Seanad Éireann debate -
Thursday, 9 Oct 1986

Vol. 114 No. 4

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

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

Mr. O'Leary

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 the Irish 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.

Mr. Fitzsimons

I am glad to get an opportunity to make a brief contribution on the Second Stage of this important Bill. I welcome the fact that so many Bills are now being introduced in this House. Yesterday we had the Control of Clinical Trials Bill and now we have the Status of Children Bill. We should acknowledge the tribute we owe to the Leader of the House in this regard.

Whereas at first sight this appears to be a simple, straightforward Bill in fact it refers to about two dozen previous Acts, some of them going back to the time of Queen Victoria. For a non-legal person it is not easy to follow the Bill without considerable research. There are many grey areas so far as I am concerned — but by the time the Bill goes through the House I am sure matters will be clarified.

The first sentence of the explanatory memorandum states:

The purpose of this Bill is to remove as far as possible provisions in existing law which discriminate against children born outside marriage.

Like all the other Members of the House I welcome the Bill. The Minister's introductory speech was complete and very helpful. He covered all the areas thoroughly and simplified some of the more complex matters. The Minister hoped that the debate would be imbued with the same spirit of social concern that motivated the Government in promoting it. The Minister should feel confident that this will be so.

It was also pointed out in the Minister's speech that in enacting this Bill the Government were simply following an international trend dating back about 20 years. In 1975 the position in Europe had developed to the point that several member states had adopted the convention on legal status for children born out of wedlock. The purpose of this convention was to bring about a situation throughout the continent of Europe where the legal position of children born outside marriage would in all essentials be similar to that of children born within marriage. When this Bill becomes law the Government intend to ratify the convention.

There were other obligations in this area. The Minister referred to a particular judgment in 1979 when the court expressly recognised that while support and encouragement for 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. The Minister also stated in his speech that until recent times the child born outside marriage was ignored by statute and I would also say was ignored by society. In many different areas, in religious orders and in the professions, the child born outside marriage was victimised in various ways. A report on illegitimacy by the Law Reform Commission was published in 1982, a very thorough and complex document. The heart of that recommendation was that the concept of illegitimacy be done away with and the remaining recommendations then followed from that.

One point the Minister made which I think was important concerned situations where you could have a child brought up in a loving relationship outside marriage. The Minister told us that this Bill caters for such cases by enabling the father of a child born outside marriage to share the responsibilities and rights of guardianship with the child's mother where that would be in the interest of the child.

With regard to the illegitimate child, I think we had, in effect, apartheid in this country. There was a stigma attached to the unmarried mother. As I said before in this House, I felt that that was society's way of stating that the proper way to bring up a child was in the loving care and relationship of a father and mother and I have no doubt that that is still the best way to bring up a child. For that reason, society frowned on the situations where it was other than this.

While there may be many cases where a child would be better off without the father, I feel that the concept of the family is the proper one, where the child is brought up with care and concern. Society did not appreciate the difficult role a woman was destined to play but I believe that stigma is by and large gone. I said that before in this House and there were others who felt otherwise. It is not only now that I have been interested in this problem of the unmarried mother.

In 1971 I published a poem entitled "Towards the Emancipation of Woman" which at the time was referred to by one paper as an epic poem. I will not dwell on that but I simply want to emphasise that I had a deep concern for the problems at that time and the attitudes of society and with the permission of the Leas-Chathaoirleach I should like to recite the last three verses of that poem to emphasise the point I want to make. They are as follows:

When Markey's cow went to the bull

Janey checked the date,

She added nine months to the time

And marked it on a slate.

For weddings, too, the neighbours knew

Janey checked the date,

She added nine months to the time

And marked it on a slate.

She was the first to know the worst,

Her work was blessed until—

To be quite frank the slate is blank

Since woman got the pill.

I was not making a judgement on the pill as such but I was condemning that attitude, that of valley of the squinting windows syndrome, that ingrown situation which, like an ingrowing toe nail only causes festering. I thought at that time that we had reached this stage not simply through some medical research but through an enlightment in society through education, perhaps more contact with the outside world through television, the media and the papers. I thought that we had reached the turning point and I was glad that happened. I believe it is so.

We know that at present unmarried mothers select this role to give them an identity or, perhaps, to give them an income or for some other reason. I suppose there are areas where this has not changed as radically or as fast as we would like but, the atmosphere which will be generated by this legislation will bring about an early demise of whatever residue there is. We are talking here about the status of woman as well. As a member of the Joint Committee on Women's Rights I have expressed my very deep concern about this area.

I should like to make a few remarks on the Bill. I believe that one in 14 births are extramarital and it appears that for various reasons many people do not believe in marriage. About one in four give up babies for adoption which means that the others keep their babies, look after them with love and care and bring them up well. The State should do everything possible to help those people because in the past and, indeed, in my lifetime, many beautiful girls had to flee the country or were taken into care.

The unmarried father now has rights but, as Senator O'Leary and others have pointed out, these are not automatic. Application has to be made to a court to establish guardianship and custody and some mothers might feel that would not be in the interest of the child. This seems unfair to fathers who have been and would be responsible. In passing I should like to pay tribute to the families of unmarried mothers, the parents and other members of the family, who have stood by them and are standing by them more now than in the past.

As I understand the Bill the unmarried father does not have the right to prevent adoption. We have still got segregation if one is to judge by the references to a marital child and a non-marital child. I would prefer to see those terms eliminated. They seem to make this basic distinction again. The Explanatory and Financial Memorandum defines the term "non-marital child" as a person who is not a marital child. It is not synonymous with an illegitimate child but, at the same time, it conjures up the same notion. I hope I am wrong in that.

With regard to property rights, in spite of what Senator O'Leary has said, this is an area which has caused deep concern to many committed people. Part V of the Explanatory and Financial Memorandum dealing with property rights states:

This Part puts marital and non-marital children on the same footing for succession purposes, and includes non-marital children in the meaning of expressions such as "child" or "issue" when used in wills, deeds and other dispositions unless the contrary intention appears. Also in this Part there are provisions designed to avoid injustice in certain cases where a parent of a non-marital child dies intestate, and to exclude an unworthy father from benefiting from the estate of his deceased non-marital child.

Some people have specific concerns. For example children brought up with love, care and devotion by their parents could, perhaps, when they are in their twenties, have to deal with somebody by claiming affiliation under this legislation. There could be a problem there.

I note that the position in Ireland has not always been as it has been in my lifetime. I should like to quote two sentences from Gaelic and Gaelicised Ireland in the Middle Ages by Kenneth Nichols, which deals with affiliation and the naming of children. It states:

It has been mentioned that the Irish law did not distinguish in matters of succession between the legitimate and the illegitimate, all being equally entitled to share in the paternal estate. This applied not only to the children of temporary marriages such as those referred to above and to the offspring of recognised concubines, but also to those born of casual relationships and afterwards affiliated by the sworn declaration of their mothers. This was the well-known custom of the "naming" of children, described by Frynes Moryson.

A ridiculous custom that married women give fathers to their children when they are on the point of death ... commonly they gave them fathers of the O'Neills, O'Donnells or such great men... and these bastard children ever ever after follow these fathers and, thinking themselves to descend from them, will be called swordsmen and, scorning husbandry and manual arts, live only off rapine and spoil.

References to the practice are numerous in contemporary records. The most famous example, of course, is that of Matthew or Feardoragh O'Neill, baron of Dungannon and the father of Hugh, earl of Tyrone, whose mother was the wife of a smith in Dundalk and who, according to the account, admittedly prejudiced, of Shane O'Neill, until he reached the age of 15 or 16 years was taken and named none other than Matthew Kelly and no man knew him to be otherwise than the smith of Dundalk's son, born in wedlock, till a little after that age his mother, for vainglory and for a name for herself, declared him to be O'Neill's son, alleging and boasting how O'Neill lay once with her. And O'Neill (Conn Bacach, first earl of Tyrone) being a man that never refused no child that any woman named to be his, as he had divers besides the said Matthew, accepted and took him to be his son.

Where some claim or other in this regard is made, apart from the tensions it would cause in a happy family and all the problems it would create in that loving relationship, is the Minister quite happy that the Bill if enacted would not lead to some injustice in this area? The Bill is complicated for the layman and I am not too clear in regard to when claims of this kind can be made when the Bill is enacted. I think there is a period of six months before the Bill becomes law and different parts of it may become law at different times. Are we dealing with people who are born after the Bill is law? Does it apply to elderly people? What is the situation with regard to that general area where a claim for inheritance might be made? Can the Minister clear up that point to everybody's satisfaction?

Unfortunately, there are always people who have conservative and reactionary views and we have got representations in this regard from people who are not in favour of this Bill. I welcome the Bill in toto. I look forward to Committee Stage when all the questions that might arise will be teased out and answered by the Minister.

Mr. B. Ryan

I had a notion that this debate would last a lot longer than now seems likely. It is worth making a point that in the past six months there has been intensive media speculation that this Bill would be almost as controversial as the contraceptive legislation and the divorce referendum. They were all categorised in this utterly misleading title on social legislation and we were led to believe that there was this groundswell of opinion within the Oireachtas against reforming legislation of a social nature and this was categorised with it. I am sure the Minister of State is probably even more aware than I am of the speculation that this would be explosively controversial and that we would have the farming community down on our heads.

What I have heard both here and on the monitor has not been about the possible threats to the existing order of this Bill but to the perceived inadequacies that many Members on all sides of this House have seen in the Bill. The general discussion here has not been about whether this Bill goes too far but, in relation to different views, whether it goes far enough. The general consensus in that issue is perhaps to encourage the Minister to think about amendments which would clarify issues. Perhaps she has a feeling that she has got far enough and is not inclined to pursue the matter further. It is clear that, with the exception perhaps of one troglodytic member of the Oireachtas, there is an overwhelming consensus that this legislation is worthwhile and necessary.

We should no longer allow perhaps only one Member of the Oireachtas to hypnotise us into believing that there is not a groundswell of public opinion to support this legislation. There is no evidence of any large representative public lobby on this issue; it has been clearly seen to be in tune with public thinking and it also incidentally confirms something that I have long held, that it is impossible to divide Irish public opinion along some sort of line which says liberal and conservative and to put divorce, contraception, the Status of Children Bill and a whole lot of other things on one side. In other words, with all the good guys on one side and all the bad guys on the other side. Senator Hanafin is a case in point. He took a very definite view for instance on the divorce referendum. Senator Hanafin yesterday made a point with considerable passion on this issue which is totally at variance with the perceived view of how people like Senator Hanafin feel about issues like this. It is very important that this should be said.

We are not a society which decides on all issues on the basis of some sort of gut response. People decide on the issues with far more maturity. I say this as one of the almost invariable losers in many of the debates about many worthy issues. It does not in the least persuade me that Irish society is either uncaring, uncompassionate, or uninterested. Irish society makes its decisions on the merits of each case and I regret many of the decisions it makes. I regret particularly the decisions it makes about the vast majority of the people who are elected to Dáil Éireann but I cannot do anything about that, I have to live with it.

Irish society is caring and compassionate. I of all people in this House have ample evidence of the extent of that compassion. The response to this Bill, as distinct from the imaginations of the media about hostility to it, has demonstrated the degree of compassion, caring and commonsense in our society. There is no heavy lobby against the Bill. The lobbies on the other side do not bother me any more because they know they are wasting their time, paper and energies. I gather from the general response that there is no heavy lobby on the other side. The real lobby is about improving this Bill. We can do a useful job in this House given that we will not have any high pitch of emotion about the principle. We can do a useful job, going through it and trying to amend it.

I went on at length last week about people apologising for not being experts. I am now probably going to contradict myself because having read the Bill I realise why the Minister took so long to produce it. It does run through a whole mass of property legislation in particular, not because property is sacred but because there is an enormous amount of legislation involved which must be right. The amount of consultation within and between Government Departments must have taken a long time. I am, therefore, very pleased that the Bill has been published. The Minister probably anticipated most of my remarks on the issue but it is probably as well to reiterate them. It needs to be said that the discrimination against those whom up to now we referred to as illegitimate children was not something that characterised the State alone.

It is not that long ago since an illegitimate child could not be ordained to the priesthood by virtue of being illegitimate. Sometimes my Church gets away with something close to murder by being able to proclaim itself as the model of all virtues when its own history is very much a reflection of the history of the human race generally, warts and all. It also says something about our whole instinctive view of this that needs to be worked at and dealt with and of which changing the law is an important part. The term "bastard" is a pejorative term used as abuse. If we believed that children born outside marriage were entirely the same, that term would never have developed the pejorative connotation it now has. It is to be welcomed that we are moving away from that, and that we have recognised what is, when you sit back and look at it, a self evident fact. Whatever guilt is attributed to children being born outside wedlock, if there is any, the child is an entirely innocent party. Any society which claims to be concerned about children, whether they be born or unborn, gets itself into a knot. Politicians for that matter who claim to be concerned about children, born and unborn, and still justify discrimination against one category of children are at least in difficulty with their logic if not, perhaps, with their consciences.

The putting aside of non-marital children is fairly recent. In the pre-Tridentine days, kings and princes, and indeed, popes looked after their non-marital children extremely well. Half the royal houses and half the aristocracy of Europe can trace their origins back to non-marital children of eminent personages of Church and state. Excluding non-marital children, pretending they do not exist, and keeping them out of sight is probably relatively recent. It did not seem to be such a matter of shame in the more distant past.

As far as the Bill goes, the point has been made that similar reforming legislation in New Zealand includes a reference to the abolition of the status of illegitimacy in the title. In terms of the rhetorical intent of this Bill which is to bring about a change in public perception and public attitudes, it is an aspect that if possible should be looked at. I would counsel the Minister of State not to be overpowered by the advice of the parliamentary draftsman, because we have had occasion in this House in the last six months to come across phrases and, indeed, paragraphs in legislation that did no credit to the general profession of the parliamentary draftsman. They were far more ambiguous than any layman could ever dream up and still stand as monuments to confusion. I do not want to get involved in criticising individuals who are not present but the parliamentary draftsman seems to be a particular authority that Ministers use to justify the strangest things, whether they be insertions or omissions in legislation. I would counsel the Minister of State that if it is simply the parliamentary draftsman saying it is not necessary, which seems to be a particular counsel, it might be worth doing because it signals the intent of the legislation.

I know it is difficult, but even a statement of intent on the question of changing terminology would help. It is an affront, and I am sure it is an affront to the Minister of State to have to bring in a definition of marital and non-marital where this phrase is used continuously in each subsection "legitimated or legitimate". It still gives one the impression that we are changing names but what they really are are legitimate children and this other category.

We are trying to get away from that and, therefore, it should be possible at least to hope that all future legislation should contain the phrase marital and non-marital. This is where the technical skills of drafting and lawyers pass me out completely. Perhaps all references in past legislation to "legitimate" and "illegitimate" should be taken to mean and interpreted to mean marital and non-marital and should be read as such. It would at least abolish retrospectively the concept of illegitimacy. I do not think it would make any legal difference.

We are involved in an exercise not just to change the law but we are attempting to reflect a new perception of society about the status of children born outside marriage. When you are trying to do that your rhetoric can nearly be as important as your law. Therefore, to the extent that it is consistent with good drafting and good legislation, it is worthwhile to enshrine that kind of rhetoric, even if it is only rhetoric, in the legislation. It makes clear both here and to the Judiciary, who will have the job of interpreting this, what is in the mind of the Oireachtas. I am not good enough, I am not briefed enough and I am not informed enough to be able to say that there are possible ambiguities of interpretation in this legislation. I know where there is one and I will come to that in a moment. The Minister of State knows where it is too, so she will not be surprised when I come to it.

On the question of the definition what is there I gather is comprehensive. It is simply a question of extending what is contained in the definitions to clarify our general intent to get rid of what we regard as a dreadfully unfair use of terminology.

On the issue of guardianship, and in particular the thorny one of automatic guardianship of fathers and the different views on this, having witnessed on at least one occasion a perfectly concerned father being excluded to a large extent from access to a child because the mother felt that way about it, and because the man in question did not feel like making a big issue out of it through any sort of legal activities. I was inclined to be of the opinion that automatic guardianship was a good idea. I have had to come to the conclusion that, on the evidence of the fact that in the vast majority of registered non-marital births the father does not seem to show sufficient interest to be even recorded on the birth certificate, it is very hard to go around giving absolute rights. The history of the experience of women who have children outside marriage is that the fathers do not show sufficient interest or sufficient concern to be recorded on the birth certificate and therefore be given automatic rights to guardianship.

It is only when you think about it that you realise just how significant this word "guardianship" is. Indeed, it is the extent of the rights that a guardian has that raises a problem later on about void marriages and the children of annulled marriages. Guardianship involves people's decisions about schooling, passports, domicile and a whole range of issues. It is not just something nice for the child. People say a child is entitled to a father. A child can have a father whether the father is the guardian or not. I have personal acquaintance of one of these peculiar situations — I am not involved I hasten to add — where the father is not in any way the guardian of the child but he acknowledges his paternity and the child knows who the father is. There are complicated reasons why he could not be the guardian or would not be the guardian but the child has no doubts about who his father is. The father is not the guardian of the child. This is for reasons to do with the situation people are in. I do not think that, in order for a child to have a father, the father necessarily has to be the guardian.

The Bill makes reference to simplified procedures to enable a father to have guardianship. It is a pity those simplified procedures are not spelt out, particularly in the area where this is being done by agreement, where both parents have agreed that the father should be a guardian as well. There is a preference for doing some of these things by regulations or by administrative procedures, but I would like to suggest to the Minister of State given that we have a considerable consensus on this issue, it would be well worth talking about, particularly the area where guardianship is agreed. As I said, that has been a rowing back on my part from the position I would have chosen.

I am very pleased by the progress on the question of paternity. I was somewhat astonished to discover — it would be far too arrogant to say informed — that the best a woman can hope for at present is to have someone identified as the putative father. There cannot be a final decision that a certain man is the father of a non-marital child. The mind boggles at what the astonishing requirement of corroborative evidence implies. There could be a whole profession of "private eyes" involved in assembling corroborative evidence to prove that a man is the father of a child. In this area of corroborative evidence in respect to rape and to all sorts of areas, there is an extraordinary degree of men protecting themselves, with a woman's whole sexual history being given in court in rape cases.

In the past, you could not prove that a man was a father unless somebody else corroborated the evidence. The evidence the mother and the father would give would not be sufficient to sway a court. The woman had to produce extra evidence over and above her own, to prove the man was the father. I am very glad that blood tests are going to be allowed for this purpose. I understand that these tests cannot be conclusive in proving that a person was the father. They can, of course, be conclusive in proving that a person is not the father. It is, at least, additional evidence. I am relieved that this concept that a person, at best, would be the putative father has been removed.

In what is otherwise worthwhile and positive legislation, the matter of the children of void or of annulled marriages does tend to hit you between the eyes. We are talking about the children of void marriages being treated as if the parents were married. I stand to be corrected, but as this legislation stands both of the partners in a void marriage have guardianship rights over the child. Given what I have just said about guardianship and about the need for people who have the right of guardianship to be prepared to take that right seriously and not to act malevolently or obstructively or go missing and present all sorts of legal problems, it appears to be a little too trite and, to a certain extent, a concession to those who will not recognise the realities of marital breakdown in our society to simply redefine children of annulled marriages as being marital, because it does give, by definition, guardianship rights to both parents even though in many suits for nullity here it is one parent who is endeavouring to demonstrate fundamental defects in the contract of marriage which were based on an inadequacy in the other partner. In that case you are going to have parents demonstrating that they were never married because the other person had some flaw in his or her personality, or one of the other bases for nullity and then having to accept that even though they were never married the other partner still has guardianship rights over the child. That is the argument that was put to me and I look forward to the Minister's explanation on it.

On the whole area of property rights which was supposed to be emotive, one argument is that because it should only apply to wills that are entered into after the Bill comes into force it does not have any immediate effect. Perhaps in some way that is welcome. I missed the Minister's introductory speech and I am still not entirely clear why there could not be some retrospective effect in this. In other areas we have no problem with retrospective legislation. We have even done that in the area of taxation on occasions. The problem with retrospective effect is that there is always a date you have to pick. The provision is most helpful.

I want to reiterate what Senator O'Leary and a number of people said, that is, that the exclusion of injustice clause in this Bill seems to actually do the opposite of what the Bill sets out to do. It seems to discriminate between non-marital and marital children. You could argue that it discriminates in favour of non-marital children, although it is hard to know which way it discriminates. If one says that a non-marital child benefiting from an estate would render an injustice to the person who had legitimately claimed to contribute to the family business or the family farm, which is the objective of this clause, I do not see why a similar provision should not apply to marital children in a similar position who may have left home at 14 years and were not seen since but were still given a share of the family farm by the father when the will was made. The person who contributed most has no claim in that case, which is an injustice. It is only in the case of a non-marital child that the injustice can be claimed. That is regrettable and if the intent is not that that should be the case, then it should be written into the legislation and if the intent is that, I should like to know why. Perhaps there are constitutional problems.

Beyond that, the Bill is one of these significant reforms that may not be trumpeted by the media from the house-tops. I think that the media have lost interest in this legislation now that they find it uncontentious. I regret that. It is important reforming legislation. I welcome the fact that it was introduced in this House. In two successive days two important pieces of legislation have been debated and concluded in this House and yesterday the Minister for Health accepted that there would be a considerable number of amendments emanating from this office on the basis of the debate here. I am equally confident that the Minister of State will give us a similar indication that amendments will be considered both from the Department and from Members of this House. This demonstrates that there are two Houses of the Oireachtas and that this House — and I stand over this in many ways — debates issues with considerably greater conviction, with considerably less party-political intent and with, in many cases, a greater concern for the issues for the people involved and for the policy-making nature of legislation and the implications of legislation. As with yesterday's Bill on clinical trials, I look forward with great interest and enthusiasm to Committee Stage of this Bill and congratulate the Minister and the Government for introducing it.

Minister of State at the Department of Justice (Mrs. Fennell)

It gives me great pleasure to reply to this Second Stage debate. It was my express wish during the preparation of this legislation that it would be introduced in this House. The debate we have just had has justified my feelings and my views in that regard. I intend to respond to the main points made by Senators in the course of their contributions. A few questions of detail were raised which will, no doubt, come up again on Committee Stage and can be gone into then.

Senator Lanigan, on behalf of the main opposition group, was very generous in his expressions of welcome for the Bill. However, he made a political point in complaining at the apparent haste with which the debate was opened on the day the House adjourned for the summer recess. The reality of the situation was that I was very anxious to have this Bill considered at the earliest possible opportunity, but the House was so taken up with other urgent business in the period following the presentation of the Bill on 9 May that it was not possible to find time for this debate until the last day of the session. The arrangement on that occasion whereby I was able to explain the background to the Bill and summarise its provisions and a representative of each group in the House was afforded the opportunity of indicating, at least in broad outline, his or her attitude to it, gave Senators some very useful material to reflect on during the recess. The fact that, in spite of the pressure of business, we managed to have the Bill taken on that day was an indication of the Government's commitment to pressing ahead with this Bill and the other measures of social reform on their programme, with the aim of having them enacted into law as soon as possible. Some Senators criticised the fact that the Bill does not remove the concept of illegitimacy entirely from the law. As Senators will be aware, the Law Reform Commission's first recommendation was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those born within marriage. This Bill implements the second part of that recommendation: it equalises the rights of persons born outside marriage with those born within marriage.

The effect of abolishing the concept of illegitimacy would be that the father of a child born outside marriage would in every case automatically be joint guardian of the child, irrespective of the nature of his relationship with the mother. This would entitle the father, among other things, to have an equal say with the mother in the child's upbringing, and even to remove the child from the mother's custody if he so wished. While there are, no doubt, many cases where the father of a child born outside marriage is willing and well qualified to act jointly with the mother as guardian of the child, there are many other circumstances where an automatic right of guardianship for the father could operate against the best interests of the child. Indeed, a survey carried out by the Federation of Services for Unmarried Parents and their Children pointed forcefully against the granting of such an automatic right of guardianship. The federation, which is an umbrella body including in its membership most, if not all, of the organisations dealing on a day to day basis with the problems faced by unmarried parents and their children, had sought the views of its members on each of the Law Reform Commission's recommendations. The solution to this dilemma which the Government have decided upon is that, while the fathers of children born outside marriage will not automatically have guardianship rights, the Bill will provide a means whereby they can acquire such rights. Where there is agreement between both parents and the father's name has been entered on the child's birth certificate a special informal procedure will be provided for in court rules. However, in all cases, the matter will come before a court to ensure that the interests of the child are safeguarded.

I can assure Senator Hanafin that his view is correct: the approach of the Bill is designed to safeguard the paramountcy of the interests of the child in each case.

The differences that will remain in the legal treatment of children born outside marriage after the implementation of the proposals in this Bill are differences which necessarily arise out of the fact that such a child's parents have not married each other, and therefore owe to each other none of the mutual duties of fidelity and trust which apply between a married couple. As has been said before, it will not be possible to point to any area of the law which discriminates against persons on the basis of the fact that their parents have not married each other.

Some Senators, in particular Senators Hanafin and Durcan, objected to the use of the term "non-marital child" and expressed the fear that this term would simply replace the word "illegitimate" and attract the pejorative connotations of that word. It was to ensure against just such undesirable connotations arising that it was decided to replace the present term illegitimate by what was considered to be an entirely neutral term which would reflect the fact that the child's parents were not married to each other.

The practicalities of the situation require the use of some term in order to reflect the difference in treatment of children under the Bill depending on the marital status of their parents. This arises, particularly, in the areas of guardianship and maintenance. The Law Reform Commission acknowledged the problem in relation to maintenance when they pointed out, at paragraph 77 of their report, that having regard to the basic approach of the 1976 maintenance legislation in imposing on both spouses an obligation to maintain each other as well as their children, very great conceptual and practical difficulties arise in attempting to apply the policies of that legislation to children born outside marriage.

Senator Robinson raised the question of the amendment of revenue law to abolish discriminations in that code affecting children born outside marriage. The amendment of revenue law is a matter for the Minister for Finance. It has been arranged that the necessary changes in that area of the law required in consequence of the enactment of the present Bill will be brought before the Oireachtas by the Minister for Finance at the earliest opportunity.

Senator Robinson complained that a child born outside marriage will not enjoy recognition of a family status as with a child within a marriage. The Constitution affords not only legal recognition to, but also guarantees to protect, the family based on marriage. If a couple wish to establish a family relationship recognised by the law, they will marry. If they wish to live together in a family-like situation without having that situation legally recognised, they are free to do so. If they wish to live together even though one or other is already part of another family recognised by law (that is, married to another person), then the new relationship will not be recognised by law; and as several Senators have reminded us, it was recently decided in the referendum on divorce that that should continue to be the case.

A number of Senators criticised section 6 of the Bill, which would have the effect of deeming to be legitimate certain children of void and voidable marriages. Senator Robinson, in particular, argued very forcefully and eloquently in favour of deleting this section. Other Senators, on the other hand welcomed this provision.

The Government considered the arguments for and against this section and came down in favour of its retention. However, in deference to the strong views expressed against it, I propose to look at it again before Committee Stage.

Senator Robinson raised the question of lump sum payments in maintenance applications. This is not a Bill to amend the maintenance code as such; the amendments made here are purely to put the maintenance provisions for children within and outside marriage on a par with each other. Thus, the general question of amending the maintenance code to permit lump sum orders to be made for specific purposes, over and above the regular periodical payments, was not considered appropriate to this Bill. The only issue relevant to this Bill is whether there should be a means whereby a parent could be permitted to buy off his or her continuing liability to maintain a child by making a once-off payment which would act as a bar to all further claims. This facility is at present available to the putative father of an illegitimate child.

I find it extremely difficult to accept the notion that the parent of a child born within marriage should be able to protect himself or herself against all subsequent legal proceedings for maintenance of the child by the payment of a lump sum for the lifetime of that child. It seems to me to be a denial of what society, and the Constitution, perceive to be the role of the parents within the family. By extension, I can see no justification for allowing the father of a child born outside marriage to be "let off the hook", as it were, in this fashion. I have no difficulty with the principle of lump sum payments as such — though the practicalities may be difficult and have not been considered in the context of this Bill. My difficulty lies in the aspect of the present system, under the 1930 Act, which makes the payment of a lump sum a complete bar to further claims.

I come now to a point made on the "Property Rights" part of the Bill. Incidentally, this part is called "Property Rights" because it deals with such rights not only on succession but also arising out of deeds between living people.

Senator Robinson referred to the provision, in section 26 of the Bill, to the effect that, unless the contrary intention appears, words in wills and deeds denoting any family relationship will be construed as including people born outside marriage or related through a non-marital link. In particular, she asked why this new rule of construction should not apply in future to all wills, no matter when drawn up.

I am quite convinced that it would be wrong in principle for the law to change the effect of a will, drawn up in the context of a particular legal background, which must be presumed to reflect the wishes of the testator at the time. To impose by legislation at a subsequent date a change in the meaning of words or expressions used originally with a particular meaning would be objectionable, and quite possibly unconstitutional. Not everyone would have an opportunity of making the necessary changes to the will in order to restore its original intent; cases come to mind where mental incapacity might arise after the making of a will or a testator with property here would be unaware, through absence from the country or whatever, of the changes made in the law. These objections apply equally to the suggestion that the new rule of construction could apply to all wills whenever made, after a time lag of two or three years.

To suggest that the approach adopted in drafting this provision would perpetuate discrimination in the making of wills takes no account of the fact that testators have always been, and will continue to be, free to dispose of their property as they wish. The Succession Act, 1965, guards against abuse of this freedom of testation by giving a surviving spouse the option of claiming a substantial share of the estate as a legal right and by giving surviving children the right to claim just provision out of the testator's estate. Under the Bill, this right will extend to non-marital children of a testator who dies after the new law comes into effect, no matter when the will was made.

Senator Higgins expressed concern at the emphasis in Irish society on material values at the expense of personal rights, as exemplified by traditional attitudes towards children born outside marriage. However, one cannot legislate to change people's attitudes. What legislation can do, and what this Bill will do, is to create a climate and a legal framework where discrimination against children born outside marriage will no longer be acceptable. The Bill, of necessity, deals with property matters. But I am satisfied, and the Government are satisfied, that the Bill strikes the correct balance between these matters and less tangible issues such as guardianship.

In passing, I might remind Senator Higgins that the major piece of legislation in favour of which Senator Robinson's Private Member's Bill of 1974 was withdrawn was subsequently enacted as the Family Law (Maintenance of Spouses and Children) Act, 1976, an Act that made substantial changes in the law relating to the maintenance of children born outside marriage. The Bill now before the House arises directly from the report of the Law Reform Commission published in 1982.

Senator Hanafin was concerned that the question of parentage might be raised after the death of the alleged parent. He felt that this might be unfair to that person's surviving spouse or other relations. I would like to point out, first of all, that the onus is on the person alleging parentage to prove his or her case, and not on anyone else to refute it. If the alleged parent is dead, then this makes it much more difficult for the person alleging parentage to prove his or her case, since one of the best witnesses is unavailable either for cross-examination or for blood tests. It does not make it impossible, however, and there may be circumstances where it would be unjust to refuse to make a finding of parentage solely because the alleged parent is dead, even if there is otherwise sufficient evidence available to enable a court to decide the issue.

Senator Hanafin wondered why the giving of a blood sample in parentage cases should not be made mandatory and suggested as an analogy the Road Traffic Acts provisions in relation to excess alcohol. I am satisfied that the analogy is not a sound one for a number of reasons. First, under the road traffic legislation one has the choice of giving a blood or urine sample. Secondly, there is a major difference in character between criminal proceedings — which are essentially dealing with wrongs against the public at large — and civil proceedings — which are mainly concerned with problems between individuals.

It is justifiable in criminal matters to have a criminal sanction against refusal to supply a sample of blood or urine but for the law to demand, in civil matters, that a person undergo an invasion of his bodily integrity under pain of fine or imprisonment would surely be wrong in principle and quite possibly unconstitutional. I am satisfied that the provision whereby the court can draw inferences from a refusal to give a sample will be ample encouragement to alleged fathers to oblige.

I should like to refer to Senator O'Leary's contribution and to thank him for his supportive remarks. I have taken note of the points he has made in relation to section 32. I would like to assure him that I will give it further thought. The section as it stands is designed to interfere as little as possible with the principle of certainty in intestate succession.

Senator Ryan suggested that procedures governing the grant of guardianship to the father of a non-marital child should be set out in the Bill. In my view it is much better that detailed procedures of this kind should be settled by those familiar with the operation of court procedures. For that reason this matter will be provided for in the rules of court.

Senator O'Leary and another Senator brought up the question of blood testing. Indeed, it is something on which I have had submissions from various groups. There are various blood tests which may be carried out with the object of ascertaining inheritance characteristics. Those currently available include blood grouping tests on the red blood cells such as the classification of the ABO and rhesus positive-negative systems as used by the blood transfusion service and tissue typing on the white blood cells based on immune reaction to foreign cells. Other tests being developed at present, but not in general use as yet, include DNA fingerprinting which compares the genetic material of cells. All of these are encompassed by this term — blood tests.

That concludes my response to Senators' contributions. It remains for me once more to thank those who contributed to the debate and to assure Senators that all the issues raised will be very carefully considered between now and Committee Stage of the Bill. I trust that we will have a similar reasoned debate and discussion on Committee Stage.

Question put and agreed to.

Professor Dooge

I suggest that Committee Stage be ordered for Wednesday, 29 October.

Committee Stage ordered for Wednesday, 29 October 1986.