Dáil Éireann - Volume 469 - 03 October, 1996

Questions—Ceisteanna. Oral Answers. - Children's Commissioner.

1. Dr. Woods asked the Minister for Equality and Law Reform the plans, if any, he has to make provision for a commissioner to protect children in cases of marital breakdown and divorce in view of commitments given by him in Dáil Éireann prior to the Divorce Referendum; and if he will make a statement on the matter. [17302/96]

Minister for Equality and Law Reform (Mr. Taylor): In reply to Question No. 12 from Deputy Woods on 25 October 1995, which sought my commitment to Fianna Fail's proposal for the establishment of a commissioner for [1325] children in advance of the divorce referendum, I pointed out that the law and administrative measures already contained within them substantial protections and supports in relation to children, that the divorce referendum proposal, as contained in the Fifteenth Amendment of the Constitution Bill as well as the draft Family Law (Divorce) Bill containing the details of divorce, were designed in such a way as to facilitate best the welfare of children. I made clear that while the proposal in relation to a commissioner for children was of some interest it would have to be examined carefully as to its precise role and operation. In reply to Questions Nos. 12 and 62 of 6 December 1995 as to progress made on examination of his party's proposal, I indicated that I was not in a position to go beyond what I had already said in the House on 25 October 1995.

I have recently been given to understand that the proposal for a post of commissioner for children would mean the following: as part of a mandatory process the commissioner would inform parties to separation and divorce proceedings about the effects on children of marital disharmony, marriage breakdown, separation or divorce — as the case may be — and of ways and means to avoid the harmful effects on children; where in the separation or divorce proceedings the judge was satisfied that the physical, moral, emotional, educational and psychological welfare of any child was not being adequately served by the parents who are parties to the proceedings or by their representatives, the commissioner must be made a party to the proceedings for the purpose of representing the children; for the purpose of discharging his or her functions the commissioner would be entitled to engage the services of such professionals as appear to be necessary; the costs incurred by the commissioner in discharging his or her functions would be awarded against either parent at the discretion of the court, and an office of commissioner for children would be [1326] established and maintained out of the Exchequer purse with so many officers as the Minister for Finance would determine.

The Deputy will be aware that at no stage in the run up to the referendum were voters told that one of the conditions for the obtaining of a decree of divorce would be mandatory attendance at information sessions about the effects of divorce on children. The divorce referendum proposal on which the people voted had no such provision nor did the draft Family Law (Divorce) Bill or that Bill as now passed by this House. It is open to question in any event as to whether persons should be compelled to attend at information sessions on separation and divorce. The question also arises as to whether such an exercise, in some cases, would be wasteful of valuable resources that would largely fall to be paid by the Exchequer. I am aware that the Law Reform Commission recommend a system of family courts in which an information pack would be given to parties to proceedings. There is merit in that proposal and I am sure it is one that will be addressed by the courts service and, in the context of its current review of operation of the courts, by the commission on the courts.

The Minister for Justice has already indicated that she will examine the concept of a family court system in the light of any recommendations made by the courts commission and the Law Reform Commission.

With regard to representation of children in family law proceedings, the present provisions in this area are contained in the Child Care Act, 1991. Under section 25 of that Act the court may make a child a party to all or part of proceedings under Part IV, care proceedings, and Part VI, child in care of health boards, and it may also appoint a solicitor to represent the child. Provision is made under section 26 for the court to appoint a guardian ad litem where the child is not a party to the proceedings. In joining a child as a party to proceedings or in appointing a guardian ad litem the court must be satisfied that [1327] it is necessary in the interests of the child and of justice to do so. The costs and expenses of the solicitor or guardian ad litem are payable, in the first instance, by the local health board.

My understanding also is that in proceedings between parents under the Guardianship of Infants Act, 1964, children have been joined as parties through a next friend in exercise of the court's obligation to regard a child's welfare as the paramount consideration. The law as it operates in relation to the Acts of 1964 and 1991 would also operate as appropriate in separation and divorce proceedings.

I am aware of recommendations made by the Law Reform Commission on the representation of children as well as a system of guardian ad litem. I am giving attention to those matters in the context of the Children Bill which is being drafted to update, among other matters, the law on guardianship, custody of and access to children and, if provision on either or both of those matters is found to be feasible and warranted I shall make appropriate provision in that Bill for them.

In making their recommendations on legal representation and on guardians ad litem the commission noted that the best approach in some cases will be for a judge to interview a child in chambers. The commission acknowledge that this is a practice which is used in our jurisdiction as in others.

A reality whcih cannot be ignored is that the provision of separate representation for children whether it is in the context of office, the establishment of an office of a commission for children as proposed by the Deputy or otherwise, could add substantially to the cost of divorce or separation proceedings. This could have the potential of making proceedings more adversarial and complex. Spouses have an important and personal responsibility to ensure that their separation or divorce is managed in a way which impacts with minimum trauma upon any children who are a party to that marriage and that the children do not become a weapon in the emotional [1328] battles which regrettably can be a feature of marriage breakdown worldwide. For these reasons my Department has been particularly active in promoting the wider use of mediation and counselling as an alternative to court resolution of marital disputes. Our separation laws are designed to direct couples' minds to the possibilities for a mediated settlement and the Family Law (Divorce) Bill does likewise.

Finally, I would also draw the attention of the Deputy to section 47 of the Family Law Act, 1995 under which the court may order a report on the welfare of a child or any party in separation and certain other family law proceedings from a health board, the Probation and Welfare Service or any person. These are most important child-centred provisions which are being extended to divorce proceedings. This will ensure that, where necessary, there will be available to the court an in-depth background report on the welfare of a child. I regard those provisions to be potentially more important to the court in making decisions in relation to children than separate representation and a system of guardian ad litem.

Dr. Woods: Does the Minister not agree that a commissioner for children, with an office and the resources that would be involved, together with the concentrated, positive representation of children it would entail, would constitute far better protection than that contained in the long list the Minister read out of the activities of different Departments, the courts and so on, acting in a piecemeal fashion? It is no wonder that children are experiencing difficulties today, are abused, set aside and disappointed or resort to drugs because, as we know, a great deal of their problems emanate from marital difficulties, broken families, conflicts with the law and so on. Does the Minister accept there is need for an office of commissioner for children, a comprehensive rather than narrowly-based office, with wider powers somewhat along the lines referred to by him?

[1329] Mr. Taylor: I am not convinced of the Deputy's suggestion. The very extensive provisions and protections for children in marriage breakdown, which were recently introduced, are effective and will continue to be so. Courts have power under the legislation to obtain reports and appoint a guardian ad litem where necessary and judges have the right to interview children privately in chambers to ascertain the position. All those factors provide for an extensive and broad-ranging system for the protection of children who tragically and sadly are caught up in marriage breakdown, whether in separation or, as it will be, divorce. We will have to see how that system operates when the divorce legislation comes into practice. I am prepared to keep an open mind on the subject to see how it works in practice and whether the extensive provisions in the existing legislation and the Divorce Bill will be adequate. That matter will be kept under ongoing review and if further measures are necessary in due course I will be very happy to consider them.

Dr. Woods: I thank the Minister for at least giving some consideration to the proposals, but he should consider setting up a commission for children. There is a constitutional requirement on the Government to provide protection because currently children are not being protected. Rather than waiting for all the details to fall into place to see how the system works over a period, will the Minister join me in my vision of the future? The people looked to the future and decided in the referendum that we should have a divorce jurisdiction. Should we not now look beyond these difficulties and, if we genuinely want to protect children, appoint a commissioner for children, with a well resourced office? I was disappointed the Minister mentioned costs so often. Costs should not be an issue in this instance. By ensuring that the existing measures are properly utilised, the kind of office we are talking about could be very efficient and effective without great [1330] cost. Will the Minister look forward and consider appointing a commissioner who would provide protection for children?

Mr. Taylor: We are all agreed that everything possible must be done to protect children. That was a key factor of the divorce referendum. We have written into the Constitution the prior requirement that the interests and protection of spouses and children must be provided for before a court may grant a decree of divorce. That important provision is reflected in the Divorce Bill which was passed by this House. The Child Care Act contains very extensive measures for the protection of children, such as provision for applications for custody and access to children and care of children, and they will apply in cases of marriage breakdown. Those measures, together with the power in the Family Law Act to obtain reports where necessary from the Probation and Welfare Service, will meet the requirements. An extensive broadly-based system of protections is in place which will operate reasonably well in the case of marriage breakdown.

There are always difficulties for children in marriage breakdown and I am not in a position to say whether the device suggested by Deputy Woods of making mandatory provision for interviews and so on would be counter-productive. We will bring the divorce legislation into operation, get the system up and running and see how it operates for the spouses and children involved. We will then re-examine the matter and whatever further action is required will be sympathetically considered by me.