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

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

I welcome the Bill as it seeks to remove a social injustice which has been allowed to survive in our society for far too long. There are some points I should like to make about the Bill and one concerns the proposal to abolish the word "illegitimate" and replace it with the word "non-marital". If there is a need for the legislation to provide any distinction between children on the basis of the marital status of their parents, it does not mean it is necessary to replace an old offensive term with a new offensive term. Children are equal whatever the circumstances of their birth, and if it is necessary to provide a distinction it is the parents who should have labels attached to them rather than the children. All children should be described simply as children and if labels have to be attached somewhere they should be attached somewhere else other than on the children.

In so far as the matter of legal entitlement to maintenance is concerned I am glad to see that the Bill proposes to equalise the maintenance entitlements of children without regard to the marital status of their parents. I am also pleased to see that section 17 seeks to ensure that the court should have regard to the financial and other responsibilities of each parent towards the spouse and other dependent children in assessing maintenance. Justice requires that, in so far as it is possible both parents should support their children or a child born outside marriage.

In cases where parentage may be disputed I note the Bill provides that the court may order blood tests only in certain circumstances. I am somewhat concerned, however, to find that there is no question of an adult being compelled to subject himself to a blood test. A court is free to draw whatever seems to be the proper inference from a failure to comply with a direction on blood tests but nevertheless it is not mandatory. Parentage is one of the most important questions which a court can decide and I am aware that a law relating to drunken driving, for instance, makes it mandatory for a person arrested to provide a blood sample or, alternatively, to be presumed to have committed an offence. If such a stringent requirement can be introduced in relation to a road traffic offence, I can see no reason why it should not be mandatory for a person to give a blood sample in a paternity case except in cases where there is a credible medical reason.

The question of guardianship is one which will always cause great difficulties for all involved. We must try to ensure that our concern for the rights of one or other of the parents does not prevent us from doing justice to the child. To some extent, our approach depends on how we regard guardianship. Is it a right of the parent or of the child? I think it is a right of both parent and child but the child's interest should be paramount. From a parent's point of view rearing a child and making decisions, both big and small, are both a privilege and a responsibility. From the child's point of view guardianship offers the child the opportunity to be reared by a parent who cares about the child's welfare. Therefore, to deny a parent guardianship entitlements without regard to the child's welfare, and the child's interests, may in many cases be unjust to the child. In the Bill before us the natural father has no automatic guardianship rights. I would like the Minister if possible to confirm to me that this approach has been favoured solely because of concern for the child's rights.

The Bill proposes to equalise the succession entitlements of children, regardless of the marital status of their parents and I welcome that provision wholeheartedly. If the child is a stranger to his or her father, the choice was not the child's, but was that of one or other or both of the parents.

At this stage I should like to mention some points of substance which the Minister might like to think about before Committee Stage. At present there is no time limit within which paternity has to be established. This may, perhaps, be the right approach as long as the alleged father is alive but, when he is dead, it can be argued that it would be unfair to permit paternity to be capable of being established for the first time.

The Bill proposes that paternity be capable of being established on the balance of probabilities. If a man dies and after he is dead a woman claims he was the father of her child, how is the man's widow, practically speaking, to refute this claim? Often there will be no question of blood testing evidence unless such evidence was gathered during the father's life. Serious consideration should be given to limiting the time within which paternity may be established to the lifetime of the father unless grave and substantial reasons exist as to why that is not possible or practicable.

I welcome the Bill as it travels a good distance along the road of removing discrimination against children born outside wedlock.

I join Senator Hanafin in welcoming this Bill in so far as it is a statutory step along the road to abolishing the concept of illegitimacy and to try to achieve equality for all children in the eyes of the law. I stress the word "step" because this Bill is merely a link in a line of legislation going back to 1931 which has tended to improve the lot of the child born out of wedlock. It is interesting to read the title of the Bill, "An Act to amend the law relating to the status of children and for that purpose to amend the law relating to legitimacy..." The Bill is not entitled a Bill to abolish the concept of illegitimacy. This Bill moves a very substantial way along the road to achieving that objective and in so far as it does that I welcome it but it is disappointing that it does not travel the full distance.

The Fine Gael Party played a very substantial role in society in bringing to light the problems of illegitimacy and indeed highlighting the need to abolish the concept of illegitimacy. As far back as January 1979 Young Fine Gael at their first national conference resolved that Fine Gael in Government would abolish the legal status of illegitimacy. As recently as April this year the Seventh National Conference of Young Fine Gael resolved:

That this Conference reiterates young Fine Gael's support for the total abolition of the legal status of illegitimacy. Conference rejects any Bill that falls short of this principle and mandates the Law Reform Group to campaign for the necessary amendments to the Status of Children Bill to achieve this aim.

Successive recent Fine Gael Ard-Fheiseanna have also given their support to the ideal that the concept of illegitimacy should be abolished. We were all very happy in 1982 when the Law Reform Commission, without resorting to the need, for specifically stated reasons, for producing a working paper, produced instead their very excellent report on illegitimacy. We were even happier when in 1983 the then Minister for Justice indicated that the Law Reform Commission report was receiving very serious consideration by the Government and that some of its principles would ultimately emerge in legislative form. We were happier still in 1985 when the draft Bill was published and are very happy to have the opportunity today to consider the Bill before the House.

It may be no harm at this stage to refer to the introductory chapter to the Law Reform Commission Report. Chapter 1.1 states:

In recent years the law relating to illegitimacy of children has come under increasing criticism in public discussion. In this Report we analyse the existing law and the law in other jurisdictions and we make proposals for reform. Our proposals are of a radical nature. However, we think that a law that denies substantial rights to innocent children needs radical reform. Reform of the law on this subject is clearly an issue on which there is likely to be debate and disagreement in public discussion.

I should like to emphasise one word which was used twice in the first chapter of the Law Reform Commission Report, —"radical". I regret that the Bill does not contain the kind of radical change called for by Young Fine Gael, by many people in society, the Churches, those in academic life, lawyers and people involved in social work. Those who talk about radical change are talking about the necessity for a bill of rights for children. There is nothing in this Bill which can be regarded as the basis of a bill of rights which will ensure equality of status for all children in the eyes of the law. If anything, in certain respects it confirms the existence of the concept of illegitimacy as set out in section 6 to which I will refer in a moment.

I also agree with the point made by Senator Hanafin in referring to the interpretation section of the Bill in relation to the marital child and the non-marital child. The unfortunate non-marital child is described as a person who is not a marital child. In other words the unfortunate non-marital child is an illegitimate child by another name. Let us be straight about what we are talking about. It is simply going for a nicer tag which looks better in the consumer society within which we live. We are telling that unfortunate person that if they do not come within one of the categories specified in section 2(1) (a) and (b) of this Bill, they are a non-marital child — an illegitimate child by another name.

The draftsman started off in the interpretation section with defining the difference between the marital child and the non-marital child. However, he soon forgot these new labels, these new descriptions, for the child born out of wedlock. The new section 1A of the 1931 Act specified in section 6 of the Bill in relation to the legitimisation of the children of certain void marriages states:

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...

So we depart again from the phrase "marital child" to the "legitimate child." The children within the confines of the new section 1A. who are not legitimate children are illegitimate children and in so far as they are illegitimate children this Bill, section 6 in particular, confirms in statutory form the concept of illegitimacy. That is something that makes me very unhappy.

The word "illegitimate" is used once again in section 26(4) of the Bill in referring to dispositions in favour of illegitimate children. In section 27, the draftsman must have woken up again because he refers to non-marital children. These two concepts have to be clearly spelled out because the overlapping between them is very considerable. Before the Bill leaves this House we must take certain steps to ensure that the labelling contained in the Bill and which sets certain types of children apart from other children is removed. My concern is to see that all children are the same and that the only label which can be applied to the offspring of two human beings is "child". That should be our approach in this House. The Minister of State referred to other legislation, in particular the Illegitimate Children (Affiliation Orders) Act, 1930, which is being repealed by this Bill. I am glad to see that she referred to the Legitimacy Act, 1931, the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses and Children Act, 1976. I mention these four Acts because in so far as the Minister of State referred to them, it can be said that she was seeing this Bill as another Bill in the succession of legislation simply to give rights to certain types of children but not, I think, as a Bill which attempts to abolish the concept we are talking about.

I have referred already to the fact that the object of the State and the object of us as legislators must be to remove discrimination from any particular type of child. The Minister of State stresses this in her speech. Our objective must also be more positive. It must be to ensure that all children are seen in an equal light. My concern about this Bill is that if enacted in the present form substantial differences will remain. For that reason I must be somewhat critical of the Bill as it stands. However, one must also comment on the fact, as we debate this Bill in the autumn of 1986, that we can do only so much by legislation. A lot more must be done in terms of changing public attitudes. It is salutory that we debate this Bill a few months after we debated a Bill to amend the Constitution which was subsequently put to the people and rejected by them. I would submit that the rejection of that Bill and the rejection of that constitutional amendment in measure must have the effect of placing many children in a more unfortunate situation in relation to their status than would otherwise be the case.

Our approach to single parents in the area of housing is not adequate. One only has to remember the unfortunate incident involving Athlone Urban District Council about 12 months ago. If one examines the record of other housing authorities, one will see that their recognition of the family not based on marriage is not very strong.

Another point I will refer to in greater detail later is the question of property. When we talk about many of these issues we get totally bogged down in the whole concept of property and our approach to it. For that reason, I am amazed that Part V is headed, Property Rights. I hope that between now and Committee Stage the Minister of State will agree to at least amend that heading to read, succession rights. I submit that this part of the Bill deals with succession rights and not property rights.

Part I of the Bill deals with the interpretation of sections 2 and 3. I have referred already to the evolution of these two new concepts, the marital child and the non-marital child. I believe that these two words, as we are going to introduce them to our legislation, will create further distinctions between children. I would ask the Minister of State to examine this again — I am sure she has examined it already — to see if there is any possibility of removing these two descriptions from the Bill. So long as we have two different descriptions for children born under different circumstances we will have children of different kinds in a legal sense. I cannot agree with that.

Part II of the Bill deals with certain amendments of the Legitimacy Act, 1931. Again, speaking in the context of a situation where we can accept the concept of illegitimacy, I welcome this part of the Bill. It is very unfortunate that the status of children within the situation of voidable marriage can be altered where a decree of nullity is granted. The amendment suggested is a good one. It involves a change that has been called for for some time. In relation to void marriages the proposed amendment is good also. I am a little baffled at the restrictive nature of the section dealing with void marriages. The fact that parents must reasonably believe that the ceremony of marriage would result in a valid marriage seems unduly restrictive. If anything, it confirms in statutory form once again the status of illegitimacy. I would ask the Minister of State to look at that section between now and Committee Stage.

Part III of the Bill deals with certain amendments to the Guardianship of Infants Act, 1964. I would like to comment in particular on section 11. That is the section which allows the father of a non-marital child apply to a court to obtain an order appointing him as guardian. I disagree with the approach being adopted in this regard. I believe that the father of a non-marital child — I use the phrase even though I do not like it — should be automatically deemed the guardian of that child. That parents of all children should be the guardians of their children and guardianship should only be displaced by an order of the court. I do not think it should take an order of a court to confer guardianship rights on a parent. A court should have greater power to remove guardianship rights from parents in circumstances where that parent should for good reasons not have those rights. Therefore, I would ask the Minister to look at this section between now and Committee Stage. I want to give her notice now that I will be putting down an amendment on Committee Stage to deal with the situation I am speaking of, if she decides that she should not think again about it.

Part IV of the Bill deals with certain amendments to the Family Law (Maintenance of Spouses and Children) Act, 1976. This part of the Bill must be considered with the repeal of the 1930 Act and the introduction of blood tests in determining parentage in civil proceedings. In so far as one considers those three matters I welcome very much the new provision. The 1930 Act which worked under certain circumstances was nevertheless unsatisfactory. The requirement of corroborative evidence was always a difficult requirement to satisfy. Changing the onus to the balance of propability principle is a good idea. In so far as the maintenance of a non-marital child is concerned I welcome the new provisions proposed in this Bill.

I want to turn now to Part V of the Bill which is the section headed Property Rights. As I said earlier, this section of the Bill should be headed succession rights. The issue we are talking about in this part of the Bill is the right to succeed to property. I believe that by heading this section, Property Rights, we are creating an unnecessary confusion.

I welcome the principle contained in section 26 (1) which is as follows:

In deducing any relationship for the purpose of any disposition (including a disposition creating an entailed estate) made after the commencement of this Part, the relationship between a person and his father and mother shall, unless the contrary intention appears, be determined irrespective of whether the father and mother are or have been married to each other, and all other relationships shall be determined accordingly.

I want to compliment the draftsman on the wording used in that subsection. There is no mention there of marital or non-marital children. There is simply a mention of marriage. It is a section which sets out a principle and sets it out in very acceptable language. In so far as we can introduce that principle into our law, I welcome it.

I wish to refer to the provision specified in section 29. This gives one the right to apply to the court to ensure that justice is done in determining the rights of marital children as against non-marital children in cases where a substantial input into developing property or into developing family interests may have been specified by a marital child. I welcome the whole idea that one can apply to the court for the purpose of ensuring that justice is done in relation to succession rights.

One of the things that has always amazed me in relation to the Succession Act of 1965 is the different approach adopted by the Legislature at that time in relation to the rights of children who have been disinherited on the one hand and, on the other hand, the rights of a widow who has been disinherited. The question is whether one should have a legal right or whether one should have the right to apply to a court to ensure that justice is done. I believe that the latter is the preferred approach. In so far as this Bill extends that principle in a very subtle way and in a way that gets the balance of the interests of all parties just right, I welcome the approach and the Minister must be complimented in terms of developing that approach in a legislative sense.

Part VI of the Bill introduces the declaration of parentage concept. This is something which I presume exists in our law in a general sense already, but for which there is no particular statutory provision and in respect of which a statutory provision of a specific nature is necessary. I welcome that part of the Bill.

Part VII of the Bill deals with blood tests. I referred to that already in relation to the 1930 Act and in relation to the maintenance provisions. This is a provision which to my mind is long overdue. In so far as the provision is introduced, it is introduced in the right way. It cannot affect the rights of any individual and yet gives a court the opportunity of drawing an inference from one's refusal to submit oneself to a blood test for these purposes. It is a good section and a good provision.

I should like to conclude my comments on this Bill by saying that it is about one essential concept and principle — the idea of illegitimacy or the idea of legitimacy. I believe that this Bill as it stands does not abolish that concept. I believe that as it stands this Bill in many ways confirms the existence of that concept within our legal system, but I also believe that this Bill, as the Minister in one way said in her Second Stage speech, must be seen as a measure that comes in a long line of legislation which certainly improves the position and, I suppose, the status of children born out of wedlock. In so far as the Bill does that, I welcome it but in so far as it does not remove the concept about which we have all spoken so frequently, I must express certain reservations. In so far as certain sections of the Bill appear to confirm that concept, I must express disappointment.

The idea underlying this Bill must be seen in the light of other reforms which are necessary. I refer in particular to the need to provide an adequate family court structure in our society. If the Bill becomes law, if people are to avail of the provisions contained in this Bill, then there must be a physical structure. There must be adequate staff. There must be accommodation. There must be a simple procedure. There must be basically a forum within which the citizen can avail of the rights provided for by this Bill. In many circumstances that does not exist. All in all, I will conclude by welcoming the Bill in so far as it goes. It is, I believe, a Bill to which we can address ourselves more fully on Committee Stage, when I am sure many amendments will be put down.

Very briefly, I want to address my comments to what Senator Durcan has just described as the concept and principle of the Bill, that is, to place children born outside marriage on the same footing as children born within marriage. I welcome the Bill in the same way as Senator Durcan and Senator Hanafin have welcomed it and congratulate Senator Durcan on the way in which he has gone through this Bill, examined it and given a clear description of its provisions. I would echo his extreme disappointment in certain areas. I should like to concentrate on an area with which I am very much concerned. The Proclamation states categorically that we are to treat the children of this country equally. It did not distinguish between children born of married parents or children born of non-married parents; it talked of all the children of this country. The Bill proceeds in section 2 to create two obnoxious characters, those of the marital child and of the non-marital child. Some effort is made to say that the non-marital child is not synonymous with the illegitimate child, but so far as I am concerned — and so far as the public are concerned — the description of non-marital child would have the same connotation as that of an illegitimate child. There is no question but that it would have the same connotation in peoples' minds. Therefore, all references to non-marital children should be struck out of this Bill as they are an insult to children and attach unwelcomed labels to the innocent parties, who are the children.

A further provision should be included in the Bill to the effect that the word "child" also means any child not included in the previous six categories, (a) to (f), inclusive. A child is a child and should not be labelled with such terms as legitimate, illegitimate, marital or non-marital because of the parents' discretion or indiscretions as regards their marriage contracts.

I would agree with what Senator Durcan says. In relation to what we have just been through in the last referendum, there has to be a change in this country of people's attitudes towards children, towards what we believe is the children's right for themselves. I applaud county councils, particularly my own urban council, in the way in which they have treated single parents, the way they have regarded them as a unit so far as housing is concerned and have gone out of their way to eliminate the stigma of the illegitimate child that has existed down through the ages. I ask the Minister to look at it again and to use the word "child" instead of "non-marital child" in this Bill.

An Leas-Chathaoirleach

It is now 6.15 p.m.

Will we have a sos and adjourn the debate on this Bill until tomorrow morning?


Debate adjourned.

An Leas-Chathaoirleach

We will resume at 6.30 p.m. on item No.3.

Sitting suspended at 6.15 p.m. and resumed at 6.30 p.m.