I should like to bring to the memory of Senators the occasion of the discussion in this House of the proposal which has still not been passed into law for the abolition of the death penalty. The then Senator John A. Murphy rose and read the first sentence of the Bill which was to the affect that no law shall be enacted by the State to take a person's life. He said it was a magnificent occasion to be present in the House for such an event. I am in that position today. What a magnificent occasion it is to be present in the House to have the opportunity of contributing to a discussion on legislation, the purpose of which is to abolish all the discriminations and all the legal disabilities which attach to the innocent victims, to children whose status in law up to this was one of illegitimacy.
The Government are to be congratulated — and it is not too often I congratulate them on anything because I do not think that is a function of a Senator — and the Minister of State, Deputy Nuala Fennell, is to be congratulated on her significant contribution to ensuring that this dramatic piece of legislation will take its place on the Statute Book prior to the ending of this term of office.
The purpose of the elimination of the discriminations to which I referred are obvious and are shared by all those in this House, whether they be of a conservative nature or of a liberal nature or if, like myself, they are hovering somewhere in between. However, we heard in the debate yesterday, and particularly in the very sensible and good contribution from Senator Conway, that sometimes people's emotions about this matter run away with them. They pretend that a law can be enacted which will change the reality as it is on the ground. Irrespective of whether one calls something illegitimacy, as long as marriage is an institution which is recognised by the law of the country, or even more important, recognised by the custom of the people, there will be an inevitable difference in terms of social opportunity and social status in respect of those children who are fortunate enough to be born of such a union and those who are not. Nothing we can do here can change that. It would be a ridiculous objective to set ourselves to abolish illegitimacy because the only way illegitimacy can be abolished is to abolish marriage itself. That is not our job. Our job is to abolish all legal disabilities and discriminations against the child.
It is important that we should recognise that the object of this legislation is the child, not the parents. When people speak about the thorny problem of the guardianship of the children in cases of non-marital unions and get hot under the collar about the fact that automatic guardianship is not being given to the father, what they are saying in effect is that in some way there is a right which would attach to the father which is not being dealt with in this legislation. I am in favour of giving all and every right as is appropriate to both parents, but only in so far as it is consistent with the interests of the child.
The object of this legislation must be to abolish the legal disabilities and discriminations against the child who is the innocent victim of the parents' decision to have a child or their carelessness in having a child, depending on the circumstances of the birth. The object of our attention must always be the best interests of the child. It does not concern me if the rights of either or both of the parents are less than perfect if that is necessary in the interests of the child. If one views the controversy which has arisen concerning the question of guardianship on that basis one will see that the automatic extension of guardianship to the father may not be in the interests of the child. Unless I were satisfied that it was in the interests of the child I would not support it. The present proposal is correct for that reason.
The present position with regard to guardianship is that the guardianship of a child born outside wedlock rests exclusively with the mother and the proposal in this legislation is that the position of the mother as guardian of the child should be retained but that a new provision should be inserted whereby the father of the child could, on application, become its joint guardian. That situation would come about if there was the consent of the mother or, in the alternative, if the father was registered under the appropriate provisions as the parent of the child. The alternative which is being promoted by those people who say that this Bill does not abolish illegitimacy is that there should be automatic guardianship in such cases for both father and mother. This may work well where there is a stable relationship and we know there are quite a number of stable relationships around. But the majority of children born outside wedlock are born in a situation where the very last thing the father wants to do is to recognise his fatherhood.
If we were to give automatic joint guardianship as a matter of law, we would in effect, be saying that the father would be guardian of the child even where the father was denying his parenthood. It is a most extraordinary proposition that we should grant to the fathers of children who have denied that they are fathers an automatic right to be their guardian. Is that in the interests of the child? It is in the interests of the child that he or she should have, if possible, two guardians. I do not think it is in the interests of the child that it should be left in a legal limbo with its mother having one set of rights as guardian and some protesting father, known or unknown, in some mysterious way having guardianship of a child, the existence of and the connection with which he denies. That is a misplaced attempt to re-write the realities of the situation.
The proposal outlined in the Bill, provides that a father can for the first time become a joint guardian of such a child in the special circumstances where the mother consents or, alternatively where for one reason or another, either as a result of agreement between the parents or as a result of a decision of the court, the father is registered as the father of the child. It should be pointed out that even in circumstances where the mother denies the parenthood of a father, action can now be taken by him to show that he is the father. Therefore, as a result of that action he will be in a position to be appointed guardian of the child and to exercise the responsibilities that rest with such a person. For that reason the first of the matters I wanted to deal with, the question of guardianship, is well dealt with in the Bill. The alternative proposals which have been put forward by some people, including the members of Young Fine Gael who have been in the forefront of the fight to abolish the stigma which attach to the status of illegitimacy, and their insistence on an amendment to the law, are misplaced. However, it is right that I should put on record, for the benefit of this House, that the members of this organisation have played a significant part in changing and bringing public opinion to a stage where the central theme of this legislation is no longer a matter of controversy. It is merely the details that are at present under discussion in this House and in the country at large and will be discussed in the other House in due course. That is not to underplay the significant part played by other organisations, including other political organisations, in this process, but I am conscious of the significant part played by the members of Young Fine Gael, and it is right that their input in this area be acknowledged.
The area which it is anticipated by those who are in the know that will present the greatest difficulty in this Bill is the area of property rights. It appears that ultimately everything in Ireland goes back to property rights. We are always worried or appear to be worried about the impact of our social legislation on property rights. Leaving aside for the moment the actual details contained in the Bill, we should try to establish what principle we consider appropriate in these matters. If we consider as an appropriate principle — and I do — that there should be some opportunity for parents to pass on some of their savings by way of property to their children, do we accept the proposition that the responsibility which exists towards children in that context extends to whether a child is a child of a marriage union or not? Leaving aside the details contained in Part V of the Bill, this really is the central question to be addressed. For the life of me I cannot see how I, if I was a father of a non-marital child, could distinguish between my responsibility in respect of that child and its future and my responsibility in respect of the children who were the product of my marriage. To suggest that in some way the father of a non-marital child has less of a responsibility or should have less concern for the rights, the property rights or any other rights or the wellbeing of his non-marital children as compared with his marital children is not only to discriminate against non-marital children but it is to fly in the face of the equality of treatment under the law to which all citizens are entitled. If we establish as a general principle that our law should be framed in such a way as to ensure that non-marital children are treated in the same way as marital children, then it is only a matter of parliamentary draftsmanship beyond that as to how we achieve that object.
A source of considerable regret to me is that the current interpretation of section 117 of the Succession Act appears to be that the definition of a child contained therein does not include what has up to now been an illegitimate child. I have not got that Act here with me, but under that section it is right of any child who has not been properly provided for in the will of his or her parent to make an application to the court, and the court, using the criteria of what a just and prudent parent would do — some expression like that — will decide what the just and proper provision should have been. It has always been my view that the better interpretation of the section would have been that it applies to all children, but I recognise that a clarification and a restatement of the law is necessary in this regard particularly in view of a judgment in 1985 which is reported in theIrish Law Monthly Reports and which is referred to in the excellent explanatory memorandum which went with this Bill. The case which requires this House to address this problem is “In the goods of William Walker, Deceased; Florence O'Brien versus M.S. and the Attorney General” which is reported in the Irish Law Reports Monthly, 1985, page 86. That and other cases taken together seem to indicate clearly that this change in the law and clarification of the law in this area are necessary.
Before getting too excited about what the property rights of non-marital children are it is well that we would establish what are the rights of children at all. Indeed, the rights of children on succession are minimal. Basically if a person is so careless as not to make a will, then ultimately that person's property will pass to his or her children. A proportion of it may go in the intervening period to the spouse, but if the spouse adopted the same attitude, then ultimately all property in the case of a person who does not make a will will pass to the children. There is no big deal in that because anybody with significant property to transfer these days will make a will, but while the spouse has, under the Succession Act quite legitimately so, a right to a portion of the estate — probably a right to too small a portion of the estate — and can insist on that right, the children have no such right. If I rear my children, educate them and set them up reasonably well in life and was fortunate enough — which I am not — to have a substantial amount of money to leave, there is absolutely no obligation on me to leave it to my children, and there is no doubt that in those circumstances any application by my children under section 117 of the Succession Act, 1965 would not succeed. If I looked after my children, educated them and gave them a good start in life there is no doubt that the court would say that I had fulfilled my duty as a prudent and just parent. In point of fact the succession rights of a child when a person decides to leave the property to somebody else are minimal indeed. Therefore, when we say that we are going to include in this equation non-marital children we are saying effectively that we are going to treat them the same way, but as the treatment is very scant anyway all we are offering them is a percentage of very little indeed.
Scare stories are the stuff of which objections to social legislation are made. Stories of farms of land being snatched from parents by illegitimate children popping up all over the place and putting in late claims for the estate have nothing to do with reality. Any sensible person will, of course, have made a will. Even where a sensible person has not made a will it will be an issue only where the status of the non-marital child is such that the proven parent would have been under an obligation to make provision for that child. The number of occasions in rural Ireland where the Succession Act has meant that the garda or the parish priest or the civil servant living in Dublin has mysteriously and in the dead of night got a share of a farm over the head of the fellow who has stayed at home for 25 years are few. It just does not happen in practice.
It happens sometimes because that is the way the family want it, but if the father or mother, whoever the surviving spouse is, determines to leave the family home and the family farm to the person who remained at home, it works out like that. That is what happens. It would happen exactly the same way whether the person is a garda, a civil servant living in Dublin, or in the category previously known as legitimate or illegitimate. It will not make any difference. Therefore to scare people into thinking that their present freedom to dispose of their estate is in some way being diminished by this legislation is to put an interpretation on it which, in my opinion, is not correct.
I am grateful to Senator Durcan for drawing my attention to one point during the course of a very pleasant meal we had yesterday evening and it is well that it be put on the record of the House so that the position could be emphasised to the Minister, who could consider it before Committee Stage. Section 32 (2) of the Bill says:
Where, on the application by the spouse or any child of an intestate in a case to which this section applies, the court is of opinion that the spouse or any such child, as the case may be, has made a contribution of a substantial nature to the accumulation of the intestate's estate and that injustice would be caused by the application of the rules for distribution on intestacy contained in the Act ... the court shall...
make such provision as it thinks is just in the circumstances. That means that where a person has not made a will, and where because of the rules on intestacy — leaving aside the interests of the other spouse for the moment — the property will be divided equally between the remaining children, an application could be made for example, by the fellow who stayed at home that he had built up the farm and was entitled to a greater share. That is a very good, wise, sensible and fair decision and is a protection against those people who are worried that the person who stays at home is going to be cheated out of his fair share by people who have left the family home at an earlier stage, whether they joined the Garda, became civil servants or parish priests or if they were marital or non-marital children.
It is significant that the application can be made by children who are marital children or non-marital children, but — and here is the crunch — it appears only to apply where there is at least one non-marital child in the family. In other words, we now have the extraordinary situation of two farmers living next door to each other, one with four children — all products of a marriage — three of whom went to Dublin and one of whom stayed at home, but he dies without making a will. No application can be made to the court to vary the rules of intestacy in that case which, means a quarter share each and this may be quite unfair to the person who stays at home.
The next door neighbour also has four children, three the product of a marriage and one a non-marital child: one stayed at home and the other three went away. Because there is at least one non-marital child, the child who stayed at home can make an application to the court and say that as he stayed at home, he is entitled to more than a quarter share. In other words, this application — which I think is good law — can only be made in circumstances where there is at least one non-marital child. Why can it not be made in the ordinary case as well? I realise that we are talking about the status of children, but this is of crucial importance to the status of children, whether they be marital children or non-marital children. What we are effectively saying is that in some way, to use the old fashioned expression, the legitimate children are in a less favourable position where there were no illegitimate children. That appears to make no sense.
This is an excellent idea which gives the court discretion but the principle of giving the court discretion should be extended to families where there are no non-marital children. I am particularly grateful to Senator Durcan for drawing attention to that point. I have no doubt the Minister will deal with it during her Second Stage speech but if she does not, she can rest assured that we will deal with it on Committee Stage. We will examine this Bill to ensure that it is drafted properly and that it achieves the worthwhile objectives to which we all subscribe.
There is one other matter to which I would like to refer, that is, blood testing. Is the Minister satisfied that the definition of a blood test is sufficiently wide to take into account advances in technology? I am not an expert in this area, but during the Kerry Babies Inquiry reference was made to a more sophisticated way of testing for the parenthood of the child. If the Minister and her officials look at the evidence of some expert — I think it was somebody from the North of Ireland — in that regard, they will see that the ordinary blood grouping was confirmed to a greater degree by this new and more sophisticated test. The view was that it gave an absolutely certain, beyond all reasonable doubt result. This would be of considerable benefit in cases where there is a dispute. Is the Minister happy that blood tests, as defined in section 41, cover that? I see she is nodding but I am sure she will expand on that in her reply and we will also discuss it on Committee Stage.
The other matter to which reference should be made, and will be made, during our discussion of the Bill is the question of maintenance. The changes in the rules there, in particular the less severe standard of proof required — that is, introducing the concept of the balance of probabilities rather than beyond reasonable doubt, as is introduced by section 14 — represents an acknowledegment that justice requires that if there is an error, it would be on the basis of the child being maintained rather than not being maintained.
Having generally welcomed the details of the Bill, and recognising that there are 54 sections which will have to be examined at considerable length, I should like to conclude by saying that the whole thrust of the legislation is very welcome. What is most welcome and reasonable is that it seeks to get rid of the legal disabilities and discriminations against the child. If anybody in this House, wishes to put down an amendment which improves that, and if they can show that there are legal disabilities and discriminations mainly against the child which can be corrected, they will have my support, but if they are seeking to improve the position of one or both of the parents, and at the same time create a degree of uncertainty with regard to the child and its legal position, then these people will not have my support because in this matter the interests of the children who in most cases are the victims of irresponsibility are paramount. Any amendment to this legislation will only have my support if it reinforces the position of the child or reinforces the position of either of the parents without reducing in any way the protection and enhanced legal status being afforded to children.
Against that background, the Minister is to be commended for introducing this most significant legislation in this House. By the tone of the debate which has been set by Members on all sides, representing all political and sectional interests, the Minister will be convinced that as a result of our deliberations a Bill will be sent to the other House which will, by that stage of the debate, command widespread support. I hope it will be speedily enacted by the other House so that this unnecessary restriction on the rights and privileges of an important section of our citizens will be once and for all removed from the Statute Book.