Status of Children Bill, 1986: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

I would draw the attention of the House to some statistics. Since 1960, the annual number of births outside marriage has increased steadily from about 1,000 in 1960 to 5,000 last year. The figure rose steadily, despite fluctuations in all live births. Despite increases in the number of births outside marriage, the number of adoptions has not kept pace, the average being about 1,200 per year in recent times. It is not that there is any lack of potential adoptive parents but that fewer mothers of children born outside marriage are prepared to give their children for adoption.

There is another category, children born within marriage who, for one reason or another, find themselves in orphanages or homes. Existing legislation does not allow this category to be adopted. I hope the Minister will be able to rectify that because such children are in a pitiful situation. I am glad the Government are addressing themselves to this. I compliment the Minister on having introduced the Bill. It was circulated early in May following a White Paper the previous year. Therefore, Members of the House have had considerable time to consider the advantages of Government action. Now that the Bill has been launched, the Seanad can consider in depth the complicated provisions in the Bill so that when we return in the autumn we will be able to take action to give equality to all children in the State.

I welcomed the publication of this Bill on 9 May, two months ago today. My welcome, however, was qualified by acute disappointment at the limitations in the Bill and, in particular, its failure to remove from our law the concept of illegitimacy. I share this deep sense of disappointment and reservation with Cherish and other bodies such as the Federation for the Unmarried Parent and Child who are concerned with single parents. However, I am an optimist. I am encouraged by the fact that the Bill has been introduced in the Seanad giving us the first opportunity for debating the issue. I am also encouraged by the clear interest and commitment of the Minister of State to the subject matter of this Bill. I know she will follow with particular interest the debate which will take place in this House.

For that reason I am puzzled at the timing of the debate. The Bill was published two months ago. This is a long time for a Bill to be published before it is given its first airing in either House. We started the debate in what has to be regarded as a rather halting manner. Second Stage commenced and almost immediately it was adjourned to give way to another area of injustice, an area which everyone in this House would feel strongly about. We are now resuming Second Stage in an almost empty House and just before we go on holidays.

It is tea time.

It is not just tea time, we are about to adjourn the House until October.

The House has been working very hard for the past two months. We have had record sittings.

I appreciate that.

An Leas-Chathaoirleach

Senator Robinson, without interruption.

I am not making any criticism of the energy of Senators. All I am saying is I am puzzled at the timing of this important Bill given that it has been published for two months and is one of the most important areas of social reform to come before either House for a considerable time. Why are we getting off to this halting start where we resume Second Stage and will adjourn for quite a long period? The House reconvenes in the first week of October. I am not sure when this debate will be resumed but I hope it will be early in the next session.

I do not share Senator Lanigan's criticism that there was no time to consider the provisions of the Bill. There was a good two months to consider the provisions of the Bill. Prior to that there was a White Paper published in May 1985. Attached to that White Paper was a draft status of children Bill which reflects almost completely the provisions of the Bill which is before the House and which was published two months ago. I am disappointed that the debate will be adjourned when the House goes into recess this evening. However, it affords those of us who are speaking at this stage am opportunity to ask a number of questions about the Bill and to put forward a number of proposals for a broader scope so that all of us can reflect on these matters and on the values underlining the Bill during the recess.

I would like to consider the context in which we debate this Bill. The Minister of State at the end of her speech introducing the Bill made reference to that context. She did not spell it out in the way I am going to spell it out now but it is a most relevant consideration that the House is debating a Bill on the status of children in an Ireland which voted on 26 June to rule out the possibility of remarriage for couples who are anxious to remarry, and who believe they have a right in their circumstances to do so but who are prevented from remarrying by a provision of our Constitution. We said quite definitely "no" to those people. We denied them the right to order their own relationships by having the possibility of marrying or in certain instances, remarrying. That is an important context for this Bill. It has been rightly said that Ireland virtually is unique in that part of the world with which we share our culture, western Europe, in totally prohibiting divorce. We are the only country in the Council of Europe other than Malta to totally prohibit divorce and we have said we are going to continue that.

If that is the case, and the people have voted very definitely to convey that message, we must be unique also in ensuring that there is no legal or social discrimination against children depending of the status of parents. Just as we are unique in not having divorce and a right to remarry, we must be uniquely protective of the child outside marriage. That, we are not at present. As the Minister of State made clear, our laws are extremely defective. We are behind the international trend. The Minister of State referred to an international trend. We are out of line in western Europe. We are way behind other countries. We have not moved and in this Bill we are not moving nearly far enough.

This Bill was published before the divorce referendum. The first thing I would ask the Minister of State to do is to consider the provisions of the Bill in the light of the divorce referendum and the fact that as a society we have denied to people who wish to do so the possibility of taking steps to marry and by so doing to affect the status of their child or children. We have denied that option. We have put out a very important marker in relation to our society. In the course of the referendum debate, as the Minister of State has said, very clear statements were made on both sides about the importance of removing the concept of illegitimacy. I am delighted to hear that. I hope we will amend and extend this Bill to achieve it. As introduced, this Bill does not abolish the concept of illegitimacy. It introduces a number of welcome reforms, welcome protections and rights for children outside marriage in our law but it does not abolish the concept of illegitimacy. The Minister of State in introducing the Bill used that concept several times in her speech. The Bill uses that concept.

For example, section 48, in Part VIII of the Bill which deals with certain presumptions, recites that any presumption of law as to the legitimacy or illegitimacy of any person may be rebutted in civil proceedings before a court on the balance of probabilities. As the Minister of State has said that is a deliberate reform of the existing position in respect of the onus of proof in relation to that presumption but it leaves us with the concept and the presumption in relation to illegitimacy and with a Bill which introduces a new classification and wording for the purposes of this Bill and other legislation which it amends but does not remove the legal terminology which has stigmatised and caused hurt and offence to children born outside of wedlock and to the parents of those children.

Before I come in more detail to the question of terminology and classification in this Bill, I should like to refer to the fact that it does not abolish all legal discriminations against children outside marriage. The Minister has conceded this in her speech in that the Bill does not extend, for example, to discrimination in revenue law. It does not extend to the provisions of our taxation code under the Capital Acquisitions Tax Act whereby a child born outside marriage is a stranger to the father for the purposes of inheritance and, therefore, would pay full inheritance tax on an inheritance. Granted when talking about capital acquisitions tax we are necessarily talking about children of a father who has some substantial assets, but it is a legal discrimination which forms part of our law and will not be affected by this Bill.

There is reference in the explanatory memorandum to the financial implications of the Bill. It states that the Bill does not amend Revenue law and that any changes that may be necessary in that area arising out of the measures proposed in this Bill would be a matter for separate legislation promoted by the Minister for Finance. I read that very carefully because it seemed to me that it did not necessarily commit the Government to any changes in removing discrimination under our taxation law. I would welcome a clear commitment from the Minister when replying that it is not just a question of this Bill not extending and that there is a very clear Government intention that this will be done in the next financial Bill to come before both Houses. That is important.

There is another area where there will still be unequal treatment of a child outside marriage. That stems from the fact that the child will not have recognition of his or her family status and relationship with his or her parents. This is a particularly difficult and far reaching discrimination which will continue. It affects the child mainly in the lack of link between the child's parents. Obviously in this instance it affects a couple who are living together with their child or children. They may have been living together in a stable long term relationship, unable to marry because one of them is married and cannot free himself or herself to marry. That child lives with his or her parents in what appears to be a family relationship. Most of us see it as a family relationship, yet most of our law excludes recognition of that family relationship. That couple with their child or children are excluded from a whole network of family legislation.

They are excluded from the maintenance provisions of the Family Law (Maintenance of Spouses and Children) Act in so far as it affects the adult partners. The mother cannot look for maintenance from the father. They are excluded from the Family Home Protection Act. Notwithstanding the fact that a couple may have been living together for 15 years and have four or five children, if the father who owns the home — taking the normal model — sells it from under the mother and the children, there is nothing she can do about it. She has no right in relation to the family home.

Probably of great importance to the protection of the child, there is no right to protection under the provision for barring and protection orders. These were introduced initially in the Family Law (Maintenance of Spouses and Children) Act of 1976 but are now contained in the Protection of Spouses and Children Act, 1981. Barring orders and protection orders are only available to a spouse who can apply on his or her own behalf or on behalf of a child where either the spouse or the child needs protection. If you do not have that relationship you cannot have that protection by way of a barring order.

I mention all these points and spell them out because they all affect or can potentially affect a child of what appears to be a family relationship but which we are not recognising as having the attributes of a family and therefore requiring protection. It is important that we recognise that we are not doing away with these areas of discrimination or unequal treatment or disadvantage for those children. This is something we should reflect upon between now and Committee Stage.

I turn now to the area of terminology or classification. As the Minister has emphasised, this Bill will define new terms. Section 2 will define the terms "marital child" and "non-marital child" for the purposes of the Status of Children Bill. "Marital child" includes children who are legitimate under the present law or children who are legitimated by the subsequent marriage of their parents and this extends the present Legitimacy Act so as to include circumstances where the parents were not free to marry but subsequently married. At the moment if they were not free to marry they cannot legitimise a child by their subsequent marriage. That will be changed. It will also include children of certain void and voidable marriages. They will be reclassified as "marital" children. This is an area of classification which I should like to pursue and about which I should like to ask some questions of the Minister.

At present the children of a void marriage, by virtue of the fact that it is a void marriage, or of a voidable marriage if, for example, there is a decree of nullity, are illegitimate. There being no marriage, the children have the status of children outside marriage. It is proposed in this Bill to reclassify those children as "marital" children. The marriage will still be void, either because it is voidab initio or because it has been declared to be void on foot of a decree of nullity but the children will be classified as marital. Why are we re-classifying within this categorisation if we are supposed to be removing discriminations and minimising the differences in that classification? Why are we re-classifying children so that we are narrowing the range of what is non-marital? We are, therefore, potentially isolating the non-marital child in a narrower category, although we are using the language of “non-marital”. We are changing the status of children of void or voidable marriages at a time when we are supposed to be removing the legal effects of the status. We must look very closely at this.

The Minister referred to part III of the Bill which amends the law relating to the guardianship of infants and makes significant changes which I will come to. She said:

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.

I would like to ask the Minister to reflect on that because it seems to me that the thrust of section 6 of the Bill will be to result in the child in question being marital rather than non-marital. If a couple who were married in a Catholic church then get a Church annulment and then go through a ceremony in a Catholic church, that is obviously a void marriage, a bigamist marriage. However, under section 6 of this Bill, which will amend the 1931 Act in relation to the legitimacy of children of certain void marriages, it is provided that:

subject to the other provisions of this section, the child of a void marriage shall be deemed to be the legitimate child of his parents from the commencement of Part II of the Status of Children Act, 1986, the date of the ceremony of marriage or the date of his birth, whichever is the latest, if either or both of his parents reasonably believed (whether or not any such belief is due to a mistake of law or of fact) that the ceremony of marriage resulted in a valid marriage.

Subsection (2) states:

It shall be presumed for the purposes of subsection (1) of this section, unless the contrary is shown, that one of the parties to the void marriage reasonably believed that the ceremony of marriage to which that subsection relates resulted in a valid marriage.

Whatever they may have thought about when they went through the second Catholic marriage, we are presuming, in law it is a valid marriage. I presume that that phrase "unless the contrary is shown" means unless they are prosecuted for bigamy. I cannot think of any prosecution for bigamy in these circumstances that have actually been brought to fruition before our criminal courts in recent years.

Unless it is proposed to separate Church and civil marriages.

It raises very serious issues. Why are we reclassifying children? I am aware, and the Minister is aware, that in other jurisdictions — for example, in Britain — the children of void or voidable marriages have for a number of years been deemed to be illegitimate. That is a very different situation because you are dealing with a society where nullity is a very exceptional situation, where people have the freedom to divorce and remarry. We are dealing with a very unique situation here where, as Irish people, we have prohibited remarriage, we have said "no" to divorce under any circumstances. What we must be concerned to do then is not reclassify children within classifications but ensure that there are no discriminations or disadvantages to children and no reclassifications of that kind. It is extremely important that we do not in this way provide the kind of backdoor through removing from nullity some of the attributes of nullity which with a nod and a wink provide us with a sort of backdoor divorce by another name.

The Minister in her speech, in referring to the question of the change which I have been just referring to, of providing in section 6 of this Bill that children of void or voidable marriages would be reclassified as marital notwithstanding there was no marriage, said:

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.

I believe that that is an important objective, that the father in those circumstances would be guardian of the child; but I also believe that that objective should be attainable in other similar circumstances where you have cohabiting couples and an assumption of parental rights by the father. In other words, I do not think that is an answer to the objection I am making. I think that is itself a value to be realised but that value should be realised in the context of this situation where the marriage is void or voidable and in the situation of established co-habitation by a couple, the assumption of parental responsibilities and where the couple want and wish to share guardianship rights in relation to the child. I will come to the provisions of the Bill in relation to that matter.

I am concerned that we would not introduce a new type of discrimination and a new classification of children as to whether they are marital or non-marital, which has its own in-built discrimination and which by narrowing the range of children who are non-marital may also in effect give that classification a pejorative context in a very short time. We are talking about words and the scope of those words and the word "non-marital" is as capable of becoming over time something with a pejorative context if there is reason for it, if it means that the child is discriminated against, if there are differences which are known and become part of our consciousness and which then get translated to giving the term a meaning in a pejorative context.

I want to turn substantially at this stage to Part III of the Bill which amends the law relating to guardianship of infants. It amends the Guardianship of Infants Act, 1964. It is extremely important that this Bill brings about a change from the present situation where the mother of a child outside marriage is the legal guardian of the child but the father is not a guardian. Indeed, he is excluded from the definition of parent or guardian and he cannot become guardian of the child under present circumstances. What is proposed in this Bill is, I think, half-way to where the House should wish to see us moving in this area.

The Bill proposes that the mother will continue to be the guardian of the child; indeed, she could not be excluded from guardianship, she has a recognised constitutional right to the care and custody of her child and I think the acknowledgment of her guardianship merely reflects that constitutional right. The Bill provides in section 11 that the father may be appointed joint guardian with her in certain circumstances. I believe that the circumstances are too narrowly framed. The father may apply to the court to be appointed father and if an application is made then as with other applications under the Guardianship of Infants Act the primary consideration would be the welfare of the child. That would be a case where a father could apply whatever the wishes of the mother, whether the mother supported the application or opposed it. A very different situation arises where the mother and father of a child are agreed that as parents they should constitute themselves and exercise joint guardianship over the child.

That situation is given partial recognition in section 11 (3) of the Bill. This is a change from the provision in the White Paper and the draft Status of Children Bill. It is a recognition of some of the representations made to the Minister on this point but in my view and I hope in the judgment of the House, it does not go far enough. Subsection (3) provides that rules of court shall provide a special procedure for determining an application under this section where (a) the mother consents in writing to the appointment of the natural father as guardian, and (b) the natural father is registered as the father in the register maintained under the Births and Deaths Registration Acts, 1863 to 1986. If the mother and father are agreed, the mother's consent in writing has been produced and the natural father is on the register of births as the child's father, then there will be some kind of simplified application to court — rules of court will provide for a special procedure. We do not quite know, although I have a fair idea, what would be envisaged by way of a simplified procedure. In those circumstances a father has to apply to court to be a guardian of his child.

Take the father of a child or children who had been living with the mother for a period of 11 or 12 years before this Bill becomes law, who has always exercised parental responsibilities, and where both of them believe that the rights as parents, including rights as guardians and all other rights, should be shared jointly between them, that would still require applying to court. Where a couple have been living together in the same manner but are parties to a voidable marriage — where a nullity has been obtained — a very different situation will arise. Because the child will be reclassified as marital rather than non-marital, that father will be retrospectively assumed to always have had, and will continue to have, automatic guardianship rights in relation to the child. If it is part of a policy to create guardianship rights of a father in one context where there is no marriage, then there is a very strong basis on which to extend that to the completely parallel context where the couple are cohabiting and where the mother and father jointly agree to this.

The Minister seems to place some importance on the interests of the child. That worries me a little bit because I am wondering whether he envisages a situation where the interests of the child in relation to the assumption of guardianship by the parents would be somehow different from the joint wishes of the parents. Certainly, it is hard to envisage areas of difficulty where they jointly consent. In my view there are very strong policy considerations, very strong reasons indeed, not to require a court application in those circumstances. No matter how we simplify the procedure we are still requiring somebody to apply to a court. Culturally that is extremely difficult for a number of people. No matter how simple the application may be, it can also involve expense, access to lawyers and so on and this creates a barrier to the full assumption of parentage.

This brings me to what I believe is one of the very important values which we should have in mind in a Bill of this kind. It is absolutely crucial that we not only create a legal framework which helps to improve the ways in which paternity can be established, and provide for the first time the establishment of true, full paternity outside marriage, but that we encourage the use and availing of that facility by fathers. I know from my work with Cherish and anybody who is involved in this area knows, that we have a very strange phenomenon. We have an increasing number of single mothers, an increasing number of children born outside wedlock, but for some reason we do not seem to have any rise in the very small number of natural fathers. Happily, there is some change and there are fathers who are anxious, willing and indeed frustrated by the legal and other barriers they encounter in assuming their responsibilities and role as parents. We must encourage fathers to acknowledge paternity.

Representations in this regard have been made to the Minister. I know that, for example, William Duncan, senior lecturer in law in Trinity College, has strongly advocated the need for research in this area, the need for detailed research into the absence of a climate which encourages natural fathers to assume their responsibilities, if I could put it that way, the attitude and approach of mothers, their fears and concerns in that regard. This is a very neglected area and one about which we need to know a great deal. Even if we had very detailed research in this area, we would still be faced with the same reality, which is that only a very small number of affiliation orders have been brought in the past. Only a very small number of natural fathers are on the register of births. We have a very big job to do — and this Bill forms part of that job — in changing that climate and approach. We need a programme of public education emphasising the importance of the role of fathers and of mothers and fathers in the child's interests. We need to emphasise the importance for the child of establishing paternity. What worries me is that we are not going to effect a great change with this Bill unless there is a substantial programme of education and research in this area.

The Bill provides the means of obtaining a declaration of parentage. That, combined with the role of fathers, is extremely important in promoting the assumption of role and responsibility by natural fathers, the encouragement of mothers to involve the father, particularly in the interests of the child, and the removal of any fears or apprehensions in that regard.

In relation to guardianship and the declaration of parentage it is necessary to apply to the court. This Bill, like the other children's legislation which is not before this House yet, shows the necessity for urgent reform in our court structure and the introduction of a genuine family court in which applications of this kind can be heard and determined. In many ways what we are doing in this Bill is quite legalistic. We are creating a number of ways in which people can, by applying to or having access to court, affect their rights or their status. That means that we have to improve greatly the access to court which we are talking about and improve the nature of the court to which a person would have access. This Bill is a further argument, if we need any further argument, for the urgent necessity for the establishment of family courts. I urge the Minister to come before the House very shortly with proposals in that regard.

I turn now to Part IV of the Bill which deals with maintenance. Here is a substantial improvement, in effect equating the child outside marriage with the maintenance provisions of the 1976 Act for the child of a marriage. The Minister referred to the fact that the Bill now proposes to allow the court to make lump sum payments in certain circumstances which points to the fact that is true, that this is a useful carry over from the provisions of the 1930 Act which were confined to affiliation proceedings. There were a number of representations to the Minister on this and it is a reform which was not included in the original White Paper and Status of Children Bill. I would like to question the Minister on this and to invite some thought on it. I am puzzled as to why the approach in section 20 of this Bill is so narrowly framed. I accept that it is couched on the same terms as the 1930 Act, but it is confining the lump sum very narrowly to birth and funeral expenses of a dependent child, whether a child of the marriage or outside the marriage. It is confining payment to a lump sum "not exceeding £1,000, but no such order shall direct the payment of an amount exceeding £500 in respect of the birth of a child to whom this section relates or £500 in respect of the funeral of such a child". There is a ceiling of £1,000.

As the Minister is aware, the whole question of jurisdiction in the courts in maintenance applications to make lump sum orders was discussed at very considerable length, but I am afraid without ultimate clarity, by the Committee on Marriage Breakdown. It was one of the areas that surprised me. I thought we would have endless disputes or endless discussions about other areas which I might have regarded as more sensitive, but I discovered that the whole area of possible jurisdiction to make a lump sum payment is, in the minds of certain Deputies, a very sensitive issue indeed. One Deputy from the west, Deputy Flynn, would hit the ceiling if anybody mentioned lump sum payments. He was in no way going to allow the Committee on Marriage Breakdown to form a committee view on this. However, lump sum payments are a familiar part of the possible orders which can be made by courts in other jurisdictions where applications for maintenance are brought. They are not unusual and there is provision for discretion. There are circumstances where the only payment that can be made is a lump sum payment. Therefore, I invite the Minister to look more broadly at the question of giving the court a clear, broader discretion — which would be used carefully and only in appropriate circumstances — without a ceiling to make lump sum payments whether in relation to an application for a child of a marriage or a child outside marriage.

I will turn now to the provisions of the Bill in relation to succession and other property rights. Here again the Bill proposes to make very important changes and reforms. It will change the presumption in language in a will so that words will be construed to include children whether through — as the Minister has put it — a marital or non-marital link whereas at the moment "issue" or such words unless they expressly or by necessary inference include a child outside marriage are not deemed to include such children. Also, children of a testator who are non-marital children will be able to apply to court under section 117 of the Succession Act, 1965, if they are excluded from the terms of the will.

It is very important that that right will exist from the time of the passage of the Act. It will be very important that the complex consequences of these succession rights are, first of all, reduced to understandable language for those who may be affected and, secondly, very widely promulgated by the Minister when this Bill is passed. When we get to Committee Stage we can look at this in detail, but it literally requires, as the Minister is well aware, having the sections of the Succession Act beside the section of the proposed amendment to the Succession Act. There is even at this stage considerable confusion.

We will be discussing this at length on Committee Stage, but there is an area that I would like to comment on and I hope the Minister will be open to suggestions of amendment of the provision. Section 32 of the Bill contains a new provision which was contained in the White Paper and draft Status of Children Bill which allows for the possibility of an application being made to court in the case of intestacy, where the Bill will provide that children outside marriage will have equal rights on intestacy but there will be this provision in section 32 to prevent injustice. This procedure will be available where a person has died intestate and is survived by a spouse and children of the marriage and also by one or more non-marital children and a non-marital child or children assert their rights on intestacy. In that instance it will be possible for the spouse or children of the marriage to apply to assert that they have made a contribution of a substantial nature to the building up of the estate and that injustice would be caused by providing for equal rights to the children — marital and non-marital — as between themselves; that one child, for example, had contributed to building up the family assets and should be preferred over the other children, marital or non-marital, who would take a smaller share than this child.

This provision for a claim or plea to prevent injustice is a novel provision. It does not exist in our present Succession Act. It is an interesting provision to the extent that it has some merit in preventing inequity. It seems that it has that merit whether or not there are children outside the marriage. In other words, if somebody dies intestate, leaving a spouse and children, the spouse takes the share on intestacy and then the children normally take an equal share. If there is a farm and one of those children has stayed and built up the farm, then it may well be that we would decide as a matter of policy that that child should be able to make a claim for a larger share than the other children because that child has built up the family farm and has put a great deal of work into it and the others have some independent income elsewhere. There are important policy considerations there, which could mean that we would introduce this into our succession law, into distribution on intestacy. We are not doing that. We are not introducing it into our succession law across the board, we are only introducing it if a child from outside the marriage — a non-marital child — is making a claim. If a non-marital child is making a claim and if an application in relation to possible injustice is made by a child of the marriage that will affect the possible share of distribution on testacy of the other children of the marriage. It will all be affected or up for grabs at that stage.

It seems we are introducing a new discrimination. We are saying that this provision will only apply where a claim is made by a non-marital child. No matter what the circumstances are of somebody who spent 40 years in Australia, who has an independent income and is very wealthy, he or she can still claim the same amount as the brother or sister who stayed at home and built up the family farm, where the person has died intestate. That is another example of introducing a discrimination by the way in which the claim against justice would be applied. I ask the Minister to look at it closely and to consider either dropping it altogether or broadening it so that it is a general claim that can be brought on distribution on intestacy where there is a child who has made a contribution of a substantial nature who should be preferred over other children whether they are the children of the marriage or not.

I invite the Minister when replying to Second Stage to develop the whole question of why the Bill is still confined to operating in relation to either dispositions during lifetime but in particular wills and deaths occurring on or after the commencement date. The provision which means that a will made prior to the passing of the Bill will not be affected by its provisions seems to potentially carry very far into the future the kind of discrimination we are seeking to eliminate. It does not do it entirely. I will come to the point of the possibility of applying under section 117.

Nonetheless, this Bill is being debated today and we are adjourning for three months. Word may get around that you should make your will now if you do not want the Status of Children Bill to be applied to construing it and to its effects. You still run the risk that a child may bring an application under section 117. Why do we not avoid projecting into the future? It could be 20 or 30 years before the testator dies and the will takes effect. Why have two types of construction for lawyers who will make a lot of money on these things in 20 or 30 years? The Bill should contain a provision that two or three years after the Bill had come into effect, all wills would be construed in accordance with its terms. In other words, if a time limit was allowed during which people were put on notice, if you like, that even wills made before the Act were unnoticeable after a period they would be construed in accordance with the terms of the Act. I invite the Minister to consider the possibility of avoiding the situation in 20 or 30 years time depending on whether the will was made in 1986 or before Easter 1987 when this Bill may be on the Statute Book, that there may be a different construction of the terms of that will.

I accept that there is a problem in relation to that, I am not trying to skirt that problem. If a person making a will now which is affected by the present law is given sufficient notice that the will will be affected in the future, that raises a different kind of issue, that after a certain period wills are to be construed in accordance with the law. The person is alive and can change the will in one way or another, can make any provision and it does seem to raise different issues. It is not, in fact, depriving somebody of an opportunity of acting in the matter in a total sense, which I accept would run into constitutional difficulty.

Most of the other points I want to make in relation to blood tests, the registration of births etc. are really Committee Stage points. I have outlined the main provisions on which I wanted to focus. The thrust of what I have been saying is that although this Bill was published in May we are examining and debating it in the context of a unique situation for a western European country. We have made it clear that we will not allow dissolution of marriage or remarriage. We, therefore, deprive a significant number of couples of the possibility of themselves taking steps to change their status and the status of their children. It behoves us, if we have any sense of justice, fairness or values, to go uniquely far, if I can put it that way, in abolishing any discriminations and disadvantages to children born outside marriage and to recognise their family links and status.

I appreciate that in our Constitution we have an express provision in Articles 41 and 42 which identifies the rights of the family based on marriage. That does not say that the Legislature cannot recognise anything else. It does not say that we cannot under any circumstances recognise any other kind of family relationships. It merely, if you like, places in a certain fully protected marriage context the family based on marriage. We need to be very concerned about where we are going and how we will protect family life, how we will recognise it and, above all, how we will cater for and ensure the status of children. That is the title of the Bill: The Status of Children Bill, the status of children in that context.

I very much welcome the subject matter of this Bill. I welcome the fact that it has been introduced in the Seanad and that we had an opportunity to debate it. I look forward to Committee Stage when I hope we can further extend the scope and thrust of this Bill so that it will have the effect which I think most Senators on both sides of the House genuinely want. The only constraints that have been put up are legalistic. I think we should examine those very carefully because some of those constraints are not as real as they might appear, but there are ways in which we can extend the scope of this Bill and I hope we will.

I join with the other Senators who have complimented the Minister of State for her courage in coming back here with the Bill and in her personal commitment in trying to do something for the status of children and I do so very sincerely. However, I want to begin by making a few points which I am afraid will be different from the assumptions just made by the preceding speaker, Senator Mary Robinson.

It is typical of her idealism that she is appealing to the sense of justice of Senators to pass this legislation and amend it rather than appealing to their sense of guilt. I would choose the second term. I found it very interesting that in the history of the concept of illegitimacy, which is referred to in the early stages of the Minister's speech, there was no reference to the Private Members' Bill which was introduced in 1974 by Senator Mary Robinson and supported by Senator Horgan and me. On that occasion the Bill was contributed to by speakers from all sides of the House. I feel that I have to refer to it because I want to do so on both historical and moral grounds. The Bill was defeated. It was argued against in one of the most virulent defences of property that I had heard up to the 1970s until the most recent amendment to the Constitution. I also feel I want to talk about this Bill for a very important number of reasons. It is an important corrective to the Minister's speech in introducing this Bill that we should take cognisance of that.

I am sorry that she is not here but I want to place on record my own personal admiration for Senator Mary Robinsion who brought in that Bill 12 years ago. It was in 1974-75. It was at a time when a great deal of the social legislation in relation to equality and the protection of women was not in existence. We have to be careful about not fooling ourselves about the attitudes that are prevalent in this country. I doubt if people, if I did not have the record to sustain what I am about to say, would believe the remarks that were made on that occasion about illegitimacy, about property and about the jaundiced connection between the two. I intend to make reference very particularly to some of the speeches that were made by the late Senator Alexis FitzGerald. Basically many of these speeches assumed that we should do something but that we should be careful about what we did in so far as, although the phrase was not then in vogue, it might damage "the first family". I quote from column 575 of the Official Report of 12 February 1975. That is just 12 years ago:

If we proposed to take in all adulterine children, that would be an interesting debate on its own. It is a very serious and important matter, requiring treatment of a most careful kind. Take the situation of a fetching lady with a consort who, getting bored with his wife, is looking for a little bit of excitement. He happens to have a lot of money. She knows he has a lot of money. She sets her hat at him. She gets a hold of his affections and they have a child by her deliberate plotting — and this does happen, let me tell you: I absolutely know of one certain case where it happened, where the woman went to get the man's fortune and got the man's fortune by this procedure, or a chunk of it. Very often in such cases a person will make a will and make a provision for such issue. But here we are talking about rights where he does not want to provide or where a provision will be made at the expense of the faithful wife and her children. I am not satisfied that this is something which we should adopt.

That was a quotation from the most distinguished lawyer of the Seanad in my day, certainly one of two or three. Another distinguished lawyer was the former Senator, Mr. M.J. O'Higgins. The debate got worse as it wore on through the different speakers, all on the subject of property, all with their assumptions that the woman was going to plot to get the farm — arguments that we have heard in the last few weeks. So let us not cod ourselves that things have changed that much — the ugly, dirty assumptions about sexuality, the profound anti-woman construction of extramarital relationships and the whole question of the lack of responsibility and property. I have made up my mind that there are issues I intend to visit in this regard because they must be encountered in any Bill that affects the status of children. The late Senator Alexis FitzGerald was also worried that perhaps this woman would pounce on the man late in life long after he had forgotten his alibi. Let me quote from column 577:

It is hazardous in the extreme to think that a man could be made a subject of affiliation order proceedings 20 years after his alleged child was born to the woman. How could he gather evidence as to what he was doing on the night of the 2nd November in these circumstances? It would be extremely difficult, I imagine. There must be a limiting period.

Again another argument for the avoidance of responsibility in relation to marriage. The Minister of the day indeed, who joined in in many ways, was Minister Cooney. I have to continue a little bit with what the late Senator Alexis FitzGerald said in my last quotation from him on the subject of property. It is from column 582 of the Official Report of 12 February 1975:

Senator Horgan talked about the damaging effects of property. We all agree that there are damaging effects with excessive property. That is a Christian principle. It is very sad. We want to start giving it away now, taking it from the legitimates and giving it to the illegitimates. It is becoming important at this point. I do not understand what we are running down property for, if you are busy amending the law with regard to property, which I understand is the main object of this proposed legislation.

Do not those quotations together form a very convincing picture of a brave Senator — Senator Mary Robinson did all the drafting of the Bill at that time, the Illegitimate Children (Maintenance and Support) Bill, 1974, was her work and it was supported by Senator John Horgan and me. I recall those arguments; they were about property. Closely afterwards, as is the cult now in Ireland, there was the suggestion that Christ and religion were involved in this seedy view of the world. I quote from column 583, where Senator Alexis FitzGerald had this to say:

Religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice. Whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs, if religion perishes in the land truth and justice will also.

Therefore, I am unashamedly of the view that it is the proper concern of legislators to promote the spirit of religion, and wholly disagree with the view that the affairs of this island are in any way bedevilled by the practice of religion. It is not the practice of religion, it is the rejection of Christ which is creating the trouble in the northern part of this country. It is only by religious practice that that evil spirit there rampant will be exorcised.

That speech was made in this House from the front benches just here. I did not sit in the same place. I was back here then. I remembered at the time thinking how honest Senator O'Higgins was at that time. He spoke about all our actions deriving from natural law. He believed that. Senator Alexis FitzGerald believed that they derived from natural law mediated through property relations. One speaker after another stood up and they made speeches like the ones that I have read now. I have plenty more of them but I do not want to delay the House unduly. Minister Cooney was at the time the Minister for Justice. Incidentally, in spring 1975 he said that he had a major Bill in preparation. It must indeed have been very major because Senator Robinson announced on 13 February 1975, as is quoted in the Official Report of 13 February 1975, column 645, that she had discussed her Bill with Senator Horgan and me and that she was withdrawing it because a major Bill was ready. That was a mere 11 years ago, so obviously the Bill that I am going to turn to in a moment has had 11 years of preparation and improvement put into it. In many ways I compliment the Minister of State on achieving in such a short period of time what a more senior Minister took over a decade to deal with.

To move on to the question about it, in contributing to the debate on that occasion the Minister, Deputy Cooney said, as he has continued to say — at least he is consistent; he said it again the other night — that we need to draw a distinction between change for change sake and legislation which is brought in with the idea of improvement. In so far as he believes me to be totally informed by emotion, I have decided that I will qoute him so that the officials will be able to bring all this back and read it again. It is very interesting to hear his views. He believed — as Senator Alexis FitzGerald had suggested — that women were into the business of colluding in a kind of socialism by stealth under the sheets; women putting their eye on men of property, farms, fields, shops, places like that, going to bed with the man and then, God help him, because he could not remember it, 20 years afterwards he was going to have to make provision. We know, of course, that this did not happen at all. What he did was that he fired the child into some kind of institution. He sometimes gave the mother a few pounds and then he proceeded to have the amnesia from which the previous quotations would have suggested he should be protected in law. He could not remember where he was on 2 November. This is what this Minister, Deputy Cooney, had to say on that occasion and I quote from column 587:

There is nothing in it (the Bill) to protect against the collusive proceedings to which Senator FitzGerald adverted. Having regard to the growth in wealth and the changes in our society, the type of hard mentality which would lend itself to such collusion, it might be more common than in the past and could be a real danger in the future. It is another example of why a Bill which has not had the analysis which the seriousness of the subject requires made in advance could produce dangerous results.

Times have changed.

Have they not changed? It could have been said last week. The fact is that there was going to be such a proliferation of property in society, that there was more to sleep for in an extra-marital way and thus we had to protect ourselves. The Minister went on to quote from a brilliant academic journal he had been reading before February 1974. I quote from column 588:

I have recently come across a working paper from the New Brunswick Department of Justice dealing with the status of children outside marriage. Although the whole tone and theme of the report was humane and advocated reforms and improvements it nevertheless sounded a note of caution——

That is, apparently, always a good reference point for a Minister. I am resuming the quotation:

—in relation to succession rights. The working paper states:

While from the standpoint of the child it may seem inequitable to treat a child born outside marriage differently from one born within marriage, yet from the standpoint of the mother and the children born within marriage, to treat equally the child born outside marriage detracts from the benefits accruing to the members of the family.

Echoes of the first family. The quotation continues:

Take, for example, the case of a father dying intestate and leaving a wife and two children; the family may know nothing of the existence of a child born to the father outside this marriage who nonetheless appears on the scene and establishes that he is the child of the intestate and thus is entitled to share in the portion of the estate going to the children. Surely one must question carefully the social benefit of a law to this effect.

There was no great evolution in Irish thinking about the family up to the year 1974. Maybe the Minister is an optimist and I am a pessimist and there was an evolutionary source in what was happening in Europe that I seem to have missed. I was very busy at that time simply trying to support Senator Robinson in bringing in amending legislation. Senator Robinson withdrew that Bill, not before an interesting discussion as to the status of illegitimacy itself. Where did all this stuff come from? Senator Robinson suggested that its origins were in canon law. This was very angrily refuted. My dear friend, the late Senator Alexis FitzGerald, suggested that it was in the civil law that the origins of illegitimacy and its different forms began. In the next few years there will be even more attempts to accommodate family law to canon law, laws on marriage, laws affecting children so we might like to know what a rich tradition is there in that regard. I quote from the Official Report of 13 February 1975, column 630, at which Senator Robinson stated:

An important part of the influence of Canon Law resulted from the way it gradually refined the categories of illegitimacy. For example, a general distinction was drawn between illegitimate children who are natural and those who are spurious. A natural child was one born to parents who could have been married at the conception. A spurious child was one whose parents could not have been lawfully married at the time of conception. Spurious children were further subdivided into further categories: adulterous, who were born of an adulterous union; incestuous, where born of an incestuous union where either party had taken solemn religious vows; and nefarious, where born of parents who were blood relations in the same line. Such were the degrees of iniquity with which innocent children were branded. These categories involved different penalties and prohibitions on joining the priesthood or being able to take vows.

Senator Robinson went on to state:

In many ways I would agree with Senator FitzGerald that the Church was trying to discourage illegitimacy and that it was possible throughout this period for a person who was illegitimate at birth to get a Papal rescript legitimising him. Indeed, for those who want to pursue this research further, there are many Cardinals in history who were illegitimate but who got a Papal rescript which legitimised them.

I quoted that point because I think it is extremely important — and I am not suggesting that the Minister is involved in this effort — that we establish a distance between the assumptions, principles and prescriptions of canon law and the assumptions, prescriptions and procedures of the civil law. I interjected one sentence, when I heard Senator Robinson speak, about the enormous advantage of having a separate State and a separate Church ceremony for marriage, for a start, and the confusions that it would save. In this regard I am not speaking only from information available to myself. For example, in April 1979 the Office of the Chief Registrar at the Custom House felt it necessary to write about the Presbytery of Dublin and Munster Marriages Act, 1844. They wrote to a reverend gentleman. I will quote from that letter:

I am directed by An tArd Cláraitheoir to refer to your letter of 6th April, 1979, regarding ecclesisatical annulments of marriage. The Registration of Marriages (Ireland) Act, 1863, provides for the registration of such Roman Catholic marriages as may be legally solemnised in this country. As you are aware, such marriages entail a civil as well as a religious contract. An ecclesiastical annulment terminates only the religious contract where a person who has received an ecclesiastical annulment of a Roman Catholic marriage subsequently goes through a marriage ceremony without having obtained a civil decree terminating the first contract, particulars of this second ceremony should not be entered in the civil records.

Note the difference between saying that the particulars of this second ceremony should not be entered in the records and saying people should be prosecuted for bigamy the distinction that was drawn in the contribution of Senator Robinson. The idea is that bigamy could be sustained, but that the records had to be kept intact, which makes its own comment in relation to this intersection.

On the question of the purposes of this Bill, I certainly will be supporting the Minister, in the remarks I shall be making now and on Committee Stage in relation to many of the welcome changes introduced in it. I do not have the enthusiasm of some of the opening speakers, even those from the other side of the House, who felt, listening to the Minister, that the status of illegitimacy is being abolished. It is not being abolished. In fairness, I do not think the Minister said that it is being abolished. She said she is going as far as possible — I do not want to get involved in endless quotes — to mitigate as many consequences as she can of the existence of the status of illegitimacy.

May I, in turning to the next part of my remarks which address entirely the purposes and adequacy of the Bill itself, make reference to the 1974 concluding discussion by Senator Robinson. On 13 February 1975 she drew attention to something that might be regarded as an international code, namely, the Uniform Parentage Act which was compiled in 1973. She listed a number of specific conditions which she offered practically as a guiding spirit for future discussion.

There are two things which the legislation is seeking to do. The first is to try to improve the position of all children and the second is to enable social provision to be made to assist people who are in a less position than the usual circumstances for the maintenance, education and sustenance of children. It is very interesting to note that everything I have quoted so far has been from February-March 1974. When Senator Robinson rose to propose a resolution, which the Minister made reference to in her speech, and which I seconded, on 16 May 1984 we were all older by ten years. What happened to this gestating piece of legislation, this major piece which led to several dismissive remarks from the then Minister for Justice? It has not appeared. Great people, no doubt, are entitled to longer delays than lesser people.

However, a number of things had happened. People had begun to consider the legislation and references being made to some of these points in the Minister's speech, but not all. I should like to yet again state that I believe that the historical contribution of Senator Mary Robinson to the question of reform in this regard will be acknowledged in the future.

A number of points arise. I have some sympathy for the Minister in taking on this task and moving it forward within the context of the Irish Constitution. It seems to me that there are two sets of difficulties involved. The first of these is the fact that the constitutional document of 1937 is one that has provisions which are not in practice interpreted in terms of each other. For example, Article 41 states the general provision that should be made for all children. There is a socially prescriptive clause to the Constitution, Article 45, which would have made possible since 1937 a whole range of sustenances in the range of children. But they did not happen. It is just a mere 50 years on when we are talking about the position of children in relation to the Constitution.

I have come to the conclusion, perhaps painfully, that at the end of all this we might be better with a new Constitution, that we might be better with a document into which we could discover not the statements of the protection and development of children in contradictory terms. For example, I have just identified a paradox. The obsessional consistency of this country has been built on the issue of property yet a clause, Article 40, and another enabling clause. Article 45, have existed in the same Constitution and they could have made it possible for all children to be cherished equally. None of us can claim in any sense of credibility that we did not know the difference between legitimate and illegitimate children, and their experience. It is time we asked what price we are paying for these paradoxes in documents that we purport to live by.

I would prefer to live in a country that had a Constitution that had an explicit protection of children and an explicit recognition of the rights of children in it. Here again we have the idea that there is a history here of the Constitution being used to obstruct the State's reasonable regard for children in a number of respects. There are cases currently before the courts which seek to stop health boards, in one activity or another, from being involved in the welfare of children. There is the connection equally of the question of the status of the family.

There are images that strike one in the Constitution. I was impressed for most of my life with the phrase about the family being the basic unit of society until I heard this term being used so freely like the carburettor of a car, the manifold, or something like that, the basic unit. I am in favour of all families. I raised the question in 1974 under what principles of constitutionality or of law did we ignore and preclude the children who were born of relatively stable unions outside of conventional marriage from full participation in the State. The argument was, as we have just heard in the quotations I have given, that we meant something very special by the family. It was not a far remove from the distinction people had in certain other countries of having what is called a common law wife and a major first wife. Thus the phrase, "first wife", "first family". They tell us a great deal; they tell us what the meaning of the family is, a kind of amoral familism if one likes, it is that ones consideration of family does not extend to even the child one is the natural parent of to the same degree. It might be that if one were to follow the debate of 1974 that one could in time convince oneself that this action never took place and that one had been the victim of a hallucination.

On the specific issues the Minister has a difficulty in relation to the Constitution and I have sympathy with her in that regard. Any contributions I make on Committee Stage will, I hope be aimed at addressing those difficulties. The Minister also have difficulties in relation to attitudes because I do not believe this Bill will change attitudes in Irish society. It may change some basic minimal rights in a number of limited regards that have been addressed already by Senator Robinson. However, it will create other difficulties. I do not see any point repeating any that Senator Robinson dealt with comprehensively except to say that it is very important to emphasise some. For example, the Minister in her speech on Second Stage referred to the implications of our adherence to the European Convention of Human Rights. If I remember correctly the argument was being made in the discussion on a White Paper on this subject that the passing of legislation like this would enable us to sign the Convention. Quoting the European Court's judgment, the Minister stated:

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.

Where is the recognition for the family not based on marriage in Irish social attitudes? The people have just been told that they cannot have a marriage while the other partner is alive. They have been told, "we have compassion for you", and, while they are fainting from the compassion, they are being told that they should live separated for the rest of their lives, irrespective of their age.

Let us return to this question of the triple somersault that people want to do in relation to the question of the family that is not based on marriage. Senator Robinson listed a number of these. I have listened for the past several weeks — I had a non stop seminar blazing in my ears — about the joys of civil nullity, about judicial and legal separations and how it was morally superior for somebody to live with somebody else without the protection of the Family Home Maintenance Act, without the protection of barring orders, without rights of succession and so on. Their children would not be protected and, equally, both partners significantly diminished in rights. Let us be perfectly clear: that is the price of a limited, miserable property-orientated version of the family we have. Perhaps it was never constitutionally intended, which has just been vindicated in this country. I find it sad but the Minister is correct to make the point. The greater burden of her speech deals essentially with what are regarded as material rights, maintenance, property, succession, guardianship and so forth. What is missing is a consideration of the social distance that society has established between the so-called legitimate children and children who were born out of wedlock. I hope I gave enough examples of it. I may return at another stage of the debate to emphasise particular points about what I mean by these examples if anyone is in any doubt.

What would change those attitudes about responsibility in sexual procreation, about assuming ones responsibilities and so on? We cannot say that all children are equal. All children have never been equal in Ireland. That is just a simple fact. They are not equal today. They are not equal in terms of protection, in terms of maintenance or in terms of property succession. What is the point of going on with this humbug language? It is correct to say that we have justified it all in the names of superior Christianity, morality to our neighbours. Thus, I want to hear from other speakers, who would be better versed in this, about how it was backward pagan England — from whose influences we recently protected ourselves by an enormous majority — with their degenerate view who changed the law in this regard in 1969. We are a mere 17 years behind them. Is that an example of, as the phrase was put, "we have to bring our campaign to them yet"? When you look at the history of common law in Britain there was a long period in which there were many disadvantages against the child born outside wedlock. Many of these were improved in the 1969 Act.

In relation to the Law Reform Commission's report of 1982, why did it have to take so long for the report to appear? Of course every report is welcome. But why does it take us so long to make changes in such areas. I doubt if the answer can be anything other than the fact that, whenever property is involved, law will move very slowly in Ireland. It is that property ethos, a kind of sickness, which runs through the debate. Another example of it is in relation to support for a woman who is living with a man and they have a number of children. If they cannot get on any longer they split up. The debate in Ireland usually refers to what she is entitled to when he dies, the disposal of property after death, not what she is entitled to today, the idea of what they might have created together, what they might divide up today or what they might want to live on today. Property after death: the Senator Alexis FitzGerald image — all these people coming out with memories of 2 November, to claim all the property. What a distinguished record to have in this regard.

The Minister, when she was talking about the Government's reaction in October 1983 to the Law Reform Commission's report said that the Government's decisions 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". May her belief always be with her in that regard. When looking back at the law of the State and the practices of the State in relation to illegitimate children it is neither very Christian nor very democratic.

The Minister's aim is not the abolition of illegitimacy. I find this unsatisfactory. I do not believe that it is impossible to abolish this status. If necessary, let us prepare the groundwork and let us have the options for a new Constitution, a constitutional amendment or whatever obstacles which need to be removed to change it altogether. Her aim is to deal with guardianship, maintenance, succession, property rights and the declaration of parentage which she stressed. She has expressed a confidence in relation to revenue law. We read the phrases "marital child" and "non-marital child". Are these concepts not the strongest evidence you could possibly have for changing the Constitution in this regard very fundamentally? What do we mean by it all? Perhaps people will correct me and guide me on this. Three categories of children will exist after the passing of this Bill. Marital children will be those born within wedlock. They have been well defined. There will be legitimated marital children and, finally, non-marital children, the idea being the civil concept of nullity built on the sand of the canon law concept of nullity. It will state that a marriage never existed or a marriage was defective. Of course I welcome the children of such a piece of fiction being saved from the stigma of illegitimacy. But they are — Senator Robinson was hinting at this — being moved into this category of marital children. Then, again, you will see these standing distinct from the concept of non-marital children. Related to these concepts will be marital child, non-marital child, legitimated marital child, marital child after the legislation has been passed. I kept thinking about how good it was, in the law, to be developing concepts. After you had gone through the exercise of suggesting that the marriage was a figment of your imagination you then went on to say that the children were the fruit of a marriage. There is some merit in such a retreat to biology but that is what it is in the end.

Part II of the Bill proposes to extend the grounds whereby the status of children can be changed. We would welcome this. But I support Senator Mary Robinson when she makes the point about section 6 of the Bill. Section 6 provides that, if either party, to avoid 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 and in the case of a voidable marriage a decree of nullity will not have the effect of making the child of the marriage illegitimate as it does at present.

I suggest that that needs great clarification. The position was, as I illustrated earlier in a letter from the registrar general's office, that many people believed that they were involved in a second proper civil union. I would like that distance established between the assumption that you had gone into a second civil union when you had not and the effect of section 6, as it is described here, on all of these. I regard these little fictions with a certain amount of black humour.

A number of very important points have been well made by Senator Robinson. It is a mistake for speakers — and some from all sides of the House have made the comment — to assume that this Bill is abolishing the status of illegitimacy. The fact that it is not extends far beyond this Bill. What it means is that our inability to demolish the concept of illegitimacy will live on in consequences not only in this Bill but in every Bill where the words "legitimate" and "illegitimate" are used as a distinction. Should it not be so will be good news for me when I hear it.

The distinction between marital and non-marital needs to be developed. I cannot see to what extent one has gone towards my second purpose — of amending social attitudes — if one wants to say that one would have liked to abolish illegitimacy but one is talking about marital and non-marital, when one is back to the first argument about potential constitutional difficulty.

There is a difficulty involved in relation to the procedures for handling the children of marriages that have been declared void or voidable. Equally I think that perhaps — Senator Robinson made the point — the courts procedures which are envisaged in the area of family law should have preceded this Bill. We might have been able to discover, in those procedures, better and more satisfactory ones for adjusting and settling issues as to guardianship rather than appeal to the courts under the present conventional system. There are many people who believe they have moral relationships that are continuous, who love their children, who love each other, who would like to be treated under the Irish Constitution but who have been excluded. They are now non-people. They do not have the merit of taking on this vow of separation never to remarry. They are people who — as has been pointed out — are living in sin in the eyes of God and the Irish Constitution. If they want to make arrangements for their children they should be able to make those arrangements in a dignified way.

In relation to the question of maintenance and affiliation orders I drew the Minister's attention to the fact that she did not intend to go back to the 1930 position of the once-off lump sum payment. I ask the Minister to think again in this regard, to think of the kind of historical background I have hopefully sketched for her in relation to responsibilities on the part of Irish males in relation to their children born outside of wedlock. What of the situation where a person or party may have only a limited opportunity to get something rather than to get the continous expectation of nothing? Should the one exclude the other? That is something to which we can revert. Perhaps when we are teasing out this section it is something we might give some thought to.

The point has been made, but is it not symbolic in its own way, that we find ourselves so obsessed with wills at a time when there are a quarter of a million people unemployed, when we are told we are a poor country that cannot afford this or that. Wills are a great consideration in Ireland. By the way I am not arguing against some Philistine position, that I am against good law. I listened to cheap remarks like that. I listened to some the other night. What I am interested in is that, when one looks at comparative jurisprudence one finds that there are a limited number of countries that concentrate exclusively on the disposal of property after death. There are very many different jurisdictions who look at the disposal of property as it is created, re-distributed and so forth. It is just an example of our usual supremecy of imagining that our miserable concentration on what we are doing is somehow morally superior to the rest of the world. That is a confident position to have of the world. I wish at times I have never lost it myself. There used to be a phrase for it: as happy as a pig in mud, let us say, for the sake of illiteracy. The fact of the matter is that there is a major problem in relation to the question of succession. I take Senator Robinson's point about what we will do after the enactment of the legislation. Ministers may reply there may be a constitutional difficulty in relation to accommodating any of the requirements of retrospection. That can and should be solved. There are a number of ways of addressing this issue in relation to creating a concept of property that is not divisible after death and so on. We can debate it more thoroughly on Committee Stage. We should agree, on Second Stage, that it would be much more desirable to have a date in the future on which all wills would be affected by the requirements of this legislation, than having a whole series of these other ones. They will create a new kind of novel, when all of the people will exchange their love stories with each other. One will say perhaps: were not you lucky that you were able to be born after the enactment of the legislation but I am the illegitimate child of the person who was born before the date of the legislation and therefore condemned to be poor. The whole thing is farcical.

They will still have a claim.

Under section 117. The Minister encourages me to come to section 117. We can debate the extent of the protection afforded under section 117 and as to whether we can go some way towards meeting the other more general principle that I am advocating supporting Senator Robinson on.

I agree with Senator Robinson in relation to section 32 of the Bill.


Intestacy. I want to support her in that regard. If we are removing discrimination from one category there is great merit in trying to apply this to all children, leaving all children who have been treated — as they would feel — unjustly to have the same recourse to law. In all of this what will be the traumatic point for Irish people, and for people who are interested in the law, will be the concept of putting the children first. I wait to be contradicted on it by evidence. Everything I have read in all the debates over the past 12 years taught me only one thing, that it is a property first culture, a property first Constitution, a property first legislature and that we have property first discussions. I would like to think that the reforms this Bill will introduce will lead to the kind of changes in attitudes that will undo what I have been describing.

I will make one last point. I have said already I would support the Minister in any way in which the Bill can address the question of diminishing as much as possible all of the adverse consequences for children at present. Let me conclude at the point at which I began. It is this: is there not a case, as we move along, for trying to accept the legal entity of the child in its own right? I read the Russell report when this issue was being debated in Britain. I have looked at some of the debates that have taken place in some of the other Parliaments. They have made a number of points. They have tried to address the issue of the child in its own right. But I think we have to live with the enormity. I make no apology for saying it. We do not see the child directly in Irish social debate. We see the child through spectacles and those spectacles portray the child as either the child of the first marriage under the Constitution — the only marriage now — or the child within wedlock, or the child without wedlock. It would be a very significant leap forward if we could hope that this would ever change. I do not say I have much hope any longer in this regard. Equally, this is another issue to which we must address ourselves. I ask Ministers to assist us to address ourselves to this question.

Why should a case be made for retrospection? If we say we will change the law for the future, albeit we have been converted to a more progressive and humane view, how could we ever undo what we have done by drawing all of these distinctions? Has anybody ever read or listened to the evidence of those who found themselves in institutions of one kind or another, who found themselves as the abandoned natural children, particularly of Irish maids? How can we ever undo that damage? I am not in favour of people continually flagellating themselves with guilt and all the rest of it, but this is a shame in Irish history — there is no point in calling it anything else.

It is not something about which we became concerned in the twenties and thirties. The fact is that there is a case in the European Court at the moment to vindicate the rights of a child. There were cases in the Supreme Court, and in the future we probably will have to rely on the courts rather than on the will of the people. I wish the Minister every success in what she is trying to do. I hope she will take the remarks I have been making as an attempt to draw the context of the difficulties in which anybody is who tries to draw up reform in this regard. She will have the critical but constructive assistance of the Labour group in the Seanad in improving this legislation.

Debate adjourned.