Deputy Monica Barnes was in possession.
Status of Children Bill, 1986 [Seanad]: Second Stage (Resumed).
Deputy Barnes is not here. It gives me great pleasure to welcome this Bill into the Dáil and to welcome the opportunity which we have awaited for a long time to see progress on treating all children of this nation equally as I know we are all in spirit committed to. I am glad that the Minister has seen fit to introduce speedily this Bill before the House. It had received substantial treatment in the Seanad. I am glad there is a broad consensus on the need to reform this area of child law, and that all that remains is to work out the details of this legislation and implement it as speedily as possible.
While the Bill has gone through the full process in the Seanad and some debate in this House, it is important to look at the reasons we are attacking this problem and the need there is to address it. I was involved in 1979 with Young Fine Gael in their campaign to raise public consciousness and the commitment of our party to reforming this area of law. At that time even to use the word "illegitimate" was considered rather forward. It was something people preferred to forget about, a closet problem. Times have changed substantially and attitudes and social practices have changed a great deal but the law remains the same. The law is over 100 years old and reflects none of the changing attitudes. To this day tens of thousands of Irish children are discriminated against under our laws because legislators have failed to act in this area. We have a Constitution which delcares that all citizens shall be equal before the law. For the full existence of this State to date we have accepted that a large section of our young people who were born innocently into a situation which is not covered by the laws which protect children born inside marriage were discriminated against fundamentally. It is difficult to know exactly how many children we are talking about, but an increasing number of children are affected by the disadvantages associated with being born outside marriage. The figures in front of me show that in the seventies there was a steady increase in births outside marriage from 1,709 to 3,000 at the end of that decade, and in the six years of this decade the figure has increased to 5,000 this year.
Our complicated marital situation which makes no provision for legal remarriage, while there is a provision in Church law for annulment and remarriage, has led to an increased incidence of children being born outside marriage to perhaps very committed and caring parents who within the limitations of the laws at present cannot have the full relationship of parent towards their children in the context of full guardianship and full inheritance rights without having to go through very complicated legal procedures. Therefore, that we are dealing with this problem is all the more welcome.
At this stage in the debate we should consider exactly the discriminations these children are suffering from. The discriminations range from status to very real legal limitations on their rights and entitlements. It has been long accepted in our society, to our shame, that, while we have that wonderful aspiration in our Constitution towards all human persons as equal before the law, for too long we tolerated discriminations imposed upon innocent children whose accident of birth led them to be outside the law and outside the recognition and protection of society on so many fronts. We simply accept that some are more equal than others. At last here in this House is full consensus on the principles, and all that remains is to discuss the issues.
Perhaps the many debates we have had on social affairs have led us to face up to what is often a hypocritical and doublethink approach to many of the issues. If we are to value human life, this practice of discriminating against children on the basis of the circumstances of their birth over which they had no control is most reprehensible, least sensible and has done nothing to encourage the protection and nurturing of life which was expected of mothers who found themselves faced with the prospect of bringing up their children as second class citizens. Their children would be considered less acceptable somehow than others. Whatever legislative changes we make here today will not change entirely the social attitudes but the social attitudes themselves have been changing. The legislative changes will be an important step in giving a lead to public attitudes and ensuring that at least in the letter of the law these children will have equal status and equal rights. Therefore, I welcome many of the substantial changes that were made in the Seanad. I would have been very unhappy to speak to the original Bill, but I commend the Minister for her willingness to accept amendments and I commend all of the Senators who contributed so substantially and moved so many important amendments to this Bill in the Seanad which led to legislation emerging from the Seanad very much more like the legislation I would like to have seen presented in the first instance.
In relation to status it is important that two things were done. The proposal to replace the words "legitimate" and "illegitimate" with "marital" and "non-marital" was done away with and is gone from what is before us. Let me draw the Minister's attention to what is perhaps an error in the explanatory memorandum to the Bill — unless I have read the wrong explanatory memorandum — where there is still a reference to the illegitimate child. Later I will draw attention to the section concerned. The second thing is the statement in principle within the title and in other areas that this Bill aims to ensure that from now on children will be treated equally regardless of the marital status of their parents. That is part of all of the legislation in this regard in other countries such as New Zealand where this issue was tackled some years ago.
We have made important strides, in that when we first discussed changes in this law many people suggested that the fabric of our society and the fabric and institution of marriage would be threatened. I am glad that that hysterical fear has been overcome, perhaps because of the extent and broadness of the debate in the intervening years and the fact that we had to face some very difficult questions about our attitude to social problems and the need to support the pro-life position that we have taken constitutionally. While status and attitude are of importance the most serious practical problem of the illegitimate child is that of its right to food, clothing, shelter and security which was until now threatened from birth.
The child born outside marriage — the illegitimate child as exists in Irish law today — is discriminated against in substantial areas. The child is discriminated against, not just on the basis of status to which I referred and the stigma attaching to it, but in the area of maintenance, where it has full rights to its mother but very limited rights only to the father if an affiliation order is made. It has full maintenance rightsvis-à-vis the mother but no inheritance rights at all from the father and has limited inheritance from the mother. There is no easy legal way of providing a relationship in any full sense with its father. Even where there is a willingness on the part of parents to acknowledge their children, where they may have been living together in a longstanding relationship unable to marry because of our outdated and outmoded marital laws, they are not in a position to easily establish a legal relationship and responsibility for their children without going through complicated procedures.
I am glad to be able to say that the provisions of this Bill deal with all of those major areas. The acknowledgment of the responsibility of a father to fully maintain his child and for the child to have rights of inheritance constitutes a very important step. I am glad it is central to the provisions of this Bill.
In the one remaining area of disagreement in regard to guardianship the balance in the Bill is moving broadly in the right direction. I support the view that automatic, full guardianship rights sought by some people are not necessarily in the best interests of a child. This is an area we can re-examine on Committee Stage. Many of the amendments effected in the Seanad have facilitated a situation in which, in reasonable circumstances, it is rendered as easy as possible for full guardianship rights to be given to a responsible father who is interested in having that kind of relationship with his child or children. Acknowledgment of the inheritance rights of a child born outside marriage is a natural corollary and is to be welcomed in the provisions of the Bill.
The need to move in this direction has been recognised by many bodies in our society, not least by the Family Law Reform Group of the Episcopal Council for Social Welfare who, as early as 1974, said that they regarded it as unChristian that children born out of wedlock should, as a result of the actions of their parents, be victimised by legal distinctions between them and children born to married parents. This sums up the main argument for reform. The provisions of the Bill before us go a great distance to achieving that and will be seen as a major chapter in child care legislation in this country. This issue is one that has been argued again and again by all those involved in this area.
Inevitably the provisions of this Bill and other legislation in the offing, the promised Adoption Bill, the Children (Care and Protection) Bill and what might be called the children's justice Bill — will involve more and more litigation within the courts system in relation to families. The fact that children and families have to have cases heard in the current courts structure has long been seen to be totally unsatisfactory. In the context of marital or family problems it has been viewed as a most unsuitable environment in which to resolve any of these sensitive issues. It is intimidating for families, particularly for children; an environment which is hostile to agreement. The adversarial atmosphere, in the company of criminals of all types, is a totally unsuitable environment in which to deal with such delicate problems. All Governments in recent times have been committed to having a proper family courts structure established. I ask the Minister to give a commitment to ensure that any legislation which arises as a result of this and other Bills dealing with the family and children will mean that such cases can be heard in an environment that is more compatible and suitable to the proper resolution of these sensitive problems.
I should also like to examine the section in relation to the establishment of paternity, the proofs that will be allowed in that area and the allowance for blood tests. There has been quite an amount of development in recent times in tissue testing. The provisions should be framed in a sufficiently broad manner to allow such tests to be utilised, rendering it unnecessary to effect minor amendments in the near future to allow for the full scale of tests which may help to decide a paternity suit speedily and rapidly. Tissue testing has become more sophisticated and reliable. It is clear there should be provision made for that in the Bill when we proceed to Committee Stage.
Most of the substantial amendments have been made in the course of the Seanad debate, which means we have a Bill before us proceeding broadly in the right direction. We shall have an opportunity of going into detail on the various sections on Committee Stage. I ask the Minister to reply in particular to the points I raised in relation to family courts, letting the House know his views on and commitment to them. It need not necessarily constitute an expensive option, perhaps a co-ordination or streamlining of existing services, identifying particular members of the Judiciary who may specialise in that area, thereby ensuring the evolvement of a certain consistency. There is at present an outrageous lack of consistency in family and other cases, when there may be quite different outcomes depending on whichever judge one appears before.
There is also the physical structure of the court to be taken into account. Unlike the enormous, great old barracks of courthouses, a small suite of offices would be far more suitable and congenial to the handling of family law cases; indeed it would be far more suited to the handling of many legal cases. Here I am concerned not so much with the outdated trappings of much of the overall courts system but rather with the unsuitability of such a formal and insensitive environment, such a negative and criminal environment, for the handling of family cases. I make that case very strongly to the Minister and ask him to respond to it. As we are at present engaged in so much legislation in this area there is a great responsibility on us to ensure that the environment in which such cases will be tested will be such as will improve the quality of life of young people and will not be as traumatic as many of their other experiences associated with whatever family, guardianship or other maintenance problem may have arisen. I ask the Minister to respond to the overall issue of paternity.
I welcome also the improvements in the area of registration of births and registration of fathers where there is agreement. Perhaps we could have done this even without the legislation and helped a number of families who are caught up in our failure to deal with the need for reform of marriage law. That change was a decision of the Irish people and I campaigned strongly to have it brought about. However, it leaves us with a consequential legal mess where many established couples live together in a totally unrecognised situation. If this Bill will not sort out their problems in relation to each other, at least it will ensure that the children involved are not discriminated against. For that reason it is very welcome. I look forward to hearing the Minister's views on Second Stage and to further detailed discussion on Committee Stage.
I, too, am glad to contribute to this very worthwhile Bill. As other speakers have said, it is probably one of the most enterprising and interesting pieces of family and social legislation to come before this House in the last number of years. It proposes major changes in the rights of children born outside marriage and it tends to equalise the rights of children born outside marriage with those born within marriage. This legislation is in response to a change in attitude of Irish people towards children born outside marriage and also to the cohabiting of persons outside marriage. There is a general softening of people's attitudes towards people who are, to use the old phrase, living in sin and towards the products of a union of this kind.
There has been a radical change in social attitudes even within the past ten years. It is unlikely that a decade ago this Bill would have been welcomed and discussed as constructively as it was last year in the Seanad and also in the early part of this year. I welcome this change of attitude. It is a sensible, constructive and compassionate change. It maintains our progress as a young, open-minded nation and is surely part of our moving closer to Europe and moving away from isolation and isolated attitudes. This shift in thinking is due in part to the increasing number of cases where people are living together outside marriage either because they choose to do so or because by law they cannot choose any other status which allows them to cohabit legally.
The number of births outside marriage has accordingly increased dramatically. This has forced our nation and the people in it to rethink on old attitudes. The day when a child born outside marriage was regarded as a social outcast is now gone. Being born outside marriage does not attract the same stigma that was obvious in Ireland some decades ago. It is good that the shift in opinion and the social attitudes should be reflected quickly by our legislation and this is what is envisaged in this Bill.
We are all well aware of what happened in other countries in relation to this type of legislation. There was a demand for this legislation and it is good that legislation should be considered sensibly and without acrimony. The passage of the Bill through the Seanad points clearly to the maturity of the Legislature in dealing with this type of sensitive legislation. The contributions of the Members of the Seanad were most enlightening. The debate was constructive and resulted in a number of substantial amendments being made to the Bill. This certainly has relieved this House of much of the work which otherwise would have been necessary. As an aside, the debate in the Seanad shows the usefulness of that House as part of our legislature-making process.
It is disappointing in one sense that this Bill could not succeed in abolishing illegitimacy altogether. The reality is that the institution of marriage is enshrined in our Constitution, that it has a paramount importance in the Constitution. All our attitudes are debated along the idea of the family. Accordingly, there always has been a difference between the social position of a child born outside marriage and a child born within marriage. We can do nothing here to change that social attitude but we can help to bring it along a bit further. We must remove as far as possible all legal discriminations against children born outside marriage. We should try to afford equal rights to children born outside marriage as are afforded to those born within marriage.
We cannot do anything about the terms of abuse that are used against children born outside marriage or legislate to prevent such terms being used. However, it is good that the emphasis nowadays is on caring about the child who is a competely innocent party in society. This Bill reflects a new perception about the status of children born outside marriage and reflects a new perception of the position of children and their treatment in society.
The Bill covers many areas including guardianship of children, maintenance of children and the property rights of children. It does not abolish illegitimacy but it amends the law in relation to it. Part I of the Bill which includes sections 1 to 5 has been amended comprehensively by the Seanad. It is welcome that the concept of marital and non-marital status was deleted during the passage of the Bill through the Seanad. To have maintained this distinction would have been to maintain, in a most important piece of legislation, a distinction between children born within marriage and those born outside marriage. Although there is still, and will be for some time, this distinction in people's minds it is good that the present Bill should pave the way in some ways to a change in the attitudes of society towards this distinction.
If the social thinking of the last decade or so in relation to this legislation, and this legislation is a part of that thinking, is maintained we can look forward to the day when the distinction will be eliminated. I hope the social thinking of society will lead to this position. The wording in section 3 in particular is clever. It focuses on the relationship between a child and its parents and it declares that the marital status of the father and mother shall have no effect on the relationship between the child and its parents so far as the law is concerned.
Part II of the Bill deals with the amendment of the Legitimacy Act, 1931. The amendment has the overall effect that subsequent marriage of the parents of a child born outside marriage will always render that child legitimate irrespective of the marital situation of the parents at the time of birth.
Part III deals with guardianship. This part is one which has provoked much debate. The debate centres on whether the father should have automatic guardianship. The argument in favour of automatic guardianship is that the father should be equally entitled to have the same rights of guardianship as the mother and that there should not be created a certain discrimination between the rights of the father and the mother in this respect. The argument against automatic guardianship is based on the reality that outside marriage a child born of a relationship is normally looked after by the mother while in the majority of cases, the father avoids or disclaims his obligation or interest in the welfare of either the child or the mother.
Within marriage there is an implied agreement between the father and the mother that they will work for the welfare of the child. There is no such agreement implied within a relationship outside marriage. Bearing a child outside marriage can be a traumatic experience for many mothers and it is desirable that there should be no undue interference from fathers who may not be acting in a constructive and helpful manner. It is desirable in all cases that the rights of father and mother should be equalised, but in this case a distinction must be made as reality demands it. The welfare of a child in matters of guardianship is the first and paramount consideration. A court, in considering the appointment of a father as guardian must bear this in mind. Again, the father's appointment as guardian by the court can be terminated on the application of the mother where the interest of the child demands this.
The Bill goes further by providing that there will be simplified and informal procedures in appointing a father as guardian by the court where the mother consents and the father's name is on the birth certificate. It has been argued also that the consent of the mother and the presence of the father's name on the birth register should be sufficient to have a father appointed as guardian without the necessity of going to the courts. I do not accept this at all as it is the interest of the child that is at stake and a court must be satisfied that this is what is respected in any application to the court. The mother's consent may be influenced by many factors, not all of which might be good, particularly when she is in a difficult and emotional period immediately after the birth of the child.
I am not happy with the section dealing with the position of the father of a child of a void marriage or of a voidable marriage which has been annulled. It is proposed that the father in such a situation should be guardian of any children of the union jointly with the mother. This does not seem to be consistent, in my opinion. The father would seem to be maintaining a privilege that he never had in the first place and might only now have in certain circumstances proposed by the Bill. It is desirable that there should be consistency between all relationships that are outside marriage. It is inconsistent that a marriage that has been declared to be null and void by the courts should now be treated as if it were a marriage in this respect. Another anomaly may be that children of a void marriage or a voidable marriage which has been annulled may attain rights in relation to succession after the passing of this Bill.
Part IV of the Act deals with maintenance and the principal provisions relating to maintenance of a child born outside marriage are contained in the Illegitimate Children (Affiliation Orders) Act, 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act, 1976. This part repeals the 1930 Act and replaces it with new provisions similar to the provisions contained in the Family Law (Maintenance of Spouses and Children) Act, 1976, relating to children born within marriage. This part is particularly to be welcomed in that it replaces the present law in relation to affiliation orders, the contents of which were repugnant to many people in their operation.
Up to now, the affiliation order allowed the mother of a child outside marriage to name a man as the father thus allowing the payment of sums for the support of the child. The evidence of the mother in obtaining the order had to be heard and, more importantly, corroborated. Accordingly, the procedure towards the obtaining of an affiliation order was a nightmare for most mothers in that she had to relate what in many cases was a sorry affair and, moreover, had to drag in third parties to corroborate her story. Again, there were time limits within which a mother had to apply for an affiliation order. This again was restrictive and unjust in my opinion, and it is to be welcomed that time limits for applying for maintenance are now abolished.
This part of the Bill puts the parent of a child born outside marriage on the same footing as the parent of a child born within marriage in relation to the maintenance of that child. The working of this part is admirable and should go towards relieving the distress of parents left in the lurch financially. The question of whether a man is the parent of a child is now to be decided on the balance of probabilities, the ordinary standard of proof required normally in civil proceedings. This is to be welcomed and is consistent with the general spirit of fairness in the Bill.
Part V of the Bill deals with property rights. Normally property rights in this country are controversial. The discussions in relation to property rights in this Bill up to now have been heated. Reading the Seanad debates one sees most of the discussion related to this aspect.
Where a parent makes a will and does not appear to treat a child within the marriage fairly, the child can, under section 117 of the Succession Act 1965, apply to the court for just provision out of the estate of the deceased parent who did not make proper provision. A person born outside marriage to this parent will have the same entitlement to apply to the court to have proper provision made for him or her. Consistency is shown here. This provision is to be welcomed.
On intestacy, the rules of succession will now apply to all persons whether a person's parents were married or not. So a child born outside marriage will have the same entitlement as a child born within marriage where a will is not made. Again, this is consistent and is to be welcomed. Up to now a child born outside marriage could not benefit under the rules relating to intestacy. The only relieving provision contained in the Legitimacy Act, 1931, was that the sole child of the deceased intestate mother could take her share in that mother's estate. This removes major discrimination against children born outside marriage.
The one area which has proved quite controversial, and indeed remains controversial, is section 27 which states that the principle that family relationships should be treated without regard to the marital status of a child's parents should apply to all wills and other dispositions made after the commencement of Part IV except where the contra intention lies. If a person makes a will before the commencement of the Act and is deceased before the commencement of the Act, then the following statement in his will will be construed as applying only to children born within the marriage: "I leave all my property to my children in equal shares". If the will containing that sentence is executed before the commencement of Part V, but the deceased dies after the commencement of Part V, then the position is the same as the first example, that is, only the children born within the marriage shall benefit, despite the fact that the deceased may live for 30 or 40 years after the commencement of the Act.
It is argued in favour of the section that, as the Law Reform Commission on illegitimacy put it, to do otherwise would unsettle the law. There has also been a warning that to do otherwise as is provided in this section would be unconstitutional. Against this section it is argued that if we are to be consistent in relation to the operation of section 117 of the Succession Act to wills, then we should be consistent in relation to this section of the Act and apply this section to all wills, whether made before or after the operation of the Act. I wonder would this section, if it was applied to wills executed before the commencement of the Act, unsettle the law or would it be unconstitutional? It may very well settle the law in people's minds if everyone was aware that this section applied to all wills no matter when made. Personally, I would be against this suggestion because retrospective legislation, in my opinion, is to be avoided if at all possible.
A substantial number of people in this country think that once they have signed their will they have automatically transferred to the beneficiary in the will what they express to be transferred on death.
This of course is a completely erroneous perception, but nonetheless is still there. It must be made clear that a will speak's from death. It is a worthless piece of paper having absolutely no effect until the testator dies. It is very important that people realise that a will has no effect until death, that the beneficiary has no right to anything left to him in the will until the person making the will dies. However, again, I feel that to make this section retrospective would be a detrimental move and it would give a new meaning to wills already made.
I look forward to the amendment which will be proposed to section 28 in relation to protection offered to trustees and personal representatives. I agree that the provision is too wide and should put more of an onus on trustees and personal representatives on a reasonable basis.
Section 34 provides that where a person whose parents have not married each other dies intestate the father of the deceased may be considered unworthy to share in the estate of the person on application to the court. I would agree with this section so long as the operation equally applied to the mother of the deceased. There does not seem to be any good reason why it should not equally apply to the mother and the father. I will deal with this issue later.
Part VI deals with the declaration of parentage. This area provides that an application can be made to the Circuit Court for the sole purpose of obtaining a declaration that a named person is the parent of the applicant. At the moment this declaration of parentage can only be achieved as part of other proceedings not primarily concerned with the issue of parentage but concerned with other matters such as maintenance or succession. This is a welcome provision in itself although it is not clear how practically useful it will be. Confidentiality in relation to the natural parents is maintained by excluding adopted children from the classification of persons who can apply under the new procedure.
Part VII of the Act deals with blood tests and has given rise to some heated discussions. In legal cases involving parentage the blood test can be very useful, and with technological developments is very accurate, in establishing parentage but what should be done if a father refuses to give a blood sample? Part VII allows the court to draw whatever inferences it thinks appropriate from a refusal to give a sample. This might not seem a very effective penalty but I can envisage a court using its power to draw inferences from the refusal very wisely and very widely. It has been suggested that there should be a specific penalty as there is where a person refuses to give a blood sample in a drunk driving case. There is no room for a penalty of this nature in this legislation.
Section 47 abolishes the presumption of legitimacy arising out of marriage and illegitimacy arising out of divorcea mensa et thoro. This is replaced by section 49 providing for presumption of paternity and non-paternity, that is where a married woman, or a woman whose marriage terminated less than ten months beforehand gives birth to a child, her husband will be presumed to be the father of her child. In a case where the husband and wife are living apart under a decree of divorce a mensa et thoro for more than ten months before the birth the husband will be presumed not to be the child's father.
The focus is maintained on the parent rather than the child. Generally, I feel it is desirable that children born outside marriage should not only have access to the same maintenance provisions as children born within marriage but also their parents should have the same access to provisions such as barring orders and protection orders. These are matters which are dealt with in the Bill. They, perhaps, should be dealt with in another piece of legislation which I suggest should be looked at by the Minister and his Department.
I should like to refer to a number of other matters raised by previous contributors to this debate. For instance, section 34 proposes to insert a new section 120 (a) into the Succession Act. I have to agree with the comments of Deputy Shatter, that this proposed section will in effect create a new discrimination in our family law system. Why should the provisions of this section be restricted to an "unworthy father"? Is it being suggested that a mother cannot be unworthy? Like Deputy Shatter, I am well aware of many cases of unworthy mothers both inside and outside marriage. This section must be changed in this regard and I concur with the suggestion that while we are at it we could also extend the "unworthy parent" idea to intestate children who are born within marriage. Again, a suggestion which bears merit is that the father and mother of an abandoned child may also be unworthy to inherit the estate of that child who dies intestate.
Some weeks ago a Private Members' Bill dealing with adoption was defeated in the House after the Minister for Health undertook to bring in a new Bill in the near future. The Minister should consider including in that the recognition of foreign adoptions. I understand that because of the diminishing number of suitable children for adoption here childless couples are resorting to going abroad in order to adopt a child. In such a case a question as to the status of those children arises. Surely this is an opportunity to settle the matter once and for all? The Bill, as drafted, does not deal with the ever-increasing incidence of artificial insemination by a third party donor. That process may not be relevant in Ireland yet but I have no doubt it will in years to come. We have an opportunity in the Bill before us to settle the possible complications concerning the status of such children. I appeal to the Minister to try to deal with that problem.
Coming back to the rationale behind this Bill, the Law Reform Commission in its report on illegitimacy recommended as a basic proposal that it was unjust for the law to distinguish between children on the basis of the marital status of their parents. This Bill has the effect of clearing up the distinction and possibly doing away with it altogether. As I and other speakers have suggested, there are a number of areas that need to be looked at before the Bill can be regarded as a complete piece of legislation on the status of all children and, I hope we shall get our chance on Committee Stage to suggest possible amendments.
I am sharing my time with Deputy McCartan and for that reason my contribution will not be long. I should like to express my general support for the Bill which I consider to be a worthwhile and necessary attempt to put right an injustice that has existed long after the attitudes which gave rise to it have died out. Undoubtedly earlier generations had a narrower, more precise and, if I may say so, less compassionate notion of what constituted a family and in many cases there was a genuine and praiseworthy desire to do everything possible to preserve and defend this notion of family. However, I have always felt a little uneasy about our approach to the subject. I have a strong feeling that many of those who professed a strong attachment to the family were at least as strongly attached to property.
I agree that the family, as the Constitution states, is the basic and, indeed, the necessary unit on which society is built but society is nothing more or less than the sum of the rights, duties and contributions of the individuals who comprise it. It is of paramount importance that each individual in society be given the same access to justice, equity and fair play unless by some conscious act he or she is disqualified from enjoying full participation in society. A child born out of wedlock, however conceived, is no less entitled to justice, equity and fair play than any other member of society. It is an outrage to suggest that there is any basis in justice for restricting the rights of such a child because of the actions of parents. All children of this nation are equal in the law and in justice and it is a pity that such a self-evident fact should need to be upheld in statute. It is to our discredit that for generations we have played around in such a cavalier fashion with such fundamental rights supposedly so that the property rights of legitimate children, or indeed legitimate relatives other than children, could be assured.
Some aspects of the Bill are less than satisfactory. That may be of necessity or it may be that there is no better way of ensuring the rights of all children than the way proposed in the long and complex series of amendments to other statutes. It is a pity that a simple declaration that all children, irrespective of the circumstances of their conception, are equal and full members of society could not be formulated. It appears to me that the Bill is a positive goldmine for lawyers, requiring as it does interpretation and definition of every paragraph.
I wish to refer briefly to a few specific points. Part IX regulates the procedures for registration and re-registration of births. I was of the opinion that the primary purpose of registration was simply to place on record the true particulars surrounding the birth of a child, the date of birth, the name of the parents and the name of the child. All other purposes seem to be secondary to this yet we have a wealth of variations, conditions and exclusions. It should be mandatory, in all cases, to record these details accurately and in full.
If there is doubt or dissent regarding the identity of the father the procedures in this Bill for establishing paternity should be invoked and the name of the person identified as the father should be entered in the register. If we seek to treat all children equally we must start at the beginning and record their entry into the world in a uniform fashion. Not to do so is to commence, at this early stage in the child's life, a judgmental process which will continue to colour the whole future of the child. I ask the Minister to consider whether it would be possible to further examine this point.
I am aware of the anguish and distaste which results from such circumstances as rape and incest but a child is not in any way responsible for the nature and circumstances of its conception. To conceal the facts of its parentage is a bad and unfair principle and is a more grave stigmatisation of the child than almost any other imaginable way of recording its birth.
In relation to Part III of the Bill dealing with guardianship, I am concerned — as are the Government in promoting this Bill — that the interests of the child should take precedence over all other interests. That is not to say, however, that other rights should not be considered. There is an inclination to disregard the rights and the very strong feelings of fathers in regard to the right of access and guardianship of the child, a point referred to by Deputy Dermot Ahern.
The Bill acknowledges that children of parents who are unmarried should, for all practical purposes, be treated in a similar fashion to all other children. How can a child of an unmarried couple be treated in a manner equal to a child of a married couple if the law goes to such lengths to distinguish between married and unmarried parents? There is a basic and serious contradiction here which the Bill fails utterly to address.
The Law Reform Commission, as the Minister acknowledged when introducing Second Stage, recommended that all parents should be guardians of their children. The Minister suggested that the reason behind this recommendation appears to be a desire on the part of the Law Reform Commission for consistency. This is less than fair to the commission and I argue that a positive acknowledgement of the rights of parents lies at the heart of this recommendation. A clear and simply stated positive right to guardianship of a child is a much more satifactory basis on which to safeguard the best interests of a child than the negative proposals contained in Part III. Could the Minister not devise a simple procedure whereby both parents are required to take on the duties of support and guardianship while, at the same time, allowing the parent or any person with just reason, to seek in the Circuit Court to have the right to guardianship restricted or removed in such circumstances as the court deems appropriate? We are, whether we like it or not, moving into an era in which more and more children will be born to parents who have stable relationships but who are not married to each other. It is contrary to the general trend in social and family justice that a father in such a relationship should have to vindicate in court a right to guardianship over his own children. It would be better if such a father could avail of a positive legal right to guardianship. The Bill should contain a procedure to protect a child where there is hostility, unwillingness or danger.
It is worth noting that there are unmarried fathers who feel the same sense of obligation to the children as most unmarried mothers. It would be a pity if this reforming legislation, which will undoubtedly be the basis of our approach to the status of children and parents for many years, failed to acknowledge the position of such fathers. I urge the Minister to re-examine this section of the Bill with a view to implementing the recommendations of the Law Reform Commission in this regard.
I am obliged for the opportunity on behalf of The Workers' Party to welcome the reintroduction of the Status of Children Bill, 1986. It was a real fear that the change of Government would allow the opportunity for the forces of religious and social bigotry to exert their sinister pressures and to have this Bill consigned to the shelves and lost in the bustle of Government change over the last few months that have seen, so far, the loss of many fine reforming pieces of legislation of the last Government.
The Minister must be congratulated for reintroducing the Bill. It must be noted that a number of personalities are no longer in the House and that as a consequence, we can expect a constructive and useful debate to ensure the safe passage of the Bill. This must be assured as law reform in this area is long overdue. One could be cynical and say that the impetus is due in no small part to the ever increasing numbers of single and two parent families rearing children born out of wedlock, and to their increasing poiitical presence. However, one can certainly say that were it not for the case the Johnson family brought against Ireland before the European Court of Human Rights this — or the last — Government would not have given to this social issue the attention it deserves and which it is now getting.
Will it take the same action to have the Adoption Act brought back to the tracks as it is long overdue? It should be noted that when the Government moved to defeat the Adoption Bill introduced in Private Members' time a few weeks ago, an undertaking was given that within a week of the end of that debate a Government Bill would be introduced but we have not yet seen it. The delay must be condemned.
The delay generally in respect of the reform of the law in regard to illegitimacy is also to be condemned; 1979 was the Year of the Child and the Government assured us that we would have not just a single Bill but a charter of legislation to cover all aspects of the rights of children. They said that such legislation would be introduced within the year. It is remarkable that this simple Bill is stated to be the response of this House to a 1982 report of the Law Reform Commission. Can any of us be happy that the reforming process of this House turns so slowly and ineffectively, if at all?
In the context of the delay, it should be pointed out that we are now seeking to legislate, not for a report of 1982, but in response to the campaign of Cherish who were established as far back as 1972. Great credit must be given to that organisation who have campaigned through thick and thin over 15 years for changes in the law and who, in the meantime, have provided much practical support and help to single parents in the last two decades. Without Cherish and their campaign it is very unlikely we would have had this Bill before us today. In addition, without the courage of Dr. Johnson and Janice Williams who took on the establishment in Europe, we would not be dealing with the Bill either. The position of the Johnson family helps to amplify a very often forgotten point, that illegitimacy and all its insidious discriminations follow children right into the heart of the homes of two parent families and is not just confined to the single parent family. The Johnson family is only one such example and it must be emphasised that until we bring all our laws — in the words of the Minister when introducing the Bill —"in line with modern social justice"as the Bill hopes to do, we will not finally secure the total abolition of the insidious discrimination against children born out of wedlock. Clearly this House and the country will inevitably have to deal with the introduction of civil divorce as a right and remedy for people who have taken second chance marriages and established stable family relationships and who by current social justice as perceived by Government must be condemned to begetting children born out of marriage.
This puts to the real test the commitment of Fianna Fáil as to the overall concepts of social justice they plan for all our children. This and the delay of 15 years since Cherish first called for reform of the law highlights the shallow commitments given by successive Governments to real reform in this area.
I understand the Minister wants to conclude the debate in order to assist in the quick passage of the Bill to Committee Stage, when I am sure many of us will have useful contributions to make, I will make a number of points briefly on some of the provisions of the Bill. The House must reiterate its appreciation of the very good work undertaken by the Seanad when they considered this Bill in 1986. Many excellent contributions were made there in regard to tidying up and clarifying many aspects of the Bill.
As many Members have suggested, the Minister should consider the whole area of children born by way of artificial insemination. Though this issue is not staring us openly in the face, it is no doubt a growing one that will be of far greater importance later. This should be considered when we come to amend some of the provisions now in the Bill. It will not require any major change. In regard to tests for the establishment of paternity, the limitation of the section to blood tests alone obviously must be enlarged to cover the tests by skin scraping and DNA fingerprinting to which previous contributors have referred. In time, that will be the emphatic way to put paternity beyond doubt.
I ask the Minister and his officials to consider the reinstitution of lump sum settlements. It would be an alternative and useful provision. Retrospective legislation dealing with wills has been referred to. There will be difficulties but it is something we should address on Committee Stage. In regard to the matter of testimentary provision, the protection of personal representatives is too restrictive and I hope it will be dealt with seriously on Committee Stage.
I borrow from Cherish in their response to the 1986 Bill when they highlighted the need to give effect to this corpus of legislation through court procedures. Eventually, perhaps, there will be no way around that. Constitutional rights are involved and must be dealt with. The rights of individuals must be arbitrated through our courts system. Regrettably, lawyers will have to be involved some will say, but very useful practical steps can be taken by the Minister to deal with court procedure. The introduction of proper courts and the proper environment in existing courts will be very important: we must engender a proper environment in our courts and more easy access for litigants who seek redress under the provisions of this Bill.
Legal aid will have to be looked at seriously as a means of ensuring that no one in any way will be inhibited or deterred from bringing applications before the courts because they have not got the money available to them. The Government, in order to bring forward the spirit of what has been talked about — bringing up-to-date the concept of social justice in regard to children — should engage in a real programme of education so that we will not give just lip service to the whole issue but will ensure that at the end of the day, by reason of our actions and our legislation, all the children of this nation, irrespective of parentage, will be treated equally.
I understand the Minister wishes to reply this evening. If he would like to reply I will not deter him. However, I understood this debate would be continued for some time. I am glad we are being given the opportunity to deal with the subject matter of the Bill. It is unique in so far as it has the support of all parties in the House. That in itself is a good thing because it shows the commitment of the parties to update legislation in relation to children, to remove from our Statute Book once and for all a piece of legislation that was degrading and insulting, particularly in a caring Christian country, in which so many people subscribe to the idea of a republic which cherishes the rights of everybody equally, irrespective of their religion or the circumstances of their birth.
Illegitimacy has no place in that kind of society and it has been a stigma from which many Irish children suffered. The parents of many adopted children felt embarrassed and angry when it came to their first communion and birth certificates were sought by teachers or the schools. It had to be shown that children were in some way illegimate. I know that caused much upset to many people. In so far as we will remove from the Statute Book a symbol of something that was more relevant two centuries ago than ten years ago, I am very pleased about it.
This debate did not begin on this Bill: it began three or four years ago in various referenda. Unfortunately there are still people in our society — I am glad they do not have support in this House — who believe it is right to discriminate against children on the basis of their birth. I am delighted such people do not exert political influence in this House as they did in the past, that once and for all we politicians can come together on an all-party basis and show our recognition for the rights of children, a voiceless majority in Ireland, who do not have representation, who were not in a position to lobby or to stand outside the gates of this House during the course of the recent Adoption Bill to seek to have changes, to have their rights enshrined. We are starting the process of introducing legislation in relation to children.
I am delighted the Bill was amended in the Seanad. Although I believe in and support the idea that we do not need a second House, when Senators do good work they deserve our praise and our support. In so far as Senators took this matter so seriously and saw to it that "marital" and "non-marital" were new words for "legitimate" and "illegitimate" which have been removed substantially from the Bill, and, we hope, from legislation that will follow the Bill, I am delighted.
I wish to ask the Minister a number of questions in relation to the Bill. Has he sought legal advice to ensure that the Bill will not in any way cause constitutional problems in regard to Article 41? That Article gives inalienable and imprescriptible rights to parents in families based on marriage. Will this Bill be open to any challenge? I know everything is open to challenge, but does the Minister believe there is a realistic possibility that this Bill would be found in any way to be unconstitutional? I hope that will not be the case. The members of the Supreme Count who adjudicate on these matters are given flexibility to interpret the Constitution in a fair and responsible way, subject only to the common good. I hope they will not find this Bill to be unconstitutional.
Though welcoming the proposal to recognise the rights of the natural father, I think section 11 does not go far enough. It allows for a court application by the natural father with special rules for determining such applications, the mother consenting in writing and the natural father being registered as the father of the child. Could we not go further and avoid the need for a court application by providing that the natural parents enjoy joint guardianship if the couple were living together at the date of birth and the father is registered as the father. For too long we have allowed natural fathers in these circumstances to run away from their responsibility. We have assumed they do not want to honour their responsibilities. When they do, it should not be necessary that they would have in all cases, particularly when they are living with the mother at the time of the birth, to go through a very long and detailed court process. I hope we can remove that particular requirement in relation to those fathers. I shall be putting forward amendments to the Bill on Committee Stage.
In the case of intestacy, when a child dies and his parents are entitled to inherit his estate, it should not again be assumed that it is always the mother who honours the responsibilities and that there is never a case where a father does. The father, in order to get the same rights as the mother, has to go through a different process and a different procedure. I am not in favour of legislation that in any way is sexist either against women, and it usually is, or against men. I would like to think we can have legislation that does not discriminate against anybody on the basis of gender.
These are some of the points about which I am concerned but I shall use the opportunity of going into these matters in greater detail on Committee Stage which I hope we shall be dealing with shortly, whether before the recess or not. I hope the Minister will then be open to suggestions from other parties and willing to take on board worthwhile amendments made by Members, which some Ministers are not.
Before I report progress, I should like to thank the Deputies for their contributions and I look forward to the next Stage when all amendments from Members of the House will be given very careful consideration.