Status of Children Bill, 1986: Report Stage (resumed).

Debate resumed on amendment No. 4:
In page 9, between lines 29 and 30, to insert the following:
"14.—The Act of 1964 is hereby amended by the insertion after section 11 of the following section:
‘11A.—(1) Where the High Court grants a decree of nullity in respect of a void or voidable marriage if there is a dispute as to the parentage of any infant born to either party to the nullity proceedings the Court may following the making of such decree upon the application of either party make a declaration of parentage with regard to any such infant.
(2) Where the High Court grants a decree of nullity in respect of a void or voidable marriage the Court may, upon application being made to it, exercise the jurisdiction conferred by section 6A (inserted by the Act of 1987) of this Act and by section 11 of this Act.'.".
—(Deputy Shatter.)

Following on the remarks made this morning, it is a salutary lesson perhaps learnt too late by me not to accept in future an assurance from a Minister that by Report Stage he would look into a matter and give it careful consideration because it seems to me that no consideration was given by the Minister in respect of the amendment. If there had been the slightest consideration I am sure that we would have had a ministerial amendment in terms close to the amendment suggested. Over lunch I had the opportunity to check on the record of our discussions on Committee Stage and it was brought to my mind that a group of amendments had been taken together, six or more of equal and varying importance. Towards the end of the debate when Deputy Shatter was moving that group of amendments he reverted back specifically to the point encapsulated in amendment No. 4 because it appeared that the Minister in his wide-ranging response to those amendments had not specifically addressed the issue in question, that is the power of the court to make ancillary orders on a declaration of nullity at the request of either party. The Minister said on Wednesday, 28 October 1987, as reported at column 1453 of the Official Report:

I assure Deputies Shatter and McCartan that I will look into the matters mentioned by Deputy Shatter and supported by Deputy McCartan. I will see what I can do on Report Stage.

It is regrettable that the Minister can do nothing and will not make an effort to try to address this very sensible straightforward proposal that does nothing more than seek to streamline the procedures before the courts and make them available in one set of proceedings rather than willy nilly in various different jurisdictions and by various initiating writs. A court that makes such a fundamental ruling that a marriage should be declared null should have power to go on then and make other important ancillary rulings that would of necessity have to arise from the order of the court being made. I would simply ask the Minister to perhaps consider meeting the intentions of this proposal because it has nothing but merit pursuing it.

This amendment is opposed. The amendment is in similar terms to Deputy Shatter's Committee Stage amendment No. 15. The Minister for Justice has had an opportunity of giving this matter some further thought, as he indicated he would do on Committee Stage.

At the outset I should say that the Minister for Justice is neither opposed to nor in favour of the idea that the High Court, when pronouncing a decree of nullity, should, in the same proceedings, have a general power to make ancillary orders concerning property, maintenance or guardianship of children or other matters which may need resolution in the wake of the decree. The Law Reform Commission made recommendations on these lines in their report on nullity of marriage. The Minister will be putting his legislative proposals, arising out of that report, to the Government in due course. Such legislation would constitute a more appropriate context in which to consider the question of ancillary orders in nullity proceedings generally which might include questions of concern to the purported spouses only and might not necessarily concern the children at all.

In this Bill we can deal with matters only as they concern children. It would be quite inappropriate to tackle the question piecemeal by providing, in this Bill, for ancillary orders dealing with one aspect in relation to children only and in nullity legislation for orders dealing with the parties themselves and other aspects affecting the children. The whole issue of ancillary orders will be examined in the context of whatever proposals the Minister puts to Government arising out of the Report of the Law Reform Commission.

Apart from those general comments I might point out some technical reasons this amendment is opposed. Subsection (1) of the section proposed in the amendment envisages an application by one of the parties to nullity proceedings for a declaration of parentage. This is inappropriate since the procedure for declarations of parentage provided for in Part VI of the Bill is designed to be invoked only by the person whose parentage is at issue and, then, only in circumstances in which no other relief is sought. In other proceedings, such as guardianship — where a person's parentage is put in question — the court dealing with the proceedings can determine the matter for the purpose of those proceedings. There is no need, therefore, to invoke the special procedure provided for at Part VI of the Bill. Furthermore, there appears to be an inconsistency between subsection (2) of the amendment and the provisions of sections 9 and 11 of the Bill since, under those provisions, a father of children of a voidable marriage, or in some circumstances of a void marriage, is to be the guardian of those children simply by operation of law. It is obviously inconsistent that the Deputy's amendment should give the High Court power to appoint him guardian. The amendment would apply in all cases where a decree of nullity is pronounced. It does not exclude those cases in which, by virtue of the provisions of section 9, the father would already be guardian.

Having regard to the general considerations I have outlined and the technical points I have raised I would invite the Deputy to withdraw his amendment. I might add that, in relation to matters such as this one, the Report of the Law Reform Commission was presented in 1982. The previous Government proposed a scheme for the implementation of that report in March 1985. A White Paper or consultation memorandum was published in May 1985 with a draft Bill, inviting public reaction. This Bill was introduced early in the summer of 1986. It went to the Seanad and was passed in January 1987 following substantial changes. If we are to become involved in more change at this stage then it will involve considerably more time. A large number of interrelated provisions, such as succession, maintenance, guardianship and others would have to be considered and, of course, that would take time.

I would suggest to the Deputy that the Bill is comprehensive, as it stands, and that it would be important to get on with it at this stage. It represent a major social advance. Any other interrelated proposals that might be considered at this stage would certainly lead to the requirement for more discussion at various levels. That could have the effect — which I am sure the Deputy would not want to bring about—of delaying what is a major social advance. For those reasons the amendment is opposed and I would invite the Deputy to withdraw it.

I understand why the Minister hesitates in his response because most of what he has just said is so nonsensical as not to merit a reply. First, the position is that there is no inconsistencyvis-à-vis this amendment and the remainder of the Bill. The Minister is well aware of that. The amendment confers a power on the courts where, following nullity proceedings there is a dispute about parentage, to resolve that dispute. If there is no such dispute there is no reason for the courts to be involved in it. Where there is a dispute about custody of children, or maintenance support payments for children it also allows the court to do that. After this Bill has been passed the courts will be able to do all of those things. But the difference is that, if we do not amend this provision, at the end of nullity proceedings, people who have obtained a decree of annulment, former husbands and wives, will have to start new court proceedings all over again in the District or Circuit Court. It seems almost pointless to repeat this but it appears that either the Minister or his officials simply do not understand what is being said here or are refusing to understand what is being said here. It is a question of improving a Bill that has already been substantially improved during its passage through the House. The Minister's reasons for not supporting the amendment are the most miserable, irrelevant excuses that have been given to date for his refusing to accept a variety of amendments that have been tabled to this Bill.

These amendments have nothing to do with transfer of property rights, succession rights or whatever, nothing to do with any of that. I do not know why the Minister raises those issues. Possibly he does so either because he does not understand what he is talking about or his officials do not understand what they are talking about and the advice they are giving him. I really do not believe it is tolerable that this House should have to constantly put up with the sort of response we have got to this proposal. It makes a farce of the proceedings we are undertaking in this House.

This amendment, if accepted, will not require any great consultation of a complex nature with anyone. All it will do is reduce legal costs, give the courts a more coherent jurisdiction and approach in dealing with problems that arise when a marriage has broken down and provide protection for children. This Bill is about providing protection for children.

The Minister says we should not tackle this matter piecemeal. His approach is that we do not tackle it at all, that we bury our heads in the sand and pretend there is not a problem. This is not a piecemeal approach. It is simply trying to provide a codified approach and a comprehensive system based on what will be the law in any case after the Bill is passed but to enable one court to resolve all matters without mothers and fathers having to troop through two or three different sets of courts, in two or three different sets of court proceedings, to unravel the family circumstances resulting from a marriage being annulled.

The Minister says that his colleague, the Minister for Justice, is neither opposed to nor in favour of what is being proposed. The reality is that, apparently, he has no view on it at all. He has referred to the various reports that have been published. He did not refer to the report of the Joint Committee on Marriage Breakdown. The Minister for Social Welfare was a member of that committee. I would hope that the Minister for Social Welfare would recollect, from the various oral hearings heard, that a number of groups suggested that when a nullity decree is granted the courts should be able to make support payment orders for dependent children and resolve custody and access disputes. It appears the Minister does not remember that and it is correct that we remind him of it.

The report of the Law Reform Commission with regard to the law of nullity is another day's work. It recommends comprehensive statutory provisions dealing with other issues but with regard to children what is recommended in that report coincides with what I am proposing. Apparently the Minister's view is that we should not do anything about this. He produced a number of spurious reasons for suggesting that there is some technical flaw or difficulty with the proposal. Unfortunately, we engage in what I would describe as a caricature legislative process in this House and the Minister's response on this proposal typifies the facile way in which we deal with legislation both on Report Stage and on Committee Stage. It is most regrettable and it is a great pity that we cannot have a more constructive approach which would help the people that this Bill is theoretically designed to help. I intend to put the amendment. There is no point in going back on the ground we have already travelled.

Amendment put.
The Dáil divided: Tá, 71; Níl, 75.

  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Begley, Michael.
  • Bell, Michael.
  • Birmingham, George.
  • Boland, John.
  • Boylan, Andrew.
  • Bruton, John.
  • Bruton, Richard.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Colley, Anne.
  • Connaughton, Paul.
  • Cooney, Patrick Mark.
  • Cosgrave, Michael Joe.
  • Cullen, Martin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Lowry, Michael.
  • McCartan, Pat.
  • McCoy, John S.
  • McDowell, Michael.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • Mitchell, Gay.
  • Molloy, Robert.
  • Naughten, Liam.
  • Nealon, Ted.
  • Noonan, Michael.
  • (Limerick East).
  • O'Brien, Fergus.
  • Doyle, Avril.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas.
  • Farrelly, John V.
  • Fitzpatrick, Tom.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gibbons, Martin Patrick.
  • Gregory, Tony.
  • Griffin, Brendan.
  • Harney, Mary.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Hussey, Gemma.
  • Kavanagh, Liam.
  • Keating, Michael.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • Kenny, Enda.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • Pattison, Séamus.
  • Quill, Máirín.
  • Quinn, Ruairí.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeline.
  • Wyse, Pearse.
  • Yates, Ivan.

Níl

  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John.
  • Burke, Ray.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermott.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • 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.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Mooney Mary.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.
  • Wright, G.V.
Tellers: Tá, Deputies O'Brien and Flanagan; Níl, Deputies V. Brady and Browne.
Amendment declared lost.

In relation to amendment No. 5 in the name of the Minister, amendment No. 6 is an alternative. Amendments Nos. 8 and 10 are alternatives and amendments Nos. 7 and 9 respectively are related to No. 5. Amendments Nos. 11 and 12 are also related and I suggest we take those amendments together.

Amendment No. 12 is different.

Amendment No. 11 is a separate issue. Amendments Nos. 5 to 10 deal with financial amounts. I would see amendments Nos. 11 and 12 as two separate amendments.

It would be better if we left amendments Nos. 11 and 12 and took them separately.

Agreed to take amendments Nos. 5 to 10, inclusive, together.

I move amendment No. 5:

In page 14, line 33, to delete "£1,000" and substitute "£1,500".

On Committee Stage the Minister indicated he would look again at the maximum amounts which may be awarded by way of lump sum order under the Bill in respect of the birth or funeral expenses of a dependent child. Amendments Nos. 5, 7 and 9 are the result of that consideration. In these amendments the Minister has taken into account the change in the consumer price index since the limits were last fixed in the maintenance legislation of 1976. The new maximum of £750 for each category is subject to an overall limit of £1,500. Also contained is some allowance for future inflation. I am satisfied I would not be justified in going beyond these limits. It is no harm to point out that these statutory maximum amounts for lump sum awards apply in relation to any court exercising jurisdiction in this matter and are not just District Court maxima.

It was suggested on Committee Stage that at present the Circuit Court is not limited as to the amount it can award for birth or funeral expenses under the Illegitimate Children (Affiliation Orders) Act of 1930. I am advised that this is not correct and that the effect of the relevant provisions in the Courts Acts of 1971 and 1981 providing for jurisdiction in this regard is that the limits set for such awards apply in relation to all courts.

The original provision in this Bill proposes that when a mother seeks to get expenses ancillary on the birth of her child the maximum sum she should get is £500. On Committee Stage I tabled an amendment saying that the maximum sum she should get is £2,000. The Minister is now changing that maximum from the original £500 to £750. He says he is doing it simply because inflation since 1976 has justified the increase of the original figure of £250 to £750. The Minister has not dealt with why it was that the original figure was calculated at £250, or on what basis this calculation was made.

The reality is that this was a figure plucked out of the air. It sounded a nice round figure but it did not bear any relationship to the reality of expenses incurred by a mother incidental to the birth of a child. I drew attention on Committee Stage to the fact that in 1986 in a High Court case the High Court judge made an order in the sum of £950 in respect of expenses incidental to the birth of a child. Certainly the judicial view — he was dealing with a case appealed from the Circuit Court — was that he did have jurisdiction to make an order beyond the then limit of £250.

I am somewhat confused as to what is the Circuit Court's limited jurisdiction. Is the Minister saying that it will now be limited to £750? In other words, that after this Bill has been passed the Circuit Court will be confined to ordering a lower sum in respect of expenses incurred incidental to the birth of a child than it can currently provide or than the High Court believes it can provide? I do not know why the Minister is being niggardly about this. This, like the earlier matter we discussed, is not money the State will have to provide for anybody. These are maximum limits which allow the courts to take into account the real and genuine expenses incurred by a mother incidental to the birth of her child and require the father to contribute towards those expenses up to a maximum figure. My figure is £2,000 as a maximum. That does not mean that every court will order every father of a child born outside marriage to pay a sum of £2,000 as expenses incidental to the birth of his child. Those expenses must be properly proved in a courtroom setting. The court might determine the expenses to be £200, £500, £1,000. It all depends on what real expenses have been incurred.

When a mother is pregnant she may, for example, during the course of the period of pregnancy suffer some difficulties. She may be confined to bed for a period of time; she may have to give up her job or temporarily leave her job for longer than is usually the case; she may incur special expenditure on medication; she may incur special expenditure of a gynaecological nature. Where there is a troublesome pregnancy, where difficulties occur, the mother may require medical help either in or outside hospital of a nature that not all mothers would incur. There can be special circumstances which give rise to additional expenditure.

I welcome the fact that the Minister has increased the limit from £500 to £750 but I do not understand why he will not accept £2,000. If this would cost the State money, have an impact on the Exchequer, of course I would understand the Minister having difficulty in the current financial climate. This is something which costs the State nothing, which is merely a facility to allow the courts to make an order in respect of expenses incurred incidental on the birth of a child of a sum up to a maximum of £2,000. In the context of funeral expenses, the Minister is increasing the provision for a sum of £500 to £750 and the proposed maximum there should be £1,000. This measure is, for the first time, changing the financial limits here since 1976 and I assume that it may be at least another ten to 15 years before we revert to it again. I ask the Minister to accept my amendments with regard to the maximum sum in respect of expenses incidental to the birth of a child and, in the event of the death of a child, funeral expenses of a maximum in total of £3,000, being £2,000 concerning birth expenses and £1,000 concerning funeral expenses.

I do not understand why my amendments cannot be accepted. It costs the State nothing but gives the court more discretion. It would facilitate them in making orders along the lines of an order the High Court saw fit to make in the context of expenses incidental on the birth of a child in a case dealt with in the High Court about a year and a half ago. I urge the Minister to accept my amendment in the spirit in which it is intended merely to allow the courts maximum discretion in making the necessary orders to allow mothers properly to recoup expenses incurred in these circumstances where the father of the child born is unwilling to make such expenses available to the mother.

First, the existing figure is £200, not £250, and the Bill earlier was raising that to £500. The limit in the 1976 Act would be £200. The Minister has taken into consideration the views given by Deputies on Committee Stage and has raised that limit further to £750. It was previously £50 and made its way up to £200 and then to £500. It is a reasonably substantial increase at this stage. It is something which can be considered in terms of the jurisdiction Bill when the overall level of costs is examined.

The Deputy referred to a particular case where a higher award was given. In that regard this would have been outside the limits in the legislation and the limit is £200 under the existing statute. The Minister is increasing that reasonably substantially to £750. That is the amendment which he is proposing to the House at this stage.

In the context of the manner in which matters have been dealt with I was hoping the Minister might be willing to accept my amendments but in the circumstances I see little point in putting these to a vote. It is regrettable that the Minister is not willing to put in the additional figures. In the context of any courts jurisdiction Bill which he may have in mind, I have no doubt that in a very short time we will have to revert to these sums. I welcome that there has been some movement on the part of the Minister with regard to these figures, but do not believe that it is sufficient. Nevertheless, in the interests of our making progress with the Bill, I shall not press my amendment.

The Deputy will appreciate that we are happy to allow him to make a second contribution, even though it was the Minister who had moved that amendment. It is only a small point.

I am entitled to reply on my own amendments and in any case we are taking them all together.

The Minister moved his amendment and the technicalities, as the legal men will appreciate, will have to be abided by. I take it there is agreement that the amendment be made.

Amendment to the amendment agreed to.

It is my understanding that we are taking amendments No. 5 to 10, inclusive, together and I am assuming——

If amendment No. 5 is agreed to, amendment No. 6 cannot be moved. If amendment No. 7 is agreed to, amendment No. 8 cannot be moved. If amendment No. 9 is agreed to, amendment No. 10 cannot be moved.

Amendment No. 5 agreed to.
Amendment No. 6 not moved.

I move amendment No. 7:

In page 14, line 34, to delete "£500" and substitute "£750".

Amendment agreed to.
Amendment No. 8 not moved.

I move amendment No. 9:

In page 14, line 35, to delete "£500" and substitute "£750".

Amendment agreed to.
Amendment No. 10 not moved.

We will now move on to deal with amendments Nos. 11 and 12. Is Deputy De Rossa happy that we take amendment No. 12 in tandem with amendment No. 11?

Amendments Nos. 11 and 12 may be discussed together.

I move amendment No. 11:

In page 14, after line 50, to insert the following:

"(4) For the purposes of this 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 the pregnancy during the aforesaid period.".

This amendment seeks to insert an additional subsection in the Bill and seeks to provide a definition of what is meant by the term "expenses incidental to the birth of a child" in the Bill. As a result of the Minister's amendment, the maximum such expenses a mother could get is a sum of £750. The reason I tabled this amendment is that judges in the District Court, Circuit Court and High Court appear to have different views of what actually constitutes an expense incidental to the birth of a child. Some are willing to include earnings which have been lost by the mother and some are not. Some are willing to include expenses for medical treatment received during pregnancy and some are not. Some are willing to include only expenses incurred relating to the delivery of the baby in hospital. There is a need for a uniform definition which the courts can have regard to.

The maximum sum of £750 which the courts may order does not open up doors to very large awards of an unmerited nature being made. The amendment merely seeks to provide for a degree of judicial uniformity in determining what expenses should be regarded as expenses incidental to the birth of a child and what expenses should be recoverable where a court order has to be obtained by a mother from the father of her child in circumstances where the father is not making an adequate contribution to such expenses. I ask the Minister to accept this amendment.

Amendment No. 12 in the names of Deputies Mac Giolla, McCartan, Sherlock and me seeks to enable the Minister to vary the amounts of awards which may be made under section 21 (1). It relates to the amounts of awards we were discussing when dealing with amendments Nos. 5 to 10, inclusive. The purpose of this amendment is to enable the Minister to vary those amounts as he would think proper at any particular time and that in doing so he would place the draft of any such order before the House and that the House would then either agree to it or amend it. It is clear from the Minister's response on Committee Stage that he would prefer to leave it to a courts Bill to alter the awards. It is significant that the previous courts Bills were introduced in 1981 and, ten years earlier, in 1971, respectively. It is likely that the rates of inflation and other costs will increase faster than the rate at which this House will get around to having a review of the awards or fines as covered by the District Court and the Circuit Court. It is for that reason we are seeking to give the Minister and this House a degree of flexibility in dealing with these matters. Therefore, I urge the Minister to accept the amendment.

So far as amendment No. 11 is concerned it is very hard to see any reason for turning it down as it merely seeks clarification and a definition of what is meant by the expression "expenses incidental to the birth of a child". Apparently, different courts are interpreting this in different ways and if we have an opportunity to clarify it once and for all in this House we should take it. It is hard to see how there could be any objection to that.

So far as amendment No. 12 is concerned I can see its intent but I am reluctant to ask the House to vest more power in the Minister than he wishes to take. Normally, Ministers are all too anxious to get power for themselves and their Departments but in this case the Minister seems reluctant to take the power. The question is how do we get more flexibility into the system. When inflation runs at a high rate the amounts which are fixed by statute tend to lag very far behind values. If I thought the Minister could be relied on to take a progressive view and use the procedures as suggested in the amendment by Deputy De Rossa to update the allowances on a regular basis I would be inclined to go along with it. Unfortunately, the Minister seems to have adopted a rather ultra-conservative attitude in his approach to the other amendments proposed to date on this Bill and I do not know whether there is much to be gained but I suppose there is not a great deal to be lost either. Therefore, on balance I support Deputy De Rossa's amendment.

When Deputy Taylor began to reply he pointed out the concerns from an Executive point of view and I thought he was going to continue along that line but he backed off it. In relation to the jurisdiction of the courts, there is a desire not to vest more power in the Minister than is necessary and this is because of the position of the courts under the Constitution. The obvious answer is to undertake more frequent revision of the jurisdiction of the courts and there should be a mechanism for doing so.

That is the ideal but in practice it does not work that way.

I accept that but that is a matter which should be looked at separately from this Bill. The Deputy put his finger on what were the concerns from an Executive point of view. Basically the proposal of Deputy De Rossa and his fellow Deputies is a good one but it is generally not regarded as being appropriate to give too much power to the Executive in that respect or to cover that matter in legislation. That can be done by the jurisdictions. The Minister pointed out on Committee Stage that these limits are jurisdiction limits of lower courts, and because of the status of those courts under the Constitution as courts of local and limited jurisdiction it is appropriate that such limits be fixed by statute passed by the Oireachtas rather than by subordinate legislation. The Minister feels, therefore, he cannot accept amendment No. 12 while he recognises the value and intention of it, but he would like to assure the Deputy that in the context of the next general Bill dealing with the jurisdiction of the courts these limits will be re-examined. A most appropriate thing to do would be to try to find some mechanism by which that can be done more frequently.

Also on Committee Stage the Minister indicated he could not accept what is now Deputy Shatter's amendment No. 11, as it raises an important issue of principle regarding the maintenance responsibilities to each other of parents who have not married each other. This matter would fall to be considered in the context of a Bill dealing with maintenance generally and not in this Bill which is concerned essentially with children and equalising their status. This Bill is, in effect, setting up a new system which never applied previously to children of married parents and that is why the Minister is taking the approach he is taking in this section.

I congratulate the Minister on the most esoteric response I have yet had. I found what he last said virtually totally incomprehensible and unworthy of a response. I suspect that the Minister in the way he read it from his brief found it equally incomprehensible and it did not go without notice that other people in this House found it somewhat amusing. It is indicative of the intellectual level to which we sink in dealing with these issues.

There is nothing new in this. This Bill will contain a provision allowing the courts to make expenses incidental to the birth of a child and to make orders to require that payments be made in respect of expenses incidental to the birth of a child. Unmarried mothers have been able to avail of this provision since 1930 and it is being extended now to spouses who are unsupported by their husbands. The Bill seeks to define what is meant by that phrase and it does nothing more than that. The Minister has offered nothing intelligible to explain why he cannot support this amendment. He has offered us a piece of bureaucratic gobbledegook which is even unworthy of his own officials who, I thought, could think of something more intelligent to say than the Minister said.

I regret, again, that, the Minister cannot accept a fairly straighforward and simple amendment which we discussed on Committee Stage and which the Minister for Justice indicated he would consider for the purpose on Committee Stage. I regret the Minister cannot deal with these things in a more constructive way and, in the context of this amendment, a more intelligent way.

I have not yet responded to Deputy De Rossa's amendment. In principle I have no objection to it. I agree with it. In considering the difficulties that exist in the area of family law in particular where financial limits imposed on our courts become out-of-date, within two or three years there is need for a general provision whereby Ministers can through statutory instruments increase the maximum orders the lower courts can make not just in the context of expenses incidental to the birth of a child or funeral expenses but in the context of general maintenance orders. I assume my amendment No. 11 will not be accepted and we will not get in through the House although I am going to ask that it be put formally. Equally, I expect that Deputy De Rossa's amendment, which I support, will not ultimately be passed. I hope the Minister and his officials will take note of the terminology in Deputy De Rossa's amendment No. 12 with a view eventually, about the year 1990, to bringing before this House a Bill relating to the courts, jurisdictions and incorporating an amendment along those lines to deal generally with the financial limits in respect of maintenance orders and expenses incidental on the birth of children, so that reforms in this area with regard to financial limits will not have to wait a decade at least each time for monetary values to be brought up to date. It is a simple matter. It could be done in a non-controversial way by ministerial order.

There is one worry that Deputy Taylor did not articulate fully, although he might have had it in the back of his mind. A Government of a particularly conservative persuasion with no concept of social justice — my description of the current Government — might use such a provision instead of increasing maximum sums the courts can order, to reduce or limit them. That suggestion might be viewed as almost as absurd as some of the objections the Minister made to some of the amendments I have tabled. I believe the intent of Deputy De Rossa's amendment is right. Generally Governments with any sanity would not use such a mechanism so as to reduce the court limits, though one can put nothing beyond the bounds of some parties in the House, particularly the current party in Government.

In principle, what I am talking about is worth doing. If we do not succeed in doing it in this Bill I would like the Minister to look at it again with a view to incorporating it in a court or jurisdictional Bill. I would like my amendment No. 11 put to the House.

Amendment put and declared lost.

I move amendment No. 12:

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 Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.".

The point made by Deputy Taylor and taken up by the Minister——

I understand that amendment has already been discussed.

I think the Deputy has a right of reply.

Concern has been expressed about giving undue powers to the Minister of the day to fix the level of the awards in these cases or to interfere with the jurisdiction of the courts. For that reason we included paragraph (b) in amendment No. 12 which provides for a positive order to be made rather than a negative order. The normal orders which Ministers introduce in this House are negative orders in that if a motion is not passed by this House within 21 sitting days the order automatically comes into effect. No party in this House has ever had the opportunity to oppose such a negative order. The positive order which we are proposing in paragraph (b) of amendment No. 12 makes it clear that any order which the Minister would make in relation to this amendment would have to be published in draft first of all and laid before the House and would not come into effect until the House agreed to it. That covers the point made by Deputy Taylor and the Minister. It is unreasonable for the Minister not to accept the amendment.

I have been involved in discussing other Bills and have found Ministers taking powers much greater and much more draconian than we are concerned with here in relation to rights and bringing in legislation and making regulations which this House rarely has an opportunity to discuss. Let me cite an instance which has nothing to do with this Bill and I make no particular point about it. Section 31 of the Broadcasting Act has been reviewed by this House every year for very many years but because it is brought forward by negative order we have had no opportunity to discuss it. That is a much more serious power than we are proposing here.

Amendment put and declared lost.
Amendment No. 13 not moved.

Acting Chairman

Amendments Nos. 14 and 15 are related and may be discussed together.

I move amendment No. 14:

In page 17, between lines 40 and 41, to insert the following:

"(c) Notwithstanding anything to the contrary herein contained 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 is an extremely important amendment. It is concerned with the timing of the Actvis-á-vis the date on which a will is made. As the Bill stands, the benefits will not accrue to children under a will made before the date on which the Bill is passed. That is entirely contrary to the whole thrust of the measure. The Bill is designed to bring about as far as possible a position of equality by putting non-marital and marital children in precisely the same position, on the basis that they are all children.

This is a declaratory Bill. We are not creating a new situation. We are at long last recognising a fact, namely that all children are and should be in precisely the same position. To say that those children mentioned in a will made before the Bill is passed are to be treated differently is directly contrary to the substance of what we are about and it maintains a divide which could have very serious implications for many children.

When a man says in his will, "I leave my property to my children", that must mean his children, whether they are marital or non-marital; I do not mind when the will was made. We are giving recognition here after all these years to the fact that children are equal. We are recognising in this Bill that a parent has a responsibility to a non-marital child in precisely the same way as he has a responsibility to a marital child. He has that responsibility to a non-marital child, irrespective of the date on which he made his will.

Let us consider the case of a man who dies, having made a will five years ago leaving his property to his children. If the Bill is left in its original form, extra-marital children will be excluded from the terms of the will. That is entirely wrong and unjust, entirely contrary to the spirit of this measure. The normal rule of law which always applies is that a will speaks from the date of death. That has various implications but I know of no exceptions to it. The position should be that if a man leaves his property to his children, all his children should come under that description, regardless of the date on which the will was made.

Maybe the man who made the will might be annoyed. Let us say he comes back from the grave to complain about what we have done to him and that he appears here in skeletal form to complain. He claims that when he made his will he was referring to his marital children and that we have averted his intent by including his non-marital children. I would say to that cadaver if he reappeared in that situation, "Excuse me, sir, if this is an injustice that has been done, whose fault is the injustice? Is it the fault of your extra-marital child or was it your own fault? After all, was it not you who brought this child into existence? Therefore do you not have the same responsibility to that child as to your marital children?"

We all know that ignorance of the law is no excuse. People are presumed to know the law and if this Bill becomes law in its present form no doubt there will be a fair amount of publicity concerning the date on which a will is made. It is up to any person to amend a will if he is of a mind to do so. People are imputed with knowledge of the law and the law is given publicity by the media when measures are passed. Laws and promises are constantly changed and people have to cope with that situation. Undertakings are often changed by matters arising outside a person's control. I might mention as an aside that many people voted for Fianna Fáil in the last general election because of the express commitment that they would reduce the pupil-teacher ratio in national schools, only to find that the situation is quite the reverse. People set up in business when income tax may be at the rate of 40p in the pound but then it rises to 50p in the pound. They simply have to cope with that change.

A man may have made his will on a particular basis but if he wants to change it he can seek advice. Otherwise we are getting away from the essential current of equality which runs through this Bill. Equality is the essential factor. If we try to draw a distinction between non-marital children and marital children and disentitle the former from participation in their parents' estate because the will was made before the passage of this Bill, we are undermining the true purpose of this legislation. I commend the Government and the Minister for advancing this Bill so strongly but let us do the job properly. Let us accept the proposition of equality of marital and non-marital children. That is an admirable proposal. Let us adopt it 100 per cent and not have any ifs, buts, or any other reservations. We should accept that they are equal. When we say "children" we should say all children irrespective of whether they are marital or non-marital. What is so terrible about that? Are we not saying in the Bill that a child is a child, marital or non-marital?

The Minister has done well in bringing forward the Bill and is enunciating an admirable principle but he should do it properly without reservation, without begrudgery or detracting in any way from that principle. If he does so we will have a sounder piece of legislation that will bring the matter to a logical conclusion in all respects.

The case made by Deputy Taylor is the correct one. The point we should keep in mind during this debate is that the contents of the Bill have been known since 1985 and those likely to be affected by it had ample opportunity to do whatever they felt necessary in order to avail of its provisions in good time or to avoid them, if that was their choice. To exclude wills made before the commencement of the debate on the Bill is unacceptable. As Deputy Taylor pointed out, the date the will comes into effect, when the testator dies, is the important date. Though the two amendments are worded differently the intention in them is the same and I urge the Minister to accept the principle of them.

The Minister is opposed to these amendments for the reasons he explained in some detail on Committee Stage. These are: that it is wrong in principle for the law to change retrospectively the meaning of a will or deed or other disposition. That is the effect that either of these amendments would have.

The principle effect that section 27 of the Bill will have, in practice, is that, in future, people who are disposing of property, whether by deed or will, will be forced to think about the possibility that children born outside marriage may benefit from the disposition. Up to now, disponers of property have not had to take this possibility into account when drafting their dispositions, because the standard rule of interpretation saved them the bother, so to speak. Now, because of the change in the rule of interpretation, they will have to think about it, and if they wish to exclude a person born outside marriage from coming within the terms of the disposition, they will have to make a conscious and deliberate decision to do so.

The fact remains, however, that no law can compel a person making a will to provide for a relation born outside marriage; such a person is free to exclude from the will whomever he or she pleases, on whatever basis. However, the Succession Act, 1965, confers rights on certain persons who are excluded from, or not adequately provided for, in a will. The legal right share of a surviving spouse is an example. Also under section 117 of the Succession Act, 1965, a child of a testator who is so excluded has a right to apply to the court for proper provision from the estate. "Child" in this context means issue in the first degree irrespective of age; and once this Part of the Bill comes into operation, this will also be irrespective of whether a person's parents have married each other. Section 117 of the 1965 Act does not change the meaning of the will, however; it only provides for the modification of the effect of the will, and then only where a child of the testator exercises his or her right to apply, and the court, on such application, exercises its discretion to order that provision be made for the child out of the estate. That provision is contained in section 32. The amendments are considered to be unsound in principle, and, indeed, constitutionally suspect. The Minister, therefore, cannot accept them.

While it is true that a will speaks from the date of death, it must speak in the terms in which it was originally written. If a will was written in terms that were intended at the time of writing to have a specific meaning then it should speak in those terms at the date of death. The courts are always at pains to give effect to the intentions of the testator. That is a cardinal principle of succession law. The Deputies' amendments go directly against that principle and that is what makes them unacceptable. Consequently, I am opposing the amendments.

I was attending a meeting of the Joint Committee on the Secondary Legislation of the European Communities and was unable to make my contribution at the outset of the debate on these amendments. I should like to deal with the reservations expressed in regard to this provision on Committee Stage and today. On Committee Stage I expressed the view that I considered similar amendments to be the most crucial ones that the House were asked to make to the Bill. What we were trying to do was to close the gate that has been opened by reason of the amnesty granted to those who wanted to draw up their testamentary will specifically to exclude children born to them but outside marriage. For three years those people have been aware that we were contemplating changing the law and it was open to them to draft a will before today's date.

The Minister has said that the amendments are wrong in principle, are unsound in law but, with all the force that I can muster at this late hour, I should like to make the point that we are the makers of principle in law. By definition that is what a legislator is and if we are not prepared to make principles of law we should recognise our weaknesses, pack our bags, go home and dare not return to this Chamber again. I accept that it is a new departure to seek to legislate in this way but it is for that reason that we should embrace with enthusiasm the process we are involved in and not run away from it. There is nothing that suggests that the House, the fundamental origin of all laws and principles of law in this State, should not make a new departure. We did so yesterday on the Data Protection Bill which represents a whole new departure in our law, overturning principles, introducing new ones and building a whole new corpus of law.

The token concern about constitutionality is something that the Minister's colleague did not suggest on Committee Stage and I do not think it is one that should be broached now. It has been suggested that the effects of these amendments will be that testators will be asked to rethink their wills. Is that a terrible price to ask them, an exercise that involves signing a will the drafting of which will take anything from one minute to a number of minutes, depending on its complexity? It is a very straightforward affair. The effect of these amendments is to say that our law should impinge on the will at the stage it becomes operative, namely, at the death of the testator. By definition all persons who would be directly concerned are alive and one would presume available to sit down and rethink their position with regard to their testamentary dispositions. I do not see this as an argument against what is being proposed. What we are trying to do is simply redress the position of those children born outside of marriage who would have been adversely affected by design by people who prepared their wills in the interim period since this Bill was first mooted.

It would be very remiss of me if I sat down without making some reference to Deputy Shatter and the Fine Gael Party. He did not for a moment shirk the opportunity to deride myself and The Workers' Party for some of the contributions we made to the best of our ability and judgment, and I must return in part the compliment. He accused us of being in some way suspect in our concern in this area. If nothing else, this amendment exposes the very weak flank of the Fine Gael Party with regard to their universal concern for the rights and status of children, particularly those born outside marriage.

Deputy Shatter has been singularly silent, a remarkable feature in itself, on this amendment. On Committee Stage he addressed it very briefly when he made the point that section 117 of the 1965 Succession Act would be available in the future. The point I made then, and I am making again, is that section 117 is of limited application. It does not establish the full right of position of a child born outside of marriage. It throws onto their shoulders the onus of being the moving party. Therefore, by reason of passing this legislation, in a week's time a will made a week ago will be constructed in the context of, the law as it currently stands, in other words, children born outside of marriage affected in that will, will be excluded from the definition "children of the testator". But a will made next week which will be dealt with in a week's time, should the testator die, will include in the definition "children of the testator" and, consequently, children born outside of marriage. The suggestion that section 117 is a provision to equalise the rights of children is not a fair answer to this issue.

All through the debate we were told we were trying to deal with all areas of discrimination, and as far as practicable to put all children on equal standing after the passing of this legislation. That is not being, and will not be, achieved if we leave the present wording of this section dealing with testamentary dispositions. I do not know if the order of the House allows the Fine Gael Party, in the locquatious presence of Deputy Shatter, to offer some words——

Acting Chairman

I ask the Deputy to stay with the amendment and leave the Fine Gael Party——

I will accept your ruling, but you were not here earlier when I was on the receiving end of the Deputy's comments, I could not let this opportunity pass without making some comment. I do not make my remarks simply to even a debating score. I made my interventions earlier and Deputy Shatter castigated me on them, for the good reason that he believed in what he was saying. I firmly believe that the hypocrisy of the Fine Gael Party has been exposed. There is no doubt whose interests they are seeking to protect.

I have not contributed to this amendment so far but I was very amused by Deputy McCartan's contribution. It was out of consideration for my colleagues who had to listen to my loquaciousness all day that I did not say anything on this amendment.

Deputy McCartan was replying.

Since Deputy McCartan did not move the amendment I presumed he was merely intervening. Deputy Taylor gave a very good reason why his amendment should be accepted and I did not feel there was anything to add to that. Deputy McCartan was out of the House at that time. I am quite happy to be attacked by Deputy McCartan on any occasion but he might hear what is going on before he mounts an attack.

I was also amused to hear what he had to say about the Fine Gael Party. This measure was originally introduced by Fine Gael. Most of the amendments which have been made were pressed by Fine Gael and supported by The Workers' Party, the Labour Party and the Progressive Democrats. Someone once described an attack by one of the current members of the British Cabinet as being set upon by a dead sheep. I feel as if I have been half set upon by a sheep which has not expired yet. Before Deputy McCartan tries to pull the wool over the eyes of Members of this House and the people outside, I want to put on record that I fully support Deputy Taylor's amendment but I have no doubt that from the Minister's response we will not get it enacted.

The point I was making on Committee Stage was that even if this amendment is not enacted children born outside of marriage who are not catered for in wills can make a claim under section 117 of the Succession Act. It is very important that they are aware of that. It is also important if this Bill is passed in its present form that even if these children are excluded under a will from benefiting, because of the way this is defined, at least it should be known by children, lawyers and everyone else that they can still make a claim under section 117 of the Succession Act, 1965, which is something the Minister already referred to.

One would have thought that this measure was one we could have got through without too much party political bickering or divide, but apparently that has not been possible.

The Minister referred to the possible constitutionality of the amendment. I think the amendment is perfectly constitutional. To leave the Bill in its present form might well prove unconstitutional because it will leave two categories of non-marital children. The purport of the Bill was to abolish the concept of illegitimacy and we are not doing that because people mentioned in wills this week, last week or a year ago will have a different status to those whose parents make a will next week when the Bill becomes law. As I said, there will be two categories of people who should be the same because under the Constitution they are entitled to be treated in the same way. That may be unconstitutional. Has the Minister considered this aspect?

The Minister said that as a result of this measure parents will be forced to think about their non-marital children. The enormity of that statement really hit me. What does he mean by saying that they will be forced to think about their non-marital children? They ought to be thinking about them because they are their children, whether they are marital or non-marital; after all, they brought them into being and their responsibilities to them are the same whether they are marital or non-marital children. That is the question to which the Minister should have addressed himself but, regrettably, he did not. Do we say that a parent has a responsibility to a non-marital child? If he has, he has to meet that responsibility by dealing with his will if he has a mind to do so. In the Bill, the Minister is going out of his way to facilitate a parent who is not interested in his non-marital child by changing and amending a basic, long established principle of law that a will speaks from date of death. I do not see why the Minister or any Deputy should go out of their way to facilitate a parent who does not concern himself with the responsibility he has to all his children.

It is implied that some sort of injustice would be done, that there would be something unfair in the intent of the amendment. Where is the unfairness or injustice? I do not see it. If there is any injustice, it is caused by the parent and I do not see why Deputies in this House have to go out of their way to facilitate a parent if he is not meeting his responsibilities. We are telling him that he has — and always had — responsibilities to his child, I use the word advisedly. I am disappointed that the Minister has not accepted the amendment. As Deputy McCartan rightly said, this is crucial to the whole tenor of the Bill and it is an act of begrudgery on the Minister's part in refusing to accept it. He is not wholeheartedly accepting the basic tenet and principle running through the Bill and, therefore, we will have to bring it to a vote.

Amendment put.
The Dáil divided: Tá, 67; Níl, 73.

  • Barnes, Monica.
  • Barrett, Seán.
  • Begley, Michael.
  • Bell, Michael.
  • Birmingham, George.
  • Boland, John.
  • Boylan, Andrew.
  • Bruton, John.
  • Bruton, Richard.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Colley, Anne.
  • Connaughton, Paul.
  • Cooney, Patrick Mark.
  • Cosgrave, Michael Joe.
  • Cullen, Martin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Doyle, Avril.
  • Durkan, Bernard.
  • Enright, Thomas.
  • Farrelly, John V.
  • Fitzpatrick, Tom.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gibbons, Martin Patrick.
  • Gregory, Tony.
  • Griffin, Brendan.
  • Harney, Mary.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Hussey, Gemma.
  • Kavanagh, Liam.
  • Keating, Michael.
  • Kelly, John.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • Kenny, Enda.
  • Lowry, Michael.
  • McCartan, Pat.
  • McDowell, Michael.
  • McGahon, Brendan.
  • Mac Giolla, Tomás.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Molloy, Robert.
  • Naughten, Liam.
  • Nealon, Ted.
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeline.
  • Wyse, Pearse.
  • Yates, Ivan.

Níl

  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Cowen, Brain.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermott.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John.
  • Burke, Ray.
  • Leyden, Terry.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Mooney Mary,
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M. J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.
  • Wright, G.V.
Tellers: Tá, Deputies Howlin and McCartan; Níl, Deputies V. Brady and Briscoe.
Amendment declared lost.

I move amendment No. 15.

In page 17, after line 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 was discussed with amendment No. 14 but I want it put.

Amendment put and declared lost.

I move amendment No. 16:

In page 18, to delete lines 40 to 44.

This amendment deletes section 30 of the Bill and is consequential on the decision on Committee Stage to remove from this Bill the former section 34. That was a section which would have enabled the court to declare the father of a person born outside of marriage unworthy to share in that person's intestate estate. The purpose of section 30 was to confer on the Circuit Court jurisdiction to deal with applications arising out of that provision. Now that the former section 34 has been deleted section 30 is superfluous.

Amendment agreed to.

I move amendment No. 17:

In page 19, between lines 7 and 8, to insert the following:

"32.—Section 109 (1) of the Succession Act, 1965, is hereby amended by the insertion of the following after ‘dies wholly or partly testate':

‘or, after the commencement of the Status of Children Act, 1987, intestate leaving a spouse or children or both spouse and children, the provisions of this part shall have effect, provided always that sections 110 to 116 shall have no application in the case of an intestacy'.".

I have moved a similar amendment on Committee Stage. At the time the Minister told me he would examine the amendment, that he certainly agreed with its spirit, whatever about its wording. He said he would go away and if he could at all would come back on Report Stage having examined the possibility of including it in the Bill. The Minister may have considered it — I do not doubt that — but he certainly has not come back with any recommendations to change the Bill.

The purpose of this amendment is to give children who put themselves out, who look after their parents, a chance to get a greater share of their parents' estate when the parents die intestate than children who simply ignore their responsibilities or who do not look after their parents to the same extent. All of us know that there are many children, particularly many women, who remain at home and look after an elderly parent or parents. When and if that parent or parents die intestate that child or woman gets the same chance or the same equal share of the parents' estate as other children who may have travelled worldwide, who simply ignored their responsibilities or who may not have been in a position to help in any way.

It is grossly unfair. There are many instances of women in their forties and fifties who have been left practically destitute, when a family home has been sold in order that all of the members of the family may get their equal share of the parents' estate. If the parents die having made a will a child who is not satisfied with a portion of the estate they get can challenge that apportionment under section 117 of the Succession Act in order to have a greater proportion allocated to them. In particular, in circumstances in which a parent dies intestate, a child should have that opportunity to challenge the will and get a greater share of the estate in question. It should be a question for a court to decide on what basis each child receives a proportion of the parents' estate. It has been my experience that, when parents make a will, generally they will make better provision for a family member who has given a lot of his or her time to look after them, to provide for them and so on. If we make provision in law for a child to challenge an estate when a will is made, then we have an even greater obligation to provide in law for a child to challenge an estate when no will at all is made.

Failure to incorporate the provisions of this type of amendment in this Bill constitutes nothing short of gross irresponsibility to those children and people who save this State enormous amounts of money because they give of their time so freely to look after their elderly relatives. Many of them remain outside the workforce and receive very little in return. At a time when it costs between £500 and £700 a month to keep an elderly person in a geriatric home is it not right that, in law, we should ensure greater regard for those children and people who put themselves out in this way?

I have no doubt that the Minister will tell us that this is not the correct way to change the law, that some other Act should be changed. We are great in this House at suggesting changes to other measures. We do not often have an opportunity of updating the laws, rendering them more relevant. Certainly we should render the provisions of this Bill more caring in so far as this group of people is concerned. It would be highly irresponsible of us to shirk our responsibilities and not avail of the opportunity this amendment provides to give people in that category a chance of having better provision made for them.

This amendment is opposed. It seeks to achieve the same effect as the Deputy's Committee Stage amendment No. 29a, namely, to extend to intestacies the provisions of section 117 of the Succession Act, 1965, which enabled the child of a deceased person to institute legal proceedings in order to have the distribution of the estate varied.

The Minister for Justice has had an opportunity of considering this matter since Committee Stage, as he said he would. However, he has been unable to change his view that proposals of this nature should be considered in a Bill dealing with succession law generally, and not in this one, the primary function of which is to remove from the law provisions which discriminate against children whose parents have not married each other.

As the Minister pointed out on Committee Stage, this proposal raises important questions about the way in which succession law operates particularly in regard to intestate succession. At present the rules of intestate succession are designed to ensure that, in the case of a parent who dies leaving children, they are entitled to a share of the estate — equal shares of either one-third of the estate if the deceased also left a spouse or, otherwise, of the entire estate. This entitlement is clear-cut and does not need the intervention of a court, with associated legal expenses, in order to establish it.

If we were to change the law so as to permit scope for court proceedings to provide a "fairer" distribution, we must face the reality that in some cases at least the cost of obtaining that "fairer" distribution may place an unfair burden on the estate and may leave a very much reduced amount to be shared. This is one of the considerations that would have to be taken into account in examining a proposal of this nature, but in any case it would not be appropriate to include it in a Bill dealing essentially with the rights of children born outside marriage. Therefore, this is a question for the general succession law and it is the Minister's view that it should be examined in that context.

I fail to understand why the Minister cannot be more sympathetic to my amendment. I accept this is not a Bill about succession but it is one that includes many provisions that will affect succession rights. Essentially it is a Bill about the status of children, but in endeavouring to change the status of some children we have to have regard to matters like maintenance, guardianship and succession. Is it not appropriate that when we have an opportunity of amending the laws we should so amend them as to provide greater possibilities and opportunities for those children and people in our society who go to such trouble to look after their elderly relatives?

One of the reasons the Minister gave for not accepting my amendment was that in the case of people who might have to go to court to establish their rights under the provision this might mean there would be ultimately a smaller estate for distribution. Of course I accept that one must take into account legal expenses and so on, but is it not a fact that if parents die intestate children are afforded an opportunity under section 117 of the Succession Act to go to court to challenge the proportion of the estate left to them? If it is allowed when parents make a will — and, generally speaking, when a will is made greater provision is made for the child who looks after the parents — is it not then more important when no will whatever is made?

I have come across cases — and I know many other Deputies in this House have also — where people have had to sell the family home, the home in which they have lived all their lives, having looked after their parents, never having worked outside it, in order to distribute the estate to the other members of the family. Very often those other members might live in other countries and be reasonably well off. We all know that when it comes to money and distributing the share of an estate left after people die many families are prepared to go to extraordinary lengths in order to get what they perceive to be their share and do not mind what happens to the person who has remained at home. It is wrong that we do not avail of this opportunity to change that, to say to those people who have been so good, who have helped the State by being so responsible when it comes to looking after their elderly parents: we will reward you, recognise your effort; we will give you an entitlement to challenge in law the share of an estate to which you were entitled heretofore. If we were to make provision for an amendment of this kind I have no doubt that people would be more responsible when it came to looking for their share of their parents' estate, that they would honour the responsibilities of the person who has been so good and so willing to stay at home to provide for their elderly parents. As the law stands it is very heartless. Many people whose parents have died without making a will have been shocked and very upset at the way they have been treated by the law and have had to turn to local authorities in order to provide housing for themselves. It leads to terrible disputes within families and to undue hardship on the person who has to look after their elderly relatives. The law is such that instead of rewarding those who make an effort to help their parents it gives them no more than the rest of the family. That is not good enough, especially at a time when it costs so much to have people looked after in institutions of one kind or another.

I did not press my amendment on Committee Stage because I thought the Minister would introduce an amendment along these lines on Report Stage but he has not done so. It is not good enough to use the excuse that this not the right Bill. We always seem to be able to find excuses in this House for not doing things, simply because it is not the right Bill or because we have not consulted enough people about the matter. All the old classic answers are given. We rarely get an opportunity in this House to amend our laws and when we do get such an opportunity we should use it to make the most effective and practical amendments to make sure that the lives of our people are improved as a result and that we do not continue to have on the Statute Book a provision that is grossly unfair to those people, albeit a few people in our society, who have been very adversely affected when no will has been made and their parents' estate is divided equally among all the children.

I appreciate the point the Deputy is making. It is a reasonable point to be considered but it is a matter for the Succession Act.

Amendment put.
The Dáil divided: Tá, 29; Níl, 72.

  • Bell, Michael.
  • Clohessy, Peadar.
  • Colley, Anne.
  • Cullen, Martin.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Gibbons, Martin Patrick.
  • Gregory, Tony.
  • Harney, Mary.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Keating, Michael.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • McCartan, Pat.
  • McCoy, John S.
  • McDowell, Michael.
  • Mac Giolla, Tomás.
  • Molloy, Robert.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Wyse, Pearse.

Níl

  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John.
  • Burke, Ray.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermott.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Mooney, Mary.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Noonan, Michael J. (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Walsh, Joe.
  • Walsh, Seán.
  • Woods, Michael.
  • Wright, G.V.
Tellers: Tá, Deputies Kennedy and Harney; Níl, Deputies V. Brady and Briscoe.
Amendment declared lost.

I move amendment No. 18:

In page 20, line 24, after "person" to insert "not born in the State".

Amendment agreed to.
Amendments Nos. 19 and 20 not moved.

In regard to amendment No. 21 in the name of the Minister, amendments Nos. 22 and 23 are alternatives. Amendments Nos. 25 and 27 are consequential on amendment No. 23. Amendments Nos. 26 and 28 are consequential on amendment No. 21. I suggest that we take amendments Nos. 21, 22, 23, 25, 26, 27 and 28 together. It will be noted that if amendment No. 21 is agreed, amendments Nos. 22 and 23 cannot be moved.

On a point of order, perhaps we could discuss amendment No. 24 as well, as the same principles of argument apply.

Amendment No. 24 is a separate issue. All the other get together.

Agreed to take amendments Nos. 21, 22, 23, 25, 26, 27 and 28 together.

I move amendment No. 21:

In page 26, to delete lines 35 to 40, and substitute the following:

"(2) Notwithstanding subsection (1) of this section, where a married woman, being a woman who is living apart from her husband under—

(a) a decree of divorcea mensa et thoro, or

(b) a deed of separation,

gives birth to a child more than ten months after the decree was granted or the deed was executed, as the case may be, then her husband shall be presumed not to be the father of the child unless the contrary is proved on the balance of probabilities.".

The Minister indicated on Committee Stage that he would look again at the presumption of non-paternity provided for at section 47 (2) of the Bill as it now stands. Deputies had expressed the view that it would be too restricted to confine the presumption that a woman's husband was not the father of her child to cases where a divorcea mensa et thoro had been granted. Having given the matter considerable thought the Minister now proposes amendment No. 21 which would permit a presumption of non-paternity of the husband to arise in addition to where the husband and wife had been living apart on foot of a deed of separation. Amendments Nos. 26 and 28 make consequential changes in the proposed new birth registration provisions to take account of the extended grounds for the presumption.

I appreciate that the requirement of a deed of separation rather than any less formal type of separation agreement would involve the couples concerned in the expense of a formally drawn up deed. I am particularly conscious of the remarks made by Deputies Taylor and McCartan in this regard on Committee Stage. I am anxious to ensure, however, that the presumption arises out of a formal separation agreement the existence and currency of which can be readily ascertained. Were the amendment to refer to a mere separation agreement, or even a written separation agreement as does Deputy Shatter's amendment No. 22, the range of types of agreement that would be encompassed by such description would be so wide as to include agreements of a most informal and uncertain nature, not suited to form the basis of a legal presumption on which people could be expected to act.

The Workers' Party amendments Nos. 23, 25 and 27 would have the intended effect that a presumption of non-paternity of the mother's husband would arise out of any separation of sufficient duration before the birth of the child. This I could not accept because the fact of separation for the appropriate period is often not a self-evident matter and requires proof by the adduction of appropriate evidence. That being the case, the practical, everyday usefulness of such presumption is virtually nil. There is no practical benefit in having a presumption based on something which as often as not requires court proceedings to verify whether the grounds for the presumption exist. On the other hand, the formality associated with the execution of a deed and the fact that the deed and counterpart are retained by each of the parties after being duly stamped means that the presumption of non-paternity will have a firm and certain grounding, the existence of which can easily be verified by anyone concerned, such as the Registrar of Births.

I am also aware that the process of executing a deed of separation is regarded by many couples as a solemn statement that their relationship is finally at an end and is as much a psychological confirmation to them of this fact as it is a contractual settlement of their affairs. Furthermore, it will usually have been arrived at by a process of negotiation between the parties and would deal comprehensively with all matters at issue between them. For these reasons it is likely to be observed by both parties. This makes it particularly suitable for the basis of a presumption of the kind provided for in amendment No. 21.

I welcome the fact that the Minister has come three-quarters of the way with me in the amendment that I tabled on Committee Stage, when I sought to get his agreement to the presumption arising following the conclusion of a legal separation or written separation agreement. The Minister is improving the Bill by the amendment that he has tabled which, by the and large, deals with the areas about which I was concerned.

The reference in my amendment to a written separation agreement would not create a situation where a very simple and formal arrangement would be regarded as such. Often the difference between what would be regarded as a deed of separation or a written separation agreement would simply be that the couple would not have bothered to have the document that they have concluded stamped. That may in real terms be the difference, or its being set out on a particular type of paper as opposed to another type of paper. I am prepared, in the context of the Minister tabling amendment No. 21 which largely implements the intent of my amendment as tabled on Committee Stage and today, to accept the Minister's amendment and to withdraw my amendment No. 22.

The light of reality is becoming quite clear from the point of view of The Workers' Party amendment. It is obviously not something that one would pursue in view of the consensus now arrived at between the Government and Fine Gael in this matter. Nonetheless, I want to take the opportunity to accentuate the points that I made on Committee Stage in relation to the restriction of this proviso to the two events that are covered now in the Minister's amendment, namely, that the presumption arises in the event of a decree of divorcea mensa et thoro being in existence, or a deed of separation. I acknowledge and appreciate that the Minister has responded to the debate as made on Committee Stage. However, the point that concerns me is that both of those events — the obtaining of a decree of divorce a mensa et thoro and the finalisation of a deed of separation — inevitably involve the necessity of access or recourse to the courts or lawyers and that there are many other events of certainty and record that could be relied on in trying to establish some proof of the fact of separation, the order of a District Court or other court barring a person from living at home, for example, being one referred to. The fact that a wife would have to apply for, perhaps, a deserted wife's allowance or maintenance are other events of record that could be relied upon. However, ultimately as both provisions, upon whatever event fixed, allow for the establishment of the presumption to be rebutted in court on a balance of probabilities, recourse ultimately in the determination of an issue in the context of this section would be to the court and would be upon witnesses being called for either party.

It is a matter for a judge ultimately to make the decision whether or not the presumption should apply and whether the court is aided by a fixed record of events or not is secondary to the fact that ultimately in recourse to the court on a balance of probabilities determination, the decision will be determined by a judge sitting hearing all the facts available. Whether a party brings in witnesses or a matter of record or whatever is a matter ultimately for the court. That is a fact which is perhaps being overlooked by the Minister in over-relying upon the need for an event of certainty.

There are many people who have lived apart for a long number of years and have never sought and never want to seek recourse to lawyers, or the court, or, if they did, do not have the money to do so. In the regrettable state of legal aid here they would not be in a position to be actively aided in that regard. Consequently, I asked on Committee Stage that the Minister might consider broadening the matter simply to indicate, where parties lived apart, irrespective of whatever fixed event, of record or otherwise, they created, be it a divorce application, a separation agreement or simply application for a social welfare payment or the obtaining of a barring order or whatever, that they would be entitled to rely upon the presumption that if they lived apart for ten months or otherwise, the husband would not, as a matter of law, be presumed to be the father of the child. However, having realised that both the Government and Fine Gael aread idem on this matter and appreciating that a small degree of improvement certainly was achieved and being happy with that, I shall not press the amendment of The Workers' Party, in view of the fact that I am facing overwhelming odds.

I should like to thank the Deputies for their contributions on Committee Stage and this stage.

Amendment agreed to.
Amendments Nos. 22 and 23 not moved.

I move amendment No. 24:

In page 26, after line 48, to insert the following:

"(4) Notwithstanding subsection (1) of this section where a man and a woman although not married to each other were living together as husband and wife at the time of the birth of a child and were so living together for a period of 10 months immediately preceding the birth of a child, the man shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities.".

This is the final amendment. It deals with the presumptions with regard to paternity. It seeks to insert a new section in the Bill which would be subsection (4) in the relevant section.

This is to seek to assist the court in establishing the issue of paternity. It would be of assistance in the situation which Deputy McCartan described where a couple are living apart but might not have got a decree of separation or might not have concluded a separation agreement. The wife may now be living with someone else and may have lived with that person for three or four years and a child is born to them. As a result of this provision the man with whom she is residing would be presumed to be the father of the child and in a sense this approaches Deputy McCartan's problem from a different basis. It also ensures in those circumstances that the husband of the woman would not be presumed to be the father of the child even though a decree ofa mensa et thoro or a deed of separation has not been obtained.

This presumption is identical to a presumption which has been enacted in the law of a number of other countries and it would facilitate the establishment of paternity in a wide variety of circumstances. The fact that a couple neither of whom have ever been married are cohabitating for ten months prior to the date of the birth of a child would give rise to a presumption that the man is the father of the child. Where a couple are cohabitating for ten months or longer and a child is born to them and where one of the couple is married to someone else, it would be assumed that the man in the home is the father of the child born to such a couple. It is an evidential matter and it is not a matter which would bind the court finally. It would raise a presumption that someone is the father of a child where it appears largely to be the case that he would be adjudged to be the father. Nevertheless if the man says he is not the father he would in those circumstances have the opportunity of disproving paternity in the courts and would have the full panoply of this Act available to him, including blood tests, to determine paternity.

Having praised the Minister a few moments ago for coming some of the way with us on the previous amendment, I am disappointed he has not indicated he is going to accept this amendment also. On Committee Stage he said he would consider this matter. It is a practical provision to deal with an evidential matter and it will assist children in the establishment of the identity of their father and will also assist mothers, where there is a need to establish that someone is a father for the purpose of getting maintenance support, in establishing who is the father. Where disputes arise over guardianship or custody of children born outside of marriage it will assist a person who is a father in securing a guardianship order or an access order to a child in circumstances where there is some doubts raised as to paternity. I urge the Minister to consider accepting this amendment.

I will be exceptionally brief and I simply rise to say that this amendment is very worthy of inclusion in the Bill. It clarifies yet another of the various situations in which the parties may find themselves. It is desirable in the context that this section raises presumptions with regard to facts which exist primarily because we do not have divorce and the right of remarriage in our jurisdiction and we have to rely on what is a second best, but which nonetheless is a very essential and important consideration, and that is this presumption which has been put before us by Deputy Shatter. I hope this will be the last amendment we will discuss in this momentous legislation. It has been an honour to take part in this debate in this House on the various Stages of the Bill. It would be a singularly fine gesture by the Government, which would appreciate and reflect not just this very good debate but the excellent debate in the Seanad where the Bill was approached in a very constructive way on an all-party basis, if the Minister would make one small concession to those of us who are here in the interests of seeking to bring the legislation up to the standard which it should be at. I am not in any way reflecting on poor workmanship but this is an important, though small, amendment which covers an area which may not have been considered important at the time because of a oversight. It is something which we should pursue and I ask the Minister to consider it. As a gesture of magnanimity I hope that he accepts the amendment.

A man of great expectations.

The amendment is opposed. As I pointed out on the last group of amendments, for a legal presumption to be of any practical use, it must arise out of readily ascertainable facts and itself be of general application without the need for further evidence. The presumption of paternity arising out of marriage satisfies these criteria and is of practical value both to the courts and in everyday life.

The difficulty with trying to create a presumption based on cohabitation other than married cohabitation is that it is not readily provable that a man and a woman have been living together as husband and wife. Take, for instance, the common case where a father and daughter, or a brother and sister, are sharing a home. If the woman has a child, is the existence of the legal presumption proposed by the Deputy to cause the finger of suspicion to be pointed at the man who is sharing the house with her? It cannot readily be said with certainty they were not living together as husband and wife nor can it readily be said they were living together as husband and wife. A presumption of paternity is useless in such circumstances since the facts on which it is sought to base the presumption are too vague and indeterminate for that purpose. At most, one could draw no more than a inference from them.

The example I quoted illustrates the difficulty that arises with a proposal of this nature. Similar problems arise in relation to any two people of opposite sexes who share accommodation without being married to each other.

Considering today's proceedings it is not unfitting that we conclude on a comical note. The amendment which I have tabled is identical to a provision — again I refer to it as it is one of the seminal Acts in this area — in a New Zealand Act relating to the status of children where a presumption arises with regard to paternity on a similar basis as we have where a couple have resided together as husband and wife. The Minister asks, does that mean that where a man is residing with his daughter and if the daughter becomes pregnant there will be a presumption that he was residing with his daughter as husband? I would imagine that a man residing with his daughter would be presumed to be residing as father and not as husband, just as if I was residing in my home with my elderly grandmother I would be presumed to be residing with her as grandson as opposed to residing with her as husband.

Deputy McCartan as usual was being an optimist but one learns the longer one is in this House not to have any great expectations as to what response one may receive on any particular issue. A magnanimous gesture in accepting this amendment would have sent us all home in a state of shock but nevertheless it is unfortunate that the Minister should produce such a comical reason for not accepting the amendment. I would hope, a Leas-Cheann Comhairle, that if you ever find yourself on holidays with your daughter, if you have a daughter, it would not be assumed that both of you had gone off on holidays to reside together as husband and wife. Indeed, I do not think anybody in this House would impute such behaviour to you or to any other Member of this House. That illustration shows just how comical and nonsensical is the Minister's objection to this amendment. The purpose of this presumption is to assist in the establishment of paternity. In some instances it would be in the interests of the mother to rely on it, in others it would be in the interests of the father and in others it would be in the interests of the child.

It is not a matter of great difficulty for this presumption to arise. The Minister says you could not have proof that a couple who are not married had been living together for ten months or more. It is relatively simple. Where a dispute arises a man will go into the witness box in a court and will agree that he was living with the woman for the 12 months before the birth of her child and the woman will agree and say that he was. Then the presumption arises. If the man says he has not been living with the woman and the woman says that he had been, the presumption could not arise unless there was irrefutable proof they were residing together. If such proof is established and these are matters which are dealt with on a daily basis in our courts, a presumption would arise.

I do not see this as a matter of great complexity and clearly the Minister does not either because he produced what has got to be the daftest objection we have had all day to any of the amendments which have been tabled. That is the way things happen in this House. Possibly in the future this amendment will be used by a Government of a different persuasion as a means of improving what we are now going to enact into law. It is clear from the Minister's response that we are not going to enact this amendment, and that is regrettable. It would facilitate the courts where disputes arise about paternity in establishing paternity, nevertheless if the Minister will not accept the amendment it is clear that the amendment will not succeed.

While I welcome the fact that we have accepted a number of amendments today which came out of the Committee Stage debate, some of which will improve the Bill, it is regrettable that a large number of amendments which could have improved this Bill greatly, including this amendment, have not obtained the Government's support. I hope that during the lifetime of this Dáil as we mature politically we will find a more cooperative response from the Government in dealing with legislation particularly in the social area, in introducing reforms and in future accepting amendments that are of a constructive nature and which seek to improve legislation.

Nevertheless, enacting this Bill will be a milestone in our social legislation. The legislation was introduced into this House by my party, by a colleague of mine in the last Government. I welcome the fact that this Report Stage debate will now conclude. I am sorry that the Minister cannot make the gesture of accepting this amendment. I invite him, by way of a one line response and as a final gesture in the direction of what were most important Committee Stage and Report Stage debates to which a large number of Deputies have contributed, to acknowledge the importance of debates such as this and to indicate that he accepts that this House has some relevance in the enactment of legislation and amending it so as to improve it, by accepting the amendment as tabled.

The Chair will agree to the Minister's responding to the invitation. Whether it is negatively or positively is a matter for himself.

The Minister foresees too many difficulties in defining co-habitation in these circumstances and for this reason he is not prepared to accept the Deputy's amendment.

Do I take it that notwithstanding the alleged comicality and the absence of magnanimity, Deputy Shatter——

I ask that the amendment be put.

Amendment put and declared lost.
Amendment No. 25 not moved.

I move amendment No. 26:

In page 28, line 31, after "a mensa et thoro”, to insert “or a deed of separation, as the case may be,”.

Amendment agreed to.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 30, line 9, after“a mensa et thoro”, to insert “or a deed of separation, as the case may be,”.

Amendment agreed to.

When is it proposed to take Fifth Stage?

Anois.

Agreed to take Fifth Stage today.