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.