I move:
That Seanad Éireann notes with approval the recent report of the Law Reform Commission recommending the abolition of the status of illegitimacy and calls on the Government to introduce legislation removing all existing legal discriminations against children born out of wedlock and providing an integrated support structure for one-parent families.
I welcome this opportunity to discuss one of the most fundamental issues of our society — the rights and status of children under our Constitution and laws. Therefore I am happy to move this motion, which has the support of the full Labour group in the Seanad. It is fair to say that it is a matter of public shame and a justifiable criticism of all of us as legislators that our laws in 1984 still discriminate against children solely on the basis of the relationship of their parents. Furthermore, we have to admit that our laws in this regard fall behind developments in most countries of western Europe.
Our succession laws contain a blatant discrimination that has been inherited from the old common law principle that a child born out of wedlock was filius nullius, the child of no one, and had no rights in relation to the family or in relation to succeeding and inheriting from parents. Other countries have made either very radical or substantial changes in this area but we lag behind in a very regrettable way in this important area of social policy. It is worth reflecting on this because we pay frequent lip service to a commitment to caring about children and about the rights of children in our society. We have a clear statement in our Constitution, in Article 40.1, that all citizens shall be treated equally before the law, and then there is a proviso taking into regard differences of physical or moral capacity and differences of social function. Basically there is that commitment to equality. Yet, for reasons that are worth our while looking at and reflecting on, we have been very slow to remove the concept and consequences to that status under our laws which we inherited as part of the common law tradition. We have made some modifications to this by statute but basically we have not got round to making any substantial or acceptable changes.
This is not the first occasion on which the Seanad discussed the question of the abolition of the concept of illegitimacy. There was a very full debate in December 1974 and in the early part of 1975 on a Private Members' Bill which was then tabled to achieve the more limited objective of removing some of the blatant legal discrimination against illegitimate children. That was a Bill entitled the Illegitimate Children (Maintenance and Succession) Bill, 1974 which I moved at the time as an independent Senator with the support of my two colleagues and which triggered off a very full and useful debate in the Seanad at that time. In moving the Second Stage of the Bill I said in the Official Report, Volume 79, of 1974, at column 55:
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.
That was the position in 1974. Ten years later, as we come back to discuss this issue in the House, it is regrettably still the position.
There have been a number of developments in the interim. There have been changes of attitudes in different ways. First of all, there has been considerable development in the clarification by the courts of the rights of children. In a number of decisions the Supreme Court has made it clear that children born out of wedlock have the same rights, in a very broad range of areas, as children born within marriage. These rights were identified in a case reported in the 1980 Irish Reports entitled G v. the Adoption Board. Last January, the Supreme Court rejected a challenge to the constitutionality of the provision of the Succession Act, 1965 which excludes so called illegitimate children from succeeding on the death intestate of their father. The Supreme Court ruled that the distinction drawn between the position of children born out of wedlock and children of the married family in that instance was warranted by Article 41 referring to the protection of marriage and the family based on marriage. That is the present position as far as the judiciary are concerned. However, it was made perfectly clear in that case, entitled In re Walker-O'B v. S, that the Supreme Court saw no barrier to the Legislature making provision for the succession rights of children born out of wedlock. That was a very important distinction to have drawn and a further affirmation that the prime responsibility in this area rests with elected representatives. It is always open to citizens to seek to defend their rights and challenge legislation which they allege does not protect or guarantee their rights under the Constitution. The major responsibility and the broad based obligation to ensure that our social legislation conforms fully to the guarantees under the Constitution and to our own sense of justice and equality in our society is on us as elected representatives and legislators.
Since September 1982 we have had the benefit of a major report, the report of the Law Reform Commission which recommended the abolition of the concept of illegitimacy. That has been circulated to members of both Houses. It has been discussed a good deal in the media and referred to from time to time in this House. It is a major source from which we can all draw in considering the type of legislation we would wish to see. Before Christmas last year the Minister of State — whom I welcome to this debate and to whose contribution I look forward with interest — made it clear that the Government are committed to removing the concept of illegitimacy, as the joint programme of the Government made very clear when this Government took up office. There has been significant development but no change yet in the law in the ten years which have elapsed since we last had a major debate on this issue in the Seanad. As there is that Government commitment and as, hopefully, we will soon be considering the Bill to effect the change, I want in the first part of my contribution this evening to focus on some of the issues which arise in proposing to introduce this urgent and necessary social legislation. In the second part of my contribution I want to focus on the kind of supports and facilities for single parents and their children which society still has to ensure are available, and available in a well thought out and integrated way which genuinely recognises the needs of these parents and their children.
I now come to the question of the removal of the concept of illegitimacy. This is very clearly called for in the Law Reform Commission's report. At paragraph 200 of the report the Law Reform Commission state:
Accordingly we recommend that the legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage.
The importance of this cannot be overstressed. For a combination of reasons, some of them very deep in the conservative nature of our society, we have been very slow to move in this area. We must now move in a way which affirms the basic values which we are seeking to achieve. I emphasise this because there has been a hesitation if not an ambivalence in approach, in some of the statements made by the Minister of State on this issue where she referred to difficulties involved in abolishing the concept of illegitimacy. I hope she will take the opportunity to clarify what her thinking and Government thinking on this will be, because I will be laying very strong emphasis on the fundamental values we are discussing here and on the absolute necessity for a commitment to remove the concept of illegitimacy. Not to accept that clearly and carry it through would be very serious at this stage. Having waited for so long for change and there being a very broad base of support for such change and it is the only acceptable basis on which we can seek to move forward. When we have legislation to abolish the concept of illegitimacy before us one of the key issues with which it will have to deal, and on which the Law Reform Commission made recommendations in their report, is the basis for the establishment of paternity.
Before dealing with the approaches we could adopt to this, perhaps it would be worth spelling out briefly some of the existing legislative measures which affect the status of children depending solely on the relationship of their parents and therefore give rise to the concept of illegitimacy which it is proposed to abolish. The root of it is from the old common law principle that a child born out of wedlock was filius nullius. Originally that child had no rights to either parent. It was a child of no one as far as any legal and financial relationships were concerned. Gradually that position was ameliorated by giving the child certain statutory rights — by imposing on the mother an obligation to maintain her natural child, by providing for the bringing of affiliation proceedings so that a natural father could be obliged during the childhood of the child to provide financial maintenance. It has always been the position — and is still the law — that where an affiliation order is obtained it does not create the legal relationship of father and child. It creates merely an obligation to provide financial support.
We made some small inroad in relation to succession rights in the Legitimacy Act of 1931. In section 9 of that Act it is provided that an illegitimate child has certain limited succession rights to the child's mother. If the mother dies intestate and does not have legitimate children, the illegitimate child will succeed to the estate of the mother. It is a very limited qualified right which would be excluded if a mother had a child and subsequently married and had a child by that marriage, and then died intestate. The child of the marriage would take the whole estate under our present law and the illegitimate child would not be entitled to any rights other than a possible limited right to claim under section 117 of the Act.
We sometimes forget what the legal discriminations amount to. The legal discriminations have a two-fold impact in our society. First of all, they blatantly and unjustly discriminate against children through no fault of the child but simply on the basis of the status of the parents at the time of the child's birth. Secondly, they confirm or in some way give a legitimate colour to attitudes in our society. They reinforce prejudices and are a reflection of attitudes and values which are no longer acceptable or indeed accepted in our community. But we have not changed the law to conform to our sense of justice and sense of values. We are now seeking, quite late, in comparison to——