Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

That leads on to another issue which is a problem. I would have mentioned I was involved in court proceedings some years ago. This is a declaration of interest that I have referenced on several occasions. The McE case involved an unmarried mother left high and dry by an extremely wealthy father with whom she had been residing. The Circuit Court made an order for €400,000 for the purchase of a house for the benefit of the child and the mother. The High Court reversed that order on the basis that lump sum orders under this particular provision could be made to benefit the children of married couples but not a child born outside marriage. This made no sense in the context of how the law was framed. The case was taken to the European Court of Justice and was settled on the basis that the law would be adequately changed to ensure no judge would do this in the future.

This provision goes part of the way. The real difficulty is that it does not spell out in full what the Minister intends. I agree with her that this is the intention. There is a risk, however, in the manner in which the Judiciary approaches this. The antiquated approach taken in the above case by a learned member of the High Court which was clearly going to get this State into difficulty in the European courts could be replicated. There is a need to expressly make it clear that in making provision for accommodation, it can include, where it is financially appropriate, a sum be provided for the purchase of a home for the benefit of the child and the parent - most frequently it will be the mother - bringing up the child. That is not clear from this, however. This measure could be interpreted by a court as requiring someone to provide a couple of thousand euro by way of a lump sum as a down payment for a rental property. It may well be that this is what it can only be where people have very limited means. However, that was not the intention.

The second aspect is that if the courts are to make a lump sum order to allow for the purchase of accommodation to give a child security, the courts have to have powers to determine the ownership of that property. If a lump sum is to be provided for accommodation, is the property, for example, to be purchased in the mother’s name to be held in trust for the child? Is it to be purchased in the father’s name on the basis the child will only live in the property until a particular age and then will vacate it? Can the lump sum be used to put the property into the joint names of mother and child where perhaps the mother will be the primary custodial parent, the best part of 18 years? It would be a gross injustice that when her child finally reaches adulthood and ends education that she and the child could be rendered homeless. This is not adequately teased out yet.

The original provision that the committee considered had another section that allowed for the courts to order that property be purchased in the name of trustees. More work was needed to be done on that particular provision, however. That was fine by way of heads of a Bill but it needed to be teased out further. It now seems to me that instead it has not dealt with the ownership of a property that might be purchased to provide a roof over a child’s head, provide security in that property, to provide the parent caring for the child, who in 98% of such cases in these circumstances will be the mother, will not be rendered homeless after she has brought the child up. These issues need to be dealt with.

There are interesting provisions in English legislation that could be possibly adapted into Irish legislation. They would have to be adapted, however, because the manner in which English courts have interpreted their particular measure is not adequate to meet our obligations under the European Convention on Human Rights. This has been dealt with in other jurisdictions. The reason is simple. If a marriage breaks up and a divorce decree is sought, the courts can make lump sum orders and require that a home be purchased with funds where there are family assets for the benefit of the mother and child. When a couple breaks up or a child is born outside of marriage to a very wealthy father, then that child should have the same equal entitlement to a roof over his or her head as any other child has.

What was in the original draft Bill was not by any means perfect. It was adequate for a consultative process. There is a need to tease this out further. This is too brief and knowing the manner in which the Judiciary will come to approach this, we will all be back again some years from now. What is more important - people being back here or the State being in the European Court? This will be to the disadvantage of a number of children in coming years for whom better provision could be made if we deal with this correctly now. A more sophisticated provision addressing these issues should be introduced on Report Stage.