On section 1, I mentioned in my Second Reading speech the fact that the Bill will come into effect, other than section 2 (1), immediately and that section 2 (1) will come into effect automatically six months after the passing of the Bill or may come into effect earlier if the Minister fixes an earlier date. Is it proposed to bring in that section earlier than the six months when it will automatically come into effect? I welcome the way this is drafted and the fact that the Bill will come into effect as soon as it has been passed by both Houses and that this major part will come into effect not later than six months afterwards. I want to know if the Minister has any plans or proposals to advance the six months deadline?
Status of Children Bill, 1986: Committee Stage.
The section will come into effect as soon as possible. There is a reference in subsection (2) of this section to the coming into operation of section 2 (1) of the Bill, that is, the provision containing definitions of the expression "marital child" and "non-marital child".
Senators will recall that in the course of the Second Stage debate a few weeks ago, considerable opposition was expressed on all sides of the House to the use of these terms. It was argued very strongly that they were no more than substitutes for the terms "legitimate" and "illegitimate" and would within a short period attract the same pejorative connotations. In the circumstances the Government have agreed that our Bill should be amended by using a form of words referring to the marital status of the parents instead of the terms "marital child" and "non-marital child" where these occur in the Bill as at present drafted. This will involve substantial amendment of section 2 of the Bill and consequential amendments in some 20 other sections including this section.
Are you on section 2?
No, section 1. The drafting has already commenced on this and I propose to submit a full set of amendments for the consideration of the House on Report Stage.
I have seen an amendment very much along the lines of what the Minister has indicated down for section 2 and that will be taken in its turn but I welcome what the Minister has said, that the Government are prepared to undertake a major amendment of this Bill. I imagine we will discuss this more fully in relation to the first amendment, which is the amendment to section 2.
I also welcome the fact that the Minister intends that whole of the Act will come into effect as soon as possible. That is a very vague term, of course, and I would have hoped the Minister could have been more precise about when that may be but it will not be later than six months after the Bill is passed. It is extremely important that this measure is passed through both Houses of the Oireachtas during this parliamentary session. It is a major piece of legislation, it is a major reform. As a country we are very late in deciding on this major reform. It is vital that it goes through both Houses, I hope it will get priority, when it is passed through this House, in the other House.
I would like to join with Senator Robinson in welcoming the Minister's response. It is an entirely correct one and is to be welcomed. The whole thrust of the arguments on Second Stage in relation to the question of definition was that there was a general consensus that whatever replaced terms such as "legitimate" and "illegitimate", would not themselves lend themselves to a pejorative construction. It means additional work but I think the Bill will benefit from the Minister's response. It is the correct thing to do. It is also not only responding to our Second Stage debate but it is very much in line in following on the experience of other bodies, including those expressed in some of the submissions made to us. Cherish, for example, made reference to the British and Scottish Law Commissions and to the manner in which they have concluded that distinctions which would replace the terms which were found objectionable should be based on relationships of parents rather than being entirely based on descriptions of the children. The Minister is doing something that is entirely welcome. I look forward to a more lengthy discussion on this matter on section 2.
I am very pleased with the Minister's response. It is a matter of regret though that she did not tell us at Second Stage that a decision like this had been taken. The sort of amendments she is now envisaging would be far more effectively discussed in this House on Committee Stage than they can be on Report Stage which is more formalised and does not facilitate the interchange of ideas that would have been facilitated by Committee Stage. That is a pity but it is a minor quibble by comparison with the decision the Government have taken.
Regarding section 1, would the Minister indicate the problems that might delay even for six months the implementation of this Bill? What are the administrative, technical and other problems that stand in the way of the speedy bringing into force of all the provisions of this Bill?
I would like to thank Senators for their appreciation of our decision. It is important that we continue the debate on this Bill in the vein in which we commenced and that we ensure it is the finest possible piece of legislation for this issue that we can develop through the debate in both Houses and whatever amendments are needed.
Regarding Senator Ryan's comments I should say that certain developments have come up which we have looked at and researched and it would not have been possible for us to make a commitment prior to or during the Second Stage. Regarding the coming into effect of this part of the Bill, a six month interval is necessary to allow time for making rules of court by the rules committee to take account of new and revised court procedures envisaged in Part III, Part V and Part VI.
I do not know exactly what the Minister was talking about. What Senator Ryan was asking was why can this Bill not be brought into operation within six months.
I would like to support the Minister. If regulations need to be made and if orders and rules of court need to be made to implement the various provisions of this Bill, that takes time. We must be realistic and realise that in order to implement the provisions of the Bill certain preparatory work must be completed which cannot be completed until the legislation has passed through both Houses of the Oireachtas. This is exactly the type of Bill which may be changed in either House and therefore the process of making the rules of court and so on would take time.
I would like to join with other Senators in welcoming the determination of the Minister to change the Bill in this important aspect. Her determination to do that reflects great credit on herself and on the people who made representations to her and on the Members of this House who by an overwhelming majority almost unanimously, felt that it was an appropriate action to take. In those circumstances the Minister's indication that she intends to introduce these substantial amendments at Report Stage will be welcomed by this House.
With reference to what Senator Ryan has said about the discussion of these at Report Stage I think there is some provision whereby a Report Stage can be referred back and discussed in Committee if certain amendments are made of a substantial nature. I take it, from the way the Clerk of the Seanad is nodding his head, that I am correct in my recollection. If these amendments are of that substantial nature it would be open to the House to discuss them at a Committee Stage and I think that would be appropriate. It would be fair to give the Minister due notice that it would probably be our intention in respect of the major amendments to act in that way.
I move amendment No. 1:
In page 5, before section 2, insert a new section as follows:
"2—(1) In this Act, and in any enactments passed after the coming into force of this Part, unless the contrary intention appears, references to a person whose father and mother were married to each other at the time of his birth include, and references to a person whose father and mother were not married to each other do not include, references to a person—
(a) whose parents were married to each other at the time of his birth or at some time during the ten months preceding his birth, or
(b) who is or has been legitimated by virtue of section 1 (as amended by section 5 of this Act) of the Legitimacy Act, 1931, or
(c) who is recognised by virtue of section 8 of the Legitimacy Act, 1931, as legitimated, or
(d) in respect of whom an adoption order is or has been made under the Adoption Acts, 1952 to 1976, or
(e) who is otherwise treated in law as a legitimate person or a legitimated person.
This amendment proposes to make the fundamental change which the Minister has indicated the Government are now committed to. So, it may be of value to discuss the amendment in some detail. I would be interested to know why the Minister is not in a position to accept this formulation with some minor amendment at Report Stage. It would be interesting to know whether the proposal which the Government will bring forward would be substantially different from the amendment drafted.
It is a fundamental change because it proposes not to use the approach of reclassifying children, of changing from the classification of "legitimate" and "illegitimate" which we are all agreed we must abolish and move to a different classification of "marital" and "non-marital". That is what the Bill as it stands proposes and that received a lot of criticism in this House. Many Senators felt that this new classification could easily itself become pejorative, could easily became a way of discriminating in language against children and could perpetuate under another name the kind of discrimination which we seek to abolish.
The approach which the amendment now commends to the House is that the way in which any distinction would be drawn would be by reference to the status of the parents and that there would not be a classification by bracketing children in a particular way. The approach is one which has gained acceptance in other jurisdictions. It has already been accepted and adopted into law in Scotland. It has been recommended in a recent report of the English Law Commission, a report on illegitimacy which is their second report published in October 1986. I am not suggesting we should necessarily simply follow what happens in other jurisdictions but that we rightly have regard to any changes in areas of law which derive from a common heritage in the common law. We have a common heritage. It is not a heritage we can be particularly proud of; the common law heritage in this area was savage and very discriminatory because the child born outside marriage began as beingfilius nulius, the child of one-one, and had no rights at all until the child was given certain statutory rights in relation to the mother and ultimately certain rights in relation to support from the father if an affiliation proceeding were brought. We have moved on from there.
It is appropriate that we have regard to major law reform reports from the other jurisdictions which share a common heritage. I would like, therefore, to refer to the passage in the report of the English Law Commission published this month where they set out the reasons for the new approach which they recommend. It is particularly interesting because the first report of the Law Commission in England which was published in 1982 recommended the use of the terms `marital' and "non-marital" children, so their thinking has moved on from there. It is clear from the debates in this House that our thinking was that we should start from a different base and, therefore, it is instructive for us to look at the approach and the reasoning of the English Law Commission who propose a change in their law and the removal of the classification of "marital" and "non-marital". I want to quote from page 2 of the report. The report notes a difference between the Scotish Law Commission which had reported, that report had been adopted in legislation in the Scottish Law Reform (Parent and Child) (Scotland) Act, 1986. The commission stated:
Hitherto, however, English law has generally used adjectives to describe the child rather than his parents. Hence, to avoid the connotations of unlawfulness and illegality which are implicit in the term "illegitimate" our earlier Report recommended replacing it wherever possible with the term "non-marital" and, accordingly, "legitimate" with "marital".
That policy was followed in the Report Bill. The Scottish Law Commission took a rather different view. They argued that Labels of any kind applied to the child are unnecessary, given that in future "it should ... rarely be necessary to discriminate", and also undesirable, because they would "rapidly take on old connotations." Instead, they recommended that "future legislation distinguish, where distinctions based on marriage are necessary, between fathers rather than between children" and that "where it is thought necessary to distinguish between people on the basis of whether or not their parents were married to each other at any relevent time ... this should be done expressly in those terms".
Parliament has now endorsed that approach in the Law Reform (Parent and Child) (Scotland) Act, 1986.
The English Law Commission propose a change from the existing recommendation of the use of the terms "marital" and "non-marital". They recognise that any differences which have to be drawn in law will be few from now on because we are abolishing legal discrimination against the child. We are seeking to equate children to the fullest extent possible whether they are children born within or outside marriage and, therefore, the distinctions in law should be few that have to actually be drawn and they should be drawn by reference to the status of the father and not by classifying children. On page 3, paragraph 2.5 of the report the commission continues in relation to those distinctions as follows:
Where such distinctions are thought necessary, whether now or in the future, the Bill also contains a provision designed to make them easier to draw without the use of labels attached to the child.
The Scottish Law Commission recommended that such distinctions should be expressly in terms of whether or not a person's parents were married to each other. Owing to the complexity of the English law of legitimacy and legitimation, however, it is necessary to provide a little more detail. This is done by clause 1 (2), which defines references to a person's parents being or not being married at the time of his birth in the same terms as "marital" and "non-marital" were defined in the Report Bill, and by clause 1 (3) which expands such references to the time of birth to include any time from conception to birth.
They go on:
We also consider that it would be desirable to apply the new rule of construction to those existing enactments in which it is at present expressly provided that illegitimate relationships should be treated in the same way as legitimate. This would enable the term "illegitimate" to be removed from much of the Statute Book and we attach some importance to this. The detailed task of making the appropriate amendments to ensure that the effect of each of these widely differing provisions remains unchanged is one which we think suitable for delegated legislation. Clause 30 of the new Bill, therefore, confers an order-making power upon the Lord Chancellor for this purpose; alternatively, however, a new list of appropriate amendments could be scheduled to the Bill in due course.
That is the approach being adopted now in another jurisdiction but here in Ireland we have taken a decision late in the day for a European country to decide on this major reform. We are behind many of our European partners, which is something we cannot be proud of. We are a country which wants to have the reputation of being a caring society, of caring about families, of being concerned about children, and yet we have come very late to this major reform of removing the discrimination against children. It is extremely important that we start right.
The amendment we are considering now proposes to achieve a two-fold objective. It proposes, first of all, to draw any distinctions by reference to the status of the parents and that is why the formulation is quite a technical one. It provides:
In this Act and in any enactments passed after the coming into force of this Part, unless the contrary intention appears, references to a person whose father and mother were married to each other at the time of his birth include, and references to a person whose father and mother were not married to each other do not include, references to a person...
And then it sets out most of the categories which were the categories used by the Minister in the Bill to distinguish between marital and non-marital children. One of those categories was left out and that will be the subject of a separate discussion on section 6. It is the category where the Minister, when distinguishing between "marital" and "non-marital" children proposed in the Bill that children of a void marriage would be characterised as being marital. For reasons I set out in some length on Second Stage, that is not acceptable because it makes the classification even narrower and less acceptable.
Therefore, the approach being proposed here is quite a technical approach. It requires quite a cumbersome formula but a cumbersome formula is infinitely preferable to a pejorative classification. It is extremely important that we move away from that kind of classification of children. The other subsection of the amendment that I would draw to the attention of the House is subsection (3) which is a provision enabling the Minister to make regulations removing from existing law the terms `legitimate' or `illegitimate' and substituting therefor, where appropriate, the description of the child as being "one whose mother and father either were or were not married to each other at the time of the said child's birth". There may be technical reasons the Minister would prefer to have these amendments included in the text of the Bill itself. What is being proposed is that it will be done either by giving the Minister this power to amend by regulation, which would mean amending earlier legislation, or the Minister by way of amendment on Report Stage may wish to do it in the Bill itself with a number of amendments to earlier legislation. The important thing is the principle that it be done and that we achieve what is so dearly sought by Cherish, by the Federation for the Unmarried Parent and Child, by Ally and by other bodies, that we abolish the status of illegitimacy. I hope when we come to the Final Stage and consider the Title of this Bill that we expressly say that in the Title. I think we would be able to say it, given the Government's approach to this issue and that we would realise the importance of language and of removing a stigma derived from a classification of children.
They are the main points in this amendment. I hope it will receive support and that the Minister may even consider it forms a basis which could be acceptable, perhaps with some changes on Report Stage. It does not really matter if the Minister wishes to use a different approach on Report Stage provided it achieves the same objective.
I would like to indicate support for the constructive arguments put forward at Second Stage. I have very little to add to the arguments being put forward by Senator Robinson in support of her amendment but as she spoke I thought of the curious anomaly that a rises in relation to the overall status of children, the children do not enjoy, as I understand it, a specific set of protections such as exist in other countries and states in relation to the protection of their rights as of themselves. The protection of children in the interpretations of the Irish Constitution is very much a secondary affair and at the same time children have been the carriers of an enormous stigma in relation to the labels involved: "legitimate", "illegitimate." On the one hand, you have a social disability of the label in terms of what it has meant, if you like, the social resonance I would call it of the stigma itself, and, on the other hand you have the absence of a concrete expression of the right of the child in its own right, which is a point about which historians will make their own evaluation of what it tells you about children and constitutional practice in Ireland.
This amendment to section 2 summarises the arguments put forward by a number of Senators and it will strengthen the Bill. I find the two points in it worthy of support: the shifting of the burden of distinction from the child on to the status of the relationship of the parents, and also the second point which is a very flexible suggestion, the capacity for the substitution of, if you like to use the word, the ethos of the labels "legitimate" and "illegitimate" in law and in practices. It is a very flexible amendment in so far as it suggests to the Minister a choice of two ways of doing this, either by amendment by regulation or by specific amendment. I will be very interested in hearing the Minister's response.
Senator Robinson has raised a very interesting point in relation to the Title of the Bill. The term Status of Children Bill is almost a neutral title in itself: it could describe any status. The Status of Children: Abolition of Illegitimacy Bill would be a very strong description. Some such title would very concretely express what is the desire of very many people in this country and what I think is the intent of this House by an overwhelming majority — that such an abolition would take place. I would like to indicate substantial support for this amendment.
I will be brief because both Senator Robinson and Senator Higgins have said most of what I wish to say. I do think it is worth emphasising, though, that contrary to the speculation beforehand about this Bill, the view of this House has not been that this was a difficult issue in which there was a high level of controversy. The view of this House overwhelmingly has been to try to improve the Bill and make it more effective in its intent rather than conform to the public perception, which was generated beforehand, that we were going to have an explosive confrontation between liberals and conservatives, between right and left,et cetera. This House has been remarkably unanimous in its view that the only thing wrong with this Bill is that it perhaps does not go far enough and this amendment is a major attempt to bring the Bill further in the direction in which most Members of this House — and I am fairly sure at this stage the Minister too — would wish the Bill to go.
I am very happy that this amendment has been introduced. I am also happy that it is in this House, which is usually much maligned as being a House of no significance, that a fundamental change in a major piece of legislation is to be introduced. I welcome that also. I am also interested in particular to hear the Minister's response to subsection (3) of the amendment, the provision to give the Minister power by order to delete all references to legitimacy and illegitimacy from existing legislation. It is a necessary — cumbersome though it may be and difficult though it may be — part of giving effect to our intent to abolish the status of illegitimacy. I am intrigued and amused — perhaps on some other occasion we could discuss it further — by the implied suggestion, which I agree with, to take away all reference to children as being "legitimate" and "illegitimate" and to transfer it by implication to legitimate and illegitimate fathers which is a fascinating turn of events since we have consistently in our society tended to point the finger of disapproval at illegitimate children and unmarried mothers. It is an intruiguing and hopeful sign that the intent appears to be in this House and in the Minister's mind that if there is to be any status of illegitimacy it is going to point firmly in the direction of the father. That is a welcome and revolutionary intent. I support the amendment enthusiastically and look forward to the Minister's reply.
Obviously the fact that the Minister has made the announcement she has made has given me second thoughts. I am quite happy to suspend judgment, if you like, on this amendment pending the introduction of the other amendments, which I think can then be considered in the context of this amendment. If it is not passed today it can be re-introduced at Report Stage and considered in the balance against the amendments introduced by the Minister. That is the correct way of doing it. The Minister knows that I can give no absolute guarantee that I will support her amendment rather than this amendment when the time comes, but I have no reason to suggest that the Minister's amendment will not be every bit as good as this amendment. The principle is accepted and we are, therefore, talking about details.
Subsection (3) of the proposed new section is very important and I would recommend to the Minister that she take some powers in order to adjust the existing law by the deletion and substitution of terms which are more in line with the terms which will be appropriate and the status which will be appropriate as a result of the passing and enactment of this legislation. I am not normally in favour of giving the Minister power to make regulations which change the law because that is something which is the function of a House of the Oireachtas and it is only with reluctance that I acknowledge that there are occasions when it is necessary to give the Minister the power to make these regulations. However, in this case what is clearly indicated is that it is the mere substitution of terms of "legitimate" and "illegitimate" for descriptions of a child more appropriate to the terminology which will be the norm after the enactment of this legislation. I recommend that when the Minister comes forward with whatever formula she chooses it be judged in the balance against this kind of approach both seeking, of course, to achieve the same objective. The Minister should give serious consideration to taking to herself and to her successors the power of the kind envisaged in subsection (3) of the section proposed in the amendment.
I note at what was said about the Title of the Bill. Senator Michael D. Higgins may have misinterpreted what Senator Robinson said. I think Senator Robinson had in mind the Long Title of the Bill rather than the name of the Bill. I certainly think the Long Title is one which we should now look at in view of the amendment. In fact, there could not be a better title. It is not "The Status of Legitimate Children" or "The Status of Illegitimate Children"; it is just the "Status of Children". There could not be a better title and I would certainly not be in favour of changing the title. I do not know if such a thing is possible but I would not be in favour of it because the title encapsulates what we are seeking to achieve, which is to make the status of our children identical before the law in so far as possible. The Long Title of the Bill might be looked at by the Minister during the course of her consideration of the various amendments.
I thank Senators for their contributions and I am glad to see we are not at odds on this amendment. I would just put it to them before replying fully that when the proposals were being put forward for this change a suggestion was made that perhaps not substituting such terms, as had been proposed originally "marital" and "non-marital," might lead to the perpetuation of the "legitimate" and "illegitimate" descriptions because when people probably are still searching around for a description for the child they tend to use the existing ones that have been there traditionally. I am just putting it as a suggestion that was made. I do not necessarily believe that is so. Some people will continue to want to use these terms and will go on doing so, but the lead given in this legislation should enable us to regard children and their status defined as the marital situation of their parents where they are married to each other or not.
This amendment seeks to remove from the Bill the definitions of the terms "marital child" and "non-marital child". The removal of these definitions, and the consequential replacement of these terms in each of the 20 or more sections of the Bill where they occur is a major task on which the drafting work has already begun. It is expected a comprehensive set of amendments will be presented on Report Stage to bring about a situation where these terms will not appear anywhere in the Bill. In the light of this, Senator Robinson and Senator McGuinness may wish to consider withdrawing their amendment and letting section 2, as it stands, pass Committee Stage on the understanding that an extensive rewrite of the section will be available on Report Stage by way of Government amendment.
Subsection (1) of the amendment, as proposed, is similar in many respects to clause 1 (2) of the draft Bill appended to the latest report of the English Law Commission on illegitimacy to which Senator Robinson referred. That report which was published in the middle of October recommends going away from the original proposal in the Law Commission's 1982 Report, to use the terms "marital" and "non-marital" in order to distinguish between persons based on whether their parents have married each other. The particular provision to which this amendment bears a resemblance is discussed at paragraph 2.5 of the October 1986 report. Its purpose is described there as being to make it easier in future legislation to draw distinctions between children based on the marital status of their parents without having to use labels attached to the child. They note the Scottish Law Commission recommended that such distinctions should be expressed in terms of whether a person's parents were married to each other but it is difficult to envisage at this stage circumstances where future legislation might need to distinguish between children based on whether their parents have married each other. This Bill deals with those areas of existing law where such distinctions are necessary and it is expected that after amendment on Report Stage it will deal with them expressly in terms of whether a person's parents are married or not. Should there be future circumstances where it should prove necessary to make such distinctions, then the proper means of making the distinctions is surely by express provisions in future legislation, enabling the implications of the distinctions to be pointed up, discussed and justified in their context. A situation should exist where it would not be easy to make such distinctions and this amendment is opposed today because it would facilitate the making of such distinctions.
The principle of subsection (3), to which a number of Senators have referred, which would enable the Minister to make changes in existing legislation which refers to illegitimate children is one which can be considered between now and Report Stage. It should be pointed out, however, that the effect of subsection (3) would be to enable cosmetic changes only to be made in existing law. The primary purpose of this Bill is to make substantive changes in existing law so as to remove discrimination against children whose parents have not married each other, not just change the descriptions and leave the discrimination alone.
Senator Robinson and Senator O'Leary suggested the Long Title of the Bill might be amended to bring out the fact that the Bill will abolish the stigma attaching to illegitimacy. I have every sympathy personally with this point of view and I will raise it with the draftsman.
I am very encouraged both by what has been said on this amendment by other Members of the House and by the Minister of State's contribution on Committee Stage, following what she had already indicated of Government policy. It is clear there is a broad agreement on the basic fundamental principle to be achieved. The better course perhaps would be the approach suggested by Senator O'Leary — to withdraw the amendment by leave of the House, and re-table it on Report Stage. I assume it is open to the proposers to do that so that we can then consider the alternative approaches to this section.
There was just one point made by the Minister — I may have misunderstood her — which I would not, and I am sure other Senators would agree, regard as cosmetic namely the removal from earlier legislation of the terms "legitimate" and "illegitimate". This is really fundamental — the use of language which conditions approach and attitude, the classification of children in a particular way. It is a very important part of this amendment and part of the fundamental policy behind the amendment that this be achieved. Therefore, I regret any attempt to characterise it as being cosmetic. It is extremely important. When we in Ireland are approaching this at quite a late stage by European standards, it is particularly important, that we do it with total commitment and that this Bill be seen as one which removes from our whole code the terms "legitimate" and "illegitimate" because they signify a discrimination and a pejorative classification of children simply because of the status of their parents at the time of their birth.
It is extremely important that we achieve by way of a provision of this Bill and there is a formula for it in subsection (3) of this amendment — an authorisation to the Minister to amend any such references in earlier legislation by substituting a different formulation. It is a matter of technical detail whether the Minister prefers to do this by, for example, a Schedule to this Bill expressly setting out the proposed amendments or whether it would be done as here by having power to do it by delegated legislation, by regulation. I propose when the debate concludes to withdraw the amendment with a view to re-tabling it.
I was rather taken aback by the Minister's comment, as was Senator Robinson, that the subsection on its own, if nothing else was done, would be a cosmetic exercise. The Minister is quite right that just to do that and do no more would be entirely a cosmetic exercise. However, when everything else that is contained in the Bill is being done, it is a necessary consequence of doing all that that a subsection like this of whatever form, be introduced so that the terms cease to exist in our law. Otherwise we would have a most peculiar situation where we would have abolished all of the legal discriminations attached to the present so-called status of illegitimacy; we would have introduced new terminology but a whole mass of legislation going back over a long number of years would contain these terms "legitimate" and "illegitimate" largely because there would be an understandable reluctance to go through the drudgery of identifying all the places where the terms "legitimate" and "illegitimate" are contained and getting rid of them. It would be a cosmetic exercise if nothing else was being done, but as a consequence of the major intent and the major change, it is necessary to establish the extent of our goodwill.
The suggestion is not being rejected; it is certainly going to be considered.
On the section, we did not discuss the context of the amendment — because it more appropriately comes up on section 6 — the proposal in the amendment as tabled by Senator McGuinness and I that category C should be omitted which would be inserted by section 6 of this Act. I wish to clarify that in agreeing to the section for the purposes of moving to Report Stage I am not to be taken as in any way agreeing to subsection 2 (c) apart from not agreeing with the classification of marital and non-marital.
I am opposed to this section. It is difficult to know how much I need to express my opposition because the Minister has not made it clear whether she accepts the whole of the approach in the amendments already discussed, namely, if we are not classifying as "marital" and "non-marital" then it may well be that section 6 will fall anyway and that it will not be part of the Bill at Report Stage, that there will be a Government amendment, or that the Minister will accept that this section should fall. Still, it is important to explain why I am opposed to this section.
What is proposed here is to insert a new section, 1A, into the Legitimacy Act, 1931, the effect of which would be to achieve the result that, although a marriage might be declared by our courts to be void, the children of that marriage would have been classed as "marital".
We are not going to use that classification any more. It may be that the Minister would wish in some way to continue to draw a distinction. I fail to see how it could be done. We may be talking in the abstract. It is important to explain why that section was being opposed when the now-obsolete proposal of a new classification "marital" and "non-marital" was being put forward. If children of a void marriage where the courts are clearly saying there was no marriage were nonetheless going to be classified as "marital", inevitably this would have narrowed the category of "non-marital" and made it a particular classification which would stigmatise the children in law in a sense and also stigmatise them in the public mind and made it more likely that all the pejorative connotations of "illegitimate" would have been carried forward.
Section 6 appears only to have had any relevance of purpose when we had the proposal in the Bill to classify children as "marital" or "non-marital". I do not want to take up the time of the House. I would prefer to hear the Minister's response on this point before coming back at more length, if it is necessary to do so, on why that proposal is not acceptable to me.
I promised when replying to the Second Stage of the Bill to reconsider this section in the light of arguments advanced by some Senators, especially Senator Robinson, for deleting it. There are strong arguments both for and against including this section in the Bill. I would like some further time to reflect on them. Meanwhile could we reserve our position on this section until Report Stage? I might mention that, if the section is retained, the provision in it relating to the domicile of the father will require to be amended, having regard, in particular, to the Domicile and Recognition of Foreign Divorce Act which was enacted recently.
I would have liked to have heard the Minister at more length. The only way section 6 could be retained now is by defining people as married whose marriages have been deemed to be void in a certain procedure. If we are not defining children by a title we are talking about children in terms of the status of their parents. The Minister then gets involved in the intriguing possibility of couples whose marriages are deemed to be void being deemed to be married to avoid some of the consequences of our own peculiar legislative position on the whole question of marriage breakdown. It is a pity the Minister did not elaborate, even if she does not come to a final conclusion, on the arguments on both sides in the context of her acceptance of the fundamental change she has already accepted in section 2 and say how the arguments are now weighed as presented to her in the light of the changes she has already accepted.
In the light of the Minister's apparent uncertainty on this section it is necessary to discuss it in a little more detail. Senator Ryan has pointed to my problem. I cannot envisage a formulation which would allow section 6 to be carried forward because it would mean that, in some way where the effect of the court order was to conclude that there had been no marriage but nonetheless they would be deemed to be married, that would cause considerable confusion and would appear to be a very difficult drafting job. There are other issues which arise in relation to this section and it would be appropriate to discuss them because they relate to matters we will be discussing at more length later in the Bill.
The effect of section 6, as I see it is to confer retrospective rights on a child. It would amend the 1931 Act by proposing that children of a void marriage would have the status of being "marital" which they do not have at the moment. This inevitably would give them succession rights retrospectively which they would not have had prior to this section. I am opposed to the section and I think it is now redundant. I would welcome some response from the Minister on this point, as to how in section 6 it would be proposed to give succession rights retrospectively. That inevitably flows from this characterisation of children of a void marriage as now being "marital". I do not know how that could be proposed to be done when in relation to amendments that we shall be discussing later the Minister was of the view on Second Stage that this could not be done because it would be affecting rights retrospectively. Perhaps the Minister will deal with that point.
Like Senator Ryan, I find it difficult to gauge the Minister's response because there really has not been any response other than that she needs more time to consider it. I am not critical of that. I would much prefer that the Minister would require more time because they are not easy concepts and I do not intend in any way to be critical. I welcome the fact that the Minister is considering these matters and is prepared to take time. We will have to accept Senator O'Leary's suggestion and make the Report Stage of this Bill a Committee Stage debate because these are extremely important issues. On Report Stage we can only speak once on a particular amendment and that would not be adequate for the teasing out of the implications of any proposed amendment. Since the Minister is considering the position the appropriate approach would be, when the debate concludes on this amendment, to withdraw it in a similar fashion and retable it. It is not an amendment as such; it is opposition to this section. That opposition will certainly continue but it is a matter that can be dealt with on Report Stage if the Minister still wishes in some way which I find it hard to imagine to perpetuate the separation of children of a void marriage from other children who are not children of a marriage.
I am of two minds about this section of the Bill because I can see the logic of those who say if there is going to be no different status in respect of children whose parents are not married, then of course section 6 should not exist. Very sensibly in other portions of this Bill, for example in the area of guardianship, we are retaining different rights relating, not to the child itself, but to the parents of the children — their guardianship rights. In spite of the amendment that I will be moving for Senator Durcan I do not believe that the father should automatically, as of right, be the guardian of such a child.
We are saying there that in the case of children who are born of parents who are married both parents should be guardians but that in other cases only the mother should have an automatic right of guardianship. It appears, that with regard to the children of void marriages we must come down on one side or the other. You could have a situation where everybody thinks a child is the child of a marriage and by application to the court it is declared that there is no marriage. Up to the point of the declaration by the court that there is no marriage there is an assumption in law that both parents are the guardians of the children.
When we are properly retaining in the legislation the enhanced right of the mother of the child in the case where the father and mother are not married then we must deal with the problem of where a child who previous to the court decision was, so far as anyone was concerned, the child of a marriage, and that therefore both father and mother were guardians. Do they or do they not by that act become recategorised and have only one guardian? That is a problem we must face.
I have listened to the argument with regard to section 6. I will be listening to the argument on the next occasion in order to be persuaded one way or the other. It appears that we must make up our minds. Are we saying that where there is a declaration by the court that a marriage is void, that the guardianship of the father up to that time is automatically lost at that point, or are we saying, as we presume was the intention here, that notwithstanding that the marriage was void there is a recognition that there was a relationship of a particular type between the father and the mother, which they thought up to a certain point was a marriage, and because of that relationship that it would be proper that for example, joint guardianship should continue to exist?
That is one of the effects of section 6 as it stands and it is one of the problems to which the Minister did not refer but which she could refer to with regard to the complete deletion of section 6. I am not suggesting the Minister should do it now, I know these are very technical areas and I know she can only really be expected to do what she is briefed to do in the sense that she can make up her mind on the principle but obviously must be briefed fully with regard to the exact way in which things are put.
It is necessary that both sides of this argument should be put to us in as comprehensive a way as possible, so that we can appreciate the problems on both sides before deciding whether to come down on the side of the continued existence of something like section 6 under the new regime or its complete abolition. In those circumstances there is a duty on the Minister, when coming back to us at Report Stage, to put a full report to us with regard to the full implications of this problem of void marriages. I still have a completely open mind in this regard and I look forward to the Minister's point of view giving us both sides of the argument and then hearing the other people, who are more expert than I am in this area, giving their side of the argument so that we can make a judgment as to which is in the best interests of the principle we are seeking to establish throughout this Bill.
I would like to refer briefly to what Senator O'Leary said. There is nothing in this Bill which precludes a natural father from being recognised as the guardian of the child. The question at issue is the automatic guardianship. That colours the whole argument about section 6, that the absence of section 6, even in its present form or an amended form, will not in any sense prevent a natural father from being recognised as the guardian of the child. It will simply prevent him from being the automatic guardian of the child.
Would it move him from the category, under the declaration of the marriage being void, of being a guardian to not being a guardian?
As it stands it would. Given the minimal number of marriages declared void in this country my view is there is an entirely different motivation for section 6 which has to do with the crazy legal quagmire we are in about marital breakdown and that this is an attempt to paper over one of the cracks. Senator O'Leary's argument is overstated because it did not make the distinction between the automatic guardianship and the right to guardianship which a natural father can have exercised through the courts. That is all I wish to say at this stage. We should wait to see what the Minister has to say later.
I agree that with all the delicate, intricate situations we are dealing with that this is not something that should be rushed. It is something we should wait to hear what the Minister has to say on and then have a full discussion. This matter can be dealt with on Report Stage. Everybody has the interest of mother and child in mind in discussing this Bill. We should be cautious about accepting or rejecting something without a full debate and without the Minister giving us a full explanation on each matter.
I assume the Minister will come in on this and I am waiting for her to come on the retrospection point as well when she contributes to the section but I want in a sense to reply to the points raised by Senator O'Leary which are important. I would not agree with his analysis, if I understood it correctly, about the position where a couple believed they were married but then the marriage was declared void. If the marriage is void there was at no stage a marriage, therefore at no stage was the father a legal guardian of the child. He may have thought he was, he may have exercised it. A lot of other fathers exercise all the practical attributes without being legal guardian where parents are in a stable loving relationship but cannot marry. That is a very frequent occurrence in this country. Because of the absence of divorce there is an increasing number of couples where the mother and father live together, where they share all decisions in relation to the child, where at practical level the father exercises what in lay terms are guardianship rights. The position is really very little different in the case of a caring father in a family relationship who cannot exercise guardianship rights at present either. When we come later to discuss the section and the amendments to it on guardianship that is what we will be considering.
At all times I have said that it is an important value in this legislation that we ensure that in cases where there is joint parenting or where there is the consent of the mother to a father assuming rights that that be achieved with the minimum of legality, the minimum of expense, the minimum of pressure and problems for the natural father concerned. I would foresee a possibility in future cases, where there are applications for nullity of a marriage, that the court dealing with the nullity application could deal with the question of guardianship. It should be possible to deal with it there and not have the necessity for a subsequent application by that father in the case where a court declares the marriage to be void. Maybe the father is the petitioner seeking to have the marriage declared to be void for whatever reason.
Normally if there is a petition for nullity before our courts the couple will have ceased to live together. It is one of the few remedies. This is where Senator Brendan Ryan's point is a valid one. We are seeing a very substantial increase — in my view a worrying increase — in the number of petitions for nullity before our courts. We are seeing the pressure on expanding nullity as a jurisdiction and an increase in petitions for nullity because we do not have any legal means of terminating the marriage relationship which would be effective by having divorce legislation and divorce jurisdiction in our courts.
We should be very concerned not in some way to create a sort of back door divorce by removing any consequences of nullity, including any consequences relating to the rights of a father or the relationship with the child, which somehow distinguishes the child of a void marriage from other children whose parents were not married at the time of their birth. There are a lot of considerations but really the father in those circumstances is in the same position as other fathers who exercise parenting rights, who do so jointly with the mother, with the agreement of the mother, but who do not have the status of guardian. It should be an important objective that natural fathers in those circumstances will have an accessible means which does not involve them in costs, in what can be a very traumatic experience, if he never had to go to court for something, to have to go in relation to exercise guardianship rights. That is a very big burden and it could deter fathers in certain circumstances. We need to be very concerned about that when we come to debate it fully.
The real argument now against section 6 is that it is redundant. We are not classifying children in this way. We want to take on board the values that Senator O'Leary has been talking about when we come to ensuring that in those circumstances a father can exercise legal as well as practical guardianship rights in relation to his child with the least formality.
One of the things that gives me a little bit of concern about the opposition to section 6, — I am certainly not making any reference to Senator Robinson or indeed to Senator Ryan in this reference — is that it appears to me that as a result of the recent referendum a kind of undercurrent has grown up which is determined to resist any development in the law in the area of void marriages as a kind of counterbalance, as an attempt to keep increased pressure on the Legislature and on people to change their minds in relation to the recent referendum. In other words, we will make void marriages so awkward and refuse to extend them so that people will have to think again. There is no point saying that attitude is not around because it is. I have no time for that attitude. I believe the time will come when the referendum will be overturned. Whether that is a good thing or a bad thing it is the verdict of the people and that is it.
I certainly do not want to get involved in a situation where I am participating in a side show. What is really at issue here in the opposition to section 6 is something else altogether. I accept what Senator Robinson said that in the case of a void marriage the people were not married originally and even though they did not know it the mother was always the sole guardian of the child. It is fundamentally a different situation where somebody is in a stable relationship and even though the father may be acting as the guardian he knows he is not the guardian. This is a slightly different situation where even though he was not the guardian he thought he was the guardian, the child thought the father was the guardian and the mother thought that the father was the guardian.
I do not care about the father in this, it is what is in the interests of the child that I am concerned about. If it is in the interests of a child in a void marriage that its father should have automatic rights of guardianship I will give the father automatic rights of guardianship because it is in the interests of the child. If it is not in the interests of the child I will not and I will not apologise to anyone or to any father.
The Senator cannot talk about making something automatic and then talk about individual cases.
I am not talking about individual cases. If I think as a general principle that it is right in the interests of the children of void marriages that the father should continue to have an automatic guardianship I will support that and if it is not in the interests of the children I will not support it. I am not a bit interested in making void marriages easier or more difficult. That has no priority as far as I am concerned in the consideration of this amendment. The only priority, as far as I am concerned, is what is the interests of the unfortunate children concerned. I remain to be convinced on one side or the other as to what is in their interest. I look forward to further discussion on that.
How do you decide?
I recall in the Second Stage debate that Senators differed in their approach to this section. Before I give the arguments which have been expressed for and against it I will just give my understanding of void marriages because it has come up and will come up again in the debate. The term "void marriage" is shorthand only for what is, in fact, no marriage at all and is used to describe an invalid ceremony or the relationship between the parties to an invalid ceremony. Since it is void from the beginning it does not in theory need a decree to annul it. The effect of a decree is merely to declare what is already the case. While, strictly speaking, a party to a void ceremony of marriage may subsequently undergo a valid ceremony, they may remarry, without first having obtained a decree, in practice such a decree is desirable in order to remove any doubt as to the invalidity of the earlier ceremony. Also, in practice, the invalidity of a marriage may not be at all obvious either to the public at large or even to the parties themselves particularly where the question of lack of consent is raised. A ceremony of marriage duly performed isprima facie valid. In such cases it is the court alone which will determine the matter. I am speaking about legal annulments, not church annulments.
With regard to voidable marriages the understanding is that a marriage is voidable as distinct from being void from the start only on the grounds of impotence of one of the spouses. A voidable marriage is a valid subsisting marriage until a decree of annulment obtainable only at the instance of one of the parties has been pronounced. The effect of such a decree is to invalidate the marriage retrospectively and to render illegitimate from birth any child of the marriage. Thus, a couple may remain validly married to each other despite impotence, which could be the inability, whether physical or psychological, of either party, to consummate the marriage if neither chooses to seek a decree. A child of a voidable marriage may be the result of artificial insemination, pre-marital intercourse orin vitro fertilisation.
I come to the arguments for and against the deletion of section 6. The provisions have been criticised on the ground that if the Bill in general is designed to remove the discriminations that exist against children born outside marriage, then there is an inherent contradiction in having a provision in it which specifically provides for a particular category of children to be classified as legitimate. To do so suggests that a certain stigma still attaches to children born outside marriage. The point was made on Second Stage by Senators Robinson and Michael D. Higgins that the provision could produce unacceptable results in some circumstances. The argument is that if a couple enter into a marriage which is invalid because one of the parties is already married but which one of them reasonably believes to be a valid ceremony the man will be given rights of guardianship over the children of the new union, rights he would not have except after special application to a court if the marriage has not been entered into bigamously. Senator Robinson mentioned the case of persons remarrying after getting church but not civil annulments.
With regard to the arguments for retention of section 6, on the question of stigma the position is that while the Status of Children Bill will equalise the position of illegitimate with that of legitimate children in most important areas there will remain an important distinction in that the father of a legitimate child has the automatic parental rights and the father of an illegitimate child has not. That distinction is unavoidable.
Many of the void marriages effected will have lasted for some years and will have been regarded for some of the time at least as valid and the parents will have been exercising rights on that basis. The retention of section 6 means that that situation will be continued with the legal basis even though the parents have separated and the father will continue as joint guardianship of the child without having to apply to a court under part III of the Bill.
There is a stronger argument in relation to voidable marriages where the children are regarded as legitimate while the marriage lasts and are retrospectively rendered illegitimate by a decree of annulment. Since the only grounds on which a marriage is voidable in Irish law is the impotence of one of the spouses there would be extremely few cases where the child was born prior to the marriage. In England the position was somewhat different since additional statutory grounds for treating marriage as voidable were provided for in an Act of 1958, although then the number of children likely to be involved was quite small. The strict logic of the law, as it applies at present, would appear to work unfairly in the case of such children of voidable marriages as may exist by depriving them of succession rights to their father's estate and by depriving the fathers of guardianship. As regards succession their rights will be equalised with those of children born within marriage by the provisions of part V of the Bill and, as regards guardianship, the provisions of part III of the Bill, will enable the father of an illegitimate child to become joint guardian with the mother by order of the court.
The Minister has not answered the point I made about retrospection.
I do not quite understand. Which area of retrospection does the Senator mean?
As section 6 stands it would provide that children of a void marriage would be marital — that is not the situation at the moment — so that those children would benefit from the time this section came into effect as being marital and they would benefit from any wills or rights as a marital child.
Can I ask that we leave that for further answers and examination in the context of it being in question at the moment.
In regard to these sections which contain the reference to non-marital status the Minister has indicated that they will be subject to detailed amendments. With that reservation in drafting the original amendment on this in section 2 I was aware of the need for these consequential amendments but it seemed better to seek to have the principle agreed at Committee Stage. It is subject to a redrafting to take into account all of these sections.
As amendment No. 4 is consequential on amendment No. 2 both amendments will be discussed together. If amendment No. 2 falls, amendment No. 4 cannot be moved.
I move amendment No. 2:
In page 8, before section 10 to insert a new section as follows:
"10. Section 6 of the Act of 1964 is hereby amended:
(a) by the substitution of the following subsection for subsection (1):
(1) The father and mother of an infant, whether marital or non-marital, shall be guardians of the infant jointly,'; and
(b) By the deletion of subsection (4)."
This requires looking at two directions simultaneously. To some Senators that might be a problem but to me it is no problem. I would like to move amendments 2 and 4 in the name of Senator Durcan. I do so because, as I understand the rules of the House, if they are not discussed at this Stage they cannot be re-introduced at Report Stage. Senator Durcan's intention is that that should happen. Senator Durcan is unfortunately, due to circumstances totally outside his control, unable to be present here today. He would like the opportunity of discussing the matters concerned at Report Stage. I assure the Minister that having moved the amendments it will give me more pleasure to withdraw them at a later stage.
With regard to my personal position as distinct from the amendments, amendment No. 2 proposes that the father or the mother of an infant, whether marital or non-marital, shall be guardians of the infant jointly, I submit that that is based to a certain extent on a false premise. It is based on the premise that a child is a piece of property to which rights attach and that it is a question of dividing up the rights or dividing up the piece of property. That is not what children are all about. They are about something totally different and the rights with regard to guardianship, which should attach to anybody, should only be the rights that are in the interests of the child. Recognising that in the majority of cases of children born whose parents are not married, it is the mother and the mother only who is left holding the baby in the literal sense of the term. In those circumstances to have even a reluctant father granted automatic guardianship of the infant is nonsense. Having moved amendments Nos. 2 and 4 for the purpose of preserving them and allowing Senator Durcan to give us the benefit of his view I want to make it clear that so far as I am concerned the interests of the child should remain paramount. I remain to be convinced that the interests of the child would be served in any way by making a father, even a reluctant, absent or unknown father, the joint guardian of a child. One of the problems of giving automatic rights of guardianship is that in a situation where the father is unknown the father would have joint guardianship. He, the woman, the child and the law would not know who the father was but he would in some mysterious way be the joint guardian of the child. As the Minister will recall, in relation to the method being adopted by the Minister of permitting orders to be made by the court for joint guardianship and the regulation of that, I am willing to listen to any amendments along those lines. That is by far the better approach. Because of the necessity of preserving the amendments for Senator Durcan so that his point of view can be put to the House. I moved amendment No. 2.
Senator O'Leary has given us a perfect example of parliamentary liberalism. I feel that Senator Durcan should have his day. I do not agree with the principle of these amendments. They are in line with the recommendation of the Law Reform Commission. So, it is a view that received quite significant support when the Law Reform Commission published its major report on illegitimacy in 1982. It recommended the abolition of the status of illegitimacy. The view of the members of the Law Reform Commission was that this could not be achieved without equalising the rights of parents in all circumstances and, therefore, giving equal and automatic rights of guardianship to natural fathers. The approach which is supported in a document circulated to Senators by Young Fine Gael has a superficial logic about it which is initially attractive. Perhaps that is why it is important that we debate it and give the significant reasons why it is not acceptable or appropriate particularly to the real situation and the realities of single parenting in Ireland.
When the report of the Law Reform Commission was published in 1982 is provoked a very wide debate. The Minister will be aware of the considered responses from all the bodies who know the problem on the ground — from Cherish to the Federation of Services for Unmarried Parents and their Children to Ally, to other bodies. The Minister can correct me if I am wrong but almost without exception these bodies pointed out the very real legal and social problems which would arise and the extraordinary difficulties which would emerge if that rather simplified approach as recommended by the Law Reform Commission were to be adopted.
The views of these bodies are very well encapsulated in the detailed memorandum which Cherish prepared on the Status of Children Bill, 1986, which they have circulated to Members of the House. I can comment on this memorandum because I had no hand or part in the drafting of it although I agree with both the approach and the recommendations which Cherish invite Members of this House to adopt. In relation to the question of whether it would be appropriate in the context of a Status of Children Bill to grant natural fathers automatic guardianship rights Cherish strongly oppose this and they set out the reasons for that in the memorandum as follows:
The Government have decided against the granting of equal and automatic rights of guardianship to all fathers, Cherish welcomes this decision, as we have a number of arguments against equal rights for all fathers.
1. There is a distinct difference between a family based on marriage and one that is not. Where a couple are married there is an implicit agreement to share parental rights — such an agreement cannot be implied where the couple do not marry.
2. In the majority of single (unmarried) parent families, the care and control of the child is effectively carried by the mother, the father, for whatever reasons, does not play a significant, if indeed any part in the child's upbringing.
3. The mother's relationship with her child and her role as decision maker may be adversely affected if she feels insecure as a result of unwanted interference by the father.
4. There is a danger that if the mother is afraid of interference from the father she will not co-operate in the establishment of her child's paternity, thereby depriving the child of essential information.
5. Difficulties and delays may be caused in procedures where the consent of a guardian is required, for example, adoption, marriage of a minor, passports etc.
However, Cherish also believes that there is a need for reform in the area of parental rights and would support other attempts to improve the present disadvantaged position of fathers of children born outside marriage.
That will be relevant on the next section which deals with the capacity of a father to acquire without any unnecessary burden of elaborate court procedure, cost or hassle of any kind the guardianship rights, in particular, where the mother consents and where he is on the birth certificate as the acknowledged father of the child.
Here we are dealing with a different issue which is the question of whether a father should have automatic rights. The most significant of the arguments advanced by Cherish relates to the vulnerable position of the mother if she does not wish the father to have any role in relation to the child. Her only way of securing that is to refuse to reveal who is the father or to deny the paternity and give rise to all the difficulty of seeking to establish paternity even though denied by the mother in those circumstances.
That would not at all be in the interests of a child. There are, therefore, very strong reasons why this superficially attractive proposition of going the step further after removing any legal discrimination in relation to the child to securing equal parenting rights for fathers is not practicable, is not socially desirable, is not in the interests of the children in a single parent context or in the context of children born outside marriage and, therefore, should not be accepted.
It is notable that the Law Reform Commission report is a very abstract one. It looks at the law in an abstract way and comes out with that formulation. It is a logical formulation which is superficially attractive. It does not look at the reality of single parenting, the reality on the ground in Ireland. It is a matter that should weigh with this House. All the bodies who know the problem on the ground, know the difficulties, know what is to be valued and achieved have opposed the recommendation of the Law Reform Commission and I feel would oppose this amendment which has been proposed in the name of Senator Durcan.
I move amendment No. 3:
In page 9, to delete line 17 and substitute the following:
"Registration Acts, 1863 to 1986
and the Court may make an order thereon without requiring any further proof or formality"
When this amendment has been considered we will be considering the whole context of section 11. Basically, it is necessary to look at that context. It proposes to insert a new section 6A into the Guardianship of Infants Act, 1964. The terminology to be used in the case of a non-marital infant is that the court may, on the application of the natural father of the child, by order appoint such father to be guardian of the infant. That is a major change in the existing position; a natural father will be able to apply to a court to be appointed guardian of the infant.
When the Government's discussion paper was published that in essence was the proposal — that a father would not have automatic guardianship rights but could apply to a court. What was argued in response to the discussion paper was that there should be a way of ensuring that in circumstances where the mother agreed and where the father was the acknowledged father — an obvious way of ensuring that would be where the father's name was on the child's birth certificate, which could only be done with the consent of the father — it should be possible for that couple by way of a joint declaration or by some very simple means to avoid the very real burden of people actually having to go and make application to a court. To make application to a court one has to go to lawyers, to the law centre perhaps and go through what is a very difficult and traumatic experience for people who are not used to courts. It was felt that this would place an unnecessary hurdle for natural fathers, in particular where the mother agreed to and wished the father to exercise legal as well as practical rights in relation to shared parenting of the child. In response to this aspect of the discussion paper on the Government's proposals in relation to a Status of Children Bill the Government in tabling the Bill inserted subsection (3). This goes some way towards meeting the particular point because subsection (3) as it stands provides that:
Rules of court shall provide a special procedure for determining an application under this section where——
(a) the mother consents in writing to the appointment of the natural father as guardian, and
(b) the natural father is registered as the father in a register maintained
under theBirths and Deaths Registration Acts, 1863 to 1986.”.
One of the problems with that subsection is that it is not clear what the rules of court will provide. It is simply delegating to another body, the rules of court committee, to come up with rules of court. It would be helpful if we could know what is envisaged. It is not clear from the subsection, and this is the purpose and thrust of the amendment, whether the rules of court committee would merely simplify the procedure for getting to court but that there would then be some sort of hearing and proof that would have to be secured to the court in order to obtain the order appointing the natural father also as guardian. Therefore the amendment being tabled to that subsection is really to add on a further clause and the court may make an order thereon without requiring any further proof or formality. The wording of that formulation is open to any suggested amendments from Members of the House but the purpose is to ensure that it is clear from the subsection as drafted that the intention is that, although apparently the Minister is adamant that there must be a court involvement and a court procedure, that would be simplified to such an extent that it would simply be a matter of producing documents — the written agreement of the mother and a copy of the birth certificate — to a court and that it would then be a rule of court procedure. The court would rule that the father be deemed to be the legal guardian of the child, end of story. There are provisions, for example, for agreement to be made if it was an analagous procedure which did not require a determination on the merits and possibly rejection by the court in those circumstances. That would allay some of the fears.
It is of very important value in this legislation that we very substantially encourage natural fathers and support them and make it as easy as possible for them to exercise parental rights. That is why, when I was referring to documents prepared by Cherish, I deliberately included the important commitment Cherish have in that regard. They stated:
Cherish also believes that there is a need for reform in the area of parental rights and would support other attempts to improve the present disadvantaged position of fathers of children born outside marriage.
In relation to an earlier situation highlighted by Senator O'Leary, that was the position of a father of a void marriage where there was a decree of nullity and a finding by the court that the marriage was voidab initio, the father, in the context of reform of our nullity proceedings or by a very simplified procedure with the agreement of the mother and given that his name would be on the birth certificate, should be able to be secured in the position of being the guardian of the child. Therefore, it would be of interest to hear what the Minister envisages as being the approach which would be adopted by the rules of court committee. Would she agree with the principle of this amendment that once the court is faced with an application based on the mother's consent and on the father as having been registered as the father under the Vital Statistics and Births, Deaths and Marriages Registration Act, 1952, no further decision on the merits would be required, that the court would accept that as being sufficient for the natural father to be appointed as guardian?
I came the road of the well disposed liberal to whom equal rights of guardianship seemed superficially attractive and was compelled by the logic of the arguments to change my position. My initial reaction had always been that equal rights of guardianship would be an improvement on the status of the child but I must say the force of the arguments, particularly those put to me by Cherish, and also from reading a bit about it compelled me to accept that, whatever about the niceness of the theory, there is a distinction in practice that mothers accept the greater part of responsibility. There is a disturbing amount of evidence that fathers do not accept their responsibility. A characteristic of our society is that many of us who claim to be on the liberal side of society are a little bit reluctant to talk about the fact that people have responsibilities and that if we develop a more tolerant, open and pluralist society that does not excuse anybody from their responsibilities.
The truth of the matter is that as things stand I am convinced that to give fathers automatic rights of guardianship would be chaotic and would make many mothers feel further threatened. In a situation where given the unfortunate and recently reported level of intolerance and lack of support in our society this could lead to a further sense of insecurity. However, there is a long way between saying one is against the principle of automatic guardianship for fathers and saying that even in limited circumstances where the mother consents and the father's name is on the birth certificate we must have a complicated procedure through the courts to have the father accepted as guardian of the child.
There is a tendency in the drafting of legislation — I have seen this over and over again — to leave difficult, complicated issues or ones that might require the setting up of special procedures to the courts. There is much to be said for that. The courts are independent of the Executive — one could argue about whether they are independent of the class from which most of them come — and they will interpret the law to the best of their ability. Much of what is put into legislation about access to the courts ignores the fact that for many people courts, apart from being expensive, are intimidating and frightening. One has only to deal with the difficulties and pain of many people going through our family courts, which act in private, to realise that people do not find court procedures easy, that they put people off and make them uncertain. There is the possibility of costs involved, a need for legal advice, the possibility of unsympathetic legal advice and, indeed, the possibility of very helpful legal advice. It is a matter of regret, therefore, that a father who is accepted by the mother as a partner in the relationship, as guardian of the child and who has chosen to be registered on the birth certificate as the father of the child should have to go through any form of court procedure. I thought there could be a procedure whereby the State could undertake the necessary court procedures, register or accept the individual as a guardian and then undertake the necessary legal steps to have the court's approval rather than have the individual who has been accepted as guardian going through the court procedure on an individual basis. Given the fact that it apparently is not acceptable that it should be done in some circumstance, the very least that can be done is what is proposed by Senators Robinson and McGuinness's amendment. This should very clearly be seen to be a straightforward procedure once the two conditions specified in subsection (3) are met. We cannot have any possibility of detailed investigations, burdens of proof,et cetera. Therefore, this section should be tightly rewritten to make it perfectly clear that what is involved is a simple procedure of approval by the courts recognising that the two conditions specified in this subsection are met. I support the amendment.
The memorandum which was issued with this Bill is fairly instructive in this regard and it might be worthwhile considering what it says. It says:
Section 11 inserts a new section 6A in the 1964 Act which will enable the court to appoint the natural father of a non-marital infant to be a guardian of the infant. In determining an application under this section, the court must, under section 3 of the 1964 Act, regard the welfare of the infant as the first and paramount consideration.
That is a very important point.
Under section 8 (4) of the 1964 Act, the order appointing the natural father guardian may be revoked.
That is the very important point.
By virtue of section 9 of that Act, the father appointed guardian under this section will be joint guardian with the mother or any other guardian of the infant. Subsection (2) of the new section 6A provides that the appointment of the natural father as guardian shall not affect a prior appointment of a guardian under section 8 (1) of the 1964 Act (appointment of guardian where infant has no guardian) unless the court otherwise orders. Subsection (3) provides for a special procedure to be used where the mother consents to the appointment of the father as guardian, and the father is already registered as such on the births register. The details of this procedure will be set out in rules of court to be made after the Bill is enacted.
Two most important aspects of the amendment strike me. First, guardianship is not, in the words of the late Mr. Justice Kenny, "a prize to be awarded to the parents for good behaviour". It has to do with the welfare of the children, not a prize to be awarded to one parent or the other or both parents. Secondly, "Under section 8 (4) of the 1964 Act, the order appointing the natural father guardian may be revoked". I presume that will be the position after the enactment of this legislation. I do not see anything wrong with that. It is quite reasonable.
I would like to invite Senator Ryan to come a little bit further with me along the road to reality and we might even build on reality by the time we are finished.
I did not think the Senator would dare mention that.
I would do anything to pursue the cause of justice — even cross roads with the Senator. The reality of the situation, which obviously correctly affected Senator Ryan's judgment with regard to automatic guardianship, is that fathers do not want to know in many cases. That is the reality on the ground and it gave rise to considerable problems.
It is also the reality that in some of the situations in which application will be made under the new dispensation for the father to be appointed guardian of the child circumstances may change and the mother may want to change the order of the court in the future. I would like to ask the Minister am I right in assuming that the mother will be able to make such an application? If I am right in assuming that the mother will be able to make such an application, it is very important that the first application will have to be gone into fairly thoroughly. I do not think that we want a situation where somebody can go back to court and say they did not really consent, that they were under pressure when they wrote the letter in court. I see the arguments for trying to make it as simple as possible but it is a serious matter for mothers to allow fathers to become guardians of illegitimate children. I do not mind making it a little bit difficult for them because I do not want fathers jumping in and out of being guardians of children depending on the state of personal relationships between the parents. Guardianship of the child should not become another stick to beat the person with whom you share a bed sometimes and do not share a bed with other times. It is very important that we look at the issue in that context. For that reason, I do not mind making it a little bit difficult for mothers to give away, dilute or share this very precious right which they have, because effectively that is what they are doing.
I ask the people who have moved this amendment to think about what I am saying and think about the fact that there will be disputes whether we like it or not. I am not running away just because there will be disputes. It is important, if there are disputes that the ground work should be well laid. It should be impressed upon people at the time such application is being made, and on the mother in particular, that if she consents she cannot come in next week and say she is withdrawing her consent, that that alone will not be sufficient to remove from the father the very significant right which she by her action has helped to bestow on him.
For that reason, therefore, I am asking that the amendment be considered in that light. I am also asking the Minister to take on board what I am saying and not make it too easy to have guardianship granted to fathers. I do not mind the pomp and ceremony portion of it. I do not mind whether the wigs and gowns are worn or not. That does not make any difference to me, but it should be made quite clear to the people participating in it, whether it is done by code of law or some other method, that it is a serious step. While it is not irreversible it is certainly something that is not reversible at a whim. For that reason I am questioning whether the amendment is a wise one and in doing so I share Senator Robinson's view regarding the actual drafting of the section. To say that the rules of court shall provide a special procedure, could mean anything. I share Senator Robinson's view on that. That could mean a special procedure to make it more difficult or it could mean a special procedure to make it easier. We know that the Rules of Court Committee will adopt a sensible approach, but, in reality, it could mean a special procedure to make it more difficult, if this was read in isolation from the memorandum which has been circulated. I put forward these points because I am anxious that careful consideration would be given to applications of this kind, because of the serious effect which they have and because of the fact that, exceptional circumstances apart, I would expect that the Order when made, would be a permanent feature.
I wish to take up some of the points made by Senator O'Leary which worried me a little and it may be no harm to discuss these more fully. Basically he was saying that an application to have the natural father appointed guardian should be gone into thoroughly and therefore he is worried about the amendment which relates to circumstances where the mother consents in writing and where the father is on the birth certificate. The amendment would be to the effect that the court could then make an order without requiring any further proof or formality. The court may make an order. It does not oblige the court. In court may look into it further but the court may make an order simply on that.
I would like to ask the Senator what he means when he says that the application should be gone into more thoroughly. Does it mean that the natural father should be vetted for his suitability for guardianship and, if so, what would be the criteria for vetting a natural father who might make an application for guardianship? For example, if the father has a criminal conviction should the court take that into consideration? If the father is unemployed would that be taken into consideration? Children of a marriage do not have any choice about the suitability of their fathers, they have to take their fathers as their automatic guardians. It seems to me that it would introduce a further very worrying dimension in circumstances where you have the consent of the mother, who is the legal guardian, would speak for the interests of her child in law, saying that she would want to have the father as legal guardian and the father is the acknowledged father whose name is on the birth certificate. We would be getting into an extremely difficult area if we then required courts somehow to satisfy themselves that the father was worthy of being a guardian in respect of that aspect of the matter. If the two ingredients here did not obtain, in other words, if the mother's consent was not a proper consent, a real consent, then there are steps that can be taken to make it clear to the court that although a consent was furnished it was not, in fact, a true consent; it was one obtained by duress, or by fraud or whatever. The same approach would apply there as applies in other situations where a consent requires to be furnished to a court.
The value we are talking here is the value of ensuring encouragement and support to natural fathers to take their full responsibility towards the child and to assume all the responsibilities in that regard of guardianship and, indeed, rights of guardianship are more clearly seen in relation to responsibilities towards the child and, in effect indirectly, rights to the child of having a recognised father as guardian. The very strong considerations of ensuring that the procedure is as informal and as unstressful as possible are extremely strong. The more thoroughly a matter is investigated, as Senator O'Leary appears to suggest, the more one adds to costs. If you go into a matter thoroughly, then presumably the court will have to investigate more thoroughly and so on. As I do not have the Courts Act, 1964, with me perhaps the Minister will clarify if this extends to the District Court. Has the District Court jurisdiction under the amendment of the Courts Act, 1964, to consider an application under this section? The Circuit Court would have, I know. Does it extend to the District Court?
Yes it would.
So an application could be made to the District Court. Rules of procedure would have to be drawn up in relation to an application whether to the Circuit Court or to the District Court. That again places emphasis on the necessity for being very clear in the section as to what is envisaged, very clear as to what the court's role would be. It is a very important value that the procedure be simplified. Many of us, and I share Senator Ryan's view on this, would feel that a statutory declaration properly recorded should be sufficient when one has the consent of the mother and when the father is the acknowledged father whose name is on the birth certificate.
Would Senator Robinson deal with the question of where the mother changes her mind? What does she think should be the considerations that should apply? I certainly had answered the other points. If the Senator does not want to answer, she does not have to.
I should like to deal with the points raised by Senator Robinson. I would not envisage that the court would consider the social suitability of the father in the kind of way which she suggested just because he had a conviction for X, Y or Z that he should or should not be appointed a guardian to the child. What I would expect the court to do is to act in the interests of the child. That may mean different things in different cases. I would consider, for example, an entirely different situation. Where a natural father is registered as the father of a child and has maintained the child and shortly after makes an application of this kind with the consent of the mother, you have one set of circumstances which would predispose me to the view that there is a community of views between the extended family, including the child, with regard to the question of the application. I may have a totally different view as to what the presumption would be if, for example, a natural father is registered as a father under the appropriate Act but, say, has disappeared and has taken no part in the maintenance of the child for the first ten years of its existence and comes back after ten years and then seeks to make this application. That is an entirely different situation. If there was a history of family violence, that is a matter which the court would have to take into account in determining whether to grant this status of guardianship to the father. It is not an argument to say that in the case of children of marriages one does not have any choice with regard to guardianship but that is one of the advantages that children of parents who are not married may have. The court on one's behalf, may have a choice as to whether to allow this person too close to you. There is nothing wrong in principle with making the following statement: if a natural father has a history of violence against either the child or the child's mother there is nothing wrong with the court taking that into account in determining whether to appoint that man guardian of the child with or without the consent of the other parent. I would expect the court to act in accordance with the 1964 Act in such a way as to place the interests of the child in a paramount position over all other considerations. I am quite happy to leave it to the common sense of the court to determine what that means because the court will exercise its jurisdiction sensibly in that regard. This is an important point which we should consider, and the Minister should give us her views with regard to the questions of changes of mind by the mother and what her attitude to that will be. This will help us to determine the degree of formality which would be appropriate in these cases.
I certainly was not trying to avoid responding to that question but I thought I had better respond to Senator O'Leary before the Minister responds to the points he raised. I cannot grasp the context in which the court is going to take into account the kinds of issues which Senator O'Leary is suggesting would be relevant to an application under section 6A of the Guardianship of Infants Act, 1964. This will be a non-contested application as one has got the consent of the mother and the birth certificate of the child. Presumably the father goes in to the court and the mother will not be opposing because she is consenting. How is the court to determine this case? Is Senator O'Leary suggesting that there be an affidavit from the father describing his life and an affidavit from the mother saying, "He never beats me; I like him; he is good"?
There is nothing wrong with that.
If that is what the Senator has in mind and if the court has to satisfy itself on all these matters then we have a very complex procedure and it will involve substantial legal costs and will require the father subjecting himself to a court assessing his position and so on. None of these is a consideration for the poor unfortunate child of a marriage who simply has to take the father as automatic guardian no matter what the father does.
That is one of the disadvantages.
That may be, but we are getting into a slightly unreal area. Senator O'Leary raised a very valid point as to what would happen if the mother having consented in writing and done so in the context of an application being made to have the father appointed joint guardian, withdraws consent. I assume that in that instance by withdrawing her consent she sought to apply to the court to terminate the appointment of guardian. The court would then have to consider these matters in considerable detail. The court should not simply accede to the mother's change of mind as that would not be in the interests of the child. It would then be relevant as to whether the mother's withdrawal of her consent or change of mind in relation to her initial consent was based on factors which were sufficiently important for the court to conclude on an assessment of those factors that it would terminate the appointment of the father as guardian. That would be a very serious step to take with very serious consequences for the child. One would then be into a very different situation.
This amendment seeks to emphasise the value of the particular subsection which the Government introduced in the Bill in response to a very substantial discussion when the Government White Paper on the Status of Children Bill was published. There was much discussion on this. There was a very strong view by, for example, the Federation for the Unmarried Parent and Child that there should be a simplified procedure which did not involve going to court at all. In response to that, subsection (3) of this section was included in the final text of the Bill when it was introduced in this House. I welcome this subsection and I believe the further addition set out in this amendment makes the section clearer as to its intent. Senator O'Leary agrees that as it stands at present it gives no guidance to the Rules of Court Committee whether it be for the Circuit Court or for the District Court on what the procedures should be aiming at. To that extent this debate is an important one. We need to clarify what is the legislative intent. The purpose of this amendment is that the legislative intent should be to simplify and, provided these proofs are available, make it possible for the court, without further inquiry, to make an order. That does not prevent the court from making a further inquiry but it allows the court without further inquiry to make an order appointing the natural father as guardian.
I have no legal backup like the experts who have spoken. Listening to the debate I have worries on two grounds: if a mother was forced into committing herself to giving rights to the father at a time when she was not in a position to make up her mind or if a father was forced to take responsibility and turned out to be a complete disaster is it possible at present to have the decision rescinded? Senator Robinson said that she would not be in favour of having a mother changing her mind afterwards. I agree in principle that people cannot be changing their minds on matters such as this but it could happen that a mother could be coerced for family reasons to accept something which she did not want or was not in a position to judge properly. An unmarried father might be in the same position and it could be an absolute disaster afterwards for the child. Is there a way out on appeal?
Both Senators O'Leary and Browne have made a point but the logic of it would be to delete section 11(3) and simply make a provision that on application to the court the father could be given guardianship rights provided the court was satisfied that it was in the best interests of the child. The subsection attempts to recognise that this is too harsh, too demanding and potentially most unfair and that therefore what is needed is a considerable concession to the responsibility of individuals, to the willingness of individuals to accept responsibility for their own lives and not to write legislation in the context of the worst possible case. If one were to think of all the possibilities of things going wrong one would not allow anyone to get married until they were at least 30.
A good idea.
It usually is approved of by people who are over the age of 30. People under the age of 30 take a different view of these things.
What does the Senator know?
The intent of the Bill as it stands is to simplify the procedure by which a father can become the guardian of a child where good intent is shown by the father by registering as the father of the child on the birth certificate which is a fairly considerable concession in the standards of Ireland today and a not particularly frequent one. It is a rarity where the father of a child born outside marriage is recorded on the birth certificate. We are not talking about a huge flood of cases. We are talking about perhaps an increasing number of cases where children are born to stable relationships which are not marital relationships. In that context the consent of the mother and the willingness of the father to register as a father is a compromise. It is many people's instinct to simplify completely the procedure by which a father under those circumstances can become the guardian. Senator O'Leary has exaggerated worries about the irresponsibility of certain people under certain circumstances. If Senator O'Leary is to be consistent he should simply propose the deletion of those two subsections and propose that the court, where it thinks it is in the interests of the child, may on application by the father deem the father to be the guardian of the child and leave it at that and not get involved in any of these simplifications at all. That would be more logical.
I certainly do not intend to get involved with this. I accept the amendment. I think it is simple enough for parents who are willing to accept it. I am not against the amendment. I asked a simple question: if things went wrong can they go back?
I am opposing this amendment. The apparent aim of this amendment is to enable a father of a child who has not married the child's mother to become joint guardian of the child with the mother automatically once certain procedural requirements are met, i.e. that the mother wants the father to become guardian and has said so in writing, and that the father's name appears on the births register. In effect, the court procedure in those cases would be a rubber stamping of the father's application.
This amendment I suggest ignores the central provision of the Guardianship of Infants Act, 1964, at section 3:
Where in any proceedings before any court the custody, guardianship or upbringing of an infant is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.
The amendment would have the effect of limiting this principle, because it envisages proceedings before a court where a guardian would be appointed without the court having taken into account the welfare of the child. I do not intend permitting that central principle of guardianship law to be eroded in any way. Accordingly, there must be a hearing, however informal, in each case where the authority of the court is to be given to the appointment of a person as guardian of a child.
It is not difficult to envisage circumstances where a mother may give written consent under duress from the father, or may otherwise be acting in a clearly irresponsible manner — say for instance if both parents are drug addicts. The court hearing, however informal, will allow an opportunity for detecting such cases, and thus offer an invaluable safeguard for the child's interests.
The reason for requiring, as a pre-condition for the special procedure, that the father's name be on the birth certificate, is as follows: under the proposals at Part IX of the Bill, it will be a relatively easy matter to have the father's name entered on the register when registering the birth of a non-marital child in any case where the mother consents to this and there is no legal obstacle. Where, for instance, the mother of the non-marital child is married, there is a presumption that the child is the child of her husband. If the husband in such a case agrees to the registration of another man as the father, once again this can be done with relative ease. But if the consent of the husband is not forthcoming, for whatever reason — he may be either unwilling or uncontactable — then the question of parentage must be decided by a court before the father's name can be entered. Such questions are at present determined in the High Court and the proceedings can be costly and slow. Under the proposals at Part IX of the Bill, however, a decision on the parentage of a child made in, among others, guardianship or maintenance proceedings will be sufficient for the registrar to act on. Thus, proceedings under this new provision can both secure the appointment of the father as guardian and determine the question of parentage. However, it would not be appropriate to have the parentage issue determined without a court hearing, giving the mother's husband at least the opportunity of being heard.
Rules of Court are made by the Circuit Court Rules Committee or the District Court Rules Committee, as appropriate, and the Minister for Justice must concur in their making before they become law. Each rules committee consists of judges of the appropriate court and representatives of both branches of the legal profession, under the chairmanship of the President of the appropriate court. They are autonomous bodies. They have a wide discretion in specifying procedural matters, subject to the concurrence of the Minister.
I should like to add that it is intended that special procedures under subsection (3) will be as informal as possible and that there should rarely, if ever, be a need to call a lawyer. I propose to write to the Rules Committee outlining the sort of thing that I have in mind.
Regarding the questions of consent raised by Senator O'Leary I would look at that in two ways. Presumably the Senator is thinking of the withdrawal of consent by the mother after she has given written consent, not before?
After the order.
After the order is made there is provision to have the order varied under section 12 of the Guardianship of Infants Act, 1964, if the mother is sufficiently determined to form the basis of an application to revoke the order the court will then decide the issue in the light of the new circumstances. So it can be revoked.
I think I shall have to operate tactically. The amendment is not a rubber stamping. As I made clear in moving the amendment it enables the court to make an order without further inquiry. It does not oblige the court and the court therefore could, if there was any reason to do so, have regard to the interest of the child, and any of the circumstances which could arise. It is not obliged. If that is not sufficiently clear in the wording of the amendment I would propose to re-table a similar amendment at Report Stage which would make it clear that the objective of the amendment is to enable the court to make an order without further inquiry. The Minister has argued almost against having the section at all if she opposes an amendment along the lines that I am proposing. She says she wants the procedure to be so simplified that rarely would a lawyer be necessary. If a court is having regard to the interests of a child and is weighing up the merits of the suitability of the father why would the father not feel it necessary, in such an important decision, to have a lawyer present? Surely if we are getting into that type of important consideration it would be very foolish indeed for a natural father not to have a lawyer present. It would be very foolish for the Rules of Court Committee not to have an elaborate procedure. It might even be responsible. So I do not think we are necessarily that far apart. I certainly would not wish the amendment to be construed as the court rubber stamping and, in the light of what the Minister has said, I am prepared to withdraw the amendment and reformulate it to make it clear that it is not requiring the court to rubber stamp but is enabling the court, on the basis of the matters specifically covered in the subsection, the consent of the mother and the father's name being on the birth certificate, to make an order. We are talking about the District Court for example. We are talking about the Circuit Court that they could make an order, in those circumstances.
The fact that is is a court order is itself significant. It is significant because it means that the mother can apply to have the order terminated. There is a visibility about it, there are important considerations. It is a check in itself that it is a court order. That is sufficient without eroding the other value, which is, the importance of encouraging and supporting natural fathers. In the interests of disposing of this amendment before lunch I would be prepared, with the leave of the House, to withdraw the amendment with a view to reformulating it at Report Stage.
In reporting progress I wish to apologise for the fact that I will not be here this afternoon. Senator McGuinness will be here to move amendments and Senator Brendan Ryan supports those amendments. Unfortunately, I cannot be here for the remainder of Committee Stage.
I am sorry I was not here this morning. I feel sure that Senator Robinson has already spoken and put forward the reasons why we sought the amendment. I would like in general terms, to say that, as I am sure the Minister appreciates, it is really very important that in suitable cases fathers should be able to get orders of this sort without going through a great deal of formality. This is recognised in the Bill by the phraseology of section 11, and by the fact that it is envisaged that special rules will apply. It says in subsection (3) that rules of court should provide a special procedure but our amendment would make it relatively automatic in certain cases such as in cases where the mother consents in writing to the appointment of the natural father as guardian and where the natural father is registered as the father.
These are obviously the cases where the mother accepts the natural father as being not only the father but also a suitable person to be a guardian. It seems to be unnecessary to require other proofs or formalities. It might well be that the rules of court providing for special procedures would, in fact, allow for this but I feel that the amendment would copperfasten the situation that in these particular situations the natural father would be able to be registered as guardian without further proof or formality.
Much as I dislike interrupting, we have dealt with the amendment. I appreciate that the Senator did not realise we have gone so far.
As far as the section itself is concerned this is an important facet of the section and the procedure should be made relatively easy in cases where there is agreement by the natural father. I would also say that looking at the whole situation I am in agreement with the approach of the Bill that the natural father should not automatically be guardian, as was suggested by the Law Reform Commission.
The Minister will recollect that some years ago she had a seminar with regard to the Law Reform Commission's report on illegitimacy. I expressed my feelings at the seminar that it certainly came across to those who are dealing with natural mothers on a frequent basis that they themselves have considerable fears about allowing the natural father to be an automatic guardian, whereas in theory it looks as though it would be a just way of dealing with the situation.
I would support the Bill in so far as it puts a break on this situation. I would say that there are circumstances, without going as far as circumstances where the child is born as a result of rape, but certainly where the natural mother has justifiable fears that allowing the father to be automatic guardian would be detrimental to the child, where this provision would have the effect that she would be most unwilling to try to establish paternity. I am sure other speakers have said this this morning.
It is quite clear that the crucial thing for the child who is born out of wedlock is to be able to get the rest of the benefits which are given by the Bill. Obviously, the crucial thing is being able to establish paternity. It would be a mistake to create a situation where the establishment of paternity might be discouraged by the fears of the mother as to the detrimental effects of automatic guardianship. However, I am also extremely conscious, because from time to time I also deal with fathers of natural children, that the father's rights at present are at an extremely low ebb. He has no constitutional rights and virtually his only right is to apply for custody and access under section 11 of the Guardianship of Infants Act.
I am also very concerned that fathers in proper cases should not be shut out from getting a right to guardianship and making an application. While we may deal with special rules of court in this section we come back to the same old position that what we need is a reform of the family courts so as to make applications in the family courts easier and simpler for litigants and possibly less costly but also, more importantly, to make the courts more accessible.
The proper working of this section which allow fathers to make application to the court for orders in regard to guardianship for the benefit of the children will again come back to depending on changes in the family law procedure and also the provision of proper legal aid to those who have not got the means to apply to court in other ways. Again, as was dealt with in the recent Private Members' motion debate in this House on the Civil Legal Aid Board, the necessity for widening the scope of the Civil Legal Aid Board so as to provide legal aid and to provide the facilities for legal aid in these cases. I am emphasising that because today I came across a situation where a natural mother, who is seeking to reclaim her children from prospective adopters and for whom time is absolutely crucial has found that her case has had to be put back because the Legal Aid Board's solicitor in one of the country law centres cannot process the natural mother's affidavit because her typist is on holiday. There is no provision and no allowance within the legal aid board scheme for her to have a replacement typist. If we are talking in terms of natural fathers applying for guardianship orders, please let us not find that they cannot do it because they cannot get a typist. I would suggest that the whole working of this type of section depends on accessibility, simplicity and the general running of the family law courts.
This provision applies in all the sections dealing with the maintenance of a non-marital child. As the Minister has said, the definition will now change. There will be consequent amendments. The question which arises, whether children are born within or without marriage, is the question of the payment of a lump sum as opposed to periodic maintenance. This may, in part, arise properly in the next section but it arises in the part dealing with maintenance. At present an unmarried mother, as well as getting an order for periodic payments of maintenance on behalf of her infant child, can get payment of a lump sum, whereas if the Bill is amended as suggested, by bringing everybody in under the Family Law (Maintenance) Act, the position will be that only periodic payments can be ordered by the court apart from the special circumstances of birth and so on. While it is easy to say that a natural mother should not be accepting a lump sum as the end of the father's responsibilities, at the same time on a practical level in many of these cases the payment of a lump sum is the best answer to the mother's problems. This can be true whether the child is born within marriage or without marriage. One of the great weaknesses of the Maintenance Act of 1976 is that no lump sum order can be made under that Act and that no property order can be made under section 5 of the Act. I would suggest that the Minister take another look at the amendments. She is going to have to take another look at them anyway because of the changes regarding the definitions, "marital" and "non-marital". She should not only maintain the position that where a child is born outside marriage a lump sum order, either in lieu of or in addition to periodic payments, may be ordered by the courts but also that this should extend not just to children born outside wedlock but to ordinary maintenance orders. It is an urgent necessity to amend the Maintenance Act of 1976 so as to allow the courts power to make lump sum orders or property orders as is done in other jurisdictions. It seems to me now that the Minister has withdrawn the distinction between "marital" and "non-marital" that this would be an excellent opportunity for her to take this major step in reforming the law of maintenance as it applies to wives and children.
I would prefer if I could reply to that under section 20.
A feature of the existing legislation not being reproduced here is the means provided by the 1930 Act, whereby the father of an illegitimate child can "buy out" his continuing liability to maintain the child by paying a lump sum. The effect of this payment, the amount of which must be fixed by the court, is to relieve the father of all further liability to maintain the child, irrespective of any change in circumstances.
In order to equalise the position of children born within and outside marriage, it would be necessary either to do away with this feature or else make it available irrespective of whether the child was born within or outside marriage. The notion that a statute should enable a parent of a child born within marriage to divest himself or herself of the duty to maintain the child on a continuing basis by the payment of a lump sum is clearly unacceptable. It is similarly questionable whether this facility should continue in relation to children born outside marriage; the social circumstances which may have justified such a provision in the past no longer obtain.
In a perfect just world what the Minister says is true but, unfortunately, we are dealing with a very imperfect world. It can be that the mother of a child born outside wedlock finds herself in a position that the father, the person whom she has established is the father, is going outside the jurisdiction in the next six months. He may possess property or have quite a lot of money and he may be going to Australia. There is absolutely no way that she is going to be able to enforce a periodic maintenance order made under the 1976 Act against anyone who is outside the country, except in the case of Britain, where there are reciprocal statutory arrangements. Therefore, while ideally she can establish that the father has a continuing liability to maintain, in point of fact she may end up getting three instalments of £50 a week and that is it. We need flexibility in this respect. I am not suggesting that it is a good thing that the father should be able to buy out his obligations by putting down a lump sum. That is not a good thing. I would agree with the Minister about that but both in the case of children born inside marriage and in the case of children born outside marriage the court needs the flexibility of being able to order a lump sum, if necessary in addition to periodic payments. In marital breakdown cases one can come across a situation where it is practically much more desirable for the wife to get a lump sum which will enable her to house herself and the children. The same thing might apply to an unmarried mother where a lump sum which would enable her to house herself and the child might be of much better use to her than a relatively low level maintenance order. The maintenance orders for children are made at a relatively low level. The limit in the District Court is £30 a week for a child. Presumably the limit applies whichever kind of birth the child has. That is not a great deal of money. Where a father, whether married or unmarried, has a reasonable amount of property or where he is willing to pay a lump sum, the flexibility should be allowed that a lump sum could be ordered one way or another. I am not suggesting that that be the end of his obligation but I suggest that it is a practical weakness which we are coming across every day of the week in the maintenance legislation where there is no possibility of ordering a lump sum. This was adverted to by the Oireachtas Committee on Marriage Breakdown in their discussions of the maintenance situation.
Just to elaborate on what Senator McGuinness has said — it is also possible that somebody may have substantial property or wealth and very little income. I am directly aware of a situation, not involving children outside marriage, but in the area of maintenance where because what was assumed to be family property was in the name of the father, including substantial amounts of money in bank accounts and where all the spouse has been entitled to is a share in his unemployment assistance. No orders can be made about the division unless the other party can prove that she contributed to the accumulation of that wealth.
There may be an argument about whether she did but most women accept that if a husband earns money and saves it, and the woman fulfils her traditional role of minding the home, in anybody's eyes she has contributed to the accumulation of that wealth.
Under the present law if the person has no income and a substantial amount of wealth there is no provision for a combination of a relatively low maintenance payment and a lump sum to be made. It seems to be a rank injustice that simply the absence of a minimum income can deprive a woman of the right to a lump sum payment which perhaps she contributed to or in this case which could make a substantial difference to the condition of the child. A limit of £30 for a child in the District Court is probably far less than the average District Justice spends on the support of one of his children. It is one of these rules we make for other people but which usually those who implement the rules would not believe in observing themselves.
A brief commentvisà-vis the proposal that a lump sum be available over and above periodic payments — it is not immediately relevant to this Bill. I would suggest that it would be relevant in a change of the code on general maintenance whose purpose was to amend the code specifically.
While I appreciate what the Minister is saying, at the same time it will be a long time before we get any legislation which will reform the maintenance code. It seems that the Minister has a perfect opportunity to amend the maintenance code in this way. I would ask her to take a look at it between now and Report Stage as she is going to have to consider many amendments. From practical experience as to how these cases work, often the case is that a lump sum is a help to an unmarried mother at the time of the application. While I am not suggesting that that lump sum should be allowed to buy off all the obligations, it seems she may be losing something by this well-meant amendment. I appreciate that the amendment of the maintenance as far the unmarried mother is concerned has a lot of advantages in changing it out of the present affiliation proceedings and that it is extremely well-meant. The provision of a lump sum is important.
In a recent Courts Act the Minister for Justice, Mr. Dukes, took the opportunity to amend the Guardianship of Infants Acts to improve the means of enforcing custody orders in the District Court. Despite the fact that that was not strictly relevant to the Bill in hand, if the Minister might take another look at it she might come around to our view that provision for a lump sum for either children of married mothers or children of unmarried mothers would be an advantage.
I take the point of the Senator's proposals but I cannot hold out any promises at this stage.
Amendments Nos. 6, 7 and 8 are consequential on amendments Nos. 5, 6, 7 and 8 may be discussed together.
I move amendment No. 5:
In page 16, between lines 20 and 21 insert a new subsection as follows:
"26. (1) The provisions of this part shall not apply to the will of a testator who dies before the commencement of this Act but shall apply to the will of every testator who died after such commencement, whether the will was executed before or after that time."
It is clear that amendments Nos. 6, 7 and 8 are consequential on amendment No. 5. So, if amendment No. 5 is not accepted Nos. 6, 7 and 8 will not be accepted. The effect of the section will be that from here on a will made after the passing of the Act will include children born outside marriage. A will made before the passing of the Act will still exclude the child born outside marriage. Our amendment would mean that where a person has died before the commencement of the Act, naturally even if his will has not yet been probated or the estate has not been distributed the section would not apply. It should apply to wills made after the Act. It will prolong unduly the distinction between legitimate and illegitimate children, which we are all anxious to dispose of, if we allow wills made before the Act to carry this interpretion into the future. For instance, a person making a will today, before the passing of the Act, may be aged anything over 18 or even younger if married under 18. Such person may not die for another 50 or 60 years and the will would still fall to be interpreted as distinguishing between legitimate and illegitimate offspring.
It can be argued that it is retrospective legislation to say that wills made before the Act should be affected by it. I appreciate this point but nevertheless I think that the basic reason why we tend to avoid making retrospective legislation is that it could be unjust to the people who are affected. The position would be that retrospective legislation might cause actual injustice. I cannot see how it would do so in this situation, provided it was handled in the proper way. If, for instance, the proper publicity was given to the legislation the public would be widely informed as to the nature of the interpretation of a will after the passing of the Act, so as to enable people to alter their wills if they wished or to look at their wills and see what the situation is. To allow the old interpretation to go on in any will that was made before the passing of the Act creates an injustice for the children which may be affected by it.
I would suggest that the Minister should accept the provisions of our amendment No. 5 and the consequential amendments in her revision of the Bill and to accept that this will need considerable publicity so that people know what they are doing when they have made wills and when they are making wills. The provisions of one's will is a matter that should be kept before people's minds at intervals throughout their lives. Just to say; "you made the will before the passing of the Act and therefore nothing can alter it" is a wrong way of looking at these wills. A will can be altered at any stage. People cannot bind themselves in separation agreements, or whatever, not to alter their wills. People are always free to alter their wills. Therefore, the justice done to the children affected would offset any possible injustice done by retrospective legislation of this kind. I would suggest that the amendment be accepted.
I am intrigued. When we discussed section 6 the Minister asked that we should not pursue the question of retrospection. Senator Robinson made a valid point that section 6, which would recognise that the children of void marriages were legitimate, did not have a date of coming into force. In fact, it was retrospective. All the children of all void marriages who currently are deemed to be illegitimate would become legitimate and, therefore, would have a legal claim on the estate of either parent, if section 6, as worded, came into force. Therefore, in the case of void marriages what was proposed was retrospective legislation giving people entitlement to the estate provided they were in this fortuitous circumstances of being deemed legitimate because they were the children of void marriages. Currently, they are not deemed legitimate and therefore have no claim on the estate of the father. Consequently it is difficult to understand the rationale behind section 26 and indeed, as Senator McGuinness quite rightly pointed out, for lay people to understand that the construction of a disposition means the interpretation of a will. It reminds one of the work of Freud interpreting dreams and it makes the lay person wary about treading this whole area at all.
Nevertheless, it is clear that part of the intent of section 26 is to ensure that this Bill has no retrospective effect. I cannot understand how section 6 can have apparently absolute and limitless retrospective effect when section 26 cannot and therefore it seems to me that the amendment proposed by Senator McGuinness and Senator Robinson, which I support, is a reasonable provision. It is also worth saying that perhaps as well as people being careful about how they draw up their wills, they ought to be a lot more careful about the circumstances in which they procreate children. That would avoid a considerable number of the embarrassments the retrospective effect of this section would have.
The aim of amendment No. 5 is to apply the new rule of construction being provided for in subsection (1) of this section to wills, whenever made, of testators who die after the commencement of this part of the Bill. This contrasts with the proposal in subsection (1) that the new rule of construction should apply only to wills, and other dispositions, made after the commencement of Part V of the Bill.
The amendment is unacceptable. Its effect would be to change the meaning of a will made before the commencement date if the testator dies after the commencement date, thus overriding the intentions of the testator at the time the will was drawn up.
The proposers of the amendment argue that testators will have adequate notice during the passage of this Bill through the Oireachtas to enable them, if they think fit, to alter their wills or make fresh wills restoring the original intent. This makes no allowance for those who for whatever reason, may be unaware of, or incapable of comprehending the nature of the changes being brought about by this part of the Bill. It would be wrong in principle that a person who, after having made a will, loses his mental faculties, should have the effect of his will changed in any respect by legislation. The question of constitutionality might also be raised, having regard to the provisions of Article 43 of the Constitution.
The same objection arises in relation to a proposal which would apply the effect of the amendment after a time-lag of, say, two years.
It appears to me that there is a problem thrown up. I am not hung up on the actual wording of this amendment at all and I believe considerably more work will have to be done on this section. What we are talking about is not the amendment itself but the principle involved. That is a lot more important and to say that it is inconsistent with something else is not to answer the question. None of us is that confident of our drafting ability that we expect the Minister to take on board the word for word amendments we put down here. A valid point is being raised by Senator McGuinness in this regard. If you take the section unamended and before actually considering what effect the amendments will have, it appears that where a person makes a will, for an undefinite period of time they can retain the operation of law as it existed prior to the enactment of this legislation. Not only can they do that, but they can do it notwithstanding the fact that they have added codicils to their wills in the meantime.
That goes considerably further than what the Minister said of protecting people against their wills being interpreted differently because of change of law. I accept the Minister has a valid point; that is the problem that must be tackled. It is not reasonable that where a person makes a will without certain knowledge — or it might be that the person would die just immediately after the coming into operation of this Act — the will would be interpreted in a fundamentally different way from what they intended. If the Minister were proposing safeguards which would guard against that I would support this and I am sure other people would support it also. If a testator states in a will, "I leave £10,000 to my eldest son" and if he did this on the understanding that his eldest son was John but if he had a non-marital child who was the elder, then at least he should be given the opportunity of reconsidering that. I understand that except I did not think anyone would doubt its validity. The Minister is going considerably further than that in resisting an amendment like this or resisting some amendment and saying, not that you would give them a chance to recast their wills to take into account the new change of circumstances but that the operation of this legislation can be postponed indefinitely for them by merely adding successive codicils to their wills. So anybody who has reached 18 years of age and wants to make a will now to leave everything to a husband or wife as the case may be, could be adding codicils to that will for the next 60 years thereby defeating the purpose of this legislation. I understand the objection might be raised that once the will is made there is no need to add codicils; the point I am making is that a person of 18 years can make a will now and can allow in the future for changing circumstances. As long as they do not make a new will and merely add codicils to the existing will, they may defeat the purpose of this legislation indefinitely, for the next 60 years. That is possible. The Minister who is a sensible person should try to consult about this problem and should come back to us with a solution to it. We are merely telling her what the problem is — it is up to her to find the solution.
There is, of course, a perfectly valid argument on the other side that people should not be taken unawares. What happened when the 1965 Succession Act came in? Am I right in saying that that Act came into operation after a lapse of two years? And it applied after that two years to everybody regardless of whether they had made a will previously.
There was an appointed date.
Yes, I think it was two years later. Would that not be acceptable? If the Minister could say that in respect of this section wills would no longer override the provisions of the section, for example, after a period of one year or two years after the commencement of the Act, that would allow the window which the Minister quite rightly points out is necessary in order that there would not be a misinterpretation of what people meant when they were making their wills on the one hand, but on the other hand will not perpetuate indefinitely into our law a two-stage system, a right for those people whose parents happen not to have made wills prior to the date of operation of the Bill and another set of rights totally different in respect of those who had made wills prior to that date. That might be in a short term, over a period of a year or two, sustainable but it is not sustainable in the long term. The Minister would have to recognise that there are problems there.
It is not a simple matter and we must protect people who have made their wills on one assumption. They must be protected against their wills being changed by operation of law without being given an opportunity of doing anything about it and, therefore, some buffer period is necessary. I accept that. The Minister should look at it again and may well have to go back to Cabinet on an issue like that. The Minister should do that and point out the problems. Is this to apply in ten years time, 20 years time, 30 years time or 40 years time to anybody who happens to have a will made? I have a will made and what this is proposing to do, if I was in a situation of having non-marital children, is to give me effectively an option to make a new will and bring myself within the scope of the Bill or to add codicils to my existing will and keep myself outside the provisions of this Bill. Surely that is not sensible or reasonable? The Minister should look at it again because it is not very appropriate. Having said that, I do not think the series of amendments, from a drafting point of view, are unalterable. I know the Senator is not worried about the drafting of the amendments. I support the principle of what she said very strongly.
I would certainly accept what Senator O'Leary said and I am not a bit hung up on the drafting at all. It is the principle of the thing I am talking about and, indeed, I would also accept his suggestion that by creating an appointed day one could delay the operation and give people time — that is perfectly fair — and that during that period of time there should be the maximum amount of publicity allowable. But, I really cannot accept the proposition put forward by the Minister that it may be unconstitutional to override the intention of a testator. What in heaven's name does the Succession Act, 1965 do only override the intentions of testators? That is the whole point of the Succession Act, 1965. Where testators have not provided for their spouses and children public policy should ensure that provision is made for the spouses and children. It would seem to me that to take constitutional interpretation to the length that legislation cannot override the intentions of a testator however ill-minded, spiteful or vindictive the intentions of a testator may be, is to carry the constitutional argument to an extreme which I simply find totally unacceptable. I would suggest that we are perfectly free in this House and the Dáil as an Oireachtas to override the intentions of testators where their intentions are contrary to public policy. We are suggesting in this Bill, rightly, that public policy demands that justice be done to children born outside wedlock.
I would certainly agree with Senator O'Leary that by leaving the section as it is and not amending it at all the cunning testator who realises that he can make a will before this Act and extend that will thereafter but not make a new will, can carry on the unjust discrimination between legitimate and illegitimate children which obtains in our present law for a period of 50 or 60 years after the coming into operation of this Act. I feel sure that, as Senator O'Leary said, the Minister is not only a sensible woman but is a woman who wants to do justice to children born outside marriage. I accept that. Having those sentiments and desires within her she should agree to have another look at this section and see whether it can be amended — not necessarily in the words that Senator Robinson and I have proposed. I am not at all proud of the wording and am quite humble about having it changed.
Again, I would accept the proposition that there should be a kind of pause before the coming into operation of the Act so as to allow people to look at their wills but I would certainly not accept that we must agree that a will that has already been made is such an important document and the rights of the person who makes that will are so important that they can be allowed to overcome both public policy and the rights of their children for ever, as it were. I would ask the Minister to look at this matter again and in her revision of the Bill to see if she can bring in an amendment which would accept the principle which we are proposing.
Senator O'Leary quite rightly said that the fact that one section of this Bill and another section conflicted was not really the issue. I simply inquired about that and wondered if there was a rationale which justified the apparently different treatment of two different categories of children. The Minister still has not told me whether there is or not but that is not the issue. We have to remember why we need legislation like this. We need legislation like this because there are a great number of fathers of children born outside wedlock who are unwilling to make provision in their wills for children they have been responsible for bringing into the world outside of marriage. If all of the fathers of illegitimate children or non-marital children — whatever we are going to call them — were to be well disposed towards those children, we would not need this legislation because they would by and large have made provision. If you leave the sort of exclusion here which would enable people, in the words of two very eminent lawyers, to add codicils to their wills indefinitely then those fathers who make such legislation necessary because of their unwillingness to take responsibility for non-marital children will be the ones who will use this section to further escape their responsibilities indefinitely, whereas those who accept their responsibilities would not need any such legislation as we have here in the first place because they could make provision if they wished.
I have listened to the debate and I have to come to the conclusion that there is more to this than the possibility of injustice to people making wills. I think we are into the sensitivities of large sections of Irish society about property and about the possibility of non-marital children emerging as collective family skeletons and, therefore, we are hoping to postpone this at least until another generation or something like this because this section as it stands will have no effect for anybody who is properly advised and those who have property by and large tend to be properly advised about how to dispose of their property under the law. There may well be individuals who will not be so advised but my view would be, listening to the discussion and to the Minister — not necessarily obviously through this amendment — unless there is a time limit after which this section has effect on all wills or something like that — the Succession Act, 1965 is the example that is quoted — is introduced for the cases in which this legislation is most needed, this legislation will have least effect.
This section deals with the manner in which expressions denoting family relationships are to be construed when used in dispositions of property, including wills. At present, when an expression denoting a family relationship is used in a disposition, that expression is interpreted as referring only to legitimate and legitimated persons and to those tracing their relationship through them, unless it appears from the language used that the contrary is intended. Subsection (1) reverses that rule of construction, and ensures that any expression denoting family relationships will be interpreted without regard to whether the parents of any person involved were married to each other, unless the contrary intention appears.
Thus, it is not at present necessary to use any special phraseology in order to confine a disposition to the legitimate (and legitimated) children of a person; the expression "to the children of Jones" normally has this effect at present. The only circumstances in which that expression, unqualified, could include illegitimate children are if the only children of Jones are illegitimate, and are alive at the time of making the disposition.
In a disposition made after this Part of the Bill comes into force, that expression, unqualified, will include all of Jones's children irrespective of whether Jones and the other parent of each child are or were ever married to each other; thus it would include marital and non-marital children. No doubt the drafters of dispositions will become adept at finding phrases or qualification which will serve to exclude non-marital children; but the effect of the change in the rules of construction brought about by this subsection will be to put those who would dispose of property, and their legal advisers, in the position where they must at least consider the position of any non-marital relatives, even if in the end they decide to exclude them from benefit. In the case of a testator who excludes his or her non-marital children from the will, of course, section 33 of the Bill makes it clear that the right of a testator's child to apply under section 117 of the Succession Act, 1965, for just provision out of the parent's estate will extend to all children of the testator, whether marital or non-marital. Certainly, in view of the debate and proposals put forward I will look again at the section in the light of the strong case made by Senator McGuinness. I will have consultations on it and come back to the Seanad again. But I am not giving any assurances at this stage.
I wish to make a comment which would not require the Minister's reply. It is in relation to the suggested possible obligations of a property kind that might be constitutional. I have heard this argument before. It is an argument that flows from the fact — something to which I made reference this morning — that the property defence sections of the Constitution both exist and have been tested and have been asserted whereas in relation to the question of children's rights they have to find themselves a strong constitutional expression. I am saying this to encourage the Minister to argue strongly against any suggestion that there is some kind of prior or more important significance that must be attached to this question of, let us say, intentionality in relation to making wills.
If you took that view you would make every piece of innovative social legislation conditional on the clause having been removed or amended in the basic constitutional document itself. The fact of the matter is that both in relation to equality provisions generally and children's provisions specifically we are entirely relying on the legislation to push us towards the point when in some kind of constitutional review we will find these rights more fundamentally expressed. Instead of regarding the fact that children's rights are not asserted in a strong constitutional sense while property rights are so asserted, we should in fact be using the legislation to push us in that direction constitutionally.
I suspect that is the Minister's inclination, from the way she has spoken so far in this debate. I support the Minister in that. I would urge her to resist giving an overweaning importance to this question of intentionality and the disposal of property, estates and so forth. It is a very arid kind of argument. It should not be allowed to cast its shadow at all over legislation like this. If we had allowed that consideration to prevail we would not have got so far as even printing this Bill. It was the principal logic that defeated a similar kind of legislation 12 years ago, in 1974, when everyone ran out of arguments. They were continually talking about literally the diffusion of the property of the estate through persons hopping into bed with each other. It was a most silly kind of argument. I would like to see the ghost of these overweaning property arguments laid to rest. The Minister has my support in whatever amendment she might come up with to meet the points raised by Senator McGuinness.
I would like to thank the Minister for her consideration in saying that she will look at this again. To re-encourage her I would point out that she referred to the possibility of these children making an application under section 117 of the Succession Act, 1965 which is covered in section 33 of this Bill and the very fact that she refers to this section bears out what we are saying. Section 117 of the Succession Act is a section which basically overrides the intentions of people who have made a will. Where a will has been made and a father or mother has made provision in the will of a certain kind for their child or children and other children feel that this is unjust, the courts are given power to amend the will and to redistribute the property among the children. There are many cases in a big body of case law about this particular section. It is a frequently used section. It is a very useful section and it was an excellent thing that it was included in the 1965 Act. I am delighted to see that it is being extended by this Act.
Section 33 particularly states that these applications may be made irrespective of whether the testator executed his will before or after the commencement of the said Part V, but it leaves out wills in respect of a testator who dies before the commencement of the said Part V. That is precisely what we are saying in our amendment, that we exclude wills where the testator has died before the commencement of the Act. We allow the will to be reinterpreted where the will has been executed before the Act. Basically, what the Minister was originally saying before she accepted the need to look at it again, was that in the case of interpretation of a will we cannot override the testator's intention if the will was made before the Act. But, in the case of overruling the will altogether under section 117, there is no problem about acting against wills that were made before the commencement of the Act. I would say that that is somewhat illogical. I would encourage the Minister — I am not asking her to reply to me again — to say to her advisers or the Cabinet that if they are prepared to do this in section 33 there is really no reason why they cannot do it in section 26.
I am opposing the amendment.
I am withdrawing the amendment on the undertaking by the Minister that she will look again at the matter.
I move amendment No. 9:
In page 17, lines 37 to 50, to delete subsection (1) and substitute the following subsections:
"27.—(1) For the purposes of the distribution of any real or personal property held on trust, personal representatives or trustees shall make reasonable enquiries to determine whether there exists any person (in addition to any person or persons known to him) who could claim an interest in the estate or property by reason of this Act.
(2) A trustee or personal representative shall be deemed to have made reasonable enquiries if he has caused a search to be made of the register of births and records of statutory declarations and court orders made in accordance with sections 5, 6, and 9 of this Act".
The explanatory memorandum on section 27 of the Bill states:
Section 27 (1) is in protection of personal representatives and trustees who will otherwise be under onerous and possibly embarrassing duties of inquiry to trace possible relatives born outside marriage of a deceased person.
The purpose of the amendment I have introduced is not to impose onerous or embarrassing duties on trustees but to vindicate the rights of children born outside marriage. My untrained legal mind understands that if a person dies intestate there is an obligation to make reasonable inquiries as to who might have a claim on the estate before the estate is disposed of. I do not understand why, in the case of reforming legislation which is intent on eliminating discrimination between children born inside and outside of marriage we should now build in a discriminatory clause which says that the trustees shall not be obliged to make any inquiries to discover if there are any children born outside marriage. I could have some sympathy for them on the grounds that the duties might be onerous. But it is a little prissy to suggest that because they might be embarrassing these duties should not be imposed upon them.
There is an argument against imposing a duty that they should make inquiries because of the burden of work. I believe that if a proper indexing of births and records of statutory declarations etc. were to be undertaken, such searches could be disposed of quite efficiently and quickly. The suggestion that there might be a substantial amount of work involved in preparing such indexes again calls into question the depth of our commitment to ending discrimination between children born within marriage and outside of marriage. Ending discrimination against any group in society is never easy. There is usually a history of discrimination. There are usually discriminatory references cast throughout the legislation in any area where groups are discriminated against. It is therefore inevitable that there will be consequential activities to be undertaken, some of which may be tedious, some of which may be onerous and difficult, but the fact that they are tedious, onerous, difficult or indeed embarrassing is not an excuse or a justification for not doing them if the alternative is to build into legislation new forms of discrimination against children born outside marriage. Therefore it seems to me that the suggestion that concern about the duties of the executors of estates or the possible embarrassment could justify continuing discrimination between the rights of children born within marriage and born outside marriage to the estate of the father, flies in the face of the spirit of this legislation. I have no particular issue with the wording of the amendment but I do not believe that you can claim to be committed to the spirit of this legislation and build in a new discrimination against children born outside marriage simply because of the burdens it may pose on trustees or because of possible embarrassment. They will just have to live with the embarrassment. The onerous burdens can be simplified by a proper indexing system undertaken by the State.
I would like to support Senator Ryan's amendment. Like the Senator I have no particular commitment to the actual wording but the aim of the amendment is a good one. He has expressed very well what the position is and what the purpose of the amendment is. The duties of executors, trustees and so on are quite often onerous in respect of property. We should not entirely hesitate to do something we think is right simply because we are putting a bit more work on to them.
Very often people under what is called the doctrine of constructive notice in law must make their own efforts to find out things. For instance, if one is conveying property one must make efforts to find out whether the house one is buying is a family home and affected by the family home protection legislation. Wringing your hands and saying, "I did not know that there was a wife in existence" or "I did not know that it was a family home," will not do you one bit of good in the courts if you have not made reasonable efforts to find out. There are plenty of other examples like that where the doctrine of constructive notice lies and which means that you should have had notice of the existence of a certain state of affairs if you had made reasonable efforts to find it out.
The law does not have any great difficulties in being able to decide whether reasonable efforts had been made. There might be a problem arising where a non-marital child might be left out and it might be argued that the trustee had not made reasonable efforts and the trustee would argue that he had made reasonable efforts. Such cases may arise but they arise in many situations where the court has to decide whether efforts are reasonable or unreasonable, whether a person has notice of a certain state of affairs or whether he ought to have had notice if he had made the proper inquiries or reasonable inquiries.
The fact of these questions arising should not deflect us from dealing with the matter in a system of justice. Therefore, some reasonable duty should be imposed on trustees to ensure they make the proper inquiries. This matter would be greatly simplified if there was a register of cases where paternity had been established or accepted in the case of children born ourside marriage. Just as one looks up burdens on the folio in the Land Registry for property, one would be able to make a search in this register and make sure that there was not in existence a child whose parentage had been either adjudicated by the court or acknowledged by the father, where there may have been a maintenance order made or whatever. I do not think that it is a duly onerous duty. I suggest that at least an amendment which puts forward the aim of this amendment should be accepted.
Some of the points raised by Senator McGuinness make for interesting thinking but I am opposing this amendment. It attempts to set up an alternative means of overcoming the problem which section 27 of the Bill is designed to tackle, that is the situation where the person administrating an estate or a trust feels obliged to make exhaustive or interminable inquiries as to the existence of relatives through a line involving parents who have not married each other. The difficulty is that an excess of zeal or scruples on the part of such a person could easily fritter away the property to be administered whereas, on the other hand, a cavalier approach could do injustice to a claimant related through such a link. Having said that, because of the shortness of time between putting down the amendment and the time we had to examine it, I ask Senator Ryan if he will consider withdrawing it to allow us an apportunity for further consideration of it and also of the points raised by Senator McGuinness.
I have no problem, with the permission of the House, in withdrawing it. I have a lot of sympathy with the Minister. I saw the final draft of my amendments only this morning as I was away and they did not arrive with my post in Cork. The Minister has my sympathy as she has the difficult task of convincing the Government as well as convincing us. I am not sure which is the more difficult task. I quite happily withdraw the amendment in the light of her interest in the area and her willingness to look at it again.
Amendment No. 11 is consequential on amendment No. 10 and they will be discussed together. If amendment No 10 falls, amendment No. 11 cannot be moved.
I move amendment No. 10:
In page 19, lines 18 and 19, to delete "one or more children who are non-marital children and"
The reason I have introduced this amendment is because Senators have received impressively detailed representations from Cherish, in particular, and from a number of other organisations on all of this Bill. A number of people have pointed out that it is difficult to understand the logic behind section 32 unless it is a deliberate attempt to actually discriminate between marital and non-marital children. As it stands, section 32, which proposes to amend the Act of 1965 reads as follows:
The Act of 1965 is hereby amended by the insertion after section 67 of the following section:
67A (1) This section applies in a case where an intestate dies leaving one or more children who are non-marital children.
It is quite astonishing that it is written in that fashion.
My amendment suggests that it be reworded to meet the objective. The objective, as explained in the explanatory memorandum says:
The court is being empowered to vary the application of the rules of distribution on intestacy if it is of the opinion that the applicant made a contribution of a substantial nature to the accumulation of the intestate's estate and that injustice would be caused by applying the normal rules.
I do not think anybody would take issue with that. There may well be a valid case in circumstances where an applicant has made a disproportionately large contribution to the accumulation of the property or the wealth and therefore, an injustice would be done by applying the normal rules of distribution. That is perfectly reasonable but there is no reason to suggest that that injustice would only apply in the case of non-marital children.
It would be equally true in the case of, for example, a farmer with six children, five of whom left home at 18 years and went to other employment, the sixth contributed and lived on the farm and then the farm was distributed equally between the six children because there was no will. In that case the person who had made the contribution to the farm has an equal claim that an injustice has been done. All my amendments simply suggest is that there should be a capacity to apply for a remedy for an injustice not just where non-marital children are involved but where any injustice involving distribution of the estate between children is involved.
As it stands, section 32 is grossly discriminatory against children who are non-marital. I would be interested, first of all, in hearing the rationale behind the section as it stands and I would be hopeful that the Minister, who is in a particularly benevolent and receptive mood this afternoon, will accept at least the principle. Again, we are not here to draft the details of commas and full stops in complex legislation. I cannot understand how a clearly discriminatory section like this could be justified in a Bill whose objective is to eliminate discrimination.
I support Senator Ryan's amendment. I can see what does lie behind what I see as a discrimination in this section, the idea being that it would be unjust to allow a child, who suddenly appeared and had no part in the family, to partake equally of an estate with children who perhaps, as suggested in Senator Ryan's example, had worked in a family farm or business and had contributed to the creation of the wealth that was the father's estate. Of course, I can see that people would worry about that and this is the kind of concern that is publicly expressed by a great many people about the passing of this Bill.
We would be blinding ourselves to reality if we did not recognise the fact that there is public concern that a non-marital child should be able subsequently to appear and take a share, say, in a family shop in the country which has been kept going by the labour of the wife and the marital children of the father. Certainly one can see why people should feel like that. Nevertheless I do not think that that justifies the discrimination as between children born inside and outside marriage which is contained in the section.
I support Senator Ryan in suggesting that this is a right which perhaps should be allowed to all children. In a way it is a right that is parallel to the right that is allowed under section 117 of the Succession Act, 1965 where a father has made perhaps an unjust distribution of his property among his children or, perhaps, as actually more frequently happens, he made his will a long time ago and the dispositions made in his will may have been just at the time he made it but by the time he dies — of course a will speaks from the day he is dead — it is an unjust disposition of his estate and therefore children can apply under section 117.
Here again one could get a situation where there would be an unjust distribution among the members of the ordinary married family, the wife and the children of the married family, which could arise either by accident or by vindictiveness on the part of the person who is making the will. Therefore, it is allowable to suggest that the kind of application on the grounds of injustice which is allowed for in this Bill is a reasonable power and application to allow, I appreciate that. I do not see why it should only be allowed in a case where one is trying to exclude a child born outside marriage and not in a case where the injustice arises between the children of the married family, I suggest that one can keep the good parts of this section, the fact that it will prevent injustice to people who have made a genuine contribution to the family property, while at the same time getting rid of the discrimination if one allows this kind of application in the case of children of a married family as well as in the case of children born outside marriage.
I suggest that the Minister should look at it in that light while using the section to allay public fears about injustice being done through the operation of this Act. We have got to accept that where people have worries of this kind we have to make not only legislative provision but public education provision to try to allay these worries and to try to create a situation where this Bill will not only be accepted when it becomes an Act as being the law as enforced through the courts but will also be accepted as being the law which people want to be enforced, the law which people regard as being a just law. There is a very big difference between the operation of a law that people see as being just and being reasonable and the operation of a law which people resent and try to evade. One could give numerous examples which I will not go into about that. I suggest that we need perhaps the provision about injustice in order to help the acceptability of the Bill as a whole and to help the lay people's fears. Nonetheless, in trying to do that — I can see what the Minister is trying to do — we should not step outside the bounds of that and move into the injustice of discriminating between the child born outside marriage and the child born within marriage.
I support the principle behind this amendment. It is a lot more complicated even than might appear at first reading because the discrimination is not really between marital and non-marital children. In the unamended section what is permitted is an application by either; the same right is given to marital and non-marital children. It is only given to children in respect of families where there is a non-marital child. I want to make it clear that anybody can make the application. The non-marital child can make the application, one of the other children, or the spouse can make the application. The spouse has his or her own rights.
In the situation there is a precondition that it applies where there is an intestacy and a non-marital child. When there is an intestacy and a non-marital child and there are two marital children who are disputing the division of the estate, with no reference whatsoever to the non-marital child, an application can be made by one of the marital children under this section which has nothing whatsoever to do with the non-marital child. The non-marital child does not come into it all, has no involvement one way or the other, in the application, is not interested in the application, does not care what happens the money, the farm or the property. In that situation where the marital children are fighting with each other one can make the application and say: "I built up this business, land, farm or whatever it was with my father" or "my mother" as the case may be "and as a result of that I am entitled to an enhanced share."
I am not objecting to the principle of an enhanced share, which I will come to when we are discussing the section, I am objecting to the fact that we are dividing families into two categories, one category where it is exclusively marital children and the other category where there is marital and non-marital children. We are giving the children of the mixed family situation, and each and every one of them, not just the non-marital children, superior rights in intestacy to what we are giving to the marital children or the children of the completely marital family.
The thing makes no sense at all. I do not see how we could argue that that is reasonable or rational. I could understand the situation if we were dealing with a potential conflict between the marital children and non-marital children within the same family or deriving from the same parents. I can understand that there is maybe the necessity to balance one with the other. I cannot understand how the mere existence of a non-marital child somehow creates between two other children, both of whom are marital, some kind of an additional and superior right that one of them can make an application to the court for a contribution on the basis that they had 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.
I am certainly not objecting to the principle behind it. The Minister is to be congratulated on the principle behind it. It is an excellent one. In my view it is a principle which is additional to, and goes substantially further than, section 117 because all section 117 talks about is making just provision for your children. That is quite a different thing. This says that I am entitled to more money because I made a contribution to the building up of the estate. It appears to me to be very logical and sensible. I am sure there are people who are involved in family businesses and who worked for many years in those family businesses. If their parents ignored the fact that they had worked in the family business for many years and built it up and left it to another member of the family or left them only an equal share they would have a legitimate grievance at that stage. The amendment makes an attempt to redress this situation. I cannot understand why this should only apply to the issue of fathers and mothers who have non-marital children and why it should not apply generally. For that reason the Minister should look again at the section, not with regard to the question of whether it is a good idea to have an application of this type, but to ensure that it will apply equally to both categories of families, one family made up exclusively of children who are marital children and the other made up partly of marital children and partly of non-marital children. For that reason the amendment should be supported. I look forward to the Minister's indication that she will consider an amendment of this kind at Report Stage.
I thank Senators Ryan, O'Leary and McGuinness. I would like to assure the Senators that a great deal of thought and consideration went into this matter. The line taken in the Bill was the one that it was decided was the most appropriate. I oppose the amendment. The intended effect of these amendments is presumably to enable the application to be made to court under this section in every case where a parent dies intestate. It is a cardinal principle of the rules of distribution on intestacy, as expressed in the Succession Act, 1965, that they should operate with certainty and with the minimum of recourse to the courts. What the 1965 Act does is to set out which relatives are entitled to what share of the estate of a deceased intestate. If those relatives agree among themselves that the estate will be distributed in some other way, they may do so, as, for instance, where the widow and children agree that the family farm will go to the youngest son or indeed the oldest son. If they cannot agree, then there is no scope for argument as to what shares go to whom. All of that is set out unambiguously in part VI of the Succession Act. Thus the scope for litigation, which can sometimes be so costly as to fritter away the entire estate, is greatly diminished.
It is against this background that section 32 of the Bill must be considered. There are many family enterprises in this country, where a business, be it a shop, a farm or a factory, is run by the father and mother, and as the children grow up they take an increasingly active role in the operation and building up of the enterprise. The distribution of the estate on intestacy in accordance with the existing rules will, by and large, do justice as between the members of the family based on marriage in the typical family enterprise.
Now that the effects of those rules of distribution on intestacy is being changed to encompass relatives whose parents have not married each other, situations are likely to arise where the existence of a non-marital child of the deceased intestate with a right to claim on the estate will give rise to an understandable feeling of unfairness on the part of the surviving spouse or members of the deceased's family who have been involved in building up the deceased's estate.
The converse situation can, of course, also arise — I do not think this came up in the debate — where it is the children of a family not based on marriage who have contributed to the building up of the estate and who would be living with the father who would have children of a marriage and those children would resent having to meet the claims of the earlier family based on marriage of the deceased, so it is two edged in its application of justice.
Section 32 of the Bill has been devised so as to interfere as little as possible with the principle of certainty of operation of the rules of distribution on intestacy, while at the same time enabling justice to be done in cases where there is a claim of interests between the deceased's family based on marriage and his non-marital children arising from the fact that one family contributed to the building up of the deceased's estate and the other family did not.
Strictly speaking, I have to say the only two logical courses are not to have any provision of this kind or to allow the right of application in all cases as proposed in the amendment. However, the disadvantages of the latter course are very considerable, so much so that it would undermine the basic principle of certainty in the rules on intestacy in the 1965 Act.
I would like to come back to the Minister about that. The principle of certainty is a good principle but there is also the principle of justice. Nobody wants to see estates being frittered away in unnecessary litigation. I do not quite see why it is all right to allow estates to be frittered away in litigation where there is a non-marital child but it is not all right to allow them to be frittered away where there are only marital children. This is basically the point that was being made by Senator O'Leary. Where you have a non-marital child in the family this section can be made use of by any one in the family. That has the disadvantage of uncertainty, the disadvantage of the possibility of the estate being frittered away through unnecessary litigation. Those are quite substantial disadvantages and I appreciate that.
The trouble is that we are accepting that these disadvantages are all right where there is a non-marital child whereas we will not accept them as being all right in the situation where there is no non-marital child. If we look at section 117, which deals with the situation where there is a will made, in a sense we are doing away with the principle of certainty because, after all, in the old days the principle of certainty that applied was where the father left a will and the estate was distributed according to his will even if he left everything to the dogs' and cats' home and left nothing to his spouse and children, It was certainly all right but it might not be just.
We accepted in section 117 of the 1965 Act — no doubt there were protests about it at the time on the grounds that we were interferring with people's liberty to leave their property as they wished — the setting up of a situation which is one of basic uncertainty, that where a person has left his property in a certain way in his will that may be challenged by his children in court. Yet, here we are saying that where it is intestacy, as opposed to where a person dies testate, we must not create uncertainty and we must not create a principle where the rules of intestacy are interfered with except, of course, where there is a non-marital child. This is an area of discrimination because we are discriminating either for or against families that have non-marital children as opposed to families that have marital children only depending on whether we think this is an advantage to be able to apply under this section or a disadvantage to be able to apply under this section.
While I appreciate the importance of the principle of certainty I do not accept that the principle of certainty ought to be able to override the equity of the situation because one can have certainty that is completely wrong so far as justice and equity are concerned.
The Minister mentioned the example of where children work in the family business. It may well be — and I am sure it is the experience of a great number of us in knowing families in rural areas — that there will be a family of six or seven children where there is a grocery business, petrol station or general stores and where the parents make great efforts to educate a number of their children to take up professions. They may become priests or doctors and so on. They leave the family home and have their own way of earning money. Perhaps two or three of the children remain at home and run the business. If the father dies intestate the business falls to be distributed equally between all the children. There may then be a situation of injustice. The rule of certainty does not necessarily do justice in the family business situation. I suggest that by offering both marital and non-marital children the opportunity to apply under a section like this and denying that opportunity in the situation where there are marital children only, we are discriminating. I do not think that the virtues of the principle of certainty are such that we should allow them override the principles of equity which are attached by the present section.
Am I right in saying that where there are non-marital children that two of the marital children can have a dispute among themselves based on this section?
Is that not daft? If there is a dispute between two marital children about the distribution of an estate at any time in the future it would be in the interest of the other person to check around and see if there is a non-marital child even if a non-marital child was never heard of. All one has to do is make an allegation that there was a non-marital child even though the non-marital child does not enter into the dispute at all and has no interest one way or the other. One only has to show on the balance of probabilities that there was an non-marital child.
What about wealthy relations?
I certainly will not be looking for them because I have no wealthy relations but those of you with wealthy relations might be looking for them.
Or your children.
They can share. I will try to ensure that there is enough there for them to fight over.
I got the impression you already had enough.
It is a question of certainty. In those circumstances another extreme doubt will be raised in cases where non-marital children do not enter into it at all. Two members of a family will fight over an estate and when that happens they will fight until the estate runs out of money. Then they will borrow money and fight even more.
In an intestacy case, they will not.
They will because one of them is going to do their damnest to show that there were non-marital children and that they can make an application under this section.
They would have to be well authenticated.
It is going to take a long time and many court hearings to find out whether their deceased father had a non-marital child.
That is stretching the imagination.
No, it is not stretching the imagination. That is the way these people will work. They will use every trick to try to get one over on their brothers and sisters. That is life. What the Minister says about certainty is right but what is right also is that when families are fighting over the property of their parents there is nothing they will not do in order to prove their point of view.
This is a very good idea but why can we not apply it to everybody? We already have applications under section 117. Everybody thought we were going to have a load of applications under that section. Where there is a will and a child feels discriminated against, he can go to court and say he has been badly treated under the will. The number of applications is minimal because a pattern has developed. People are well advised and can be told there is no possibility of succeeding. The same thing would apply here. If people are given the right to go in on an intestacy and make an application if they have made a contribution of a substantial nature, firstly it is not going to apply to the brother in the Civil Service or to the brother in the Garda, it is only going to apply to the person who stayed at home. He is the person who is going to get the benefit of it.
The number of people who would have a possibility of applying under this section would be limited enough. If it is institutionalised as applying to all estates a far greater degree of certainty would be introduced and people will accommodate it. Families will come to an agreement on the basis that if they do not come to an agreement an application of this kind will be made. That will help them towards coming to an agreement.
What is going to add a greater degree of uncertainty is if you have the rule which applies if there was a non-marital child and does not apply if there was not a non-marital child. That is adding more uncertainty to it. In the circumstances the Minister should have another look at it. On Report Stage I will be putting down an amendment of like effect to that which Senator Ryan has put down. I hope the Minister will have a look at this aspect in the meantime because it cries out for a bit of commonsense. If you have a good idea why apply it to only some of the estates?
I do not understand how one can justify an injustice by saying that one injustice is being introduced to minimise another injustice. There are sensitivities involved in this area of giving the rights of succession to non-marital children. If there were no problems we would not need legislation like this. If there was no question of sensitivities, of pride, of the significance of marital children and of non-marital children, of a whole history of discrimination and of us excusing the sins of adults by branding their children, we would not have the requirement to have this kind of legislation. If we are going to introduce this legislation we should not introduce phrases and sections which build in a form of discrimination however well intentioned, however sincere or justified the fears or however concerned the marital family may be. The solution to their fears can never be based on a different kind of injustice. On that basis I have to insist on the amendment.
Furthermore, Senator O'Leary raised a very valid point about the current phraseology of this amendment. The country will be awash with people searching out non-marital children of their parents in an endeavour to enable themselves to be encompassed within this amended; section of the Succession Act, 1965. If they are fortunate enough to discover a non-marital child then they can argue about injustice. If they cannot find a non-marital child, they cannot argue. That is ludicrous. The Minister may say that it is an unlikely event but I have heard two lawyers say today that persons who are disputing a will or fighting over an estate do the most extraordinary things, even incurring debt beyond the value of the estate. It seems to be part of the common experience of lawyers. Therefore, to leave it as it is is to leave a whole host of possibilities looming in front of us.
There is a distinction being built into this legislation between marital and non-marital children. The intention may not be to build in an injustice but there is a distinction in law between marital and non-marital children which the Minister has indicated was the intention of this section. The fact that the section as it is drafted is doing things that were not intended in the first place is beside the point. The intention is to give a certain distinction in law between marital and non-marital children. That is wrong when the intent of the legislation is to do the opposite.
The section is sloppily drafted. It confirms my suspicion that Ministers should be very wary of quoting parliamentary draftsmen as authorities because their capacity to produce gobbledegook seems to extend by the day. Senator O'Leary quite rightly interpreted this section — it is open to a meaning and intent that is the direct opposite of what the Minister had in mind. I appeal to the Minister not necessarily to accept this amendment but to reconsider that section and to do what Senator O'Leary so eloquently proposed, which is, to have it apply to all children and not just to certain categories of children. I do not think the number of uncertainties justifies the strange phraseology.
In deference to the views put forward, I shall have this matter examined further. Senator O'Leary made a strong case for dropping the section. Given the discriminatory element that remains in the section we must consider whether it should be dropped completely rather than extended as proposed in the amendment.
As Senator Robinson said, the only appropriate qualification she attached to all agreements this morning. I am attaching a similar one this evening.
Would the Minister comment on section 35? It deals with the exclusion of an unworthy father to succeed on the intestacy of a non-marital child. I am not necessarily against the section but I would like to hear the Minister's comments, on it.
This section of the Bill inserts a new section 120A into the Succession Act, 1965, the aim of which is to exclude the father of an intestate non-marital child from succeeding to the child's estate in certain circumstances where the father did not make a contribution of a substantial nature towards the upbringing of the child.
Subsection (1) of the new section specifies the terms of the declaration which the court may make, and prescribes the circumstances under which the declaration may be made. The main consideration specified in the subsection is whether the father made a contribution of a substantial nature to the child's upbringing, and the court must also consider whether the making of a declaration would be just, having regard to any circumstances it considers appropriate.
The effect of a declaration is specified in subsection (2): the father loses the share of the estate to which he would otherwise be entitled on the child's intestacy, and the estate is distributed as if he had died before the deceased. The normal rules of distribution on intestacy would enable a father to share in his child's intestacy only if the child was not survived by a spouse or issue, and of course a declaration under this section will only be of some effect in such circumstances. In such a case, the father and mother would share equally, if the mother was still alive. Otherwise the father would take the entire estate. The effect of an order under this section would be that the child's mother, if living, would be entitled to the entire estate; or else, if she had not survived the child, the child's brothers and sisters, including half-brothers and half-sisters who were the children of the father, would share equally in the estate.
Would the Minister read the last sentence again?
The effect of an order under this section would be that the child's mother, if living, would be entitled to the entire estate; or else, if she had not survived the child, the child's brothers and sisters, including half-brothers and half-sisters who were the children of the father, would share equally in the estate.
Subsections (3), (4) and (6) of the new section are provisions similar to those which apply to applications under section 117 — proper provision for child of testator.
Subsection (5) specifies that any person, other than the father, may apply for an order under the section who is entitled to share on the intestacy, or who would be entitled to share if an order under the section were made.
This inclusion of a provision of this nature in the Bill reflects the view of the Government that it is unacceptable that, in the "typical" case where a man begets a child outside marriage but refuses to have anything to do with the child's upbringing, he should be in a position to benefit from that child's death. It is important to note, however, that this section will only have significant effect if the child dies intestate before his father, and is relatively wealthy, and if the father can, after having had little or nothing to do with the child during its lifetime, show that he is in fact the father.
I am not opposing this section. It is obvious that it will apply only in a minority of cases. As the Minister pointed out, it is of no importance except in the case where (a) the child dies before the father and (b) the child has much money — in the average case that does not happen — and also where the father has had nothing to do with the child. Very often a child brought up by a mother on her own is not the kind of person who will have much property that anyone would wish to succeed to. There will undoubtedly be a few cases.
There is a query I would raise with the Minister. It is always assumed in these cases that the father abandons the child or the unmarried mother and has nothing to do with the upbringing of the child. Supposing you had a case where the father took over the child at the time of birth or, as is a common situation, where the people were cohabiting at the time of the child's birth and they brought the child up well together but then the cohabitation split up, say, the father got custody of the child, or the father by agreement minded the child, and the mother took no interest whatsoever in the child, why can mothers never be unworthy? It is not that I like to say these things, because I am a mother. There are unworthy mothers in this world, it is an imperfect world. It is a bit harsh on the wretched fathers that they should always be assumed to be the ones who are unworthy and uncaring about their children. Now and again one might find that it was the father who had done all the minding and not the mother. The mother would then be left with the right to succeed whereas in a similar situation the father would not have the right because he would be declared to be unworthy.
There would be a certain reluctance to extend this but it could be considered.
I note that section 36 does not appear in the memorandum. The Minister will be pleased to know that I am not interested in the Provident Nominations and Small Intestacies Act, 1883. I am interested in paragraph (g) of the Local Government (Superannuation) Act, 1956, in the words "or, in the case of the illegitimacy of the deceased, to or among such persons as the local authority think fit," in section 61 (1) (e). What is the effect of that?
This section provides for certain repeals in existing law necessitated by the other provisions of this part of the Bill. Most of these repeals, those of paragraphs (a), (b), (c), (d), (e) and (g), are of a similar nature. They relate to the disposal of small sums which are either on deposit with minor financial institutions or benefits of pension schemes on the death intestate of the depositor or pension holder. The principle is that on the death of the person involved the provident society or pension fund can distribute the small sum involved among that person's relatives in accordance with the rules of distribution on intestacy without the need for the relatives to go through the formality of taking out letters of administration. These rules do not at present take cognisance of illegitimacy on the part of the person involved or any offspring. Hence, there has been a special power given to the financial body to dispose of the money in such cases as they see fit. Presumably, the thinking is that the body can be relied upon to do the right thing in each case depending on the individual circumstances.
I thank the Minister. I understand it and I agree with it. The Minister might at some time have a further look at the reference to the Local Government (Superannuation) Act, 1956, and tell us if there is a financial implication in the enactment of this legislation for superannuation schemes generally in public authorities. In the case of certain retired persons they are entitled to increases in respect of children who are under a particular age. Will they be entitled to that in respect of non-marital children or do they have some entitlement at present?
The entitlements are already there. It is only a question of distribution.
That is fine.
Amendments Nos. 12, 13 and 14 to be discussed together. Amendments Nos. 13 and 14 can only be moved if amendment No. 12 is withdrawn.
Our spokesman on this Bill is Senator Eoin Ryan. He is not here today; he is away on business. He suggested that we withdraw amendment No. 12 and put it in again on Report Stage.
I move amendment No. 13:
In page 22, subsection (1), line 23, after "is" to insert "or was".
The intent of my two amendments is exactly the same as the intent of the amendment Senator Eoin Ryan had in mind — to allow declarations of parentage to be made in the case of persons who are deceased. I have no reason to believe the country will be inundated with people seeking to have declarations that deceased persons were their parents. On the other hand, I have no reason to believe there is any huge interest involved which would be threatened by allowing people to have a determination made where possible that a deceased person was their father or mother. I envisage circumstances under which an injustice might be done if a person could not have that determination made.
I move these amendments and all the amendments in the spirit in which this debate is being conducted, not with some sort of commitment to the words or the wording, but in an endeavour to open up this debate on the question of why deceased persons are explicitly excluded by the wording of the section as it stands. There are injustices that could be avoided or perpetuated by the section as it stands. Therefore, I suggest that there is a good case that deceased persons should not be excluded from declarations of parentage. There are circumstances where an injustice, particularly in the question of a division of an estate, could arise. The section, rather than being limited in scope for reasons of administrative convenience, should apply to deceased as well as to living persons. There may be a case, if we are going to agree that it should apply to persons who are deceased, for introducing a time limit before which it should not apply. I do not think there is an overwhelming case, given the motivation behind this entire legislation, for total exclusion of persons because they are deceased.
I would like to express support for Senator Ryan's amendments. It is possible that an injustice may be done by excluding cases where the father is deceased. If such were to be done, it would be necessary to introduce a time limit because otherwise one could get into an area where they were trying to establish the truth or untruth of something which happened far too long ago for the proper evidence to be available. That would create problems where, to put it coarsely, a person was freshly deceased rather than somebody who had been deceased for a very long time. The courts would have to be careful in adjudging such an application because in the case of a deceased person one cannot offer the constitutional safeguard ofaudi alteram partem— the hearing of the other side — in the matter when the other side of the matter is a deceased person. There would have to be special rules of court or special rules of evidence that would apply in this case. It is not that simple to deal with questions where the parents are deceased. On the other hand, I appreciate that injustices may arise and I would like the matter to be considered at least between now and Report Stage. However, I appreciate the difficulties involved.
These amendments point up the fact that section 39 of the Bill, on its face, does not cover applications for a declaration that a deceased person was a parent.
It is important that Senators be aware that the procedure for declarations of parentage in section 39 is designed for use where no other relief is sought. Thus, if one wants to establish that a deceased person was a parent for the purpose of claiming a share of the estate, it will, as at present, be possible to have that fact established in succession proceedings, without the need to involve this new procedure. It is difficult to imagine circumstances where a person might need to involve the section 39 procedure after the death of the parent, except to satisfy an emotional or psychological need. This, of course, is just as good a reason as any, and for this reason I am prepared to consider the principle, at least, of Senator Brendan Ryan's two amendments, numbers 13 and 14. The draftsman has pointed out a number of technical implications, however, which would need to be examined at some length; and there are other places in the section, for instance, subsection (7) where the change would need to be carried through. Perhaps Senator Brendan Ryan would consider withdrawing these amendments in order to allow time between now and Report Stage for further consideration, and, if necessary, redrafting of amendments if appropriate.
I was about to say that I am quite happy to withdraw the amendments.
Amendment 15, the substitute amendment, Senator Brendan Ryan.
I move amendment No. 15:
In page 22, lines 31 to 35, to delete subsection (3).
I wish to apologise to the House. The reason for this substitute amendment is because the amendment that was down in my name on the original list of amendments was incorrect because I supplied the incorrect subsection number. It was not a typing error or an error of the staff of the House. It was an error on my own part and, therefore, I am not sure if I need permission to introduce the substitute amendment.
The Senator is a humble man.
The Leas-Chathaoirleach of all people should be in a position to be aware that I am not a humble person. In fact, it is my certain knowledge that there are no humble people in either House of the Oireachtas. It is not a place in which the virtue of humility is either approved of or practised.
I move this amendment not with any passionate zeal but because I have a certain unwillingness to allow the courts to take these decisions. Section 39 (3) states and I quote:
Where a person makes an application for a declaration under this section by his next friend the Court shall refuse to hear or refuse to continue hearing, as the case may be, the application if at any stage the Court considers that it would be against the interests of the applicant to determine the application.
That effectively applies to persons who are minors and where applications are being made on their behalf. It sounds like a very good idea, but it does have an overwhelming sense of the patronising way in which the courts will look after your interests. I would prefer it to be worked in some other way. I do not like this idea that just because the courts see fit and believe it would be against the interests of the applicant the whole application can be disposed of. Perhaps, the conditions under which an application can be refused or a hearing terminated should be elaborated upon. I put in the amendment to delete the subsection in order to concentrate our discussions on the precise problem. The subsection gives a huge discretion to courts, which may not necessarily operate in the way in which the subsection was intended.
I am glad that Senator B. Ryan has explained his reason for putting down the amendment in this way because to delete this section would be to leave a weakness in that there can be situations where it might not be in the interests of the applicant to determine the application. There has to be some kind of mechanism for dealing with it. I see what the subsection is getting at, but I would like to refer to this in a more general situation.
This kind of thing arises quite often, under the Guardianship of Infants Act, 1964. The courts are the people who have to make the determination as to what is in the child's interests. It can also arise under the adoption Acts because the courts are given the duty of deciding what is in the best interests and welfare of the child and there are other Statutes under which it can arise. By and large, I would admit that the courts make every effort to decide what is justly and properly in the best interests of the child and I am sure they will do so in this sort of case, but they are limited by the evidence available to them, by who is providing the evidence and so on. There is an arguable case for allowing a sort ofguardian ad litem or some kind of person who could be appointed as acting for the child in cases where the child's interest is at stake so that the child's case might be put more directly, than simply leaving the courts to be the arbitrator of the child's welfare, when the court itself cannot move to get the evidence it may feel is vitally necessary in the case. The court is dependent on the evidence brought by the other parties. I cannot in all seriousness ask the Minister to bring in this entire change in court procedure in one subsection in one Bill which is dealing with something else. People are talking in terms of introducing new family law legislation and I have no doubt that the Minister will be involved in that kind of thing. I am putting in my word now, that this is an area which needs to be looked at — how the court can decide what is the welfare of the applicant or the welfare of the minor applicant, or the welfare of the child when sometimes the right evidence is not available to the court. I would ask the Minister to simply consider that situation in general.
The general aim of many of the provisions of section 39 is to ensure that the self image and personal integrity of the person whose parentage is at issue is safeguarded. The particular purpose of subsection (3) which Senator Ryan proposes to delete is to cater for the situation where a child is living in circumstances where it enjoys a secure and contented childhood in some arrangement which ignores or conceals the true facts. But that security and contentment is liable to be shattered by an application taken on the child's behalf by an adult relative who may not have the child's interests at heart. For instance, it may be most disturbing for a child to discover at a tender age that he was begotten as a result of an incestuous act and that his father is also his grandfather, but it is conceivable that a relative acting on a child's behalf might apply for a declaration of parentage in a vindictive fashion aimed at the father without consideration for the child's interests. Subsection (3) protects those interests by giving the court the power to refuse to hear or refuse to continue hearing an application taken on behalf of a minor child in cases where to let the application proceed would be counter to the child's interests. This is too valuable a protection to drop and I am, therefore, opposing this amendment. It is difficult to draw up any set of criteria which would at the same time include all appropriate circumstances and exclude all inappropriate ones. The general formula of "the interests of the child" is intended to cover everything.
As amendment No. 16 is consequential on amendment No. 17, amendments Nos. 16 and 17 may be discussed together.
As in the case of amendment No. 12 under this section, Senator Eoin Ryan intends to place these amendments at Report Stage. Therefore we now withdraw them.
While I understand that Senator Eoin Ryan is not here to move his amendments, I would like to comment on the section where it has been suggested by both Senators Ryan that we should allow for applications where the person is dead. The amendment which Senator Eoin Ryan was going to propose is a reasonable consequence on that. If the Minister is going to reconsider the section with regard to dealing with applications where the father is dead or the parents are dead, the suggestion made by Senator Eoin Ryan is one that could be borne in mind because it seems to make considerable sense. I am not moving the amendment on his behalf.
Section 43 deals with consent to the taking of a blood sample. Subsection (1) provides that a blood sample shall not be taken from a person except with his consent. Under subsection (2) the consent of a person who is not of full age will be valid if, in the court's view, he is capable of giving or refusing the necessary consent. Subsection (3) specifies who can give consent on behalf of a person who has not got the legal capacity to do so himself. I am not interested in subsections (2) and (3) which are consequential on subsection (1). I am interested in the rationale behind the provision whereby a person can refuse to give a blood sample in the case of civil proceedings before a court. I realise, of course, that the giving of a blood sample is not something that should be insisted upon too readily. We are not talking about a situation where the person who is initiating the proceedings directs that he or she needs, in order to complete his proofs, a blood test. We are talking about a situation where, for the purpose of the proceedings, the court directs that a blood test would be in order.
Section 42 which we have already passed, states and I quote:
In any civil proceedings ... the court may, either of its own motion or on an application by any party to the proceedings, give a direction for the use of blood tests ...
That is a pre-condition for the coming into operation of the provisions of section 43. It applies only where the court has already decided that they need blood tests. I do not understand why there should not be an obligation on somebody in such circumstances to give a blood sample. These are very important matters. I am quite happy that the court is not going to make such an order lightly.
A person is required to give a blood or a urine sample if stopped while driving a motor vehicle by a member of the Garda Síochána who form an opinion that the person is not capable of driving. Such person must give a blood sample or a urine sample. Here we are talking about a much more limited situation. We are talking about where a court on its own motion or on the application of any party gives a direction for the use of blood tests. If we are serious about this we should give to the court the power to insist, a power that the court will use at its direction. If you had the rather bizarre situation where a person was a haemophiliac the court, in those circumstances, would not order a blood test.
Leaving aside those exceptional matters we can leave it to the good sense of the court to adjudicate on those matters. I see no reason why in civil proceedings, where the court so decides and where it is a matter of extreme importance, the court could not direct that a blood sample would be required. Take the situation where there is a question of disputed parentage. Take the more normal situation where a woman is alleging that the father of her child is a particular individual. When put on the scales how important is it that the court should arrive at the right and just decision with regard to that application? It could be very important indeed as far as the child is concerned. Would it be as important as the case of a person who drove while over the alcohol limit who would be convicted and banned from driving for six months? Which is more important to society? It is much more important to that child to establish his position. I am not assuming that every person alleged to be a father is automatically the father. I am not in any way blaming the father. It could be very important to that child in material terms of pounds, shillings and pence and in terms of its social niche. In money matters it could make a difference between that child being well looked after or living on social welfare. That could be the scale of difference. What is the objection to having, subject to the direction of the court, a blood sample taken from a fugitive father? It would apply only where they get a direction from the court. If it establishes to the satisfaction of the court whether a particular person is the parent, then that is excellent.
We have already been informed on some other Bill which came before us, about the matter of blood tests. Blood tests are not only of the old kind which categorised people into various blood groups. There are more sophisticated blood tests that were mentioned during the Kerry Babies Tribunal which can with great certainty determine who the parents are. In the debate on some other legislation I asked the Minister responsible — I think it was the Minister for Justice — and he confirmed on that occasion that the term "blood tests" included this more sophisticated test. I do not see anything wrong with insisting that the court should have the option open to it to insist on a blood sample being taken, the inconvenience for the person giving the blood is so small compared to the possible injustice that could be done.
It is not sensible or proper that such a provision should be written into the law. I ask the Minister to look again at it to see whether it is possible to redraft section 43 or get rid of it or do whatever is necessary in order to give effect to what is the only reasonable position that a court should be in a position to insist on blood tests. I do not see anything wrong with that. I fail to see why anyone could object to it. The only objection one could possibly have to it is if one does not want people to find out. It should be open to the court to direct that a blood test should be given. I support the amendment.
I am glad Senator O'Leary raised that point because I had lost track of this Bill and I was searching for that section, both the reference to the direction by the court, the consent and also the inference under section 46 which the court may draw from a refusal to give consent. I look forward to the Minister's reply. I do not understand why such an unqualified right to refuse can be given to a person to undergo a blood test. As it stands under other legislation a citizen who a member of the Garda Síochána has reason to believe is under the influence of alcohol, can be required to submit to a blood test.
"Who has formed an opinion."
But under the Criminal Justice Act which we went through at great length in this House and which Senator O'Leary remembers fairly well——
I do indeed.
——a garda who has a reasonable suspicion may under certain circumstances insist on taking my finger prints, insist on searching me, photographing me and may and with another level of approval, insist on my removing my clothes. So, I can be strip-searched and I have no right to refuse. The circumstances are limited, they are there but no court is involved. If at a pre-court system all those things can be done, I do not understand why at court level we suddenly say that a court cannot insist that a person who has no legitimate reason in the eyes of the court for refusing a blood test, can do so. The court must recognise, as Senator O'Leary said, the extreme case of a haemophiliac. There would be other people who have problems with phobiaset cetera. Any exclusion clause is liable to abuse but any exclusion clause which a court is allowed to interpret is less sweeping than simply saying that that person must consent. I do not understand why a person must consent. A person should have the right to decline a blood test if there is a legitimate reason in the eyes of the court which could justify it.
A person who is involved in a case to determine parentage should not be allowed to say "no". It is inadequate to go on and say that the court may draw such inference as appear proper in the circumstances. Blood tests, subject to a reasonable provision which is contained in section 42 (1) to protect that tiny minority of people who are seriously threatened by a blood test, should be obligatory and the court should have the right to insist upon a blood test. In fact, there should be a penalty for people who refuse to comply with the direction of the court that a blood test which is necessary and justified in the eyes of the court should be carried out. I cannot understand why this extremely detailed and innovative legislation is undermined by leaving people perfectly free to refuse consent.
I should like to counsel a little caution in relation to what the two previous Senators have said. While on balance I could go a long way with their argument I nevertheless must ask Senator O'Leary, if that is permitted, what difference there is between breaching the right to silence on the part of someone who is held in custody and breaching the right of integrity of the body in relation to the approaching physician with the syringe and the needle.
I say this because I have noticed in my own professional life a gradual broadening of this wedge that, whereas many years ago, no one would have approached with a needle a patient in order to obtain blood for the purposes of research that had not been very adequately explained and permission granted by that patient. It has become easier in recent years, even if it is only part of normal blood sampling, quietly to slip away five or ten millilitres of blood from the unsuspecting patient in order to use it as part of a whole research profile. I am not a lawyer and therefore I am on very unsure ground and there may be a complete distinction between breaching the right of silence and breaching the right to refuse to be punctured by syringe needle and I am sure that Senator O'Leary will be the first to explain the difference to me in legal terms.
I certainly will.
I will be delighted to hear it. Nevertheless, having said that, my general sentiment is along the lines of Senator O'Leary's in that what we are chiefly concerned with here are the rights of the unfortunate child.
I can speak only for myself and everyone else has to speak for themselves. I failed to explain adequately to Senator Robb during the debate on the Criminal Justice Act, 1984 what the nature of my objections were. I did not maintain that there was any absolute right to silence. If the House can recall I proposed a number of amendments, one of which very nearly passed, which would have permitted the Garda Síochána, under supervision, to question people. Many of us were happy that certain procedures had been passed to put obligations in a supervised fashion on people to answer questions. Some people may not have been happy with it but I was very happy with it and this is precisely similar to that situation where a court directed that a person must answer questions. I see nothing wrong with the French system, I see nothing wrong with the a person answering those questions. My objections to the Criminal Justice Act, 1984, were to investigators in an unsupervised fashion asking questions. I consider that similar to the situation if it was written into law that a plaintiff or an applicant could as a matter of right without going to the court knock on the door of the person in respect of whom the application is made and say, "Give me some of your blood". This can only be done by order of the court.
I have no objection to supervised questioning as long as it is done in a structured fashion and people's rights are borne in mind. What sets this one apart is that it can be done only when somebody sits down in the court of law and says, "Yes, I agree with your application to have a blood test" or alternatively, the court says, "We are going to have a blood test", because there could be situations where it could be the applicant who might be unwilling to supply the blood sample. That is possible also. It is not always the person who is the object of the proceedings.
Section 42 refers to the power of the court to do it to any party to the proceedings. If we take the typical situation of the mother seeking to establish that her child is a child of a particular father, the court could also direct that the mother would give blood so as to establish the truth or otherwise of what was going on. It is only right and proper that that provision should be there. I appreciate that. It is because it can be done only in a supervised fashion by a court that raises it to a level that I find acceptable. Everybody has to speak for himself but I would find that acceptable.
First of all, I am glad that I asked the question. I am satisfied with the response. I would, however suggest that those who are approached with a needle and syringe and who happen to be innocent may feel somewhat aggrieved. Also I might suggest that perhaps if we move on from this the next thing is the court might suggest that better urinary samples could be obtained by the usage of catheters. All I would say is that we need to be careful once we start to intrude into the integrity of the person, by a person armed with any penetrating equipment. Having said that, I was very pleased, as I say, with the answer. I certainly like to support, therefore, the points that Senator Robinson and Senator Brendan Ryan were making.
In response to Senator O'Leary, who mentioned the comparison between what was proposed here with the situation in regard to the Road Traffic Acts, it is not really a sound comparison because in the case of drunken driving the alternative of a urine test is available. That is not relevant at all in the establishment of parentage.
Subsection (1) provides that a blood sample may not be taken from a person without his consent, subject to the exceptions at subsection (3) for minors and other persons incapable of granting consent. While under section 42 a court may direct the taking of blood samples, it is wrong in principle, and probably unconstitutional, that in a matter of this nature the law should force a person, under threat of penal sanction, to submit to what is in effect an encroachment on bodily integrity; hence this provision. The difficulty hitherto has been that, where a person from whom a blood sample is required refuses consent, the court has been unable to draw any conclusions from that refusal; section 46, however, remedies this. An inference can be drawn.
We are all on far too good terms this afternoon for me to get cross. To suggest that what happens on a regular basis in Portlaoise prison where prisoners are intimately searched and strip-searched is not an encroachment on their bodily integrity and to suggest that taking a blood sample is, defies my layman's definition of encroachment of bodily integrity. Strip-searching is legal and lawful in this country. It is done frequently. It is done with the support of the law and has not been demonstrated to be unconstitutional or an infringement of people's constitutional rights. I do not understand how that, as an example — and I do not want to get involved in an argument about strip-searching — can be accepted as not being in any way an encroachment on people's bodily integrity, but a simple medical procedure whereas to take a sample of blood can be taken to be an encroachment on bodily integrity. I am not persuaded that there is a distinction to be made there that operates universally or in our legislation at all. There is a distinction being made under the circumstances. I am sure it is with the best of intentions but there seems to be a distinction that does not hold up and is not carried through in other areas of the States' activities.
I recognise that the Minister under section 46 is improving the situation. None of us is saying that the Minister is not improving the already unsatisfactory situation. Of course, the Minister is. The Minister should never lose sight of the fact when we are going through the Bill at Committee Stage that we are actually on her side. We are on the same side. When we are going through section by section the Minister might suffer from that paranoia that afflicts a lot of Ministers. They think that we are in some way trying to get them. We are not. We are not trying to get this Minister. There are other Ministers about whom we might be able to say it. It is important that the Minister should recognise that we do accept that we are on the same side.
I welcome the package as an improvement. I just do not think it goes far enough. To use an Irish expression, it is a bit "glic" to draw such a distinction in the case of a person who is accused of drunken driving because that person can give a urine sample. My urine is as much mine as my blood. They are both mine. I do not see what business they are of anyone else unless there is a particular reason for it. I can think of lots of other examples. Are there not compulsory vaccinations for diphtheria? Were certain vaccinations not all compulsory from time to time? Was screening for TB compulsory? I would say it was. When a person was found to have a contagious disease he had to go to hospital whether he liked it or not. People could be confined to hospital.
The law is interfering with our rights and liberties. That is what law is about. The law is about striking a balance. That is what it is really. It is striking a balance between the good on one side and the good on the other. To me, if these modern blood tests are as good as they say they are, the certainty which they will bring into the situation will get rid of ridiculous applications that should never be brought. It will bring a speedy end to those that are brought. They will introduce certainty into the results.
I do not know whether the Minister knows what goes on at local level in courts. I do not know whether the fact that a person refuses a blood test will be given proper weight. A failure to comply with a direction in regard to a blood test can lead the court to draw such inference as may appear proper in the circumstances. That is only one of forty other pieces of evidence that will be presented on the day in question, all tending one way or the other. Apparently, it is a piece of evidence which could be conclusive, or almost conclusive. I understand, of course, and accept that the Minister may think that the taking of a blood sample is of such importance. I do not share that view. I cannot bring it any further than that.
I share the Senator's view. The taking of blood tests is very important and very relevant, given the fact that we have such sophisticated means now of determining parentage through blood testing. I am curious as to what the Senator would do, because what we were talking about in the context of the Senator's proposal would be a contempt of court. Would he put the person in jail if he would not consent to a blood test?
I do not think that is terribly realistic of Senator O'Leary.
We put people in jail because they do not pay their rent. A person is not innocent because he is guilty of not obeying an order of the court. It is not a question of whether he is innocent about the parentage. He is guilty of not obeying an order of the court. Similarly, when a person is put in jail because he does not pay his rent, in reality he is not put to jail because of not paying the rent. He is put in jail because he does not obey a court order. Ultimately, that is why he goes to jail.
You still would not get the blood sample.
It is surprising how few people will stay indefinitely in jail.
I am interested in Senator O'Leary's analysis and the relative merits of two fluids in his body. It is probably a small diversion from what we are really concerned about.
The Minister could equally say — and I would say also — that if there was not a penalty involved in the Road Traffic Act for persons who refused to give either a blood or urine sample most of them would refuse to do either. Clearly, the Minister is right in saying that there is no point in making a blood test compulsory if there is no sanction to be imposed. The sanction is imposed because people are in breach of the law when they refuse to comply with the direction of the court, not because they are innocent people who are being found guilty. It is because they have done something which is in contempt of court.
I am the last person in the House to be talking about sanctions and penalties for people but it is a fact that the traditional position in our legislation is that if there is something that people must do there must be a penalty for not doing it. It is quite correct for the Minister to say that there is no point in making it compulsory to have blood tests and then not to have some sanction.
I disagree with the Minister in that I do not believe that if blood tests were made compulsory our jails would be full of putative parents refusing to give blood tests to defend themselves from the possibility of having to share their estates with children from outside their marriage. The very opposite would be the case. The possibility of some sort of penalty of that nature would guarantee that people would agree to do the tests unless they had valid reasons for not doing so, such as phobias or matters to do with their own health. There is a nicety here about the rights of the individual that is lacking in large part in other legislation. For example, if I want to travel to certain countries and return here I must have certain vaccinations or I will not be allowed into those countries or, I suspect, I may not be allowed to leave from here because of the possible infectious diseases I could carry back here. On one occasion recently when I travelled about a year ago, at the expense of the taxpayer, I was subjected to a regime of injections which caused me considerable discomfort and which was an invasion of my bodily integrity. I had no option in this matter. It was not just one test; it was a large succession of increasing discomfort. This was, as far as I am aware, the law of the land in terms of protecting the health of the community.
The question is not whether it is possible to insist upon blood tests but whether we are willing to insist upon them. I find the constitutional argument difficult to believe. Constitutional arguments with our detailed, written Constitution can arise about virtually everything one wants to argue about. I suspect that a good lawyer could find a constitutional case arguable, if not provable, about virtually every piece of legislation, and on every subsection in it, that has come through the Houses of the Oireachtas. This does not get away from the fact that this test is a scientific method which can eliminate a large area of doubt in determination of parentage. Yet we are allowing people to opt out of it and allowing the courts to draw such inferences as they see fit. That, at the very least, will be a variable, which will vary from justice and justice and from court to court. There will not be any rules or underlying principles to work on. It is regrettable — and I am not going to make a bigger issue out of this — that we cannot move in some direction towards making it compulsory.
I should like to raise a point which has not so far been raised. My interpretation — and has been throughout all these terrible years when we have had police trying to get involved in hospitals — is that there should be no third party between the doctor and the person on whom he is using either his investigating skills or his therapeutic skills. Having addressed a world conference on the dilemma of the doctor, the prisoner and the police, I am well qualified in bringing in this dimension to the problem. I would like to hear of some way by which it would become possible for a person who is true to the central ethic of his profession — which is, to put nothing between himself and the person on whom he is administrating either by an investigating procedure or a therapeutic one — to get around this dilemma. People in any profession do things which are paid for by State institutions. May I, therefore, respectfully suggest that in this situation one should try to apply the same criteria in the court and ensure that they are applied to a potentially innocent party as applied at present, as I understand, in relation to the action of the gardaí when they make a decision about the justification for taking a urine or a blood sample from a person who is suspected of having more alcohol in his system than he should have. I, therefore, believe that it is essential that somewhere in the legislation it should be written that there should be a reasonable suspicion of the parenthood of which he or she is brought into question in the case of a person who has to produce a sample of this nature — a blood sample in particular.
Senator Brendan Ryan said that he could make no distinction between strip-searching and the penetration of the integrity of the body. This depends on what he means by strip-searching. Strictly speaking, strip-searching is a humiliation as opposed to penetration of the body, which is a violation. There is a significant distinction to be made here. Strip-searching has in the past involved violation. I know of a man I worked for who once had the job of going to Nutts Corner with an instrument to extract diamonds from the secret recesses of a gentleman who was trying to smuggle them. This, if done forcibly, is a violation. If done voluntarily, he might have been glad to get rid of his diamonds.
I urge that a distinction should be made between the humiliation of strip-searching and the violation of penetrating the integrity of the human body by any means, of which a number have been mentioned here this afternoon.
In summary, I should like to say that it is essential that a stringent clause in this area should be inserted if it is, in fact, to be compulsory for people to produce blood samples for the purposes that have been outlined; a very stringent clause should be inserted to ensure that there is more than a reasonable suspicion that the tests might be positive.
When is it proposed to take the next stage?
We will put down the next stage for next week. I suppose it will not be taken next week. We could order it for next week on the understanding that it will not be taken next week. It could be quite a few weeks before it would be taken.
Could the Minister give us any idea when we could expect to take Report Stage?
It will depend on the drafting. There is a considerable amount of work to be done.
We will order it for two weeks' time.