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.