I welcome the fact that this measure is before the House and that there is now a more constructive approach being adopted by the Government on matters relating to children's rights and to the status of children. I hope that the Minister in dealing with this measure in this House will deal with it in as constructive a way as the former Minister for Women's Affairs dealt with it in the Seanad. I welcome the Minister's statement that he is considering amendments although it is regrettable that he does not give us in some instances an indication of what amendments he may have in mind. I welcome the Minister's open approach in that he is seeking comments from Members of this House in relation to particular sections of this Bill. I intend during the course of my contribution to indicate a number of measures in this Bill which I think require further change so as to ensure that the Bill works in the way intended and does not leave lacunas and anomalies with regard to children and their rights after its enactment.
The Bill is a measure of some considerable importance. Since the foundation of the State we have discriminated against a group of children. We have labelled children born out of wedlock as illegitimate and have effectively made them second class citizens. We have denied them their statutory rights and entitlements which extend to all other children and in so doing we have found ourselves condemned in the European Court of Human Rights as being in breach of the European Convention on Human Rights and rightly condemned. We have been seen not merely to deny a position of equality to children who should be entitled to be treated equally regardless of their status but also to deprive them of basic legal rights and entitlements by not using our court procedures to establish very basic things such as their identity and who is their father and to ensure that adequate financial protections are available to them and that if they are part and parcel of a family, though, through no fault of theirs, they were born outside wedlock, that they will be treated in an equal way with all other children. It is a matter of particular disappointment that the discriminations embodied in our statutory law with regard to children should be regarded and should have been regarded as discriminations which were justifiable within the constitutional framework within which we operate.
It is noteworthy that whereas in a decision relating to the rights of children on intestacy when a parent dies without making a will our Supreme Court held it was justifiable under our Constitution to discriminate against children, the European Court on Human Rights took an entirely different view. In this context the European Court in dealing with the proceedings the Minister mentioned took a more considered view of the position of children and their rights in the Johnson case which came before it.
The Bill before the House was introduced as a result of a great deal of public pressure and agitation for reform of our law in this area over the years. It is only right that tribute be paid to organisations such as Cherish, the Federation for Single Parents and other single parent groups and organisations who have sought and pressurised for change. We should also mention organisations such as CARE, the Campaign for Deprived Children, the Irish Society for the Prevention of Cruelty to Children, Dr. Barnardo's Homes and organisations such as the free legal advice centres. All of these over the past 15 years have been in the forefront of the campaign to bring about legal equality as between children.
Mention should also be made of the very comprehensive report produced in this area by the Law Reform Commission who dealt in 1982 in their report with this whole area of the law and with many of the discriminations that should be addressed and highlighted the need for reform. They effectively recommended that in regard to children there should be no discrimination and that all children should be put in a position of legal equality. In this context it is also worth noting that the Episcopal Council for Social Welfare, which is a committee of the Roman Catholic bishops, in a report on Irish family law in 1975 recommended that the law in this area be changed. It is possibly a criticism of this House and of successive Governments over the years that only now are we at this stage. We move very slowly in the implementation of major social reform, even when it appears there is a political consensus that such reform is necessary. I suspect if it were not for the Johnson case in the European Court we might still not have measures such as this before the House.
This Bill is largely devoted to placing children in a general position of equality regardless of the circumstances relating to their birth. It is effectively devoted to ensuring that a child can establish, where there is any doubt about it, who his mother and father are and to ensuring that children will have equal rights with regard to guardianship, property and financial matters,vis-á-vis their parents, irrespective of the circumstances relating to their birth.
The measure is also designed to improve the position of the father of the child born outside marriage and to extend to such a father the possibility and opportunity of participating as a guardian of his child in the important decision-making processes relating to that child. The measure is also designed to try to bring Irish law into line with some other modern scientific developments which seek to assist in the establishment of paternity where there is a dispute with regard to the paternity of the child. For many years there would seem to have been a necessity for a measure in our statutory provisions to provide for the carrying out of blood tests in the area of seeking to establish paternity. Legislation relating to blood testing was enacted in most other countries in Europe very many years ago.
What is regrettable about this Bill is that we have been so slow in producing it. In the general order of dealing with the issues of paternity, and even with the issues of children and their birth, this Bill seems to be locked still in a time frame circa the sixties. The Bill seems to ignore, to a degree which I find surprising, the great developments in the scientific area that have taken place in the past four to five years in the establishment of paternity and in the use of scientific testing in this area. This is an issue going through certain provisions of the Bill to which I wish to revert.
The Bill also appears to ignore a matter I would accept and understand as being regarded as of some considerable sensitivity, a matter which the Law Reform Commission in their report in 1982 chose not to deal with in any great detail but one which has become more urgent in 1987 and of more public importance than it appeared it might be in 1982 when the Law Reform Commission reported. The matter to which I am referring is not addressed at all in the Bill, although it is addressed in similar legislation currently going through the Westminister Parliament. This means if this Bill is passed without this issue being properly addressed, considering it is the first time since 1930 that we have had a Bill largely dealing with the position of children born outside marriage it is unlikely it will be addressed before the year 2000. There is an issue to which I have not yet reverted in any detail which is excluded from this Bill which I want to mention and I would ask the Minister to examine it in a constructive, non-controversial and sensitive way with a view to dealing with it in the context of this Bill. That issue I shall deal with shortly. In doing so it is in the context of the general and the important provisions which seek to ensure the manner in which relationships between parents and children can be deduced.
Section 3 of the Bill is an important section. It is the section which seeks to ensure that the marital status of parents is to be of no effect in real terms in determining relationships. In that section it is stated that "the relationship between every person and his father and mother (or either of them) shall, unless the contrary intention appears, be determined irrespective of whether his father and mother are or have been married to each other and all other relationship shall be determined accordingly."
The Bill in section 9 seeks to provide for certain amendments to the Guardianship of Infants Act which legislation is concerned with determining when someone is and is not the guardian of the child. In that section, in amending the 1964 Act, the Bill defines a father as including a male adopter under an adoption order but as not including the father of an infant who has not married that infant's mother and in respect of whom no order under section 6A is in force. In other words, an order under section 6A is of importance in determining whether a father is to have guardianship rights. Such an order can effectively be made in regard to a child born outside marriage in circumstances in which, to put it simply, the mother consents and acknowledges someone to be the father or where there is a contest where the court believes that in the interest of the child's welfare an alleged father be determined to be the father and be given such guardianship rights. I am referring to these sections and I am only doing so in a general way because on Committee Stage we shall have to come back to them. I am leading up to an issue to which we should make reference.
The other matter of relevance relates to section 49 in which there are certain presumptions regarding the paternity of a child. It provides, very sensibly, that where a mother gives birth to a child during a subsisting marriage the husband of the marriage is presumed to be the father of her child. The position nowadays is that if somebody gives birth to a child in marriage it is presumed that her husband is the father of the child. The section also provides that if within a period of 10 months after the termination by death or otherwise of a marriage to which the mother is a party a child is born the husband is also presumed to be the father. No difficulties of any nature can arise in such cases. The Bill also provides that it can be presumed someone is the father of a child if that person's name is on the birth certificate as the father. Basically, there is the question of consent there. One assumption made throughout the Bill is that the giving of birth and the conception of children is a relatively straightforward exercise and, fortunately, for the majority of people it is. For the majority of people children are conceived by sexual intercourse taking place within marriage, or outside marriage, and as a result a child is conceived and a child is born. There are unfortunate couples who find themselves in a very distressing position within marriage. They find that for physiological or other reasons they lack the capacity to have children with each other in the usual way in which children are conceived.
For the vast majority of couples who cannot have their own children the adoption mechanism up to now provided a means whereby they can bring a child into their family, act as parents to that child and have a full family life with children. Of course, the number of children now available for adoption, despite the increase in the number of illegitimate children born in recent years, is decreasing and people are looking to other methods and ways of conceiving children. It is possible for a wife who cannot conceive in the normal way, due to some difficulty on the part of her husband, to have a child by use of artificial insemination, by what is known as AID, by use of the services of the sperm bank. This is something people in Ireland tend to ignore due to the controversial nature of such processes. I understand that that service has been available for some time and I have no doubt that a number of children have been born as a result of AID. It is possible that a number of children have been born to Irish couples by the use of AID in other countries and there is no doubt that in future years children will be born to couples in Ireland by the use of AID. I am not expressing any views of a moral or religious nature about that but pointing out that in 1987 it is a fact of life here.
What is not generally understood is that a child born to a wife in those circumstances is under our current law illegitimate. Within the terms of the Bill the husband of the wife would not be the father of that child. I urge the Minister to look at that issue which has a lot of difficulties surrounding it. In other countries they have managed in their legislation to deal with that issue. I do not think it is a matter of great difficulty to say that where a couple make use of a system of AID to conceive a child and where such a child is conceived by the consent of the couple that the husband of the mother is in law the father of that child. This is an issue that we are ignoring. Like all other issues of this nature we tend to pretend they do not exist until they reach up and hit us. This legislation is uniquely placed to deal with this issue.
If we do not address the issue in this legislation children born in those circumstances will be the new second class children, the new discriminated against children within the context of Irish legislation. It is not simply a theoretical issue. It is one that is affecting so many countries in the world that in recent years a gigantic amount of legislation has been enacted — we can deal with that legislation on Committee Stage — to deal with the issue. There are other circumstances in which a child can be conceived. Various procedures are used in our hospitals whereby as a result of test tube fertilisation a child of a husband and wife may be conceived by an embryo being implanted in a wife. In those circumstances there is no difficulty with regard to the relationship of husband and wife as father and mother to their child. It is also possible for that procedure to be used in circumstances where not merely is there a donor's sperm but there is a donor ova and for an embryo to be implanted within a wife. Again, this is a theoretical issue, something that is happening in other countries, and we have the medical techniques available here to use those techniques. Where a child is born to a wife in those circumstances a serious question could arise as to her relationship to that child. Is she the mother of the child?
I am raising these issues because to date we have sought to ignore them. They are of vital importance to a number of couples who find themselves in the unfortunate position that they cannot conceive children in the way the vast majority of couples are able to conceive children. They see medical science offering to them other methods and techniques by which they could have a family in circumstances in which in years gone by couples may have resorted to adoption. Those people see these medical and scientific techniques available to them at a time when the number of children available for adoption is considerably reduced from what it was some years ago.
I urge the Minister to look at this area in the context of the Bill. It is not all that complicated. It can be fully and promptly dealt with in the context of this legislation. In that regard I should like to refer the Minister to section 27 of the Family Law Reform Bill introduced in the Westminster Parliament and which seeks to determine the legal status in England and Wales of children born as a result of AID. The effect of it will be that a child born in England and Wales as a result of the insemination of a married woman with sperm other than that from her husband will, unless it is proved that the husband did not consent to such a procedure, be treated in law as the child of the parties to the marriage and not as the child of any other person. Currently those procedures are being used in Ireland. Children can be born here by use of those procedures and there is grave legal doubt as to the status of such children. Those doubts will not be resolved in any way by the Bill as drafted. I urge the Minister to look at section 27 of the Family Law Reform Bill as drafted — that Bill was before the Westminster Parliament but had not completed its passage when the Parliament was dissolved and a general election called.
The Bill in dealing with children and their status does not, unfortunately, totally abolish distinctions with regard to appending names to children. The Bill still preserves in a modified form the legitimacy Act of 1931. In a sense we still have in our law, though this Bill seeks to minimise the differences between children born inside of marriage and those born outside of marriage, a legal distinction and a labelling in certain circumstances. For example, in the context of adoption, our Acts refer to children as being illegitimate as opposed to being legitimate. I would urge the Minister in the context of reforms that may be introduced in the area of adoption to seek to ensure that the terminology that is used in future legislation does not bring us backwards into preserving that is a labelling discriminatory terminology that is more part of the 19th century than the 20th or the 21st centuries.
This Bill still preserves the ironic position whereby there are distinctions and discriminations between children. It does nothing in the area of adoption. It was not designed to do anything in this area but it is worth mentioning in the context of legislation which seeks to place children in a position of legal equality, that in relation to children born within marriagevis-á-vis children born outside of marriage, those born outside of marriage have until now been severely discriminated against. The one area, where children were not discriminated against was where they did not have someone who wished to care for them and provide them with adequate and proper parenting. At least, children born outside of marriage have the opportunity to be adopted. We are preserving the discrimination my party sought to have removed from the law last week whereby children, for adoption purposes, are labelled legitimate in the context of the Adoption Acts. Even after the enactment of this Bill they cannot be adopted in cases where their parents have totally and completely abandoned them.
There are provisions in the Bill which should be welcomed in the context of the effects of decrees of nullity bringing to an end what appeared to be valid marriages but which the courts have determined are invalid marriages. There have been a number of court cases in recent years in which as a result of the court declaring a voidable marriage to be a nullity, children born to parties to such proceedings who up until then were assumed to be legitimate had been retrospectively rendered illegitimate, or as the law so graphically described it in some instances, retrospectively bastardised. In that context I welcome the fact that section 9 in amending the guardianship provisions seeks to maintain, even after the granting of a decree of nullity, the guardianship position of a father in relation to children born to a couple whose marriage has been annulled.
The provisions of the Bill in this area could have been more simply dealt with. This was my belief when this measure went into the Seanad and it remains my belief. I am not sure whether it is necessary for us to deal with voidable marriages and void marriages in the context of the guardianship provisions in as tortuous a way as it is dealt with under section 9 in the various amendments made. I accept the Minister's view that in certain circumstances it may not be appropriate that an automatic guardianship right be conferred on fathers. In certain instances one could argue that very strongly, for example, in a situation where a woman was raped and became pregnant. No one in this House would argue that the child born to such a woman should have as her enforced legal guardian the man who behaved in that way. Of course, that is an exceptional case. The vast majority of children are not conceived in such circumstances either inside or outside of marriage.
The guardianship issue could have been dealt with far more simply. The New Zealand Status of Children Act, 1969, provides an adequate and better precedent for dealing with that issue than the manner in which we are dealing with it in this legislation. Under the relevant legislation in New Zealand there is an automatic acquisition of parental rights of guardianship in certain circumstances. Section 6 of the New Zealand Guardianship of Infants Act 1968, provides that generally the father and mother of the child shall each be a guardian of the child, but that the mother is a sole guardian if she has been never married to her child's father or if their marriage was validly dissolved — presumably that would not arise in Ireland due to the prohibition on divorce — prior to the child's conception and she and the father of the child were not living together as husband and wife at the time the child was born. Thus, in New Zealand if the parents of a child born outside marriage are living together when their child is born, both are automatically joint guardians. If they are not living together the legislation provides a mechanism whereby the father can seek guardianship rights.
It would be a lot simpler in this legislation to effectively provide that where a child is conceived and born in circumstances where a couple are not married but are living together, the father is a joint guardian. That would mean that if a decree of annulment was declared, be it a voidable or a void marriage, the father or the former husband would retain guardianship rights. I raise that because section 9 of the Bill in what is referred to as providing a new section 2 provides that where there is a void marriage which the father reasonably believed, whether due to a mistake of law or fact, was a valid marriage, upon the marriage being declared void within the context of the provisions here, even though the marriage was declared void, the father would retain guardianship rights. That mirrors the sort of provision that existed in a number of jurisdictions in years gone by, and still does in some other countries.
In the context of a Bill that seeks to remove the differences between children, it is an unnecessary provision. I do not know how it can be established after a decree of nullity is granted determining a marriage as void, whether a father reasonably believed or did not reasonably believe that the marriage was valid. I do not know what that phrase will mean in practical terms. When will that issue be decided? If an issue arises directly out of nullity proceedings as to a father's guardianship rights, this Bill should confer a jurisdiction on the High Court when granting a nullity decree in the context of a couple to whom children have been born, to there and then make a determination as to whether at the time the children were conceived and born the father reasonably believed he had a valid marriage. This is certainly not a theoretical issue but it is an issue that probably affects many hundreds of couples and probably currently affects the legal relationship that many hundreds, if not thousands, of fathers have to their children.
The reason this matter is of importance and is not just a technical issue is that currently marriages the law regards as valid are being annulled and held to be void by the marriage tribunals of the Roman Catholic Church. The Church is currently granting in the region of 200 decrees of nullity a year. There is also the problem that a large number of people who have obtained Church decrees of annulment are marrying in Church a second time and all of these second marriages are invalid, bigamous and void. All these marriages can be declared void by our courts currently. The only circumstance in which they are not void is where civil decrees of annulment are granted. While a figure in the region of 200 Church decrees are being granted each year, only about 25 civil decrees are being granted per annum. There is a wide discrepancy.
A large number of couples to whom children have been born are parties to what is in law an invalid marriage. Under this Bill I do not know in what circumstances the fathers of such children will be regarded as guardians. Have they in all circumstances to fill out a document with a consent? If this second marriage is declared invalid it seems they could have considerable difficulty. The fact that they filled out a document and had their names down as fathers of these children may give them certain rights under this legislation, but could they be deprived of guardianship rights because they did not reasonably believe the marriage was valid and were unreasonable in believing it? I do not know whether an ordinary member of the general public regards a marriage as valid after getting a Church annulment and marrying a second time.
I do not know whether that is a reasonable or unreasonable belief.
In a matter of such importance when we are addressing the realities of some of the social problems we have, it is unnecessary for this to be as ambiguous as it is. If we have to retain it and if we cannot adopt the simpler and more sensible legal formula adopted in New Zealand, at the very least this provision should have a section inserted, which is also in the Guardianship of Infants Act, to the effect that where the court makes a decision that a marriage is null and void, a decision should also be made by the judge there and then as to whether the father of the children reasonably believed that the marriage at some stage was valid. This would mean that a further court case would not be necessary to determine whether the father should remain as guardian of his children or whether he should lose his guardianship rights.
Another issue which arises in regard to the changes being made to the 1964 Act is the new section 6A which is sought to be inserted. This section is of considerable importance because it is the section under which if a child is born outside marriage — and 10 per cent of the total number of births in this State last year were of children born outside marriage — a procedure is laid down whereby it is decided whether the father of the child can obtain guardianship rights. Rights of guardianship are not just rights that accrue to a father; one could also argue that a child has a right to have a father acting as his guardian in circumstances where paternity is established. It can be very much in the interests of the child that the father should play a role in the decision-making process with regard to the child's upbringing. This section effectively lays down that there should be a simple procedure to allow for guardianship orders to be made where the mother consents and where the father is registered. I would ask the Minister to explain what simple procedures will be required. I suggest that in circumstances where a mother and a father agree as to the paternity of the child and the woman agrees to the father's name being on the birth certificate, the father should automatically become a guardian and should not be put to the expense of going to the courts in order to obtain a court order, even to an informal court hearing.
I have heard a lot about informal court hearings in the context of family law and presumably such an informal court hearing would take place either in the District Court or the Circuit Court. Informal can mean helpful and easy or it can mean difficult and chaotic, depending on the building within which the court is operating and the personality of the district justice or the Circuit Court judge who is asked to make the decision on the matter. It may or may not require lawyers. Where a couple agree and consent, I suggest they should not need to incur the expense of lawyers. It might be appropriate in circumstances where, by consent, the names of a mother and father appear jointly on the birth certificate that the father should automatically become a guardian, possibly with a residual right on the part of the mother to make a court application to have the father's name removed as guardian if it is in the interest of the child's welfare. In those circumstances the necessity for a court procedure, even a special procedure, should not necessarily arise, both because of the expense that might be incurred and because it seems an unnecessary procedure.
An area of some concern relates to subsection (1) in section 6A. Where a mother does not consent, it is open to the father of a child born outside marriage to go to the court and ask to be named as guardian. Where there is an absence of consent, presumably the mother will object. That objection could arise in a simple situation where a child is born to a couple who cohabitated for some months and then separated or following a brief liaison of two or three days or one evening or where a couple have a child at a late stage in their relationship after cohabiting for some 20 years. After the collapse of the relationship the father might feel the need to have his position protected by being named as legal guardian. It could also arise in the situation I have already mentioned where couples are living together after obtaining a Church decree of annulment when their second relationship breaks down and some difficulty arises. Presumably they might go to the court by consent where there has been a Church annulment and a remarriage.
A variety of situations can arise whereby a child is born outside wedlock. A father may come to court and say he wants to act as guardian of his child and to be involved in the joint decision-making process about the child's education or whether the child should be given permission to marry under the age of 18. The mother may say that she does not want this man to be named as guardian because she does not like him. The court has to make a decision about the matter and the only basis on which the court can make that decision is by having regard to the welfare of the child. I do not know in what circumstances individual district justices or Circuit Court judges around the country will regard it as in the interests of a child's welfare, where the child has been born outside wedlock, that a person be named as guardian. I do not know in what circumstances they will regard it as contrary to a child's welfare that a person should not be named as guardian, and particularly where that person is the father of a child born outside marriage. The courts may need more detailed guidance as to the circumstances of naming a father as guardian. For example, where the father has an established relationship with the child whether the mother objects to a guardianship order or not, the legislation should provide that where such application is made as a general rule the father should be named as guardian. Where the parents have lived together for some years and the relationship has built up it is only when the relationship gets into difficulties that the father realises the necessity for making this type of application. In such circumstances the legislation should spell out in somewhat greater detail the circumstances in which the Circuit Court or the District Court can make an order.
Every lawyer who practises and who works in the area of family law knows there are a number of judges and district justices who deal with family law matters in a very sensitive, considerate and rational way and there are a number of others who deal with family law matters in a very inconsiderate, insensitive and irrational way. I believe there would be a regular outcry about the outcome of some of the family law matters that arise in our courts if hearings of such matters were not held in camera. Therefore, I ask the Minister to consider the possibility of looking at that section and laying down somewhat more detailed guidelines for the courts as to the circumstances in which it is appropriate for a father to be named as guardian of the child where the mother objects to the father being so named.
For example, if the father is contributing towards the support of the child even though he does not have a relationship with the child, should that in itself entitle him to rights of guardianship? That raises another problem from the point of view of mothers who may feel they should not seek support payments because they may have someone foisted on them as a joint guardian whom they do not wish to have. All these matters require consideration but I suggest to the Minister that the manner in which the general principle is dealt with is too broad and insufficient guidance is given to the courts in dealing with this issue.
This Bill, like other Acts which we have in this general area at various stages, confers powers on the District Court, on the Circuit Court and on the High Court. In the light of the report of the Oireachtas Joint Committee on Marriage Breakdown and the unanimous recommendation of that committee that we provide for family courts, I hope the Minister will look at the need to provide for such courts. The legislation before this House indicates that need. We are conferring different powers in relation to different aspects of one family law problem across a broad spectrum of courts who have no great specialist knowledge to deal with the areas referred to. I urge the Minister during his term of office to look at the need in this area and to consider implementing the recommendations in the Oireachtas Joint Committee on Marriage Breakdown report to provide family courts. They could provide a far more efficient and effective system not merely for dealing with the various matters referred to in this Bill but for dealing with all the general matters that arise in the area of family law.
I want to come to a general reference in this legislation which is to be found in a number of sections. In section 3 and mirrored in later sections the relationship between a child and parents is laid down. Section 3 provides that "the relationship between every person and his father and mother ... shall ... be determined irrespective of whether his father and mother are or have been married to each other ..." The Bill also seeks to ensure that an adopted person is not affected detrimentally and reiterates what is already part of our law under the Adoption Acts, that effectively an adopted person is deemed from the date of the adoption to be the child of the adopters and not the child of any other person, so as to ensure and reconfirm that the relationship of mother and father and guardian as between parents of children born to them and as between parents and children adopted by them remains the same.
One very curious provision in this Bill relates to a growing problem but does not tease out what the law is supposed to be. Section 3 (2) (b) provides that:
In this subsection "adopted person" means a person who has been adopted under the Adoption Acts, 1952 to 1976, or, where the person has been adopted outside the State, whose adoption is recognised by virtue of the law for the time being in force in the State.
In effect that is saying that if a couple living in Ireland have adopted a child outside Ireland in circumstances in which Irish law recognises the adoption order, under this legislation that couple shall have the same relationship to their child as if the child had been born to them. I welcome the fact that that is in this Bill, but its being in the Bill raises another difficulty.
A growing number of Irish couples have been and are resorting to adopting outside Ireland. An increasing number of adoption orders are being made by South American countries such as Chile, Peru and Brazil and countries outside South America such as India and the Philippines, and a growing number of Irish couples living in Ireland are going to these countries for brief periods, perhaps a few weeks or two or three months, adopting there and bringing their adopted child back to Ireland. They are doing that because of the problem I mentioned, that at present fewer children are available for adoption by couples in this country than has been the case in preceding years. In the past two or three years the number of children becoming available for adoption by couples unable to have their own children has greatly reduced in real terms and the number of adoption orders the Adoption Board are making in respect of couples unrelated to the child being adopted is greatly reducing. Therefore, Irish couples are resorting to adopting outside Ireland and in a number of different countries. It is right when a couple go through the correct legal format in another country that they should under Irish law be recognised as having a proper adoption.
The difficulty with the provision in this Bill is that it talks about adoption recognised by virtue of the law for the time being in force in this State. No law currently in force in this State sets out the circumstances in which we regard foreign adoption orders as validly vesting parental rights in Irish couples. There is not a single statutory mechanism for that. None of the Adoption Acts contains any provision setting out the circumstances under Irish law in which we recognise a foreign adoption order as valid.
There is a variety of legal opinions as to what might be the circumstances in which we might recognise a foreign adoption order. As a consequence there is an increasing number of Irish couples adopting outside Ireland, bringing their children back to Ireland, not knowing what is their legal relationship with the children they have adopted in a foreign country. Some of them are adopting a second time in circumstances in which they can establish that a child adopted abroad is illegitimate, in circumstances in which they can get the mother to sign a consent to adopt under our Adoption Acts. In some circumstances these children are being adopted a second time pursuant to order made by our Adoption Board but, in many instances, that is not a possibility and that option is not available.
I welcome the fact that the problem is recognised as existing in this Bill. This is an area of overlapping responsibility between the Minister's Department and that of the Minister for Health. I would ask the Minister to examine whether it is possible in the context of this Bill — if it is not it certainly should be in the context of the Adoption Bill that has been promised — that there be a provision setting out clearly and concisely the circumstances under Irish law in which we recognise as valid in this country adoption orders made in other States. I might draw to the Minister's attention the fact that the Adoption Review Committee in their report published in 1984 drew the attention of Government to the need for legislation to deal with that area. But it is unfortunate that this provision — which recognises that this is a problem area — does not set out the circumstances in which we do recognise such adoptions. If the Minister feels it appropriate that that matter be delat with in the context of this Bill I would suggest that he might consider introducing appropriate amendments on that issue. Certainly it is an issue that we on this side of the House will be seeking to consider in the context of amending this Bill.
The other matter to which I want to refer in the context of this Bill relates to blood tests and to which the Minister has already referred. Until some years ago blood tests had a very simple role to play in the area of determining paternity. Due to the existence of different blood groupings, by conducting what were the then relatively simple blood tests, it was possible to establish whether someone might be the father of a child. By looking at what blood grouping a child had and taking a sample of that of the mother and the alleged father it was possible to determine whether the child's blood group could have derived from the birth of a child through sexual relations having taken place between the mother and the person alleged to be the father. If it was not possible, someone alleged to be the father was excluded from the possibility of being regarded as father. That did not, of necessity, confirm that that person was the father. In theory at least he and many thousands of other people with similar blood groupings could have been the father of any particular child. The section in the Bill as published — it is phased somewhat differently in different places — but to a great extent reflects provisions in British legislation that has been in force during the sixties.
When I said at the outset that I was concerned that the provisions of this Bill have not kept pace with medical science it is because the whole concept of blood testing has advanced considerably in the area of establishing paternity. What used to be known as simple blood testing became tissue testing, which involved in certain instances the scraping of a skin sample in the context of determining paternity. We have now advanced to a stage at which what is known as genetic fingerprinting cannot just as a matter of probability but as a matter of absolute certainty — establish whether someone is or is not the father of a child. What is known as DNA fingerprinting is a new scientific method available in England and, I understand, likely to be fully available in Ireland in the very near future if not already available. DNA fingerprinting can establish to an exactitude beyond the competence of the courts whether someone is or is not the father of a child. DNA fingerprinting is known as genetic fingerprinting. The genetic fingerprinting test was discovered and described by Doctor A.J. Jeffreys, an expert in this area in the United Kingdom, as being far more powerful than the series of conventional blood tests generally used to establish family relationships. It proves beyond doubt whether an alleged father is or is not the true father. In that sense it differs from the conventional tests. The genetic information that everyone carries in their cells is inherited from parents. Effectively, when a DNA fingerprint is produced it resembles in a sense, what is known as the bar code on supermarket goods. Approximately half of the bands are inherited from each of our parents. Thus this type of test can be used to establish family relationships. Genetic fingerprinting can now resolve disputes over paternity in a positive way that ordinary blood testing and blood sampling cannot. In effect it can resolve complicated cases which previously could not be solved at all by ordinary blood tests.
I might draw to the Minister's attention the scientific basis for the type of tests about which I am speaking. They have been described in full in a number of international scientific journals, for example, in a journal calledNature published in Britain, volume 316, page 76 on 4 July 1985 and in the same publication on 31 October 1985, volume 317, at page 818, this type of scientific testing is described. More recently on 12 December 1985, in volume 318, page 506, the work done in this area is very extensively commented on and has been generally accepted by the international scientific community. The technique used in genetic fingerprinting in this context has already been accepted by the courts in the United Kingdom. The type of DNA fingerprinting I am talking about has been referred to also in legal journals. It was referred to most recently in the New Law Journal published on 11 April 1986, page 326, which described generally in paternity cases the use that can be made of DNA fingerprinting.
I believe that the provisions in this Bill relating to blood tests in determining paternity are adequate in some respects. But, in so far as blood samples are referred to and the language used in this Bill, I can foresee it being argued that the type of sophisticated genetic fingerprinting mechanism now available and which can be used to determine paternity is not provided for in this Bill, that the references in this Bill to blood samples could be taken as meaning a less sophisticated and simpler type of testing.
In this context I might draw the Minister's attention to the Family Law Reform Bill which came before the Westminster Parliament, in particular to section 23 which deals with replacing the blood test provisions which were contained in the Family Law Reform Act of 1969, the relevant English legislation which provided by statute for the carrying out of blood tests to determine paternity. Due to the availability of tissue testing and genetic fingerprinting it was felt necessary to deal with this issue in a different way. In that section there is reference to the use of scientific tests to ascertain whether a party to proceedings is or is not the father or indeed the mother of a child. In that legislation, the terminology "scientific testing", is very carefully used. Scientific tests are defined as meaning scientific tests carried out and made with the object of ascertaining the inheritable characteristics of body fluids or body tissue.
I can see that one might engage in a legalistic argument as to whether the provisions in Part VII of this Bill could be regarded as incorporating that. I suggest to the Minister that it should not be a matter of doubt. It seems that the definition used in the section in the Family Law Reform Bill that came before the Westminster Parliament is a better provision in that it removes all doubt as to the carrying out of general scientific testing in this area. If we are to do this, if we are to provide a mechanism, as this Bill seeks to provide, for making paternity orders and if we are to provide for legislation which enables a child to establish his own identity and to determine who his father is in circumstances where someone might be denying fatherhood, we should, within the context of this Bill, take into account the modern scientific developments in this area. We should ensure that these are incorporated in Irish law and even more so we should do so in the context of this Bill because of how tardy and slow we are in seeking to reform these areas of law. If we do not get it right this time, I am not sure when we will get it right.
The other matter that arises under this section is in regard to paternity issues. It provides that on the application of any party to proceedings a direction is given with regard to the carrying out of tests, be they blood tests or other tests, the party who seeks the direction shall pay the cost of taking and testing blood samples. The reason I raise this issue is that many mothers of children born outside marriage have to rely on the legal aid system, for example, to seek orders as to the paternity of their children or to seek orders with regard to maintenance support from the father of a child born to them. From my own knowledge, the carrying out of tissue testing, which is a further step removed from blood testing but which is not as sophisticated as the DNA finger printing, could cost in the region of £200 to £250.
If the mother of a child born outside wedlock seeks to require maintenance support for that child from a person she alleges is the father but who denies he is the father, who will meet the expense of carrying out the necessary tissue testing, paternity testing, blood testing of fingerprinting? If the mother patently requires legal aid through a law centre to bring such a case before the District Court, she will not have the means available to her to pay for the carrying out of such tests and such tests will be crucial in determining the outcome of any court case she might bring. I urge the Minister to consider this in the context of implementing this provision in the Bill. I also ask him to consider the scheme for legal aid, a non-statutory scheme provided for through his Department. I ask the Minister to clarify who he anticipates will meet the expense that will be incurred by mothers who seek to establish paternity in such circumstances.
Another matter I want to raise in regard to this Bill relates to the maintenance provisions in the Bill which effectively seek to extend the provisions of the Family Law (Maintenance of Spouses and Children) Act, 1976, in so far as those provisions apply to the making of support payment orders for children born outside marriage and who fall within the ambit of this legislation. I draw the Minister's attention to the fact that the support payments for children that the District Court can order under the Family Law (Maintenance of Spouses and Children) Act, 1976, have been confined to a payment of a maximum sum of £30 a week since the Courts Act, 1981, came into force. That sum has applied during a period of spiralling inflation in the first part of the eighties. The £30 is now worth considerably less in real terms than it was worth in 1981 when the Courts Act was passed in this House. Since 1981, the court has been allowed to order the making of a support payment of £100 a week for a wife. That amount has also gone unchanged. I suggest to the Minister that this Bill provides a very useful mechanism within which the financial limit on maintenance orders could be amended and increased to take into account the impact of inflation.
In the context of family law, many wives are now forced to go to the Circuit Court to get support payments. They could adequately bring their cases to the District Court if the financial limits of that court had even kept pace with inflation. It is in the interest of the functioning of the court system that we ensure legal costs are kept as low as possible until such time as we have a family court and while the District Court still has jurisdiction in this area. We are extremely slow in increasing the financial limits. The financial limits under the 1976 Act were increased under the Courts Act, 1981 but more than five years have elapsed since that Act was passed in this House. I urge the Minister to provide, in this Bill, for an increase in the financial limits.
Another matter should be drawn to the attention of the Minister in the context of this Bill. One of the procedures that was and still is available to a certain extent under the Illegitimate Children (Affiliation Orders) Act, 1930, allowed for what are known as lump sum payments. In circumstances where someone gave birth to a child outside marriage it was open to the person alleged to be the father of the child to reach an agreement with the mother of the child so that, instead of making weekly or monthly payments for the support of the child until the child reached 18 years, he would pay an overall lump sum to the mother. Such moneys might be given to the mother in trust for the child or by way of a lump sum payment or by way of some property being made available to the mother. In many cases, the possibility of that happening would not arise but in practice, there are still instances where children are born outside marriage and where the mother requires some degree of support or security from the father for her child but does not wish to be tied to having to get payments from the father and to pursue him for payments throughout the child's minority.
There are circumstances where the father of a child born outside marriage may be fully willing to meet his obligations with regard to the child but would wish to resolve the matter and to close what might be an unhappy chapter both in his life and in the mother's life and not maintain any contact which both may find distressing. In those circumstances, the father may be anxious to make a once-off settlement or once-off payment, what is know as a lump sum payment. This Bill, in effect, removes the possibility of lump sum settlements between fathers and mothers in the context of children born outside marriage.
The Law Reform Commission expressed the view that such payments were necessarily appropriate or useful. As someone who has worked in this area for many years, I can say as a matter of practicality, that in the real world and aside from looking at these problems from an academic point of view, there are couples who wish to deal with events in their lives, such as the birth of a child outside marriage, in a way whereby the child can be provided with security but whereby the couple do not have to maintain links. It is in the interests both of a child born outside marriage and its parents that we retain a statutory mechanism so that if the mother and father want to enter into an agreement whereby a large sum of money, a property or other financial protection is made available to the mother for the child it should be possible for them to conclude what is know as a once-off or lump sum settlement. This should be binding on them in circumstances where the settlement is submitted properly to a court and the court adjudicates it is in the interests of the child's welfare that it be entered into. I am not suggesting we should allow a situation to arise where a mother who might be under stress is forced to accept a payment which is inadequate. I am saying there should be a mechanism in this legislation to allow a mother who wishes to do so, who has had advice and has considered the options open to her, to enter into a settlement with the father who has had similar advice and considered the options, and where the financial settlement is such that a judge approves it as being proper protection for and in the interests, of the child.
In many instances that might provide greater protection than any court maintenance order because if a court maintenance order is made and the father disappears out of the jurisdiction and nobody knows where he is, then the order is not worth the paper it is written on. If it is a once-off settlement it can often provide the mother with a degree of security for her child which would not otherwise be open to her. This Bill removes the possibility of that. I believe that is removing a very helpful and protective mechansim which is available under our law. I ask the Minister to provide for that in this legislation.
I want to draw the Minister's attention to an issue of a similar nature. The Family Law Act, 1976, currently makes it impossible for a husband and wife whose marriage has broken down to conclude a once-off settlement. There can be instances where marriages have broken down, there may be no children or the children may have attained their majority, but the husband and wife may be totally incompatible and wish to permanently separate and do not want to have further contact with each other. The wife may wish to enter into an arrangement which guarantees her security for the rest of her life and the husband may be in a financial position to provide that security. However, as the law stands, it is not open to a husband and wife to enter into a legally approved arrangement which a court adjudges is protecting the wife's welfare, which can enable them to break the link and reorganise their lives after the marriage has broken down without the wife having to permanently pursue the husband for maintenance support payments. As I said, the law prevents a husband and wife from doing this; they are tied to each other financially and the wife may not have financial independence for many years.
I am not suggesting that wives who are financially vulnerable should be put in a position where they can be forced by their husbands to accept inadequate sums of money for their support after their marriage has broken down. I am suggesting there should be a statutory mechanism so that if a couple who are properly advised want to enter into such an arrangement they can do so in circumstances where a court approves it as properly protecting a dependant spouse. The problem is that under existing law a form of lump sum arrangement can take place with regard to a child born outside marriage but it cannot happen where a marriage has broken down.
The Bill will remove the possibility of a once-off settlement payment with regard to a child. There are practical reasons for wanting this mechanism retained. If a child is born outside marriage, if the mother and father cease to have a relationship and the mother wants to ensure the child is properly provided for, the mother, two or three years after the birth of her child, having formed a relationship with someone else, may marry. In her marriage it may be a matter of pain and concern to receive regular payments from the father of the child born to her before marriage, particularly where the father has no contact with the child, and it could be in the interests of the mother and child to conclude a once-off financial arrangement. I urge the Minister to consider providing for such an arrangement in the context of this Bill.
The final matter I wish to raise relates to a matter the Minister mentioned he might be amending. In the area of succession law this Bill seeks to place a child in a position of equality, subject to one or two exceptions, with regards to inheritance rights. There is one provision in the Bill to which the Minister drew attention. This was discussed in the Seanad and he may consider amending it. It arises under section 34 of this Bill and the new section 120A which it is proposed will be inserted in the Succession Act, 1965. Under this section in the context of a child dying intestate and on the assumption that the parental relationship has been established, if the father survives the child and is unworthy to share in the estate the court may make a declaration that he should not get anything out of his deceased child's estate. The court may consider that just having regard to the circumstances, and if it is satisfied the father did not make a contribution of a substantial nature towards the upbringing of the deceased.
The first point I want to draw the Minister's attention to is that in legislation abolishing discrimination against children we seem to be enacting legislation which is discriminatory against fathers. I accept there are circumstances in which there can be an unworthy father where he shows no interest in the child, or where the child was born outside marriage and the father did not properly provide for its support. It would be appalling if the child died owning the property and the mother, having struggled to bring up her child without the assistance of the father, was deprived of portion of that property because it went to the father. There is a very good case to be made to ensure that an unworthy father does not inherit in those circumstances.
I have come across some cases of children being born outside marriage who were abandoned by their mothers and left in the care of the father or the father's family and lost all contact with their mother throughout their childhood. Just as you can have an unworthy father within the definition of this section, you can have a mother who is equally unworthy. If this section makes any sense —and the intent is right in a general way —then surely it should make provision that the unworthy mother can be excluded from an inheritance?
It has been suggested in the general area of succession on intestacy that this particular provision is an exceptional measure in the sense it will provide and retain a difference in the legal relationships as between children born inside and children born outside marriage. It could be argued that this sort of provision which is envisaged should apply to unworthy fathers and mothers in the context of children born outside marriage, could equally be included in the Succession Act, 1965, with regard to unworthy fathers and mothers where children have been born to them within marriage.
Take the issue we were debating here last week. I made the point that at present there are in excess of 1,000 legitimate children permanently abandoned by parents in permanent foster or residential care. Surely it is equally wrong that if such a child grows up, having been in foster care throughout its childhood and upon attaining adulthood goes its way in the world and dies at a young age leaving property, the married father and mother —who abandoned that child—would currently inherit? Surely they are just as unworthy as the unworthy father envisaged in this section? There is room in the Succession Act for a provision relating to unworthy parents but it need not necessarily be a discriminatory provision which only applies to the relationship between children and parents where a child is born outside marriage. It certainly should not be one which solely applies to fathers and not to mothers, which is illogical. The Minister should amend this section to remove what I see as illogical sex discrimination.
The provision which says the court may make the declaration sought if it considers it just having regard to any circumstances it considers appropriate and if it is satisfied that the father did not make a contribution of a substantial nature, seems to mean it does not matter how unworthy a father is, that provided he made a financial contribution of a substantial nature he would still be entitled to inherit. The financial contribution should not be the determining factor. In the context of children generally, be it a child born inside or outside marriage, a father may substantially contribute towards the upkeep and upbringing of that child but if that father is convicted of a serious offence relating to child abuse or to sexual abuse of a daughter or son, to a child born inside or outside marriage, the courts could very well take the view that that father is unworthy to inherit anything. Under this section, a father or indeed a mother who sexually abuses a child and who is deprived of the custody of that child could still, on intestacy, inherit from that child provided he or she could establish that they had made a decent financial contribution towards the child's upbringing.
I welcome the recognition of the need in our succession laws for a provision relating to what I describe as the unworthy parent. However, I ask the Minister to ensure that it applies generally and not just in one specific set of circumstances where a child is born outside marriage. The essential link in determining whether someone is unworthy should not relate to the level of financial contribution which has been made towards the child's support by the particular parent. I hope the Minister will regard my remarks relating to the specifics of the Bill as being of a constructive nature. It was brought before this House to seek to place all children in a position of general legal equality. It seeks to remove anachronistic and barbaric discrimination. It also seeks to bring our law into line with the requirements imposed upon us by our adherence to the European Convention for the Protection of Human Rights and it is long overdue. We are far slower in addressing these issues than many other countries. It is important to get the Bill right and to ensure that it works in the way it is intended to work. It is also important that it provides a logical, legal framework within which all children are treated equally and which removes any vestiges of discrimination which remain in our laws with regard to children born outside marriage. For far too long we have discriminated against children for reasons unrelated to any fault on their part. The Bill, if we get it right in its passage through the House, will finally pull some of our legislation with regard to children up by its coat tails and into the 20th century.
I wish to return to an issue to which I referred very briefly. As someone who has worked in many voluntary organisations concerned with children for many years—for a decade before I came into the House — and as someone still involved in that area who sees the way our courts operate in dealing with family matters, I urge the Minister not just in the context of this Bill but in the context of the whole area of family legislation, in so far as it requires people to have their rights determined by the courts, to look at the question of providing legislation to establish a system of family courts. In doing this, he should not be distracted by someone saying that if he provides for such a system it will be terribly expensive especially when we are in such a difficult financial position and that it will cost too much. The Minister could explain to such a person that our current system is financially the most wasteful and degrading court system to which people could posibly be subjected. A study has not been done of the current cost to the State— leaving aside all the human arguments for having a family court — of having district justices, Circuit Court and High Court judges throughout the country daily determining family law matters, each doing it in his different and subjective way and many of them lacking the skills, insight and training with the cases which come before them. Some of them often create more problems for the families than they resolve. Those problems are then thrown back on the health and social welfare services.
The hidden costs of our current court structure as it implements legislation in the area of family law are far greater than the possible cost of establishing a coherent family court system with specialised judges trained to deal with family matters operating them. I urge the Minister to establish such courts as soon as possible. I am firmly of the belief that even if this Bill is passed the intent of the House will, on occasions, not be properly implemented in the courts because there would be a lack of the necessary insight and expertise in the manner in which these matters are dealt with.
I am also firmly of the belief — the Minister could check the statistics in this regard—that because of the manner in which, for example, affiliation proceedings are dealt with by many justices and Circuit Court judges at present and despite the extraordinary increase in the numbers of children born outside marriage, an extraordinarily small number of maintenance or affiliation cases are currently brought before our courts by, for example, unmarried mothers seeking support payments. They are inhibited and frightened of the court system. The mothers who find themselves caught up in the system often come out more demoralised and distressed than they were when they first decided they needed support and sought it from the father of the child born to them.
There is a great problem relating to the structure of our courts system and the manner in which family problems are dealt with and administered. I will go so far as to say that there are some members of the Judiciary who will not even entertain properly affiliated proceedings brought by a mother in circumstances where she is seeking to obtain support from the father of her child. There are some judges who take a moral view and will not deal with such issues in their courts.
I urge the Minister to look at that. It is not generally known except to a small group of people, both lawyers and social workers who work in the area of family law problems, that the problem is as bad as that. The reason why it is not known is that when judges make comments such as those in family law matters they do so in private and it is not reported in the newspaper. Therefore, if this legislation is to truly work we have to get it right and make the necessary amendments which both the Minister and we on this side of the House see as necessary to ensure the legislation is workable. I am firmly of the belief that unless this legislation is ultimately administered through a family courts system we will be back in this House in years to come saying that despite the fact that the legislation has been passed in real terms the people whom it had sought to help have not in practical terms been helped as it lacked the administrative structure within our courts to implement it properly.