Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 32:

In page 15, between lines 19 and 20, to insert the following:

“(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964,

(b) section 2 of the Judicial Separation and Family Law Act 1989, or

(c) section 5 of the Family Law (Divorce) Act 1996.”

As Deputies will be aware, section 14 is a key provision that requires practicing solicitors shall advise clients to consider mediation as an alternative to court proceedings. For this purpose, they must provide clients with information on mediation services, including details of mediators, information about the advantages and benefits of mediation, information on the confidentiality obligations, as discussed earlier, and the enforceability of mediation settlements. Where mediation is declined or fails and court proceedings are instituted on behalf of a client, the application must be accompanied by a statutory declaration made by the solicitor confirming that these obligations have been discharged in relation to the client and the proceedings to which the declaration relates.

In submissions to my Department, the Law Society has raised the possibility of confusion and duplication of effort in cases arising under the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996. The society points out that the requirements of this Bill in relation to the making of a statutory declaration would appear to be in addition to the existing requirements with respect to the signing of a certificate under those Acts. I accept that there is a possibility of duplication of requirements in these cases and I am tabling amendment No. 32 which disapplies section 14 to certain matters arising under the Guardianship of Infants Act 1964, the Judicial Separation and Family Law Act 1989 and the Family Law (Divorce) Act 1996.

We need consistency and coherence between the provisions of this Bill and the requirements on solicitors under the Acts of 1964, 1989 and 1996. For this reason, amendments Nos. 39 to 41, inclusive, will, respectively, amend sections 20 and 21 of the 1964 Act, sections 5 and 6 of the 1989 Act and sections 6 and 7 of the 1996 Act in order to require a solicitor to make a statutory declaration rather than merely sign a certificate to the effect that the requirements under these Acts have been discharged.

In addition, I consider that the information regarding mediation provided by a solicitor to an applicant under these Acts should mirror the obligations placed on a solicitor under this legislation. For this reason, the proposed amendments require a solicitor to provide to an applicant under those Acts the names and addresses of persons qualified to provide an appropriate mediation service and to inform his or her client of the matters referred to in sections 10 and 11 of this Bill.

Two further amendments concern section 29 of the 1964 Act and section 43 of the 1996 Act. Both relate to the costs of mediation or counselling services. Since the Bill we are now discussing contains specific provision for costs of mediation, these sections should be amended to delete reference to mediation services. I ask Deputies to accept the amendments as tabled.