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Dáil Éireann debate -
Wednesday, 29 Jan 1964

Vol. 207 No. 1

Private Members' Business. - Guardianship of Infants Bill, 1963— Second Stage.

I move that the Bill be now read a Second Time.

This Bill proposes not alone to consolidate the existing law but also to reform it. The existing statutory law in regard to the guardianship of infants is contained in four enactments the oldest of which dates back to the 17th century. There followed the Custody of Infants Act, 1873, the Guardianship of Infants Act, 1886, and finally, the Custody of Children Act, 1891.

With the exception of the provisions in the Tenures Abolition Act, 1662, these are all enactments which gave to the mother a better position than she previously had with regard to the guardianship and custody of her child. The guardianship provisions in the 1662 Act were incidental to the main provisions of that Act, which dealt with the abolition of certain feudal tenures or systems of land holding. That Act of 1662 provided that the father might appoint by deed or will a guardian or guardians for his infant children to act after his own death. It also set out the rights and duties of such guardians both in their capacity as guardians of the infant's person and, of course, as guardians of the infant's estate.

It is well to remember that at the time the Tenures Abolition Act was passed in 1662, and for over two hundred years after that, the paternal potestas of the common law was absolute. It was settled law that the father was alone the guardian of his children. If the father appointed a guardian under the 1662 Act, that guardian took over the father's full rights to the complete exclusion of the mother. If no such guardian were appointed the mother became guardian by nature and nurture but this was not full guardianship. The courts would not interfere with the father's paramount authority unless there were grave reasons for doing so in the interests of the infant.

It was not until 1873 that statute interfered with this absolute power of the father. In the Custody of Infants Act of that year the power was given to the mother of an infant to petition the court for the custody of, and for the right of access to, her infant. The Guardianship of Infants Act, 1886, has often in the past been referred to as "the Mothers Act". It re-enacted the provision in the 1873 Act giving the mother a right to apply for custody and also gave her additional rights. Now, for the first time, the mother was declared to be guardian of her child on the death of her husband—either alone or jointly with any guardian appointed by him. The mother was given the right to appoint a testamentary guardian. However, this was not the same right as the father had. The guardian appointed by the mother could act only on the death of both herself and the father. The court was given power to remove any testamentary guardian and power to deal with guardianship and custody in legal separation cases.

The Custody of Children Act, 1891, deals with applications to the High Court for the production of the child by a parent who seeks to enforce his right to the custody of the child. It provides that the Court may refuse to enforce the right to custody where satisfied that the parent's conduct warrants such a course. Where the court finds in favour of a parent who has up to then allowed his child to be brought up at public expense, the parent, who is getting the child, may be required to pay part or all of the expenses of bringing up the child. The 1891 Act also provides a very important change in point of principle. The common law acts on the assumption that the best place for a child is with his parents and that the onus of proving the contrary is on the person who disputes that. Section 3 of the 1891 Act contains an exception where a parent has abandoned or deserted or otherwise neglected his child in such circumstances as to satisfy the court that the parent is unmindful of his parental duties. In such a case the court will not give such a parent custody of a child which he has abandoned until he has proved that he is a fit person to have custody. This is, naturally, a protection for the child. While the provisions of the 1891 Act apply to both parents, in practice the Act is generally invoked where a father seeks to regain the custody of his children.

As a result of these statutes, the original absolute power of the father although not totally abolished in family affairs was considerably reduced. In addition, since 1883 the tendency in the courts has been against a strict interpretation of this sort of paternal power. The year 1883 was the year of the noted Agar-Ellis cases which represent the high water mark of the father's common law rights. Since then the courts have had an increasing regard for the mother's natural claims, particularly in the case of younger children.

The position in this country is now altered by the Constitution, particularly Article 42 which deals, inter alia, with the rights and duties of the parents in relation to the upbringing of their children. When dealing with the actual changes proposed in this Bill, I shall go into the Constitutional aspect in some detail.

The Bill proposes to give statutory effect to two basic legal principles. These are, first, that, in any proceedings affecting a child, the child's welfare must be the first and paramount consideration and, secondly, that the mother and father of a child shall have equal rights to guardianship and custody. In addition, the Bill provides for the guardianship and custody of illegitimate children.

The principle concerning the paramount nature of the infant's welfare is already well established, and is declared at section 3 of the Bill. The old Courts of Chancery possessed a jurisdiction concerning infants, in the exercise of which the main consideration was the welfare of the child. The Supreme Court of Judicature Act (Ireland), 1877, abolished the separate Courts of Chancery but provided that all existing courts should exercise the jurisdictions which formerly attached to these Chancery Courts.

The second principle to which the Bill seeks to give effect is that, in so far as guardianship and custody of their children is concerned, both parents have equal rights. Article 42. 1 of the Constitution reads:—

The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

In the Supreme Court judgment in the well-known Tilson case it is stated that the principle to be derived from this Article is that the parents "have a joint power and duty in respect of the religious education of their children" and that the parents in this context cannot be construed "in some generic sense that included only the father when he was living". This judgment marks the establishment of the mother's equality with the father. The Bill reflects this equality. Subsection (1) of section 6 provides that the parents are guardians of their children jointly, and subsection (2) of section 7 gives the mother the power, which only the father has at present, to appoint a testamentary guardian to act after her own death.

Under the common law an illegitimate child, being considered a filius nullius, has no legal guardian. The mother, however, prima facie has custody. The natural father has no rights. In olden times in English law the illegitimate child was the responsibility of the parish. In the Bill it is proposed to make the mother of an illegitimate child the full guardian of the child. Subsection (4) of section 6 does this. The effect of the provision will be that all the other relevant provisions of the Bill will apply only to the mother of the child. She will be able to appoint a testamentary guardian and to apply to the court for directions on any question affecting the child's welfare. This latter right is also given to the natural father of the illegitimate child at subsection (4) of section 11. This provision is aimed at the protection of the child. There could be circumstances in which the mother of an illegitimate child is neglecting the child and where the father may have the infant's interest at heart in wishing to get the custody.

Subsection (7) of section 7 of the Bill introduces another change. It enables parents who are themselves under 21 years of age to appoint guardians by will. At present, by reason of section 7 of the Wills Act, 1837, persons under 21 years cannot make a valid will. Previous to the Wills Act, the father could, by reason of the Tenures Abolition Act, 1662, appoint testamentary guardians although he was himself under 21. In effect, therefore, what the Bill proposes is to restore the law that applied between 1662 and 1837, with of course the extension of that law to include the mother as well as the father.

Part II of the Bill deals in general with the law as to guardianship and custody and contains the reforms in that law to which I have referred. Part III provides for the jurisdiction of the High Court in cases involving rights to custody and for some ancillary matters. This Part proposes to re-enact the existing law which, in the main, is contained in the Custody of Children Act, 1891.

The Bill may be accused of being legislation for the abnormal situation or for the broken home mainly. It is, in fact, much more than that. It declares the guardianship rights and duties of those who are given authority, whether by parenthood or otherwise, over infants and states the legal relationship between these persons. The aim is always the ultimate welfare of the infant. Normally the provisions of the Bill will be invoked only in cases of family disputes. However, I do not think that they are any less valuable because of that.

I am satisfied that the Bill reflects the fundamental values to which we adhere in our modern society and I commend it to the House on that basis. I trust that the sidenotes to the various sections and the Explanatory Memorandum circulated with the Bill will be of assistance to Deputies in their examination of the various proposals in the Bill.

The Minister has expressed the fear that this Bill might be accused of being legislation for the abnormal situation or the broken home. That might be but in some respects it is the kind of legislation which is possibly likely to give rise to family disputes rather than to settle them. This is a subject in respect of which the Minister and the House generally must step rather gingerly having regard to the constitutional provisions which are there. The Minister has referred to some of those constitutional provisions and I am glad he has because it shows that the matter has been under examination in his Department.

The difficulty I see with regard to this Bill and with regard to any law on this subject, having regard to the provisions of the Constitution, is that it is difficult to see that we can unequivocally declare that the welfare of the child must be of first and paramount importance. I am not saying that that should not be the position but what I have in mind is that there are very definite provisions in the Constitution which seem to me to provide that the family unit as a whole, not the individual component parts of that unit, must be regarded as of first and paramount importance.

The Minister has referred to Article 42 of the Constitution. He quoted Article 42.1 which states:

The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

In dealing with the Bill and, it seems to me to be clear from the terms of the Bill itself, the emphasis is laid rather on trying to secure in the case of children that the parents will do their duty but this Article of the Constitution which was quoted by the Minister refers not only to the duty of the parents but also to their inalienable right. I would suggest to the Minister that he must be very careful to see in relation to this Bill whether or not it is open to challenge on the grounds of the very Article of the Constitution which he himself quoted.

This Bill sets out a framework for appointing guardians. To my mind it leaves some questions unanswered and some questions not dealt with at all. I may be wrong in this—the Minister will correct me if I am—but on my reading of the Bill there does not seem to be any disqualification of people as acting as guardians. There does not seem to be any age qualification, for example. I know there is a kind of overriding authority vested in the court, particularly if an objection is made by a surviving parent, but what is there under this Bill to prevent an infant being appointed as guardian of an infant? It probably has not been contemplated and would not in ordinary circumstances be contemplated but clearly it is not a type of guardianship that one would regard as likely to preserve and maintain the welfare of the infant who is to be guarded. I do, as I say, recognise that there is certain authority being vested in the courts under this Bill but Article 42. 5 of the Constitution does provide that only in exceptional cases can the State step in. It reads:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child

In other words, the degree of failure under that article of the Constitution is clearly defined and very limited and restrictive in character. Where the parents for physical or moral reasons, and only for physical or moral reasons, fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptible rights of the child. As I say, the class of cases in which the State can step in, as it is to some degree stepping in under this Bill, is very limited and confined in character.

I should like to put some questions to the Minister for clarification. One I raised already, that is, who may be appointed as guardians? Is it possible, as it seems to me to be possible under this Bill, to appoint anyone as guardian?

With regard to section 7 (3), dealing with a testamentary guardian, it is provided that such guardian shall act jointly with the surviving parent of the infant so long as the surviving parent remains alive unless the surviving parent objects to his so acting. Then the machinery for what is to happen if the surviving parent objects is laid down. Is the use of the word "shall" deliberate? It seems to me that the use of the word "shall" rather than the discretionary "may" seems to put an obligation on the testamentary guardian to act whether or not he or she cares to do so. It is being put in a mandatory sense rather than on an optional basis.

With regard to the amendment of the Wills Act to enable people under the age of 21 to make wills by which they can appoint testamentary guardians, I take it I am correct in assuming that that amendment of the Wills Act is limited in character and refers only to the appointment of testamentary guardians. I take it that it is not intended to alter the law in relation to wills any further than that.

I concede that a number of these things are possibly more appropriate for Committee discussion but I should like to have the Minister's mind and views on them at this stage to see if it will be necessary to suggest any amendments.

Section 8 seems to be extremely wide. It provides that, where an infant has no guardian, the court, on the application of any person or persons, may appoint the applicant or applicants or any of them to be the guardian or guardians of the infant. I can see that there is there a discretion to the court as to whether or not they will appoint the applicant or, if there is more than one applicant, whether they will appoint one or all of them. However, it seems to me to leave it very wide that any person may apply.

The kind of case I have in mind is that of a child who is orphaned, say, because of a road accident or something like that. I should imagine that the person who should be encouraged to apply for guardianship of the infant is a relative and the closer the relative the better. But, under the provisions of this Bill, it is wide open that the secretary of any society and people of that description dealing with children's welfare can come in and apply—can, so to speak, beat the relative to the punch—if they want to put themselves in the position of being appointed or at least considered for appointment as guardians of infants. It is a matter that can be of some importance when one considers the position regarding the general religious upbringing, for example, of children who are orphaned in that way.

I do not quite understand the necessity for Section 8 (2):

When no guardian has been appointed by a deceased parent or if a guardian so appointed dies or refuses to act, the court may appoint a guardian or guardians to act jointly with the surviving parent.

I should be glad if the Minister would explain a little more fully what is in his mind in suggesting that provision in the Bill. The present position, I suppose it would be true to say, is that only in a very small number of cases does the father or mother, as the case may be, appoint a testamentary guardian. In the normal case, when one parent dies, the family continues to exist and if there are infant children, the surviving parent accepts and discharges his or her duties as parent. We have a provision here which, in effect, as I read it, says that if one or other parent should die without appointing a testamentary guardian, the court would automatically give authority—whether it is requested or not—to appoint a guardian to act as a guardian with the surviving parent. I could understand some provision of that nature being brought into the Bill if it were shown to deal only with particular cases where the appointment of a guardian to act with the surviving parent might be desirable but I do not understand it in the general all-embracing manner in which it appears in the Bill.

Section 10—again I raise this matter only for the purpose of getting some clarification—deals with the powers and duties of guardians. It provides for the terms the court will fix where a guardian has been appointed by deed or will. It reads:

Every guardian under this Act shall be a guardian of the person and of the estate of the infant unless, in the case of a guardian appointed by deed, will or order of the court, the terms of his appointment otherwise provide.

That seems to mean that it is contemplated that under this Bill a person may, by deed or will, appoint a guardian in a limited sense; that he can appoint a guardian, say, to act in relation to a particular aspect of the guardianship of the child or to act for a limited period. I should like some information as to whether that is intended. I should like to know whether acceptance of the position of guardian in the case of a limited appointment—I shall use that phrase—under section 10 will put the guardian in the position that, so long as he discharges the purely limited function set out in the deed or the will appointing him, that is as far as his responsibility, on the one hand, and his liability, on the other hand, in the case of guardian of the estate, go.

I confess I do not know to what section 10 (3) relates. It is a very general provision. It reads:

The provisions of this section are without prejudice to the provisions of any other enactment or to any other powers or duties conferred or imposed by law on parents, guardians or trustees of the property of infants.

In subsection (3), there is a reference to powers and duties imposed by law on guardians of infants, whereas in the earlier part of section 10 it is clearly contemplated that the deed or instrument appointing the guardian can be of a limited character either as to time or as to the function or duties of the guardian. That seems to me to be nullified to a very great extent by subsection (3) which goes on to say that all that is without prejudice to any duties imposed by law on guardians.

As I have indicated already, I do concede that many of these points concern matters which can be dealt with in greater detail on the Committee Stage, but I should be glad to have the Minister's views at this stage on some of them, particularly on the question of the qualifications or disqualifications of guardians.

First of all, I want to assure Deputy O'Higgins that we have had the greatest possible regard to the constitutional aspects of this matter and, indeed, we have studied carefully the various decisions which have been given by the courts from time to time. We are as satisfied as we can be in the circumstances that we are treading safely that difficult and delicate path to which the Deputy has referred. As the Deputy mentioned, most of the matters raised were, strictly speaking, Committee matters but I suppose there is no harm in dealing with them briefly at this stage.

First of all, with regard to the use of the word "shall" in subsection (3) of section 7, it has been used deliberately, so as to convey the statutory obligation to which Deputy O'Higgins referred. With regard to subsection (7) of the same section, the answer is that we do not intend to amend the Wills Act except in this very narrow sense. The Deputy is right in his interpretation of subsection (1) of section 8. It is true that any person may apply. All I might say at this stage is that I think it desirable that the court should have the greatest possible freedom in this matter because once you start to tie the hands of the court in any way, you will almost certainly find in the course of time that you will come up against some snag and the very limitation which you made in the interests of the child will in some particular case have the opposite effect. When a concrete case did come before the court, the court would find itself prohibited——

The case I had in mind is where the parents of a family are killed in a car crash but there are some adult children in the family and it would seem to me, having regard to the constitutional provisions of the family unit, that automatically they should be preferred to outsiders.

If Deputy O'Higgins feels strongly enough about subsection (1), or, indeed, about subsection (2), and if he puts down an amendment, we shall certainly consider it fully between now and the Committee Stage.

The Deputy also raised the question of the qualifications of guardians. Of course, as he rightly points out, there are none. It would be an infringement of parental rights and responsibilities to lay down qualifications as to those who are appointed guardians by parents. As regards court-appointed guardians, the High Court, which has always had special care and responsibility for minors, either in the matter of appointing guardians for them or in taking them under its wing as wards of court, acts primarily in the interests of the child. This role of being the special protector of infants is so traditionally and historically associated with the High Court that we can safely assume in the case of court-appointed guardians that only satisfactory and proper persons will be appointed.

It would be inappropriate to attempt to say to the High Court, as in effect we would be saying, that we cannot trust you to appoint satisfactory and proper persons and that we propose from now on to lay down qualifications. Sometimes when we are leaving things to the court it is appropriate to indicate to the court the wishes of the legislature with regard to a particular matter and to indicate in the statute some limitations or qualifications but I do not think it is at all appropriate in this case because here we are dealing with a court which traditionally and historically has had a special function as the protector and guardian of infants. That being so, I do not think it would be appropriate to lay down any particular qualifications for court-appointed guardians and it would be equally undesirable to do so in the case of guardians appointed by parents. I hope the Bill will commend itself in principle to the House and that we can discuss any other points which may arise on Committee Stage.

Question put and agreed to.
Committee Stage ordered for Wednesday, 12th February, 1964.
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