Illegitimate Children (Maintenance and Succession) Bill, 1974: Second Stage.

I move: "That the Bill be now read a Second Time."

I am grateful to the Seanad for providing an opportunity to debate the proposals in this Bill and the issues which underlie it. I am also grateful to the Minister for being present during the debate. I hope to have the support of the Seanad for the changes in the law contained in this Bill. I hope they will approach it as an important social issue and not as a party political issue; not as something which would divide parties as such but something which each Senator can examine on its merits and on which each Senator can come to a decision. I hope that if there is a vote on the Bill it will be a free vote. The nature of the subject matter would suggest that this would be the appropriate way in which the Seanad should approach the proposals contained in this Bill.

Furthermore, since the Bill was published last May I have had a very interesting feed-back on its contents. I have had many constructive suggestions relating to it. I am of the opinion that it could certainly be improved on Committee Stage, particularly the provisions relating to the property rights of an illegitimate child. It is important for us to remember that what we are debating is the principle of changing the law relating to illegitimate children, of improving their status under Irish law, of giving them some equality with children born in wedlock. We are not judging this Bill on every last dot and comma of it. If the principles are accepted then or at Committee Stage I would be open to bringing in amendments. I would also welcome any suggested amendments proposed by individual Senators.

I would like to ask the indulgence of the House in speaking at some length on this matter. It is important when a social issue of this sort comes before us to examine it in detail. The opportunities are not all that frequent for the assessment of something like the subject matter before us now, an assessment of the status of illegitimate children, of their position under our law; and for consideration of positive proposals to change that situation and to improve that status.

The first issue, I believe, is a constitutional one. It derives from the failure of our laws at present to live up to the constitutional guarantees and, in particular, the guarantee contained in Article 40.1. of the Constitution that "all citizens shall, as human persons, be held equal before the law." Children born out of wedlock are not equal before the law. Children born out of wedlock are discriminated against in that they do not have succession rights to their father's property; in that their family relationship is not given full recognition and protection, and in that they are burdened with the social stigma implied in being called illegitimate.

It was a matter of great regret to the proposers of this Bill that we had to call it by such an ugly title. We had to call it the Illegitimate Children (Maintenance and Succession) Bill, 1974, because to have tried to change the title, to depart from the concept of illegitimacy, would involve a much more extensive change in legislation which was not within our resources as Private Members. It was not possible. I hope that, when a major Children's Act is brought in by the Government, one of the purposes of that Act will be to remove any difference in status between the legitimate and illegitimate child so that the word "illegitimate" will disappear from our language.

That is the first constitutional issue posed by Article 40, which guarantees that all citizens shall, as human persons, be held equal before the law, and the fact that our laws do not hold illegitimate children equal.

There is another provision of the Constitution which is a little less known but which is of extreme importance during a debate in the Dáil or Seanad on the question of changing the law. I refer to the article of the Constitution which is directed to the Houses of the Oireachtas—Article 45 on the directive principles of social policy provides guidelines for the Oireachtas enacting legislation. These provisions guide us in bringing into force legislation within the spirit and terms of the other articles of the Constitution which are binding and which are recognisable by the courts. I refer in particular to Article 45, section 1, which provides:

The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.

I would submit that, in so far as we have created a status of illegitimacy, in so far as it is a stigma on innocent children when born, that is not a social order which reflects either justice or charity. It is indeed a most inhumane, unfair and unjust social order which we must not lose any time in correcting and changing.

We have a fundamental obligation to remove the existing legal and social discriminations. We must also compensate for past failure by taking positive measures to help the single mother who is coping with the financial and social burdens felt by any single parent bringing up children in society. The Government have the primary responsibility, to which they have not yet fully faced up, to remove legal discriminations. But we all have a responsibility—and, in particular, we, the Members of the Seanad, in considering a proposal to change a law of this sort, have a responsibility—to examine our existing prejudices and to change our attitude towards these children and their mothers. Instead of isolating the single mother and branding her as guilty of misconduct, the community should take positive measures to assist her in her dual responsibility and to anticipate her social needs and those of her child or children. Fathers should be encouraged to acknowledge their children without fear of becoming social outcasts themselves; and in cases where the father is not identifiable the local community in which the single mother and her child or children live should be concerned to ensure that the particular child has a balanced relationship with other adults and children living in that community to compensate for the absence of the second natural parent. It will require conscious and sustained effort by us as a people to remedy the injustice caused by years of discrimination and neglect. I would submit that the leadership in this can and should come from the Seanad in accepting the principles underlying this Bill and in passing it on to a further Committee Stage for examination of its detailed provisions.

In looking at the concept of illegitimacy it is sad to see that Irish law is much more backward than other jurisdictions whose general common law we have inherited. In particular I would refer here to the United Kingdom, but I would also refer to other jurisdictions which are directly comparable such as Australia or New Zealand. Under Irish law the illegitimate child is marked out by a number of discriminatory rules. He is in theory the child of no one—the filius nullius of the common law. I would like here to refer very briefly to the effect of that. I am quoting from H.K. Bevan's Law relating to Children. In the paragraph on illegitimacy relating to disposition of property Mr. Bevan states:

One of the consequences of the common law treatment of the bastard as filius nullius was the rule of construction that prima facie any reference in an instrument to “children”, “issue” and the like was exclusively to those who were legitimate, and, although it was a presumptive and not an absolute rule, it was not easily disturbed.

Then he goes on to show in what way the law was changed in England by the Family Law Reform Act of 1969. He examines the position on intestacy under the Family Law Reform Act and says:

Prior to the Family Law Reform Act, 1969, the limits of recognition accorded to the illegitimate child by the law of intestate succession were that he and his issue were entitled to succeed on the intestacy of his mother provided that she left no legitimate issue, and she was entitled to succeed on his intestacy as if he were the only surviving parent. The Act of 1969 is a significant event in the legal emancipation of the illegitimate child, because it enables him or, if he is dead, his issue, to succeed on the intestacy of either of his parents as if he were their legitimate child. Correspondingly, each of them has a right of succession on his intestacy if they survive him.

That is a directly comparable jurisdiction where the law has been changed without any serious disruption of social attitudes, without any great trauma. Justice has been rendered in the circumstances, or at least partial justice has been rendered. In Ireland, alas, we are far from this stage. As far as the rights of the illegitimate child are concerned, they are still governed by the provisions of the Legitimacy Act, 1931, section 9 of which gives the illegitimate child in Ireland the only right it has and, as we see, a very limited right to any succession to property. Section 9, subsection (1), provides:

Where, after the commencement of this Act, the mother of an illegitimate child, such child not being a legitimated person, dies intestate as respects all or any of her real or personal property and does not leave any legitimate issue her surviving, the illegitimate child or if he is dead, his issue shall be entitled to take any interest therein to which he or such issue would have been entitled if he had been born legitimate.

The next subsection gives the mother a corresponding right to inherit from her illegitimate child. The illegitimate child has a limited right to inherit on intestacy from his mother provided there are not other legitimate issues. If the mother married somebody and had legitimate issue then presumably her illegitimate children would be excluded on intestacy. Their very limited statutory right would be removed. So the right to property, as far as it exists, is a very minimal right of intestate succession to the mother, with no right of property either intestate or in any other way to the father.

The right of support during the young life of the illegitimate child is curtailed by very restrictive affiliation proceedings, and this is one of the matters which we are trying to amend in this Bill. The fact that the affiliation proceedings must be brought in the first six months after the child is born in practice means that virtually no affiliation proceedings are brought. In that first six months the single mother is preoccupied with the emotional involvement with her baby. She is probably not well advised. She may be wanting to marry the father and not take a lawsuit against him. For various reasons the affiliation legislation is ineffective because of the arbitrary and unfair time limit. Similarly, section 117 of the Succession Act, 1969, which has given certain rights to children who were cut off in their parents' will, does not appear to give any right to the illegitimate child to come into the court and say that the parent has not acted as a prudent parent and has wrongfully and unfairly excluded that child by willing the property elsewhere.

It would even appear that there is a trend in constitutional cases towards a narrow definition of family rights by defining the family in this context as a married family. I think it would be very regrettable if there was a combination of quite different sections of the Constitution in order to provide that the family, in so far as constitutional family rights are concerned, was only the married family. I myself, in looking at the relevant provisions, cannot follow the line of reasoning which appears to draw this conclusion, and I question the social value of it. I also question the constitutional equity of it.

Having examined what is meant by illegitimacy, we might ask where does the concept come from? How did we get such a concept in our law? The system of discrimination based on a concept of illegitimacy was influenced by the Canon Law, and it was through the Canon Law that it became part of the common law, and then was inherited by us as part of our legal system. The object of the Canon Law in having very strict rules about legitimacy was to discourage fornication and adultery. What might be questioned now, in modern terms, is the logic of trying to prevent fornication and adultery by means of victimising and penalising the innocent offspring of a relationship outside marriage. I would submit that there is no justification either in law or in church principles for this attitude. It was the Canon Law which influenced the English common law and, whereas in England they have changed by statute the harsh effect of the common law, we retain it in all its purity, in all its harshness and in all its discriminatory aspects.

The moral basis of the Canon and common law attitude to illegitimacy is not at all easy to understand. If the intention was to discourage promiscuity among adults then, as I say, this appears to be a very strange way of going about it by vesting all the penalty and all the discrimination in innocent children. This situation becomes even more unfair and even more absurd when it is realised that the activities to be discouraged, fornication and adultery, are not themselves criminal. They are not criminal offences under our criminal code, but we victimise, we discriminate against, and we exclude from the normal rights of a child, any offspring of such relationship. This offends against one of the most basic principles of law, that one person should not have to suffer for the activity or conduct of another; and how much more serious that is when the person who suffers for the activity or conduct of another is an innocent child. How could we possibly say that we are carrying out the directives of social policy, that we have a system which is imbued with justice and charity, when we penalise and victimise innocent children for conduct which happens before their birth and over which they could have had no control, and for which they, for the rest of their lives, suffer?

It was argued in support of having a concept of illegitimacy that not to have such an attitude would encourage promiscuity—that otherwise people would be promiscuous. There is a false assumption here. There is an assumption that all relationships outside marriage are, by definition, promiscuous. This is insulting, inaccurate and very wrong. It is something which I have noticed in debates in relation to another matter which unfortunately did not get a First Reading in the House earlier this afternoon. There is a tendency automatically to characterise relationships outside marriage as promiscuous. This shows a complete lack of understanding of the term "promiscuity" and, as I say, it is also an insult to the many serious lasting relationships between parties which are not based on a formal marriage. Not all illegitimate children by any means are the product of a promiscuous relationship; and moreover—and this is the real argument—the statistics, and I will quote some of these statistics, show that the legal disabilities affecting illegitimacy do not affect at all the illegitimacy rate. The illegitimacy rate has increased, and it is increasing more sharply in this country, despite the disabilities, so there is no deterrent value in the concept of illegitimacy. It does not have this affect. As I say, I will have some figures to quote on that.

Another argument that is put forward for maintaining a different status for and the stigma of illegitimacy is that to give the illegitimate child rights of succession in relation to the child's natural father would frustrate the legitimate expectations of the father's lawful wife and of the legitimate children that he might have. At first that appears to be a very significant argument; but I think that it fails to balance the legitimate expectation of the child born outside wedlock, the reasonable expectations that his father will make suitable provision for him during his life and also that the father will provide some of his property after death in the same way as he would provide for his children born in wedlock. There is this reasonable expectation of the child born outside wedlock in those circumstances. What is necessary is a balanced appraisal of different rights and not the present totally one-sided, totally discriminatory, totally unjust situation which excludes the illegitimate child.

Once again one can point to the many jurisdictions, both common law jurisdictions and civil law jurisdictions, which have gone ahead and made the necessary changes so that there is no longer an exclusion of illegitimate children from the right to inherit. I would point to the Family Law Reform Act, 1969, in the United Kingdom, and also a statute in New Zealand, the Status of Children Act of 1969, which was entitled "an Act to Remove the Legal Disabilities of Children Born Out of Wedlock". Similarly, other jurisdictions have followed, and it is time that we, with our well known preoccupation and general concern for family life and for children, examined the situation and amended our law in that respect.

As I said earlier, the support from the natural father of the child during the child's young years in this country is largely a fiction because of the arbitrary time limit attached to affiliation proceedings. What we would propose to do in the Bill before the House is to abolish any time limit on the bringing of affiliation proceedings. We do so because we regard it as a matter of principle. The child born out of wedlock has a right to support during his young years from his father. This is not a penal matter. This is not something that the father has to be confronted with in some penal way. It is a right on which it is wrong to put a time limit. It is wrong that the time limit be six months, as it is at present. It is wrong that it be three years, as it is in England and some other jurisdictions. There should be no time limit and only the very obvious practical limit of the period during which proof of paternity can be established. If the matter has to come before the court—if the natural father in the circumstances has not admitted paternity—then the true determinant in the case will be the question of being able to establish paternity.

Apart from that very important question of principle, I believe that there are important practical reasons why there should not be any time limit on the bringing of affiliation proceedings. It would be possible to envisage circumstances where the single mother had a good job and had decided to keep her child born out of wedlock but did not see any particular need to bring affiliation proceedings against the father in the circumstances in which she was supporting the child. But if she lost her job, if she became ill, if she became insane, if she became in any way incapable of supporting that child, then why should the Legislature have prevented that child, or any child, from having the right of support from its father? Why do we see any logic or any reason or any public interest in putting in an arbitrary time limit to cut off the right of a child? I believe that the right of a child is a continuing one and that it should remain enforceable throughout the child's dependency.

Another amendment which we have proposed in this Bill is that the period of dependency be one in which the child is in continuing education. Under the Act we are amending the cut-off period is 16 years. At the present time, particularly with the greater availability of university and other scholarships, it is very likely that a child will be or can be in continuing education for a longer period. Just as other children have a right to the support of their parents, so the illegitimate should have the right to the support of their parents in the circumstances.

There are many substantial and major crucial criticisms to be made of the concept of illegitimacy. It is easy to point to injustice and to the hardships which it causes on children of this country. The present situation is summed up very well by Mr. William Duncan, a lecturer in family law in Trinity College, who delivered one of the papers at a recent conference organised by CHERISH, about which I will say a little more later. He summed up the position very accurately when he said:

What stands in the way of reform is not rational argument but a public prejudice against illegitimate children based on centuries of unquestioning discrimination. This prejudice, combined with Governmental inertia, has resulted in Ireland remaining a member of that increasingly exclusive club of nations which persist in the persecution of innocent children.

That may sound harsh but I would submit that if a person examines the position, he will find it is fair and accurate enough. This is something about which we cannot remain content. We must take very significant steps to remedy this state of affairs.

I want now to fill in the background a little about the position of illegitimate children in Ireland. In doing so, I would like to express gratitude and pay tribute to the organisation, CHERISH. This organisation was founded about 18 months ago by a group of single mothers. They came together in order to try to create public awareness of the status of illegitimate children, to fight for the rights of their children, to try to get changes in the law, to try to get them recognised, first of all as a category for the purpose of social welfare benefits—which was achieved in the Social Welfare Act of 1973—and also to remove other legal discriminations. They formed themselves into a limited company. They had meetings, and on the 26th October of this year they organised a very successful conference in Dun Laoghaire. The Minister was present and, indeed, opened that conference. Unfortunately he was not able to remain for the proceedings, for the papers or discussions; but these papers and a summary of the discussions will be published. They will provide very important evidence of the position of illegitimate children and the very sharp discriminations which exist.

I should like to refer briefly to one of these papers delivered by Dr. Dermot Walsh of the Medico-Social Research Board, which gives a more accurate and a less emotional picture than any words. He gives the statistical pattern relating to illegitimacy in Ireland. I find the figures which he quotes more chilling than any eloquence, or any descriptive words, that could be used in this House or, indeed, in any forum in Ireland. I quote from his paper entitled "The Unmarried Mother and her Child in Ireland". The position in Ireland today is dealt with under a side heading "The Facts".

The number of illegitimate births in this country has risen steadily since 1959 and by 1971 had reached 1,842 births. In effect the number of illegitimate births in Ireland has roughly doubled between 1961 and 1971, and the illegitimate birth rate per 1,000 single and widowed women now stands at 6.3 as against 3.3 in 1961. This represents 2.6 per cent of total births in 1971. In 1971 there were a further 1,510 illegitimate births to Irish-born women in the UK, but we do not know the length of residence in the UK of those mothers and accordingly we cannot state how many of the conceptions leading to those births occurred in Ireland. There are no comparative data on illegitimate births in Britain by mothers' birthplace in 1961. Additionally, in 1971 there were 577 legally induced abortions on women giving the Irish Republic as their usual residence. By 1972 the number of terminations had doubled to almost a thousand, and it is interesting when one reflects that the rate of te mination of pregnancy among women who gave their normal place of residence as the Irish Republic in the age group 25 29 almost equalled the number of live births to unmarried Irish women in Ireland in that same age group. Put another way, of all conceptions to Irish unmarried in the 25-29 age group not ending in spontaneous abortion and not leading to birth outside the country, 43% were terminated in England, a remarkably high proportion compared with only 29% of English unmarried pregnancies in the same age group.

The data then presented in this paragraph indicate clearly that there has been a doubling of the illegitimate fertility, a recourse to legal termination of pregnancy in Britain with the introduction of 1967 Abortion Act, and the inevitable conclusion since conception is the consequence of sexual activity that there has been a considerable rise in extramarital or pre-marital sexual activity in this country. Therefore the problem of the unmarried mother and her child is one that is now twice as great as it was in 1961, and the question arises whether the measures to cope with it have been doubled in this decennium, making the unlikely supposition that they were adequate then.

I think these are very chilling statistics when one compares the number of Irish unmarried mothers or pregnant girls in the 25-29 age group—a considerably higher number of whom get an abortion in England than their English equivalent in the same age group. These are very startling figures indeed. I submit that this is something we cannot sweep under the carpet and say it does not happen. We must face up to it. The facts which I have quoted and the further material contained in that paper by Dr. Dermot Walsh certainly show that the deterrent penal stigma of illegitimacy does not affect the illegitimacy rate. We cannot take the old Canon Law and later common law idea that if you make it a stigma if a child is born out of wedlock you might deter somebody from relationships outside marriage. This is nonsense and can be shown empirically by statistics to be nonsense. There is not even that, to my view, very suspect argument in favour of a status of illegitimacy.

I should like to refer briefly to remarks at another meeting held in Ireland, this time in Limerick—a conference on adoption, on aspects of adoption, held in Limerick in April, 1974. At that conference, Miss Jane Rowe, director of the ABAA in England, read a paper entitled "The Mother's decision and the Child's Welfare". I would like, if I may, to put on the record of the Seanad the riddle with which she commenced her paper because I think it is worth perpetuating.

I'd like to start this evening by asking you a riddle. "What can't be avoided and lasts a life time; shouldn't be delayed but mustn't be hurried; can never be entirely right, but ruins lives when wrong?" I am sure you have no difficulty in recognising the answer as the mother's decision about her out-of-wedlock child.

This is a terrible decision the single mother has to make: what is to be the future of her child? Will she retain the child herself, and what is the situation if she does? Will she place the child in adoption? Will she place it in fosterage? Her decision is very important because, no matter what decision she makes, she can never totally right the situation.

At page nine of this booklet from which I am quoting, called Aspects of Adoption, Some Basic Principles, Miss Rowe looks at the unmarried parents and what we know about them. This is important because undoubtedly we have to admit that, despite the occasional conference organised either by CHERISH or other voluntary bodies, we do not have in this area the sort of social statistics which would help us come to a proper appraisal of the position. To some extent we can and should rely on better statistical material, better social studies and better research in another jurisdiction.

Miss Rowe says:

Studies done in the past two or three decades have shown how impossible it is to categorise unmarried mothers or the men by whom they become pregnant. About the only thing they have in common is the out-of-wedlock pregnancy! These parents are of all ages, all social classes, all degrees of intelligence—or lack of it. They vary from perfectly normal people who have got themselves into difficulties to deeply disturbed individuals driven into self destructive situations by their own unconscious needs.

It is well to remember that social workers see only a proportion of unmarried mothers and a tiny minority of unmarried fathers. Those who come for help contain a disproportionate number of those with quite serious personal problems beyond those created by the pregnancy. The others manage without the help of social agencies.

This is a very valid point. Those who come to social welfare for help are actually the ones with problems which may not in fact be totally related to the pregnancy but may have deeper personal problems.

Then Miss Rowe goes on to give brief evidence of an extremely important study carried out in Britain. She says:

The National Child Development Study being carried out in England is a fascinating longitudinal survey of a large group of children born in 1958. Special studies have been made of various sub groups including adopted children ("Growing Up Adopted") and illegitimate children ("Born Illegitimate"). These two books compare the children's development at the age of seven and we are all eagerly awaiting the results of further studies done when they were 11 and 15.

I'd like to give you a few of the findings from "Born Illegitimate". This is the book on illegitimate children.

There was no difference in the social class of mothers having legitimate or illegitimate children and no reason to expect genetic differences between the groups. However, the illegitimate children were disadvantaged at birth on account of having had less ante natal care and suffering more birth hazards. Thus they got off to a poor start and for most of them this was later accentuated by difficult home circumstances and an unfavourable environment. Not surprisingly, this affected almost every aspect of their physical, intellectual and emotional development. Illegitimate children, when compared with their legitimate peers, were shorter and lighter, worse readers, less creative and more often maladjusted. It was surprising and depressing to find that it did not seem to make any appreciable difference whether these children were living with their mothers alone, with both natural parents, with a step-parent or in some other family situation. The overall picture was of a complex web of environmental hardship and deprivation which had a cumulatively disadvantageous effect.

By contrast, the much smaller group of illegitimate children who had been adopted were found to have escaped the long-term effects of the disadvantages they had experienced at birth. These had been counteracted by the very favourable environment which they had enjoyed in their adoptive families. In virtually every respect the adopted children as a group were doing as well or better than the whole cohort and most markedly better than their fellow illegitimates.

We can see that it is altogether too facile an assumption to say that the right place for a baby is always with his mother. It may not be. But the research findings also show that not every adoption is happy and successful. The Natural Children's Bureau Study found some very unsatisfactory placements. It is hard to measure family "success" since all normal families have some problems. But if one takes success as the absence of serious or persistent difficulties, a whole series of research studies show that approximately three-quarters of adoption placements turn out quite well. In the remaining quarter there will be some very distressing failures causing great unhappiness to all concerned. Adoption is never an easy solution and must be compared with major surgery, which is often necessary but never desirable in itself.

These observations are the fruits of a continuing, longitudinal study on the effects on children of illegitimacy, of being placed in adoption in comparison with children who are legitimate and have not gone through this process.

This is a powerful argument in favour of adoption.

I do not necessarily think so. The report goes on to say that it would be too facile to say that it is, in fact, an argument in favour of adoption and later studies point to this. Just as it is too facile to say that the child ought always to be left with its natural mother, so is it too facile to say——

On these figures the balance is in favour.

On these particular figures the justification for that balance being in favour of adoption is the environmental hardships and hazards of the illegitimate child—and the study revealed just how disadvantaged they are. Therefore I would agree to that extent. But that is in existing circumstances. If one changes the circumstances and removes the environmental factors and the deprivations, then that assumption would be altogether too facile. Illegitimacy really means that these children are less well able to read, that they are lighter, slower, that they are disadvantaged from birth.

I do not want to spend too much time quoting from various submissions, although there is a great deal of useful material contained in them which should be available to the House in assessing the proposals in the Bill which we have put forward. However, I want to quote briefly from the statement on family law reform which issued from the Council for Social Welfare, a committee of the Catholic Bishops' Conference. I may say that it gives me almost pleasure to quote a statement emanating, at least indirectly, from the Catholic Bishops and to find that it is, for once, a happy coincidence that we are in general agreed on reforms rather than in any way at issue.

I would hope it would give the Senator total pleasure, not just almost pleasure.

It gives me very real pleasure indeed. I should like to quote from the relevant chapter in this report, which is an excellent and very thorough appraisal of family law. I agree in general terms with all the proposals in it. I would go further on some issues than this committee have been prepared to do, but it is a very welcome addition to the lobby for change of family law in Ireland. Chapter 6 relates to the status of a child born out of wedlock. I remind Senators that this is the Catholic bishops in Ireland speaking. They have done their homework and they know the position and we can learn from their conclusions. Chapter 6 provides:

6.1. The child of an unmarried mother is considerably disadvantaged under our present legal system. For example, the child of an unmarried mother cannot have his paternity established; he has no rights of succession against the property of his natural father, and only a limited right to succeed to the property of his mother, notwithstanding the changes introduced by the Succession Act, 1965; the law does not enforce effectually the maintenance responsibilities of putative fathers; such maintenance as the Court may award ceases when the child reaches 16 years of age.

6.2. If an unmarried mother is granted an affiliation order there are no means whereby she can require the putative father to contribute to her own upkeep and maintenance while she is rearing the child.

6.3. The Church acknowledges that there is a moral obligation on fathers to support their children whether legitimate or illegitimate.

6.4. Other countries have procedures to permit the voluntary acknowledgement of their child by a father and mother who do not intend to, or who cannot, marry. This permits paternity to be proved and the child to be given the same status as a legitimate child.

6.5. We are concerned with the rights of all children and that they should be treated equally. We regard it as unchristian that children born out of wedlock should, as a result of the actions of their parents, be victimised by legal distinctions between them and children born to married parents. Consequently, we wish to urge that the legal disabilities imposed on these children should be removed.

Then they go on to list their recommendations and these too I should like to put on the record of the House:

6.5.1. We would recommend that—

1. There should be no distinction between children before the law;

2. The law be amended to allow voluntary acknowledgement of a child born out of wedlock. It is considered that power to object to such an acknowledgement should be given to the spouse of either parent;

3. Children born out of wedlock be given rights of succession;

4. Provisions be enacted whereby the single mother could formally recognise her child so that if she were to marry a man other than the father of the child, that child would have equal rights of succession to her property with any legitimate children the couple might have. This equates the position of a child born out of wedlock to that of a step-child;

5. The procedure of voluntary acknowledgement should be extended to the wife who has an extra-marital child;

6. Children of a void or voidable marriage should not be bastardised but should continue to be regarded as legitimate offspring of the parties following a decree of nullity;

7. The Illegitimate Children (Affiliation Order) Act, 1930 be amended in the following respects:

(a) The time limit during which a mother may bring affiliation proceedings against the father of her child should be extended from 6 months to 3 years;

(b) Maintenance in respect of the child should continue until he has finished full-time education and not cease, as at present, at 16 years;

(c) Consideration be given to the introduction of genetic testing to establish paternity. Such tests have now become so sophisticated that the margin of error is minimal.

That is the assessment by the Catholic Hierarchy of the existing law relating to illegitimate children and those are the recommendations for reform. The precise recommendations do not go as far as the statement of principle that children should be treated equally. It is not equal, for example, to continue a three year time limit on affiliation proceedings or to allow a spouse to object. These are small quibbles. From the tone and general scope of the proposals I welcome them as an important contribution to the movement for reform of family law in Ireland.

I should like now to turn briefly to the proposals in the Bill itself. Not only might the Bill appear on a reading as a very technical Bill, but it is also a Bill which the Seanad might regard as not being entirely complete. My colleague, Senator Horgan, may mention the possibility of introducing an amendment on Committee Stage which would remedy the present situation that the children of a marriage which has been annulled are rendered illegitimate, so that they are, in effect, bastardised retrospectively. Those children should remain legitimate even if the marriage has been annulled. This is a provision which exists again in the other common law jurisdictions. A change has been made and we too should make that change. It might be appropriate to include such a provision in this Bill.

Looking at the terms of the Bill as it stands, it has to be read very closely with the Bill which it seeks to amend, the Illegitimate Children (Affiliation Orders) Act of 1930. It also amends certain sections of the Courts Act of 1971, which is the most recent provision improving the maintenance payments which may be made for illegitimate children. Section 2 is an interpretation and definition section. Section 3 provides that section 2 of the Act of 1930 be amended. Paragraph (a) amends section 2 by cutting out reference to "a local body administering the relief of the poor when giving relief to the mother of an illegitimate child". The issuing of summons would be on the application of the natural mother and not on the possible application of a local body administering the relief to the poor and giving relief to the mother of the illegitimate child.

In fact that whole area of the possibility of the Department of Social Welfare being the body which come between the mother and the father, so that the mother need not bring the father into court by taking a lawsuit against him, is a very important area. Indeed, I would favour the possibility of the Department of Social Welfare being the moving body. This sort of reform and amendment could only be brought about in a Social Welfare Act and it is not suitable to the much more limited subject matter of this Bill.

Section 3 (b) is important because it deletes the time limits relating to the bringing of affiliation proceedings. It deletes subsection (2) of section 2 of the 1930 Act. Subsection (2) as it stands provides that

... an application for the issue of a summons or other process under this section may be made only—

(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 such child, or

(c) where the alleged father of such child contributed to the maintenance of such child within six months after its birth, at any time after such contribution, or

(d) where the alleged father of such child was not resident in Saorstát Éireann at the date of the birth of such child, at any time within six months after such alleged father first enters Saorstát Éireann after such date, or

(e) where the alleged father of such child was resident in Saorstát Éireann at the date of the birth of such child but ceased to be so resident within six months after such a date, at any time within six months after such alleged father first entered Saorstát Éireann after such cesser, or

(f) where the child is born within six months before the passing of this Act, within three months after the passing of this Act.

These provisions effectively confine affiliation proceedings to proceedings which have been initiated within six months of the birth of the illegitimate child. In practice almost no affiliation proceedings are brought in this country. This is an ineffective remedy, and the proposal is to delete the existing wording of subsection (2), which I just read, and to substitute instead after the word "made"

either before or after the birth of the illegitimate child in respect of whom the application is made provided that the application is made within the period during which a weekly sum for the maintenance and education of such child may be made payable by virtue of section 4 of this Act.

In other words, while the child is in continuing education, the period during which under the terms of this amending Bill the child should continue to receive maintenance and support from its father.

Section 4 makes a minor adjustment to subsection (6) of section 3 of the 1930 Act, which provides what details may be published in relation to the parties to affiliation proceedings. It reads:

It shall not be lawful to print or publish or cause or procure to be printed or published any report, statement, commentary or other matter of or in relation to any judicial proceedings for the grant of an affiliation order save and except all or any of the following particulars of such proceedings, that is to say:—

(a) the names of the parties ...

We felt that, if the idea was to maintain a certain anonymity in respect of privacy of the parties concerned, to allow their names to be published did not really achieve this. We were hoping to make the minor amendment of substituting "the parties designated by initials". This is a very common practice in other areas such as in adoption where in the reporting of a court case initials are used rather than names of the parties, because of a very reasonable desire to protect anonymity in those circumstances.

Section 5 of the Bill is clear in that it provides that the cut off period for the payment of weekly sums will not be at the age of 16 years, as it is under the 1930 Act, but will be on the completion by such child, being over the age of 16 years, of a course of full-time instruction at any university, college, school or other educational establishment.

Section 6 of the amending Bill amends the 1930 Act, and in so far as it was amended itself by the Courts Act of 1971, amends the appropriate provision of that Act. Section 6 (1) (a) of the Bill substitutes "one hundred pounds" for "fifty pounds" in relation to the payment of funeral expenses of an illegitimate child. Under the 1930 Act £5 was the maximum amount the father would be liable to pay. This was increased in the 1971 Act to £50. We submit that there should be a maximum ceiling of £100 in present realistic terms. Paragraph (b) relates to the fact that the father may be required to pay for the apprenticeship of an illegitimate child. We submit that, in so far as an apprenticeship has a relevance, it could be an advantage. It could be good for the illegitimate child to have the opportunity of a paid apprenticeship in some trade or profession. The appropriate proposal in this rather limited Bill, which is trying to improve the 1930 Act, would be to increase the amount again to more realistic figures and to make the maximum £200 rather than £50.

Paragraph (c) relates to a child who has been receiving affiliation payments who subsequently dies. The amount for the funeral expenses should again be increased from the £50, as stated in the 1971 Act, to £100. Subsection (2) is the more important amendment of the Courts Act of 1971. This regulates the maximum amount the District Court can provide in weekly maintenance sums against the father. The sum of £5 was inserted in section 19 (3) (a) of the Courts Act of 1971. We would amend that by the substitution of £20. This would be much more realistic and in conformity with the standard of living. It is not worth the time of a single mother to bring affiliation proceedings for £5 a week. She will get more on social welfare. This is not a realistic figure. It is an unfair figure if the father happens to be somebody with a good income who could provide much better support for his child.

Therefore in this Bill we provide for a maximum of £20 in the District Court. We do this, although we are aware that the Courts Act, 1971, allows the possibility of a single mother going to the High Court for an unlimited amount. We do this deliberately because High Court proceedings are outside the scope of the average non-lawyer, the person without legal advice, especially when there is at present no system of civil legal aid. Perhaps civil legal aid may be introduced in the near future. Nevertheless High Court proceedings are really a non-remedy for most people who would know more easily how to go to the District Court for recovery of a sum for maintenance.

We tried to make the procedure more flexible by allowing the Minister from time to time to vary the maximum amount specified, to keep up with the cost of living, and we provided that this could be done by ministerial order to be laid before the Houses of the Oireachtas allowing the possibility of a resolution annulling such order. This means there would be parliamentary scrutiny of the maximum amount that was being ordered for maintenance of the illegitimate children in the District Court.

Section 7 removes from section 9 of the 1930 Act the words "or to a local body charged with administration of the poor". We repeal entirely the provisions of section 11, subsection (2), because again they relate to a local body for the relief of the poor.

Section 9 changes the penalty where a father, to avoid his responsibility, changes his address and tries to evade the situation. The penalty under the 1930 Act was £2. We thought it appropriate to bring that penalty more into line with the present value of money and to substitute £20.

These are rather small amendments of the 1930 Act but they are an attempt to improve it and do so in a way that the House can immediately accept in changing the law. These proposals do not require further elaborate study. They can all be implemented now and would, in a practical sense, contribute very substantially to improving the status of the illegitimate child.

By far the most important section is section 10, which attempts to give the illegitimate child property rights. It provides where at any time after the making of an affiliation order the putative or admitted father of the illegitimate child or any other person dies intestate in respect of any real or personal property, other than property subject to entailed interest under a disposition made before the date of the affiliation order, that property shall devolve in all respects to the illegitimate child with the child of the putative or admitted father and the mother born in lawful wedlock.

One criticism that could be made of this provision is that it confines itself to the case where affiliation proceedings have been brought, where there is a putative or admitted father. It might be said that if there is to be a genuine attempt to bring full equality there should be a statement of the fact that the illegitimate child has property rights, and it could then be a matter of separate proof to establish the necessary evidence of parenthood. It may be possible to introduce a more simple method of declaring and acknowledging a child for the purpose of giving property rights to a child born outside wedlock.

Subsection (1) is the formula for creating rights on intestacy for the illegitimate child on the same basis as a child born in lawful wedlock. Similarly subsection (2) tries to meet the position where a disposition is made of real or personal property either by deed during the lifetime or by will to operate after death. We try to create an equality of status for the illegitimate child, so that the illegitimate child can also come in under the Succession Act and defeat the will in so far as it totally deprives him of any right of succession to the property of his natural parent.

On this Second Stage the House is not concerned so much with the detailed technical provisions of the Bill. What is required is an assessment of the underlying principle that the present laws fail to live up to the constitutional standard proclaimed in Article 40, section 1, of equality of human persons before the law. One can point to most unjust, unfair and victimising discrimination of innocent children in our legislation. The Seanad is asked in this Bill to give leadership in changing the existing procedure in relation to affiliation proceedings and in giving property and succession rights to children born out of wedlock as part of an overall programme to change the status of the children themselves. The Government, in bringing in a Children's Act, must eliminate all discrimination, must remove the concept of illegitimacy from our law, if they genuinely want to create equality between children born in wedlock and children born outside wedlock.

I recommend this Bill to the House.

In Belfast, a part of the country from which we might well take a lesson now and again, there is a legend outside a city centre church which reads: "Despite inflation, the wages of sin remain the same". This is a crude and a sad statement. This Bill's purpose is to effect a fundamental change in the situation whereby the wages of sin, if one must call it such, are almost always paid by the innocent party.

Senator Robinson has gone into considerable detail on the constitutional backing for her action in bringing in this Bill. I can do nothing except agree with what she has said. I should like to draw attention to two very small points of detail at the beginning and then make a few more general remarks.

The present state of the law discriminates effectively not only against children who are illegitimate in the normal course of events but children who have been retrospectively bastardised by the operation of a nullity decree by the courts. I should like to make it quite clear that I am not speaking about nullity decrees given by clerical courts which have no civil effect in this country but nullity decrees which may be in certain circumstances awarded by Irish courts. The bitter irony of the situation is—indeed it has been referred to, though not in the same context, by the Catholic bishops—that children of the marriage declared by the courts of the land to be null and void are in a considerably worse position than they would be if their parents managed to get a divorce. There is considerable opposition to the idea that divorce should be introduced into this country and yet the one thing that can be said about divorce is that it is partly, at any rate, an attempt to provide for children. We do not have even this residual attempt to provide for children in the only procedures available in the courts, namely the nullity procedures. This may affect children very seriously indeed.

The second detailed provision of the Bill, to which I would like to refer, is section 5, which extends the weekly payments idea to all children above the age of 16 years, who are undergoing full-time instruction at any university, college, school or other educational establishment. I presume this means under the age of majority. I am not sure whether this is 18 or 21.

There is much conflicting evidence about the importance and value of education to children, but at the very least it is recognised that educational deprivation is one of the major components in the general vicious cycle of deprivation which affects so many children in this country. I am particularly glad that this provision has been written into this Bill because, while it will not necessarily solve all the social and economic problems of illegitimate children, it at least sets the wheel moving in the other direction. It acknowledges that equality of educational opportunity is the right of the illegitimate as indeed of every other child. It acknowledges that one of the main obstacles to participation in education by deprived children is financial and economic. It takes some modest steps to ensure that, whatever obstacles are in the way of an illegitimate child's access to further education, financial ones should not be numbered among them if at all possible.

Senator Robinson has given chapter and verse for the statistics about illegitimacy in this country. The figures that she gave are indeed very sobering ones. We have to remember that shortly after the introduction of special allowances for mothers of illegitimate children by this Government—a very forward looking step that was—the number of applications rapidly increased into the thousands. I am quite sure these applications are still increasing. I see no reason why they should not increase. It is certainly true, as Senator Robinson said, that the illegitimacy rate is high and is rising.

I would refer the Seanad to a more detailed survey than any she quoted from, carried out by the Southern Health Board in the region of Cork city and county and Kerry. This was reported in The Irish Times on 18th April last year and noted that illegitimate births in this area had practically doubled as a proportion of total births there since 1965. This is very relevant in terms not only of the Bill we are discussing this evening but in terms of our social welfare expenditure and our social welfare priorities.

Illegitimacy is a very complex phenomenon. I often wish that people who stigmatised it paused to reflect before they did so on the complexity of the phenomenon and on the inadequacy of any of the popular solutions which are frequently advanced to cure it. If I may mix scientific and popular jargon for a moment, it could safely be said that not all bastards are illegitimate and vice versa.

To return to the question of the statistical look at illegitimacy, I think we should support a measure like this precisely because it is designed to make responsible for the welfare of these children some of the people whose responsibility primarily it is. I am not saying that the State should not support and look after illegitimate children. The Government have in general shown much more flexibility and understanding of this problem than other administrations in recent years.

There is a very good argument, on the other hand, for ensuring that the State should not be asked to bear an undue proportion of a burden that other people are unwilling and not unnecessarily unable to bear. I am not holding out to the Minister for Finance or to the Minister for Justice the prospect of considerable saving in public expenditure on social welfare if this Bill were passed. But there is an important principle here that, if there are resources in private hands which can be used for the maintenance and welfare of illegitimate children, there is every argument for using these resources where possible and allowing the State resources to be used as a supplement in this area or in other areas of social welfare where they may be needed.

There are very important moral principles involved here. This Bill is not about the prevention of illegitimacy. It is not about morality in that very narrow sense. It is an expression of the fact that the State, the community and the parents of illegitimate children have a duty and a responsibility to look after these children. None of us, looking at the modern phenomenon of illegitimacy, can take it easily. As Senator Robinson pointed out, there is attached to it a stigma, a source of trouble for the child and for at least one of its parents in later life. We have to accept the fact that, for a wide variety of reasons, illegitimacy exists. It is increasing and, much as we would deplore the increase in the illegitimacy rate in view of the human suffering which it involves in very many cases, we must accept responsibility in the matter of looking after such children when they are born.

When this Bill was first published it provoked some public reaction. I was delighted to see that. I would hope that this debate will spur even more public reaction and comment on the whole question of illegitimacy and the law.

There are two articles in particular to which I should like to draw the attention of the House, one critical and one approbatory. The critical article appeared in The Irish Times of 24th October this year. It is by Dervla Murphy. I shall quote one paragraph from it which was a direct comment on our Bill after it had had its First Reading:

It may safely be assumed that for a long time to come the unit of husband, wife and legitimate issue will be generally regarded in Ireland as the only possible family unit. And against such a background, no amount of well-meaning legislation can lessen the chief handicap suffered by illegitimate children who are not adopted—the emotional deprivation of being brought up by only one natural parent.

This article produced another article, in effect a reply, in the same paper on the following day, by Maura O'Dea who is Chairman of CHERISH, the association for unmarried mothers and their children. In her reply to Dervla Murphy's article she wrote:

To say that the law must be changed because men may never admit paternity is to condone a system of exploitation of the weakest section of the community—children. The idea seems to be that men must be allowed to "sow their wild oats" and must not be called to account. The fact that the oats happen to be a child is just too bad.

These two reactions I found extremely interesting, not least the critical reaction by Dervla Murphy because it displays a reaction which to my mind could be very common among Irish people and which could effectively militate against what this Bill and we as its sponsors are trying to do. Fundamentally, the misconception on which this sort of criticism is based is a misconception about what the Bill is setting out to do. At this point one should, even if only in negative terms, make it quite clear what the Bill is not doing, what it can never do and certainly does not propose to do.

As I have already noted, it is not a Bill to prevent the birth of illegitimate children. You could, if you liked, argue that it might have this effect in so far as people who are involved in casual extramarital and other associations might after the passage of such legislation think twice before allowing themselves to be put in the situation in which their relationship might produce a child. Obviously, the more selfish such people are the more unlikely they might be to produce an illegitimate child if they knew not only that they might have to support it through paternity orders but that a substantial proportion of their property might devolve to it in the event of their death. You could, if you liked, on a strict legalistic basis make out a rather unreal argument in favour of this Bill as a Bill which might prevent the type of association which I have described from producing illegitimate children and promoting a responsible attitude to sexuality.

This is not the fundamental purpose of the Bill and indeed if it turned out to be such a purpose it would be only accidental. The whole question of preventing illegitimate births is a matter which covers such a wide spectrum of education in public and social attitudes that I doubt if any Bill could be devised which would deal with it properly. Neither is this Bill legislating for love. Ms. Murphy's criticism of the Bill was based, partly at any rate, on the argument that it will not make up to an illegitimate child for the lack of love, the lack of a suitable environment which follows from the fact that the child is being brought up by only one parent.

Again, as in the case of illegitimate births, there is no way I am aware of that anybody can legislate love into existence. Love for children, whether illegitimate or legitimate, exists or it does not exist. It grows or it does not grow and it can die. Whatever you may say about it, you cannot legislate it into existence. It is no purpose of this Bill to do so. This does not mean that the sponsors of this Bill are in any way callous about the kind of situation which is involved in illegitimacy. It does not mean that we are not concerned about the lack of love which mars and scars the lives of so many young children in this situation. But we recognise there are limitations to what legislation can do, and our Bill is an attempt to probe the limits of what a Bill can do in a humane and balanced way.

Perhaps it might be put forward as an argument to some critics of the Bill, although not to Dervla Murphy, who think that this Bill may subsidise immorality. Certain critics may think of it as such. If they do, I would ask them to consider whether perhaps the time has not come to redefine immorality, especially in this complex area of family relationships—whether the time has come to consider that we may never have defined morality and immorality adequately.

I should like to put in this context a number of propositions which have governed my support for this Bill. I believe they are propositions which will be assented to by the proposer and other supporters of the Bill. I put them as moral principles which should govern the law in relation to children and more especially to the law related to children who are commonly known as illegitimate.

The first is that the personal social and economic welfare of every child is a primary moral obligation of that child's parents and of the community as a whole. This sounds simple, but if you note that I am refusing to categorise the child as "legitimate" or "illegitimate" you will see that it is a proposition with potentially radical consequences for legislation and in social attitudes generally.

The second is that children are entitled whenever possible to a balanced and stable home environment.

Thirdly, the stability and balance of any home environment is fundamentally a function of the human relationships involved and only secondarily a function of the legal relationships between the persons concerned.

The fourth is that the law should support, or at the very least not discriminate against, the children of family relationships whether these family relationships are hallowed by law or not.

Essentially, I am making two different types of case in favour of illegitimate children and their property rights. The first kind of case is based quite simply on the reality that a child exists and that it is entitled morally to support and to whatever succession rights can be devised for it from its parents. This is a right that exists irrespective of whether that child is the child of a one-parent family or whether the child is the child of a two-parent family in which the parents may be living in a legal marriage.

The second kind of claim I am making is precisely on behalf of the child in the latter situation. For the child of this type of situation I am demanding not only the recognition of a right which, in the case of a child in a one-parent situation, may have to be exercised against opposition, but the removal of a disqualification based on a legalistic, inhuman and, I suspect, sociologically quite inadequate view of the human family. The key matter in all this of course is property. If no human beings owned property I suspect the question of illegitimacy would never have arisen, or if it had arisen would never have generated one-quarter or one-sixteenth of the friction that it generates today. This is a sad but certainly recognisable fact of modern times. Many of the highly moral attitudes towards illegitimacy are in reality no more than a transposed and transferred or concealed justification of the rights of private property. It is a justification which is fundamentally selfish and which fundamentally works against the best interests of the children concerned.

I would remind the House, only in passing, that this right of private property, which as I have said is the hidden basis of so much of our popular thinking about illegitimacy, is one which has never been as widely accepted as it is in some quarters at the present time. In the Christian Church there has been a very long and distinguished tradition of rejection of the right to private property, of promotion of the value of communitarian existence and of the common ownership of goods which our modern moralists might do well to pay attention to. In our own tradition as a Republic and before the coming into existence of the Republic, there was an equally strong tradition of socialism through Lalor and Connolly and similar people.

When we talk about private property and its relationship to succession and to intestacy and to illegitimacy, we should beware of speaking and acting as if this was some sort of inalienable right which pre-existed all other human rights and in some way governed and controlled them. I think it is true to say that the right to private property as a concept has been used to buttress some of the most inhuman and anti-social aspects of modern society, some of the most depriving forms of exploitation of man by man that we know in the world today. Yet in actual fact it has always been a right which has been very circumscribed. When it suits people they claim it as an absolute right, especially when the people against whom they claim it have no comeback. This is particularly true in the case of illegitimate children. When public pressure grows, people are prepared to cede a little and sometimes they cede a great deal more as long as in some peculiar theoretical framework this great right to private property remains intact.

As I have said, it is a right which in practice is severely circumscribed. It has been circumscribed in our own country and in our own time by the Revenue Acts, by the Succession Acts, by the wealth tax. Almost every form of taxation that you can mention is a qualification of this allegedly para-divine right to private property. Yet we draw the line at a further infraction of this right in situations in which innocent children are involved. I really think that we have to examine our scale of priorities, we have to examine our sense of values when we find ourselves doing this. We should not be sanctimonious about this. Basically we should face one rather indelible fact and that is that our prejudice against illegitimate children is based fundamentally on personal and social judgments about the morality or otherwise of the act which produces them.

Let us have the courage now, I ask the House, not only to change the law— which can and must be done—but to change the attitudes and the values which have helped to make this law as inhuman and as discriminatory as it now is. We may change the law but if we do not accept at the same time the need to change our attitude and prejudices the advance will be small indeed.

It gives me great pleasure to support this Bill introduced by Senator Robinson and now spoken on by Senator Horgan. The preface to what I have to say on the Bill is something very simple and it is this. When it comes to replying to the arguments being made, we will be faced with fundamental principles which naturally arise on the Second Stage of the Bill. That is, we may be told: "So much is legally possible now and it should satisfy you, and for that reason you should withdraw or delay your Bill."

In reply to that, I would remind the House of something said by Senator Robinson when introducing her Bill. She was quoting Article 45 of the Constitution—that the State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life. An interpretation of that Article of the Constitution in my book means that law is an instrument of justice and justice is, I am sure both sides of the House would agree, an attribute which is claimed by society structured on different principles, in other words, that society does not exist for the law but rather that the law is an instrument of justice, and Article 45 asks us by our actions and by our legislation to ensure that what we do in both of these Houses will in fact defend a social order in which justice and charity shall inform all the institutions of the national life.

This is a modest Bill. It speaks only of those children who are referred to in the Bill as illegitimate children, and I might say at the beginning that the State has not gone nearly so far towards defending the children of the State, not to speak of the subsection of those children of the State referred to as the illegitimate children of the State.

We have seen the document which Senator Robinson used as an instrument to begin her speech with. In that document was a number of pious pretentions towards the principle of life, towards the principle of children living in dignity, towards the society circumscribed by dignity. Not only have we made those principles hollow but we have taken refuge in legal instruments which often express the negation of those very principles which might be somehow or another extracted from the Constitution, a document which is not adequate in itself.

In supporting the Bill, I am not happy with the term "illegitimate" in the Title. It is distasteful to me for a number of reasons. It has being used in more popular places. People have used the phrase in debate and they have used it because this House should be a place where people speak honestly. People have been called bastards in our society. They have been called that for specific reasons. It helps to isolate individuals from the main current of social life. It helps to stigmatise the individual. Externally it can be used to set the individual apart. Externally it can be used to deprive the individual of opportunity. Internally that stigmatisation may be expressed in the lowering of the individual's self esteem.

In the most definitive book on stigma, by Edwina Schur, a woman writer, she said: "My father looks at me and he begins to cry. What should I do?" This is in respect of a physical defect and in cases of physical defects individuals feel they are set apart. What we are discuss- ing now is not a physical defect. It is a social defect. We are setting people apart—this is what we are speaking about.

The principles involved in this Bill are very simple as far as I am concerned. First of all they are principles as to whether we are willing to acknowledge that every child born in this country is entitled to begin life equally, to begin life free from the consequences of the actions of his parents one way or another. I have said I am unhappy with the Title of the Bill—The Illegitimate Children (Maintenance and Succession) Bill, 1974—because remember what we are doing in this very modest piece of paper: we are deeming in one of the Houses of the Oireachtas to give away certain rights which decently structured society would have given away automatically. If we were the Christian society we have the pretentions to claim to be so often, we would not find it necessary to legislate property rights into existence for all of the children of the nation. We would not find it necessary, for example, to protect a mother from writing off her rights to look after her children. We would not find it necessary to insult, for example, the parents of the child born out of wedlock in the future relations with their child.

We find all this necessary because our legislation lags behind the kind of society we might be. Our society is not human enough, so we have to legislate some semblance of humanity into existence. Again, by way of being preliminary, I would ask people who might vote for or against this Bill and who might favour a more sophisticated adoption procedure have they the proof to place before this House that children are better served in institutions than in relations with people who are their blood relatives? Where is that proof?

Does not the proof exist that children born out of wedlock and parents of children born out of wedlock have been systematically insulted in the history of our society? What has been our attitude? This is 1974 in Seanad Éireann. We are to decide on this. We have in the Lower House just now been reminded of the economic realities of 1974 in a particular time of 1974. We should ask ourselves are we willing to be reminded of the economic realities of 1974 in one House and to have the social attitudes of the 19th century in the other House. If that is our attitude we should say so.

I believe that both of our Houses should enact legislation which is human legislation. There has been an attitude, something which is unfortunately not often brought out in the open in this country, that the people who beget a child out of wedlock are somehow or another a special kind of people. There is indeed a case in the history of our courts here as to why a child born out of wedlock is a particular kind of child. I quote from now Deputy John Kelly's Fundamental Rights in the Irish Law and Constitution. In quoting a particular case, and giving the opinion of a judge, he suggests:

In the opinion of the Court each of the persons described as having rights under ss. 14 (1) and 16 (1) can be regarded as having, or capable of having, in relation to the adoption of the child, a moral capacity or social function which differentiates him from persons who are not given such rights. When it is considered that an illegitimate child may be begotten by an act of rape, by a callous seduction, or by an act of casual commerce by a man with a woman, as well as by the association of a man with a woman in making a common home without marriage in circumstances approximating to those of married life (the latter was the situation here), and that, except in the latter instance, it is rare for a natural father to take any interest in his offspring...

Here we have a member of the Judiciary in this case offering an opinion not only on parents but making a prognosis as to a child's life in future—the child is to be the accident of the judge's opinion of the parents.

Is that the kind of society we want? I would suggest it is not. It is very sad in 1974 that a Bill with the title Illegitimate Children (Maintenance and Succession) Bill should have to come before us. I disagree with the concept "illegitimacy". I dislike the Title, but it is necessary if there is to be an appropriate legal change.

In disagreeing with the concept, I believe that all children are children of love. All children, then, should begin equally in rights, and property should exist for those children. That is why I support the Bill, and when I come to comment on the sections I will express opinions as to why I wish it had gone very much further. As I said, we appear to be conceding, in the second half of the 20th century rights to children that we have deprived rather dreadfully.

Reference has been made to the concept of the family itself. What do we want to define the family as? The last speaker mentioned that "family" should be given a different sociological definition. The family has indeed been so defined. The family can be defined as the nuclear family of the modern age, the extended family of a previous time, their advantages and disadvantages— the anonymity of the nuclear family, the community provisions of the extended family. Indeed some people refer to the family of God. But if they refer to the family of God, do they include those who are particular members of the family of God who can inherit property and those who are bastards within the family of God and can inherit no property? They are referred to specifically in the second half of the Bill.

Here there can be no quibble about what the Bill is at. The Bill in its early stages begins by, for example, proposing something very simple. It adverts to first of all the emotional state of the mother and to the position of law in relation to similar circumstances in other countries. In relation to the first of these, it realises quite rightly that when a child is born very often the mother's immediate reaction is emotional. Yet under present law she needs to act quickly or forever forfeit her rights. So the simple provision, then, is to harmonise the law even in relation to other legislatures often referred to as pagan.

In many cases here in the particular section, I find it again tedious to even suggest the amendments. When you think of what is involved—section 6 of the Act, for example, amends a previous Act by substituting the sum of £100 for £50. Again, in paragraph (c), £100 is substituted for £50. Senator Robinson commented on this point, but I would go much farther than she did. I would change many of these sections to provide £100 per week or £1,000 a week so that when a woman appears before the court she will never be circumscribed by inflation. I have no training in law but I have some small experience in social life and some training in sociology. A woman must balance out what she is likely to get before enduring the shame of appearing before the courts. I would suggest a huge sum of money so that she would never have to do such a balancing act in the future.

Again, we must think of the indignity of the previous legislation: the change in sums of money, the provision for funerals. The people who suggest changes in this Act should suggest changes to expand and strengthen it. The monetary provisions should be deleted and larger provision substituted. The Minister should take up Senator Robinson's suggestion. It would be encouraging to hear him say "I have found the Family Law Reform Act of Great Britain, 1971, and the Status of Children Act, 1969, insufficient. I have decided to bring in a law which will give children even more. There will be no such thing as deprived children in Ireland in future." This is the kind of reaction we need to this Bill, not people voting against it.

I come back to the word "family". I want to comment on it because it occurs in the Bill. I must confess a personal preference for the word "household" to word the "family", because I have found "family" in discourse in Ireland, in the Press and professionally, to be used in a rather limited sense. It is used by mafia in a more general and often in a more Christian sense than I have heard it used in Ireland in recent times, in so far as it extends to more people and with a greater equality in relationships than is normal here. When a person attaches himself to a household for a long time he is entitled to the sustenance of that household.

The provisions of the Bill before the House are very specific. There is a change in penalty for changing address. Section 10 deals with the substantive matter of the Bill. People may say: "We have changed the rights of the woman. We have given her more time." I believe we could have gone farther in that matter. In many cases the procedures could be expanded and improved. This is the disadvantage of the Bill being brought in by an Independent Senator, although a gifted one, which should have been brought in before now by the previous Government.

Take the whole idea of property— the idea, for example, of an admitted father. I am not sure myself as to what constitutes admission; or if we are speaking of admission before the courts or whether it merely means a father says to the mother that he wants to admit that the child is his and assume responsibility and share whatever possessions he has with the child. He cannot do this at present without a series of degradations. The Bill does not remove all of these degradations; it could have gone farther when it is primarily concerned with them.

That is the whole substance of the Bill. It is the idea of whether all children are equal or whether children should go through life with the mark of degradation on them. It is also about the procedures of degradation. To come to my point about the money, how could the award of it ever compensate for the loss of love which might exist between two people when its granting must be acted out in court? What might take place in such a court? A child born of a moment of love suddenly becomes the object on which a judge can sit and decide his portion. Is that what we want? Children governed by legality? Children the victims of successful degradation ceremonies in court? What we should do is to make sure that property and the law precede the circumstances of the law itself, that the rights of children and the rights of the usage of property are attendant upon people rather than that people should have to adjust themselves to the procedures of law.

Senator John Horgan said something which might be regarded as almost cynical: we would hardly have any argument if it was not for the question of property. This, unfortunately, is not true. It is true to some extent that when you decide, for example, to enforce equality, at least in terms of responsibility for one's actions in relation to children who have been born, it hurts people and people will object to it.

I have the greatest sympathy for many people living in modern society. Our society is not a socialist one. If it was, it would not be necessary to have this legislation which we have now. Therefore the people who object to the Bill should do so openly. They should say: "My objection is that I want to protect my property against all of my children and keep it for some of my children." That would be honest. What we are saying is that all of one's children are entitled to all of the consequences of one's activity other than one's activity in relation to love itself. It is a very simple point.

When I said that Senator Horgan was somewhat wrong, here I was remembering what I had read in the statements regarding the moral judgment that had been made as to the kind of people who are involved in producing children out of wedlock. Here we are dealing with something more vicious. How dare people stand in judgment on the act of love? If people decide to be members of a particular religion that is their business. It is something that needs to be respected. In many cases it is based on something established over time and not without consideration. They are not necessarily established only in western culture. Other cultures have existed and have been wiped out by the logical extension of some of the western practices.

If the State then be a religious expression, that is one kind of impertinence because it means that we are opting out of modernism. Then you are suggesting something else. Not only have you the right to subject the State to religious creed but the right to subject a particular category of children to social opprobrium because we feel like it. That is what we are undoing. We have been refused the right earlier on today to redress some of the relationship between Church and State. We should be allowed in this Bill to mitigate some of the opprobrium which society has directed against a section of our community.

I believe that we should not only be thinking of the present and the future and the quality of our law now but of the terrible things we have done in the past. There has been, as a result of the class division in our society, the abuse of institutions to allow certain categories of the population to be released from their responsibility, to release children into society, stigmatise them, give them the badge of being children who have been in an institution.

In conclusion, I must say that unfortunately none of the kind of changes that I would like is contained in this Bill. What is it doing? Tidying up two Bills and an Act of 1930; changing succession rights—and there will be people who will object to that. They will say there is no sharing of property. We all look for the ones we want responsibility for. There will be people who will say we have the right to make moral judgments on people who make love. Good luck to that sort of people. It is a sad situation in 1974 if we have to begin at this stage. It is a very small step. It is just the beginning of the redressing of the huge imbalance against women in regard to their rights in society. It is, more importantly, the beginning of the assertion of rights for children which have been granted in societies older than ours and more repressive than ours. It is the beginning of ending the myth that a child out of wedlock belongs in an institution rather than with his parents. What we need to do now is to mould society in the interest of its future children. It may be sad for us to have to take up the burden of oppression which we have raised against children, of the terrible legislation, of our terrible guilts of omission. But it still is not late and I would appeal to all Members of the Seanad to support this Bill.

Before I refer to the Bill itself I should like to make some remarks putting this measure into its context in connection with the changes in and our changing attitudes to family law. It is significant that this measure is sponsored by Senator Robinson and Senator Horgan. I salute them and Senator Higgins who is a member of the group. It follows a pattern which has evolved in this House, of the Seanad becoming a forum for discussion of subjects of extreme sensitivity in the area of family law and family morality. In some cases this House has discussed these measures before; they have had much public discussion. In other situations the reverse has been the case and there has been considerable demand in the media for changes in the law before the Seanad has had an opportunity of having a full debate.

This Bill is one of a continuing succession of attempts by Senators to change our attitudes which have become outmoded; to change legislation which may have suited a previous age but is no longer suited to our society in 1974. Before the recent Adoption Act of 1974 was passed—in the period of the previous administration—we had a long, detailed debate in the Seanad on a previous Bill, again sponsored by Senator Robinson. There was no question but that the debate in this House at that time and the debate again when the Adoption Bill of 1974 was introduced here by the Minister for Justice had an important effect. The debate was marked by sensitive contributions from all sides and from Members representing a diverse section of the community. I feel that this debate will help to focus attention on another specific problem—the problem of the illegitimate child. Whether we like the name or not, it is the legal title for these less fortunate people. It is something that this House could well spend some time considering. I hope this debate will continue in the spirit in which it has started.

I mentioned in a previous debate of this nature that our legislators have run away from the problems in this area. This is highlighted by the fact that the two most important changes which have taken place in connection with family law have been made not by the Oireachtas but by the Supreme Court, declaring two particular pieces of our legislation to be unconstitutional. One was concerned with the availability of family planning methods and the other was concerned with the adoption of children by couples of differing religions. It is a particularly sad reflection, an accurate and a true reflection, of the fact that until recent debates, particularly in this House—and I think that this House is a forum in which the subject can be discussed and has been discussed in a constructive frame of mind by all—the attitude that prevailed was that these matters were, for some reason which is not clear to me, problems which should not be raised or brought into the open, that if you swept the whole business under the carpet, and that if you kept doing this often enough it would disappear. This attitude has changed because of efforts by Members of this House to highlight these problems. Highlighting of these problems has also been done by the media. But the change has been brought about mainly by a change in attitude among the people. They are more concerned with these problems now than heretofore. The rulings of the Supreme Court reflect the feelings of the judiciary and the feelings abroad in the land. People now care more about these problems and this change of attitude has spurred the Oireachtas to get to grips with these problems. In my opinion we are rather late in the day.

This Bill is another attempt to deal with a specific problem. In the delicate area of family morality there is no question that the Church is involved. When one speaks of the Church in Ireland, one should not, of course, speak of one single religious denomination. So often when we say the Church in Ireland we mean the Roman Catholic Church. The other Churches, I feel, are often as dilatory in these matters—not always, I am glad to say, but often— as the Roman Catholic Church appears to me. On this particular issue, Senator Robinson has pointed out there is no question but that the Church favours change. It does not defend the status quo. This does not come just from the young, radical members of the clergy and laity; this opinion comes from a hierarchical commission and we can take it that it reflects, to some extent, the hierarchy's agreement with the necessity for changes in the legislation and changes in our attitude to people who are legally termed illegitimate.

There is another reason why, at this time, we should consider this change a matter of urgency. It was touched upon by Senator Higgins when he talked about the family and he said he preferred the word "household". I agree with him and I think this indicates that the family and family structure has changed very rapidly as we move from a rural to a predominantly urban society. There is no question in my mind that the family, in the rural context, has a more all-embracing nature than the family in modern suburban surroundings. When I grew up in the country, it was commonplace, and it still is, for one's parents and grandparents to stay in the same house in which they lived and in which their children grew up. They married and reared their families in that house and old people rather than being sent away into old people's homes were part of the family community, the household, which is the basis of our society. Sometimes against our will, as our life changes, as the proportion of city dwellers grows and the proportion of people living in the country decreases, the family take a bit of a bashing. In the environment in which I grew up we had a family consisting of grandparents, aunts, cousins and uncles. A real family. This was in a country house. My family were by no means rich but they were not poor. They were better off than average and this was mainly because both my parents had professions and worked all their lives and earned money all their lives. We were about twice as well off, say, as a family whose father had been a schoolmaster, as my father was. We did have a little more latitude but that was not the point. In the ambience in which we grew up the family included grandparents, cousins, uncles and people who were less directly related to the breadwinner and the offspring than the word "family" would mean now. If I were married and living in a suburban environment I would find it really difficult to keep grandparents, aunts, uncles and so on in the house. While I would do this if I possibly could on my means, in the end, after an attempt at widening the family circle, making it more of a household than a family, I might be forced to send them to old people's homes, to other accommodation in some other part of suburbia. I might be forced to tighten the reins and reduce the family unit to just parents and their children.

This has a direct relevance to the measure we are discussing because there is no question, if we go back far enough, that the distinction between legitimate and illegitimate children was slight. Going back to Celtic times, the illegitimate children had more rights in inheriting property than they have now and the family was an all-embracing unit.

If one goes back to Celtic times the illegitimate children certainly had more rights in terms of property than they have now. The family was an all-embracing unit. As the family increased in size, the problems of illegitimate offspring became more acute. They are often consigned to institutions. It is a sad fact and something we should try and change. This is another compelling reason why the law concerning illegitimacy, maintenance and succession should be reformed.

Debate adjourned.