Seanad Éireann - Volume 79 - 17 December, 1974
Illegitimate Children (Maintenance and Succession) Bill, 1974: Second Stage (resumed).
 Question again proposed: “That the Bill be now read a Second Time.”
Dr. West Dr. West
Dr. West: I regret the unavoidable absence of the Minister but I understand the position. I will continue where I left off last week when I tried to put this Bill into the context of a succession of improvements in the delicate area of family law improvements which originated in the Seanad. I pointed out the rather bleak fact, to me as a legislator that the only improvements of substance which have come in this area have been through decisions of the courts and not through legislation. This is another attempt to change our outdated and outmoded laws in one particular area before somebody takes an action and finds that a specific piece of legislation which we are trying to change is unconstitutional.
I should like to talk about the Bill itself and the real aim of it, which is to remove some of the prejudice towards those unfortunate children who are legally termed illegitimate. There is considerable public prejudice, which is one of the things we wish to change. We have considerable support from reputable authorities, not least from the Hierarchy of the Roman Catholic Church, who have made it absolutely clear that they feel the law needs to be changed in the areas dealing with illegitimate children.
An argument for the status quo seems to have been that to discourage people from having illegitimate children one penalised the children. Of course the unfair situation that obtains is that the father often cannot be traced and suffers not at all. If he can be traced often he is abroad and cannot be made responsible for his action. The onus then falls on the mother. Then the real problems arise when the child grows up in a one-person family and suffers the consequences of the emotional deprivation and so on. Besides emotional deprivation he is deprived of the rights of a legitimate child born in wedlock. My  contention, and I think it would be the contention of the sponsors of the Bill, is that it would be a much more efficient way——
Mr. Brennan Mr. Brennan
Mr. Brennan: I hate to interrupt the Senator but it appears unusual to me and the House that we are proceeding with legislation such as this.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: That is not a point of order.
Mr. Brennan Mr. Brennan
Mr. Brennan: The point of order is that we are proceeding to debate this Bill without the Minister being present. To debate this without the Minister present is something equivalent to proceeding with a coroner's inquest without a coroner or jury.
Mr. M.J. O'Higgins Mr. M.J. O'Higgins
Mr. M.J. O'Higgins: The Senator may not have been here at the outset when this was agreed. It was known to the Seanad that the Minister would not be available and I think all sides agreed that nevertheless we should go on.
Mr. Brennan Mr. Brennan
Mr. Brennan: It does not alter the position as far as I am concerned. Whoever agreed to that must have been taking leave of their senses.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: The time to bring this up is when the Order of Business is announced. The Senator will have to resume his seat and let Senator West continue.
Mr. Brennan Mr. Brennan
Mr. Brennan: I have made my view clear anyway.
Dr. West Dr. West
Dr. West: I must say I do not disagree with what Senator Brennan has said but we did decide to adopt the procedure we are now adopting. It is unfortunate, but it has been decided and so we should proceed. The point I was making was that it would seem to be a much more efficient and fairer way to attempt to discourage people from bringing illegitimate children into the world by penalising the father rather than by letting him get off scot free. The penalty would be to make him responsible. The responsibility that is envisaged in this Bill is that the father should support the child during his education, whether it is primary, secondary or tertiary education. That is one of the important changes in the  law which is proposed. It seems to me to be a positively fair, reasonable and just thing to do. If the aim is to restrict or to try to discourage people from having illegitimate children or to try and make people more responsible in their actions, then clearly the proposals here to make the father responsible for supporting the child during his period of education is an eminently sensible and reasonable one.
The other main proposal is an attempt to give succession rights to illegitimate children. They have practically no rights of this nature at all. Senator Robinson outlined the one right of illegitimate children, and that is, if a mother dies intestate and has no legitimate offspring, then the illegitimate offspring have the rights of legitimate children. This is a very rare and extraordinary case. In most cases illegitimate children have no succession rights vis-á-vis children born in wedlock. It is an important step forward to end this discrimination and to give them succession rights in line with children who are legitimate.
These are the main proposals which are incorporated in this legislation. I feel further proposals could be made and may well be made in the same direction and with the same aims in mind. We want to reduce the imbalance in the positions of the mother and the father, the mother apparently having all the responsibility and the father having none. It seems just and reasonable that this situation should be changed, that the father should accept his share in the responsibility for an action that was equally his. We want to see illegitimate children, when they come of age, getting succession to property and the other normal succession rights.
I know that the social conscience on these problems is changing throughout the country. Our attitudes have changed considerably in the last ten years. We are now more inclined, as a nation, to treat illegitimate and legitimate children together rather than separately. We do not regard them as outcasts any more. This change is important. This change has  been expressed in many articles in the Press. It has been expressed by the organisation of CHERISH, an organisation of unmarried mothers who have come together to have legislation changed and provide a better deal for people who face this problem. As has already been pointed out earlier in the debate, the number of illegitimate children born in this country has increased greatly over the last ten years. I am not saying whether this is a good or a bad development. I am not trying to pass judgment. I am just remarking on the fact. These are children, citizens of the State, who are entitled to rights which they are not getting. Therefore we must help them. This House is a forum in which matters such as these can be discussed with considerable feeling. This is an appropriate forum for an attempt to change the laws relating to illegitimacy. The social attitudes have changed. A change in the law would reflect our changing social attitudes and our increased care for a deprived minority. Therefore I commend this Bill to the House.
Mr. M.J. O'Higgins Mr. M.J. O'Higgins
Mr. M.J. O'Higgins: This Bill seeks to bring about reforms in an area which all of us agree is well worth looking at. Certainly some of the reforms which are suggested by the sponsors of this Bill are ones which would be regarded generally as worthwhile and desirable. I do not know whether this Bill, as drafted, would be the ideal measure on which to base reforms of the law. Unless I misunderstood her, Senator Robinson conceded in her introductory speech that there were faults in the Bill which she foresaw might be remedied on Committee Stage. I do not know whether or not that would be possible. I do not know to what extent the Bill as drafted would on examination prove to be acceptable, but it certainly was well worthwhile introducing the Bill and having a discussion.
I appreciate the case made by Senator West in the continuation of his contribution this evening, a case which has been made by other speakers also, regarding social attitudes and the change in these in relation to this problem. At the same  time I do not think that our approach to reforms, whether in the area of illegitimacy or in other areas dealing with child welfare or other social questions, should be a kind of craw-thumping, sackcloth and ashes, approach.
Dr. West Dr. West
Dr. West: I did not say that.
Mr. M.J. O'Higgins Mr. M.J. O'Higgins
Mr. M.J. O'Higgins: I am not suggesting the Senator did, but that is the impression some of us give when we talk about reforms and when we attack existing legislation in areas of this kind and deplore the fact that after 50 years of nationhood we are still in such-and-such a situation. I am speaking as one who has spent most of his political life in opposition, speaking from Opposition benches on legislation. By and large it is true that our legislation, by whatever Government introduced, was a fair reflection of the consensus thinking at the time of the introduction of the legislation. This holds true for most social questions. It is true generally for our legislation. It may be that, as times change, thinking also changes and new thinking by those in Government will produce a different type of legislation. It is right that legislation should reflect the consensus thinking of the people.
I find it a lot easier to accept the broad principle of this Bill—the need to amend the law—than to accept some of the arguments that have been advanced in support of the Bill. Virtually all societies have the marriage structure or institution which is recognised and supported by law. It constitutes a stable and in most cases actually, and always hopefully, a permanent union, which affords the greatest protection and safeguard for the children of the union. It is true to say that the institution of marriage —the stable union of which I speak—is and has been through the years invariably supported not merely by being accorded recognition by law but by the support of legislation. Unions outside the recognised institution have been discouraged not merely by society but by law reflecting the views of society. I suppose legislation either  to discourage such unions or in support of the institution of marriage was enacted because of what was regarded as a threat to the marriage institution.
I will go further than that and say that the commendable desire to protect the marriage institution has probably resulted accidentally in imposing legal sanctions on the wrong person, the offspring of the union occurring outside of marriage. I do not think this has ever been motivated by ill will towards the illegitimate child. It was out of a desire, reflected by consensus thinking in society, to protect the marriage institution. In Article 41 of our Constitution we specifically bind ourselves to upholding marriage and the family. Article 41 starts by saying that the State recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights superior to all positive law. It goes on to say that the State therefore guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
Later on in subparagraph (3) the State pledges itself to guard with special care the institution of marriage on which the family is founded and to protect it against attack. That is the approach adopted in the Constitution. I think it was a right approach and an approach which then reflected and still does reflect public opinion.
Although I have said that and referred to the Article in the Constitution, in my view it is possible fully to subscribe to and support the view, of lawful marriage being permanent and being entitled to the kind of constitutional safeguards which appear in our Constitution, while at the same time looking very closely into and examining the law and any question of discrimination against the children of unions which neither have the sanction of law nor of public opinion as reflected by society generally.
Whatever sanctions may be imposed by the law or by social attitudes to protect the marriage institution and  to protect society by supporting, upholding and protecting the family unit, which our Constitution does, they should not discriminate against the one person who is always, without exception, wholly innocent, the child of the union. It should be possible to have adequate regard to the responsibility of the father as well as the mother. This is a point which was adverted to by Senator West and by other speakers. It is an important point and one that merits our attention and the attention of the Government. I believe it is true that the policy of the law in this country—up to comparatively recent times the same could be said of the law in England—over the years has been to place most of the responsibility on the mother of an illegitimate child. The mother is obliged by statute—I think it is section 27 of the Public Assistance Act of 1939—to maintain the child whether the child is illegitimate or legitimate. The father's obligations under that Act, as far as I know, extend only to his legitimate children and to the children of his wife.
I know that there is the affiliation procedure under the 1930 Act. A number of what are now probably rightly, seen as defects of that procedure have been referred to: the fact that proceedings must be brought in the short space of six months and the fact that, even with recent increases, the maximum amount which the court can order to be paid by the father is an amount which nowadays would be regarded as largely nominal.
Those are matters which should be examined and which should be rectified and amended. I understand that the historical reason for the six months' time limit was to protect an innocent—let me use the term “accused”, although I do not think that would be the term used in an affiliation proceedings—person from an allegation so long afterwards that he might be put in difficulties with his defence. While I believe that is historically the reason for the short time limit, it is not one that should stand up, because the procedure, so far as I am aware—let me admit straight away that I have not been a  great practitioner in this field—requires the mother of the child to bring some corroborative evidence in a material particular. Consequently, so long as that requirement still remains, the gentleman against whom the allegation is made is not put into serious difficulties in relation to his defence. Therefore there is a strong case, nearly an unanswerable case, for extending the time within which proceedings might be brought.
It is interesting to note that, while the procedure under the 1930 Act contains these defects and contains the limit on the amount that can be awarded, there is a procedure whereby proceedings may be brought in the High Court, and there is no limit, under these proceedings, to the amount which might be awarded. That might not be a particularly valuable right on account of the burden of High Court costs, but it should be noted that it does exist.
All of the speakers so far have emphasised the lack of succession rights for illegitimate children. Again this is an apparent injustice, an apparent discrimination against one who is always wholly innocent. This obviously is a matter which must receive very careful, sympathetic examination. Senator Robinson referred to the position under the Succession Act of 1965. Under Part VI of that Act legitimate and adopted children have the right to specific shares in the event of the intestacies of their parents. Illegitimate children have not got that right. Under the provisions of the Legitimacy Act of 1931 the position of the illegitimate child is that he or she has the right, in the case of the mother's intestacy, to inherit the mother's estate but only if the mother has not been survived by legitimate children. Illegitimate children have no statutory claim whatever on the father's estate.
I think I have put the position correctly. I followed on the other speakers in doing that. We cannot simply look at that situation and say that it must be reversed immediately. It is a situation where one has to give a lot of thought to what the correct remedy is, how the scales can be righted so that they balance out reasonably evenly  both for the illegitimate child and the legitimate child. We do not want to evolve out of this discussion a recommendation which might result in remedying an injustice on the one hand and creating one on the other hand.
The following example is a good one. Take the case where there is an illegitimate child who has been reared and brought up by the mother, has reached the stage where he is earning his own living and possibly has succeeded by his own efforts and his mother's efforts in establishing himself in business. Side by side with that the father of that child is running a family business which he has established and operated with the help of his legitimate children. Here is a situation where, if the law was simply to be radically altered in one swoop so that the illegitimate child would be entitled to an equal share of the inheritance of the father with the legitimate children, it would certainly seem that an injustice was being done to the legitimate children who had assisted the father and contributed to the establishment and running of the family business. Because of that kind of situation—and it probably is not a far-fetched situation—this aspect of succession rights is one that deserves much careful study before a decision is made on it.
Emotively, it would seem to anyone that the question of succession rights of illegitimate children is the most important part of the complaint that can be made on their behalf, but I am not sure that that is necessarily so. As a general rule, when the question of succession occurs, the children— legitimate or illegitimate—have probably reached adulthood. If the illegitimate children are self-supporting, it might be less important to them than a number of the other aspects which have been referred to by other speakers. Possibly they would be far more interested at that stage if the law regarding the legitimation were to be amended in a way which would remove from them the stigma of illegitimacy.
There are a number of other detailed matters that I do not intend to go into but which were rightly  referred to by other speakers such as the position of the children where a marriage thought to be valid was found to be invalid; where a marriage has been annulled and where by reason of these events children thought to be perfectly legitimate have been rendered illegitimate. The law in that area should be altered so as to protect those children.
I have given fairly briefly my general reaction to this Bill. It is a Bill that warrants the fullest discussion and consideration. Any of us might be tempted to talk for hours on it because there are hours of talk in it. I would be tempted to follow the arguments that have been made but I will resist that temptation as there are a number of other speakers wishing to participate. I feel that the broad idea enshrined in this Bill is one that should commend itself to the House. I would have reservations regarding the details of the Bill if the Government were contemplating introducing their own Bill in this matter.
I should like to express my gratitude to Senator Robinson, Senator Lenihan and the other Senators concerned who agreed that, while we should continue this discussion in the unfortunate absence of the Minister, we should hold the debate open without concluding the Second Stage in order to enable the Minister to contribute. I will do my best to arrange that that will be as early as we can manage it.
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: I should like to say at the outset, on behalf of my group in the Seanad, that we welcome this Bill totally in respect of the principles enshrined in it. The test of a live Parliament in a healthy working democracy is its capacity to keep abreast of changing social and economic developments. There are very real changes in this area as have been itemised by previous speakers.
Illegitimacy, for good or ill, is rising at a substantial rate and therefore aggravates substantially the social problems that exist in regard to it. It is the duty of the legislator to devise measures that will cope with the undoubted social problems that  arise out of a matter that is impinging on our society. This Bill represents an attempt to grapple with these problems and to update provisions that have in some cases been there since 1930. At that time that problem was viewed in another social context and with a different attitude of mind. Attitudes are continually changing; approaches to life are continually changing; social postures are changing. This is part of the progression of the human race. This Bill in this particular area represents an attempt to deal with the problem.
I will make a few brief comments on the Bill; we shall go into more detail on Committee Stage. Section 2 of the 1930 Act is rightly amended by section 3 of this Bill. Paragraph (a) reads:
(a) the deletion in subsection (1) of “on the application, within the time hereinafter limited, of a local body administering the relief of the poor then giving relief to the mother of an illegitimate child or to an illegitimate child” and the substitution of “other person having lawful custody of an illegitimate child other than by virtue of an adoption order made under the Adoption Acts, 1952 and 1964.”
This has all the ring of the relief legislation of the Victorian era. That application is being deleted and the summons application now proposed to be taken by the person who has lawful custody of the child.
Paragraph (b) of section 3 deals with a matter on which I would suggest there are two points of view. Under the 1930 Act the situation where the moving party in regard to summons was confined to six months following the birth of the child was highly restrictive and certainly should be changed. Senator Robinson made the point that the six months after birth is a period of emotional stress and anxiety for the mother and a highly unlikely period during which she would bring a mature mind to bear on such an emotive and sensitive problem. Senator Robinson has gone very far away from the restrictive six months' probation that existed under  the 1930 legislation. She now suggests by paragraph (b) of section 3, when linked with section 5, that such a summons or application to the court can be taken against the father by the mother at any stage up to the time when the child is pursuing full-time instruction at a university, college or other educational establishment. The effect of that is that we are swinging from a six-months' restriction in regard to such an application to an application that can be taken up to the age of 21.
I grant that the proof aspect is really the answer in this respect. There is hardly likely to be a decree on proof of paternity at that stage. There is, on the other hand, such a word as “blackmail” and there is a real danger of a threat of such proceedings against the father many years after the event occurred which caused the illegitimacy. Such a threat, even though there may be a lack of proof in itself, would be an undesirable factor.
The six-month restriction here is clearly wrong. What the British have done in their recent legislation is to extend that to three years. I would go along with six years, which I would think a reasonable period. There are real dangers in extending this in the open-ended fashion in which it is suggested here. While I regard the six-month restriction in the 1930 Act as being unduly restrictive, I think the proposal as the Bill now stands to extend that right of application to the mother of the child to the case of a person of 19, 20 or 21 years of age relating to an event 20 or 21 years back, produces an element of potential blackmail as the years recede. This is a matter that deserves thought, and the British thinking may be right to have a period of three years. That is a limitation that is often used in regard to court proceedings. Somewhere in that area of three to six years I consider to be a reasonable period which should be sought in amending the Bill.
I should like to know the whole principle of section 5 placing the onus on the father in respect of the allowances to be discharged, placing notice on him until the completion of the  full time educational course. I agree with that principle of full time course at university, college, school or other educational study, but I should like to see that onus put by the court on the father at an earlier stage and to compel proceedings giving rise to that aid and assistance to be taken within a more reasonable period subsequent to the event.
I welcome section 6 of the Bill. This is the updating of payments under the Act. The updating is not just in accordance with the fall in the value of money but the allowances are over and above that commensurate with the very real obligation which lies on a father in this situation.
There are minor sections here which again are important. I think section 4 is desirable where it proposes to delete the names of the parties. It is in accordance with the privacy which in my view should always attend any such family matters. It is proposed to delete the names of the parties and substitute the names of the parties by initials. That is a sensible suggestion. Section 7 deletes the local body charge with the administration of relief of the poor. The Victorian poor law body is removed from the legislation.
Section 10 is a very important innovation dealing with property rights in regard to intestacy and the disposition of real and personal property inter vivos. In principle this is right. I can recognise the validity of Senator O'Higgins's point that there are all sorts of problems where the balance of injustice may be towards the legitimate as against the illegitimate child or children. I remember we had the same problem in discussing the Succession Bill in the Seanad: one can quote all sorts of cases but it is a dangerous thing to start quoting cases because this makes bad law. While exceptions have to be put forward, the overall principle is the important issue. There is a very strong overall principle here that there should be equality in regard to property rights in regard to intestacy, succession property rights and transfer of property rights inter vivos—having decided on the principle how we should devise this section  fairly so as to go some way to meet the execeptional cases where hardship may lie on the illegitimate children.
I am attracted in all these family matters towards the idea of a private family court where all matrimonial and child matters of this kind can be discussed in a more informal manner. Perhaps there should be some safeguard here of an overall court supervision of this kind providing for an application, possibly in chambers, on the part of a legitimate child who claimed to be in any way disadvantaged or prejudiced by reason of the application of the principle in this section. I feel some sort of overall safeguard of a court supervision of that kind might be a valid safeguard to write into this section providing for an application by the prejudiced legitimate child to make an application to the court specifying in what way he or she was prejudiced by reason of the application of the principle giving equality to the illegitimate child. It is thought that something of that kind might be valid in dealing with the problem.
In conclusion, as far as I and my group are concerned, we welcome this Bill, welcome the principles enshrined in it. I feel it is our duty as a Legislature to advance more legislation of this kind. I am looking forward to hearing what the Minister has to say. I hope his contribution will advance this matter further and that we will get, if not acceptance of this Bill, a specific assurance of an immediate Bill enshrining the principles incorporated here. If we do not get such an assurance we intend to support this Bill fully and have a constructive debate on the Committee Stage, on which amendments can be put forward along the lines I have mentioned.
Seanad Éireann 79 Illegitimate Children (Maintenance and Succession) Bill, 1974: Second Stage (resumed).