Status of Children Bill, 1986 [ Seanad ]: Second Stage.

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to equalise the rights under the law of all children, whether born within or outside marriage. The Government fully support that purpose. That is why we are proceeding with the Bill, initiated by the previous administration. The Bill follows on consideration of the Law Reform Commission's Report on Illegitimacy of 1982. It has received support from all shades of political interest represented in this House, from the churches and from a wide range of interest groups. I am sure I can rely on Deputies to assist in securing its expeditious passage through the House.

The Bill is wide-ranging and comprehensive. In its opening provisions it enunciates a general principle of equality whereby, for the purposes of this Bill and of all future Acts, the family relationship between any two people is to be determined without regard to whether any person's parents have married each other. It goes on to apply this principle to guardianship, maintenance and property law, including succession rights. The Bill also introduces important new provisions regarding declarations of parentage, blood testing as an aid to establishing paternity, presumptions of parentage and other evidential matters. Finally, it amends the law dealing with the registration of births of children whose parents are not married to each other.

One area of the law not dealt with in the Bill in which there is inequality of treatment as between persons having regard to the marital status of their parents is capital taxation. The necessary changes in taxation law to remedy that will be incorporated in a suitable Finance Bill which will be introduced at the earliest opportunity.

The Bill sets out to eliminate all legal discrimination against children born outside marriage and, I would suggest, succeeds in that aim for all practical purposes. However, as I will explain later when I come to deal with guardianship, the Bill retains, unavoidably, a distinction in the matter of guardianship rights of the father depending on whether he has married the child's mother, and in that sense at least children born outside marriage will still be recognisably in a different legal category. I would emphasise that for all practical purposes this is the only area in which the law will treat children differently depending on whether their parents have married each other, and I think most people will agree that there are very good reasons why a distinction should remain in this area.

The general principle of the Bill is set out in section 3, which provides that in this and future Acts, except where the contrary intention appears, family relationships will be calculated without regard to the marital status of any person's parents. The special position of adopted children and their adoptive parents is catered for. Section 3, as a result of the commencement provision at section 1, will come into effect one month after the passing of the Bill. The remaining parts of the Bill will come into effect six months at the latest, after its passing: this is to allow time for the making of rules of court and ministerial regulations necessary for the smooth operation of the various procedures provided for in the Bill. Section 1 enables parts of the Bill to be brought into effect earlier than six months after its passing, and I intend to avail myself of that power if the necessary rules and regulations are ready before that date.

Section 5 gives statutory recognition to the existing principle that the fact that one's parents have not married each other is not a bar to Irish citizenship. Thus, a child born abroad to an Irish man and a foreign woman, who are not married to each other, is an Irish citizen.

Part II of the Bill consists of one substantive section, namely, section 7. Under the Legitimacy Act, 1931, the subsequent marriage of the parents of a child born outside marriage has the effect of making that child legitimate. However, there is an exception to this rule where the parents could not have been married to each other at the time of the birth or at any time during the previous ten months. Section 7 removes that exception.

I now come to Part III of the Bill, which is concerned with the important question of guardianship. The Guardianship of Infants Act, 1964, which codified our law in this area, provides that the court, in any proceedings relating to the custody, guardianship or upbringing of a child, must treat the welfare of the child as the first and paramount consideration. We, as legislators, must also, in amending guardianship law, pay due regard to that principle.

The Law Reform Commission, in their Report on Illegitimacy, recommended that all parents should be guardians of their children, irrespective of whether they had married each other. The reasoning behind this recommendation appears to have been a desire for consistency between it and the basic recommendation of the commission's report that the concept of illegitimacy be removed from the law altogether.

The recommendation was unacceptable because of the practical effects which would ensue from it. By and large, in our society, the mother of a child born outside marriage ends up having to look after the child herself. While there are, of course, many exceptions, the father generally simply does not want to know, and if pursued for maintenance, will generally try to avoid his responsibilities. The notion that fathers, in circumstances such as these, should by law automatically be guardians of their children, and have the same rights in regard to these children as married fathers have, could not be justified because it would not take sufficient account of the actual situation nor could it take sufficient account of the interests of the individual child.

The solution suggested by the Law Reform Commission to deal with any problems caused by their recommendation was that the mother should have the right to go to court in order to relieve the father of his position as guardian, even before the birth of the child. This would clearly put an intolerable burden on the child's mother; she would have to take the initiative of going to court in order to secure the position in relation to the child which, under existing law, is hers by right, and all this at a time when she would already be under the physical and emotional strain arising from the pregnancy or birth.

This is not to say that the father of a child born outside marriage should in no circumstances be allowed to become guardian of his child. Indeed, many of us will have come across circumstances where parents who are not married to each other are bringing up their children in a stable atmosphere; where the father, although he cannot under present law be the legal guardian, acts with the mother's co-operation and consent as guardian of the children jointly with her.

All this brings me to the approach to guardianship taken at Part III of the Bill. This amends the Guardianship of Infants Act, 1964, so as to enable the father of a child who has not married the child's mother to apply to court to become the child's guardian. The court will, in deciding any application, treat the child's welfare as the first and paramount consideration. If the court appoints the father as guardian, he will be guardian jointly with the mother. His appointment as guardian can be terminated by the court on the application of the mother where the court thinks that is in the interest of the child. There is provision for a special, informal procedure which can be used by the father to apply for guardianship if the mother agrees, and if he has been registered as the child's father in the births register.

Under this approach thestatus quo is preserved, whereby the mother remains sole guardian of her child born outside marriage unless the father takes the initiative of applying to become joint guardian. Most important, it protects the interests of the child in each case. At the same time, it gives the father of the child the opportunity, if he is sufficiently interested and concerned to grasp it, to take a full and active part in the upbringing of his child, which will be recognised by the law. This policy has the support of many voluntary groups and organisations who deal with the problems faced by single parents and their children.

Another matter dealt with at Part III is the position of the father of a child of a void marriage or of a voidable marriage which has been annulled. Under existing law, the child in such a case is illegitimate, and thus the father is not guardian. It seems unjust that, in a case where a father may have acted as guardian in the belief that the marriage ceremony was valid or, in the case of a voidable marriage, where he has been treated in law as guardian, the decree of nullity should operate to remove him from office as guardian. Accordingly, provision is being made to ensure that in every case where a voidable marriage has been annulled, and in any case where the father entered into a void marriage in good faith, he should be guardian of any children of the union jointly with the mother. I will be proposing some amendments to these provisions on Committee Stage, arising out of points made on the Report Stage of the Bill in the Seanad.

Part IV of the Bill deals with maintenance. This part replaces the present procedures under the Illegitimate Children (Affiliation Orders) Act, 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act, 1976, with new provisions to cater for children whose parents are not married to each other, in more or less the same way as that Act provides for the maintenance of dependent children of married parents. Among the more important effects of the changes are that either parent of a child born outside marriage will now be able to obtain a court order requiring the other parent to contribute to the child's maintenance; the time-limits after the child's birth for applying for maintenance are being abolished; and it will no longer be an absolute requirement that the mother's evidence be heard and corroborated.

Of course, if an alleged father denies paternity, it will be necessary to prove the matter on the balance of probabilities, and it is generally easier to prove paternity if the events in question are in the recent past and if the mother's evidence is available and supported by other evidence. Moreover, modern methods of blood testing have brought a very high degree of certainty into the establishment of paternity.

One area of the law where inequality between persons born within and outside marriage is most glaring is that dealing with property rights. Deputies will be aware that the child of parents who have not married each other has no rights in his father's estate. What is, perhaps, not so well known, but is just as discriminatory, is that if the mother of a child born outside marriage dies intestate, that child can share in her estate only if the mother left no children born to her within marriage. Furthermore, any reference in a will or deed to a person's children or any other family relation excludes persons related through an extra-marital link. Part V of the Bill brings about changes in the law in this area so that there will no longer be discrimination against persons based on the marital status of their parents.

Section 27 of the Bill ensures that, in all wills and other dispositions made after the commencement of Part V, the new principle set out in section 3 of the Bill will apply. That principle is, as I have said, that family relationships should be calculated without regard to the marital status of any person's parents, except where the contrary intention appears. The new rule will not affect wills made before the commencement of Part V, even though the person who made the will dies after that date: for the law to change retrospectively the meaning of a person's will would be wrong in principle, as not all testators might have the opportunity to restore the original intended meaning of their wills.

Section 28 offers protection to trustees and personal representatives against the consequences of distributing property, without having ascertained that there is anyone entitled to a share whose claim is calculated through a person whose parents have not married each other. This provision was criticised in the Seanad as being too sweeping in its protection. I agree that there is some justification for the criticism, and I hope to bring forward a suitable amendment on Committee Stage.

Most of the remaining provisions of this part are concerned with applying the general principle of equality to the Succession Act, 1965. Thus, the rules of intestate succession will now be interpreted as applying irrespective of whether any person's parents had married each other. A person born outside marriage will have the same entitlement to a share in the estate of a parent who dies without having made a will as his brothers and sisters, or half-brothers and half-sisters, born within marriage. In addition, section 117 of the 1965 Act will give the same right to a child born outside marriage as it does at present to children born within marriage to apply to court for just provision out of the estate of a deceased parent who made a will and who failed in his moral duty to make proper provision for the claimant. This will apply to all cases where the parent dies after the commencement of Part V, irrespective of when the will was made.

Before leaving the area of succession I should like to refer to the provision at section 34 which allows for an exception to the general principle that entitlement to succeed should be independent of whether any person's parents have married each other. Normal application of the rules for distribution on intestacy means that if a person dies intestate leaving neither spouse nor issue, his parents will share his estate equally. Where the parents have not married each other, however, section 34 will enable a court to exclude the father if it is satisfied that he did not contribute substantially to his child's upbringing.

The Law Reform Commission considered this matter in their report, and recommended against such an exclusion. There are arguments both for and against having a provision of this kind, and I remain open to persuasion as to whether section 34 should be retained or dropped from the Bill.

Part VI of the Bill sets up a new statutory procedure to enable anyone to obtain a declaration of his or her parentage. This new procedure is in addition to, and will not supersede or replace, the existing procedure under which a person's parentage can, if it is raised as a preliminary issue in, say, maintenance or succession proceedings, be determined for the purposes of those proceedings. The new procedure provided for in the Bill is designed to cater for the situation where no other relief is sought than a declaration as to one's parentage. There are safeguards to ensure that a person's parentage cannot frivolously or vexatiously be put in question by another, and to give the Attorney General a role in, for instance, cases where there is no other party to put the case against that of the applicant.

An increasingly important source of evidence in proceedings involving questions of parentage is the blood test. One of the difficulties with this evidence at present is that its value is set at nought if samples of blood are not made available for testing by everyone concerned. If, say, an alleged father refuses to give a blood sample, the court is helpless: it can draw no satisfactory conclusions from other blood tests carried out in the absence of that sample, nor can it compel the alleged father to provide a sample nor impose any sanction if he refuses. Part VII of the Bill, as well as setting out a statutory procedure providing for the taking of blood samples and the giving of blood test evidence, will enable the court to draw whatever inferences it thinks appropriate from a refusal to give a sample. The provisions of this part are all the more timely because of the technological advances which have been made recently in the area of DNA profiling, which is likely to be used more and more frequently because of its capability, unlike existing tests on blood, to give a positive indication of parentage.

Part VIII of the Bill makes a number of significant changes in the law of evidence. The most notable of these changes is the abolition of the presumption of legitimacy at section 47, and its replacement, at section 49, with a presumption of paternity arising out of marriage.

Other provisions in this part will enable findings of parentage in certain types of cases to be accepted asprima facie evidence in subsequent proceedings, and will give statutory effect to the abolition of the old rule whereby spouses could not give evidence which would tend to show that a child of one of them was illegitimate; in 1983, the High Court held that this rule was unconstitutional.

Part IX of the Bill makes changes in the births registration code so as to facilitate the entry of the father's name on the births register in the case of a child of unmarried parents. At present, the father's name can be entered only at the joint request of the parents, who must both attend at the registration office to sign the register. This contrasts with the position where the parents are married, when full details are usually supplied to the registrar by a person who attended the birth or by a member of the staff of a maternity hospital. This part also puts on a statutory basis the procedure, laid down by the High Court in 1983, for entry of the father's name on the register in any case where a married woman has a child by a man other than her husband, and all three are agreed on the facts.

I need hardly remind Deputies that this Bill is a major piece of reforming legislation, which will bring an important area of our family law fully into line with present day standards of social justice. It also has important implications on the international plane. Deputies will be aware that the European Court on Human Rights, in its recent judgment in the case ofJohnston v. Ireland, found that this country was in breach of its obligations under the European Convention on Human Rights. The court held that the absence in this country of an appropriate legal regime reflecting the natural family ties between parents who have not married each other and their child amounted to a failure to respect the family life of the parents and child. In coming to its decision, the court was mainly concerned with the discrimination in our succession laws against children born outside marriage and the absence of any provision in our law recognising the link between these children and their fathers. The enactment of this Bill and the consequential changes in revenue law to which I referred earlier will remedy that breach. Enactment will also enable this country to ratify the European Convention on the Status of Children Born out of Wedlock.

I commend the Bill to the House.

I think I am correct in saying that this is the first occasion on which the Minister, since his appointment in this Government's term, has been in the House introducing legislation. I would like to congratulate him on his appointment and to say how pleased I am that this Bill is before the House. This Bill was introduced by the previous Government and it is a measure to which my party have been committed for many years. It is a measure which a former constituency colleague of mine introduced in the Seanad. During the course of the debate in the Seanad on this Bill we saw the legislative process working in a way we frequently do not see it working in this House in that the measure now before the Dáil is a measure improved in a number of respects from the original Bill as published. Clearly, the then Minister of State with responsibility for women's affairs, the former Deputy Nuala Fennell who is now a Senator, was open to amendments and proposals in this legislation when it was before the Seanad. Indeed, the Bill has been substantially improved in the context of the one now before this House.

I suppose in congratulating the Minister on his appointment I might congratulate him also on what I think is a first since I was elected to this House in 1981. The Minister has sprinted at a remarkable speed through his speech and I hope it would not be regarded as churlish if I were to suggest that he may not have a vast interest in this measure——

I beg your pardon.

——but the disgraceful conduct of the Government last week in opposing and assuring the defeat of the Adoption Bill——

Do I gather that the Deputy has inferred that the Minister has no interest in the speech he has delivered?

I said he may be less than enthusiastic about the matter.

That is totally unwarranted and petty.

That is a rather strange comment to make and perhaps the Deputy would like to reconsider it.

I am delighted that the Minister rejects that suggestion.

It should not have been made. You are a petty little man.

I merely made the point considering the behaviour of the Minister, his party and the Government last week in voting down a measure which sought to provide for the adoption of legitimate children who had been abandoned. I welcome the Minister's confirmation of his commitment of this Bill and I suspect that if a different approach had been taken last week on the other measure which related to children's rights, the Minister might not have brought forward this measure today.

Be gracious Deputy for a change, if you know how.

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.

Like other speakers I would like to begin by welcoming the introduction of this Bill to the House and I would like to congratulate the Minister on its speedy introduction. Indeed, in the early days of the present Dáil I had on a number of occasions on the Order of Business asked whether we would see this Bill which had effectively been processed in some detail by the Seanad and when it would come before the Dáil. I am glad to see that it has now been introduced.

I would like to compliment Deputy Shatter for his thoughtful speech and I wholeheartedly subscribe to the sentiment with which he both began and ended his contribution and that was that the legislation, as passed, should be as comprehensive and as careful as possible and should be given the institutional support that is necessary to implement its provisions adequately. I am very interested in this legislation for a number of other reasons. It is exactly 13 years ago that Senator Mary Robinson, Senator Horgan and I attempted in the Seanad to introduce a Bill called the Removal of the Status of Illegitimacy Bill. It occasioned an interesting debate which centred entirely around the juxtaposition of the rights of property and the rights of children.

In that debate a Senator now no longer with us, who was a very brilliant Senator, made a suggestion that the proposal we were advancing at that time was a kind of socialism between the sheets and that we were going to redistribute the property of the country in a way which was going to be totally unacceptable. Indeed, I recall the spirit of that debate very well. The proposal received less than a dozen supporters in the Seanad. In the course of the debate a number of phrases were used which were reflective of the atmosphere of the time. However, they were reflective of something deeper which was more than of the atmosphere of the time. They were reflective of a culture which had asserted property rights to be clearly more important than the rights of children. One of the phrases used in that debate was "adulterine child" and an image was constructed which supposed an individual had gone on to full respectability by owning property and, being in a valid domestic relationship, to be asked to account for his behaviour many years before would be most inappropriate procedure. The idea was that you could not possibly have these human skeletons coming from cupboards to frighten what was an intact and disposable set of property relationships.

Since 1974, I have been fascinated by the phrase "adulterine child" which was used in the debate in the Seanad. When we came back a kind of evolution took place some of which we can take credit for. There was a change in attitude. There was also an evolution in Europe. Let me say before I go any further that when the Minister of State for Women's Affairs, the then Deputy Nuala Fennell, introduced the Bill I was very glad to see her bringing it back because over a decade had passed in which a number of debates had taken place. It is to the credit of the Minister of State, the former Deputy Nula Fennell, that she took the advice Deputy Shatter is now offering the present Minister for Justice and accepted amendments to the Bill which was initially introduced in May 1986. When the Bill came back the word "illegitimate" was removed but it still retained a number of problems which Deputy Shatter has addressed and which quite frankly I do not intend addressing in detail on Second Stage but they are ones which we should tease out on Committee Stage in terms of their implications.

What had taken place in Europe was interesting in a number of ways. In 1975, the Council of Europe building on what had been achieved in a number of States adopted a convention on the legal status of children born out of wedlock. The purpose of that convention was to bring about a situation throughout Europe where the legal position of children born outside of marriage would in all essentials be assimilated to that of children within marriage. In 1979 the Court of Human Rights under the Convention of Human Rights argued in the Marckx case that laws which discriminated against persons born outside of marriage were inconsistent with the convention unless they could be justified on some reasonable and objective ground.

There were a number of other developments also. There was the report on illegitimacy, which has been referred to by many speakers, which was published by the Law Reform Commission in 1982. Therefore, we had an evolution in the debate on this problem. When the Bill was introduced initially in the Seanad I recall convincing arguments being put forward that the concept of illegitimacy could not be abolished legally, but by one of those fine pieces of thorough research in a short period of time and by comparison with the legal changes which had taken place in Scotland it was found when the Bill came back that the concept and stigma of illegitimacy could be removed and that was very welcome.

A number of points were provoked. I spoke on both Second and Committee Stages in the Seanad and suggested at that time that I would have preferred a stronger title than the Status of Children Bill. Perhaps this is not necessary now because of the changes which have been made in the Bill, but the Bill as introduced in the Seanad contained the extraordinary term "non marital child". At that stage there was a necessity to change the title to one which would be so strong as to remove the discrimination against children who had been born out of wedlock. Nevertheless, things change very slowly.

I note in the explanatory memorandum the phrases "void" and "voidable marriage". I have been fascinated by this language of voidable marriages. We in this country use language like that because we do not allow for civil divorce. That is because the people decided in a constitutional referendum that they do not want to make changes in the law to allow people to end what are for them irretrievably broken down marriages. I strongly urge the Minister for Justice to set up such institutional arrangements as are necessary to draw distinctions between church and civil marriages. The confusion we had in the referendum would not have arisen if that clear distinction had been drawn. We must as a Parliament have the right to offer to the people proposals for changes in the civil law, without the shadow of other forms of law being cast over the civil law. That is only a reasonable point of view.

Equally, there is the question of children of void marriages; that is the concept used. This question will, of course, be fudged in a number of ways as it is by people who talk to me about their family difficulties. In a recent court decision a judge ordered that the male spouse is entitled to a standard of living equal to that which he enjoyed previously, even though the nullity decree in that case is a church one rather than a civil one. The question there is fudged; it is an undesirable intersection. We have heard a great deal and had a long hot summer about matters like that but what we are discussing now is very specific legislation. However, it does carry with it a particular history.

In 1974, the debate was overwhelmingly in favour of the rights of property. It was rather like what surfaced again in that long hot summer spent in deciding matters of civil law reforms. It came back in the end to what is now part of this Bill, the question of property rights. The argument was a very interesting and simple one. It reflected something sometimes referred to as a traditional view of Irish life—the idea that a male could, with impunity, become involved in sexual relations and be regarded merely as sowing his wild oats. He was sowing more than that. The attitude was that he then could forget this wild period of his life but the appalling result was that the babies born as a result of such behaviour were placed on turn-tables from which they were taken into institutions and denied not only maintenance, guardianship, education and sustenance but even knowledge of their identity.

The Bill seeks to put some of these matters right. It replies to those who have such an uncritical view of the past, believing that it was some kind of Arcadia where these things did not occur. Literature has been published about the children who filled these institutions, sometimes later hired out to different people. Some were children who never participated fully in life again. In my own work as a sociologist I was interested in the background of young offenders. One found that institutionalisation so impaired many of the social skills that those involved were not prepared for any ordinary integration into life. That is there as a dark part of our past — the way we treated the children whose equivalents in the future will be saved by some of the terms of this Bill.

Senators stood up in 1974 and did the usual and correct thing in Ireland. They paid tribute to all the charitable institutions that had absolved people from their responsibilities. Running with that strain of avoidable obligation in the community was the other strain that all these children were produced really by loose women who were not able to control adequately those buttons in the male anatomy which could have protected them from pregnancy. Very often, in relation to the child born out of wedlock it was not only the child who was sent off into a legal, social and civil wilderness; the mother was asked to disappear as well and the women did disappear, having committed this act of giving birth to a child. They had been impregnated by some man who was now, no doubt, safely somewhere launched in the respectable echelons of Irish society.

I do not recall anything as vigorous as the opposition we encountered when in 1974 we tried to change this. The idea was; how could somebody now be asked to answer questions in relation to paternity so long after the event. It was as if one could wipe the slate clean, wipe these irresponsible actions from one's personal history. That is the first point I want to make on this legislation. There is need for an emphasis on social responsibility in relationships to accompany legislation like this. I am thinking in terms of an education programme so that we can, indeed, regard all children as equal. There are many other implications that require a great deal of explanation and amplification in the public mind.

Another interesting concept arose at this time. All the main parties joined together to defeat that effort in 1974. Some spoke, as I have said, with extraordinary eloquence. Interesting also was the idea that somehow or other these children were different from children born within the real family. The family was the family defined in the 1937 Constitution. There is no point in Members of this House in 1986 or to the end of this century imagining that they can go on with the fiction that children of couples who are co-habiting together and behaving responsibly towards each other are not children who are equal to other children, who have rights and must enjoy rights under the Constitution and in law. You are talking about the equality of children and you must realise that the form of the family has changed, the form of unions has changed and you are dealing with an entirely new set of circumstances. I have every sympathy for a reforming Minister who wants to do something like that in relation to the restriction in the family, but the constitutional amendment and its defeat clearly show where we stand in this matter.

I shall discuss on Committee Stage this question about void and voidable. I would be fascinated to be told where it exists in other legislation, its history in any kind of jurisprudence. The notion is a cultural one. The idea is that in a country that precludes civil divorce one can imagine that one's marriage never took place. One can, because of our law and well-tested international reputation for contemporary as well as ancient mythology, imagine that the existence of children of that imaginary marriage does not contradict the myth. Thus we have to go on with the concept of voidable marriage and so forth in law. That is the history of this legislation. There is a fictional element running through it with people struggling to try to construct a piece of legislation in almost impossible circumstances.

The question of the balance of rights and property is one I will not be deflected from in this debate. We are all aware from recent cases in relation to planning and other matters that the constitutional provisions need to be changed. However, looking at the balance of rights that exist in the Constitution in relation to children it is my view it is seriously defective. There is a need in terms of women and children for a stronger constitutional affirmation of equality. From such a desirable constitutional amendment could come equality in relation to the sexes and there would follow a whole series of Bills to conform to such a constitutional change. If the position of children was more explicitly stated in a reformed constitution it would be easier to bring in reforming legislation because young people would be able to argue their case. It would be an easier legislative process than the one we have.

I do not want my remarks to be construed in any way other than being a welcome for the legislation. It is important to recognise the historical background to the legislation and to recognise the source of the arguments that were directed against it. I should like to pay tribute to the former Minister of State for Women's Affairs, Senator Nuala Fennell, for her work in this regard. Unfortunately, that post no longer exists.

In the Seanad debate the two informing elements concerned property and the role of the woman in society. I like to think there has been a change in the political culture of Ireland and that we have been moved to introduce legislation that we would not have brought in in the seventies. The cynic in me suggests we are assisted by the decisions of the European Court and European reform. It may be we need a good tailwind from Europe to move us to bring in reforming legislation although the domestic tailwind our Supreme Court brings occasionally is usually welcome. I note that in recent weeks that wind could not be regarded as being benign. Nevertheless, we are dealing with an important piece of legislation. The Bill is better than the legislation introduced in May 1986. It has been considerably improved and I should like to thank the people involved in the Department of Justice, and elsewhere, who responded to the suggestions put forward, particularly with regard to the nonsense about marital and non-marital children.

The remaining reservations I have hang around the question of property rights. The notion is that for the future we will have removed the basis of a stigma that existed which was an appalling disability not only in terms of law but in practical terms. In my view we are talking about one of the most important pieces of legislation in the socially reforming area in 20 years and when the Bill passes through the Houses of the Oireachtas it will be welcomed as such. I am glad the Bill is abolitionist in nature, that it will abolish the stigma, rather than introduce new words which would become the basis of a new stigma.

While we, as legislators, can change the status of children legally in terms of the number of children born within wedlock and others we cannot but urge people towards some kind of socially based morality and responsibility in this regard. This may be a contentious point to make in the House but not only could one forget about the child one had deposited in some charitable or State-aided institution but there was also the theological suggestion that one could wipe the mark from one's soul and go on being a good person in many ways. We need legislation like this because we have not got a kind of morality and responsibility that is based on the social and sexual relationships between people as living sexed human beings. It is our responsibility to bring in laws that will create an environment for that. It is important that we recognise what went on under the old system and under the old version of exculpation of responsibility in regard to the children who filled the institutions.

In regard to legislation of this kind we have been operating under the dead weight of a traditional view, as it was called, but I do not believe it was traditional. In my view it was conservative. Over the years in the House some Members liked to confuse the words conservative and traditional. There are many traditional aspects of Irish life that were generous in their nature, were not condemnatory and did not place stigmas but, unfortunately, conservative people have been allowed to use the word traditional for their own purposes to rationalise their construction of history.

In the Seanad on 9 July 1986 I spoke about these matters. I referred to the phrase that was being used, the first family. That raised an interesting question. The idea was that if one had what was called by Senators in 1974 an adulterine child and then went on to produce normal children those children were considered under the Constitution to be the first or the real family. That left in a kind of penumbra those other bodies with responsibilities. We moved very slowly since then. It took 20 years for a Bill to be introduced in the Dáil. There was a long debate in the Seanad on this matter. In its first introduction and when it was returned to the Seanad it had more amendments.

I wish the people who want to abolish the Seanad were here listening to me now. If I were to give an example of legislation which in the Seanad received the most careful and thorough debate I would cite the Status of Children Bill. It was improved in a number of ways in the Seanad. Many amendments were suggested some of which were rejected but many of which were made generously and the Bill was reformed. If there was ever a case for the solid work of people involved in family law, professionally, such as Senators Robinson and McGuinness and other Senators from all parties who contributed to the improvement of the Bill it was made during the debate on this Bill. This is the Bill I would single out as the great negation of the argument for the abolition of the Seanad. The fact that Senators of that party did not contribute to that debate hardly justifies the abolition of the Seanad.

I hope this Bill will have a smooth passage here. I have had time to contribute elsewhere on this issue but I would just like to make a few small points here. One of the points that bothers me most relates to the implementation of the Bill in relation to property. The effect of the Bill will be that such wills and arrangements as are made after the date of the Act will then take effect. This almost suggests that one could have intensive legal activity between now and the signing of this Bill as people put their moral, economic and property houses in order. I doubt if this will take place but at the same time there is not a convincing case for saying that we can start anew in relation to property entitlements of the child born outside of wedlock. There are children who have accrued natural justice rights to property that should be reflected in this Bill. On Committee Stage I will have some observations as to how the Bill might be improved in this regard.

The sections dealing with leaving intact a number of trust and deed arrangements by which property can be transferred are quite defective in so far as we are not excluding the child born out of wedlock from any access to property but we are not creating any concept of equality in relation to access in terms of appealing to either the estate or to such property as might be transferred or disposed of by way of a trust or deed. I would urge the Minister to look at that section again. Many of these points were made by Deputy Shatter and they should be looked at again.

There should be an accompanying explanation with this Bill. The explanatory memorandum is as good as I have seen in relation to Bills but I am really talking about an explanation and publication of the implications of the Bill in the public realm. Another matter arises under the property sections of the Bill. Let us assume that an individual is given the responsibility to dispose of an estate. Should the person have an obligation to see if there is a natural child who is excluded from benefit from the estate? Rather than putting the onus on the person who has been excluded, that provision should be changed so as to make it necessary for whoever is in charge of disposing of the property to assert that person's rights.

It is interesting to know what happens in relation to women and children in Ireland at present. We must remember that the woman usually elects to support her child separately from support from the natural father and she is at a unique disadvantage. For example in 1975 a woman's earnings, the kind of woman who has tried to rear her child unsupported in law for so long, were less than they were in other comparable countries in Europe. In 1975 an average woman being paid hourly earned 60 per cent of male earnings and 52 per cent of male earnings on a weekly basis. In 1978 she had 63 per cent of male earnings on an hourly basis and 55 per cent on a weekly basis. Women were working part time, on an hourly basis unable to take on the obligations of a full weekly job, in order to be able to carry the burden of rearing their children, who were different in status from every other child. There is no need for me to go into the whole history of the experience of the children who were involved. It is nice to think that we live in a generous society that all of the children of the nation are treated equally. That is an aspiration which I would not condemn. Would that it were true, but it is not true. It is not true now, it was never true and there is nothing I see in tendencies in this country that will ever make it true. At present, even for ordinary children, the child of a manual worker will have a sixteenth of the chance of entering a third level institution as the child of a professional parent and about seven times the likelihood of needing some medical care later in their lives. We have produced children for poverty and we have produced children for wealth. Society reproduces itself and it has a subterranean stream of children which this legislation will affect. Thousands of women reared their children unaided by the father of the child without access to his wealth. What was the woman to do? People wrote novels about all of this. They would find in a strange place the initials of the natural father and the mother scraped on some wall and around it one could construct the novel, the famous nineteenth century novel. The idea was that perhaps all of these children were children of a person of property. When the madness had been removed from it, all that it really meant was that women earning less than anyone else in Europe, earning less than men, unable to take weekly jobs and being badly paid by the hour, tried to rear their children unaided by the earnings of the natural father, and with no access to his wealth or property during his lifetime, which was no doubt one of respectability, or even after his death when he had gone to his reward, as people say who concentrate on such things.

The legislation of 1986 and 1987 attempted to stamp out a number of things. We had sense, as some speakers have said. This legislation is another way of dragging us by the hair of the head screaming and kicking into the twentieth century and making us realise that we have obligations to regard all children equally. Inevitably in Ireland, in its undecolonised institutional status, we have had to have an endless array of attempts. I pay tribute to people like Senator Robinson, Deputy Fennell and others. There were also the reports of the Law Reform Commission and reports on illegitimacy. Then there was the discussion memorandum on the status of children. I regard all such documents as useful discussion documents. We did not rush into this position and we should welcome this reforming legislation while noting its slow history. May no other reform in the area of child welfare and of family law have such slow progress. If we are to reform family law and the law relating to children, there is a package of law which must go together. I have made the point that it could have been assisted by a different kind of constitutional assertion. This legislation needs to be brought forward now.

This Bill does a number of important things. The things it abolishes and removes are also important. It assists in relation to the right to establish one's parents and the question of guardianship. These are important reforming provisions. It will assist in relation to clarification of maintenance and to some extent in the clarification of property rights, although there are serious defects in that section. It will assist in relation to the declaration of parentage. It sets up some useful procedures regarding the establishment of paternity and it makes some useful suggestions in relation to the registration and re-registration of births.

There is a need to look at the entire procedure for the registration and processing of births. The present mechanism is not a useful one. I repeat that it stems from the intersection of the question of birth registration and baptismal registration. An immense amount of confusion exists which reflects something which was old in Ireland, a State which had not the confidence to claim a civil authority. We must have the confidence to demand a civil authority. We are the State. The office we hold is elective and we can be rejected by the electorate — I know more about that than most people. We are elected to enact civil law and to set up civil procedures in relation to marriage, birth registration, property and so on. Unless we want to follow the example of Iran, which claims that it has some kind of chosen role within Islam, or claim some special relationship in the Milky Way galaxy, we must clarify these procedures and establish a distance between the different legal systems that are involved.

I note that the Bill avoids the area of taxation and revenue. I once calculated the way the State views the needs of a child in relation to maintenance. There are no less than 24 different ways in which a child is calculated for expenditure purposes in our social welfare and taxation law. At no stage is there a specific commitment to what is needed to maintain a child.

I beg the indulgence of the House for giving the history of this legislation. I was one of the people involved about 13 years ago in the struggle to have such legislation enacted. I echo the views of Deputy Shatter that we should look at each of the sections as carefully as possible. There is also the question of property, which is often considered as if it were a stable entity. There is much merit in considering a system whereby a person could discharge his obligations by the payment of a lump sum agreed between the parties concerned. It would also have considerable flexibility. I do have sympathy for the family who find that someone they never knew will have access to an estate. One must have sympathy in such an event. The problem up to now has been that we pretended reality did not exist. If we are to recognise these problems we must have sufficient flexibility to leave intact as many of the feelings and relationships as we possibly can.

It would be very inappropriate if I did not at this stage acknowledge our indebtendness to a number of voluntary organisations who have addressed the question of the isolation of people living in a world where children were not regarded as equal. It was a world of stigma. There are women who struggled to rear their children against extraordinary difficulties and who continue to write to us as legislators telling us what changes should be made. I have in mind such organisations as Cherish. The Minister would do well to consider again the submissions they have made in relation to this Bill, particularly in regard to the property clauses. I very much welcome the Bill and I look forward to the opportunity on Committee Stage to tease out a number of amendments.

We must pay particular attention to the sections dealing with wills and intestacy and the whole question of the disposal of property and the court procedures involved. There is merit in the family court concept. I do not agree that the Circuit Court as referred to throughout the Bill is necessarily the appropriate mechanism for the invocation of possible new measures in relation to the law. If one does not want to become involved in major reform of the courts it might be possible to maintain a ministerial initiative to direct such institutional changes and resources as are necessary to implement the Bill. I am not talking only about court procedures but about other forms of procedures that could be called in until we see the Bill in action and then perhaps it could be amended in the future.

The Bill is very welcome. It is important social legislation, one of the most important pieces of such legislation to come before the House for some decades.

I will be very brief because I realise my colleague, Deputy Barnes, is anxious to make a contribution before this discussion on the Bill concludes at 7 p.m. It is a privilege to stand here in Dáil Éireann and speak about a Bill of this nature. During the years before it became fashionable and popular — in the best sense — I made many speeches both inside and outside the House and tabled questions seeking abandonment of the term "illegitimacy" to give meaning to one of my concepts of what republicanism means. I see my socialist colleague, Deputy M. Higgins, about to depart after making a first-class contribution to this debate. He had the unusual distinction of making a first-class speech about this Bill in the Seanad and than had the privilege and opportunity of making a similar speech in the Dáil. He is a former Senator and is a Dáil Deputy today. Such privilege is not given to many people. I listened to his speech with great attention but I would not agree with all he said. I do not share his pessimism in relation to the future of the nation and the future of the children of the nation. We make an effort to support the Proclamation that we should cherish all the children of the nation equally. While that at present is an ideal, as Deputy Higgins said, it is something we can realise in time. This legislation is part of that realisation, part of the achievement of cherishing all the children of the nation equally.

I have referred to my concept of republicanism, and this Status of Children Bill is part of my package of republican reform. The Shatter Bill on adoption was rejected for a number of reasons which we will not go into now. I would like to see it reintroduced urgently before the end of this Dáil session, and the Minister for Health has referred to that. Such legislation is part of the thrust of what the Minister for Justice has now before the House. I would like to see the whole area of family law reformed urgently.

The Minister for Justice is to be congratulated on introducing this Bill. It is an historic breakthrough in social legislation and I am very privileged to be able to stand up and be part of that historic breakthrough. Without going overboard and being sycophantic, which is not in my nature anyway, I want to thank the Minister for bringing the Bill in and to say we appreciate it very much.

The purpose of the Bill is to equalise the rights under law of all children, whether born inside or outside marriage. The Bill achieves that by putting children born outside marriage on the same footing as those born in wedlock or as nearly as possible. Deputy Higgins made the point that certain strands still have to be brought together to give fulfilment to total abandonment of discrimination against children born outside wedlock. We must be careful about that. The Bill allows a person to obtain a court declaration as to his or her parentage and facilitates the use of blood tests in civil proceedings. It amends the law relating to legal presumption and other matters evidential to the registration of birth of children born outside the marriage structure, as so well articulated by the previous speaker.

The previous speaker seemed to be dining off his speech. We are inclined to do that in this House, although I try not to fall into that trap. However, he made a very valid point in relation to the number of amendments that were made to this Bill when it passed through the Seanad. He used that point as support for the continuance in existence of the Seanad, in other words the bicameral system. He said that if for no other reason than the achievement of the Seanad in relation to the perfection of this Bill, the Seanad should continue in existence. That is not a bad point. I am not certain whether we should have two Houses. I have not given the matter great thought or come down one way or the other on that. As Deputy Higgins said, the Bill was amended substantially in its passage through the Seanad and extremely worthy contributions were made at that time. I studied them with great concern and reflection. I am glad that the nonsense in the "old" Bill - the term "non-marital" to describe children whose parents had not married each other — has been abandoned. The use of the term was criticised both inside and outside the Seanad. That term would have perpetuated the very stigma we are seeking to abandon in this Bill and for thatDeo gratias.

Another point made was in regard to the enactment of the Bill. Some consequential changes in Revenue laws to be included in the next appropriate Finance Bill will ensure compliance in this country with the European Convention on Human Rights in relation to persons born outside marriage. The breach of the convention in this regard as found by the European Court of Human Rights in its recent judgment in the Johnson case will, we hope, be remedied once and for all.

In 1982 the Law Reform Commission published a report on illegitimacy. That may have been the first time this social problem was addressed by an organisation of this nature. The basic recommendation of the commission was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside of marriage with those of children born within marriage. The report included recommendations covering the area of succession, parental rights, maintenance of children, actions to prove parentage, blood testing as an aid to proof of parentage and registration of births, as has been stated already. Among the principal recommendations in regard to succession was one that persons born outside of marriage should have the same succession rights as other persons on the intestacy of their fathers and mothers and relatives of their fathers and mothers — that relatives of a person born outside marriage should be entitled to succeed on the intestacy of that person as if the person were born within marriage. The present rule of interpretation under which such words as "children" or "issue", when used in wills, deeds or other instruments are presumed to refer only to persons born within marriage should also be set aside.

It is important to reflect on the reasons that group of persons gave for the suggested abandonment of the stigma attaching to the expression "illegitimacy" in relation to children. Before going into that I should like to pursue the sense of injustice and unfairness that those people born outside of wedlock must feel that this problem was not resolved sooner than 1987. It seems to me disgraceful that we are dealing with it only now. I am not making that criticism in any negative way. I am glad that we are now dealing with it rather than, say, 20 years hence. In the meantime it should be remembered that we are dealing with people who had no say good, bad or indifferent in relation to their existence. That should be a sufficient reason for ensuring that they are given equal status with those born within wedlock. In other words, those children born outside of wedlock had no responsibility whatsoever for the circumstances of their birth. Deputy Michael Higgins in a graphic, colourful way described it so well. I should like to support what he said in that regard: the old concept of man and woman being one, that is basically what he is speaking about, but thankfully that concept is gone. I was brought up in the Republican tradition in which men and women were equal, in which we felt no strong sense of separateness in relation to achievement or otherwise. That is what I was brought up to believe. I did not have to have the latter day women's liberated organisations to explain the difference and their entitlements under the Constitution.

Women did, though.

Certain women did.

All women.

Certain women made a mess of what they were trying to achieve in their hysterical proclamation of their case. I say that with the greatest respect to Deputy Monica Barnes, who has done much for the women's movement and who would not fit into the category I have just described. I do not want to be drawn down that avenue. It is possibly worth quoting the Law Reform Commission's reason for change, a very worthy reason, contained in their Fourth Report, paragraph 5:

The thinking underlying the then Government decision is that the continuation of the legal disadvantages suffered by persons born outside of marriage is not in keeping with the Christian and democratic nature of the State...

I presume that would include the Jewish citizens who do not happen to be Christian. We do have a Jewish community here. We do have people who do not proclaim to be Christian at all. Again, that sentiment would stem from my Republican background. To quote the relevant recommendation again:

The thinking underlying the then Government decision is that the continuation of the legal disadvantages suffered by persons born outside of marriage is not in keeping with the Christian and democratic nature of the State and that, as far as possible, the law should not operate to the disadvantage of people merely because of the circumstances of their birth.

Point made. The Government had regard to the fact that in many common law and civil law jurisdictions substantial reforms in this area of law have taken place within the last 20 years. As has already been stated Ireland is not a party to the European Convention on the Status of Children Born Out of Wedlock, 1975, the aim of which is to assimilate the legal status of persons born outside of marriage with that of persons born within marriage. It should be possible to ratify that convention when the proposed legislation has come into force. I should be glad if the Minister would address himself to that point: will we be ratifying that Convention when this legislation is passed?

It is my understanding that this Bill does not have to go back to the Seanad — the Minister can correct me if I am wrong — if it is not amended here but that, if there are amendments passed in the Dáil, then it does have to return to the Seanad. It is my information that, during the General Election period this Bill was discussed in the Seanad and in those circumstances it does not have to revert to the Seanad. If the Minister cares to answer it I shall be glad and, if not, I will take no offence.

The Bill before us must be considered to constitute major legal and social reform. We are following an international trend, dating back some 20 years, toward the elimination of discrimination in the law against people born outside of marriage. That is as it should be. Deputy Higgins mentioned the Markx case, contending that we have obligations in this area arising out of our adherence to the European Convention on Human Rights. In 1979 in the Markx case the Court of Human Rights held that laws which discriminate against persons born outside of marriage are inconsistent with the Convention unless they can be justified on some reasonable and objective ground. I believe that, in the course of that judgment, the court expressly recognised that, while supporting the encouragement of the traditional family was in itself legitimate and praiseworthy measures aimed at achieving that end should not be such as to result in prejudice to the family not based on marriage.

As I understand it, until recent times, children born outside of marriage were ignored by Statute, the famous old legal phrase —filius nullius— meaning the child of no-one that child born outside of wedlock being thrown to the four winds. Nobody wanted to know. That is the social discrimination to which such children were subjected up to ten, 15 or 20 years ago. Then there was an awareness that we in this nation had an obligation to those children born outside of wedlock. Natural parents were not the guardians of their child or children nor had they any rights with regard to their custody. Indeed when either parent died without making a will the children had no right to share in the estate. Some of the rigour of the common law has been lessened by Statute over the past 50 years or so. Those of us who learned a smattering of law to achieve our professional qualifications will recall the Illegitimate Children (Affiliation Orders) Act, 1930, which enabled the mother of a child to claim maintenance for the child from the putative father but a finding of paternity in such cases was effective only for maintenance purposes. The Legitimacy Act of 1931 provided that the marriage of parents subsequent to the birth of a child could render the child legitimate. That Act also gave a child born outside marriage some rights of succession on the death intestate of the mother. The Adoption Act, 1952, provided for the legal adoption of children born outside marriage and this involved the permanent transfer of parental rights and duties from the natural father to the adopting parents. The Guardianship of Infants Act, 1964, removed uncertainty in relation to guardianship by declaring that the mother of a child born outside marriage is the child's guardian. The Family Law (Maintenance of Spouses and Children) Act, 1976, improved, in the area of maintenance, the position of children born outside marriage.

The social reform of the law on illegitimacy was called for. It would not be fair to fail to pay tribute to the Minister of State with special responsibility for womens' affairs at the time the Bill was introduced, Deputy Nuala Fennell. She was very genuine and sincere in her efforts to bring forward a Bill which finally found a home in the Seanad. Unfortunately, she lost her seat in the recent Dáil election but was elected subsequently to the Seanad so will continue to have her social awareness input into debates and issues of this nature in the Houses of the Oireachtas. We should be glad for that. Tribute is due to her for her efforts to highlight discrimination in this and in other areas of the law.

The Bill, as the Minister said, covers a wide spectrum of the law. It deals with guardianship, maintenance, succession and property rights, a new procedure for the declaration of parentage, blood tests as an aid in determining questions of parentage, legal presumptions, in evidential matters and registration of births. The only major area of relevance which it leaves untouched is, as I have already stated, that of revenue law. I understand that will be dealt with in the Finance Bill which is to be brought before the House in the not too distant future. As I have undertaken not to speak at any great length, I will make one or two suggestions to the Minister on Committee Stage. One of the difficulties of being a backbench Government Deputy is that you can be hoisted on one of your own amendments in the sense that some smart alec Opposition Deputy will see an opportunity of making the Deputy walk into the division lobbies on an amendment which he proposed and which the Minister did not accept. I will not fall into that trap but at the same time I will not hesitate, and have not hesitated since Fianna Fáil came back into Government, to express a point of view in the House and I will continue that attitude. I have a number of amendments that the Minister might consider and I have no doubt that the Opposition parties will also pursue the additional perfection of the Bill by way of a number of amendments.

I pay tribute to the Seanad for the work it did in bringing about a Bill which was to the satisfaction of the majority in the House. It will be interesting to see how the standard of debate in the Dáil will compare with that achieved by our sisters and brothers in Seanad Éireann.

Like all the other Deputies who have spoken, and before I get down to some of the particulars of the Bill, I also would like to pay tribute to several people. I wish to pay tribute to the then Minister of State, Deputy Nuala Fennell, who brought this Bill through the Seanad and who, even before then had received the many submissions made after a discussion document had been published. That is always a very good exercise, particularly with complicated legislation. Having either listened to the debates in the Seanad or read them afterwards, we can all be struck by the high level of debate and by the commitment and social conscience of many Senators as expressed during the debate. The strength of their arguments was such that on Committee Stage many amendments were made. Probably the most contentious, important and fundamental one of all was the removal of the terms, "marital" and "non-marital" from the Bill.

I agree with Deputy Michael D. Higgins, who was then a Senator, that there are many instances and examples on the Seanad records of the input and contribution of Senators to legislation but there is no better example than the debate on this Bill. I am delighted that the Chairman of the Progressive Democrats is present to hear me say that because while I agree that reform may be needed with regard to the structure of the Seanad I certainly would not agree with its abolition. We in this House have had many occasions to be grateful for the input, the contribution and the almost finalised legislation we received from that House. I know the Government are going to initiate legislation through that House and will use it to its full ability. I welcome that very much.

I would like to pay tribute also — and all of us should pay attention to them — to the voluntary organisations such as Cherish, the Federation of Single Parents and Unmarried Mothers and the Irish Society for the Prevention of Cruelty to Children who work with mothers and children and who made very important and significant contributions to this legislation based on their experience. Like other social legislation this Bill comes to the House after a long history. I welcome it and thank the Minister for bringing it so quickly to the Dáil. Because I have not spoken on legislation since Fianna Fáil took office I wish the Minister a very successful and productive career and I hope there will be many occasions when we will talk across the House on social legislation.

It is worth remembering that as a result of many countries removing years ago this intolerable discrimination against what we still term illigitimate children, the Council of Europe moved to adopt the convention on the legal status of children born out of wedlock. I agree with the Minister that when we pass this Bill we will be able to ratify that convention. It is always a matter of pride and pleasure to ratify conventions we have entered into, particularly in the area of human rights.

Deputy Michael Higgins referred to the importance of our membership of the EC and to the significance of the many times it has dragged us either willingly or unwillingly into mainstream European legislation. I question why our continued existence and full participation in the Communities should be opposed by him. This is one of the most important and productive ways in which we can participate in Europe from which we gain very much.

Debate adjourned.