Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move amendment No. 343:

In page 78, between lines 14 and 15, to insert the following:“ “central authority in another Convention country” means the authority designated by that country pursuant to the Convention;

“central authority in the State” means the authority mentioned in section 74;”.

Amendments Nos. 343 to 393, inclusive, are technical in nature and are intended to make clearer the provisions transposing the Hague Convention on the International Protection of Adults into Irish law. The convention will apply where there is a transnational dimension to a case, such as if a person lacking capacity has property or affairs in another convention country or where a person living in another country has property and affairs to be managed here. A definition has been proposed in amendment No. 343 of the "central authority in the State". This will be the decision support service and will be as set out in section 74. A definition is also proposed of "central authority in another convention country". That will be the authority designated by that country under the convention.

Amendments Nos. 344, 346, 347, 361, 368, 375 and 390 propose to replace all references to "protective measures" by a reference to "measures". The Bill does not seek to establish a system of protection but instead a decision-making system which takes the person's will and preferences into account, where possible. The "measures" to be taken will not always be protective but may, for example, be intended to enable a person to exercise decision-making autonomy. As a result, it is more appropriate to refer to "measures" than to "protective measures".

Amendment No. 345 provides that actions under this Part may be taken by the Circuit Court or by the director of the decision support service. The amendment is to ensure that the Circuit Court or the director will have regard to the explanatory report on the convention by Paul Lagarde when taking action under this Part.

Amendment No. 348 is technical in nature arising from the change of name of the public guardian to that of the director of the decision support service. It proposes that the director of the decision support service will be designated as the central authority and will have the responsibility to carry out the functions assigned to a central authority under the convention.

Amendments Nos. 349, 354, 356, 360, 364 to 366, inclusive, 374, 377, 380, 382, 388 and 389 are to enable the Circuit Court to have jurisdiction concurrently with the High Court in this area. The option of giving the Circuit Court jurisdiction on these matters is intended for two reasons. First, legal costs are likely to be lower for Circuit Court applications. Second, the specialist judges who will handle these cases in the Circuit Court will have the necessary expertise, given that they will be dealing with similar cases regularly.

Amendments Nos. 350 to 353, inclusive, are technical in nature and are intended to ensure that section 75 directly transposes the relevant articles of the Hague Convention, namely, Articles 5 to 8, inclusive, and 10 and 11. Amendments Nos. 355 and 358 are technical amendments to make the meaning of these provisions in section 76 clearer. Amendment No. 357 is intended to give the court the jurisdiction to make a request of authorities in another convention country, such as in relation to a person or to the person's property if located in this other convention country.

Amendment No. 359 is a technical amendment which is intended to make the meaning of section 77 clearer. It is intended to ensure that there is no break in continuity between measures put in place in Ireland for a particular person and those in operation in another convention country. The amendment specifies that any measures taken by the High Court or the Circuit Court, as the case may be, will remain in effect until they have been modified, replaced or terminated by countervailing measures taken by the authorities in the convention country dealing with the particular case. If a French person were to have an accident while on holiday in Ireland, for example, which left the person in a coma, the measures put in place by the court here would continue to apply until countervailing measures had been ordered by the French courts, such as to enable the person to return home.

Given that the amendment to section 77 now sets out that the jurisdiction of the Irish courts will apply until countervailing orders have been issued by the courts in the other convention country, no further provisions are needed in section 78 to supplement this provision. Given that section 78 is now unnecessary, it is proposed that it should be deleted.

Amendments Nos. 362 and 363 have been proposed in the interests of clarity. The reference to "contracting state" has been replaced by that of "Convention country" so that it is clear that the reference is to a country that has ratified the Hague Convention. Similarly, the reference to "the law of the convention country in which implementation occurs" is intended to make clear that the law that will apply when a measure has to be implemented in a particular country is the law of the country in which the measure is implemented.

Amendments Nos. 369 to 371, inclusive, are technical in nature. They are intended to give greater clarity given that the intent is to provide for the court to be able to refuse recognition of a specific measure. Amendments Nos. 367, 372 and 373 are technical in nature. They are intended to make the intent of the provisions clearer. Amendment No. 372 provides that a person can apply to the court for a declaration as to whether a measure taken in another Hague Convention country is recognised here. Amendment No. 373 provides that any finding of fact by a court or similar competent authority in another Hague Convention country is conclusive for proceedings here.

Amendment No. 376 is a technical amendment in the interests of clarity. Section 90 enables a person to apply to the court for a declaration as to whether a measure taken in another country is enforceable here. The amendment specifies that the measure must be taken in a Hague Convention country. Amendment No. 378 is a technical amendment changing a cross-reference to reflect the changes made to section 87. Amendment No. 379 is a technical amendment to make clearer that the court can make a declaration recognising a measure taken in another Hague Convention country provided that the court has not refused to recognise the measure under the provisions of section 87.

Amendment No. 381 is a technical amendment to make it clearer that Part 10 applies to persons over 18 years where measures are taken before a person turns 18. The protection applies from the point at which the person turns 18 years.

Amendments Nos. 383 to 386, inclusive, are technical amendments which clarify that the communication is to be undertaken between Ireland and countries that are party to the Hague Convention. These amendments and amendment No. 392 propose to amend the reference to "central authority" in lower case rather than upper case as there will not be an office called the "Central Authority". Instead, the director of decision-support services and his or her staff will assume this function in Ireland.

Amendment No. 391 proposes that communications under section 96 will be undertaken between relevant central authorities, rather than as ordered by the High Court, while amendment No. 393 outlines the circumstances in which such communications should not be undertaken.