In Committee on Finance. - Illegitimate Children (Affiliation Orders) Bill, 1929—Committee Stage.

Section 1 agreed to.
SECTION 2.
(1) Upon the application, within the time hereinafter limited, of the mother of an illegitimate child or 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 in either case upon an information in writing upon oath being made by the mother of such child identifying the father of such child there may be issued out of the District Court in the district in which such mother resides to the person (in this Act referred to as the alleged father) identified in such information as the father of such child a summons or other process calling on him to show cause why an order (in this Act called an affiliation order) should not be made against him in respect of such child.
(2) An application for the issue of a summons or other process under this section may be made only—
(a) before the birth of the illegitimate child in respect of whom the application is made, or
(b) within twelve months after the birth of such child, or
(c) where the alleged father of such child contributed to the maintenance of such child within twelve months after its birth, at any time after such contribution, or
(d) where the alleged father of such child was not resident in Saorstát Eireann at the date of the birth of such child, at any time within twelve months after such alleged father first enters Saorstát Eireann after such date, or
(e) where the alleged father of such child was resident in Saorstát Eireann at the date of the birth of such child but ceased to be so resident within twelve months after such date, at any time within twelve months after such alleged father first enters Saorstát Eireann after such cesser.
(3) Where a summons is issued under this section before the birth of the illegitimate child to which it relates, the date for which the alleged father is thereby summoned to the District Court shall not be earlier than fourteen days after the day on which such child is expected to be born and such (if any) adjournment of the hearing of such summons shall be made as may be necessary to enable the mother of such child to be present at such hearing.
Amendment (1):—
In sub-section (1), line 27, after the word "child" to insert the words "or, if the mother is not alive, of the personal representative of the mother." (Tomás O Conaill.)

This amendment in my name I think is included in Deputy Little's amendment No. 2, and as his amendment is more comprehensive than mine I will not move my amendment. I will take it under Deputy Little's amendment.

Amendment 1 not moved.

I move amendments 2 and 3:—

In sub-section (1), line 27, to insert after the word "child" the words "or in case the mother has died or is an idiot or person of unsound mind of the personal representative of the parent, guardian or other person having the custody of such mother or child."

To add at the end of sub-section (1), line 39, the proviso—

"Provided that where the mother has died the information may be made by any person who has actual knowledge of the facts stated therein and may include evidence of a dying declaration."

Amendment No. 2, I think, fills a gap which is left open by the original section. It deals with the case of the mother who has died or who may have gone out of her mind. Such an event occurs at times, so I think the Minister should consider carefully the accepting of this amendment, because it is not unnatural to anticipate the possibility in many cases of insanity arising, and so he should provide some machinery for dealing with cases of that sort. We are not tied to the wording we have here, but we would like in the matter, if possible, to get agreement. As it stands, we will press for it unless the Minister is willing to meet us in some way or other.

As this amendment stands, it appears to me to turn the whole section into complete nonsense, because the section is: "Upon the application, within the time hereinafter limited, of the mother of an illegitimate child or 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." After that the Deputy suggests that these words should be put in: "or in case the mother has died or is an idiot or person of unsound mind of the personal representative of the parent, guardian or other person having the custody of such mother or child." I do not understand in the least what the personal representative of the parent, guardian or other person is, because you can have no personal representative of anybody who is alive.

Even if you leave out these words "personal representative" and put in the words "parent, guardian or other person having the custody of such mother or child," there may be different persons, one having the custody of the mother and the other the custody of the child, so, therefore, I do not catch the Deputy's amendment. I do not understand the person to whom it alludes. Let us go on further. The section would then read "or 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 in either case upon an information in writing upon oath being made by the mother of such child identifying the father of such child." How on earth can the mother who is dead or the mother who is an idiot make an information? It is absolutely impossible.

If the Minister will look at the next amendment it deals with the difficulty. "Provided that where the mother has died the information may be made by any person who has actual knowledge of the facts stated therein and may include evidence of a dying declaration."

What is actual knowledge of the facts? The fact at issue is the parenthood of a child. No one can have knowledge as to who is the parent of that child except the father and mother. There might be the very rare case in which the putative father and mother had been seen consorting together. That would not be by any means conclusive evidence of the parenthood of the child, because the mother may have consorted with other persons. It appears to me an injustice to the man charged. No man should be convicted unless the woman who is the mother of the child, who brings the charge to his door, is there to swear that he is the father of the child. There can be no certainty without the mother's evidence. We must be careful in an Act of this nature, to see that there is no door left open for a man being saddled with support who is not proved beyond all reasonable doubt to be the father, and that he should not be saddled with the support of a child which is not his child, or have his reputation blasted on evidence which may be very much mistaken. Personally I do not think, in fairness to any person charged, a decree should be made against him unless the mother is in a position to come forward and swear who is the father of the child. There may be cases in which the mother died in childbirth, or died some short time after childbirth, before she has made an information, or before the case is heard in court, and a happening of that nature may saddle the rates or some relative of the mother with the support of the child. That is undoubtedly a case which may arise, but those would probably be not very many in number. I think the principle that a man should be found guilty of being the father of the child without the evidence of the mother should not be permitted.

I thoroughly agree with almost everything the Minister has said, and I think if I had the opportunity I could take the remarks he made and piece them together to make my case better. He says we should certainly not saddle anyone who is innocent or where there is insufficient evidence before the court with the stain of a crime of this kind or with the maintenance of a child, but I suggest a dying declaration on the part of the mother.

We are coming to that later on.

My difficulty is met if you are willing to deal with the dying declaration.

I am going to ask the House to reject that also.

Amendments 2 and 3 go together.

There is a gap in the section and the Minister has admitted that there is one. It may happen that a mother dies at childbirth, or may go out of her mind, before an opportunity arises to make a declaration. It may happen in those cases that it is well known who was the father. Even though the Minister denies that, I submit he is not taking the judicial view of the matter. It is for a judge to decide that. We cannot foresee what circumstances may arise. To suggest that the amendment would treat people unfairly is to suggest that you have no confidence in your judiciary.

This amendment simply gives the judiciary an opportunity of exercising judgment in cases where otherwise cruelty might arise owing to the gap in the present section.

I would like to support the general idea put forward in the Amendment. The language to express it can be fixed up. I do not think it is right that a child who is deprived of its mother should be thrown on the rates because of that fact. Proof is necessary in all cases, and, as Deputy Little pointed out, whether the mother is alive or otherwise the court will have to be satisfied very clearly and very definitely that the case is brought home to the father before he is saddled with the maintenance of the child. In nine cases out of ten, it may be impossible to so satisfy the court in the absence of the mother. I believe that will be the case. In the tenth case the evidence may be perfectly clear, and there may have been admissions on the part of the father that can be testified to by others, apart from the mother. There may be cases in which there is no doubt whatever in the mind of the court, even though the mother is not there to bear testimony to the fact, and I think provision should be made whereby the cost of maintenance of the child could be recovered from the putative father. As Deputy Little said, I think the section will leave a gap if some provision is not made for a child, where the mother has died before the application could be made. I think the principle of the amendment is good.

My difficulty is to know what proof could possibly be given in a case of this kind. Is there any existing machinery by which an affiliation order could be got in the absence of the testimony of the mother? Is there any case in which an affiliation order has been granted in the absence of the mother?

As the law stands at present, the only case in which the man could be made liable for the support of the child, and be deemed by the court to be the father of the child, is at the suit of a board of guardians. In that case, not only must the mother be examined, but her evidence must be corroborated.

Can anyone suggest what evidence apart from that would be satisfactory? I find it very difficult to know.

A prior admission on the part of the father.

That would not do.

Amendments put and declared lost.

I move:—

In sub-section (2) (b), line 44, to delete the word "twelve" and substitute the word "three."

The amendment suggested by me is to put in three months instead of twelve months, and the reasons are these: that in certain cases—not very numerous cases, I admit—having considered some literature on the subject and statements made by judges and others of vast experience. I think there is a slight possibility of blackmail; that a certain type of mother is inclined, in collusion with friends or others, to saddle a man, whom they consider to be a good mark, with the parentage of the child. There months is much more reasonable, and more likely to prevent such collusion or attempts at blackmail, than having twelve months in the Bill.

Would Deputy Fahy tell us why he thinks three months would do rather than twelve months?

Twelve months is in the Bill. If you say within three months of the birth of the child, the mother has less time for collusion with others, or to be inspired by friends with the possibility of blackmailing certain people, than she would have if given twelve months to think the matter over, or get others to think for her.

The reason for inserting twelve months was to give the mother reasonable time to take action. There may be certain circumstances in which three months would be short. The mother, for instance, might be out of the country at the time the child was born.

If the Minister will excuse me for interrupting, that is dealt with in amendment 6.

The mother may be out of the country at the time the child is born or may be seriously ill for some time afterwards, or there may be other circumstances which prevented her from going into court. Really, I do not see that there is much more danger of blackmail at the end of twelve months than at the end of three months. If after three months the mother is hale and hearty, that period is quite sufficient for her within which to make up her mind if she is going to blackmail. At the same time, as far as the man is concerned, he has to defend his reputation, and it is easy for him to recollect where he was eighteen months ago. For, instance, if a charge is brought against him on foot of something that happened twelve or eighteen months ago it is as easy for him to say at the end of eighteen months as it is at the end of twelve months where he was then. If the Deputy is very strong on the matter, possibly I would meet him by cutting the period down to six months. I think six months would probably give the woman reasonable time.

I should like to know if the Minister would consider the point of making the period shorter in the case of a second or a repeated offender. I think it would be advisable in the case of a repeated offender that the affiliation order would have to be sought, if possible, before the birth. A good deal can be said in the case of a first offender in favour of waiting until after the birth. I think, however, that most of the evidence of those who have an intimate knowledge of the psychology of these people has gone to show that the likelihood in the case of a first offender of the mother proceeding in court before the birth would be very small, for various obvious reasons. I think these reasons do not exist in the case of the repeated offender. There ought to be some distinction. It does not appear to me to be right to provide for the possibility of a mother being successful in getting a number of affiliation orders. I think it is a pity that the Minister did not include in the Bill some provision for the detention in some institution of this class of a mother who becomes a repeated offender and who really is a danger to the community. However, I do not see that we can cover that particular point in this Bill. I think it would require separate legislation. I do think, however, that the Minister should take steps to make some differentiation between the first offender and the repeated offender.

Does Deputy Fahy accept the suggestion to substitute the word "six?"

Amendment, as amended, agreed to.

Perhaps the Minister would be able to give some indication as to whether he will consider the other matter mentioned by Dr. Ward.

We shall take the amendments first and deal with that on the section.

I move amendment 5:

To add at the end of sub-section (2), page 3, a new paragraph as follows:—

"Where the mother of such child was or became within the period prescribed by this Act for making such application an idiot or person of unsound mind, at any time within three months after such mother becomes of sound mind."

I think that that is a very moderate suggestion; if a woman becomes temporarily insane, that after she gets all right she should be given the same opportunity of availing herself of the law.

A woman might remain insane for ten or twelve years and suddenly might come out of an asylum and bring a charge against some individual who would then not be in a position to defend it. I do not think that would be fair to the person charged.

If the Minister would put a limit upon the number of years, and say that it would not be reasonable after a year or two years, or something of that sort, then you would give the woman a chance. What was in our minds about this was that in shortening the time from twelve months to three months, we ought to give an opportunity to people who might be insane to get well again.

Deputy Ward will probably be able to give the Deputy more information than I could upon this point. If it is a case of puerperal insanity, surely it would never last three months. It is a thing which passes away quickly. Other cases of insanity may last for years.

I quite agree with the Minister that it is unusual for puerperal insanity to last more than a few months. It is, however, not so much a case of that kind Deputy Little has in mind, but the case of the unmarried mother, who, perhaps through the mental worry and stress that her condition has brought on her, becomes insane, and the birth takes place in a mental hospital. I have personal knowledge of two such cases in the part of the country from which I come. I do not know how the Minister can protect such a mother, but I do feel very strongly that she is entitled to protection, inasmuch as her insanity has been brought about by the condition in which she finds herself. Nobody, of course, can conjecture how long she may remain insane, but it ought to be possible for the Minister to frame an amendment that would protect such a mother.

I appreciate the motives which actuate Deputy Ward and others who have spoken, but the difficulty I see in carrying out the suggestion is that people against whom charges are to be made ought to have them made within a reasonable time. This would permit a charge to be made after evidence has been destroyed and when people have no opportunity of proving a negative, and it might be made a serious instrument of oppression. It may be that there will be individual cases of hardship, such as Deputy Ward referred to. I quite accept his statement that such an individual case may happen, but you must balance the two evils one against the other, and I think you will have a greater evil if you allow a state of affairs to arise under the law in which charges may be made after a lengthened period of time when the persons charged are not in a position to produce evidence to disprove them. For that reason, I do not agree with the suggestion made.

If the Minister were to put in, in every case within a period of twelve or eighteen months from the birth?

You have just cut it down from twelve months now on the ground that it might lead to blackmail, and this seems to be quite illogical. That is rather an argumentum ad hominem which I do not wish to make use of. But what is meant by a woman who has become insane? That she is certified insane by two doctors or has become an idiot? What does that proposal mean?

That she is a person of unsound mind. Our amendment may suffer from too much caution in the sense of putting in more words than were necessary. I am prepared to accept the words, "by reason of unsound mind," if the Minister prefers that. The mere matter of words is not the question I am interested in, but whether the Minister will, in view of the fact that the time has been shortened, put in that the same period of six months which is to be given from the birth shall be given from the time when she becomes sane, but always within a period of, say, eighteen months from the birth.

Certainly not eighteen months. If the Deputy puts forward an amendment on the Report Stage limiting it to twelve months, which was originally in the Bill, I shall consider it, but I shall not tie myself down to accepting it.

Will the Minister consider framing an amendment that somebody can proceed on behalf of a person who became insane and who was confined in a mental hospital?

I have made it perfectly clear that you cannot proceed under this Bill unless the mother is a witness. She is a necessary witness.

It seems very hard lines when a person becomes insane.

We have had that discussed on Amendment 2.

Amendment, by leave, withdrawn.

I move amendment 6—

To add at the end of sub-section (2), page 3, a new sub-section as follows:—

"Where the mother of such child was not resident in Saorstát Eireann at the birth of the child, and the alleged father was domiciled in Saorstát Eireann within three months after her return to Saorstát Eireann and not later than twelve months after the birth of such child."

The amendment is meant to deal with cases—there are a great many of them, as I am told by social workers, and people who know more about this than any other people in the country—in which the girl goes across to England, where the child is born. She then comes back here and may leave the child after her in England, or, perhaps, she brings it back, and it becomes a burden upon the community. We wish to provide for that case so that the father may be made liable.

Why cannot the mother return inside of six months? That is said to be the correct period to put into the section, and the House has accepted six months.

I would put it to the Minister in this way: In certain Acts, such as statutes of limitation, there are certain types of cases that were always made an exception. There is the question of insanity, and going beyond the seas, which are always provided for in the statutes of limitation, and it is only fair that the same principle of law should be applied here. If a person goes out of the country and comes back, a slight extension of time ought to be made to meet that case.

I know there are a considerable number of girls who do go to England and have their children born there. They come back, but I think in nearly every one of these cases they leave their children in England and never bring them back to this country. The mother goes to England for the purpose of concealing from her neighbours the fact that she is pregnant. She comes back and conceals, as far as she can, from her neighbours the fact that a child was born. If there are exceptional cases where the mother goes to England and the child is born there, and she decides to bring it back instead of leaving the child in a home there, which is the practice, as I understand from persons who have given me information, the ordinary woman would come home in the ordinary time, and if you accept six months as the proper period I do not see how any exception should be made in her case.

I think the amendment is important owing to the number of such non-married mothers who go to England or Scotland before the birth of the child. I got figures for the different cities in England and Scotland.

Yes, but the children are put into homes. The figures the Deputy has are of children in homes in the different English cities.

No, not in every instance were they put into homes.

In no instance did the mother bring the child home with her to Ireland.

I think the position is undesirable from the point of view of the mother and the child.

The mother has six months in which to do it.

The figures are alarming. I do not want to quote the lot, but I find that in Liverpool in 1922 out of 526 cases of expectant mothers as many as 326 were Irish. In 1926 there were 765 cases, of which 520 were Irish; in 1927 out of 711 cases 501 were Irish. It is a big problem.

Does that refer to the Irish Free State?

Yes, largely to the Irish Free State. It is a serious problem. A lot of these women might not come back within three, four or five months.

Six months is now the time.

I suggest it should be six months from the time of coming back.

We could not accept that.

It is the application of the same principle and that is why we put in only three months from the time of coming back. There is this serious aspect of it, too. It is telling very much against the reputation of the Irish people in England. We pose as a people of very great virtue, and social workers in England know perfectly well what is happening, and that a good deal of that is hypocrisy. We allow our illegitimate children to be cast upon the world in England and, as a State, we take no steps to see that a check is put upon this evil. Some power should be given to people on the other side so that those responsible for the children should be forced to support them.

One particular point occurs to me with reference to Deputy Little's statement. I have figures from the Registrar-General's Department. Into Dublin city alone in 1927 121 women came who were not belonging to the Saorstát and they gave birth to illegitimate children here, so that that happens here as well as in England.

Amendment put and negatived.

I move amendment 7:

To add at the end of sub-section (2), page 3, a new sub-section as follows:—

"Where the child is born within twelve months before the passing of this Act, within three months after the passing of this Act."

This amendment is to make the Act retrospective for the twelve months.

There is really not very much in this amendment because it would apply I suppose to a very small number of cases. Although on the whole I do not like retrospective legislation, if the Deputy presses this amendment, I shall accept it.

Amendment put and agreed to.
Question proposed: "That Section 2 as amended stand part of the Bill."

I dislike the machinery proposed to be set up by sub-section (1) of Section 2. It is an innovation in legislation as far as I am aware because it is proposed under this sub-section to put the clerk of the District Court in a judicial position.

To put him in a judicial position is a matter of very great importance from the public point of view. I am speaking now of sub-section (1) of Section 2 which reads:

Upon the application, within the time hereinafter limited, of the mother of an illegitimate child or 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 in either case upon an information in writing upon oath being made by the mother of such child identifying the father of such child there may be issued out of the District Court in the District in which such mother resides to the person (in this Act referred to as the alleged father) identified in such information as the father of such child a summons or other process calling on him to show cause why an order (in this Act called an affiliation order) should not be made against him in respect of such child.

So far as I know, and I think I am right in this, under the law as it stands the clerk of a District Court has authority, except in one very limited class of case, to issue a summons without going before the District Justice. It is a matter of office procedure. But this section proposes to put the clerk of a District Court in the position of a judicial officer. No doubt the word "may" is there giving him discretion. I think it is contrary to the Constitution to put the clerk of a District Court, as this sub-section, if passed, would do, in a judicial position, to use the word "may" and to give him authority to issue processes. The importance of the section, as it appears to me, is this, that it enables the clerk of a District Court to issue what in law is called a conditional order. Deputies will pardon me for using what is a technical expression. I use it because it is the expression that best conveys to my mind, and I hope to Deputies, the meaning of the order. A conditional order is an order that has not yet been made absolute. Under the sub-section power is given to have a conditional order issued by the clerk of the District Court under which a person is to be deemed to be the putative father of a child. I think that would be open to the very gravest abuse, because any woman who is the mother, or about to become the mother, of an illegitimate child can implead any man whom she selects and have a summons issued against him. That will be a matter of record and will remain, for practical purposes, for the rest of that man's life. It will remain on the files of the court as an indictment against him that he is the father of an illegitimate child. I do not think that such a process is a desirable innovation. Under the law at present an affiliation order can only be got on a judicial proceeding before a magistrate.

I move to report progress.

Progress ordered to be reported.

The Dáil went out of Committee.
Progress reported, the Committee to sit again to-morrow.