Seanad Éireann debate -
Wednesday, 23 May 1984

Vol. 104 No. 1

Illegitimacy Status: Motion (Resumed).

Debate resumed on the following motion:

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.

—(Senator Robinson).

Mr. Robb

I have not much to add to what I have already said on this subject, but was trying to draw the comparison between two babies appearing into this vale of tears on the same night in any maternity hospital in this island, one born in wedlock and one born out of wedlock, and to ask Senators whether in fact these two children in relation to the stipulations of the Constitution could possibly expect anything similar by way of expectation as they grow up. We certainly have moved a long way in Ireland from what I remember as a child, where there were places in small towns known to have children being looked after by dedicated members of religious orders and it was taboo to talk about why they were there, what they were doing there, or what their expectation was. We have a much more humane and caring society today, but have still a long, long way to go. Both Senator Robinson in proposing the motion and Senator M. Higgins in seconding it have highlighted the way which we have to travel, the hurdles that we have to cross and the changes in attitude with which we have still to challenge ourselves.

In that context, I would like to remind all the Senators here and the people outside of a man who was perhaps the late President de Valera's most respected English confidante — a man who helped him through the period of those tense negotiations in 1938 at the time of the External Relations Act, the time of the great contention over the ports, the problems of Irish neutrality and who, more than any other, helped a very conservative English establishment to understand the feelings of the people of this part of Ireland. That man, whom many of you will remember here, negotiated with the late Seán Lemass, and the late Seán MacEntee and, indeed, the father of one of our respected Senators, was none other then Malcolm McDonald, who was in the English Cabinet at the time.

Malcolm McDonald was the son of Ramsey McDonald, but Ramsey McDonald, who was the first Socialist Prime Minister of England, was born an illegitimate child in Lossiemouth, in the north of Scotland. I just wonder if a similar person with similar talents had been born in this part of Ireland whether he might have risen to the position of Taoiseach, especially so many years ago, and I would doubt it. Ramsey McDonald, in spite of the criticism he received in later life, was a man who, more than any other, should have been seen to have done most to dispel the odium which used to go with illegitimacy, the taboos that went with it and the residual difficulties which people still have, in a very conservative country, in coping with it.

In the context of Article 40 of the Constitution which cherishes the equal rights of the citizen, it would be well to remind ourselves that in a changing era the old saying that all men are born equal has perhaps come to mean that all men should have an equal opportunity to be the same. Certainly in relation to the basic needs of life, warmth, shelter, food and care, all men should have this equal opportunity. But if life is to mean more than that, particularly in this highly centralised age with its emphasis on uniformity, do we not also have to consider that all men should have an equal right to be different, all men different, each unique.

The question I put before the House here tonight is: Do we not have a moral duty to find, develop and liberate the uniqueness that is the inheritance of each one born into this world, particularly on the island of Ireland? We will never be able to do that if we cannot start right at the beginning. We will never do that if we continue to make a distinction between children born in wedlock and therefore permitted to have certain privileges for development and those born out of wedlock without such privileges.

Apart from privileges we might also talk about opportunity and emotional development. It is in the whole area of emotional development that health and wholeness in the developing child and the mature adult come into being. Unless there is warmth, confidence and the support of the extended family freely given and the support from the network of community agencies and activities to which the particular child can relate, then we will have stunted growth and an impoverished person — and do not let us forget that we have seen plenty of instances of it in our sad country.

Attitudes are the other side of the equation to actions. Where there have been impoverishment and bitterness and where attitudes relate to such impoverishment and bitterness, then actions all too often become violent. We are in the process of trying to reverse that trend, to create a caring and loving society in which, indeed, all the children can grow up with equal expectation to develop uniquely the talent which they have inherited.

Minister of State at the Department of Justice (Mrs. Fennell)

I am glad to have this opportunity of addressing the Seanad on what I regard as one of the more important social issues of our day. I have listened with interest to the contributions to the debate so far, and look forward to hearing what other Senators may have to say this evening. I can assure the House that all the points made will be carefully considered in connection with the proposals for amendment of the law on illegitimacy which are at present being prepared in the Department of Justice. This work is being given top priority, and I expect to have a Bill ready for presentation to the Oireachtas by the end of the year. I should like to stress here that there is no question of hesitation or ambivalence on the part of the Government in regard to these proposals, as Senator Robinson suggested in her opening remarks.

What I find particularly gratifying is the element of consensus which has emerged as to the principal features of the proposed legislation. My impression from the debate is that there is broad agreement on all sides as to the approach to be adopted to the problem.

As I said in my statement of 24 October last, announcing the Government's decision to reform the law in this area, it is intended to concentrate on removing those provisions in our law which discriminate against children born outside marriage. The terms "legitimate" and "illegitimate" will be avoided in the proposed legislation.

As regards parental rights, the legislation will provide a means whereby the fathers of children born outside marriage can obtain parental rights in appropriate cases, the guiding principle being what is in the best interests of the child in each case.

In relation to succession rights, the Government have accepted generally the Law Reform Commission's recommendation that children born outside marriage should have the same succession rights as other children on the intestacies of their fathers and mothers and of relatives of their fathers and mothers. As mentioned by Senator Robinson, under existing law a child born out of marriage has no succession rights on the intestacy of its father, but may benefit on the intestacy of its mother if she leaves no legitimate issue. People, of course, are free to provide by will for their children born outside marriage, subject only to the legal right of a spouse to a certain share of the estate.

The Government have also accepted the recommendations of the commission that the present rule of construction, under which words such as "children" and "issue" when used in wills, deeds or other instruments are presumed to refer prima facie to children born within marriage, should be set aside. It should be borne in mind, incidentally, that when speaking of “children” in the context of succession, we are referring in practice, in many cases, to mature adults.

Other matters that will be dealt with in the proposed legislation are actions to prove parenthood, blood testing as an aid to proof of paternity, the registration of the births and maintenance of children born outside marriage. Senators will appreciate that the issues involved in these changes are complex and time-consuming. Proposals being worked on at present are of a very tentative nature and I am not in a position, as yet, to say what solutions are likely to be proposed in particular areas.

At this stage, I think I should say that, on the basis on which Senator Robinson proposed and Senator Higgins seconded this motion and the explanations given by them for bringing the matter before this House, I am happy to accept it. However, I should like to take issue with one point that appears to me to be important in clarifying the issue.

In proposing the motion, Senator Robinson spoke of the need to abolish illegitimacy. Other Senators in their contributions also used this expression. In the development of her argument, however, it seemed to me that Senator Robinson's thinking on how the problem should be tackled was much closer to the Government's approach than might have appeared from her opening remarks.

On the face of it, the idea of abolishing illegitimacy altogether has an attractive simplicity about it. It has, indeed, been welcomed not only by several Senators but by a number of people and organisations as the proper formula for reform. The problem with this formula, however, is that while it probably is usually seen as relating to children only, it does have implications in relation to the parents of these children, some of which are unacceptable to most people. It is clear from her remarks that Senator Robinson also finds such implications unacceptable.

In practical terms, the abolition of the status of illegitimacy would mean that every father of a child born outside marriage, however fleeting his relationship with the mother, or however little actual interest he took in the child, would automatically have the same parental rights over the child and the same succession rights to the child's estate as a married parent has in relation to a child. If the father died, his relatives, claiming through him, would have the same succession rights on the child's intestacy as if the father had been married. The Law Reform Commission, in their Report on Illegitimacy of September 1982, at paragraph 202, accepted that the logical effect of their proposal to remove the status of illegitimacy from our law would be that, and I quote from the report:

The legal relationship between parent and child will arise without discrimination between children on account of the marital status of their parents. The Commission consider that there should be no condition precedent in our law which must be fulfilled before this legal relationship arises between parent and child. Such an approach would offend against the principle of equality on which our proposals are based.

Further on in their report, at paragraph 353, when dealing with guardianship and custody, the commission in accepting that their basic proposal entailed that the fathers of all children born outside marriage would automatically become joint guardians with the mothers, state, and I quote from the report:

In favour of this change it can be argued that, if the abolition of the concept of illegitimacy is to be meaningful rather than cosmetic, such a consequence must follow. To preserve a distinction as to guardianship based on the marital status of parents discriminates against the child as well as the parent since guardianship may be regarded as being in the child's interest as well as a right of the parent.

The commission then went on to cite arguments against this proposal, including some mentioned by Senator Robinson. These arguments did not sway them to alter their own view and, in paragraph 358 of their report which has been quoted by Senator Robinson, they recommended that both parents should be joint guardians whether the children are born within or outside marriage. The only concession envisaged by the commission was that a mother who would not wish the father to have guardianship rights should be entitled to apply to a court to have the father's rights set aside. The court might make an order to this effect when it was satisfied that it would be in the best interests of the child and proper to do so, having regard to the rights and interests of all other persons concerned.

Senator Robinson points to the difficulties such a situation would create for many unmarried mothers and to the concern about it felt by several organisations catering for single parents. She makes some positive and helpful suggestions for dealing with this problem. While I welcome these suggestions and shall have them carefully considered, I should like to point out that to give effect to them would necessarily involve differentiating between the parental rights of fathers, depending on whether their children were born within or outside marriage.

The Government were also unhappy about this situation, and it is for that reason that they decided, as I have already indicated, that the proposed legislation would not, as recommended by the commission, automatically give the fathers of children born outside marriage the same rights as married fathers enjoy. However, it has to be accepted that once it is decided to differentiate between fathers on this basis, even though it be in the interests of the children, one cannot speak of abolishing illegitimacy entirely. One could, of course, use another term, but the difference would remain. The Government, in adopting this approach to the question of parental rights had regard to views received from representative organisations to the effect that the automatic granting of such rights in all cases could be detrimental to the interests of children.

For instance, one of the major points to emerge from the public seminar which I organised in February 1983, to discuss the implications of the Law Reform Commission's report, was that many people involved in this area were very concerned about the consequences of the radical change proposed by the Law Reform Commission. It is interesting to note that the English Law Commission, in a working paper of July 1979, proposed provisionally that the status of illegitimacy be abolished entirely. Public reaction — including submission from the National Council of Women of Great Britain — to this working paper was such that, in their final report published in December 1982, this proposal was dropped. Instead, they recommended that an unmarried father should not be given parental rights in any case, unless he applied successfully to the court for such rights.

In this country, the Federation of Services for Unmarried Parents and their Children undertook a survey in 1983 of their member organisations, seeking their views on the recommendations of the Law Reform Commission. I might mention that the federation include in their membership most, if not all, agencies working in this field. The proposal that all fathers should automatically have full guardianship and succession rights in relation to their children born outside marriage was overwhelmingly rejected. The survey also showed that there is a widely held view that there should be a means whereby, in appropriate cases, the father of a non-marital child should be able to acquire such rights.

Senator M. Higgins spoke of correspondence which he received on this subject being "property-oriented" rather than "child-oriented". He pointed out that the child born outside marriage is likely to be at a disadvantage in society from the moment of conception.

The law can be, and will be, changed so as to remove discrimination against illegitimate children, but no matter what changes are made in the law, the element of social stigma which still attaches, regrettably and unjustly, to the child whose parents are not married to each other will not diminish unless there is a fundamental change in social attitudes. We are all aware, too, of the social handicaps facing a woman who finds herself in the predicament of being pregnant and unmarried. These are things which cannot be legislated out of existence, although legislation can assist in setting the tone for change in attitude.

I wish now to turn to the question of a support structure for one parent families. There are many voluntary bodies working in this field whose aim it is to help and support such parents and their children. What the State can do, and is doing, is to make financial support available to these bodies, in a small way from the Office of Women's Affairs but to a greater degree from the Department of Social Welfare, or through the health boards. The idea of an integrated support structure for one parent families, as suggested in the motion, is worth considering. This part of the motion is not, of course, confined to unmarried mothers and their children, as single parent status can arise from many causes, such as death, desertion, or separation.

There are a number of ways in which the health services are giving positive support to one parent families. The most important areas of support are their social work services and in helping to provide and encourage the development of day care facilities for children generally. Boards also financially assist a number of organisations who represent, support, advise and counsel one parent families and in some cases represent their interests at national level.

The policy generally in the health services with regard to day care centres for children is to help in their development and operation especially in deprived areas and for children at risk. Health boards do not themselves get involved in providing the services, but rather facilitate their provision by the voluntary organisations to ensure maximum involvement by the local communities. In certain cases where day care centres are catering for deprived children or children at risk, boards will actually provide funding.

The number of children in 1983 being catered for by centres funded by health boards was about 6,000 and the number of assisted centres has risen from 87 in 1981 to 175 by 1982 — the latest available figures.

There is at present a problem with regard to regulation of day care facilities in that no statutory regulation exists. However, a new Children Bill which is being prepared by the Minister for Health will provide for the regulation and control of day care services by health boards. This legislation will provide for the registration of centres and for the setting down of standards for the operation of day care centres and play groups.

Of particular relevance to one parent families is the proposed EEC second programme to combat poverty. A seminar will be held in Copenhagen in June to discuss the problems faced by one parent families, and it is hoped that concrete proposals for research and action relating to those problems will emerge and form part of the second EEC programme.

Adoption is a matter of considerable relevance to single parents and the organisations representing them. Over a year ago the Government transferred the functions in relation to adoption to the Minister for Health, who has the main responsibility for child care services. He has since established a Review Committee on Adoption Services. This committee have received submissions from a number of organisations representing one parent families, and the issues raised by them will be dealt with in the committee's report which will be submitted to the Minister for Health in the very near future.

In August 1983, the Government set up the Commission on Social Welfare to review and report on the social welfare system and related services, and to make recommendations for their development, having regard to the needs of modern Irish society. In the course of their deliberations, the commission will no doubt be examining the needs of one parent families — and, indeed, of all families — in this context. The commission are expected to issue their report in the autumn of 1985.

Before concluding, I should like to point out for the record that, contrary to what Senator Robinson and some other Senators have said, the Programme for Government of the present Government did not contain a reference to the subject of illegitimacy. The proposal which the Senators appear to have in mind was included under the heading Law Reform in the programme of the previous Coalition Government drawn up in the summer of 1981. When the present Government came into power, the Law Reform Commission's report had just been published and was clearly of such a nature as to require careful and detailed consideration.

Mr. Fitzsimons

I am glad to avail of this opportunity to state that I am in full agreement with the motion, as all the other speakers are, and, in fact, to say that it is long overdue.

From the quarterly report on births, deaths and marriages published by the Central Statistics Office, I note that for the year 1979 under births, the total includes 3,331 illegitimate births, which is equivalent to 4.6 per cent of all births registered. In the year 1980 the total includes 3,691 illegitimate births, equivalent to 5 per cent of all births registered. For the year 1981 the total includes 3,911 illegitimate births, equivalent to 5.4 per cent of all births registered. The latest figures available are for the year 1982 when the total includes 4,351 illegitimate births, equivalent to 6.1 per cent of all births registered. There is no question that this is a very big and growing problem.

In this discussion we might take in the area of sexual morality, but in the short time at our disposal it would be impossible to go into this in any great detail. I can only say that there has never been a consistently fixed datum line for sexual morality. If I were dealing with this area, I would have to take that into account. There has been a stigma attached to illegitimacy. This may have been a protective measure for society. The best environment in which to rear children is in a home with a loving father and mother. In many cases perhaps a one-parent family would have been more successful but nevertheless, in general, everybody would agree that a loving father and mother are desirable. For that reason, society attached this stigma to children born outside marriage and, indeed, to the mother.

With regard to unmarried mothers, there is widespread sympathy for them but not by any means total sympathy. I spoke on two occasions at meetings in favour of getting better financial assistance for unmarried mothers and more care of them in the way of housing and in other areas. On each occasion a young girl came to me and said that I was wrong and that she did not agree. I was rather disturbed at that attitude in the young.

It would be desirable to avoid the offical use of the terms "legitimate" and "illegitimate". I agree with the 68 recommendations in the report by the Law Reform Commission and note that the commission make no recommendations relating to AID or the amendment of the law of adoption consequent on the abolition of the status of illegitimacy. The report states:

These are, in the Commission's view, essentially matters of social policy and, as such, more properly matters for termination by the Oireachtas...

This is a pity, particularly with regard to the adoption of legitimate children. I have a copy of a submission made to the Government in relation to reforms in the adoption system by the Federation of Services for Unmarried Parents and their Children, the Central Council of Catholic Adoption Societies, Children First, Adoptive Parents' Association of Ireland, CARE and CHERISH. This states on page 14, with regard to the adoption of legitimate children:

The participating Organisations have previously stated and are agreed that a child should be eligible for adoption irrespective of the marital status of his natural parents, and that the law and if necessary the Constitution should be changed to permit this.

They take this view on the basis that a child not merely ought to have a normal family life, but that he has a right to such a family life within a permanently functioning and caring family.

The right arises from his psychological and physical need for such... By not allowing the adoption of a legitimate child, the law effectively deprives some legitimate children of access to such an environment and so discriminates against them. Accordingly, any child should become eligible for adoption when it has been established to the satisfaction of the Court that his parents are unable and/or unwilling to filfil their parental obligations towards him, and that it is probable that this state of affairs will continue for the foreseeable future. The recommendations relating to consent to adoption and to dispensation with consent, contained in section 3 of this document, should apply to adoptions of all children. There appear to be legal and constitutional uncertainties which might hinder making the reform just described. The main uncertainties seem to be: (i) does the Constitution adequately guarantee the right of a child to a normal family life and (ii) even if the Constitution so guarantees what is the situation when the child's right conflicts with the rights of the family, effectively of the parents, guaranteed by the Constitution.

The Adoptive Parents' Association of Ireland in a policy document in 1981 stated with regard to the adoption of legitimate children:

There has recently (1980) been apparent an upsurge of opinion amongst professionals working the field of child care that, in principle, legitimate children, subject to safeguards, should be eligible for adoption. The APAI is in favour of this principle. The criterion of eligibility for adoption should be, not illegitimacy, but the child's need for the active support of a caring family combined with the lack of such a family.

The Irish Council for Civil Liberties made a number of comments on the proposed legislation on illegitimacy and referred to the report of the Law Reform Commission. They stated, as I have already said, that they would welcome the proposal that the official use of the terms legitimate and illegitimate should be avoided in the amending legislation. They also welcomed the proposal that a child born out of marriage should have the same succession rights as other children on the intestacies of their fathers and mothers and the relatives of their fathers and mothers. However, they noted that the proposal does not mention the rights of fathers to inherit property of their illegitimate children on intestacy. They recommended that such a right be introduced in legislation along the lines of section 117 of the Succession Act allowing fathers to claim a share in the estates of their illegitimate offsping but only on intestacy and only if the father has carried out his moral obligations in relation to the child.

They welcome the fact that the Government have accepted the Law Reform Commission's recommendation that the present rule of construction under which words such as "children" and "issue" when used in wills, deeds or other documents are presumed to refer to children born within marriage should be set aside. They did, however, feel that the implications for trust law and the taxation implications ought to be clarified in the legislation as these matters are not dealt with in any detail in the commission's report and could lead to enormous difficulties for administrators of trusts at a later stage. They welcome the giving of parental rights to the unmarried father in certain circumstances. Such rights, they said, however, should not be automatic and should only be available to the unmarried father on his application to a court, such application to be drafted at the discretion of the court. They felt that any provision giving rights to the unmarried father should be very clearly set out in view of the complications this could lead to in adoption situations and applications for guardianship. They felt this would be an ideal time for the Minister to incorporate in the Bill a general Bill of children's rights which they feel is very much overdue. They feel that the legislation should amend the law in relation to children who are rendered illegitimate by virtue of a decree of nullity in relation to the marriage of their parents, and in view of the law of nullity in recent years an increasing number of people will be able to avail of nullity as a remedy. In the light of this situation they said children of all such marriages should be protected by new legislation and legitimacy should be preserved. They welcome the proposal that the legislation will deal with actions to prove parenthood, blood testing as an aid to proof of paternity, registration of births and maintenance of children born out of marriage in accordance with the principles set out in the Law Reform Commission Report.

I want to refer to the journal AIM in which it is stated on page 7 of the current issue for spring and summer of this year:

One important area that the LRC did not deal with is that of retrospection. Would an existing affiliation order or the fact of a father's name on a birth certificate give rise to a presumption of paternity under the new legislation?

It concluded:

Despite Cherish's reservations about the LRC Report we regard it as an excellent document that deserves widespread and enthusiastic support. The one question which remains is, do the legislators have the will to implement its recommendations?

I am very pleased to hear the Minister of State say there is no problem in this regard. I note that she says that no matter what changes are made in the law the element of social stigma which still attaches, regrettably and unjustly, to the child whose parents are not married to each other will not diminish unless there is a fundamental change in social attitudes. I believe there has been that fundamental change. We know of people who in spite of not having a father to look after them have done very well and reached top positions in professions and other areas. I feel that like the stigma that was attached to poverty which I am well aware of — as the song says: "Don't ask me how I know"— in the enlightened society in which we live, these stigmas will soon be things of the past.

Mr. Conway

I would like generally to welcome the Minister's statements that this would be given top priority and that a Bill would be before the House by the end of the year. I would also like to welcome the statement that the terms "legitimate" and "illegitimate" will be avoided in the proposed legislation and in relation to the succession rights that the Government have accepted generally the Law Reform Commission's recommendations that children born outside marriage should have the same succession rights as other children. The word "generally" is a word that could mean an awful lot, so we will have to see what the Government actually mean by the word "generally".

In her statement she said — this is very welcome — that the new Children Bill is being prepared by the Minister for Health. That is overdue. I agree with what Senator Robb had to say on this subject when he talked about the caring society we have which in effect has moved a long way from the time when unmarried mothers were treated like animals and when their children were ostracised in the community.

This motion is one of the most important issues in the country today because of the rights of our children under the Constitution. Our laws discriminate against children solely on the ground of the relationship those children have with their parents. We talked about this in the long debate we had on constitutional reform. Article 40 states clearly that all of the children in this country should be treated equally. This was brought before the Seanad some years ago. We can see, in effect, very little has happened since the Constitution was written. Children born out of wedlock are discriminated against and have no succession rights to their father's property, no family relationship. The stigma of illegitimacy is a terrible stigma which a child has to carry all the days of his life. In fact, children of unmarried parents are in a sense second class citizens in society.

I welcome the Law Reform Commission which recommended the abolition of the concept of illegitimacy and the Minister pointing out that it was included under the heading of law reform in the programme of the previous Coalition Government drawn up in the summer of 1981. The programme which was drawn up at that particular time is still the programme between both parties. I welcome the section in this report which calls for the abolition of the concept of illegitimacy. In order to change the attitude of the public our legislators will have to change our laws. The only way we can bring people around is to reform the law and put it down quite clearly that we abolish the word "illegitimate" and we recognise that all children have an equal right in our society.

I am a member of Naas Urban District Council and Kildare County Council. It was encouraging in the last five years to see that they are a little more progressive than they were in the past in their attitude towards unmarried mothers. When we allocate houses now they are allocated on the basis of the family as a unit. We have a priority list and houses are given on the basis of the need for housing and not on the stigma that an unmarried mother and her children had to dwell in a caravan for the rest of her days.

I agree with Senator Robinson that we have still a long way to go. When we looked at PAYE taxation and we made a move in the right direction when we looked at widows and widowers and treated them as couples, giving them marital status. The same thing should apply to the unmarried mother with her children. That is one area that could be reformed. It is only a very short time ago when children born out of wedlock attracted the wrath of the community. I have seen many mothers going to England. At that time they were sent there for a holiday and they never brought their children back. The children never knew their identity or their parents. They were left in England. They had no right to any of the rights of the legitimate children. That time of ignorance has, we hope, passed but we still have a long way to go.

There is a growing tide of people, who, for one reason or another, through education and, naturally, through their own experience, have a better approach to marriage. They have a better approach to divorce, contraception, single parents and children born out of wedlock. They have signified on many occasions that they would favour the removal of the ban on divorce. The evidence is also that they would favour the removal of the stigma of illegitimacy. For that reason, I support the motion put down by our party.

Mrs. Bulbulia

I am very pleased indeed to have the opportunity to add my few words to this motion. I am gratified to see the Minister of State here this evening because her commitment to the abolition of the status of illegitimacy and to raising the whole issue is in no doubt. In fact she organised and hosted a most successful seminar in the spring of last year, when she allowed individuals and interested representative groups to have an input into the formation of legislation and to have their voices heard in this area, which is one that touches Irish society in a very special way.

I was interested to hear my colleague in Opposition, Senator Fitzsimons, state that he felt there had been a fundamental change in social attitudes in this country. I wish I could share his equanimity. I am not sure that Irish society has undergone the fundamental changes which he seems to suggest. Daily we are getting examples from scattered hamlets in various parts of the country and indeed in the city that all is not well in the area of social change and reform and that in many pockets of our country we are in the dark ages in the area of values and attitudes towards human sexuality and the expression of human sexuality. It is all very well to say that in urban areas and, perhaps, in fairly sophisticated milieu Irish society is coming around and undergoing change and there is a greater acceptance of sexual variation and that recognition of children, no matter what their parentage is, is without reproach.

I feel, based on my observation and on various incidents which we all are aware of over the past while that all is not well. Although there is acceptance in this House of the motion on the abolition of the status of illegitimacy, I feel that when the discussion reaches the wider context of the general public there will be a great deal of scaremongering about property, people's fears will be played on and there will be a whipping-up of all that kind of feeling which is a little dormant, but not so very dormant. In fact in a newspaper over the last week one of the main proponents of the Pro-life Amendment Campaign, to my way of thinking, certainly if this person was correctly quoted, made very disturbing sounds which underscore the fact that all is not well in this area.

I welcome the Law Reform Commission document and their recommendations. The main recommendations are that the concept of illegitimacy should be abolished, that all children born in or out of wedlock should have equal succession rights to their parents, that natural fathers have equal guardianship rights with mothers to their children regardless of marital status. The former in relation to succession rights appears to find acceptance with the Government though I question the use of the word "generally" in the Minister's speech. Presumably that is an area which will be explored fully in the legislation when it comes before us.

It is in the area of equal guardianship of natural fathers that there seems to be a difficulty. I gather that the over-riding factor will be the needs of the individual child. That seems to me, to be a fairly fair criterion on which to proceed. In Irish terms, the Law Reform Commission recommendations are fairly radical and are likely to be controversial when this debate reaches the wider forum of the general public.

The arguments against such change, such as the question of threat to the constitutional protection of the family unit and the objections of unmarried mothers to according automatic rights to fathers, were rigorously examined by the Law Reform Commission. None of these arguments was considered strong enough to disturb the principles of equity which are involved. Basically, this is about equity and about giving expression in our legislation to what we like to clap ourselves on the back about so regularly and routinely, our Christian values.

There is another school of thought, which, while welcoming the abolition of the concept of illegitimacy, contends that some of the proposals on extending guardianship to natural fathers could be held to be unconstitutional. Certainly it is fair to say that many mothers fear unwarranted interference by the fathers. The law should be reformed in such a way as to encourage the mother to identify the father. It is not unreasonable to suggest that there is public interest in establishing paternity especially when the mother and child are in receipt of the single mother's social welfare allowance.

Much of the debate so far has centred around the type of child who is illegitimate because the mother is single, but it is true to say that in the area of High Court decrees and Catholic church annulments there is an area which throws many children into illegitimacy through no fault of theirs. It is true to say that if the constitutional ban on divorce was lifted as many as a quarter of the illegitimate children in the country would be legitimated as a result. That is something we should not lose sight of in this discussion and in the discussion yet to come in the area of marital breakdown.

It is true to say that there is overall unmistakable and extensive discrimination in the area of succession rights between the position of legitimate and illegitimate children. I am pleased to see that that does not appear to be an area of contention and that it will be cleared up by the legislation which I am pleased to hear will come before us by the end of 1984. It certainly points up how slow the wheels of Government in general move when we consider that in 1974 Senator Mary Robinson, then an Independent, brought her Bill before this House and it was debated. It makes very interesting reading in the light of the last ten years, so it is not before time that something is done about this. By and large, apart from certain elements in our society, I sincerely hope that it will find general acceptance.

I would like to make some comments on the EEC and illegitimacy. It is rather disturbing to realise that we have been condemned by the European Parliament because of our illegitimacy laws. They have been strongly criticised in a report adopted by the European Parliament in 1983. This is very interesting. It is not that we should reform our laws because somebody else criticises them. It may be the necessary spur, but we should do so because it is correct to do so. Our Government, following that report of the European Parliament, were called upon to sign and ratify the European convention on the legal status of children born outside wedlock. Ireland, Belgium, Greece and Spain grant fewer rights to the natural child than to the legitimate child in respect of both parents. For a child born outside marriage parenthood is not established automatically. Such children are entitled only to maintenance and are not legally considered to be members of the family of either natural parent.

The European Parliament also found that, as a direct result of the discrimination against illegitimate children, further discrimination exists between single mothers and married mothers in their relationship to their children. Such discrimination should be considered harmful to individual rights and unacceptable to any civilised conscience. The laws of the member states differ considerably in regard to affiliation, the passing on of the parents' name, nationality, rights of inheritance, rights of parental authority and the obligation to provide maintenance for children. The parliamentary report found that society is particularly unjust because it penalises people who are not responsible for their situation and, in addition, it does not protect them sufficiently.

The European Parliament wants the European Commission to tackle the problem of discrimination against children and to consider introducing binding measures against member states. I hope that our legislation will have come on the stocks before we are put in that embarrassing position. Much of our legislation in the area of social reform has been forced upon us by decisions of our courts and by decisions of the European Parliament. I contend that a sovereign independent state should not put itself in that position and that our legislators should take the initiative and introduce legislation because it is necessary and a matter of equity and justice. In the area of illegitimate children, how can anybody deny the justice of their case?

The European Parliament goes on to say in a resolution adopted in February 1983 that illegitimacy is in contradiction with the general objectives of the Community and is unacceptable. Parliament objects to discrimination between rights granted automatically to legitimate children but withheld from natural children. Single mothers generally pass on their own name to natural children whereas legitimate children receive the name of the father or, in some cases, a name chosen by both parents. Natural children receive the nationality of the single mother whereas the legitimate child gets the nationality of the father. Among EEC member states, Italy, Luxembourg, Portugal, Denmark and France apply the same laws with regard to parental authority, the right to maintenance for children, family allowances and inheritance. The second category includes West Germany, the United Kingdom and the Netherlands where affiliation with the mother is automatic but must be established through a specific act for the father. Ireland, Spain, Greece and Belgium are the worst cases in regard to discrimination. That is nothing to be proud of. Belgian law was successfully challenged in the past. I hope that our legislation arrives before us before we find that kind of action adopted.

Reference is made in the resolution to an integrated support structure for one parent families. I would like to pay a compliment to the many organisations working in the field who have stepped in and who have helped with finance, encouragement, premises and counselling the many young women who find themselves in that situation. They are to be commended and publicly thanked for their endeavours in this area.

Mr. Browne

My brief remarks will be made not from any legal viewpoint, because I am not an expert on law, but from the very human point as illegitimacy affects children in the social class. Those of us who deal with children will have experience of being in embarrassing situations. Twice in my career as a teacher I found myself — in my early days when I was inexperienced — walking into a situation where I am sure I caused embarrassment to the children involved. One such situation was when a football team were objecting to one of my players. They knew the history and I did not. Luckily someone tipped me off before it became too awkward. The other situation was when we were preparing — of all times — for Confirmation and names began to clash when I began to write out details that were necessary. That experience for me meant that the whole question of illegitimacy was far too serious for the children.

Much of the discussion here in the Seanad has been based on the legal rights of the father, whether he can have access to the child, whether the mother can have a withdrawal of all the rights and the rights to succession. Whatever happens in those circumstances a child should not be handicapped by human beings. A child has absolutely no say in being born. It is wrong that we as a society can put a label on a child and that he or she, for no reason whatsoever, can have a millstone around his or her neck for a lifetime. This has been held, even by the church, to handicap them further.

I welcome this move. I do not care what reaction there will be as far as property is concerned. Maybe it will add a sense of responsibility to the many fathers who manage to get away very lightly in comparison to the single girl. Sometimes their property might be more important to them than the future of their illegitimate child, as he or she is called now. The single girl carries the burden.

Housing is a problem we all come across in public life. The single mother certainly has difficulty in getting housing. It has nothing to do with the fact that she is an unmarried mother. It is basically that there are only two in the family and invariably housing has got to the stage where those with two or three children are a priority because you are automatically housing three or four people. I do not go along with the idea that if you give houses to unmarried mothers you are only encouraging them. It is very easy to sit in judgment on people who have perhaps made a mistake in their life. We should not try to pretend that they should be punished further. If we had houses I would have pleasure in giving them a house but unfortunately it does not work that way. It works on numbers, as everybody is aware.

From another point of view we must end the stigma of illegitimacy. We have passed a pro-life amendment. If we want to protect life we must make sure that those who are born are not given any extra burden by society. It is we in society who play the role of giving that millstone to be carried throughout life.

I am not dealing with legal claims, simply on the basis that children have enough of a handicap facing life. Some of them may be born with silver spoons but many of them are not. If we add further to their handicaps it is to our discredit. I will welcome this move.

Mr. Ferris

I refer to the wording of the motion, which is in two very important parts. It calls on the Government to introduce legislation to remove all existing legal discriminations against children born out of wedlock and to provide an integrated support structure for one-parent families. It also refers to the most excellent Law Reform Commission report on this very subject. The movers of the motion dealt with many of the legal problems involved in the question of illegitimacy and rights to inheritance and property. They have adequately covered it.

Like my colleague, Senator Browne, I want to deal with the human aspect of it, from two points of view. Firstly I do not think any State, any Government or any registration authority have the right to determine that a child is illegitimate. Nothing could be further from the truth. If a child is conceived and born it is a legitimate child. Any legislation or any lack of legislation that puts some other tag on that wonderful thing which is a child in calling it illegitimate is certainly discriminating against a small human being who had no control whatsoever about its birthright, how it was born or who its father was.

The Minister is aware of the problems that are created, particularly for the mother of the child. In any legislation the mother must be the one to maintain the legal responsibility in some way for the child, and every assistance should be given to her by way of law, property rights and otherwise. The mother is the link between that and her child. Senator Browne said that many absent fathers have managed to get away with an awful lot for a long number of years without having to answer to the call. It is the unfortunate mothers who have to bear the stigma that attaches to them in the eyes of the public and in the eyes of the law of producing an illegitimate child. That is an inhuman attitude to adopt, and I am totally against it. Any regulations to ensure that birth certificates would not indicate to these children that they are in some way inferior to any other children would be a welcome step, but I would prefer the proper legislation.

The second part of the motion deals with providing integrated support structures for the one-parent family. In my county it did take some time to instil this into the minds of housing officers and people dealing with applications. Thankfully, we have housed unmarried mothers who have a family to look after and we have treated them as a family unit. That is only correct, because if there is more than one person in a family then that is a family unit and we are not housing single people. I am glad to say that my own council have housed single parent families on that basis. They qualify on the basis of overcrowding or some other means that can be used under the existing code for letting houses to people in need.

It is a tragedy that there is a social attitude to the concept of what a child's rights are. If we did something to condition the public attitude in this area we would do an awful lot more to stop the tragedy of the abortion trail, which still goes on in spite of referenda and otherwise, simply because of the stigma the public perceive as attaching to this situation. When we look at the beautiful thing which a child is, then any legislation to ensure that that child has the same rights as any other child, born in similar circumstances but without the privilege of having two parents available to look after it, would be very welcome.

I commend the motion to the House. The proposer and seconder have made an excellent case under all the issues which pertain to this problem. I am fully in support of it. No doubt when Senator Robinson is replying to the debate she will refer to some of the excellent contributions from all sides of the House. I am sure that the Minister of State who has responsibility in this area will take note of all that has been said in this very sensitive and humane area of the children of tomorrow and ensuring that they are not discriminated against either by society or by legislation.

Mrs. Robinson

I have been greatly encouraged by this debate. There has been a clear acceptance by Senators on all sides of the House of the basic values to be realised by removing all legal discriminations against children merely on the basis of their birth. There has been a sense of urgency and of deep commitment by every Senator who has contributed to this debate, a sense that we lag behind the social reforms introduced in a number of other countries.

Senator Bulbulia referred to the fact that we have incurred criticism from the European Parliament and from other commentators outside the country on this score. It is a pity, because I believe that we have a very real and deep concern for children; it is simply that we have not addressed the issue and devoted sufficient legislative time and attention to this area to ensure that we bring through the necessary reforms.

Almost all contributors to the debate referred not just in a narrow sense to the legal discriminations but, as Senator Browne among others emphasised, focussed on the social implications, on the stigma which attaches to the status of illegitimacy. This was dealt with at considerable length by Senator Higgins in seconding the motion when he rightly and very thoughtfully described it as a damaged status. He teased out in some detail the impact on the individual, the effect for a child of finding him or herself characterised in this way, the self-image which the child begins with and goes through life with, and the sheer indecency of having that approach and concept in our law.

When moving this motion I expressed some concern about what I felt to be some hesitancy in the scope of the commitment of the Government, in particular as expressed by the Minister of State who has participated in the debate. I should like to make it clear that it is not hesitancy about her commitment; indeed I commend her for the obvious importance and priority that she places on introducing legislation in this area. This is not at all in doubt, and the Minister has used opportunities, as Senator Bulbulia has mentioned, through seminars and through other methods, to advance thinking and to seek ideas and suggestions in this area. What I was pointing to was hesitancy in the vital area, which the Minister referred to in her speech, of the position and the exercise of parental rights by the natural father. I still note and see that hesitancy in her speech. I hope that this is a matter to which she will give extremely careful thought as I believe it is a fundamental issue. It is fundamental not just as to how we remove the legal discriminations, it is also absolutely crucial to ensuring that we change our social attitudes. Therefore, I should like to begin my contribution in reply by focussing on this problem and placing on record some clarification of my concern in this area, also seeking to urge on the Minister that her language in the matter and her manner of communicating what she is doing are vital to ensuring that we will achieve the values and objectives which are so widely shared by Senators.

In her contribution to the debate, the Minister referred to the question of parental rights. She stated:

As regards parental rights, the legislation will provide a means whereby the fathers of children born outside marriage can obtain parental rights in appropriate cases, the guiding principle being what is in the best interests of the child in each case.

This does not appear to go as far as it is possible for us as a society to go in ensuring that the values of the participation in a parental role of the natural father, the value for the child of recognising the role of the father and the value of encouraging natural fathers in our society, are fully underpinned and guaranteed in the legislation. In other words, it would not be satisfactory to devise means by which a natural father could require parental rights. What we should be seeking to do is to carve out the circumstances in which natural fathers would automatically have parental rights and then to balance that with a proper concern for the apprehensions and for the reality of the position of the unmarried mother in our society.

I suggested the adoption of the approach which was put forward by William Duncan, a well-recognised expert in family law in Ireland. He suggested that the balance could be struck and very carefully and sensitively drawn by providing that in circumstances where parentage had been presumed — and this would have to be clarified in the legislation — or where proceedings had been taken to establish parantage, a natural father would be a guardian entitled to act as such in a wide range of circumstances where he would be presumed to be the father, save where the mother objected, in which case the onus would be on the father to seek a court order to enable him to exercise his rights as a parent.

This is the reverse of the approach recommended by the Law Reform Commission. The Law Reform Commission approached the question, as the Minister has said, somewhat simplistically by asserting that there would have to be automatic full equal rights of guardianship, then placing on the natural mother the burden of being the party who would have to apply to court to seek to deprive a natural father, in certain circumstances, of the right to exercise full guardianship rights if this was in the interests of the child.

I went into this in some detail when moving the motion. I reaffirm the importance of it. It is important from a legal point of view and it is extremely important from a social point of view. It is vital that we recognise the importance of the value of ensuring that we have as broad a circumstance for the automatic exercise of parental rights by the natural father as we can devise, given the need for concern in certain areas, concern for the possible apprehensions of the unmarried mother and that she, ultimately, is not the party who would have to move into court and apply for a court order if there was a conflict in the exercise of rights between herself and the natural father. The natural father would have that onus and would have to establish positively that it was in the interests of the child if she did not agree to the exercise by the natural father of parenting rights.

This leads me to the second issue, and I believe it is fundamental to the kind of change we are going to make in this area. We have come very late in the day to an acceptance of the need for this important measure of social reform. It is vital that we do not do it in a half-baked way, that we do not move too little at this late stage to achieve the social values which have been so clearly identified in this debate. Therefore I differ from the Minister in her estimate of whether you can abolish the status of illegitimacy while still leaving some distinction in the exercise of parental rights by the natural father. It is totally and completely possible to abolish the status of illegitimacy and still leave some differences in the exercise of parental rights which are seen to be in the interests of the child. This has been very well argued and very well stated by William Duncan in a passage from the article which I quoted earlier in the Dublin University Law Review on the abolition of the status of illegitimacy where he referred to the approach adopted by the English Law Reform Commission and to its conclusion, which he quotes, that:

The advantages of abolishing the status of illegitimacy are not sufficient to compensate for the possible danger involved in an automatic extension of parental rights to fathers of non-marital children.

He continues:

The logic behind this statement is that, because of a distinction between marital and non-marital children will remain as regards their father's rights, the "status of illegitimacy" cannot be abolished. This seems to involve a massive non-sequitur. It is certainly true that non-marital children would continue to have one special set of rules (relating to paternal rights) applied to them as a class. Whether it would be correct, in view of the limited scope of the differential rules, to describe that class as having a “status” is debatable. But, if it is a status, it is certainly a perversion of language to apply to it the title of “illegitimate”. The word “illegitimacy” is associated, historically at least, with notions of inferiority and invidious discrimination; it is ludicrous to retain the word to describe a distinction which is based, in large part, on the principle of promoting the welfare of the child.

The Minister of State has made it clear that the word "illegitimacy" will not be included in the legislation, and that is an important step in that direction. Nor should she have any equivocation at all about what she is doing. If she brings in the legislation on the broad terms that have been outlined, then she is — and should state so confidently — abolishing the status of illegitimacy. That has not just important legal implications; it has absolutely vital social implications.

It is perfectly reasonable, proper and sensitive to the reality on the ground to make some provision in the interests of the child in relation to the exercise by a natural father of parental rights. I am, in that context, advocating that these be as generous as possible, that we try as a society to carve out the broadest degree of automatic assumption of parental rights by a natural father, but that we give the mother the protection that if there is a conflict between her and the father in an unmarried situation the burden would be on the father to go to court to assert and establish that the exercise by him of his guardianship rights, his parental rights, would be in the best interests of the child.

I believe as a society we must affirm very positively the parental role of fathers and the importance to children of that parental role. We must realise that where children have the opportunity of being brought up by both parents, one-third of all children establish the primary bond with their father, something that is not properly appreciated in Irish society. We tend to be role conditioned and to assume that the parental functions are somehow 95 per cent a matter for the mother and 5 per cent a matter for the benign interest of a caring father. That is not the case. It is a total aberration of what nature intended, and therefore it is very important when we move in this matter that we have a real concern for the values that we are seeking to establish.

This has been a very useful debate because it has given us an opportunity to look at the issues which the Minister must have concern for in bringing forward the legislation. I hope she has taken great support and confidence in moving from this debate and that it will encourage her to move the bureaucratic process of Government to as speedy a conclusion as possible in having a Bill before us at the earliest opportunity.

I would like to refer also to the second part of this motion in regard to the importance of ensuring that there are proper support services for single parents and their children. This recognises that a very significant proportion of situations, even if we change the law on the matter, will involve the unmarried mother and her child. I do agree with the Minister who in referring to this part of the motion made it clear that we are also in this context talking about other single parents, about widows, widowers, deserted wives, prisoners' wives, the whole range of single parents. If we look at the kind of integrated supports and services that exist in other countries, that exist in Northern Ireland in a very large measure, we have to admit that we have not given sufficient thought to the cumulative problems of single parent families.

We know from the reports of the NESC and other studies that single parent families are economically more disadvantaged. In particular, in the case of the unmarried mother and child in Irish society there are enormous problems in relation to housing. It it true to say, as Senator Conway and Senator Ferris emphasised, that local authorities are increasingly making significant changes in recognising the single parent and child in this context as a family and taking very important steps in making provision for the housing in appropriate units of single mothers and their children. But it is in the private sector that there is very real victimisation of the single mother and her child, and organisations such as Cherish cope daily with the problem of landlords either refusing a tenancy or indeed evicting, as they are entitled to do, without any protection to the single mother. They simply do not want to have the inconvenience of there being a child or a young baby on the premises. There is a whole pattern of daily discrimination and of enormous problems in this area.

There is also an absence of proper child care services right across the board. This is broader than simply the situation of the single mother and child, but we must recognise that there are in volume terms a striking number of single mothers who are bringing up their children and who should have available to them the kinds of support services that we are talking about.

As Senator Fitzsimons pointed out, illegitimate births now comprise over 6 per cent of total births and we must, in all honesty, put into that equation the fact that the illegitimacy rate roughly parallels the rate of women going for abortions to various cities in Britain, the termination of the unwanted pregnancies. Not all of those women are unmarried. Somewhere in the region of up to 20 per cent are married, 15 to 20 per cent. That is the society we are seeking to change, to bring about positive social reforms in. It might well be said that some very positive measures in this area would be a lot more of pro-life than an abstract amendment to the Constitution. Certainly it is something on which there is a clear commitment on all sides of this House to move on.

I believe it would be of great value if the Minister could bring out a White Paper on support services for the single parent and do it in the broader context which she mentioned, do it in relation to the broad category of single parents in Irish society who are coping with the multiple problems which can be much more difficult for the single parent and in that context it would be appropriate to join with Senator Bulbulia — and I will conclude on this, a Leas-Chathaoirligh — in commending very warmly the voluntary bodies and agencies such as Cherish, Ally and the Federation of Services for Unmarried Parents and their Children and local voluntary agencies who have provided the substantial services that exist in counselling and information and back-up services for the unmarried mother and her child. But this is not in fact a substitute for a proper State assumption of responsibility and an overall State-integrated structure. That would be something that would complement the work of voluntary agencies but it should be a priority for us and would be helped by being the subject of a White Paper which would clarify the services that exist and promote the values which have been inherent in this debate.

I thank all the Senators who contributed. I did not have time to refer to each of the individual contributions but, as I said at the outset, I found it an extremely encouraging debate and undoubtedly as far as the attitude of this House goes there has been very remarkable progress in the decade since we last discussed the subject.

Question put and agreed to.

An Leas-Chathaoirleach

Could the Leader of the House indicate when it is proposed to sit again?

Mr. Ferris

It is proposed to sit on next Wednesday, at 2.30. We will be taking the Dentists Bill, amongst others.