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.