Seanad Éireann debate -
Wednesday, 14 May 1930

Vol. 13 No. 20

Public Business. - Illegitimate Children (Affiliation Orders) Bill, 1929—Report Stage.

Mr. Comyn

I move:—

Section 2, sub-section (1). After the word "mother" in line 30 to insert the words "or next friend."

Section 2, sub-section (1). After the word "child" in line 32 to insert the words "or in case the mother is dead by any person who has actual knowledge of the facts stated therein, including a dying declaration of the mother."

The object of these amendments is to provide for a case of the greatest possible hardship which seems to have been overlooked in the drafting of the Bill. As the House is aware the object of this measure is to provide for illegitimate children, and to secure that the father of an illegitimate child shall pay for the upkeep of that child. In the drafting of the section, by inadvertence I am sure, it was overlooked that a case might arise where the mother died in childbirth. That case is not provided for in the section at all and it is the hardest case that can possibly be imagined because, when the mother dies, an infant is left without lawful father or mother, brother or sister, nobody's child, nobody's brother, absolutely friendless in the world. Kindly nature sometimes makes such children strong so that they will be able to combat the adverse fortune in which they came into the world. That is the child I propose to protect by this amendment. The section reads:

(1) Upon the application, within the time hereinafter limited, of the mother of an illegitimate child or on the application, within the time hereinafter limited, of a local body administering the relief of the poor then giving relief to the mother of an illegitimate child or to an illegitimate child and in either case upon an information in writing upon oath being made by the mother of such child identifying the father of such child the Justice of the District Court....

The Justice shall make the necessary order. You will observe that the mother must make the information. Take a case where the mother dies, as frequently happens unfortunately in childbirth, there is no provision whatever for the child that survives. These two amendments which I ask leave to put to. gether provide for that particular case. In the first amendment I propose to insert "or next friend" of the illegitimate child. In my opinion that is sufficient although it has been suggested to me by Senator Brown that probably some definition of the words is required. The mother must swear the information. As to the second amendment, by Section 2 it is a condition precedent to the right to make an application for relief that there should be a sworn information by the mother: "Upon an information in writing upon oath being made by the mother of such child." I do not know the object of that provision. Perhaps the object was to get the oath of the mother identifying one man, so that thereafter she would not be able to make an oath identifying another man and so as to prevent the danger of blackmail. Perhaps that is the reason the section was framed in that way. Whatever the reason was my amendment is designed to provide for the case where the mother dies in childbirth. I would substitute for the oath of the mother the oath of some person who can swear positively to the fact including the fact of a dying declaration by a mother.

Here is the case I intend to provide for: a mother is on the point of death and a doctor or a priest is there and just as she is gasping out her last breath she tells the doctor or the priest the name of the father of the child. What I propose to do in such a case is to enable the doctor or the priest, or some credible person, to give evidence of that dying declaration. Of course a dying declaration is a highly credible thing. Men have been executed on the strength of dying declarations. They are regarded by the courts and by lawyers as of the greatest sanctity and in cases of murder and manslaughter dying declarations are allowed. These are the most serious cases that come before the courts.

Dying declarations are not,—and I think I am practically right in saying this—allowed in any cases except murder or manslaughter. I propose that a dying declaration should be allowed in this case to meet the particular hardship of cases where a child survives and the mother dies. That is the way I propose to carry it out. It was as good as I could provide for in the circumstances. I do not wish to urge the amendment further than it appeals to the minds of Senators. It was mentioned in the course of the debates that here was a case of the greatest hardship that ought to be provided for in some way. I have endeavoured to do so and I leave it to the judgment of the Seanad.

Mr. Connolly

I second.

Mr. Brown

I think a very large number of the members sympathise with the Senator in the effort he is making to provide a remedy in the case he has mentioned where the mother is dead and the child lives. The difficulty is to see how it can be possibly carried out. He will not carry it out simply by inserting the words "or next friend" after the word "mother" in line 30. An application is never made by a next friend. The person who makes the application is the person who happens to be the infant himself or herself by a next friend, and in order to carry out what the Senator wants he would have to move the insertion of these words in line 30. "The mother, or in case the mother be dead, the infant by a next friend." Supposing he was able to get over that difficulty there is then the almost insuperable difficulty of providing the case when the mother is dead. He proposes to do that by allowing the initial declaration which has to be made by the mother (if the mother is alive) on oath, to be made by some one who has knowledge of the facts and to include in the facts that a dying declaration was made by the mother identifying the father of the child. As the Senator pointed out there are only two cases in which a dying declaration is admissible. It is hearsay evidence, merely telling what some person heard a dying person say, and it is admissible only as a necessary exception to the rule as against hearsay evidence. It is only admissible under common law in cases of murder and manslaughter and under very strict conditions. That is to say that the person who makes it must be someone who has an unqualified belief at the time that he or she is without any hope of recovery and almost immediately before death.

The dying declaration that the Senator wants to make admissible in this case would have to be made under the same circumstances in order to have it admissible. There is no common law with reference to cases of this kind, and if he wants dying declarations to be made evidence, I am afraid he would have to prescribe in this Bill the necessary conditions which make dying declarations relevant. These are the difficulties that I see. I would be very glad personally if they could be got over by the House and I think it is a great pity we had not an opportunity of discussing this at an earlier stage when the Bill was in Committee. These are the difficulties that I see, and if they can be got over I would be very glad to vote for the amendment.

Mr. Comyn

Senator Brown has very concisely and very clearly stated the difficulties that there are in the way of the amendments. I have not defined what a dying declaration is. I leave it to the Courts to decide what it is, because, as the Senator pointed out, this question of a dying declaration, and of evidence, is not statutory. It is common law depending on decisions. The decisions are there, and rather than involve this House in a long discussion as to the meaning of a dying declaration, in order to get this amendment through, I am willing that the construction should be left to the courts. In view of what Senator Brown has stated, and of the great importance of the amendment—I make bold to say that it is of considerable importance—I will be quite satisfied if this section is recommitted, when Senator Brown and myself would probably hammer out something that would meet the case. This amendment was not originally my suggestion. It transpired in the course of the first debate that here was a case of the greatest hardship that should be met some way or other. I leave the amendments to the House. My responsibility for them ceases now that I have explained them.

Minister for Justice (Mr. Fitzgerald-Kenney)

I appreciate the force of what Senator Comyn says. I perfectly recognise that as the Bill stands there may be a case in which a child would be left unprovided for, and I appreciate the motive which inspired Senator Comyn in this matter. At the same time I would ask the Seanad to reject the amendment. The Senator was not quite accurate when he said that it was by inadvertence that this was left out of the Bill. As a matter of fact, amendments almost similar in words to these two amendments were put up in the Dáil and rejected by the Dáil, so that there is no question of inadvertence in the matter. It has been already before the other House and been fully debated. My position is that I have to look to the position not only of the child but also of the man who is charged. I do not think that you could with safety find any man to be the parent of an illegitimate child except upon the oath of the mother of that child. You may get persons who actually compromise themselves, but even that would not show that the particular person was the father of the child, for the woman may have been a loose woman. I need not develop that further. Nobody except the mother herself knows. That. I think, is a principle which is embodied in this Bill and which we ought to keep there—that nobody shall be found to be the parent of an illegitimate child except upon the oath of the mother. I would like to go further on the question of a dying declaration.

I completely agree with Senator Brown as to the principle of the criminal law which makes a dying declaration admissible, but that could not be transferred except expressly by this statute to civil proceedings. But I think it would be a terrible innovation in our law to bring into this Bill a dying declaration, a thing that has never been heard of in civil proceedings in this country before, and never been heard of in criminal proceedings except in the limited cases of homicide. I think it would be a dangerous principle to bring in. It may be true that courts think, and rightly think, that a person who has given up hope of this world will not lie. That may be, of course, correct, but you must bear in mind that that person is not making the statement to the court. It would be given by somebody else and not by the dying person. It may be given by the father, mother, sister or other relative of the dying person. It may not be true. Somebody may get up and say this woman made a dying declaration, and swear to the terms of the dying declaration, when she may never have made a dying declaration at all. The easiest thing on earth would be to invent a dying declaration. I think it would be extremely dangerous to allow that principle to be brought in.

I would like to give one concrete example of a case in this country in the last couple of years. A girl aged under sixteen was the mother of an illegitimate child. She stated to the doctor and nurses who were attending her in childbirth that so and so was the father of that child. We will call him A. She subsequently some time afterwards declared that not A but B was the father of her child, and that her first reason for bringing a charge against A was that B had told her to do so, and that she was acting under B's influence. B was tried and found guilty by a jury in spite of his previous statement about A. The case went to the Court of Criminal Appeal and the conviction was affirmed. The girl's father subsequently brought an action for seduction against B, and again obtained from the judge and jury a verdict against B. Therefore one may take it for certain that B was the father of the child, yet the girl had stated to the doctor at the time of childbirth that A was the father of the child. That is a concrete case, which shows the dangers you may run into in this kind of case. It is hardly twelve months since that case went to the Court of Criminal Appeal.

I submit to the House they would put a man very much in the power of unscrupulous relatives of a woman, and also very much in the power of a woman who would act as the particular woman I mentioned in this case did act. In the first instance, I submit that this would be a very dangerous principle indeed to bring into the law, and I ask the Seanad to reject it. I am perfectly aware of the fact that it may work out as a hardship if the mother dies and the child is left unprovided for, but I think you must choose the lesser of two evils and the lesser is the course I propose. That is, that the oath of the mother shall be necessary before any tribunal decides the parenthood of the child.

Mrs. Wyse-Power

In the case cited did the mother die?

Mr. Fitzgerald-Kenney

No.

Mrs. Wyse-Power

But we are not dealing with a case like that.

Mr. Wilson

If the expectant mother makes a sworn declaration before the child is born that would meet the difficulty.

Colonel Moore

I am inclined to vote for the amendment. A judge and jury would not be inclined to accept a statement of some person on oath except there was corroborative evidence, and after consideration of the fact whether it was likely to be true or faked. The mere statement of any one person will not finish the matter.

Mr. Comyn

What the Minister has said simply shows the imperfection of evidence and the uncertainty of it. The Minister has stated that a girl when in the extremity of pain mentioned one man, and afterwards when in good health mentioned another and succeeded in making that other man responsible, but as to whether he was responsible is a matter which is still open to doubt, although the Minister thinks it is not. Moreover, the oath of the mother does not finish the question. This Bill gives other safeguards to the man who is charged, because it provides that the oath of the mother shall not be taken as conclusive in any case, and that it must be corroborated in all cases. A section has been introduced expressly for that. It states:—

(2) No Justice of the District Court shall be satisfied that a person is the putative father of an illegitimate child without hearing the evidence of the mother of such child and also evidence corroborative in some material particular or particulars of the evidence of such mother.

As Senator Colonel Moore has pointed out, if a dying declaration is brought before the court the judge will examine and cross-examine and satisfy himself that there is no manner of doubt whatever that the tongue which purports to give the terms of the dying declaration is a truthful tongue. I urge the Seanad to accept the amendment. I think the fears of the Minister regarding it are not well grounded. I would again suggest that the Report Stage might be adjourned for a week so that we may have the opportunity of devising some further safeguards which would satisfy the Minister or any reasonable person that the position of the man accused would be safeguarded.

Mr. Jameson

How does the Senator propose to make his amendment in accordance with sub-section (2) of Section 3? How could the justice comply with that sub-section in the face of the amendment?

Mr. Comyn

I have another amendment to sub-section (2).

Mr. Jameson

We have to consider these amendments more seriously than we are doing. The point the Senator has drawn attention to is a clause which is in direct opposition to the amendment.

Mr. Comyn

If my amendments, 1 and 2, are accepted, it will be necessary if the House is logical to accept amendment 6.

Mr. Jameson

As I understand it, if we accept the amendments proposed we are destroying sub-section (2) of Section 3, as the principle of the sub-section would be entirely done away with.

Mr. Fitzgerald-Kenney

You do away with the principle of corroboration.

Mr. Jameson

And do away with the principle that the House has already passed.

Mr. Comyn

I do not like to discuss the 6th amendment at the present time, but I do not propose to do away with the principle of corroboration.

Amendments put and, on a show of hands, declared lost.

Mr. Milroy

I propose Section 2, sub-section (2):—

To delete the word "twelve" wherever it occurs and to substitute therefor the word "six."

This amendment is really consequential on a change which took place in Section 2, and which substituted six months for twelve months.

Mrs. Costello

I second it.

Amendment put and agreed to.

Mr. Comyn

I move:—

Section 2, sub-section (2). After paragraph (c) to insert a new paragraph as follows:—

"(d) where the mother of such child was within the period prescribed by this Act for making such application of unsound mind within three months after such person becomes of sound mind, or".

Sub-section (2) provides for the time within which an application for the issue of a summons or other process under Section 2 may be made: (a) before the birth of the illegitimate child in respect of whom the application is made, or (b) within six months after the birth of the child, (c) where the alleged father of such child contributed to the maintenance of such child within twelve months after its birth, at any time after such contribution, or, and so on.

I think the amendment explains itself. It sometimes happens that the girl gets mentally deranged for some time after the birth of the child. The object of the amendment is not to keep her out of a remedy because of that infirmity of mind. It is intended to provide that she shall be at liberty to bring her case within three months after she gets well. I submit the amendment to the House without any comment, except to state that it ought to be accepted.

Colonel Moore

I second.

Mr. Fitzgerald-Kenney

As I said in the Dáil, puerperal fever does not last for such a long period as six months. It lasts for only a very short period. The practical working of this would, I am afraid, give very considerable difficulty. Suppose that the six months had elapsed and that a woman came along with a charge and said: "Part of the time I was insane"—it is very difficult to say when a person is insane—it would be very difficult to carry that out. Secondly, suppose that a woman had become insane and remained insane for five or six years, it would be very difficult and very unfair to ask a man to deal with what had happened five or six years before. If the Seanad inserted an amendment of this nature we certainly would need to have a final time limit.

Mr. Comyn

Is there not a final time limit?

Mr. Fitzgerald-Kenney

Not so far as the Senator put it. A woman might not recover for ten years. If a man had to meet a charge ten years old it would be an impossible thing to do.

Mr. Comyn

If extreme and absurd cases of that kind were to be considered we could not have any legislation at all. I would remind the House that, after all, this is only a statutory limitation. I simply wish to bring these amendments forward for the consideration of the House, but I submit that the Minister has not answered the objections.

Amendment put and declared lost.

Mr. Comyn

I move amendment 5:—

Section 2, sub-section (2). After paragraph (c) to insert a new paragraph as follows:—

"(d) where the mother of such child was not resident in Saorstát Eireann at the date of the birth of such child and the alleged father was domiciled in Saorstát Eireann within three months after the return of the mother to Saorstát Eireann and not later than six months after the birth of such child, or".

This amendment also deals with the statutory period of limitation within which claims of this kind are to be made. It deals with a class of case which I am sorry to say is very frequent, the case of the mother of a child flying to another country to hide her misfortune. In the sub-section there is a final limitation of six months. The object of the amendment is to give her three months after she comes back to Ireland, or six months from the date of the birth of the child, within which to make her application.

Mr. Brown

The amendment is quite unnecessary, because under sub-section (2), paragraph (b), she can do it, no matter where she was at the date of the birth, within six months.

Mr. Fitzgerald-Kenney

Suppose she is out of Ireland and comes back when the child is a month old, then instead of having six months the mother will have only four months. If she is outside of Ireland she has to bring the application within three months of her coming back. The effect of that might be to cut down, rather than to extend, the period allowed her.

Amendment, by leave, withdrawn.

Amendment 6 not moved.

Mr. Comyn

I move amendments 7 and 8:—

7. Section 10, sub-section (5). To delete the sub-section.

8. Section 10, sub-section (5). To add at the end of the sub-section the words:—"Provided that where the mother is dead or under any legal disability the application may be made by the person having the custody of the child and the information shall not be required."

This is the section that provides for the registration of voluntary agreements between the father and mother for the maintenance of an illegitimate child. Sub-section (5) of the Bill, as it stands, reads:—

(5) Before the mother of an illegitimate child in respect of whom no affiliation order has been made under this section applies to a Justice of the District Court for his approval of an agreement she shall make an information in writing upon oath identifying the admitted father as the father of such child and the making of such information shall be a condition precedent to the making of such application by such mother.

I could never see the meaning of that sub-section because really where there is an agreement between the parties as to the maintenance of a child I think it is in the interests of justice that it should be possible to register it in court. I think that sub-section (5), as it stands, is a great impediment to the registration of these agreements. I do not think it was a desirable provision to put into the Bill, and the object of my amendment is to remedy some of its defects.

Cathaoirleach

It is desirable I think that we should first have the decision of the House on Amendment 7, and then I shall take Amendment 8.

Mr. Comyn

Very well. The amendment is intended to cover a case like this. An illegitimate child is born in the house of the grandmother or the grandfather as the case may be. The putative father is paying 5/- or 7/- a week for the maintenance of the child, and there is an agreement to that effect. I think it is desirable that these agreements should be registered in court so that there may be no mistake about them, and so that there may be a record of the transaction. You must remember that you are dealing with an infant, and in case the grandmother, the parent or whoever the person may be who has the custody of the child dies, the evidence of that agreement may be lost.

I think it is desirable that evidence of that agreement should be preserved, and for that reason I think sub-section (5) ought to be deleted.

Colonel Moore

I second.

Amendment put and declared lost.

Mr. Comyn

I have already moved amendment 8. All that I intend to say on it I said earlier. If the House is of opinion that these agreements ought not to be registered, then, of course, it will not accept this proviso. The amendment to me appears to be reasonable, and I hope the House will accept it. What I am seeking in the amendment is to have it made clear in the Bill that where a certain agreement has been made, and where "the mother is dead or under any legal disability, that the application may be made by the person having the custody of the child and that the information shall not be required."

Colonel Moore

I second.

Mr. Jameson

As Senator Wilson has already pointed out, it is the mother herself who would create all the difficulty. There is nothing to prevent her, if she wants to have an order made, going before the District Justice and giving the information necessary to comply with the Act. If she does not do that, and if after her death it cannot be done because of her neglect during life, then there is no one to be blamed for that but the mother herself. The Bill seems to make all necessary provision to help the mother to get an affiliation order. If, by her own act, she does not take the necessary steps to get that order, then I do not see why we should alter legislation to meet difficulties put in the way by claimants themselves.

Mr. Comyn

Senator Jameson, with all his great experience, and his great wisdom, does not seem to know as much about cases of this description as those of us practising in the courts. The object of the amendment is not to provide for the mother but for the child. The case I wish to provide for is that in which the mother is dead and the child alive. As I have said, agreements are sometimes made between the putative father and the mother.

These agreements are sometimes made in private and they are not registered. Either the putative father or the mother may have an objection to their registration. In the course of years, and after the agreement has been made, the mother may die. The object of the amendment is to provide for the protection of the child, that if the mother dies it shall be competent for the child, or some person acting on its behalf, to get the agreement come to registered.

Mr. Johnson

I cannot understand what application this proviso has to sub-section (5). It seems to me that the sub-section only deals with the question of information upon oath. If the object which the Senator has explained to the House is to be given effect to, then I think that the proviso ought to be to one of the earlier sections. If one reads the sub-section and looks at the proviso, I think he will find there is not very much sense in it.

Mr. Comyn

The amendment reads: "Provided that where the mother is dead or under any legal disability the application may be made by the person having the custody of the child and the information shall not be required." There is no necessity for an information where the mother is dead, and therefore it would be quite impossible for them to make an information against another person.

Mr. Fitzgerald-Kenney

The whole principle that underlies this Bill is that the mother should make a statement on oath that so-and-so is the father of her child. That oath is looked upon, and ought to be, a safeguard to some extent that false charges will not be made. I do not see that the case that Senator Comyn has put forward could ever in fact possibly arise. If, under an agreement in writing, a man has been paying for many years he is certainly not going to stop paying. If the mother has trusted him for all these years, and he has kept paying during all that period, it is extremely unlikely that suddenly he will turn around and stop paying. Who is to know if it is a secret matter between the mother and the father? The reason for non-registration is because it is kept secret. If the mother dies who is to verify the whole business and the whole arrangement which is only known to the two?

Mrs. Wyse-Power

Would the fact that payments had been made under a secret agreement be accepted as a reason in court why the payments should continue in a case, say, where the mother had died?

Mr. Fitzgerald-Kenney

The mother must first bring her action within six months, or else there must be an agreement—one or the other. Take the case of an agreement. The fact that the putative father had been paying for years could not be taken into consideration, because such a case could never come into court.

Mr. Comyn

Why not?

Mr. Fitzgerald-Kenney

Because it would be over the six months.

Amendment put and declared lost.

Fifth Stage ordered for Wednesday, 21st May.