague Convention which are considered important. The amendment only directs attention to them. I expect the central authority will be to the fore in carrying out its duties and providing services. However, this does not mean that the services should not be publicised as widely as possible to all those who are likely to benefit from them. Likewise, the people who will benefit from the services need the maximum amount of protection within the parameters of the Hague Convention and the amendment highlights where that protection exists.

Amendment put and declared lost.

Bill reported without amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Mr. J. Cregan: I thank the Minister and her officials for guiding the remaining Stages of the Bill through the House. I also thank Senator Costello and other Opposition Members. There was a full and frank discussion on a number of amendments. Part of the Opposition's criticism was that it has taken a long time to enact this legislation. However, it is important to note that Ireland is only the third state to ratify the Hague Convention. It is timely that Ireland is to the forefront in that regard. The Bill is child centred. Extreme difficulties have arisen following the abduction of children. These involved protracted rows which ended up in the courts and that is not in the best interests of children. The legislation will minimise the difficulties in that regard.

Mr. Costello: I also thank the Minister of State for coming to the House on budget day. It is a difficult task at any time, but particularly so today. I also thank her officials for their work on this Bill. It is fine legislation and all the points raised during the debate were dealt with courteously and in considerable detail. The Minister of State was willing to elaborate on all the points raised.

As Senator John Cregan has said, we have been critical that the Bill was not introduced earlier when it could have been. Nevertheless, he was quite right in saying that we will be the third state to ratify this convention and I suppose that is good. The provisions of the Bill are very welcome and I have no doubt they will be beneficial to many people here. Again, I thank the Minister of State.

Dr. Henry: I congratulate the Minister of State and her officials on the careful way they brought this Bill before the House. This Bill languished for far too long before it eventually went through [1308] both Houses of the Oireachtas. The Minister of State showed her usual knowledge of the brief and her concern about the legislation.

I have a new task for the Minister of State. Will she go back to the Department and try to do something about the Convention on Human Rights which has been languishing for far too long? We are the only country in the European Union which has yet to bring forward legislation on that. That is a challenge for the Minister of State – something to do over Christmas.

Mr. J. Cregan: The Minister of State likes a challenge.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): I thank Senator Henry for giving me more work on budget day. I will follow up the matters she has raised. In regard to this legislation, I thank Senators for their amendments and the debate. What was important this morning was that the protection of children was central to everything about which we talked. It has always been at the heart of the concerns of the Hague Conference on Private International Law, which was responsible for drawing up the convention that led to this legislation. A positive aspect of everything the convention is about and what we are about is the protection of children. I thank Senators on all sides for the usual positive and interesting debate on this important legislation and for their contribution in making a difference to the protection of children.

Question put and agreed to.

Sitting suspended at 1.05 p.m. and resumed at 1.30 p.m.