Is the Minister satisfied that the mother of an illegitimate infant has power to appoint a testamentary guardian?
Guardianship of Infants Bill, 1963—Committee and Final Stages.
Sections 1 to 5, inclusive, agreed to.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill".
That is my opinion. Is the Minister quite satisfied?
Yes.
The whole import of the section, particularly subsection (1), does somewhat disturb me a little. I know it is the accepted law here and in England now, but one feels in respect of those families where there is this difference between the father and the mother, and they are now both legally guardians, with equal power, it will create possibly a series of applications to courts which will perhaps leave matters worse than they were before. I do not know any other remedy. I should rather put it in such a way that the father was the guardian and in exceptional circumstances the mother could apply to the court.
Article 42 of the Constitution does at first sight give both parents equal rights. The words in the Article are "duty to provide" for the infants. It seems to me that it does rather upset our conception of family life in this country.
It may be that the rights of the female member of the partnership or the rights of women all down through the past 100 years, or less, have been growing into equality with those of the male. In family life one would perhaps like to see one or the other— possibly, in a lot of cases the mother would be more important a figure, at least in the younger life—being given the guardianship except in the exceptional cases.
Where the father and mother of an infant shall be guardians of the infant jointly, it worries me slightly that, in those families where there is more or less incessant disagreement between the father and the mother, this will not assist the matter at all. An application to the court in exceptional circumstances would have appealed to me much more.
I should like also to refer to subsection (4). One point occurs to me: the mother of an illegitimate infant shall be the guardian of the infant. The mother can appoint a guardian on her death, by will or deed presumably. If she has a right of maintenance against the natural father of the child, on her death, will the guardian also have that right?
I also am interested in the point made by Senator Cole in regard to subsection (4). The mother seems to be faced with the complete responsibility. Even though it is an illegitimate infant, what further safeguards are taken for responsibility? How far does the law in such a case make the father face up to his responsibility?
In this section we are really only giving effect to what the Supreme Court decided in the Tilson case. Senators will recall the judgment of the Supreme Court in that case. It included the statement that the principle to be derived from Article 42 of the Constitution was that the parents have a joint power and duty in respect of the religious education of their children and that parents, in this context, could not be construed in some generic sense that included only the father when he was living. That was a Supreme Court judgment in 1951. In effect, what we propose here has been the law since 1951; the parents have equal rights in regard to the guardianship of their children. However, I make no bones about the fact that I think the situation where the father, just because he is the father, has some superior rights over the mother in this regard is indefensible and I regard this section now as putting right, if you like, a wrong that has existed for centuries. This is the final step, I think, in the achievement of equality of the sexes in this regard.
Senator Cole has posed a question to which I have not got the answer readily available, but, offhand, it would seem to me that the guardian should be entitled to the same contribution as the natural mother. I do not want to be dogmatic since it is not really a matter for this Bill; it is a matter for the law governing maintenance.
It is possible at the present time to make maintenance payable to a person other than the mother.
That would seem to indicate that the answer is "Yes". I do not want to be dogmatic about it, but, as I said, the guardian would seem to be entitled to the same contribution.
Question put and agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
Subsection (3) of this section provides:
A testamentary guardian shall act jointly with the surviving parent of the infant so long as the surviving parent remains alive unless the surviving parent objects to his so acting.
How is the objection supposed to be made?
What we have in mind is a simple objection. Then, if the guardian wishes, he can apply to the court to have the court determine the matter. I think the Seanad will agree that here we are leaning very heavily on the side of the parent. The situation will be that a simple objection by the parent will dispense with the appointed guardian, unless that guardian can establish to the court that it is desirable that he should continue to act.
Is it envisaged that the objection will be made to the court or made officially?
A simple objection in any form will suffice.
I am a parent; I write to the guardian and say I object to his acting?
If the guardian wishes to assert his rights, he must go to the court.
Yes. In that way we are leaning on the side of the parent.
Subsection (7) amends the Wills Act of 1837 by enabling a parent under 21 years of age to make a will appointing a testamentary guardian. I do not take the slightest objection to that. I think it is the logical thing to do. A person who is married, even though under 21 years of age, should have the right to appoint a guardian. I am in agreement, therefore, with the amendment of the Wills Act. I do not know, however, why the section did not go a little further and give the person under 21 years of age the right to appoint such a guardian by deed. As I understand it, a person under 21 years of age cannot execute a valid deed. At least, such a deed can be set aside if called in question subsequently. While a young person of 17 or 18 might be rather slow to make a will such a person might execute a deed appointing a guardian. I do not know if the Minister and his advisers are of the opinion that a person under 21 can execute a valid deed appointing a guardian. I am inclined to think that he or she cannot.
The existing law is that a deed appointing a guardian is regarded as a testamentary instrument.
Is there any statutory or case law to substantiate that?
I think that is the position in common law.
The point is mentioned in Halsbury. There have been cases in which it was regarded as a testamentary document but not admitted to probate.
If there is any doubt about it——
I do not think there is.
——it can be put beyond doubt by the addition of two words in this subsection.
Subsection (8) also has a bearing on this question.
I do not think so. Subsection (8) has nothing to do with it.
The law in regard to subsection (8) is declaratory of the present position.
It deals with appointments in general.
Normally, as the Senator knows, a deed is irrevocable, but the present law is that a deed appointing a guardian is a testamentary instrument and as such can be revoked by a subsequent instrument of a similar nature.
I never had occasion to investigate this, but, as I have already said, if there is any doubt, now is the time to clear it up.
I do not think there is any doubt but we shall consider it.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
On section 8 (2) a very important point arises. There is a lot of good in this Bill and I agree with the Bill by and large but I am violently against this subsection as it stands. I have read the debate in the Dáil on it and given it much consideration. Subsection (2) of section 8 reads:
When no guardian has been appointed by a deceased parent or if a guardian so appointed dies or refuses to act, the court may appoint a guardian or guardians to act jointly with the surviving parent.
That means that, if a wife dies survived by her husband and some children, some in-law or other relative may go into court and have himself or herself appointed as guardian jointly with the father. That is totally unnecessary and can lead to all sorts of complications and difficulties. I know the Minister's argument is that there can be a case where a parent dies without appointing a guardian and where the surviving parent can be totally unfit to look after the upbringing of the children and in such a case there should be a right to have a guardian appointed, and with that proposition I thoroughly agree. I am also aware of the provision in section 3 of this Bill which reads:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
I am aware that section is there but I say that in the great majority of cases a surviving parent is very well fitted to look after the children and he or she should not have a guardian inflicted on him or her by the court. The Minister says the court will always act reasonably. That may be so but section 3, which imposes on the court the obligation to put the welfare of the child above all else, is more of a hindrance in this case than anything else because, if an application is made to the court to appoint a joint guardian with the surviving parent and if the court is in doubt as to whether such a guardian is necessary or not, it will fall back on section 3 which says the welfare of the child is to be the all-important factor.
The unnecessary appointment of a guardian to act jointly with a surviving parent could do a lot more harm than good. There could be a case where an interfering in-law, with the best intentions in the world, who believes that the surviving parent might not act in the best interest, will go into court and seek to have himself or herself appointed as a guardian. Even if such an application is thrown out by the court on the ground that it is unnecessary, it could do a lot of harm. It could bring the surviving parent into court to resist this unnecessary application and could in that way create bad blood between the surviving parent and the relatives of the deceased parent.
I am all in favour of the Minister's contention that if the surviving parent is an incurable alcoholic or if the surviving parent is amoral or in some other way totally unsuited to look after the child, there should be machinery available to the deceased parent's relatives to protect the child. However, there should be a very decided brake put on subsection (2) of section 8. I did not put down any amendments and I can only suggest to the Minister a few amendments whereby he could give the court a direction as to how it should exercise its discretion under this section. Subsection (2) at the moment reads:
When no guardian has been appointed by a deceased parent or if a guardian so appointed dies or refuses to act, the court may appoint a guardian or guardians to act jointly with the surviving parent.
I suggest that the following words should be added to that:
if it appears to the court to be necessary in the interests of the infant to do so.
or, if that is not acceptable, these words could be added:
if it appears to the court that the surviving parent is unfit to look after the welfare of the child.
Something like that should be written into this subsection in order that the court will realise that the rights of the surviving parent are not to be lightly interfered with and that in normal conditions the surviving parent is the person entitled to the custody of the child, the person entitled to mould the child's mind and to bring it up. There is a positive danger, as the subsection stands, that the court will come down too heavily in the interests of the child if it is in doubt at all and against the interests of the surviving parent and in that way do more harm than good.
If I may give the reference to which I referred a moment ago, it was decided in Ex parte Ilchester by Lord Eldon, as reported in 1803, that a deed appointing a guardian is “a testamentary instrument” and as such it is revocable by a subsequent will.
The fears which Senator Fitzpatrick expressed are groundless. I do not think it is necessary for me to give a direction to the court because the courts themselves down the years have laid down very definite rules in this matter. There is an established rule of law, which this Bill does not affect, that the court must act very cautiously when they come to interfere with parental rights. The court must not act in opposition, as it were, to the parent unless it is judicially satisfied that it is necessary in the interests of the child, beyond any shadow of doubt, that it should interfere. That rule was fully expressed in the Kindersley case in 1943. This is a very difficult area, as Senator Fitzpatrick knows, and it is not easy to decide what exactly is the right thing to do.
I want to emphasise that what we propose here has in effect been the law since 1886. A similar provision was included in the Act of 1886 in respect of a surviving mother; all we are doing now is applying the provision equally to both parents. If we do not have a provision like this, then the courts' hands would be tied and very serious harm could come to children who would desperately need the services of a guardian. I am satisfied that what we are providing is the right thing to do, to give the courts this power, knowing as we do that down the years the courts have always been very slow indeed to interfere with parental rights.
I noticed that in the Dáil the Minister was in a more flexible state of mind on this subsection and he undertook to reconsider it and to look into it. Now the Minister is making his whole case on the ground that you could have a case where the surviving parent should not be entrusted with the children. As I said already, the Minister cannot have any argument with me on that proposal because I thoroughly agree with it, but if this subsection is only necessary to deal with cases where the surviving parent should not be given charge of the children, what is the objection to putting that into the subsection? This matter is entirely a question of opinion and this problem will have to be decided by a court.
If the application is made to have himself appointed joint guardian with the surviving parent, it will be heard by a High Court judge. A High Court judge is a human being, liable to make an error and certainly liable to be fallible in cases where it is an opinion of what is best and what is the right thing to do. One judge might think that a father should be left, or a mother should be left to look after the children and bring them up as he or she thinks best, and another judge might think that somebody from the deceased parent's side should be put in to assist in looking after the child. In that way they could do a lot more harm than good.
This subsection is new in the sense that it is now written into an Act of Parliament and it is a guide to the court. I cannot see any objection to giving a direction to the court as to what the legislature intended when it passed this subsection. Most Senators know that it is not possible to go into a court of law and say: "Here is what the Minister for Justice said in the Seanad or in the Dáil, when he was putting it through".
It should be, of course.
Well, it is not the law and if it were, then we would be at liberty to quote what every Senator said and I do not know whether the Minister would agree with that.
Most of them.
They will have to interpret this section as it stands without guidance from anybody except in regard to section 3 which says the interest of the infant is to be of paramount importance. This is a non-contentious measure. It is a measure dealing with a very delicate problem and I am sure the ambition of every Senator, and of every member of the Lower House, is to produce the best possible measure. I earnestly appeal to the Minister to reconsider this and to add such a brake or saving clause to this subsection as I have suggested.
Well, in a different context Senator Fitzpatrick would be one of the people who would argue that there are dangers in attempting to write down in statute form provisions which are long established in the common law. Very often it is better to leave well enough alone and to leave the established common law rule there. When you start to put down these things in codified form in a statute, you leave yourself open to the risk of omitting something that you would want to include. This is not a question of putting in something here for the first time. As I said, this was in the Guardianship of Infants Act, 1886, which stated:
When no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead, or refuses or refuse to act, the Court may, if it shall think fit, from time to time appoint a guardian or guardians to act jointly with the mother.
As I say, it was in the 1886 Act except that it was confined to the surviving mother and the only change we are now making is to have it applicable to both parents.
One objection to Senator Fitzpatrick's proposal is that the surviving parent might want a guardian appointed; he or she might want the court to appoint a guardian to help out in a particular task such as the management of an estate, and so on, and Senator Fitzpatrick's proposal would mean that even in these circumstances the court could not appoint a guardian.
I am reluctant to tie the hands of the courts in this regard. The courts have exercised this jurisdiction in guardianship matters very wisely and very well down the years and, as I say, they have established their own rules without the necessity for the Legislature to do so. The courts have, in effect, laid down the type of rule which Senator Fitzpatrick would like to see applied and, in these circumstances, I feel that it is better to leave the situation as it is. The courts have acted with great wisdom and discretion and I think we should leave it at that.
There is a section of this Bill—section 7—which accepts the principle which I am trying to get the Minister to write into subsection (2) of section 8 because, without having time to consider it, I think section 7 provides that one parent can appoint a testamentary guardian to act jointly with the surviving parent and that that testamentary guardian shall act unless the surviving parent objects and then, if the surviving parent objects, you go to the court and the testamentary guardian is not given authority unless it appears that the surviving parent is unfit.
If that is a correct interpretation of section 7, surely that is the very thing that I want written into section 8 and what is the objection to it? I feel very strongly about this matter, I must say. I should like to hear the Minister as to whether he agrees that that is the correct interpretation of section 7 or not.
Subsection (4) does say that but, of course, that is a different type of situation. Section 7 deals with the case where a testamentary guardian has been appointed and there is a dispute between the parent and the guardian. In this situation, leaning heavily on the side of the parent, we leave it to the court to decide. But in section 8 we are trying to cope with a situation where, for one reason or another, maybe because of the unfitness of the parent, maybe for some other reason, no guardian has been appointed.
Admittedly, as I said in the Dáil, the most common type of case would be where the parent was unfit, but there might be other types of cases. It is simply that I am reluctant to tie the hands of the court. We cannot envisage everything. Cases have to be decided on their merits in relation to particular circumstances. We might write something into this Bill which might have unforeseen results in a particular case. On the whole, the wise thing to do is to give the court discretion and allow it to decide in each particular case on the merits because, as I have said, there might be other types of cases, apart from unfitness. I have mentioned one such case, namely, where the parents themselves want a guardian appointed; there may be others. That is all I can say to Senator Fitzpatrick.
I do not wish to drag it out and this is the last point I shall make: Surely there is a stronger case for allowing a guardian who has been appointed by the deceased parent to act jointly with the surviving parent than there is in the case where the deceased parent does not appoint a guardian at all and then to allow somebody else to say: "I want to be appointed a guardian" and not to provide that that person can only be appointed a guardian on establishing to the satisfaction of the court that the surviving parent is unfit or unsuitable? I am all in favour, by and large, of giving a discretion to the court but this is something delicate, something very personal and something in which the court should have a direction as to how it is to act.
Senator Fitzpatrick must not overlook the fact that the court has ruled on this very point in the Kindersley case.
Yes. I know the courts are jealous of the rights of infants and I know that long before section 3 ever went into this Bill, a primary consideration of courts in this country in deciding matters of this sort was the welfare of the child. I know that and that was the position long before section 3 was ever thought of; but the other thing is important, too. Parents have rights that should not be lightly interfered with unless it is necessary to do so.
Question put and agreed to.
SECTION 9.
Question proposed: "That Section 9 stand part of the Bill".
There is one point that I wish to raise on section 9, subsection (2), which says that where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly. What is the position if a surviving parent objects to a guardian appointed by the other parent?
It is only on the death of the surviving parent that subsection (2) comes in. It is only after the death of the surviving parent that guardians appointed by both parents act jointly. He is dead, so he cannot object.
The survivor during his lifetime might have objected to the guardian.
This subsection applies only to guardians appointed by both parents and acting after the death of both parents.
Another section of the Bill provides that the guardian would immediately start to act on the death of a parent as joint guardian with the surviving parent. If a father or mother appoints a testamentary guardian, surely that guardian acts with the surviving parent straight away on the death of the other parent?
Yes.
If the surviving parent objects under section 7 to that guardian, is that guardian there and then completely extinguished for all time?
No; he is there still but he does not act as a guardian so long as the surviving parent objects unless he can go to court and get himself established.
Supposing the second parent then dies, can the original guardian's rights be in any way revived? What I want to provide for is that the person whom I as a surviving parent might object to during my lifetime should not be allowed to be a guardian after my death.
The solution for that problem would be to appoint your own testamentary guardian who could apply to the court to give effect to your wishes.
Question put and agreed to.
Sections 10 to 18, inclusive, agreed to.
Schedule and Title agreed to.
Bill reported without amendment.
Agreed to take remaining Stages today.
Bill received for final consideration and passed.