Status of Children Bill, 1986 [Seanad]: Committee Stage (Resumed.)

Debate resumed on amendment No. 17:
In page 12, between lines 39 and 40, to insert the following subsection:
"(4) The Court shall not make a maintenance order under subsection (1) or (2) where an order has been made approving an agreement concluded between a mother and father under section 8B of this Act.".
—(Deputy Shatter)

When we adjourned before lunch we were dealing with amendment No. 20 which is designed to enable an agreement to be concluded between the mother of a child born outside marriage and the father, whereby a lump sum settlement is agreed. It would mean that a large sum of money or property, or both, would be held by her for the benefit of the child born to her in a once off arrangement. I was making the point that mothers, in practice, often wish to enter into such an arrangement, that the fathers often wish to do so and can do so under the 1930 affiliation orders Act.

The Bill before us will remove that possibility and the Minister in voicing an objection to the provision said that married parents cannot conclude such an arrangement. With respect, the position in this area is not the same and the desirability of married couples entering into such an arrangement when their marriage breaks down is a separate issue. A mother who gives birth to a child outside marriage, who is not living with the father of the child, who has no ongoing relationship with him and who has the prospect at some future stage in her life of marrying someone other than the father of her child will often find that the lump sum arrangement is the most appropriate means of securing financial support for her child. This type of financial arrangement can often benefit the child because, even when a mother succeeds in getting a maintenance order to ensure that payments are made, very often she does not receive them especially when they are made on a 15, 16 or 18 year period. I urge the Minister to accept the amendment because, if it is not, rights of mothers of children born outside marriage and which accrue to the children will be removed. The possibility of concluding these sorts of settlements for children will be removed. I am personally aware of situations where a mother has waived her rights to support in the future because the father has purchased a house for her which will be held in trust for the child or jointly with him or her. That has given the mother far greater security than she would have had by way of a court order and it has entitled and enabled her to have a far better standard of living than she would otherwise have had if she had been dependent on a weekly or monthly payment.

The Minister admitted that I was correct in this regard. The section is very carefully drafted to ensure that, when mothers enter into such arrangements, they will not be cut off from bringing future court proceedings unless the court has ensured that the present arrangements are fair and reasonable, are in the best interests of the child and have been entered into freely by the mother. If we remove this provision from unmarried mothers we will deny to them and their children the possibility of a great deal of security and protection. I urge the Minister to accept the section and the amendment and not to approach them in the somewhat partisan way which is usually the case in this House and which has been the case in regard to some of the amendments dealt with today. Legally and technically the amendment is correct and socially it will provide protection for children. If we do not enact it we will be depriving children and others of a degree of security that can be obtained for children born outside wedlock at present. We will also be denying them the possibility of such security in the future. Such an approach is indefensible and I urge the Minister to accept the amendment as tabled.

The crucial issue with this amendment is whether a father should be able to protect himself against further claims for maintenance without regard to a change in circumstances. Deputy Shatter suggested earlier in his contribution that by not reenacting the provisions of the 1930 Act in this Bill in so far as it deals with the payment of a lump sum to put an end to the child's father's rights to periodical maintenance payments, we would in some way be worsening the position of the child whose parents have not married each other or perpetuating discrimination against such children. I cannot accept the contention and I should like to point out that the 1930 Act was passed in a social climate very different from that which prevails at present. The lump sum provisions of that Act were designed to act as a sort of carpet under which could be swept the socially embarrassing and somewhat distasteful fact that one had fathered a child outside marriage. The matter could be hushed up in the making of a once-off payment and hopefully forgotten.

I agree with Deputy Shatter that if we are to have such provision in a modern Bill we must make sure that any agreement between those responsible for the maintenance of a child is adequately made in the child's interest and, no doubt, that would include some of the matters provided for in Deputy Shatter's amendment. It is he who would perpetuate discrimination by tabling this amendment in its present form, applying as it does only to the father of a child who has not married that child's mother.

This amendment could be said to offer protection to such fathers not available to any other parents and that that protection is at the expense of the right of a child to be maintained by both parents whether or not they have married each other. There may well be a case for giving all parents the facility to make a clean break with regard to the maintenance of their children. The matter can be examined for spouses at least in the context of the proposals for judicial separation at present being considered in my Department. The position of children whose parents are not spouses cannot be ignored in that examination.

I should like to remind the House that section 20 of the Bill meets most of what Deputy Shatter is seeking. It enables parents who are not married to each other to conclude agreements which may include lump sums or property transfers regarding the maintenance of the child and to have such agreements approved by the court. It stops short, however, at making such an agreement an absolute bar to the taking of maintenance proceedings in the event of circumstances changing in the future. This is the aspect of the Deputy's amendment which is the most problematical. Because it raises such important questions of principle regarding the law of maintenance generally, I ask the Deputy to withdraw his amendment so that the question can be examined in the context of future legislative proposals, which I mentioned earlier, without delaying the passage of the Bill. In the interests of eliminating discrimination against persons born outside marriage, it is important that this Bill be enacted as soon as possible. I am sure the Deputy agrees with me.

The Minister cannot have it both ways. Previously he criticised an amendment I tabled because it applied to children born inside marriage and not to children born outside marriage. Now he is criticising it because it applies to children born outside marriage and not to those born inside marriage. He says that section 20 will have a similar effect. Of course it will not. The purpose of this provision is to allow mothers of children born outside marriage — where they and the father wish — to conclude a once off settlement by the father with the mother and her child to give them a degree of financial security and independence of the father that they would not otherwise have.

A father who knows that if he is taken to court the worst thing that can happen is that there will be a District Court order made for £30 a week is not going to enter into an agreement to buy a £40,000 house for a mother knowing that even if he does provide such a house a maintenance order can still be made against him. The ways of the world being what they are, a mother seeking that type of security will get it only if the father feels he is also achieving something. In most other jurisdictions there is provision whereby agreements of this nature can be reached which effect what the Minister refers to as a clean break and which allows the mother to conclude an arrangement with the father.

We are talking here only in the context of people who have a relatively high degree of means and resources. For the majority of unmarried mothers such an arrangement is not possible but for a minority it is possible and I have seen it in practice during the years. Very often the mother and the father want to make this arrangement and if we do not make such a provision in this Bill the conclusion of arrangements of this nature will prove to be impossible. There will be no reason a father should make a long-term arrangement to provide a home in the mother's name or in the name of the mother and the child in circumstances in which he is given no protection against future legal action being brought against him.

Contrary to what the Minister has said, it is not a question of trying to sweep under the carpet the fact that a child has been born outside marriage. It is a question of trying to provide a legal arrangement whereby mothers, instead of finding themselves dependent on weekly or monthly payments being made to them — such payments can be considerably uncertain on occasions and may dry up if the father leaves the jurisdiction — if they have the facility to do so and if the father has the means and is willing to do so, can conclude a once-off arrangement which stabilises the mother's financial position, gives her a degree of economic dependence and gives a degree of permanent financial security and protection for the child. That is as much a part of the reasoning behind the provision in the 1930 Act as the sweeping under the carpet might have been an intent of that Act. I do not know whether or not that was so.

In the seventies and eighties, in practice, mothers and fathers of children born outside marriage wished to enter into this sort of arrangement and if this type of amendment is not provided they will not be able to do so. A mother whose child is born outside marriage and who marries someone who is not the father of her child two or three years later would wish to conclude——

Perhaps Deputy Shatter would agree that he has exhausted his presentation and we are now having an amount of repetition which we try to avoid on Committee Stage.

I am just completing what I was saying.

You should do so because there are other amendments down and other Deputies waiting to have a discussion on them. We must try to avoid repetition as far as possible.

Many mothers who are about to marry or have married someone who is not the father of their child would wish to enter into these types of arrangements and would not wish to be left in a position whereby the father of their child, who may have no contact with the child, is making weekly or monthly payments to them. I urge the Minister to accept the amendment and, if he will not do so, I will have to put it to the House.

I have given the reasons to the Deputy as to why I cannot accept his amendment. I feel that what I am proposing meets his arguments to a large degree. Again, I can only ask the Deputy to withdraw his amendment.

I am not completely satisfied with this amendment. In order to help me make up my mind about it, I want to put a hypothetical case to the Minister. If a father approaches the mother and child and says he is emigrating to Australia in a few months time and that he is prepared to make a settlement from his capital resources for the child, surely, in such a case it would seem hard to deny that possibility. While that father may have good intentions, when he has gone to Australia and set up a new life there, he may not have any interest in sending maintenance for his child in Ireland. Is it right, therefore, in those circumstances to deny the possibility, while the iron is hot and when the offer is made, of making some secure provision for that child, which would have to be approved by the court and be proven to be satisfactory? Are we saying that cannot be done and just hoping that the father continues to remit the maintenance payments? Are we not putting a family in those circumstances at risk if we deny that possibility?

The query raised by Deputy Taylor can be best dealt with under section 20 where that type of case is specifically dealt with.

Perhaps I have missed that provision in section 20 but that section seems to provide for periodic payments rather than for a capital sum. I do not think a signed agreement for periodic payments will be of much use if the father is going to Australia. Once the person has left the jurisdiction, the possibility of making amenable contractual arrangements of that nature does not exist. It is only when one would have one's hands on a lump sum that it would mean anything. I see no provision in section 20 for a lump sum. Maybe I have missed it and I would be glad if the Minister——

I think the Deputy has missed it. He should read section 20 (a) (ii).

That paragraph states "a provision affecting the interests of the child which governs the rights and liabilities of the parents towards one another in respect of the making or securing of payments... or the disposition or use of any property". I do not think that covers the point.

I am sure it does.

It does not constitute a bar to further proceedings, which the father might want.

There is no bar.

That is precisely the point of the amendment. There should be a bar as an inducement to the father to pay the capital sum.

We do not want the bar but obviously the Deputy wants it.

I am not saying that I want it. I have an open mind on it at present. I am a little troubled by the fact that a father may be about to emigrate and before he goes he may be prepared to make a substantial capital sum to the mother but that possibility is not open to him.

The Deputy should know that in such circumstances the father may make an agreement with the mother which may be registered in the courts and that would cater for the hypothetical case which he is putting to me.

Would he not be missing the inducement? That is the difficulty.

That is the reality. Deputy Taylor is correct. The only incentive for a gentleman going to Australia to make a lump sum payment would be to know that he could not be required again through the courts, to make further payments. If his trip to Australia was a failure and he returned to Ireland two years after making a lump sum payment, under the Minister's current provisions in the Bill he could be taken to court again and required to make payments, or he could be pursued, in theory, to Australia to make payments. Fathers only enter into such arrangements if they have the inducement of knowing they will not be required by the courts at a future date to make further payments. Deputy Taylor has hit the nail on the head with regard to this issue. The Minister does not seem to appreciate the fact that such arrangements cannot effectively be concluded unless there is some advantage to the father as well as to the mother and the child.

This Bill removes all inducements from the father and curtails any incentives or advantages there may be to him in entering into such an arrangement. The gentleman Deputy Taylor referred to might just as well go off to Australia and pay the mother nothing because he could not be pursued to Australia for it and would have no inducement to make a lump sum payment under the Bill as is currently drafted.

I am advised that the situation as envisaged by Deputy Taylor is more than adequately covered in section 20 (a) (ii). The parents can voluntarily enter into an agreement on the question of payment; that agreement can be registered in court and is not a bar on any further payments it may be necessary to have made at some other stage. If the circumstances change that is the way it should be.

Question put.
The Dáil divided: Tá, 40; Níl, 75.

  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Begley, Michael.
  • Boland, John.
  • Boylan, Andrew.
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Carey, Donal.
  • Connaughton, Paul.
  • Cooney, Patrick Mark.
  • Cosgrave, Michael Joe.
  • Creed, Donal.
  • Crotty, Kieran.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Doyle, Avril.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas.
  • Farrelly, John V.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harte, Paddy.
  • Hegarty, Paddy.
  • Higgins, Jim.
  • Kelly, John.
  • Kenny, Enda.
  • Lowry, Michael.
  • Mitchell, Gay.
  • Noonan, Michael.
  • (Limerick East).
  • O'Keeffe, Jim.
  • Shatter, Alan.
  • Yates, Ivan.

Níl

  • Abbott, Henry.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Burke, Ray.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • De Rossa, Proinsias.
  • de Valera, Síle.
  • Doherty, Seán.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermott.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Sherlock, Joe.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Gregory, Tony.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCartan, Pat.
  • McCreevy, Charlie.
  • Mac Giolla, Tomás.
  • MacSharry, Ray.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Dea, William Gerard.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.
Tellers: Tá, Deputies Farrelly and Flanagan; Níl, Deputies V. Brady and Briscoe.
Question declared lost.
Amendment No. 18 not moved.
Section 18 agreed to.
Section 19 agreed to.
SECTION 20.

Amendments Nos. 19 and 20 in the name of Deputy Shatter have been dealt with.

Amendments Nos. 19 and 20 not moved.
Section 20 agreed to.
SECTION 21.

Amendment No. 21 is in the name of Deputy Shatter. Amendments Nos. 22, 23, 24 and 25 are related. I suggest that they be taken together. Is that agreed?

Agreed.

I move amendment No. 21:

In page 14, line 33, to delete "£1,000" and substitute "£3,000".

This section seeks to re-enact a provision that was in the Illegitimate Children (Affiliation Orders) Act, of 1930, extended to apply not merely to children born out of wedlock, but, as I would understand it, to children born within marriage. The current position is that when a child is born to a mother outside marriage the mother can recoup certain expenses, by way of court order from the father of the child, additional to the moneys that can be obtained by way of affiliation order, or what will be a maintenance order under this Bill.

The Bill provides that expenses incidental to either or both of the following matters can be obtained, first, expenses incidental to the birth of the child and also, in the context of a child who, unfortunately, dies expenses arising as a result of the funeral. In the context of the expenses ordered under the Bill, it is provided that any lump sum order shall direct the respondent parent to pay to the applicant a lump sum not exceeding £1,000. It goes on to say that no such order shall direct the payment of an amount exceeding £500 in respect of the birth of the child or £500 in respect of the funeral of the child.

We should first explain what are expenses incidental to the birth of a child. The courts, in practice, have interpreted such expenses as, first, medical expenses incurred by the mother with regard to the birth of the child and, secondly, expenses incurred by the mother for the provision of clothing for a baby to be taken home from hospital. It can include also, in practice, the expenses of a carry cot which might have to be purchased for the purpose of bringing a child home from hospital. It can be interpreted as including the other types of expenses a mother might incur such as the purchase of nappies to be used by the baby while in hospital — some maternity hospitals now require mothers to supply these whereas previously they supplied them.

Expenses incidental to the birth of the child can also relate to medical expenses incurred by the mother relating to the birth of the child, such as visits to a gynaecologist for check-up pending the birth of the child and other types of expenses. Regarding expenses incidental to the birth of a child the maximum sum a mother can receive in the District Court under this provision is £500. No similar financial limit is applied in the Circuit Court though I may be wrong in that. Perhaps, the Minister would clarify that for us. Certainly, at present there is no financial limit with regard to the amount the Circuit Court can order.

In the context of this Bill, the District Court will be confined in making an order for expenses incidental to the birth of a child to a sum of £500. That is not enough; it is not a realistic sum. A mother when incurring expenses incidental to the birth of a child can incur a great deal more expense. Admittedly, many mothers nowadays when a child is born will have some of their maternity expenses met either through the health service or by way of supplement through the VHI but that is not the case in regard to all mothers. Secondly, the amount of expenses which can be incurred on some of the basic items I have referred to can considerably exceed the sum of £500. It would seem that there is no rational reason for this Bill to impose a limit which does not allow the mothers to receive a full sum.

Let me illustrate what I am talking about by giving a very practical example. In a court case of about 18 months ago a mother sought a sum of money for expenses incidental to the birth of her child. The case was determined in the High Court on appeal from the Circuit Court in March 1986. In seeking expenses incidental to the birth of her child items of expenditure incurred or relating to the child were held by the court to come to a total sum of £952. Under this Bill the mother could not get that £952 back, she would be limited to receiving a sum of £500. There is no rationale for so limiting it. The amendments I have tabled, if accepted, would allow the mother to receive a sum of up to £2,000 for expenses incidental to the birth of a child. Bearing in mind that the courts have been making orders in the region of £900 to £1,000. I do not understand why this House should curtail to £500 the sum the courts can order.

In this amendment I propose that the courts be empowered to make an order for up to £2,000 for expenses incidental to the birth of a child. That is a sum which is well within the limits of the District Court and if this provision extends beyond the District Court and into the Circuit or High Court jurisdictions it is quite clear that there is little sense in this House reducing the protections which mothers have and requiring the courts to make orders of a lower nature which they currently regard as being acceptable and correct under the provisions of existing legislation. Secondly, in the event of the death of a child funeral expenses are limited to a sum of £500. I propose that that sum should be increased to £1,000. Again, this is to allow some degree of flexibility and we should also bear in mind that our financial limits in these areas very rapidly become irrelevant because of inflation.

The reality is that the courts will not order sums to be repaid to a mother unless she can properly in court proceedings prove that valid expenditure has been incurred. It would seem that the financial limits laid down in this measure are unnecessarily narrow and do not accord either with the interests of the child or of mothers. The third part of this amendment seeks to allow a total overall sum of £3,000 to emerge if expenses incidental to the birth of a child and funeral expenses are incurred. Of course, in the vast majority of cases, fortunately, the question of funeral expenses will not arise. Of most importance to mothers are the expenses incidental to the birth of a child. Therefore, amendments Nos. 21, 22 and 23 are designed to increase the financial limits and to make them more realistic in the context of current costs incurred by mothers when they have babies.

Amendment No. 24 seeks to add a further subsection to this section. The amendment seeks to insert subsection (4) to section 21 and would read that, "for the purposes of the section expenses incidental to the birth of a child shall include expenses incurred by the mother incidental to and arising out of the period of pregnancy relating to such child together with any earnings lost by the mother due to her pregnancy during the aforesaid period". I, again, emphasise that in that section there is an upper limit of £2,000 by virtue of the earlier amendments to this provision. The Illegitimate Children (Affiliation Orders) Act, 1930 refers to expenses incidental to the birth of a child, as does this Bill, but nowhere in that legislation is it defined exactly what encompasses expenses incidental to the birth of a child.

In my opening remarks I dealt with expenses which are generally agreed among all judges as being expenses incidental to the birth of a child — gynaecological expenses, expenses for clothes immediately required to bring the child home from hospital, for nappies, for a carry cot and so on. There is no dispute about any of these items. In the case ofMcV v. McG of March 1986 which is unreported in the Law Reports a member of the High Court sought to delimit what was meant by expenses incidental to the birth of a child. He held that a mother's loss of earnings was not an expense incidental to the birth of a child. He also held that where a mother, for example, gives up work some weeks before her child is born and does not receive any payments or where the payments which she receives through some form of maternity payment are below what she would have received through her salary or wages, that the moneys she loses are not an expense nor are they referrable to a birth. The High Court judge said that it is a loss referrable only in part to the fact of the birth and in the main to the period of pregnancy. He also held in that case that the cost of maternity clothing was not something incidental to the birth of a child but was referrable to the period of pregnancy.

Many mothers outside marriage are in very difficult financial circumstances and cannot afford the additional expense which is incurred as a result of having to buy maternity clothes solely out of their own funds. Where loss of earnings results they find themselves in some difficulty. What I seek to do in inserting a new subsection (4) is to provide a definition of expenses incidental to the birth of a child whereby they shall include expenses incurred by the mother incidental to and arising out of the period of pregnancy relating to such child together with any earnings lost by the mother due to her pregnancy.

It is taking legal reasoning to a tortuous extent to say that expenses incurred due to pregnancy are not expenses which relate to the child being born. Of course, the two are interwoven. It is probably futile to urge the Minister but nevertheless I urge him to accept the amendments which I have tabled along those lines with a view, as I have said on the previous amendments, to giving greater protection to children both inside and outside of marriage and with a view to ensuring, in the context of "expenses incidental to the birth of a child" some uniformity of judicial approach in the courts with regard to applications made by mothers when they seek such expenses.

Would it be in order if I move amendment No. 25 in the names of myself and other Workers' Party representatives because it relates directly to the issue Deputy Shatter is seeking to cover?

I think the Ceann Comhairle indicated that for the purpose of discussion amendment No. 25 was being taken with the others.

I am seeking to address the very problem to which Deputy Shatter has been alluding. In our discussions this morning Deputy Shatter highlighted the problems encountered, when the provisions of a Bill fix sums, how quickly they become out-of-date and how difficult it is to find an opportunity of updating them. We have been frustrated on two occasions already today when we sought to avail of the opportunity this debate affords to effect an improvement in the figures and to bring them to a more realistic level. Perhaps I should read our amendment No. 25 into the record. It states:

In page 15, between lines 19 and 20, to insert the following:

"(4) (a) The Minister may, from time to time, as he thinks proper, by order vary the amounts allowable on award under subsection (1) of this section.

(b) Where it is proposed to make an order under this subsection, a draft of the order shall be laid before each House of the Oireactas and the order shall not be made until a resolution approving of the draft has been passed by each such House.".

Sub-paragraph (b) of our amendment seeks to give Deputies an opportunity — as and when Ministers may think fit to introduce an order — to have their voices heard and taken on board by the Minister in the fixing of a sum. At this stage in preference to the formula of fixing figures, perhaps the Minister would leave the figures as they stand at £500 each because in certain respects they are generous and constitute an improvement on the present position. I suggest that amendment No. 25 be accepted as constituting a means of dealing with the matter in the future. I believe it to be the most workable formula and I hope the Minister will accept it.

Amendment No. 24, which is the principal amendment proposed by Deputy Shatter, raises a major issue of principle arising from the manner in which it defines "expenses incidental to the birth of a child" for the purposes of a lump sum awarded under the provisions of this section. It has always been a principle of maintenance law relating to the children of parents who are not married to each other that the father is liable to maintain the child but not to maintain the mother. Amendment No. 24 breaches that principle by including loss of the mother's earnings in the category of expenses which the father may find himself ordered to compensate by way of a lump sum payment.

For that reason I am opposed to it, at least at this stage.

There may be two views on the matter but we would need to consider very carefully all the implications of such a proposal before effecting any change in the long-standing principle I have just mentioned. For instance, it raises the issue as to what, if any, obligations the parents of a child who are not married to each other should owe to each other as distinct from those they owe to the child. These are not matters which should concern us in our consideration of the provisions of this Bill.

As regards the maximum levels of lump sum proposed in amendments Nos. 21, 22 and 23, the proposed £2,000 overall limit clearly is related to amendment No. 24 which I am not accepting and, accordingly, is now out of the question. The amounts specified in the section were arrived at having regard to the rate of inflation prevailing since the last time the maximum amounts were set for the Illegitimate Children (Affiliation Orders) Act of 1930 by the Courts Act of 1981.

I am prepared to look at these figures between now and Report Stage but I doubt very much that I could justify a doubling of those amounts proposed in the amendments. I am not sure that such would be warranted. However, I am quite prepared to have a good look at the matter and to revert to it on Report Stage.

With regard to amendment No. 25 in the name of The Workers' Party representatives, I should say that the maximum amounts of £500 each for birth and funeral expenses specified in subsection (1) of the proposed section 21A constitute limits on the jurisdiction of the courts. The courts in question here are the Circuit and District Courts. There is a long held principle in relation to these courts, that in view of the fact that they are courts of local and limited jurisdiction under Article 34 of the Constitution, it is inappropriate that their jurisdiction limits be set other than by an Act of the Oireachtas. From time to time a Courts Bill is introduced, the purpose of which is a review the civil jurisdiction limits of the lower courts.

In regard to amendment No. 25 Deputy McCartan can be assured that the appropriateness of the maxima specified in this section will be considered when the next such Bill is being prepared. The last occasion on which the jurisdiction limits were increased was when the Courts Act of 1981 was enacted. I understand that at that time some allowance was made for anticipated future inflation.

Deputy Shatter's amendment No. 24 refers to expenses arising out of the period of pregnancy. The section of the Bill under discussion refers to "expenses incidental to the birth." This follows the wording of the Illegitimate Children (Affiliation Orders) Act of 1930. Having regard to the case made by Deputy McCartan, I am prepared to look at the formula suggested by him between now and Report Stage to ascertain whether I can meet him on that.

I will make one or two additional points. The Minister appears to be missing the point I was making when he refers to the provisions of his Bill increasing the financial limits in accordance with inflation. The position obtaining at present is that there are no financial limits when it comes to the Circuit Court making orders in this area. That is the reality. The present position is — as per the example I gave — that currently the courts are making orders in excess of the financial limits the Minister is imposing. I gave the example of the case in which the courts made an order in the sum of £952 for "expenses incidental to the birth of a child." I am endeavouring to provide a mechanism — as I did earlier by way of amendments I had tabled — whereby mothers generally can bring these matters before the District Court or Circuit Court. I am trying to ensure that the provisions of this Bill do not curtail rights already in existence.

It would seem to me that what this House should be interested in doing is ensuring that the easiest and cheapest forms of legal assistance are available and that the courts can exercise a discretion of a nature that relates to the true expenses incurred when deciding what order should be made.

In the context of amendment No. 25 — a continuous problem in the area of family law and in relation to support payments for spouses — is that very rapidly the maintenance upper limits fixed by this House for District Court orders become irrevelant. I would agree with the type of formula advocated in amendment No. 25, as applying possibly not simply in the context of these types of orders but in the context of maintenance support orders generally. Indeed amendment No. 25 is not mutually exclusive of those I have tabled; they are complementary. I contend that Deputy McCartan is wrong in saying that the Minister's financial limits here are generous. The point I was making was that they are actually out-of-date already on the basis of the type of court orders currently being made.

Ministers never accept amendments from the Opposition parties, rather they consider amendments and then produce them under their names on Report Stage. That does not really matter. I do not care whose amendments they are. I just want to see the provisions of the Bill improved. If the Minister is willing to have another look at this area and on the financial limits before Report Stage I am quite happy with that and we can revert to the matter then.

I would say to the Minister also that the definition of "expenses incidental to the birth of a child" is not trying to provide support payments for mothers but rather is trying to provide that mothers will truly receive and be recompensed for expenses they incur relating to the birth of their child or to their pregnancy with that child.

Much has been heard about the rights of the unborn child. The birth of the child would not take place without proper prenatal care by the mother. I suggest that the definition I have given for expenses incidental to the birth of the child is quite reasonable and because there would be a financial upper limit on it, it does not mean that exorbitant orders could be made that bear no relationship to the real expenses incurred by the mother. My concern is that recent court comments and judicial decisions in this area are unnecessarily curtailing the concept of expenses incidental to the birth of a child in a way that is not to the benefit of the child or its mother.

While I am not absolutely satisfied with the Minister's reply that the fixing of jurisdiction of a local and limited District Court should be confined to an Act of the Oireachtas, if this matter is to be looked at again by him before Report Stage I am happy to let matters pass for the moment so far as my amendment is concerned. However, I hope that by Report Stage there will be an improvement along the lines Deputy Shatter and I have been proposing.

Amendment, by leave, withdrawn.
Amendments Nos. 22 to 25 not moved.
Sections 21 and 22 agreed to.
SECTION 23.
Amendment No. 26 not moved.
Section 23 agreed to.
Sections 24 to 26, inclusive, agreed to.
SECTION 27.

I move amendment No. 27:

In page 17, subsection (7) (b), line 47, after "the will" to insert "or codicil".

This is purely a drafting amendment.

Amendment agreed to.

I move amendment No. 28:

In page 17, between lines 48 and 49, to insert the following:

"(8) The provisions of this section shall not apply to the will of a testator who dies before the commencement of this Act, but shall apply to the will of every testator who dies after such commencement, whether the will was executed before or after that time."

This amendment deals with probably the most crucial and critical area that remains to be addressed by the Minister and the House in relation to the elimination of discrimination and the equalisation of the status of children born in or out of wedlock. The section as drafted seeks to deal with the position of wills made and of children born out of wedlockvis-à-vis such a will. At what stage should these provisions come into operation? Which wills will be affected by them? Will wills already in existence at the time of the passing of the Act be covered?

The amendment being proposed by The Workers' Party is seeking, as its wording indicates, to apply to the will of every testator who dies after the enactment of this Bill whether the will was executed before or after that time. In other words, we are seeking to make the operative date, in keeping with the general principles of wills, the date on which the testator dies. For that reason I hope the Minister will accept this amendment without debate. The issues are clear and straightforward. I remind the Minister that his own Fianna Fáil group in the Seanad when this amendment was being debated there supported it. I trust that that line has remained constant and consistent and that the Minister will be rising to tell us he intends to take this amendment on board. I am surprised he has not indicated so already.

Subsection (6) (a) of this section provides that the new rule of interpretation of dispositions provided for by the section will not operate retrospectively to affect dispositions made before the commencement of this part of the Bill. This is in accordance with the view of the Law Reform Commission on the matter. In their report on illegitimacy, at paragraph 339, when recommending the abolition of the present rule of interpretation, they state, and I quote:

The Commission consider ... that it would not be advisable for the legislation to provide that the abolition of this rule of construction should be retrospective in its effect so as to apply to instruments made before the enactment of the legislation. Such a policy would greatly unsettle the law and would cause immense confusion, practical difficulties and uncertainty. Accordingly, we recommend that this change in the law should apply only to instruments made after the enactment of the legislation.

It is a cardinal principal of succession law that, when the question of interpreting a will arises, the courts will endeavour to implement the intention of the testator as expressed by him in the will.

If a will is drawn up under the present rules of interpretation which refers to, say, "the children of `X' ", then when that will comes to be implemented, it is taken to refer to the legitimate, including legitimated, children of `X' and to no others, unless there is something which clearly indicates that the testator must have had in mind children of `X' born outside marriage. This is the way the present law works. People who make wills, and their legal advisers, know that that is the way the law works, and phrase their wills accordingly. If the law is changed as proposed in this amendment, it will have the effect that a will may no longer mean what the testator thought it meant and intended it to mean. This would be a breach of the principle of construction to which I have referred, and, as the Law Reform Commission said, would cause confusion and uncertainty. In addition, I am advised that there is a distinct possibility that any such provision would be held to be contrary to Article 43 of the Constitution relating to property rights.

I must say I am disappointed to hear that the Government are not prepared to stand consistent with their position on this amendment in the Seanad. I am even more disappointed to learn that the Minister is seeking simply to take on board now at this late stage the views of the Law Reform Commission which comes down to the suggestion that the amendment by The Workers' Party would create confusion; would throw some spanner into the legal network as it operates at the moment. That is not the basis on which we as innovators and legislators should be concerned. We should try to create equality as the Bill is designed to do.

I understand that this Bill has been on the rounds of the Houses of this Legislature for two-and-a-half or almost three years. It was a signal to all out there that if the father of children born outside wedlock wanted, for example, to put the future disposition of his property in such a way as to avoid dispositions to such children, all he had to do was draft a will and put it aside. While the Bill addresses fairly and squarely wills that will come into being consequent on the passing of this legislation, the vast majority of parents of those children already in existence — fathers in particular — will have drawn up their wills will have done so simply to disinherit those children. It is incredible that we cannot address that practical result.

The operative date should be the date of the will of the testator. I understand that a cardinal principle of all wills is that the date which the person dies is the date the will becomes effective and has any legal meaning. It is in the context of the time that the person dies, not the time when the will was made, that one has consideration for the construction of the terms of a will. I think there would be no difficulties in the example the Minister has given in constructing what the term "the children of `X' " means if at the date that the testator dies he has children who have been born both within and outside marriage. I do not think that presents any difficulty at all.

The final point I want to make is that this suggestion of constitutional infirmity is simply not a runner in this context. It has been presented, with respect to the Minister, as a means to try to deflect attention away from the merits of what is contended here. I ask the Minister to consider the matter again. He has not sought in any way to explain why it is that his party in Government have changed from the view they held in the Seanad not so long ago that this was a worthy amendment and deserved support.

This is a good amendment and the Labour Party will be supporting it. I do not believe it involves anything dramatic so far as the general law is concerned. The basic principle of the law is, and always has been, where wills are concerned, that a will speaks from date of death. That is well settled law and it has numerous implications and numerous consequences. It has had numerous implications in various pieces of legislation over the years. Sometimes it has effects one way and sometimes another way. That always has been the general principle of law and I know of no exception to it.

A will speaks from the date of death. I do not see any reason for departing from that general principle where the provisions of this Bill are concerned. In a sense the entire Bill is a retrospective measure. It is a progressive measure and I am pleased to see it coming on to the Statute Books. It is long overdue. It recognises the fact that we should have recognised long ago that there is no distinction between one child and another child, whether they are marital or non-marital. I do not see why we should go out of our way in those circumstances to change the long established principle of law that a will speaks from date of death. To preserve some measure of that inequality that by bringing in this Bill we are trying to get away from.

I believe it is right and proper that the existing well settled principle of law should apply now as it always has done and that when a person dies the will is looked at and as from the date of death is the critical date. People change their wills from time to time as circumstances change. People can change their wills if they want to do so and it is open to their legal advisers to put them wise as to what changes of the law may imply for them. That happens all the time in all kinds of circumstances. Changes of the law are brought in in all sorts of ways covering all manner of things that change the existing position. People have to enter into new documents and make new arrangements as the law changes from time to time.

This is a retrospective measure. We are saying retrospectively that there is no difference between all these children, that all children are equal in the eyes of the law be they marital or non-marital. Why can we not just leave it at that rather than go out of our way to change a long established principle of law of inheritance and succession, to try to defeat perhaps some of those people who at long last after all these years under this Bill will be given the equality, which in my view they always were entitled to and should have had, but now that they are being given it why grudgingly should we stretch out one hand to try to exclude a few of them at this late stage? To do that gives some degree of validity to the position that we have had up to now that we are saying in this Bill was wrong and was mistaken, should never have been, which we are correcting it now and which we should have corrected a long time ago. Why then should we try to say that we will hold back a bit, we will not go the whole distance and we will change the existing principle of law that a will speaks from date of death to accommodate this position? That is not necessary. We do not have to change the law to accommodate or to pay some kind of tribute to a situation which was always wrong and always unfair, and only at this late stage in our legal history on this subject is it being finally recognised and finally changed.

Testators and other disposers of property are free to dispose of their property as they think fit and they may leave their property to charity, ignoring spouse and children, or they may distinguish between children on whatever criteria they please. This will continue to be the case whether or not this Bill is enacted. No one will be forced by this legislation into making a will leaving property to a child born outside marriage. There are provisions in the Succession Act of 1965 which are designed to mitigate hardship to the spouse and children where insufficient provision has been made by the testator. These are the legal right share for a spouse provided for in Part 9 of the 1965 Act and the provision of section 117 of that Act, which enables the child of a testator to apply to court for just provision out of the estate where the testator has failed in his moral duty to provide for the child, either in his will or otherwise. This latter will be available to children whose parents have not married each other where the testator dies after the commencement of this part irrespective of when the will was made.

These provisions operate only if they are invoked by the spouse or child and do not limit the freedom of a testator to will his property as he pleases. They do not change the meaning of the will. They only serve to modify the effect of the will, and then only at the option of the spouse or child, and in the child's case subject to court decision. This freedom of testation is a long standing principle of succession law and is one which remains unaffected by the proposal in this section to change the rule of construction of references to family relationships. Those who wish to exclude children born outside marriage from their dispositions will have to choose their words more carefully. That is all. People making wills are entitled to rely on the meaning of words at the time they make their wills. It is wrong in principle for legislation to change retrospectively the meaning of the language used.

Deputy McCartan referred to the fact that this Bill has been public knowledge for some years and suggested that this interval would give people an opportunity to change their wills back to the original meaning. Such a proposal presumes that everyone who drew up a will or other disposition with a future effect would be aware of the change being made in the meaning of the disposition and be in a position to change it back to what was originally intended. This would by no means be the case. What of the person who is abroad and cannot possibly be aware of these changes? What of the person who succumbs to mental incapacity after making his will? What of the person who sets up a trust and may be long dead when the trust property is finally disposed of in accordance with his instructions? None of these are in a position to restore the meaning of the will or other dispositions. We cannot treat lightly the very strong recommendations of the Law Reform Commission in this area. With regard to the advice given to us by the Attorney General and by the previous Attorney General we have to be very careful about the constitutionality of what we are doing.

Would I be right in saying that where a will is made prior to the enactment of this Bill and a person dies after this legislation becomes law, although the will will be interpreted on the basis of the current construction models where a child born outside marriage is excluded from benefiting from the estate of the person who made such a will, such child will be able to make an application under section 117 of the Succession Act 1965. Would I also be right in saying that it would be a misinterpretation of this measure to interpret it as meaning that where someone dies after this legislation becomes law and there is a will in existence which was made before the legislation became law, children born outside wedlock will be excluded from benefiting from an estate? The reality, as I understand it, is that such children will still be able to benefit and bring an application under section 117 of the Succession Act for adequate and proper provision. All this section, unamended, does is effectively to provide rules of construction that a will should be construed in the manner it was intended when it was drafted and we cannot superimpose different rules of construction. If we did so it could be putting an intention into the mind of a testator which he never had and it seems to me that that would create considerable problems. This matter was given a great deal of thought by the Law Reform Commission, and by the previous Government, composed of Fine Gael and the Labour Party and the present Government are concerned with it.

I would be concerned with this section if it excluded children born outside wedlock from benefiting from an estate of a person who died after the Bill became law and leaving a will made before the Bill became law, but it does not do that. Such children can automatically seek application under section 117 of the Succession Act. It seems to me that that very welcome provision will guarantee that all children born outside marriage will have full protection under this measure with regard to the estates of both father and mother when, on their death, they leave wills made either before or after the coming into force of this legislation. It may be that that aspect of the measure is not completely understood if we take this section in isolation.

In my view, the fact that a section 117 application can be made puts children in a true position of equality while ensuring that there is not a constitutional infirmity in something we are enacting, while also ensuring that wills are effectively interpreted as they are supposed to be taking into the account the intention of the testator. However, if the testator intends to exclude a child born outside wedlock from benefiting, that child will benefit by bringing a section 117 application, which is an application many children of married parents have to bring in order to secure their entitlements under a will.

I do not agree with what Deputy Shatter said. One of the problems with illegitimacy has been the concept of succession and the rights of "illegitimate" children to succeed to their fathers' estates. This amendment seeks to put all children on an equal footing and not to discriminate against those children born outside marriage whose fathers happen to have made a will. In my view this is a very reasonable amendment. If we continue to discriminate against children in succession matters we will not end the concept of illegitimacy because this is central to what illegitimacy means in practical terms to those children who have been so unfortunate that they have been discriminated against, and it would seem from this Bill will continue to be discriminated against, in terms of what they would be entitled to as a result of their father making a will.

I want to take this opportunity to comment on Deputy Shatter's view about the merits of the Bill as it stands and, if you like, the demerits of the amendment being proposed of The Workers' Party. Section 117 applies only to young persons, to children, and is designed to assist them in their education and start in life, and there it ends. Once a child has moved from the educational area section 117 is of no avail to him or her thereafter. Consequently, a child, legitimate or otherwise, could be totally disinherited or denied any share in an estate once that child passed beyond the stage of education or start in life.

This amendment is trying to address the position of children born outside marriage who have progressed beyond that position and who should and would, if this amendment were accepted, stand equal as children of the testator, irrespective of their status. That is the objective of the Bill — to equalise and to make fair the relationship of all children to their parents, in this instance, a testator.

However, I do not want to go on about this. I have made the points as clearly as I possibly can. I recognise there is no give in the Minister and he is now being aided by Fine Gael in respect of this issue. I do not propose to pursue the matter further but I am exceptionally disappointed in the so-called progressive views of the Fine Gael Party in this matter.

Amendment by leave, withdrawn.
Section 27, as amended, agreed to.
SECTION 28.
Question proposed: "That section 28 be deleted."

I assume the section will be deleted since it is being opposed by the Minister.

Why is the Minister opposing it?

In my speech introducing the Bill, I mentioned that this section had been criticised in the Seanad as being over-protective of personal representatives and trustees. I indicated I was considering the possibility of amending the section to take account of that criticism. The point made in the Seanad was that the section could be interpreted as leaving personal representatives and trustees free to distribute an estate or trust property without making any effort to trace persons born outside marriage who would have a claim to the property concerned in consequence of the provisions of this part of the Bill. In absolving personal representatives and trustees from liability where they administered estates or trust property in ignorance of any such claimants, the section could also be said to discriminate against persons born outside marriage.

I have taken advice in this matter from legal practitioners experienced in this area of the law and the gist of that advice is that there is no need for the section. The situation is that personal representatives are adequately protected under the Succession Act, 1965, section 49 of which provides a mechanism which enables them to obtain protection by publishing appropriate notices. As regards trustees, it is considered that they are used to making reasonable inquiries of the kind involved, and a proposal to give them additional protection as envisaged in the section would be of doubtful advantage to them. It would also have some practical drawbacks, not least of which would be the expense of publishing notices on the occasion of every distribution of part of the assets of a trust.

In these circumstances, I propose that section 28 be deleted from the Bill.

I support the Minister to delete the section which we, too, oppose on the grounds that it represents a degree of discrimination against children born outside marriage and the objective of the Bill is to equalise, as far as is practicable and possible, the relationship of all children to their parents. We could never understand how the original proponents of this Bill could have thought of introducing this regime of protection for personal representatives in the distribution of assets under a testamentary will. I oppose this section and presume the Minister will be supported by all sides.

Question put and agreed to.
Section 29 agreed to.
SECTION 30.
Amendment No. 29 not moved.
Section 30 agreed to.
Sections 31 and 32 agreed to.
SECTION 33.

I move amendment No. 29a:

In page 19, between lines 35 and 36, to insert the following new subsection:

"(2) Section 117 of the Act of 1965 is hereby amended by the insertion of the following subsection after subsection (3):

`(3A) Notwithstanding anything contained in section 109 (1), any reference to "testator" in this section shall include any person who dies wholly intestate after the coming into force of Part V of the Status of Children Act, 1987.'.".

I am happy to move this amendment. Under the Succession Act, 1965, where a person dies testate, or partially testate — that is disposing of some of their property by will — it is open to the children to contest that will under section 117 of the Succession Act to have an improved provision made for them. On the other hand, where a parent dies intestate and there is no surviving parent, the property or the estate is divided equally among all the children. All Members will be aware of cases where one child, very often a woman, stays at home to look after a father or mother for many years. Such people give up work opportunities but very often the parent dies intestate with the result that all the children of that family, irrespective of the responsibilities they exercised, how often they visited their parents or how well they looked after them, are entitled to an equal share of the estate. I have come across many cases where hardship has been caused to people who have taken good care of a parent. Even if hardship is not caused I do not think it is fair that a person who stays at home, exercises so much responsibility and gives up so much to look after a parent or parents should be treated on the same basis as all other children. There are many examples of a home being disposed of and the person who has looked after a parent or parents having to look to a local authority to be housed because other children who may live very far away from the family home insist on the property being sold to get their share.

I am seeking the same benefit and protection that is given by section 117 where a will is made, or partially made, to a case where a will is not made. I do not think my proposal is unreasonable. Children in such circumstances should be given the same protection as children of a parent who dies testate. It may be that where there is no will, such children need greater protection than where a will makes clear the testator's wishes. In such cases the testator may not have left any wishes and it is only right that under section 117 of the Succession Act such children should be able to apply to the court to have their position improved to one superior to that of the other children.

This amendment seeks to apply the provisions of section 117 of the Succession Act, 1965, which were designed to apply where the deceased made a will to cases where the deceased died without having made a will.

Firstly, this amendment is inappropriate to this Bill; it belongs in a general succession Bill, which this Bill manifestly is not. The amendment has nothing to do with equalising the rights of children. That is the essential purpose of the Bill, and that purpose should not be obscured by this amendment.

That apart, the proposal is, in substance, inappropriate. It ignores the existence of Part VI of the Succession Act, 1965, which sets out the rules for distribution on intestacy. These rules, which have been in operation since the Succession Act came into force, are designed to apply a fair distribution of a person's estate among his or her surviving family, where the deceased did not specify by will how it was to be distributed. They have operated very satisfactorily since their introduction, and one of the most satisfactory aspects of their operation has been that they provide a clear-cut and unambiguous set of rules which apply without the need to resort to court proceedings in the event of a dispute. It is open to the surviving family, of course, to agree on a distribution of the estate which is different to that provided for under the rules, and this often happens where, for instance, the other members of the family agree to forego their entitlement in the family house in favour of the son or daughter who stayed to take care of the deceased parents. If they fail to agree, the fall-back position is the strict application of the rules of distribution on intestacy; there is no need, or indeed opportunity, to institute court proceedings. These rules ensure that where there are children of the intestate, each one of them will be entitled to a share, and section 30 of the Bill has the effect that the rules will apply to all children of the deceased intestate whether or not the deceased had married the other parent.

Section 117 of the 1965 Act is designed to meet a different situation entirely: it gives redress to a child whose parent has died leaving a will, where the deceased arranged his or her affairs so as to deprive that child of a fair share of the estate. To apply section 117 in circumstances other than this would simply not make sense. As I have said, the rules of distribution on intestacy guarantee a fair and equitable share to each child where no will has been made. It would be totally inappropriate to superimpose on that a provision designed to cater for a case where a parent, in making a will, has overlooked, or deliberately ignored, the child's normal expectation of a fair share of that parent's accumulated wealth. Apart from its inappropriateness, the principle of the proposal is unsound in that it contemplates unnecessarily introducing scope for legal proceedings in the area of intestate estates. This would be a retrograde step, as it would increase the prospect of estates being frittered away on legal costs.

I should like to support the general principle Deputy Harney is seeking to introduce into the Bill. In my view, the form of her amendment would not necessarily achieve the results she is seeking in that it would set up two contradictory provisions within the Succession Act. We would have the entirety of Part VI of the Succession Act, particularly section 67, and we would then have this amendment in another Part. I could see a great deal of confusion arising as a result but the principle she is raising is a matter of some importance and one with which I agree.

The current position is that if a parent makes a will and does not adequately provide for a child or for children, an application can be brought under section 117 of the Succession Act alleging that a parent had in some way failed in his or her moral duty to make proper provision. There have been many court cases of that nature. The courts in determining whether a parent has so failed can look at a variety of factors including the financial position of the children at the date of the death of the parent, the contribution the parent made during his or her lifetime to the children and the support and assistance children have given to a parent during that parent's lifetime.

Deputy Harney is correct in saying that we can often get the case of a son or daughter who has remained with elderly parents, helping them to work a farm, look after a small grocery shop or some other type of small business for many years. In many cases, where the parent does not provide adequately for that son or daughter, that son or daughter goes to the courts. Courts have rearranged wills in those circumstances to the effect that the child — in this sense "the child" can be a person in their twenties, forties or fifties — should get a great deal more than one-third of the deceased parent's estate. The courts may take the view that a greater provision should have been made by the parent for that child than for other children. The courts will often examine the financial background of the children at the date of the parent's death and may reach the conclusion that children who are financially well off should not have provision made for them that equals the provision made for a child who is not in similar secure financial circumstances.

When a parent in that situation dies intestate, the law currently confers on all children equal shares of the estate regardless of the financial position of the children or of the assistance the children have given to the parent during his or her lifetime. The law also disregards the finances the parent has made available to individual children during his lifetime. There is need for a provision which would arise under Part VI of the Succession Act and which would probably be an amendment which could be dealt with on Report Stage in this Bill dealing directly in the context of children as an amendment of Section 67 of the Succession Act. It would provide, generally, when a parent dies intestate that current rules would apply but where having regard to the family circumstances and the parents moral duty, the courts are of the view that it is reasonable that greater provision be made to one or more children than to others, they would confer a similar discretion in the intestacy area as is the current position when a parent dies testate.

I agree with the points raised by Deputy Harney that this is an area where considerable injustice can be done when a parent dies without making a will, in particular in the context of a child who may have given up many years of his or her life and independence to care for elderly parents who have not arranged their affairs so as to provide some protection for the child who has been of assistance to them. Unfortunately, the form of the amendment creates practical difficulties in its implementation. There is a great deal to be said for this sort of general discretion. It would not mean that all children would rush into court when a parent dies intestate just as all children do not currently rush to court when a parent dies having made a will. It would cater for some children, for whom proper provision has not been made and where there has been a failure of duty on the part of the parents to make a will in which adequate provision was made for them. There is a difficulty with regard to the drafting of the amendment and it is the wrong portion of the Succession Act. I urge that we come back to it on Report Stage by which time Deputy Harney and the Minister would have examined it. I previously said when dealing with another aspect, that I do not accept the argument made that this is more appropriately dealt with under succession law and does not relate to this Bill. This relates uniquely to children and we will shortly come to another amendment dealing with succession, children and parents and which will bring new law into play in that area. In principle, I support much of what Deputy Harney said although there might be technical difficulties with the amendment. I hope the Minister will have a more open approach to this proposal.

I apologise for the fact that my drafting does not seem to be up to Deputy Shatter's high standards. However, I am quite satisfied with the sentiment expressed therein and the advice I had was that it is perfectly adequate.

I want to take up a number of points made by the Minister. He referred to the fact that in some cases families agree about the distribution of an estate and, of course, in such cases, there is never a problem. However, I have come across many cases and heard of many more where this is not the case. I know of a woman who stayed at home and looked after her parents until her late forties or early fifties. Generally speaking, parents look after the person who looks after them but when there is no will it is a different matter. I know of a person in those circumstances who was put out of the family home which had to be sold to be divided among members of the family, many of whom lived in the United Kingdom and the United States. The person who looked after her elderly parent was forced to sell the house, she merely got her share like everybody else and ended up having to be housed by the county council. I thought it was very unreasonable that someone who looked after her parents for the best part of her working life and gave up many opportunities to move outside the home and to work should have been treated in this way. It is not fair in such a case to treat all children equally. The child who exercises responsibility, who foregoes so many opportunities, should have a higher claim on the estate than children who did not even live in the country. Under section 117 of the Succession Act, if there is a will the person can apply to the court to have their position improved; if there is no will they need this provision. The Minister will argue that it should not be done in this Bill but we get very little opportunity in this House of making progressive, fair or just amendments to the law and when we do I do not like to let such opportunities pass.

I have not put down any other amendment to the Bill because Deputy Shatter has done a very good job and I am happy to support many of his amendments. Indeed, I do not see any need for duplicating the work of the House but this is something about which I feel very strongly because it affects women as they tend to stay at home to look after elderly parents. I would be happy to withdraw the amendment if the Minister would give me an assurance that for Report Stage he will draft an improved amendment which would be free of the difficulties contained in my amendment. If he does not give me this assurance I will press the amendment because it is important to amend the Succession Act in favour of children in these circumstances.

I have no doubt that the views expressed by Deputy Harney are sincerely held and that Deputy Shatter was genuine in his analysis of Deputy Harney's amendment. I accept that there is much in what was said on the amendment and I appreciate the difficulties which Deputy Harney outlined, that opportunities for amending the law in areas where it is felt necessary do not often present themselves. However, that is not a good enough reason for accepting her amendment as it is not appropriate to this legislation. I would love to accommodate Deputy Harney but I cannot, I am sorry. I would not like her to think that if she withdrew the amendment I could do something on Report Stage because I am advised that I could not. It is not appropriate to this Bill.

I support the cases made by other Deputies in relation to this amendment. Perhaps the Minister will reconsider the matter. He indicated that there is an element of sympathy in his thinking and that there are other amendments which will change the broad area of law in relation to children and their parents. This amendment could be considered in that light. The Bill before us will have a substantive effect on the Succession Act and it is not inappropriate to frame an amendment which would have a general effect on the Succession Act which is desired by everyone in this House, responding to what is clearly an oversight in the basic Succession Act. The question of wills is clearly something we have not caught up with in that area and if it is possible to look at it the Minister should do so.

I would love to oblige the Deputies on this matter but I could not truthfully ask for the amendment to be withdrawn on the understanding that I had something positive to put forward on Report Stage. I could say to Deputy Harney that I will consider it and if there is anything I can do to meet the point raised by her I will do so but I cannot give her any guarantee.

I am happy to leave it at that. I will put down an amendment on Report Stage if the Minister does not come up with something along these lines. This Bill is about the status of children and I am seeking to upgrade the status of particular children who find themselves in very difficult circumstances when no will has been made. This Bill is about maintenance, succession and guardianship. It is not just a specific Bill, it goes way beyond what some people might think is in the Bill. There is an opportunity here to amend the law to improve the lot of those children. There are not very many of them — I do not want to exaggerate the numbers — but there are sufficient to warrant a change in the law to improve the position of those children who look after their parents and, as a result, are very often badly treated by the other members of their families.

Amendment, by leave, withdrawn.
Section 33 agreed to.
SECTION 34.

I move amendment No. 30:

In page 19, to delete lines 36 to 45, and in page 20, to delete lines 1 to 8 and substitute:

"34.— The Act of 1965 is hereby amended by the insertion after section 120 of the following section:

`120A (1) Where a person (in this section referred to as "the deceased") dies intestate an application may be made to the court in a summary manner for a declaration that a parent of the deceased

(a) if still living, is, or

(b) if he dies after the death of the deceased, was,

unworthy to share in the estate to which the deceased died intestate and 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 such parent did not make a contribution (whether financial or otherwise) of a substantial nature towards the upbringing of the deceased.

(2) Where a declaration is made under this section the parent of the deceased declared to be unworthy shall not be entitled to a share in the estate to which the deceased died intestate and that estate shall be distributed as if such parent died before the deceased.".

This amendment is proposed to replace the section proposed in the current Bill. First, I wish to refer to the section as it is drafted at present and then I will explain the reasons for my amendment. Section 34 of the current Bill seeks to insert a new section 120A in the Succession Act, 1965. It is a very curious provision particularly because of what the Minister has said up to now. He has been talking about the need to put children in a position of equality, not to discriminate between children born inside marriage and those born outside marriage and not to discriminate between parents of children born inside marriage and parents of children born outside marriage. This provision, as it is currently drafted, seeks to provide for different treatment of the estate of a deceased child depending on whether that child is born to a couple who are married or born to a couple who are unmarried. It superimposes upon that a discrimination against fathers which apparently is justified on a particular basis. Apparently, the drafters of the Bill saw no possibility that a similar provision could arise with regard to mothers.

Section 120A provides that where a person whose parents have not married dies intestate an application may be made to the court for a declaration that the father of the deceased is unworthy to share in the estate to which the deceased died intestate and 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 substantial contribution towards the upbringing of the deceased. Generally speaking, if a child dies intestate leaving property and if that child is unmarried, the parents may jointly inherit the property of the child. This section is designed to provide that where a child is born outside wedlock the father will not inherit if he is unworthy to inherit in particular because he has not made a significant contribution towards the child's support. Other reasons of unworthiness can also arise. This provision is based on an assumption — it can be traced throughout this Bill and it arose in the earlier discussion with regard to guardianship — that most fathers of children born outside marriage are usually unmeritorious and are worthy of condemnation and of social stigma. It is based on the assumption that you may always have an unworthy father but you can never have an unworthy mother.

If a child is born outside marriage and the child dies after having been in the custody of the mother and if the father has taken no interest in the child and has made no contribution towards his support, it is correct that that father should be regarded as the unworthy father. If the child dies leaving property it is correct that the mother should inherit that property. Other situations also arise. For example, I am aware of circumstances in which children born outside wedlock have been abandoned by their mother and have been permanently cared for by their fathers. If a child in those circumstances dies and leaves property and has not made a will, the father will share in that property with the mother even though the mother is in the same circumstances could be in the same category as the unworthy father in the first example. In other words, she could be regarded as an unworthy mother. The mother who abandons the child to the father, shows no interest in the child's upbringing, does not visit the child and makes no contribution towards its support would, under this provision, share in the inheritance of the property with the father if the child dies in a traffic accident or through an illness. In reversed circumstances, if the child had been brought up by the mother the father would be cut off as an unworthy father.

Uniquely, this provision seems to apply solely to children born to couples who are married to each other. Examples can also arise in the marital area in which a father could be regarded as an unworthy father. If a father deserts his wife when his children are two, three or four years of age and leaves the country or goes to live at some address of which the mother is unaware, if he makes no contribution towards the support of his children, never visits with them and never communicates with the mother of his children who were born legitimate under current law, he would equally share in the child's property if the child dies intestate. It seems there is merit behind some of the thinking of this proposal in the original Bill but it is unduly narrow. It is based on a sexual bias that assumes that you can have unworthy or unmeritorious fathers but never unworthy or unmeritorious mothers. It is also based on an assumption, probably born of our own social values that whereas the unworthy father might reappear in a non-marital situation he would never reappear in the marital situation. It seems that the provision in section 120A which introduces a new concept is fatally flawed for all of the reasons I have described.

The amendment which I have tabled is designed to resolve all of these problems. It makes provision that where a child dies intestate there is a jurisdiction conferred on the courts to deny to a surviving parent the right to succeed to property left by that child if such parent could be deemed to be unworthy. That unworthiness is based on a number of factors contained in this proposal which would apply to both married and unmarried parents and to mothers and fathers equally. My amendment contains the following provision:

Where a person (in this section referred to as "the deceased") dies intestate an application may be made to the court in a summary manner for a declaration that a parent of the deceased (a) if still living, is, or (b) if he dies after the death of the deceased, was, unworthy to share in the estate to which the deceased died intestate and 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 such parent did not make a contribution (whether financial or otherwise) of a substantial nature towards the upbringing of the deceased.

Subsection (2) provides that where a declaration is made under this section the parent of the deceased declared to be unworthy shall not be entitled to a share in the estate to which the deceased died intestate and that estate shall be distrubuted as if such parent died before the deceased. That provision is designed to deal with a problem that can arise under existing succession law and to resolve the problems that can and will be created by the provision in this Bill.

It could be suggested that the provision in this Bill as drafted is unconstitutional. The provision in this Bill designates someone as an unworthy father but does not provide a designation of an unworthy mother. It deprives the so-called unworthy father of an entitlement to a share in an estate. He could successfully challenge the constitutionality of this measure before the High Court and the Supreme Court if ever it was enacted on the basis that there was nothing embodied in this other than a pure sexual discrimination for which there was no justification. Indeed, there have been cases in the adoption area of that nature which would back up the point I am making.

There is a necessity for an effective provision in this area to deal with the unworthy parent — the parent who has abandoned children and wife, or mother of children — so as to ensure he or she cannot benefit from a share in the estate of a deceased child. But there is no basis for enacting a provision sexually discriminatory, probably unconstitutional and consequently inoperable. What we should do is provide a measure such as the one I have proposed which would apply to all unworthy parents and confer on the courts the jurisdiction they do not currently have.

This section should be opposed for all the reasons Deputy Shatter has advanced as to why his amendment should be accepted in preference to what is in the Bill and because of its blatant discrimination. I fail to understand why it was ever contemplated. The section should be deleted for the very reasons the Minister may call in aid as to why Deputy Shatter's amendment should not be taken, that we are now moving from the area of the status of children into the whole area of succession law, and the amendment proposed by Deputy Shatter involves the general principles of succession law and are not appropriate to the debate at this time. I see a lot of heads nodding away from me at this stage. Maybe I misapprehend what is coming but I have listened to that message for so long this afternoon that I would be surprised if it was not advanced. We are simply saying that this is not a proper proposal in the form in which it is in the Bill at the moment, because it is blatantly discriminatory. There is no reason for its being confined to fathers, and there is certainly no reason for its being confined to children born outside of wedlock. There is a lot of merit in the suggestion that this general provision be considered to deal with all children and affecting both father and mother.

On that basis I accept that we are getting away from the narrow construction in the Bill and into an area that requires a lot of further consideration, particularly where it could be illustrated to the court that both parents of the deceased child were unworthy. What then becomes of the assets? There is a lot more to be done in this. It requires a separate debate. For that reason The Workers' Party propose that the amendment be deleted in its entirety and that the Act be left to its better devices.

The intention of Deputy Shatter's amendment is to extend the principle of this section to apply to either parent who is shown to be unworthy, not only the father. It is a cardinal principle in the rules of distribution on intestacy as expressed in the Succession Act of 1966 that they should operate with certainty and with the minimum of recourse to the courts. This section of the Bill in its present form interferes with that principle to the least extent possible and is likely to apply in only a very small number of cases. If we were to widen the scope of the section as suggested in this amendment the rules of distribution on intestacy would become much more uncertain in their operation and would be open to serious abuse, for instance, by opportunistic persons threatening proceedings in the expectation of buying off genuine beneficiaries. It could lead to increased litigation and the wasting of estates by expenditure on legal fees, and I would be opposed to any further extension of the section as it could result in destroying the certainty with which the existing rules operate. I might point out that the Law Reform Commission considered this matter at paragraphs 324 and 331 of their report and recommended against having any provision of this kind. Rather than extend the section as proposed in the amendment I would prefer if it were dropped altogether from the Bill.

Is the Minister saying he is agreeable to dropping this section from the Bill?

If it is the wish of the House.

I think it is preferable.

If the Minister is prepared to drop this section 34 I would accept that as well because it seems to me the section is anomalous.

I am prepared to do that.

Question, "That section 34 be deleted from the Bill" put and agreed to.
Sections 35 to 37, inclusive, agreed to.
SECTION 38.

I move amendment No. 31:

In page 21, lines 23 to 28, to delete subsection (3).

This section 38 is to do with the declaration of parentage. Subsection (3) provides:

Where a person makes an application for a declaration by virtue of subsection (1) (b) of this section, he shall specify in the application the reasons for seeking the declaration from the Court, and the Court shall refuse to hear or refuse to continue hearing, as the case may be, the application if at any stage it considers that there are no good and proper reasons for seeking the declaration.

I do not understand why this provision is in this section at all. If someone applies to the court to seek a declaration of parentage, they may simply want to determine who their parents are. I do not know on what basis a court can decide one has no good reason for making the application. I know some of our current Judiciary have some rather odd views about some areas of family law. Indeed they have some odd views about the position of children born outside wedlock and of their parents.

I can very well envisage some member of the Judiciary at some stage saying to someone who is seeking a declaration of parentage "why are you bothering the court with this? We have other things to waste our time on rather than this application". I am not suggesting that that is an appropriate way to approach it, but I genuinely do not understand on what basis any judge can decide that someone does not have a good and proper reason for seeking a declaration.

One comes to court looking for a declaration, one's proofs are in order, one calls one's witnesses, and if there is a dispute as to parentage the court decides the issue. I may want to determine my parentage for no good reason other than that legally at the moment it has not been determined who my father is, or even more mysteriously, under some of the current medical techniques, it may not even have been determined who my mother is. I do not understand on what basis any judge could say someone does not have a good reason for making the application. I do not understand the background or the rationale behind this section, and I would urge that the Minister delete it. The only good thing is where one has some — and I emphasise some — members of the Judiciary who have anachronistic views or old fashioned views about family life and who are not prepared to confront and accept the reality of there being children born outside wedlock who are entitled to equal rights with children born within wedlock, who are entitled to trace their origins and ascertain their parentage. This is a section which could result in a court remedy that is extended to children by this Act being curtailed due to no reason other than some subjective assessments taken by some members of the Judiciary. I ask the Minister to accept that this section serves no purpose and to withdraw it to avoid this House having to proceed to oppose it. It is of no functional use at all.

Subsection (3) taken in conjunction with paragraph (b) of subsection (1) has the effect that persons born outside the State will have to show good and proper reasons why the Irish Circuit Court should consider granting a declaration. For instance, it is unlikely that an English-born person of English parents, resident all his life in England and having no connection in family business or property with this country, would be able to justify seeking a declaration of parentage in the Irish courts. A person born abroad of Irish parents who returned home during his youth and whose whole life was Irish based would have little difficulty in showing good and proper reasons for the same course. The great variety of situations that can arise makes it impossible to set down any list of inclusions and exclusions which would not give rise to injustice in some cases. The court itself can be relied upon to weed out those cases which are jurisdictionally ill-founded.

If, as proposed by the Deputy, this subsection were removed, it could result in the courts being expected to make declarations of parentage in cases where the only connection with this country was the fact that a declaration was sought here. It simply does not make sense that the Irish Circuit Court should be asked to make a declaration of parentage in relation to a person who has no connection with Ireland. The court does have an inherent jurisdiction to dispose of frivolous applications, but subsection (3) of this section does more than confirm this by statute. It sets down a clear marker for potential applicants and their legal advisers that an application will not be entertained unless some good and proper reason can be adduced for invoking the Irish courts' jurisdiction.

What this section does is set down a clear marker for eccentric members of the Judiciary to refuse to entertain parentage applications. It is only family law practitioners who know that that is the problem because family law cases are heard behind closed doors. That is what this section will mean. There will be some judges sitting in our courts who will use this section to refuse to entertain parentage applications on the basis that there is no reason for them do do so. The case which the Minister raises of somebody coming from England to seek a parentage order in our courts while the parents live in England and have no connection with Ireland is fanciful in the extreme. If that person seeks a parentage order here he is not going to be able to undertake that sort of court proceeding to obtain that result that he is seeking. He will lack the adequate and necessary court proofs. The court would have an inherent jurisdiction to say that it is not in a position to deal with that. That is a different matter.

The absence of proof preventing somebody getting an order or a judge saying that he is not in a position to deal with that because it is a matter under private international law that should be dealt with, say, in England is a different matter from a judge saying that he should not hear the application because there are no good and proper reasons for seeking it. This provision does not say that where a person who resides outside the jurisdiction and has no connection with this jurisdiction seeks a parentage order the courts may decline to hear the case because they do not have adequate proofs on which to reach a determination. What it says is that a child of 18 or 19 years of age, living in Ireland, who seeks to ascertain a parentage issue can apply to an Irish court. The judge could ask if he was looking for support payments or for anything from the father and the child might say no, that all he wants is to get a court declaration that that man is his father. It will be open to a judge to take the view that that was an application made for no good and proper reason and it could be thrown out.

This section merely lays down legislation which could frustrate the intention of this Bill. It provides a mechanism whereby an eccentric member of the Judiciary could, in a wide variety of circumstances, refuse to entertain a parentage application. It is not suggested that we currently have a problem of all sorts of people from outside Ireland landing here simply to invoke the jurisdiction of our courts to seek all sorts of spurious court orders in a wide variety of other areas. Why somebody should get it into his head to do that for parentage applications, and uniquely so, escapes me. The Minister is taking logic to extremities in seeking to justify this provision. It was in the Bill as originally drafted and is not the Minister's fault. I have no doubt that there was some thinking behind it, but I do not think that that thinking was very bright. It does not add anything to the Bill, but creates an impediment and difficulty in the operation of the parentage provisions here. I ask the Minister in the circumstances to withdraw it at this stage and if he has another provision in mind about people using Ireland as some sort of friendly jurisdiction to land in from England, Europe, the United States and everywhere else and to seek spurious parentage applications, we could provide for that on Report Stage. This measure makes no sense. It does not achieve anything and could frustrate the intention of the section.

The issues raised by Deputy Shatter are serious ones. As he has pointed out, the provision under this section would allow for a judge's discretion in particular situations and some of our judges are notorious for their inconsistency and incredibly colourful decisions. In legislation under which we are seeking to equalise rights to allow, through anad hoc interpretation by individual judges, the refusal of one of the most basic rights that we are trying to offer is a fundamental flaw, if the legislation is allowed to proceed as drafted. I would add my weight to the points made by Deputy Shatter in asking the Minister to accept the amendment on this occasion. If there is a particular problem that he is trying to address, perhaps he could find a way of redrafting which may not be so general and so open to undermining many of the entitlements that we are giving here, of which this could be a fundamental element.

Subsection (3) is to be taken in conjunction with paragraph (b) of subsection (1). This has the effect that persons born outside the State will have to show good and proper reasons why the Irish Circuit Court should consider granting a declaration. If the section were removed, it could result in the court being expected to make declarations of parentage in cases where the only connection with this country was that a declaration was being sought here. It does not make sense that an Irish Circuit Court should be asked to make a declaration of parentage in relation to a person who has no connection with Ireland. It gives the court discretion to refuse applications because they have no connection with the State.

In view of the points raised by Deputies Shatter and Flaherty, I am prepared to look again at the drafting to see if any possible confusion can be avoided.

I have listened to the argument as it has developed. Perhaps the Minister in the interim or before Report Stage might look at this whole question. I may be corrected by somebody in the House who is better versed in these matters, but it strikes me that in the legislation proposed there are no basic ground rules of jurisdiction laid down as to how a court could determine whether or not it had jurisdiction to deal with these applications. If that matter were addressed on Report Stage, it might be a means of solving this problem. I tend towards Deputy Shatter's view that it introduces superfluous legislation because of the inherent jurisdiction of courts to deal with all matters of frivolity. A more substantial matter is the question, not of frivolity but of jurisdiction. How does a court here decide when it has or has not jurisdiction to deal with applications for declaration of parentage?

I will discuss the matter with the parliamentary draftsman and we can come back to it again on Report Stage.

The Minister interprets subsection (3) as being defined by subsection (1) (b) but that is not stated in subsection (3). That should be adequately specified in subsection (3).

It is in subsection (1) (b).

To assist the Minister and I am prepared to give him time on Report Stage to look at this, it would be a very simple matter to provide, in the context of subsection (3), that the discretion the Minister seeks to confer on the court should only exist where a person seeks a declaration of parentage and who was born outside the State.

I am satisfied that it does but there is a certain element of confusion and I will do my best to eliminate it.

Subsection (3) on its own confers a very wide discretion on the courts.

Perhaps we should let the matter rest until Report Stage.

Amendment, by leave, withdrawn.
Section 38 agreed to.
SECTION 39.

Amendment No. 32 in the name of Deputy Shatter is a substitute amendment on the additional list.

I move amendment No. 32:

In page 22, lines 18 to 21, to delete subsection (2).

Section 39 makes provision for rules of court for parentage applications but it contains a curious provision in subsection (2). Under section 38 the Attorney General can join in proceedings in which someone is seeking a parentage declaration and he can join in those proceedings of his own volition and on his own motion. Indeed on the application of any party to the parentage proceedings the court can send papers to the Attorney General to involve him. Therefore, where a child seeks to have a parentage declaration made he may have as a litigant on the other side of those proceedings the person alleged to be the father of the child. Also under section 38 it seems that the Attorney General, as he can do under other legislation, may have an interest in getting involved in the proceedings and may appear as a notice party in the proceedings. This would mean that the Attorney General could go into court and argue legal issues of relevance to the parentage application. It may very well be that the Attorney General may argue legal issues which are justified and correct and the legal issues which he argues may result in the application being made by the child not succeeding or may result in the application being made by the child succeeding and the father opposing that application not being successful.

Let us assume that the Attorney General is involved in such proceedings and he wins his point in the court case, whatever that point may be. If the Attorney General wins his point in the court case, under subsection (2), as drafted, the Attorney General, as he normally can in proceedings, can get an order for costs against the party in respect of whom he has won his point. Subsection (2) provides that where costs are incurred by the Attorney General in connection with any application for declaration under section 38 of the Act the court may make such an order as it considers just as to the payment of these costs by other parties to the proceedings. Normally, the court would consider it just that the Attorney General's costs be paid if the Attorney General is on the winning side in a point made or on a legal point which has to be determined by the court.

However, there is another possibility. The Attorney General may involve himself in proceedings on a legal issue and may be held by the court to be wrong, legally. In other words, the Attorney General having been joined as a party to the proceedings could lose on the legal point and having done so he might, by coming involved, have considerably increased the costs of the legal action, caused a court case which might otherwise have been disposed of in one day to continue for two or three days and may have caused a child seeking a parentage application to have to employ more lawyers than would otherwise have been necessary. Instead of bringing the application with the assistance of a solicitor the child may have had to instruct counsel.

It would seem that under this section, as drafted, where the Attorney General has been proved to be right in whatever point he has made he can have an order for costs made against the other parties to the proceedings. If the Attorney General is proved to be wrong and if the other parties to the proceedings incur considerable expense due to the Attorney General getting involved in those proceedings they cannot get an order for costs against the Attorney General. I can understand why the Attorney General's office, who assist in the drafting of legislation, would be enthusiastic about a Bill which allows the Attorney General solely to get orders for costs and ensures that other litigants cannot get orders for costs against the Attorney General. I have no doubt that the Attorney General's office would permanently enact legislation in a wide variety of areas if they could get away with it.

It is a usual rule of litigation that if a litigant is involved in court proceedings and is unsuccessful and causes other people involved in court proceedings to incur additional legal costs because of their involvement, those people can get orders for costs. I first tabled an amendment to this section seeking to confer general discretion on the court to, where appropriate, make orders for costs in favour of the Attorney General and where, appropriate, make orders for costs against the Attorney General. That amendment was ruled out of order on the basis that it could impose a charge on the State. If it cannot be dealt with in that way the only way to deal with it is to delete subsection (2). That would leave in practical terms the same result because if the Attorney General involved himself in court proceedings the court would retain a general discretion, if that provision was deleted, to make orders for costs in favour of the Attorney General in some instances and against him in others. At least then we would not be enacting a discriminatory measure which could cause children born outside of marriage to incur unnecessary legal costs due to action taken by the Attorney General and which they could not recover from him. It would seem that the ordinary laws as they apply to legal costs would exist.

Accordingly, I propose that we delete subsection (2) of section 39 because all it seeks to do is put the Attorney General in a favoured position which is unwarranted and unnecessary and which would ensure that no matter on what spurious reason he involved himself in court proceedings no matter what vexatious point of law he brought up, and which the court wants thrown out, he is permanently immune from orders of costs being made against him. Incidentally, like a reference I made to an earlier matter on a section the Minister agreed to delete, it could also be unconstitutional and it would seem that the Attorney General in trying to enforce an order for costs made in this manner in such circumstances could find the courts saying that that was an unconstitutional provision because it failed to place litigants in a position of equality and, as in this case, it discriminated against the child born outside of marriage. It is not a provision we could accept.

I simply want to say that for all of the arguments advanced by the previous speaker, I support the proposal for the deletion of subsection (2) of section 39 as currently drafted.

Subsection (2) enables the court to order the payment of the Attorney General's costs by other parties to the proceedings where this appears to it to be just in the circumstances. It is unreasonable that where the State incurs costs in connection with the pursuit of a remedy by an individual the court should not have the discretion to charge those costs to the individual concerned or to some other party whose conduct in the proceedings may have given rise to those costs, where the justice of the case demands it. That is the effect of the Deputy's amendment for that reason I oppose it. However, in view of the arguments put forward by Deputy Shatter in support of the amendment, I am prepared to look at the matter again between now and Report Stage.

To take the Minister's point, where it is just, this provision allows orders for costs to be made in favour of the Attorney General but equally where it is just to do so, it does not allow the courts to make orders for costs against the Attorney General. Those circumstances can equally arise. The Minister makes a reference to the Attorney General being brought into proceedings by other parties. The reality is that the Attorney General can independently bring himself into the proceedings if he wishes to do so. This provision does place, in particular children born outside marriage, in an unfair position, and at a disadvantage in litigation seeking to determine paternity and parentage — that in a Bill in which we are seeking to encourage children to have such legal remedy or making available such legal remedy when it has not existed heretofore.

If the Minister is unwilling to withdraw this subsection I would have to say that I intend putting it to a vote, that is, the proposal that the section be deleted.

I have listened to Deputy Shatter carefully but I really do not see the need for the purport of his amendment to this section. I see nothing in the Bill — as drawn in this section — which would preclude a court giving costs against the Attorney General if the Attorney General loses on the issues raised in the case. It is given out by Deputy Shatter as implicit, arising from the situation, that there is some preclusion there, that the court is in some way debarred from giving costs against the Attorney General if the Attorney General loses. I do not see any basis for coming to that conclusion — perhaps it is there — but I must admit I do not see it. It seems to be that if the Attorney General becomes a party to proceedings and loses, as in any similar circumstances, it is open to the court and the court could give costs against the Attorney General. Where does it say otherwise in this Bill? The fact that it is to be implicit in Deputy Shatter's amendment does not make it so.

It seems to me that the purpose of section 39 (2) is to clear up some doubt having regard to the fact that the Attorney General was brought into a case, willy nilly, in the course of the proceedings or whatever, to clarify the point that his costs may, in appropriate cases, be provided for by the court. It seems a fair enough provision to me. But it is quite clear that, in other circumstances, the normal procedures of the courts would apply. Even as the section stands it would be perfectly open for the court to give costs against the Attorney General if it was minded to do so under the rules of court,

That was my understanding too.

Perhaps we could ask the Minister: does he see this provision as allowing the court to make orders for costs against the Attorney General?

It is not a question of the Minister having to say that. It is a standard procedure, under the rules of court, that the courts may give costs to or against the parties to the proceedings in a case before it, as the court thinks appropriate. There does not have to be a provision in a Bill——

Then why is this provision there?

I do not think section 39 (2) adds a great deal. Under the rules of court — even without this subsection — my personal feeling would be that it would be open to the court to give costs to the Attorney General in an appropriate case, I assume — to clear up any doubts about that — by reason of the fact that the Attorney General may not have been a voluntary party, that he is brought in in an unusual way, he was not an initial party to the proceedings in a case brought by one party against another; he is brought in in the middle of the situation which is somewhat unusual. I have not discussed it with the draftsman. But probably to put the matter beyond any doubt, the Attorney General having been brought in, he clarifies that it would be open to the court to give the Attorney General his costs in an appropriate case. I do not see any necessity for Deputy Shatter's amendment on this issue. The rules of court and the general principles apply. It would be perfectly open to a court to give costs against an Attorney General if the court was minded to do so and if the findings warranted that result.

If the Minister accepts what Deputy Taylor is saying then I invite the Minister — if we do not put this amendment — to look at this subsection for Report Stage——

I had already offered that before but the Deputy wanted to vote on it.

——with a view to expressly putting into the measure a provision that mutual orders for costs can be made either in favour of or against the Attorney General where it is just that a court should do so.

Or delete the measure.

——or delete the measure, one or the other. I would be happy to accept that.

I repeat what I said to Deputy Shatter ten minutes ago: I am quite prepared to look at it, take advice on it and come back on the matter on Report Stage.

Amendment by leave, withdrawn.
Section 39 agreed to.
SECTION 40.

Amendment No. 33. Amendments Nos. 34 to 54, inclusive, 56 and 57 are related. Therefore by agreement amendments Nos. 33 to 54 inclusive, 56 and 57 may be taken together for discussion.

I move amendment No. 33:

In page 22, to delete lines 36 to 39, and substitute the following:

" `bodily sample' means a sample of bodily fluid or bodily tissue taken for the purpose of scientific tests and includes blood taken for the purpose of such tests;

`scientific tests' mean any tests carried out under this Part and made with the object of ascertaining inheritable characteristics of blood, bodily fluids or bodily tissue;".

I have tabled a whole series of amendments to this Part of the Bill. In effect Part VII provides for blood tests in determining parentage in civil proceedings. It gives a definition of `blood samples' and `blood test'. Blood tests, as they were formerly undertaken in paternity or affiliation proceedings, could determine, in certain circumstances, whether it was possible that a person alleged to be the father of a child was its father, whether he came within the blood group that could result in a particular child of a particular blood group being born. In effect it was a negative thing, in that one could exclude from an allegation of paternity someone as being the father of a child if he fell outside a particular blood grouping but one could never positively prove or establish that someone was the father of a child in circumstances in which blood tests were used.

Our law up to now did not make provision for blood tests in this whole area, though they were undertaken on occasion voluntarily by a person alleged to be the father of a child in order to determine the issue of paternity. This Part of the Bill provides a series of mechanisms to allow for blood testing to take place and for certain consequences to flow if people fail to co-operate in blood tests.

The amendments that have been tabled seek to extend these provisions. In addition to blood testing, science has now advanced considerably in the means available for determining paternity. A type of genetic testing or tissue sampling, what is now known as DNA fingerprinting, has become available which can determine, to a very high percentage point of accuracy, whether someone is or is not the father of a child. It is no longer a question of using conventional blood tests to ascertain whether a person can be excluded. It is now a question of using genetic fingerprinting to determine specifically whether a person alleged to be the father of a specific child is actually the father of a specific child. Effectively what used to be known as simple blood testing initially 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 effectively establishes whether someone is or is not the father of a child. DNA fingerprinting is a new, scientific method which is available in England and will shortly be fully available here; it may even be available here in this area. DNA fingerprinting, or the genetic fingerprinting test, was discovered and described by Dr. Jeffries, an expert in this area, in the United Kingdom and has now been established as effectively providing a method of scientific testing which can be of tremendous assistance in this area.

During the course of the Second Stage debate I referred at length to the need to ensure, under the provisions of this Bill, that DNA fingerprinting, genetic testing, could be used for the determination of paternity. The provisions we have in this Bill at present with regard to blood samples mirror those that were in English legislation some years ago which have recently been changed by an Act which went through the British Parliament and became law just before the Westminster election. It sought to replace the conventional blood testing for the taking of what are known as scientific tests and to provide a far wider definition of testing that can be carried out than the blood sample testing provided for in this Bill.

I propose that instead of using the terminology "blood test" we should confer on the courts powers to require that scientific tests be carried out which mean "any test carried out under this Part and made with the object of ascertaining the inheritable characteristics" of blood, bodily fluids or bodily tissue. Whereas blood can be used in the carrying out of DNA testing, other tissue from the body can also be taken for the purpose of such tests. The current provisions we are enacting are far too narrow to extend fully to the carrying out of the type of genetic testing which sophisticated medical science now provides.

Instead of using the definition "blood samples" that is in this Bill as originally drafted, I provide a substitute definition of "bodily sample" which incorporates both a blood sample and other samples. "Bodily sample" in my amendment means "a sample of bodily fluid or bodily tissue taken for the purpose of scientific tests and includes blood taken for the purpose of such tests". Bodily tissue here can be a skin scraping; it does not have to be blood — indeed some people have objections to blood tests — and could still be brought within the ambit of this type of testing.

If the amendment to section 40 is amended then sections 41, 42, 43, 44, 45 and 46 would require consequential amendments that would have to arise by the use of the concepts of "bodily sample" and "scientific test" instead of the concepts of "blood sample" and "blood test".

It has taken us 57 years since the enactment of the Affiliation Orders Act to get round to dealing with this legislation and providing a statutory mechanism for "blood test". In providing a means for determining paternity through scientific methods we should ensure that the statutory measures we are enacting provide for the most advanced use of medical sciences. Other countries have found it necessary to bring up to date their own legislation which provides for blood samples to deal with modern scientific testing and, in particular, genetic and DNA testing. The amendments I have tabled would make provision in our law similar to the provision the Westminster Parliament found necessary to make in their own legislation which was passed this year.

The view was expressed at some stage that the blood test referred to here may cover DNA sampling. I do not believe it does. If this was put to test in the courts the blood testing as referred to here could be held to be confined to the old type of blood test. If I am correct in this, then very likely this Bill would fail to provide a proper mechanism to enable paternity to be tested on the basis of the most recent advances in medical science.

I urge the Minister to accept the amendments that have been tabled. They can only improve the Bill. Even if the Minister is of the view that the Bill as phrased currently has a similar effect, I invite him nevertheless to accept these amendments. If the Bill as currently drafted has, in his view, the same effect I see no reason why we cannot copperfasten the position. If necessary we can go through the various sections in the Bill individually to illustrate the problems. I am certain that because blood tests are referred to in this measure, it is not as broad or wide as the type of scientific testing that can be used in circumstances such as exist now. It is not necessary to confine it to being a blood test. Tissue other than blood can be used for the purpose of this test. In recent years before the DNA testing became as sophisticated as it is, tissue scraping, scrapings of skin from the hand, were done in the carrying out of less sophisticated tissue testing in this country for the purpose of determining paternity. In practice these have been extensively used in recent years. This Bill as currently drafted would not provide even for those tests. The wider definition provided here would incorporate all of them and would ensure that we do not have to bring this legislation back in the House in the not too distant future to catch up with advances in medical science.

I am concerned about the definition as contained in the Bill as it stands. If one takes blood samples and blood tests as they are defined there together, what is in the Bill is clearly designed to deal with the old, traditional form of testing, namely, the use of blood. "Blood sample" is defined as "blood taken for the purpose of blood tests" and it goes on to define blood testing. On Second Stage of this Bill the Minister indicated his view that the definition of "blood test" there means any test carried out and he believed that the word "any" would cover all the various scientific developments such as tissue testing, DNA and finger printing.

I am worried about that. Blood samples are clearly confined to blood only and to blood in the context of blood testing. We must come to the firm conclusion that the likely construction any court would give to that provision and those definitions is the old tradition of blood-based testing. It is crucial that the court has the power to order the widest possible scientific testing available, and the DNA, tissue testing and fingerprinting processes are far more exact and serviceable than blood ever could be. The DNA can be based upon any form of bodily excretion. It does not have to be confined to tissue or blood. It can be based on semen or perspiration. The courts should be in a position to call upon the widest, most effective, most positive, up-to-date modern scientific basis for arriving at a decision which in the use of DNA is based on certitude, whereas in blood it is based upon an exclusionary basis of non-possibility. For that reason we should not waste as much time on the proposals here as their length and extent seem to warrant. The issue is clear. To borrow Deputy Shatter's word, the Minister should copperfasten any difficulties that might arise in the subsequent determination of these features. I ask him to take these amendments on board and let it through on the nod.

The arguments raised by Deputy Shatter and Deputy McCartan are correct. The definition of "blood samples" in section 40 could be amended to include tissue samples and blood test. It is not sufficient to rely on the wide definition given to "blood test". Throughout that part of the Bill "blood sample" is given significance and all the evidential and other implications come from "blood sample". As Deputy Shatter pointed out, "blood sample" can refer only to blood and not to any tissue test. By a simple change of the defintion of "blood sample" and "blood test" it would be possible to give an inclusive meaning which included tissue and tissue test. It would permit, without all the necessary amendments that Deputy Shatter is arguing for, the same result to be achieved. I do not see why that should not be conceded.

I agree with the submissions made by the previous speakers on this issue. Now that we are bringing in the Bill on this issue we should have it in drafted form based on the most up-to-date scientific information available. As it stands at present we will be somewhat out-of-date from the scientific point of view before the Bill enters the Statute Book at all. We have an opportunity now to have this as a most up-to-date measure. We should take advantage of that situation and ensure that we have an Act which takes cognisance of all the most recent scientific and evidential benefits on this issue.

May I register strongly the view that this should be defined in the terms suggested in the amendments to allow all up-to-date and modern testing methods and methods which may be devised in the future to be included for the purposes of the Bill and for identifying parents who should be identified.

There are various tests which may be carried out on blood with the object of ascertaining inheritable characteristics. Those currently available include blood grouping tests on the red blood cells such as the classification on the ABO and Rhesus positive/negative systems as used by the Blood Transfusion Service and tissue typing on the white blood cells based on immune reaction to foreign cells. Another test likely to be used more and more frequently now is DNA profiling, which compares the genetic material of cells including blood cells.

The blood sampling and testing provisions in this Bill were criticised during Second Stage by Deputy Shatter as not reflecting modern technology. Under this part of the Bill a court can direct the taking of samples of blood under pain of having adverse inferences drawn against any person who fails to comply with the direction. This can be a significant sanction, although admittedly not of a penal nature. The taking of a blood sample is to some extent an infringement of one's bodily integrity, but it is an infringement which most people willingly undergo for various purposes. I have no intention, however, of proposing legislation to this House which would empower a court to direct the taking from a person of samples of skin or other organs of the body, or of bodily fluids other than blood, under pain of adverse inference being drawn against him. I have been advised that tests on blood groups, tissue typing and DNA profiling or fingerprinting are all capable of being carried out with complete success on blood cells. They constitute tests carried out for the purposes of ascertaining inheritable characteristics and, as such, are quite clearly contemplated by the provisions of Part VII of the Bill.

I am aware that DNA analysis can be carried out using cells from other fluids and tissues of the body. It is, I suppose, remotely possible that in some cases such substances, rather than a sample of blood, might be made available. It is open to a court to hear evidence of tests on such tissues or fluids in the normal way. The provisions of this Part do not preclude the hearing of such evidence, but for a court to be able to direct the taking of samples from a person's body of anything other than blood, particularly when a blood sample is perfectly adequate for the purposes of determining parcentage, would in my view be going too far.

I am amazed at the Minister's response. The whole point, advantage, development and achievement of DNA fingerprinting, as it is called, is that it is the one test which gives you certitude. It puts beyond all doubt the issue of heritage and for that reason it should be accommodated and advanced as much as possible in our legislation particularly in legislation dealing with controversy as to the parentage of a particular child. The sanction as the Minister calls it, of the adverse inference can often leave so much acrimony and so much unanswered questioning in these type of proceedings that where that type of provision can be got away from all the better. Many times, because a person can make legitimate objection to the giving of blood he then leaves himself or herself open to an adverse inference being drawn. That is unsatisfactory and second best. Our legislation should work for the better.

There are parallels in it. I do not want to reduce this debate to the murky confines of the toilet but in road traffic legislation where the blood sample is not immediately forthcoming an option is given to the suspected offender to provide another form of sample. I am not suggesting that that is what we are advocating here but obtaining even hand perspiration I understand is sufficient, to enable testing on a DNA level. The very simple process which allows for taking a fingerprint in the normal course of events, aided by powder, can be sufficient with proper technology and proper testing to give a DNA reading.

The Minister is suggesting that to go beyond the taking of blood, which involves the insertion of a pointed needle into the arm or other portion of the person, from whom a sample is to be taken, is for some reason an acceptable invasion of that person's bodily integrity whereas, for example, the very simple scraping of the outer tissue level of a finger or a portion of the arm is some greater invasion of the bodily integrity of the person. That is not putting the matter into proper perspective.

Would the Minister think a little bit more carefully about this? There may well be instances where a person can very legitimately not be prepared to volunteer a blood sample, I do not want to go into all the realms of that now. At the same time we want to end up with the certainty of a conclusion that is far better in the interests of a child seeking definite information through the courts on parentage. We should work towards a scheme which allows for the absolute certainty that DNA will provide.

I deliberately withheld making any comment in support of this amendment because I was anxious to hear what the Minister had to say and because I felt that the logic and the support from all sides of the House was such that the response could be nothing but positive. I cannot understand why, when we have an opportunity to update and make much more substantial and much more specific, the scientific advances made in this area, particularly in an area where it is open to such contradiction or question, that the Minister is not prepared to do this.

I take the point Deputy McCartan made that evidently the Minister believes it is more acceptable to draw blood than to take a tissue sample. That does not make sense. If we confine ourselves to that specific and ask the court to allow itself to make further demands in this area it could lead to questioning about going beyond the bounds of this Bill. In relation to section 46, where we have the penalty for personation for blood test purposes, if we confine this to blood testing purposes there could be far greater occasion to attempt personation in that one area than if we have the more specific and scientific logical amendment which is before the House.

I appreciate I have only a minute or two left but I would like to say to Deputy McCartan in particular that DNA profiling is carried out on blood and the taking of blood samples is contemplated in this section. DNA profiling does not work on secretions such as urine or perspiration. It requires cells of the body which contain chromosomal information in order to operate effectively. We are not just talking about law on its own, we are talking about biological facts.

Progress reported; Committee to sit again.