As Minister of State for Family Law Reform, I am very happy to recommend this Bill for the consideration of Senators. By any standard, it must be considered a major measure of legal and social reform. I have been very heartened by the positive response which the proposals in the Bill have received from the various interest groups concerned with family law matters, from the Churches and from the public generally. I look forward to hearing the views of Senators on the Bill and trust that the debate will be imbued with the same spirit of social concern that has motivated the Government in promoting it.
First, I should like to point out that in enacting this Bill we shall be following an international trend, dating back some 20 years now, towards eliminating discrimination in the law against people born outside marriage. By 1975, the position in Europe had developed to the point where the Council of Europe, building on what had already been achieved in several member states, adopted the Convention on the Legal Status of Children Born out of Wedlock. The purpose of the convention was to bring about a situation where, throughout Europe, the legal position of children born outside marriage, in all essentials would be assimilated to that of children born within marriage. That is also the purpose of this Bill; and as soon as it comes into operation, the Government intend to ratify the convention.
We also, of course, have obligations in this area arising out of our adherence to the European Convention on Human Rights. In 1979, in the Marckx case, the Court of Human Rights held that laws which discriminate against persons born outside marriage are inconsistent with the Convention, unless they can be justified on some reasonable and objective ground. In the course of that judgment, the court expressly recognised that, while support and encouragement of the traditional family was in itself legitimate and praiseworthy, measures aimed at achieving that end should not be such as to result in prejudice to the family not based on marriage. Senators will be aware that there is at present a case before the Court of Human Rights involving this country, which raises a number of issues relevant to this Bill.
Until relatively recent times the child born outside marriage was ignored by statute. The common law had always regarded him asfilius nullius— nobody's child, with no parents and no relations. Natural parents were neither the guardians of their child nor had they any rights to its custody. Furthermore, if either parent died without making a will, the child had no right to share in the estate.
Some of the rigour of the common law has been mitigated by statute over the past 50 years or so. The Illegitimate Children (Affiliation Orders) Act of 1930 enabled the mother of a child to claim maintenance for the child from the "putative father"— but a finding of paternity in such a case is effective only for maintenance purposes. The Legitimacy Act, 1931 provided that the marriage of parents subsequent to the birth of a child would render the child legitimate but only if they could have been married at the time the child was born. That Act also gave a child born outside marriage some rights of succession on the death intestate of the mother. The Adoption Act, 1952 provided for the legal adoption of children born outside marriage; this involved the permanent transfer of parental rights and duties from the natural mother to the adopting parents. The Guardianship of Infants Act, 1964 removed uncertainty in relation to guardianship by declaring that the mother of a child born outside marriage is the child's guardian. Finally, the Family Law (Maintenance of Spouses and Children) Act, 1976 improved the position of children born outside marriage in the area of maintenance.
The Bill now before us can be traced back to the report on illegitimacy published by the Law Reform Commission in 1982. That report gave an overview of the existing law and how it discriminated between children born within and outside marriage and made many recommendations for change. At the heart of these was the recommendation that the concept of illegitimacy be done away with altogether and the remaining recommendations followed on logically from this. Among these recommendations was one which would make the father of a child its guardian in all cases regardless of whether the child was born within or outside marriage. Though this recommendation might have had some appeal at first sight, it took insufficient account of the interests of the child in each case; while the parents of a child born within marriage owe a duty of fidelity to each other and in consequence can be expected to provide a suitable family environment in which the child's interest will be given a high priority, the same bonds of fidelity do not necessarily tie the parents of a child born outside marriage. That is not to say that such parents are not capable of providing loving and caring upbringing for their children. In many cases, they do so provide. This Bill caters for situations like that by enabling the father of a child born outside marriage to share the responsibilities and rights of guardianship with the child's mother where that is in the interests of the child.
Clearly, fundamental reform of the law on illegitimacy was called for. In October 1983 I was able to announce the Government's decisions in principle on the Law Reform Commission's report. These were based on the belief that the continuance of the legal disadvantages suffered by children born outside marriage was not in keeping with the Christian and democratic nature of the State. It was decided that the proposed reforms should be concentrated on the elimination of discrimination in the law against children born outside marriage and on the rights and obligations of their fathers. In particular, the Government did not accept that fathers of non-martial children, should in all cases have automatic parental rights.
When proposals based on these decisions in principle were worked out the Government took the somewhat unusual, but I think you will agree enlightened, step of publishing a memorandum setting out in some detail their proposals for reform of the law and incorporating a draft Bill. That was in May 1985. There was a very gratifying response to the proposals. I should like to place on record here my appreciation of the trouble so many organisations and individuals went to in examining the proposals in detail and submitting their considered views on them.
This brings us now to the Bill in hand. Its aim is to eliminate discrimination in the law as between children born within and outside marriage. There are, however, limits to the extent to which this aim can be fully achieved. Because of the fact that a non-marital child's parents are not married to each other, whereas a marital child's parents are, there must inevitably remain some differences in the way the law deals with them. But I am confident that this Bill will bring about a situation where it will not be possible to point to any area of the law where any invidious discrimination will remain against non-marital children.
The Bill covers a wide spectrum of the law. It deals with guardianship; maintenance; succession and other property rights; a new procedure for declaration of parentage; blood tests as an aid in determining questions of parentage; legal presumptions and evidential matters; and registration of births. The only major area of relevant law which it leaves untouched is that of revenue law. The reason for this is that changes in that area are more properly dealt with in a Finance Bill which is a matter for the Minister for Finance. I have been assured by the Minister for Finance that he will promote the necessary legislation as soon as possible after this Bill has been enacted.
Part I of the Bill sets out a number of preliminary and general matters relating to the Bill. Section 1 specifies that the main provisions of the Bill will come into operation at the latest six months after its enactment. This is to allow time for the necessary regulations and rules of court to be made.
Section 2 introduces the terms "marital child" and "non-marital child". Basically, the term "marital child" means a person whose parents are or were married to each other. The definition also embraces adopted persons, and certain children of void marriages or of voidable marriages which have been annulled. The term "non-marital child" means, principally, a person whose parents are not and have not been married to each other. The need for a distinction of this kind arises from the fact of the parents' marital status and should be seen for what it is: a distinction between equals rather than a discrimination against a less favoured class. Except for some rather obscure circumstances which may arise under existing law, there will be no need in the future to use the pejorative term "illegitimate" with its associated overtones of unlawfulness and moral disapproval.
Section 3 is a declaratory provision which puts beyond doubt that the fact that one's parents are not and have not been married to each other does not debar one from claiming Irish citizenship through either parent.
Part II of the Bill deals with legitimation and modifies the law in this area in a number of important respects. At present, under the Legitimacy Act, 1931 if the parents of a child born outside marriage subsequently marry each other, that marriage has the effect of rendering the child legitimate. However, this is so only if the parents were free to marry at the time of the child's birth. If, for instance, the child's father was married to a woman other than the mother at the time of the child's birth and the wife subsequently died, his marriage to the child's mother after his wife's death would not legitimate the child. The effect of section 5 of the Bill is to change this so that the subsequent marriage of the parents of a child born outside marriage will always operate to render the child their legitimate child, regardless of whether the parents were free to marry each other at the relevant time.
Another important change in the law as to the status of a child is brought about by section 6. At present, the child of a void marriage, regardless of whether it has been declared void by a court, is illegitimate from birth. Where the marriage is voidable, a decree of nullity renders it void from the beginning and also has the effect that any child of the marriage is rendered illegitimate from birth. Section 6 provides that if either party to a void marriage believed at the relevant time that the ceremony of the marriage was valid, the child of that union will be deemed to be the legitimate child of both parents. In the case of a voidable marriage, a decree of nullity will not have the effect of making a child of the marriage illegitimate as it does at present. The principal effect of this change will be that, in appropriate cases, the father will continue to be the guardian of the child where a decree of nullity is granted.
Part III of the Bill amends the law relating to guardianship of infants and produces a significant advance in Irish law. For the first time, once this part comes into force, it will be possible for the father of a non-marital child to act jointly with the mother as legal guardian of the child. At present it is not unusual to come across cases of couples who have entered into second unions after one of them has had an earlier marriage annulled by an ecclesiastical tribunal. Such an annulment is not, of course, recognised by the civil law and, accordingly, any child of the second union is non-marital. Under existing law the mother is sole guardian of the child. There is no provision which would enable the father to become joint guardian with her even though, in fact, he will most likely be sharing in decisions regarding the child's care and upbringing. One also finds other cases of unmarried couples with children where the relationship between the parents themselves, and between the parents and the child, is such that guardianship is shared in practice, though not in law. There are many advocates of the view that a child born outside marriage should not merely know the identity of his parents but should have the opportunity of developing a full relationship with both parents and this Bill provides that opportunity for the first time in Irish law.
Under the proposals in Part III, the mother of a non-marital child will continue to be guardian in every case but the father may be appointed joint guardian with her if it is in the child's interests. Where the mother wishes it and where the father's name appears on the child's birth certificate, a procedure will be provided to enable him to be appointed joint guardian with her with a minimum of formality. If the mother does not agree to the appointment of the father as guardian or if there is some difficulty in establishing the father's paternity, then the matter can be determined after a full hearing in the normal way in either the Circuit Court or the District Court.
Part IV of the Bill deals with maintenance. The law on maintenance for dependent children of a family is set out in the Family Law (Maintenance of Spouses and children) Act, 1976 and maintenance for children born outside marriage is covered by the Illegitimate Children (Affiliation Orders) Act, 1930. Despite having been updated to some extent by the 1976 Act, the legislation of 1930 can, I think, be fairly described as in many ways inadequate and inappropriate in today's legal and social climate. The Bill accordingly repeals the 1930 Act entirely and replaces it with new provisions being inserted in the 1976 Act which are modelled on the existing provisions of that Act for dependent children of the family.
I might point out that the removal of discrimination as between marital and non-marital children is not all one-way traffic. For instance, the 1930 Act has a provision which enables the court to order a once-off lump sum payment to cover the birth or funeral expenses of a child born outside marriage. There is at present no similar provision in relation to the dependent child of a family. The Bill, at section 20, will make this type of order available in respect of all children both marital and non-marital.
We come now to an area of the law which gave us much cause for thought not merely because of the complex legal issues involved but because the subject matter, succession rights and other property rights, involves controversial social issues as well.
The underlying principle of the Bill requires that all persons, whether marital or non-marital should be treated equally for the purposes of succession, rights to property and so forth. Thus section 26 of the Bill proposes that, in the case of a person who dies having made a will, words in the will which denote a family relationship will be interpreted as referring to relationships through both marital and non-marital links. If the parent of a non-marital child dies having made no provision in his or her will for the child, then the child will have the same right as the children of a testator's family based on marriage to apply to court under section 117 of the Succession Act, 1965, for proper provision out of the estate. The court can then decide in all the circumstances whether and to what extent the applicant should benefit. This solution preserves the freedom of the testator to dispose of his or her property as he or she pleases, and at the same time offers to the testator's children, whether marital or non-marital, the opportunity of rectifying any injustice resulting from an omission from the will.
So far as succession rights in general are concerned, section 29 will insert a provision in the Succession Act, 1965, which will ensure that henceforth, for the purposes of that Act all relationships will be deduced without regard to the marital status of a person's parents. However, in the view of the Government, that provision on its own would ignore the social reality that in many cases where there is an estate of any substance the surviving members of the family based on marriage will have contributed to the building up of that estate, and to give an automatic share of that estate to someone who was not a member of that family might cause injustice.
Section 32, accordingly, provides for the possibility of an application being made to a court to vary the normal rules of distribution on intestacy where their strict application would lead to injustice. This procedure will be available where the intestate is survived by a non-marital child as well as a spouse and/or marital children, and may be invoked by the spouse or by any of the children, whether marital or non-marital. The criteria which must be met in each case are that the applicant has made a contribution of a substantial nature to the building up of the estate and that injustice would be caused by applying the normal rules.
Another innovation in this Part is the provision, at section 35, which would enable a court to determine that the father of a non-marital child was unworthy to succeed on the death intestate of the child, if he did not make a contribution of a substantial nature to the child's upbringing.
The provisions of this Part of the Bill will operate in relation to dispositions made, by will or otherwise, and deaths occurring on or after the commencement date. Accordingly, where a person died before that date, the estate will be administered under existing law, whether or not there was a will. Where a person dies on or after the commencement date, the estate will fall to be administered under the law as revised by this Part. Thus, if the father of a non-marital child dies intestate after that date, the non-marital child will have a claim on his estate under the rules of intestacy. If the deceased made a will which excludes the non-marital child, the child will be able to apply to court under section 117 of the Succession Act, 1965, for proper provision out of the estate. The Bill will not change the effect of wills or other dispositions in existence at the date of commencement of this Part, and that is as it should be; but section 33 will ensure that the right of a non-marital child to make a claim under section 117 of the 1965 Act will exist from the commencement of this Part of the Bill, no matter when the will was made.
Part VI of the Bill sets up a new court procedure, which will enable a person to obtain a declaration as to the identity of his or her parents. For children of a marriage, both legitimate and legitimated, a declaration to somewhat the same effect has hitherto been available under the Legitimacy Declaration Act (Ireland), 1868. Also, where the question of any person's parentage has been an issued in proceedings for some other relief, for instance, guardianship or maintenance, it has always been possible to have the issue determined for the purposes of those proceedings. The proposed new procedure will be another "first" in Irish law as far as persons born outside marriage are concerned. I see the main use of this procedure as being for the purpose of securing, during the lifetime of the father of a non-marital child, the child's succession rights to the father's estate. Of course, a declaration of parentage is not a prerequisite for a claim by a non-marital child against the father's estate, but if the allegation of parentage is not made until the institution of succession proceedings after the death of the alleged father, then the child faces a difficult task of proof with a major part of his evidence no longer available. Use of the new procedure to determine the question of parentage during the father's lifetime will not only have advantages for the child seeking the declaration; it will also give the alleged father the opportunity to counter the allegation himself. There is, of course, a risk that frivolous or vexatious applications will be made, but I am satisfied that there are sufficient safeguards to ensure that this will not be a problem.
I should like to make it quite clear that this procedure will not be available to adopted persons. The present policy of the Adoption Acts is to sever all links between the natural parents and the child, and to establish new legal links between the child and its adoptive parents. This policy secures confidentiality with regard to the natural parents and this Bill does nothing to change that policy.
Part VII of the Bill gives a statutory basis to the use in civil proceedings of blood test evidence, which is gaining in importance as an aid to settling questions of disputed parentage. Such evidence can, of course, be adduced at present; but there are disadvantages in its use which need to be sorted out by legislation. In particular, for this type of evidence to be of full use to the court, samples should be taken for testing from the child, from the mother and from the person alleged to be the father where paternity is an issue; cases where maternity is in doubt are much rarer, though not unheard of. If any one of these parties refuses a blood sample, then tests undergone by the others may well be rendered useless, but the court is not empowered to draw any conclusions from such a refusal, or to force a person to undergo the test. Thus, for instance, an alleged father can frustrate proceedings by refusing a test if he knows that it will show him to be the father. This gap in the law is filled by section 46 which, among other things, permits a court to draw inferences from the refusal by a person to submit himself to a blood test.
Part VIII makes some changes relating to presumptions of law and the law of evidence. At present, there is a presumption of law that the child of a married woman is the legitimate child of the woman and her husband. This presumption can be rebutted only by evidence which puts the contrary beyond reasonable doubt, which is the standard of proof applicable in criminal proceedings. The more rigorous standard of proof required by the civil law to rebut the presumption of legitimacy is understandable in a situation where a social stigma attached to illegitimacy and where a court judgment declaring a person to be illegitimate would have the effect of depriving that person of substantial property rights. In the context of the present Bill, which will remove discrimination against persons born outside marriage, it is appropriate that the normal standard of proof in civil proceedings should apply in relation to this presumption. Hence the provision in section 48 of the Bill. Another important provision in this Part is that at section 49, which will enable a finding of parentage in one set of proceedings to be used as evidence in subsequent proceedings.
Part IX makes the necessary amendments in birth registration law. One of the important changes to be brought about by this Part is to make it easier for the father of a non-marital child to have his name entered as father on the births' register. At present, this can be done only by the father and mother of the child presenting themselves personally at the births' registration office. In future, it will be possible for either parent to have the father's name entered on production of either a statutory declaration from the other parent, or a court order naming the child's father as such.
I last spoke in this House on this subject in May 1984, on a Labour Party motion. On that occasion I was heartened by the welcoming attitude of Senators on all sides to the Government's proposals, then announced only in outline. The filling in of that outline has been an arduous and time-consuming task, but it is with confidence that I express the hope that Senators will be equally welcoming today of the comprehensive Bill now before them.
In conclusion, I should like to remind Senators of the sentiments of concern for the plight of non-marital children in our society, which were so frequently expressed during the recent referendum campaign. These came from both sides of the divorce debate, regardless of political affiliation. What was most gratifying to me was that they were accompanied by a genuine desire on all sides for reform of the law in this area. I am confident, therefore, that we can look forward to a positive, expeditious and constructive debate on this long-awaited Bill, free from political contention.
I commend the Bill to the House.