I am not clear if the Minister for Justice can be here. I think it is understood he is having a very busy time. I spoke to him earlier today and he was in some doubt as to whether he would be able to attend or not. I suggest that we continue with the discussion.
Illegitimate Children (Maintenance and Succession) Bill, 1974: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I have been informed that the Minister might have a problem in being present in the House. I indicated that my attitude, as a promoter of this Bill, was that I would prefer that the Bill be debated and that the Minister would come in later and make his contribution. The debate itself can play an important role in influencing attitudes on the record. I only regret, looking at the pile of papers that Senator FitzGerald has brought with him, that there are not more people here to listen to him.
I should like to congratulate Senator Robinson on introducing the Bill and once more performing such a very useful function in so doing. Indeed, it is a pity to see her talents lost on the Independent benches. Her influence is necessarily limited and her ability to receive other good opinions somewhat narrowed by her failure to be a member of the Fine Gael Party, a course which I would encourage her to consider she might adopt: follow Mrs. Margaret Thatcher and become perhaps in time our first woman Taoiseach—although she would have great difficulty in reaching that eminence which can only be held, as Bagehot said, successfully by someone with uncommon abilities and common opinions. Senator Robinson undoubtedly has uncommon abilities but equally undoubtedly has not got common opinions. I think she would have great difficulty then in reaching the highest post in this land, capable of being rewarded by our political process.
I will go on, having said that in a complimentary vein to say this, that I hope not to sound patronising, because the debate, until I stood up seemed to be good. I missed the early part of the debate but I was happy to be present when Senator O'Higgins spoke on the second day of the debate. However, although I missed the first day, I read all the speeches made on that day, which were, I thought, extraordinarily good, even if many of the arguments offered in support of the measure would have to be resisted, and pungently rejected in some instances.
My interest in bastardy was greatly increased by the introduction of this Bill. I did not know as much about it as the sponsors of the Bill obviously did. Therefore I had to do rather more reading for it than I ever did before. I read the debates in the United Kingdom on the measure which introduced some of the elements in this Bill. The debate here has been far in excess, I thought, of the quality of either the House of Commons or the House of Lords. It is no harm to say that because we are so busy running ourselves down, as we did today so successfully in the point that some of us made with regard to the usefulness of the House.
I found it intellectually very provocative and stimulating. Before I go into the Bill perhaps I could be allowed make a few comments on some of the points that were made. Senator Michael D. Higgins—I have not got the precise words he used— used some such phrases as "We should not sit in judgment on another man's love, on another person's love." We must sit in judgment on all men's actions even if they may be described as loving actions, irrespective of their pernicious effects, because this is part of the business of making laws for the relations between people and the consequences for people of the action of others.
Quite clearly there have to be some laws with regard to how we treat the business of marrying, and the question of rights does arise. I presume what he is saying is that, in effect, the laws should be such as to give to the product of the most casual commercial exchanges as many rights as come to the offspring of a permanent, faithful, loving and lifetime union. Maybe this is a view which will be accepted by the House; maybe in due course public opinion here will accept this view; maybe this is a view many people today regard as the right view.
I suggest there will be considerable difficulties with regard to this the morally attractive argument made, as Senator Robinson said, for driving the word "illegitimate" out of the language, which I take it she means out of the statutory language. I will point out through the Chair to her shortly that this Bill will not do that, but that is another point. Maybe this is something which recommends itself to people, but all sorts of difficult questions will arise. For example, it is right to say, and is obviously correct, that practical difficulties are there even though there is the morally attractive argument of not having a wholly innocent product of sexual intercourse punished, treated adversely; of course it would be monstrous if he were not given rights, which he should have, equal with all legitimate children, to obtain anything from the State that a legitimate child would receive.
It is by no means clear to me at any rate that the persons who should pay the price of making recompense to him should be the mother who is betrayed, the father who is cheated and the faithful children of the house of a union where someone has grossly broken his or her bonds. That price should not be paid by them in all circumstances, irrespective of the circumstances, because there could be circumstances where this would be wholly justified and there could be circumstances where it would be totally unjustifiable.
In any case, with regard to this matter of sexual conquest it is no good simply saying that one cannot sit in judgment on another man's love. Of course, that is very fine. Society has got to take note of this basic strong sexual instinct and drive and has got to have laws which in some fashion reflect an opinion as to the manner in which these instincts should be exercised, given expression to and the legal consequences of this happening. I merely say that it is not as simple as Senator Michael D. Higgins said. In fact, much of what I have to say today, although not a repeat, is certainly in support of the line which Senator Michael O'Higgins expressed with regard to this. As I go along I expect to make that clear in a little bit more detail.
A reference was made by Senator Trevor West to the legal practice of the Celts. I do not know what source of information Senator West has on what the practices of the Celts were with regard to bastards. A "bastard", by the way, is a term of art. It is the correct legal description of somebody born out of wedlock. It is a legal word although it may be used in this pejorative way. Samuel Ferguson wrote, for example, about the Brehon Laws with regard to this: in the annual allotment of the commons there is no objection to bastardy, but not so with regard to the portion dedicated to the family. The policy there was to make legitimacy the absolute test. It is remarkably interesting to note how Ferguson's description of what was the Brehon Law in this regard accurately describes what is our current law.
The sections of the Bill which I wholly favour are the sections with regard to improving the maintenance provisions, the provisions for apprenticeship fees, the provision for funeral expenses and so on. We should seek to see that an illegitimate has all rights in relation to what is held in common, that is so far as it is made common by becoming part of the public purse. In relation to private property serious practical difficulties will have to be faced before we can proceed.
With regard to what Senator Robinson said, I think she identified the wrong culprit when she gave a history of how we have laws in regard to legitimacy. She said it derived from the Cannon Law's influence on the common law. I think the position is that nothing could be further from the truth than that statement. I invite Senator Robinson, when replying, to give some textual support for her proposition. Let us take, for example, legitimacy by subsequent marriage with which the Statute Book in England in 1926, secured very nearly 700 years later, what the Church and the Bishops of England sought to get at the Statute of Merton in 1236 when the barons withdrew shouting: "Nolimus mutari leges Angliae—We will not change the laws of England.” They would not change that law favouring the legitimisation of people subsequently married under church influence although the church had succeeded in getting that introduced into the civil laws of the continent and had originally persuaded Constantine to amend the Roman law to provide for legitimisation by subsequent marriage. In fact Lord Bryce, in a very learned essay on the whole history of the laws in regard to marriage and divorce, said that at all times the church was doing everything to try and legitimate. It did not illegitimate. It wanted to facilitate; it wanted the sinner to repent, and one of the acts of repentance was to marry the girl and establish a permanent union.
The Church's influence was being exerted throughout this period in favour of legitimacy and against illegitimacy in so far as it could. It was the Romans, first as lawyers and then through their influence as priests, and not per se as Christians, who in fact had this notion of legitimacy. The whole strength of the family as an institution is a western idea, an idea of a monogamous marriage. It is a western idea, strong and powerfully held among the Greeks and the Italians. Originally Herodotus speaks of the tribes of Scythia and Libya that they lived totally promiscuous lives. Their condition was polyandrous. The Persians and Babylonians, and even the Israelites at the time of Moses, were polygamous. Gradually the East was changed by the influence of the Romans and of the western world. The idea of the single monogamous lifetime partnership between a pair concerned and burdened with responsibilities for the children they bore is at the very heart of Western civilisation and marks its growth. In so far as it declined, it did so in that respect.
The later Roman Emperors were very worried by the developments at that time and the situation which was similar to that which develops now, where a degeneracy was taking place. They tried by laws to strengthen the marriage bond and failed. They only succeeded because the sects which they were persecuting came along with the teaching in regard to the inviolability and the indissolubility of the marriage institution. In the Germanic tribes legitimacy was such that you did not have a legitimate union if you married somebody not in your own social order and rank.
It is under the influence of the Roman law and the influence of the church that was changed. The Canon Law is not responsible for this concept, be it a good one or a bad one. Wherever it comes from, it is not the church. In fact, the Canon Law did not have anything to do with the matter of property rights. It is a misreading of the history of the common law to say that the ecclesiastical courts had any function whatever in the determination of property rights. This was entirely a function of the common law courts. Common law judges were establishing laws on the basis of what they found. They were Christian judges. One of the greatest of them, Coke, was known to spend a quarter of every day in prayer. He was a very noble man and a great figure in the history of the common law. The common law judges were concerned to find out what were the common practices of the Christian people of the Anglo-Saxon world. This is what they found was the common practice.
Our concern to make life as happy as we possibly can for people who are suffering in any way must continue. If there are any ways—I will suggest some—in which to do this we should adopt them. As Senator Robinson surveys this third day of the debate here, perhaps she will draw some little comfort from the thought that the Italian Parliament have now been debating a like measure and it is in its seventh year. The Family Planning Bill may go no slower than this one, if the Italian precedent is to be any guide to us, if Irish public opinion of which the law should be an index and a reflection in fact does not want this measure in the form in which it is offered to us.
It was not until the Council of Trent that even clandestine marriages were in any way at fault. The proposal to require a witness to a marriage to ensure its validity was intensely resisted and was one of the most fought over matters in the Council of Trent. They possibly reached the wrong conclusions, as often happens in matters which are debated intensely. If you think too deeply about something you often end up doing the wrong thing. It is to be noted that the secular powers in Britain, after the Council of Trent, imitated the Council of Trent and introduced similar ecclesiastical legislation making witnesses necessary.
Senator Robinson said that the Canon Law was responsible for something which is alleged to be totally odious. This is another way of saying that the church is responsible or that Christianity is responsible. It is another way of suggesting that St. Matthew created a lot of trouble in his text in regard to the indissolubility of marriage. I suggest the common law of England is a great deal more Christian than the Canon Law. Many of the concepts of the common law reflect the belief of the people in Christianity.
The belief in truth reflected the fact that people are required to make an oath binding their conscience to determine what is the justice between parties. The idea that "the letter killeth but the spirit giveth light" lies behind the court of equity. It lies behind all the law cases in which you will find the courts of these lands trying to soften the narrow rigidities in statutory law. It is part of the statutory law of this land that contract for the sale of an interest in land has to be evidenced in writing and you cannot enforce it otherwise.
But the courts have contrived in every way that has been open to them, inspired by this kind of text, to use any pretext to prevent the Statute of Frauds, as the phrase has it, from being used to do a fraud. Another illustration of it is where the actual judgment referred to a text in the Bible—"the snail is in the bottle case"—where a manufacturer is made liable to somebody who bought a product at the end of the distributive process but bought it from a shop without any meeting of the manufacturer and the consumer, and the judge said that you must love your neighbour; the manufacturer and the consumer were neighbours and as such the manufacturer should be rendered liable for his failure. The abolition of capital punishment, the inspiration behind it is still——
I am afraid I have to intervene. Despite fascination with the Senator's remarks, the Chair feels they are not being related to the Bill.
In so far as the introducer of the Bill has burdened the scribes who made the canon law and who were the members of an institutional church with responsibility for an evil which this Bill is directed to solve, and for fear that the House might be misled by this as to the authors of the mischief which is being fought, surely the Chair will permit me to continue my speech?
As long as the Chair is satisfied that the Senator while travelling is travelling in the direction of the Bill——
I hope the Chair is perceptive enough to see that I am travelling in that direction, but probably no faster than I intend to go, with due respect to the order which it is your duty to be the custodian of.
I welcome part of this Bill. Some portions of it are based on the equivalent UK Act. The Family Law Reform Act of 1969, which deals with many other things but deals with some of the things that are dealt with here. That Bill was introduced pursuant to a report of the law committee known as the Russell Committee. I have studied this and I do not think that this House should be coerced to reach the same conclusions on all matters that the Russell Committee, with one dissentor, reached. The report of the committee is a rather inadequate document. It reaches its conclusions all right. There is an obvious distinction between a mother and father in relation to the procreation of children. The mother is associated with the child continuously for nine months and the father's association may terminate after the first moment. Therefore the question of the reaction of the mother to the child and the familial recognition by the mother may be expected to be completely different from the reaction of the father.
If Father Fergal O'Connor is correct—he is reported today as saying that only 4 per cent of the begetters of illegitimates stay with the girl after the conception—it is rather horrifying to think of the number of fathers who seek finally to evade their responsibilities. There is also the natural fact which we cannot ignore: it is easier for a man to exercise these functions secretly and frequently and to have many such results if he has a sufficiently wide number of acquaintances to co-operate with him.
There is therefore a real distinction between the two, as males and females know. Therefore it is the decision of the Russell Committee and the recommendation which was accepted by the British Government and is enshrined in the Family Law Reform Act that gives these property rights to the children in respect of both the fathers and mothers. This conclusion is reached with a wholly inadequate supporting argument, in my view; a wholly inadequate psychological and social analysis and a confession of ignorance as to the full extent of illegitimacy and the extent to which there was in fact recognition by fathers.
Senator Horgan referred to the wages of sin—that despite inflation the wages of sin continue unchanged. The wages of sin will continue while men or women act as they do. The real deprivation is much more than material deprivation. The real deprivation is the emotional deprivation of a child who is repudiated. There is nothing you can do which will substitute for that deprivation of any share out of the loot when the old man dies. You can do a lot in terms of increasing the child's right to get a proper maintenance and proper education during the father's lifetime. We cannot legislate morality. We can help people to attach deterrents to the results of conduct, but if people go on in this kind of way and if society has this kind of view and if there is a psychological deprivation irrespective of the social view resulting from the rejection—a rejection which a legitimate child can suffer, too—there is no Act of Parliament which can make up for a callous, cold-hearted, blackguardly father who does not give a damn about his children whether they are legitimate or illegitimate. There is nothing we can do in the Seanad about that situation. It is just as well to be aware of the limitations of legislation. We can to some extent mitigate the consequences of conduct.
I thought it desirable to say that because I am not impressed by the proposition that merely because the United Kingdom has enacted legislation we must enact legislation of a like character, though there are very many features of the UK legislation with regard to this matter which recognise the practical difficulties that there are in relation to it and the dangers of it which are not specified in this Bill. Perhaps Senator Robinson will tell us why that decision was taken, what must have been, I am sure, a deliberate decision. Perhaps Senator Robinson will tell us why this must, I am sure, be a deliberate decision.
I am thinking in particular of the important safeguards with regard to blood tests and which, of course, provide as you would expect, that such tests will only be conducted if the person whose blood is being taken consents to have it taken. If he refuses, the court is entitled to draw a conclusion from it. But it is an important thing, and an interesting point is the view of the bishops. They are of interest to me on this one as although they were not useful to Senator Robinson on the other Bill they are useful to her on this one because they called for this bland abolition of all distinction between illegitimates and legitimates.
I do not know whether there is a doctor in the House, but I understand that blood tests on the man—and this is my reading of the understanding of the advisers to the British Cabinet in 1969—can only prove that he was not the father. It is a negative test. We cannot prove that he was. I think this goes really to the roots. There are great dangers. I see since reading section 10 that the kind of proof which is required in relation to an affiliation order proceeding is quite different from the kind of proof which will be required in a serious paternity action in the High Court fought under the equivalent Family Law Act, 1969. For example, one thing that the bishops say, which I would have liked to see in this Bill, and which they are right in saying, is that there should be some procedure whereby people who are going to be damaged, whose interest is going to be affected, should be able to come and argue their case. There are all sorts of possibilities of collusive agreements which may have been approved by a district justice in a hurry, possibilities of collusive affiliation order proceedings, which might be thought to be the sounder thing if you are really engaged in collusion whereby you get recognition of a child who is then made the recipient of benefits under provision for the child of a union which is thereby legitimated and through the child a fortune can be inherited.
At least the bishops recognised this in their statement. There should be provision for somebody to come in. But there is no provision. It is the father against the mother. That is the simple position in the affiliation order proceedings.
Senator Robinson said that she hoped this would abolish illegitimacy. If I understand her Bill, it will not do this, because she has adopted the Act of 1930 which defines a mother as any single woman or any widow or any married woman living separate from her husband and includes any married woman not living separate from her husband and includes any marriage was delivered of an illegitimate child. But it does not take in an adulterine child. The Bill before the House does not legitimate an adulterine child because an adulterine child is only to be legitimated where the mother and father are still living apart. If they are living together, the mother is not a mother within section 1 of the Affiliation Order Act, 1930, and her child is not going to be legitimated by this Bill—he will remain a bastard if we enact it.
Similarly, if there is no acknowledgement, if the mother takes no affiliation order proceedings—she is a proud woman and be damned if she would and has private means—she chooses to bastardise her child. He is remaining illegitimate under this Bill if enacted. Similarly, if she is dead she cannot take proceedings, or if a putative father has died before the proceedings are brought to a conclusion, in all these cases it seems to me we are going to have illegitimates after this Bill is enacted in its present form.
If we proposed to take in all adulterine children, that would be an interesting debate on its own. It is a very serious and important matter, requiring treatment of a most careful kind. Take the situation of a fetching lady with a consort who, getting bored with his wife, is looking for a little bit of excitement. He happens to have a lot of money. She knows he has a lot of money. She sets her hat at him. She gets a hold of his affections and they have a child by her deliberate plotting—and this does happen, let me tell you: I absolutely know of one certain case where it happened, where the woman went to get the man's fortune and got the man's fortune by this procedure, or a chunk of it. Very often in such cases a person will make a will and make a provision for such issue. But here we are talking about rights where he does not want to provide or where a provision will be made at the expense of the faithful wife and her children. I am not satisfied that this is something which we should adopt.
Incidentally, I am not clear what are the views of Senator Robinson and the other sponsors on the products of "incestuous" unions, but it seems to me, and I draw the Minister's attention to this, that the Illegitimate Children (Affiliation Orders) Act, 1930, may be unconstitutional if the view of the constitutional rights of the family are determined along any line on which the judges have been going in regard to marriage, because it seems to me it may entitle a sister to sue her brother for the maintenance of the result of their frolics, and it seems to me that this Bill would, because there is no provision against the products of incestuous unions in the 1930 Act, adopt it. I do not know whether that was as was intended, but I have raised the point because I was rather struck by it. However, I may be wrong. Maybe the language of the 1930 Act saves that situation. But if so the incestuous children will remain illegitimate.
Am I out of order in asking Senator FitzGerald once again to describe an adulterine child? I did not quite grasp it.
An adulterine child would be a child of a woman who is married as a result of her adultery with another man. I think that is correct language.
And would fall within the terms of this Bill?
No. I do not think so in all cases. With regard to the amendment of section 2 of the 1930 Act, I am really looking at every single phrase.
Everybody is agreed that a six-month period is too short. This limitation of the time within which the application can be made is too short. The English have made it three years, the bishops want it to be three years, Senator Lenihan said first six and then three to six. I do not know enough about it to know what is the right period, but on this one it seems to me that the English, with their experience, might be followed.
Senator Robinson's Bill goes much too far. It is hazardous in the extreme to think that a man could be made a subject of affiliation order proceedings 20 years after his alleged child was born to the woman. How could he gather evidence as to what he was doing on the night of the 2nd November in these circumstances? It would be extremely difficult, I imagine. There must be a limiting period during which he has a mind clear about what was going on, where he has had an opportunity of testing the corroboration which is offered. It is particularly dangerous when it is taken in relation to section 10—"in any disposition where there is a death after the date of an affiliation order." That means that an order could be made 20 years later and if he was 20 years old when he did this—give him a life of 60—there would be property rights emerging 40 years after the event in question in relation to a proceeding that was taken 20 years after it. There must be a limitation of that period; it must be cut back. Perhaps three years would be sufficient. Subject to a three-year period, I would welcome that.
I am not sure why the limit should be 16 years of age. There should be some power in the courts to extend it. Why should the test of the extension of the 16 years be the suggested test of full-time instruction in university college, school or other education establishments? I am not sure that there should be some power to look at the circumstances of every case. You may have a chap who could not get into higher education, whose role in life is to stay at home on the farm or build up in business or so on, but the circumstances might altogether justify a maintenance order going beyond the 16-year period.
I am not sure that the £200 for the apprenticeship fee is enough. That should be more. The Minister might alter the amount, presumably upwards. As regards section 10, a point which occurs to me relates more to criticism of the Act which it is proposed to amend than to this Bill. When there is a case under the old Act where a maintenance order is made at a time when there was a limitation on the amount which could be awarded, or where there is a case of an agreement which was approved at a time when the justice had to take into account as one of the tests for approving it, perhaps the child would do better if he got an affiliation order. It seems to me there should be some procedure whereby somebody would get a right under that agreement that he could have got by virtue of the raising of the levels to a higher figure if he had taken the affiliation order proceedings. There should be some system of varying these agreements, restoring the right to come in, which I do not think is there, because it is a bar to all proceedings. That is the word used in the section. If this agreement is sanctified, the man cannot come back looking for a variation of an affiliation order for which he has never previously looked. That is a defect which ought to be amended.
Still on section 10, I think it would be monstrous to apply this Bill in respect of proceeding which had been taken before this Act came into force, when the father, weak-mindedly perhaps, may have agreed not to contest the matter, not realising he was giving away quarter of his estate as a result of Senator Robinson's Bill and thinking he was only liable for the lump sum payment or the weekly amounts.
Secondly, I think very strongly that in affiliation order proceedings, the method of establishing paternity should be far more serious in relation to any property rights that are to be given to the results of the union. I notice—I do not know if this is deliberate—that the illegitimate child was the only one to whom the affiliation order has been made under the Act of 1930, also referred to in the first subsection. There must be provision made "or an order has been made under the Courts Act of 1971" if the alternative proceedings have been brought instead of the affiliation order proceedings.
The dangers of this section as regards property are very considerable. I agree with what Senator Horgan said that there ought to be provision whereby children of a union which has been declared null and void should not become illegitimate. That, certainly, should be amended. The only alternative in claims against fathers is that the Court takes account of the familial relationship. It is the child who is being accepted into the house and reared as one of the family to whom this is being done particularly in recognition by the father of his obligations. Maybe the father in that case is not the father of the child. The head of the house may loyally stand over the child whom his wife may have borne for another before they married, for example. He may be prepared to accept it but may fail to make a will.
There is vaguely some effort to say that this is the sort of will people in these circumstances would be likely to make. The law which treats a mother's illegitimate child as having fewer rights in her. will than her legitimate children does not reflect what, in most circumstances, a mother would want to do. In most cases the will making would take care of them. We are talking about wills that are not providing for illegitimate children: we are trying to provide a system whereby these children will have a right to come in and look for provision. Where a child has been recognised by a father who failed to make a will, and where there is no evidence that he was unfair to his wife, where there could not be legitimation because they could not marry at the time of the conception, some provision should be made whereby the court could have regard to the justice of the situation.
It is rather odd that you could have a situation, if the estate is small enough, whereby the bastard would get the whole lot because he has a claim which is a provable debt in the estate. He has got to be paid off first because he is a creditor under the Illegitimacy (Affiliation Order) Act. The legitimate children have to take what he leaves over so this is the sort of thing that has to be borne in mind when you are looking at your figure of £20 per week.
All of this is now becoming perhaps more important, and it seems to me to require most careful study, and I do not think that we need necessarily end up with the same answers that the British have come to.
There has been a wide spread of property now in the world but there has not necessarily been an equally wide spread of the habit of will-making. I do not know whether anyone has done any statistics or social analysis on that. It would be very interesting to do so. Under the old situation the bastards were generally provided for, because the truth of the matter is that it is only a bastard who would not provide for his bastards. In fact, in most of these cases men of substance do make this provision for them. Settlements are made, in most of these cases. Now property has spread all over the place and you have got this sort of situation where, because of this, will-making is not so widespread as the property. Therefore, the provisions of the Succession Act, perhaps, and provisions with regard to intestacy become more important, and require a good deal of attention.
On the question of the Romans I want to make one point that relates particularly to this Bill. Senator Robinson, in her speech, rightly drew attention to the permanent associations that can arise between people who are not married. There are distinctions to be made between children who result from such unions. She is right in raising the question of what just do we mean by marriage although I myself do not think there are any grounds for her suggestion that the Constitution, can, in some way, be invoked in support of this Bill or indeed any of the amendments however justifiable they might otherwise be. But I still think that she is right in raising this whole question because the question is being discussed, the matter is raised. It is well to raise it. However, my position is, this country must properly stand fast on a definite view about the nature of the marriage bond and follow out as compassionately as possible the legislative policy with regard to this.
I shall conclude by reading a few quotations. One is from Evershed on Domestic Relations. It says:
The fundamental conception of the term marriage is the union of a man and woman from which springs other lives bound together by common origin and affection and giving what is known as a family the nucleus of social and political life.
Here is what Lord Bryce says:
In all communities that have risen out of the savage state, no legal institution is at once so universal, and also so fundamental a part of their social system as is marriage. None affects the inner life of a nation so profoundly or in so many ways, ethical, social and economic.
Lord Stowell said:
Marriage as understood in Christendom is the voluntary union for life of one man and one woman to the exclusion of all others.
In the classical time of Roman law, Modestinus, a very distinguished jurist, said:
"It is a partnership in the whole of life. A sharing of rights, both sacred and secular."
Anything which diminishes the rights which the partners gain by virtue of their union from that union, puts them at risk or at hazard, would have to be very cogently argued for before I would accept it. The Romans distinguished between children or concubinage, which was a recognised permanent or semi-permanent state and the children of people born outside that condition. In one case they had no rights of any kind. Where they were born in concubinage, they had a right to maintenance from the father and a right to the goods of the mother but no other rights to the goods of the father. You could not have more than one concubine at a time, either, for the position to be recognised as giving these rights. We have got to look at these distinctions.
We have got a situation where a man betrays his bond where the husband and wife have been working together building up whatever family estate there may be, whatever family fortune there is, where we do not give by this Bill or our laws generally enough rights to the woman in relation to the fruits of their joint work. Until we do give that woman more rights than she has, I think if somebody entices her away and betrays her and a child results from that, I am not satisfied that we would be doing justice to that woman in taking from her the children of their union. The newly born certainly should be entitled to claim maintenance, and good maintenance, according to the circumstances of the father, during his life. I certainly am not convinced that that should be taken from the woman. The man does not give a damn; he is dead. If somebody thinks that it is going to be a deterrent to that blighter, it is not. If he has this delightful experience and a child results, under the provisions of this Bill it is his wife and their lawful children who are going to have property taken from them.
Senator Horgan talked about the damaging effects of property. We all agree that there are damaging effects with excessive property. That is a Christian principle. It is very sad. We want to start giving it away now, taking it from the legitimates and giving it to the illegitimates. It is becoming important at this point. I do not understand what we are running down property for, if you are busy amending the law with regard to property, which I understand is the main object of this proposed legislation.
I know I have stayed too long but I want to read one more quotation. It is a short one and it relates to the whole question of the religious attitude to life. It comes, surprisingly, from the Master of the Rolls, Lord Justice Denning. He ends with something which makes the quotation relevant in the context of an essay on the law relative to marriage. If the Chair does not see the immediate relevance of my quotation, if I tell him that that is a chapter heading, he may allow me to end my contribution with this:
Religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice. Whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs, if religion perishes in the land truth and justice will also.
Therefore, I am unashamedly of the view that it is the proper concern of legislators to promote the spirit of religion, and wholly disagree with the view that the affairs of this island are in any way bedevilled by the practice of religion. It is not the practice of religion, it is the rejection of Christ which is creating the trouble in the northern part of this country. It is only by religious practice that that evil spirit there rampant will be exorcised.
I sympathise, indeed, with the motives behind the Bill, and quite agree that what the Bill seeks to achieve is something desirable. But I have to take issue with the methods employed and say at the outset that I consider the Bill to be an inadequate vehicle to bring about the reforms which are needed. We have to distinguish between the idea of reform and the idea of change for change sake. This Bill as drafted would merely bring about a change without necessarily bringing about a reform, which I would define as change leading to a substantially improved and better position in relation to the parties that will be affected by the piece of legislation in question.
I sympathise with the idea behind it but I must say at this stage I consider the Bill to be an inadequate vehicle to implement this bona fide and good idea. I think it is wrong that illegitimate children should be prejudiced. How we remove this prejudice is a matter that will require a lot more thought and a lot more analysis than is available to us in the Bill or than has, indeed, come out of this debate. I say that with some hesitation, having just heard the last contribution, in which the contributor analysed to a very far-reaching degree the difficulties that would be upon us if this Bill were to be passed simpliciter.
That is one side of the case and I think it was a case that was well argued, and is very coersive in regard to the Bill as it presently stands. It highlights the need to have an equally thorough analysis on the other side before this Bill could be accepted or indeed before the principle behind the Bill, which I feel, not so much rationally as instinctively, is acceptable, but I would like to be able to accept it rationally as well. The arguments which I have heard so far would not drive me to accept it in that way, but I am emotionally inclined towards the reform that it proposes.
If this reform is to take place it will require a lot of study, and I am happy to say that these problems are under examination in my Department. Perhaps the most immediate area of reform and perhaps the easiest to achieve is in the area of maintenance. The present maximum limits on the amount which a father may be obliged to pay, even though they were updated in 1971, are too low. The same applies to the case of legitimate children, the children of deserted wives. I am glad to spell it out that the heads of the Bill dealing with these matters and on the question of family maintenance are at an advanced stage of preparation and I am looking forward to introducing it in this session. It will raise the maximum limits for maintenance and certain other expenses which can be claimed in affiliation proceedings.
I hoped that I would have had this Bill before Christmas, but there are other matters in it relating to family law, novel matters, and in preparation of them certain difficulties have been thrown up by reason of the analysis which was being done on them, and these have had to be resolved. I have now resolved them to my satisfaction and I look forward to introducing the Bill. I have made this point before, that I would rather be slow with a Bill than come in with a Bill that subsequently proved to be inept or defective.
I think it is common ground now —and I do not think Senator Robinson would dispute this—that her Bill is a bit narrow in scope, and she did mention the possibility of attending to a lot of details on Committee Stage. I do not think that that would be a suitable way for dealing with something which proposes such a fundamental change in our law and, as Senator FitzGerald has pointed out, will introduce a very fundamental change in our social relations, in our society. The broad principles should be settled before the Bill is introduced and be available for debate at its Second Stage.
The Bill as drafted does not obviate the risk of doing an injustice to one section of the community, the legitimate children and the widow, while at the same time trying to remove an injustice to the illegitimate child. If a provision is to reform it must reform to improve and not just to change.
Again—and this is a point which Senator Robinson herself adverted to —the basis of the Bill, the rights which are given to the illegitimate, depend not on the fact of his birth, on which they should depend, but on a court order, an affiliation order, a court document. The effect of this is that a child who has been born outside marriage is given no direct right of succession. He has to depend on the goodwill of his mother or the person who has the custody of the child to institute affiliation proceedings. This would be a reform— it may be practically the only one — which would be contradictory of the principle we seek to establish, that the birth as such gives the right to succession. There is another objection, which is only a minor and subsidiary one to my fundamental objection of making the rights of the child depend on the passport of the affiliation order, that very few affiliation order proceedings have been taken.
I have no doubt the six-month limitation has been a factor in this, in so far as it would militate against mothers, when they would be psychologically and possibly financially in a weak position for taking the proceedings. But again it is common case with us all here that the time limit should be extended. There may be room for argument as to what the proper extension should be. If the time limit were to be extended it does not necessarily follow that there would be a universal practice of taking affiliation proceedings, even if this Bill were to be law and all the rights provided by section 10 were to follow from such proceedings.
Another criticism of the requirement of affiliation proceedings in establishing the rights under section 10 is that, ironically, the type of relationship outside marriage where people are cohabiting in a stable union but not a legalised union and where the parental bond would be at its strongest would not confer any of the rights of the child as proposed by section 10, but the mother of that union would have to go through the legal process of initiating the affiliation proceedings. Possibly she would have to take proceedings against the father in order to establish the property rights of the children of this stable but uncanonised union, and a type of union, which, if the society which exists in the most northern part of Europe starts to spread down here, will become more commonplace.
If the mother wanted to provide property rights and had to take affiliation proceedings to get them and the father was not in harmony with that line of approach, the fact of having to take affiliation proceedings could cause irreparable harm to what was a stable union, and it could damage that relationship. It is another consequence of the things that will come up when this Bill is teased out. It emphasises the need for greater care in proceedings to change the present situation.
Senator FitzGerald referred to the danger of fraud which exists in this Bill. There is nothing in the Bill to protect against it even though Senator Robinson might feel this is a Committee Stage matter. I think it is more fundemental than that. It should be built into the Bill. It is not reasonable to expect people who draft Private Members' Bills to draft them to the detailed degree necessary to provide for all contingencies, but nevertheless in a Bill which purports to change the law so fundamentally, I think that matter should have had attention. There is nothing in it to protect against the collusive proceedings to which Senator FitzGerald adverted. Having regard to the growth in wealth and the changes in our society, the type of hard mentality which would lend itself to such collusion, it might be more common than in the past and could be a real danger in the future. It is another example of why a Bill which has not had the analysis which the seriousness of the subject requires made in advance could produce dangerous results.
There are other provisions in the Bill which are desirable. Section 4 contains provisions in regard to the privacy of affiliation proceedings. I am fully behind this idea but in my mind the Bill does not go far enough. In the Family Law Reform Bill which I hope to promote shortly I will be going further in this regard, not only in regard to maintenance cases but also with regard to affiliation proceedings. It is a question of having to balance certain interests in deciding how private any court proceedings should be. This Bill does not go far enough.
It is essentially a question of balance and, in deciding on succession rights, they have to be very closely examined in order to preserve the balance between the parties. In the vast majority of cases maintenance and not succession rights presents the real and urgent problem. By the time succession rights will accrue the illegitimate child has possibly reached manhood or indeed middle age, and the property he may receive or whatever rights may be given to him may be by way of a bonus to his position then rather than something to meet a real financial need. The time of need is when that person is in childhood. This is the most urgent and real part of this problem.
The Russell Committee proceeded very cautiously, and this is a signal that this is a subject on which caution is required. They published their report in 1966 and legislation did not follow until 1969, and even then it was quite limited in scope.
I have recently come across a working paper from the New Brunswick Department of Justice dealing with the status of children outside marriage. Although the whole tone and theme of the report was humane and advocated reforms and improvements it nevertheless sounded a note of caution in relation to succession rights. The working paper states:
While from the standpoint of the child it may seem inequitable to treat a child born outside marriage differently from one born within marriage, yet from the standpoint of the mother and the children born within marriage, to treat equally the child born outside marriage detracts from the benefits accruing to the members of the family. Take, for example, the case of a father dying intestate and leaving a wife and two children; the family may know nothing of the existence of a child born to the father outside this marriage who nonetheless appears on the scene and establishes that he is the child of the intestate and thus is entitled to share in the portion of the estate going to the children. Surely one must question carefully the social benefit of a law to this effect.
This is from a report which has adopted an overall humane approach and whose general emphasis is towards reform. As regards the last sentence I quoted: "One must question carefully the social benefit of a law to this effect", we must do that. I do not think this Bill or this debate has opened the question in sufficient depth for us to be able to say that we need reform and we need reform of the type in this Bill. All of us emotionally say: "We need reform", but in fairness to our position as legislators, we have to be rationally convinced as well.
I had the privilege of speaking to CHERISH some time ago, and I was very glad to have been able to attend that general meeting and by my presence as Minister for Justice recognise the legitimate status of that organisation. At the meeting I made the point that when an estate is distributed it very often represents not just the efforts of the deceased but the labours of his wife and legitimate children. One has then to question the rights of the child born outside marriage to share in something in which the father of that child had a minority share in building.
There is an absence in this Bill of any provision for blood-testing. We cannot have a physical compulsion to have the test carried out, but a court should be allowed to draw an inference from a refusal to be tested.
This is not a subject which lends itself to an easy solution. It has widespread legal and social complications, and a debate on it can become clouded by emotion. I accept the bona fides of the proposers in this, but I do not think the matter has had sufficient debate in depth for the Bill to proceed to Committee Stage. I share concern about the need for reform, the need, as Senator Robinson said in her opening remarks, for a balanced appraisal of different rights. I do not think we have had this yet. I concede that the law as it stands is unjust because it is totally one-sided. It will have to be changed, but without emotion and after a detailed study. Certain changes in regard to maintenance, the privacy of proceedings and the level of the maintenance orders consequent on an affiliation order, are matters I will be dealing with in a Bill in this session. On the more general principle of giving succession rights to children outside marriage this is something which is being examined.
Nevertheless the publication of this Bill and the debate here will alert the general public to the existence of the problem and will educate the public to start thinking about the problem and considering the pros and cons. It is a subject that is bedevilled by emotion, and we have to be very careful not to let emotion get in our way. Senator Robinson gave an example of this when she quoted from a legal academician in her opening speech. At column 64, of the Seanad Debates of 4th December, 1974, she quoted, with approval, a statement which said:
What stands in the way of reform is not a rational argument but 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 is a sound political statement but not a statement that one would expect from a person who would be interested in reform from a legal point of view. It highlights the dangers of this subject. Even people with legal academic training can fall into this emotional trap. That is what we have to beware of and at the same time risk the criticism of appearing to be unfeeling or insensitive to the need of this unfortunate section of our community. What we want is reform, not just change for change sake.
I appreciate that I shall have an opportunity of replying to the Minister on the points that he has made but I must ask him for one small point of clarification. The Minister said that there were heads of Bills on maintenance and later on in his contribution he referred to a Family Law Reform Bill. Are these the same Bills?
Yes, the same Bill.
I realise the time is just up but I just want to stake my claim.
If the Senator does rise he is then obliged to commence the debate after the adjournment. I therefore call on the Senator. Does the Senator now wish to move the adjournment rather than to commence his speech tonight?
I move the adjournment.
When is it proposed to meet again?
It is proposed to continue with this discussion in the morning. We meet at 10.30 a.m.
It is a pity that we could not finish tonight, if that is all the business we have tomorrow.
I was asked on the Order of Business today would we meet tomorrow and I said at the time that it was the intention that we would meet tomorrow if today's business was not finiished. I understand that at least one Senator who is not here at the moment wishes to contribute to this debate and is under the impression that it will be carried on tomorrow. Also Senator Robinson has spent three days one way or another listening to discussion of her Bill and she is entitled to reply. I do not think it would be fair to expect her to do that in a few minutes. Senator Martin may intend talking for an hour or two. Even if he talks only for a quarter of an hour he is entitled to the time. In all the circumstances, I would suggest we should adhere to the arrangement of meeting tomorrow morning at 10.30.
Senator McGlinchey and others raised the question of motions which Fianna Fáil wished to have given priority to on the Order of Business today. Those mentioned were Nos.17, 21 and 24. It may be helpful to the Senators opposite if I indicate that at the moment we hope quite firmly—I do not want to commit myself—that Motion No. 17 will be taken on the 20th February. I want to give that week's notice. I do not want Senators to think I am taking them short. I hope it will be taken on the 20th February.
The Seanad adjourned at 10 p.m. until 10.30 a.m. on Thursday, 13th February, 1975.