Status of Children Bill, 1986: Motion for Recommittal.
Bill recommitted in respect of all amendments.
Government amendment No. 1:
In page 5, lines 5 and 6, to delete "TO AMEND THE LAW RELATING TO THE STATUS OF CHILDREN AND FOR THAT PURPOSE" and substitute "TO EQUALISE THE RIGHTS OF CHILDREN AND AMEND THE LAW RELATING TO THEIR STATUS AND FOR THOSE PURPOSES".
May I say how pleased I am to be back in the Seanad for Report and Final Stages of this Bill? It pleases me very much that we should proceed slowly because of the technical nature of the Bill, various sections of it, and because of the fact that I have brought forward so many amendments. Indeed, some amendments have appeared in the names of Senator Robinson and Senator Ryan.
On Committee Stage, Senators expressed dissatisfaction that the long title of the Bill did not, in so many words, state the legislation's aim of equalising the rights of children. Having regard to the strong views expressed on Committee Stage and to the nature of the changes being effected in the Bill by the Report Stage amendments which are now tabled, this amendment is proposed with a view to introducing an appropriate clause into the long title.
I warmly welcome the amendment to the title of the Bill. As the Minister mentioned, this was something we discussed on Committee Stage and dissatisfaction was expressed by a number of Senators that the Bill in its title did not go far enough and the text of the Bill was not as clearly committed to removing any legal discriminations and effectively equalising the rights of children regardless of the status of their parents at the time of their birth. This is an important amendment because it is a legislative commitment clearly set out in the title of the Bill.
It might be worth referring to the fact that it also represents the meeting of our international commitments in that regard. Since we discussed the Committee Stage of the Status of Childrens Bill, the Court of Human Rights delivered the Judgment in the Johnson case in which Ireland was found to be in breach of our obligations under Article 8 of the convention in relation to the lack of equality of rights of the child. That was found to be a breach of the rights of all three applicants — of the child and of the mother and father of the child.
I want to refer to the relevant passage in the Judgment of the Court because it makes it clear that this is not just a matter of the Irish Parliament choosing to bring in this Bill. We are now under a legal obligation to do so because as a member of the Council of Europe we are bound by judgments of the court and, therefore, we must take steps where Ireland has been found to be in breach. However, it is also fair to say that the judgment of the court recognised that this Bill was before the Parliament and that Ireland was taking that step; I do not intend to retract from the fact that the Bill was already going through its parliamentary process. Paragraph 74 of the judgment is the relevant passage in the Johnson case where the court refers to the Preamble of the European Convention on the Legal Status of Children of October 1975 and also refers expressly to the fact that in Ireland the trend is reflected in the Status of Children Bill recently laid before Parliament.
The court says:
In its consideration of this part of the present case, the Court cannot but be influenced by these developments. As it observed in its above-mentioned Marckx judgment, "respect" for family life, understood as including the ties between near relatives, implies an obligation for the State to act in a manner calculated to allow these ties to develop normally. And in the present case the normal development of the natural family ties between the first and second applicants and their daughter requires, in the Court's opinion, that she should be placed, legally and socially, in a position akin to that of a legitimate child.
Examination of the third applicant's present legal situation, seen as a whole, reveals, however, that it differs considerably from that of a legitimate child; in addition, it has not been shown that there are any means available to her or her parents to eliminate or reduce the differences. Having regard to the particular circumstances of this case and notwithstanding the wide margin of appreciation enjoyed by Ireland in this area, the absence of an appropriate legal regime reflecting the third applicant's natural family ties amounts to a failure to respect her family life.
The European Court was clearly telling us in that case that we were in breach of our obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The approach in the Bill, as reflected in the title to the Bill, will allow us to meet our international obligations, as it will also provide that we remove a discrimination which has been a very regrettable blot on our legal system as a whole and on the administration of justice in Ireland. The way in which the title is amended makes the parliamentary purpose extremely clear. It is something we are now bound to do because of our international legal obligations, and, therefore, I warmly welcome the amendment.
Very briefly, I would like to join with Senator Robinson in welcoming this change in the title of the Bill and to apologise to the Minister for the fact that the exigencies of business in this House did not allow the Bill to be completely passed through the House before the Judgment came which made it an obligation on us. What is said in the title about equalising the rights of children is the appropriate banner under which all the rest of the work should be done.
I also join with Senator Robinson and Senator Dooge in welcoming this amendment. It sets out in the title much more clearly what we want to do and what we are trying to do by this Bill. I hope that the Bill, despite events which have transpired since, will go on to become law. I would like to add to this a word of thanks to the Minister for the way in which she has met requests for amentments and consideration of amendments of this Bill and the care she has taken in trying to bring the Bill to the best possible conclusion in this House.
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendments Nos. 2 and 3 are related and may be discussed together.
Government amendment No. 2:
In page 5, to delete lines 26 to 31 and substitute the following:
"(2) (a) This Part (other than sections 3 and 4) shall come into operation on the passing of this Act and the said sections 3 and 4 shall come into operation one month after such passing.
(b) Parts II to IX shall come into operation six months after the passing of this Act or on such earlier day or days (not being earlier than one month after such passing) as may be fixed therefor by order or orders of the Minister for Justice, either generally or with reference to any particular Part or Parts.".
Amendment No. 2 adjusts the commencement provision of the Bill to take account of the new provisions to be introduced into the Bill by amendment No. 3. These provisions are expressed to affect the interpretation not only of this Bill but also of every Act of the Oireachtas passed after those provisions came into effect. The significant change brought about by amendment No. 2 is that it provides a one month interval before these new interpretation provisions take effect. This is to avoid a possible problem for this and the other House, which would arise if the provisions came into effect immediately on the signing of the Bill into law by the President.
The problem would arise in relation to Bills which had been drafted without regard to the interpretation provisions of this Act and which, at the time this Bill became law, had passed all Stages in both Houses of the Oireachtas and were awaiting signature by the President. Such Bills would be gone beyond the stage where they could be amended to take account of these new interpretation provisions but those provisions would nonetheless apply to them. Amendment No. 2, at the new subsection (2) (a), effectively gives the Seanad and the Dáil one month's notice of the new interpretation provisions being provided at amendment No. 3. This should be adequate to enable the Houses to amend, if necessary, any Bills in course of passage so as to take account of the new interpretation provisions.
The new subsection (2) (b), in consequence, provides that the other parts may not be brought into effect earlier than one month after the Bill is passed. The commencement provisions, as amended, will therefore operate as follows: As soon as the Bill is enacted, section 1, short title and commencement; section 2 interpretation, and what will then be section 5, the present section 3 dealing with the Citizenship Act, will come into effect. One month later the new sections 3 and 4, the interpretation and construction provisions being introduced into the Bill by amendment No. 3, will come into effect. At any time during the following five months, the Minister may make orders bringing other parts of the Bill into operation. It is the intention that if the necessary regulations, rules of court and so forth are ready early enough, orders of this type will be made. Six months at the latest after its passing the whole Act will be in operation.
The new section 2 proposed in amendment No. 3 is a general interpretation provision and is a restatement of the existing section 2 (2). The new section 3 (1) applies to the provisions of this Bill generally and to all future Acts, the general principle which the Bill as it stands would apply, at section 26, to the construction of wills and other dispositions, and, to section 29, to the Succession Act, 1965. That principle is that relationships between people should be calculated irrespective of whether any person's parents are, or have been, married to each other.
That principle, on its own does not, of course, take into account the special position of an adopted child. Hence subsection (2) of section 3, which ensures that for the purposes of the principle set out in subsection (1) of the section, an adopted child will be treated as the child of the adoptive parent or parents and not as the child of any other person. Paragraph (b) of subsection (2) ensures that persons adopted abroad whose adoptions are recognised under domestic law are encompassed by this principle. While it is likely that in the absence of this provision our courts would arrive at a similar result, it is considered better to have the matter put on a clear statutory basis.
There are certain circumstances where it is necessary to distinguish between persons whose parents have married each other and those whose parents have not. The most significant of these is in the area of guardianship, where, as was agreed by the House on Committee Stage, the father of a child who has not married the child's mother should not automatically be the child's guardian. The matter also arises in this Bill on certain aspects of property law, The detailed effects on those areas can be discussed when the amendments to those parts of the Bill are reached.
The phrase "a person whose parents have not married each other" appears on the face of it to meet requirements: but it does not take account of the admittedly remote but nonetheless real possibility that the parents of a child, while unmarried at the time of the child's conception and right through the child's gestation and lifetime, may have been married previously but have obtained a divorce which is recognised in this country. The purpose of paragraph (a) of the new section 4 is to enable reference to be made in this Bill and in future Acts to a person whose parents have not married each other, without having to spell out with each reference that it includes a person whose parents are or have been married to each other but between whom there was no subsisting marriage during the person's lifetime or the ten months preceding the person's birth. Paragraph (b) is the other side of the same coin.
I welcome these amendments. The Minister has brought in an amendment which she said she would on Committee Stage which very largely represents the principle in the amendment which I had tabled on Committee Stage to change the whole manner of approaching the status of children so that children would not be classified as to whether they were under the old law legitimate or illegitimate, or as was proposed initially in the Bill marital or non marital and that we would move completely away from that and devise a Bill which referred to the status of the parents by reference to whether the parents were married. The Minister has not only brought in an amendment substantially to this effect but she has also dealt with the question of amending previous legislation and ensuring that it carries in to any subsequent legislation by way of interpretation.
The purpose of allowing a month for these two amendments to come into operation after the Bill is passed — it will not be a matter for the Minister to make any further order to that effect; they will automatically come into effect a month afterwards — is to enable any legislation that might be going through the Oireachtas to be amended to bring it into line. That is important. Section 3 is broad enough for the purpose of interpretation to ensure that the marital status of the parents would have no effect on those relationships.
Could I ask the Minister when replying to the debate on this amendment to clarify if she is in a position to state what might be included in the qualification "unless the contrary intention appears," what particular type of contrary intention might be considered to be relevant? It may be that it is just caution on the part of the parliamentary draftsman but——
Section 3 (1), fourth line. It is also in amendment No. 4. It may be that it is just simply the parliamentary draftsmen's caution. If there is a specific meaning to it I would like to know about it.
The thrust of amendments Nos. 3 and 4 is to ensure that for this Bill and Bills passed after the enactment of this Bill the marital status of the parents will have no effect on relationships. One of the subsections of the amendment which I had tabled on Committee Stage required the Minister to make regulations removing from existing law any terms such as legitimate or illegitimate, marital or non marital. Perhaps the Minister would deal with that issue in responding to the debate on these amendments in regard to legislation where these terms may have been used in the past. There are specific amendments to the Guardianship of Infants Act, 1964 and other Acts.
I should like to join in welcoming this amendment. It is a great advance on the Bill as originally published. It meets the point about creating a new division between children of inter marital and non marital relationships. I am very pleased that this amendment should appear. There is just one matter, and I do not know whether the Minister can deal with it. In amendment 3 there is a new section 3 (2) (a) which deals with the question of an adopted person who shall be deemed to be the child of the adopter or adopters and not the child of any other person or persons. Indeed, in the Succession Act, 1965, as the Minister is aware, an adopted person is the child of the adopters. On the other hand in the Adoption Act, 1952, there is a section — I cannot remember the number — which expressly says that an adopted child is only to be included in the definition of "child" in a will made after the adoption order. I do not think this can be changed in this Bill but perhaps at some stage the Minister might be able to check up on it. If adopters adopt a child which becomes their child but they do not make a will, or they do not make a new will to include this child, does this child inherit on intestacy from the adopters, or what would be the position of such an adopted child?
Apart from that I welcome the amendment. In particular we should include with adopted persons those whose adoptions are recognised by virtue of the law for the time being in force in the State. It is important that this should be clearly stated because there have been occasions in the past where adoption orders made in other jurisdictions, although to my mind perfectly recognisable by this State, have had to be reinforced by Irish adoption orders in order to get payments, for instance, children's allowances along with Army pay and so on where people have adopted children in Israel. The fact that this is clearly stated in this amendment will be of assistance in these kind of cases.
In regard to Senator Robinson's request for clarification of the term "the contrary intention," it is really a standard provision in the Interpretation Act, 1937 as far as we are aware. An example of the "contrary intention" appearing is in subsection (2) of the new section 2 in the Guardianship of Infants Act, 1964.
On Committee Stage in moving a similar type of amendment I had included a provision that the Minister could, by way of regulation, remove from existing law the terms "legitimate" or "illegitimate" where they occur and substitute the description which would be in keeping with the new approach being adopted in this Bill. Amendments Nos. 3 and 4 act in relation to this Bill, including prior Acts which are amended by this Bill and future legislation. I was wondering whether the Minister had considered the question of empowering the Minister, by regulations, to ensure that amendments were made to previous legislation.
When consulted, the draftsman considered that this was not necessary as each law will be read in the context of the Bill when enacted.
We can consider it in that way but it will be quoted in its original form. The words will still be there.
Sections 3 and 4 operate as to the future. They will affect this Bill and the important provisions with regard to the Guardianship of Infants Act which we will be amending, and the Family Law (Maintenance of Spouses and Children) Act, 1976, which is also amended. They do not remove from our code. It seems to me that it would be appropriate that these be excised altogether from our code because we have a clear parliamentary intention in this Bill that that should be carried through.
This matter arose. We had a discussion on the language used in legislation and there was very strong feeling expressed on the matter. It would be more appropriately dealt with by way of consolidating legislation rather than by way of this Bill.
Consolidation legislation is necessary where you have a whole lot of measures in different Acts which are law, which you wish to carry on and which you consolidate, such as the Social Welfare (Consolidation) Act 1981. That was a necessary consolidation Act. There were so many Social Welfare Acts people simply could not find where there had been amendments in successive years to subsections and so on. What had been proposed on Committee Stage, by way of amendment, was to empower the Minister — by way of regulations — to amend by changing the terminology in the earlier legislation, by removing the terms "legitimate" and "illegitimate". One way to do it would be to include in the Bill itself every section of every Act that was to be amended. I was conceding that that seems to be a cumbersome way of doing it and that the more appropriate way would be to empower the Minister. This is important because the construction to be placed on legislation, by virtue of sections 3 and 4 as now proposed, is a construction that applies only to this Bill — that would include any amendments made to earlier legislation by this Bill and also to any future legislation of the Oireachtas.
It may be that it is a matter that could be considered when the Bill moves to another place at another time. It would be important to try to remove from earlier legislation language which no longer represents the legislative position, our intent, and which, as we discussed in some detail on Committee Stage, is pejorative and causes a feeling of discrimination. It does not really represent, in full measure, the commitment we talked about on the Title of the Bill — that we would equalise the rights; that means equalising the language of those rights as well.
I have great sympathy with what Senator Robinson is proposing but some doubts about the method she is suggesting. To say that a Minister could, by regulation, alter the wording of a previous Act in order to bring it into line is to give a dangerous power to a Minister. This is where at least some element of consolidation procedure should come in. After all, when we do receive a consolidation Bill, it has to be certified that it is entirely a consolidation Bill, that there is no new matter involved. If we were to set the precedent of altering the language of past legislation by ministerial order — even if that order were to be subject to confirmation by both Houses of the Oireachtas — we might be opening up a procedure. If part of that procedure could be, as it were, a consolidation-type certificate I would not have the objection, but, without its being reviewed in that way, we are perhaps going a little too far in delegated legislation.
One way of doing it — and I appreciate there is no amendment to that effect before the House today — would be by way of a schedule to this Bill in due course scheduling the changes to be made in the earlier legislation.
That might appear more cumbersome on paper but it would be a better form of legislation.
This Bill is a very important one as has been once more reiterated by Senators Robinson and McGuinness. Its objective is to deal with existing discrimination against a particular sector. While the Senator suggests a schedule to the Bill I would be reluctant to accept any change at this point because I do not want any delays in regard to this legislation. The Senators' suggestion is time consuming because all legislation would have to be scrutinised and examined in order to go into the Schedule. Changing of legislation could be the subject of statute law revision. We will take note of it, we are aware of it, that is about all I can say at this point.
Amendment agreed to.
Amendment reported.
Government amendment No. 3:
In page 5, to delete lines 32 to 37 and in page 6 to delete lines 1 to 15 and substitute the following:
"2. In this Act, a reference to a Part — is a Part of this Act unless the context requires that a reference to some other enactment is intended.
3. (1) In deducing any relationship for the purposes of this Act or of any Act of the Oireachtas passed after the commencement of this section, the relationship between every person and his father and mother (or either of them) shall, unless the contrary intention appears, be determined irrespective of whether his father and mother are or have been married to each other, and all other relationships shall be determined accordingly.
(2) (a) An adopted person shall, for the purposes of subsection (1) of this section, be deemed from the date of the adoption to be the child of the adopter or adopters and not the child of any other person or persons.
(b) In this subsection `adopted person' means a person who has been adopted under the Adoption Acts, 1952 to 1976, or, where the person has been adopted outside the State, whose adoption is recognised by virtue of the law for the time being in force in the State.
4. In this Act and in every Act of the Oireachtas passed after the commencement of this section—
(a) a reference, however expressed, to a person whose parents have not married each other shall, unless the contrary intention appears, be construed as including a reference to a person whose parents are or have been married to each other but between whom there has been no subsisting marriage at any time during the period of ten months before the person's birth, or during the person's lifetime, and
(b) a reference, however expressed, to a person whose parents have married each other shall, unless the contrary intention appears, be construed as excluding a reference to a person in respect of whom paragraph (a) of this section applies.".
Amendment agreed to.
Amendment reported.
Government amendment No. 4:
In page 6, to delete lines 35 to 47 and in page 7, to delete lines 1 to 42.
Amendments Nos. 4, 42 and 43 are related and may be discussed together.
The purpose of amendment No. 4 is to delete from the Bill the existing section 6, which would deem to be legitimate the children of certain void marriages and of all voidable marriages.
In the debate on Committee Stage strong views were expressed mainly in favour of, but also to some extent against, the deletion of this provision. At the time I outlined some of the considerations involved on both sides of the debate and indicated that further time would be required to study and weigh up these considerations. One of the main concerns of those in favour of the retention of such a provision was the question of guardianship. It hardly seems fair and may well in many cases operate against the interests of the children involved, that a man who has gone through a ceremony of marriage in good faith and acted as the father of his children within marriage should no longer be the guardian of his children because it transpires that the marriage was not valid. But this problem can be solved by amending guardianship law without the need to have a provision of the nature of section 6 which, in removing one set of anomalies, could in its turn create more.
Amendment No. 5, which provides a new interpretation section for the Guardianship of Infants Act, 1964, contains provisions designed to ensure that in appropriate cases, where a marriage is void from the start, and in all cases where a voidable marriage has been annulled, the father will be guardian of the children of the union without the need to apply to court. This can be discussed in greater detail on that amendment.
Amendment No. 43 removes from the Bill the special maintenance provision which would have been required at section 5B of the Family Law (Maintenance of Spouses and Children) Act, 1976, to take account of children deemed legitimate by the provisions now being deleted by amendment No. 4, who would not have been dependent children of the family because their parents were not spouses and who would not have been dependent non-marital children because they were legitimate. Their maintenance needs will now be catered for by the new section 5A of the 1976 Act which, when amended, will cover dependent children whose parents are not married to each other.
Amendment No. 42 is purely textual. It puts the "close quotes" and the full stop in their proper place now that there is to be no section 5B of the 1976 Act.
In so far as these amendments are really deletions of a particular formulation which I had criticised on Committee Stage — the Minister is aware of my concerns in that regard — I would propose not to say anything more except that I support the deletion of those sections because, as the Minister has indicated, it is really on the next amendment that we consider what will be substituted. I feel strongly about this so I will reserve my fire power for the discussion of amendment No. 5 and the amendments I have tabled to it.
Amendment agreed to.
Amendment reported.
Amendments Nos. 5, 6, 8, 13, 15, 16, 17, 18, 20 and 21 are related and may be discussed together. There are additional amendments, Nos. 1 and 2 in the name of Senator Robinson.
Government amendment No. 5:
In page 7, to delete lines 47 to 52 and in page 8, to delete lines 1 to 20 and substitute the following:
9.—The Act of 1964 is hereby amended by the substitution for section 2 of the following section:
2.—(1) In this Act, except where the context otherwise requires—
"adoption order" means an adoption order made under the Adoption Acts, 1952 to 1976, and for the time being in force;
"the Act of 1987" means the Status of Children Act, 1987;
"father" includes a male adopter under an adoption order, but, subject to subsection (3) of this section and section 11(4) of this Act, does not include the father of an infant who has not married that infant's mother and in respect of whom no order under section 6A (inserted by the Act of 1987) of this Act is in force;
"infant" shall be construed in accordance with section 2 of the Age of Majority Act, 1985;
"maintenance" includes education;
"mother" includes a female adopter under an adoption order;
"parent" means a father or mother as defined by this subsection;
"testamentary guardian" means a guardian appointed by deed or will;
"welfare", in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant.
(2) A reference, however expressed, in this Act to an infant whose father and mother have not married each other shall, except in a case to which subsection (3) of this section relates, be construed in accordance with section 4 of the Act of 1987.
(3) (a) Where the father and mother of an infant have at any time gone through a ceremony of marriage and the ceremony resulted in—
(i) a voidable marriage in respect of which a decree of nullity was granted after, or at some time during the period of ten months before, the birth of the infant, or
(ii) a void marriage which the father reasonably believed (whether or not such belief was due to a mistake of law or of fact) resulted in a valid marriage—
(I) where the ceremony occurred before the birth of the infant, at some time during the period of ten months before that birth, or
(II) where the ceremony occurred after the birth of the infant, at the time of that ceremony,
then the father and mother shall, for the purposes of this Act, be treated as if they had married each other on the commencement of Part III of the Act of 1987 or the date of the ceremony of marriage, whichever is the later.
(b) It shall be presumed for the purposes of paragraph (a) (ii) of this subsection, unless the contrary is shown, that the father reasonably believed that the ceremony of marriage to which that paragraph relates resulted in a valid marriage.'.".
These amendments apply new rules of construction to the Guardianship Act. Amendment No. 5 provides a replacement for the existing section 8 of the Bill which was intended to replace the existing section 2 — definitions — of the Guardianship of Infants Act, 1964. The substitute section 2 of the 1964 Act being provided by this amendment contains important changes arising both out of the deletion of the terms "marital" and "non-marital" and also to take account of the position of children of void and voidable marriages.
Subsection (1) of the section contains definitions of terms for the purposes of the 1964 Act, as proposed to be amended by this Bill. The only definition which has been materially changed is that of "father". This term includes a male adopter, as it does in the present Act of 1964. It will also, henceforth, include a father not married to the child's mother where there is a current order naming him as guardian, under the new section 6A of the 1964 Act, being inserted by the present section 11 of the Bill. It will also include, by virtue of subsection (3) of this new section, the father of a child of a void marriage, which comes within the terms of that subsection, or of a voidable marriage. The rights of access and custody, under section 11 of the 1964 Act, as proposed to be amended, of the father of a child who has not married the mother and has not been appointed guardian will remain.
Subsection (2) of the section applies section 4 of this Bill, as inserted by amendment No. 3, to the 1964 Act. This will enable the expression "infant whose father and mother have not married each other" to be used without having to spell out that the expression includes an infant whose parents have been married to each other but between whom there has been no subsisting marriage during the infant's lifetime or the ten months before the infant's birth. The rule of construction is, in this instance, made subject to the special provisions dealing with guardianship of children of void and voidable marriages at subsection (3).
Subsection (3) is designed to cater for the situation where a father has entered into a marriage which he reasonably believed was valid but which subsequently turns out to have been void. Under present law, any child of such a union is regarded as illegitimate, since a void marriage is of course not a marriage at all. Accordingly, the father can never become guardian of the child jointly with the mother, even though in many cases he will have acted as such in fact, if not in law, perhaps for many years. In such circumstances it is unfair, and most likely contrary to the children's interests, that the decree of nullity should have the practical effect of removing the father from his position as de facto guardian of the children. Accordingly, subsection (3) (a) (ii) provides that where a father and mother enter into a void marriage which the father reasonably believed was valid, they shall be treated for the purposes of the 1964 Act as husband and wife: in other words, that the father will be and remain joint guardian with the mother — who is guardian in any event. The requirement of reasonable belief excludes from the provision the deliberately bigamous father or others who knowingly go through a void ceremony. Paragraph (b) of the subsection sets up a rebuttable presumption that there was a reasonable belief on the father's part. This means that the onus of proof will be on the person claiming that the father's belief was not reasonable.
The position regarding voidable marriages is somewhat different, since there is a presumption of validity in relation to such a marriage until it is annulled at the petition of one of the parties. This presumption of validity gives rise to the further presumption that any children of such a union are, under present law, legitimate and thus that the father is joint guardian of the children. It is more clearly unreasonable, therefore, that in such cases the decree of nullity operates to remove the father from the position as guardian which he was up until then presumed in law to hold. Subsection (3) (a) (i) accordingly provides that, in all cases where a voidable marriage is annulled during an infant's lifetime or within the ten months before the birth, then the father and mother shall be treated as husband and wife for the purposes of the 1964 Act: in other words, that the father will continue as joint guardian of the children after the decree of nullity is pronounced.
It has to be said that this provision, in so far as it relates to the children of voidable marriages, is at present of more hypothetical than practical effect, since according to the textbooks the only ground on which a marriage is voidable is impotence. There have been, however, recent indications that the courts may find marriages voidable — as distinct from void — in a wider range of circumstances than at present; and the Law Reform Commission's report on nullity in 1985, which is under consideration at present, contains recommendations to broaden the grounds for regarding a marriage as voidable.
The area covered by these amendments is very important and I would like to begin by saying that I believe the Minister in approaching the matter in this manner on Report Stage has removed the particular difficulty as represented in the section that is now deleted. Nonetheless, it seems to me, reading the proposed subsection (3) of section 2, that the approach is still in effect to say that in the circumstances set out there where a decree of nullity is granted either on the basis of a voidable or a void marriage that it would still be deemed to be a marriage. I recall, as I am sure the Minister does, the very detailed discussion we had on Committee Stage, when I was opposing that idea of deeming marriages, where a decree of nullity had been obtained on the grounds that they were either voidable or void, to still be marriages. The discussion centred on the position of the father, that in those circumstances, where a father had entered into what he had believed in good faith to be a marriage which was subsequently annulled, he should remain in the position that he believed he was in as the guardian of the child.
The amendments I have tabled to the Government amendments expressly seek to do that and only that. I think that that is what gained support in the Seanad on Committee Stage when we were debating that aspect. That is what the Minister has relied on as being the reason for this subsection but it is not what the Government proposed amendment does. It goes further than that. Indeed, I would query whether the Government's proposed amendment here may be possibly something which would be regarded as being constitutionally unsound because it is deeming to be a relationship a marriage which is not a marriage. Is that compatible with the constitutional commitment to protect marriage on which the family is based and so on — the provisions of Article 41. I simply raise the question and I think it is a very reasonable question: by deeming something to be a marriage which is not a marriage, is the State discharging its obligation to protect marriage? The additional amendments, Nos. 1 and 2 in the names of Senator Brendan Ryan and myself must be read together. They would propose, first, technically simply to omit the clause from subsection (2), except in a case where subsection (3) of the section relates, so the section would be read without that clause and then they would substitute in the precise circumstances set out in the Government amendment.
If, in those circumstances, a decree of nullity is granted in the context either of a voidable marriage or a void marriage, then instead of the Government formula which is "then the father and mother shall for the purpose of this Act be treated as if they had married each other"— in other words, be treated as if there was a marriage — what would be substituted would be "then the father shall for the purpose of this Act be deemed to be and from the date of the said ceremony, always to have been, the guardian of the said infant in like manner as if the father and mother had married each other on the commencement of Part III of the Act of 1987 or the date of the ceremony of marriage, whichever is the later".
It seems to me — and I say this with all due modesty because it is extremely difficult to draft amendments to amendments to this Bill and I do not stand over the dogmatic approach in this amendment — that what it is intended to do and what it seems to me to do is to recognise the desirability of continuing the position of the father as guardian in these circumstances. It seems to me to be compatible with the other provisions of this new section 2 which will be put into the Guardianship of Infants Act, including the definition of the father, because it will, in effect, continue the definition of the father in the circumstances of this father. But it would not be deeming that a marriage existed which the courts had found in the context of a nullity case to be void or voidable. Whether it was void or voidable, the effect of the nullity decree is that there was no marriage. That is what the decree is. It is better for the legislature to accept that decree but to provide that, notwithstanding that there was no marriage the father would be deemed to be and always to have been a guardian and a father within the interpretation of father under the Guardianship of Infants Act. That is the only reason relied upon by the Minister for this section. It is more explicitly and clearly put in the amendment which I am proposing.
It is important that we do not, for the sake of the objective of securing the rights of a father in this particular position, open up an extremely difficult area. Let us look again at this part of the amendment which the Minister is proposing — that sentence which I will read again: "then the father and mother shall, for the purposes of this Act be treated as if they had married each other on the commencement of Part III of the Act of 1987 or the date of ceremony of marriage or whichever is the later." What will that mean, apart from the question of the exercise of guardianship rights by the father? What will it mean in relation to the child? If they are to be deemed to have gone through marriage, then will the child be the child of a marriage? If so, what are the implications of that?
In the most recent Supreme Court judgment on an adoption issue the judgment of the Chief Justice was concurred in by other members of the court — there was one other, in effect, concurring judgement by Mr. Justice McCarthy. But the Chief Justice, Mr. Justice Finlay, distinguished between the child of a marriage and the rights of that child and children not of a marriage. This is in the context of saying that all children have rights under the Constitution, but in addition to those rights children of a marriage have other rights. The relevant context in that case was that the child had a right to be brought up by the child's parents and to be supported and protected in the family under Article 41 in a way which a child, not of a marriage, would not have.
What is the effect of the Government's proposed amendment? If we are deeming that they are married to each other, is the child the child of a marriage in that sense? The courts have clearly said no because they have given a decree of nullity. What are the implications of that? Is it constitutional? The other question which I posed is: is it in conformity with the State's obligation to protect marriage on which the family is founded to extend the definition of marriage to circumstances where a court has found that there is no marriage? We do not have to get into that grey area if we put in expressly what we really want to do, which is to ensure that a father in those circumstances would continue to be a father for the purposes of exercising guardianship rights.
I would like to support the amendment put down in the names of Senator Robinson and Senator Ryan. There is no point in my going again through all the reasons which Senator Robinson brought to the fore in her speech. I agree with what she is saying. I emphasise that this is an increasing class of persons. Up to recently the number of people involved in this situation was very small because there were very few nullity applications and most of them were based on importance. In that case, where the marriage was not consummated, obviously no children came into question. Apart from the increasing number of applications where the marriages are void through duress or some ground like that, which means that the marriage never existed, there is a very sharply increasing number of persons who have been held to have voidable marriages in the circumstances the Minister referred to, not where it was impotence which, of course, would take out the position of children, but in these cases which have followed on the case of RSJ and JSJ and the case of D and C where a person is held to have been unable to form and sustain a normal marriage relationship.
There are a number of written judgments in these cases but in practice one finds that there are a very sharply increasing number of cases with no written judgments which are based on these grounds. Many of these marriages have children. It is something which we have to think about. In another Supreme Court case on duress, Mr. Justice Henchey specifically drew the attention of the court to the plight of children who were rendered illegitimate by nullity decrees.
It is necessary for the Minister and the Government to deal with the position of children who are the children of void and voidable marriages. I accept that the father in these cases, who has been, and has been assumed to be the guardian all along, should continue to be the guardian. It would be better to deal with it in a situation where we have just that particular issue, where the only thing that we are dealing with is retaining the father's position of guardian without his having to make an application to the court as would be the case with other unmarried fathers.
There is a danger that by doing what is done in this amendment, we are creating as it were two classes of unmarried people — unmarried people who are just unmarried and yet who may have lived together for some very considerable amount of time, and unmarried people who have at some stage gone through a marriage ceremony but whose marriage is in fact void or voidable. I know that where there is a voidable marriage, unless and until either party petitions for a decree, the marriage is assumed to be valid. That does not affect the situation once the decree has been passed. Once the decree has been made that the marriage is void, it is void ab initio. It is not just void from the point of the making of the decree. We are creating a class of persons who are the children of what is deemed to be a marriage.
Certainly, what Senator Robinson said about Mr. Justice Finlay's judgment in KC and AC and An Bord Uchtála or with regard to the different rights, the constitutional rights of children of a marriage and children not of a marriage is correct. It would create difficulties in the future if we create a separate class of persons who are children of what was deemed to be a marriage as well as having children who are of unmarried persons and children who are of married persons.
I urge the Minister to accept this amendment. I think it deals in a simpler way with what we all want to achieve, which is to safeguard the position of the father in these cases.
I am probably a very brave man to stand up and talk on this issue at all, or maybe I am just a fool. It appears to me that at the core of this amendment is the insistence that people whom the courts have decreed not ever to have been married are married. Implicit in this is the acknowledgment that society is going to continue to discriminate between children whose parents are married and children whose parents are not married, because we are trying to write in a provision which puts the children of parents whose marriages are deemed to be void into the category of the respectable, by deeming that their parents are married.
What we actually are saying is that, irrespective of the intent in this Bill, irrespective of all the noble intentions, we are expecting a continuation in our society, of a situation where the children of parents who are not married are somehow going to be regarded as inferior to the children of parents who are married, and that therefore, we are trying to protect the children of marriages which are deemed to be void by saying that the parents will be taken to be married so far as this legislation is concerned. That flies in the face of the attitude and the spirit of this Bill. Our amendment, drafted more by Senator Robinson than by me — in these areas, Senator Robinson has got the body of expertise it would take me many years to comprehend, not to mention absorb — simply attempts to preserve the guardianship of a father in the light of other provisions in this Bill, but does not attempt to recreate a kind of societal status where the children of parents who are married are implicitly more approved of in society, than the children of parents who are not married. There is no other basis for persisting with this facade. Senator Robinson has gone into the possible constitutional implications, and I will not venture into that area. It appears that at the bottom of this insistence on deeming people to be married who have been found by the courts never to have been married, is a persistence of the attitude that children of parents who are married are somehow going to be more acceptable to society than children of parents who are not married. That is why I seconded this amendment.
I accept that our amendment may appear to be cumbersome but we do not have any option. The approach of amendment No. 5, which deems a non-marriage to be a marriage for the purposes only of the 1964 Act, was dictated by the manner in which the 1964 Act was drafted over two decades ago. Had we the opportunity to set out a new guardianship Act from scratch, there would be a very different approach. It is worth emphasising that the approach in this legislation is very fundamentally in the interests of the child. The changes take as the starting piont, the interests of the child or children.
I am opposing the amendments in the names of the Senators. The words which the first of them proposes to delete from subsection (2) of section 2 in the proposed amendment are necessary to make it clear that the cases dealt with in subsection (3), namely annulled, voidable marriages and certain void marriages are exceptions to the rules set out in subsection (2).
A result of the second amendment would appear to be to give some form of restrospective effect to subsection (3). The purpose of subsection (3) of the new section 2 of the 1964 Act being substituted by amendment No. 5 is to ensure that fathers of children of all voidable marriages will continue as guardians of the children after the decree of annulment has been granted and that fathers of children of the void marriages catered for by the section will be and will remain after any formal annulment, their guardians. In all cases, of course, we are speaking of joint guardianship with the mothers.
In the case of a voidable marriage, the father will have been guardian during the subsistence of the marriage and, probably, in most cases of void marriages he will have acted as guardian although not in law.
Amendment No. 5 as it stands provides adequately for the problem and I see no need for it to be changed.
The present legal position in relation to the child of a void marriage or of a voidable marriage which has been annulled is that the child is categorised as illegitimate. Whatever the practical position may have been before the annulment, it is clear from the date of the annulment onwards that the mother is sole guardian and is free to act as she thinks fit as regards the upbringing of the child. It is difficult to see what practical benefit would arise from deeming the father retrospectively to have been its guardian always. For instance, if the child has been brought up in a religion which would not have accorded with the father's wishes — had he had the opportunity to have his views taken into account — how is the declaration that he was always the child's guardian to undo this? More importantly, if the mother, acting on the basis of the present law, puts the child up for adoption, is the proposal, which would deem the father to have been its guardian always, to have the effect of making the adoption order invalid? Such a possibility would clearly be unacceptable; but this would seem to be an inescapable result of the proposal in the Senators' amendment to amendment No. 5.
I am very confused by this. Let us get back to the simple objectives we are trying to meet here. The Minister has put forward an amendment which for the purposes of the Guardianship of Infants Act, 1964 would treat people as married after a court has said they are not married. Her reason for doing this is because she wants the father to continue as if he was a father. In other words, to continue to exercise the joint guardianship which he would exercise under the Act. The amendment which we are putting forward makes that clear. It is not deeming a marriage which has been declared not to be a marriage by the courts, to be a marriage, and leaving the consequences of that unclear. The effect in law of deeming a marriage that had been declared to be null and void by the courts to be treated as if it was a marriage is unclear. I simply do not understand the Minister's response to our amendment. It is the only reason she has given for the Government amendment, and yet she seems to be rejecting it. I simply did not follow her reasoning on it. It may be that I have missed some vital clue.
The purpose of our amendment is precisely to meet the objective of ensuring that the father who believed he was participating in a valid marriage would continue to exercise the rights of a father for the purpose of the Guardianship of Infants Act, the rights of a married father.
The reason for my total confusion at this stage is that the Minister in objecting to the amendment we have formulated raised the issue of possible adoption. What would be the implications for the possible adoption of a child if it is considered that the parents of that child were married, even though the court had declared their marriage to be null and void? They are to be considered for the purposes of this Act to be married. That would, certainly under present law, make the child ineligible to be considered for adoption because the child would be the child of a couple who were deemed to be married. I do not understand the Minister's objections because the Minister's clear purpose in putting forward the Government amendment is to secure the position of the father. That is expressly what this amendment does. Where is the problem? The Minister will have to clarify it further.
I join with Senator Robinson in expressing puzzlement on the adoption issue. As far as I understood the Minister, what she was saying was that if we have an element of retrospection in the amendment, if we said that the father had always been the guardian of the infant, that might effect the adoption situation. It is not whether the father is the guardian that effects adoption, it is only whether the couple are married. The child of married persons cannot be adopted. If we were worried about that we would get into a position where the father of any child of unmarried persons if he moves to make himself a guardian could prevent adoption of that child forever after. I do not think whether the father is a guardian or not is relevent to the adoption situation; it is only if the natural parents get married. Even if they get married subsequent to the birth of the child they have to reregister the birth of the child in order to prevent adoption under the 1964 Adoption Act.
By deeming these children to be children of a marriage we can prevent them from being adopted although I do not know whether we are doing that because we are only deeming them for the purposes of the Guardianship of Infants Act to be children of a marriage. This has become rather muddled. What we are trying to do is to safeguard the position of the the unmarried father where the marriage is void or has been declared to be voidable. Therefore, we are trying to keep him as guardian. Our idea is that you do not have to deem the child to be the child of a marriage or deem the people to have been married to each other for the purposes of the Guardianship of Infants Act in order to attain that desirable end.
There seems to be very little real difference between the result desired by the Senator's amendment and the Government amendment. On that basis I am satisfied that the wording of the Government amendment is the most satisfactory or, perhaps, least unsatisfactory in the circumstances.
The Minister has responded very generously to other issues which have been raised and has introduced a considerable number of amendments to improve the text of this Bill. I find it difficult to understand how the Minister can say that the way in which it is being proposed by the Government is better. It is certainly much less clear. The Government amendment is not tied in to the question of the status of the father. It could have other implications. I am always worried about other unspecified potential implications of legislation. If the Minister's concern about the amendment proposed by Senator Brendan Ryan and me was about the phrase "be deemed to be, and from the date of the said ceremony always to have been, the guardian of the said infant" it would be possible, if the House concurred, to remove that clause.
I would be slightly concerned about that because then you would have a position where he would suddenly become a guardian, not having been a guardian before. It might be more appropriate and more prudent to do it in the way suggested in the amendment. We are talking about ensuring that the father would be and be deemed to be the guardian from whenever the infant was born. I am trying to specify my concerns. If they are to be treated as if they are married to each other then their child is to be treated as a child of a marriage notwithstanding the provisions of this Bill. That could have implications for the welfare of the child under the Guardianship of Infants Act in the approach to the welfare of the child.
That was precisely the issue that arose in the KC and AC case which was the most recent adoption case to come before the Supreme Court. In that case the child had been placed for adoption by an unmarried mother who, subsequent to the placement, married the father. The natural mother and father, now married, sought the custody of the child and the prospective adopters with whom the child had been placed sought to obtain an order under section 3 of the Adoption Act, 1974, which would have enabled the consent of the mother, and in this circumstance the consent of the father to be dispensed with. The trial judge, for legal reasons which are not necessary to go into, refused to make an order under section 3 of the 1974 Act. Therefore, the adoption could not go through.
The Supreme Court was then dealing with the welfare of the child of married parents and it was in that context that Mr. Justice Finlay distinguished between the rights that pertain to all children under the Constitution. He referred to earlier cases where it was quite clear that these rights did pertain to children outside of marriage but he said in addition the child of a marriage has further rights. That was a construing of the 1964 Act. Are we inadvertently extending that in the Government amendment to say we are deeming this to be a marriage and that therefore, it is a child of the marriage and, therefore, this child in addition has other rights?
We do not have to do that because we are clear on what the objective is. The objective is to secure the position of the father. The amendment which we put forward expressly meets the concern. On Committee Stage Senator O'Leary expressed this concern and it was in the light of that that I decided to draft this amendment on Report Stage. We know what we are doing in relation to the amendment we put forward. It is clear what we are doing. I do not know what the Government amendment means. I cannot think for that reason that it is a better amendment. If I am not clear about what the implications of it are, then I find it hard to believe that it is better than stating quite clearly and explicitly what the purpose is.
I share the foolishness of Senator Brendan Ryan in entering into a discussion with expert lawyers. After listening to what Senator Robinson has said in regard to the Government amendment, quoting the words "then the father and mother shall for the purpose of this Act be treated as being married to each other." Senator Robinson went on to add "and therefore the children considered as the children of a marriage" but that does not appear in the amendment. It is possible to construe this both ways. Speaking purely as a lay person and not as a lawyer on the face of it it talks of the effect of the deeming which is being done on the position of a mother and father. If it wanted to deal with the children as well, surely it would say the mother and father shall for the purposes be treated as if they are married and any child of the union treated as a child of a marriage. Definitely, the question of the children is specifically omitted in that paragraph. As a lay person, the continuation from the position of the mother and father as set out in the Government amendment to the child does not necessarily follow.
I do not want to suggest to Senator Dooge in responding to his attempted interpretation that I can be clear on the interpretation. I am not clear on what it means. The interpretation advanced by Senator Dooge is a possible interpretation. I do not think it is a convincing interpretation. I say this in the context of trying to tease it out because it is an interpretation for the purposes of the Guardianship of Infants Act. It deals with custody. It deals with children in particular and it deals with their status. It must have implications for that Act and, therefore, for children in the context of that Act. Specifically it was the welfare of the child in the case that went to the Supreme Court that was at issue; it was the welfare of the child of parents who were married.
Will the same considerations apply to a child whose parents for the purpose of the Act are to be deemed to be married? What does it mean? We do not have to worry about that. If we adopt the approach which is being advocated in the amendment, then it is quite clear what we mean. We are talking about accepting that the marriage has been declared to be null and void on foot of the court order because it was either a void or a voidable marriage but securing quite properly as a Legislature that the father's position will be what we want it to be, that he will exercise and continue to exercise joint guardianship with the mother.
The purpose is important and it is very much in the interest of the child that we secure the purpose. I cannot accept that the generally worded draft which the Minister has brought forward is better than an express provision to that effect. The express provision is clearly a more prudent one because the other raises the implications of what it means and what the legal implications would be for the welfare of a child whose parents are deemed to be married. Is the child of that marriage for the purposes of considering its welfare under the Guardianship of Infants Act, or considering custody under the Guardianship of Infants Act and so on?
The result desired by the Government and by Senators could be achieved using much more direct language. Unfortunately, the structure of the 1964 Act constrains us to adopt this approach. I recommend that in view of the concern expressed the matter will be considered between now and the introduction of the Bill in the Dáil.
Perhaps the Minister would explain what it is about the structure of the amendment that has inhibited her.
There was a request for a break earlier. It was my intention to move for a break at 2.30 p.m. Perhaps this might be an appropriate point — I hesitate to say an appropriate point of confusion — at which to suspend the sitting of the House. Since Senator Robinson, Senator McGuinness and the Minister have been carrying the burden of this I would take their view as to whether it should be for 45 minutes or an hour.
Sitting suspended at 2.30 p.m. and resumed at 3.15 p.m.
I am not sure where we broke off.
An Leas-Chathaoirleach
I understand we are resuming on Government amendment No. 5.
We are considering the purpose of both the ministerial amendment and the amendment which has been tabled to the crucial part as to what we are to do about the consequences of a nullity decree where a marriage has been declared to be null and void because it was a void or voidable marriage. As Senator McGuinness said, we are right to be concerned about the implications of nullity decrees. It is one of the areas where we are seeing a very substantial expansion in the number of cases being brought and a development of the law through judicial interpretation so that we are seeing more marriages annulled by our courts because they are either void or voidable.
What seems to be a view expressed on all sides of the House, and strongly supported by the Minister is that we need to be concerned about the father in those circumstances. The mother would remain because she is the mother and automatically the leading guardian of the child. If there was no marriage she would be in the position of an unmarried mother under the pre-existing law, so we are right to be concerned about the position of the father. The purpose of the amendment which we have drafted to the Government amendment is to make that explicitly clear so that the father from the date of the ceremony, would in effect, notwithstanding the nullity decree, be the guardian of the infant in like manner as if the father had been married to the mother.
This seems to be what was sought when the matter was discussed in detail on Committee Stage. It was the one worry that was expressed in relation to the previous provisions of the Bill which have now been deleted. The section of the Bill provided that in the case of a nullity decree where it was found by the courts there was no marriage because it was void or voidable, nevertheless the children would be marital, and there were grounds for criticising that classification and that grouping of children in that way. Those grounds have obviously been accepted. The Minister has deleted those sections.
It seems we are all addressing the same issue as to what is the best formulation. I was putting to the Minister before we rose for the lunch break that surely it is better to be very express about what we are doing when we are in a complex area than to have a general formulation which might go further than we would intend, that might have implication in relation to interpreting when we are deeming a marriage to have taken place what the consequences would be in a much broader sense, consequences for interpreting the welfare of the child, interpreting custody and so on. I was hoping the Minister might clarify the Government's position on that.
The Senator's amendments came in rather late in the day for us to look at them thoroughly and get a complete insight into what she was approaching in her amendment to our amendment. There is very little difference between us. It is very largely words we are dealing with. I know there is a greater depth of meaning behind the changes. There is a validity in what you have said today. I cannot accept the amendment but I will give a commitment that there will be a recommendation that it will be looked at again before the Bill goes to another House.
I appreciate that the amendment I tabled to the Government amendment came in somewhat late and that this is a very complex area. I am happy that the matter will be looked at. I hope this Bill will proceed in another House at a very early date. I am happy with the Minister's commitment in that regard.
I am very pleased that the Minister has suggested this because I would like to reiterate what Senator Robinson said at the very beginning of this debate. Obviously we are very anxious to have the Bill passed in this House but it is not just a question of whether a new Government would wish or would not wish to have this Bill passed. Since the judgement in the Johnson case it seems that it is incumbent on any incoming Government, regardless of what party they belong to, to pass this legislation through the Dáil in order to comply with the terms of the judgement in that case. In giving time for reconsideration of Senator Robinson's amendment I confidently expect that the Bill will appear in the other House.
I am very glad we have reached some meeting of minds and that the only discussion now is about the form of words. I look forward to the response to this in the other House and I hope some of us will be here to deal with the amended version when it returns to this House for final approval. The Minister is to be congratulated on the scale and the nature of all the amendments she introduced. The Bill is vastly improved by those amendments. They make it a worthy piece of serious social reform.
Amendment agreed to.
Amendment reported.
Amendments Nos. 1 and 2 to Government amendment No. 5 not moved.
Government amendment No. 6:
In page 8, lines 24 and 25, to delete "in respect of a non-marital infant".
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendments Nos. 7, 14, 58, 61, 63 and 64 are related and may be discussed together.
Government amendment No. 7:
In page 8, line 26, to delete "the Act of 1986" and substitute "the Act of 1987".
The purpose of these amendments is to replace the references throughout the Bill to "the Act of 1986" with reference to "the Act of 1987" since this Bill will, assuming it is enacted in the present year, be the Status of Children Act, 1987. Reference in italics in the Act's title are changed automatically without the need for formal amendment. These other references are not, however, italicised and must be amended by the House.
I support this amendment but I hope we will not be amending the reference to the year, that it will be the Act of 1987. To simplify matters, is there any objection to us now clearing all those amendments immediately because they are all the same?
An Leas-Chathaoirleach
I understand that I cannot agree to them until I come to them. Senator Dooge might help me here.
The appropriate procedure here is that when we group these amendments we debate them together. For example, when we reach amendment No. 14, it having been debated already, would be agreed and reported out of Committee.
Amendment agreed to.
Amendment reported.
Government amendment No. 8:
In page 8, lines 26, before ", a person" to insert "in respect of an infant whose father and mother have not married each other".
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendments Nos. 9, 11 and 12 are related and may be discussed together.
Government amendment No. 9:
In page 8, line 28, to delete "child" and substitute "infant".
These amendments relate to guardianship. They change references in the proposed section 3A of the 1964 Act from "child" to "infant"— the term used in the Guardianship of Infants Act, 1964. This corrects an oversight.
Amendment agreed to.
Amendment reported.
Government amendment No. 10:
In page 8, line 29, after "any" to insert "final".
This amendment relates to guardianship and proof of paternity. The main purpose of the proposed section 3A of the Guardianship of Infants Act, 1964, at section 9 of the Bill as it stands, is to ensure that, where the question of paternity arises in relation to the guardianship or custody of a child whose parents have not married each other, the standard of proof to be applied by the court determining that issue is the balance of probabilities. The section as worded at present, however, could lead to an undesirable result where the court wished to make an interim order to maintain the status quo pending the determination of the main issue. For example, one could visualise a case where the father of a child has been taking care of the child on his own and the mother now wants to claim custody for herself exclusively. If in such a case the mother alleged that the father was not the father, the court would, under the provision as it stood, not be able to make an interim order leaving the child in the father's custody with access by the mother. This would clearly be an unnecessary restriction on the power of the court to do what is in the child's interests. This amendment, by limiting the restriction in the section to final orders only, will leave the court free to make whatever interim orders it thinks fit pending determination of the question of paternity.
I had not adverted to that amendment because I had taken it in the grouping as a consequential amendment. The Minister has made a good case in inserting the word "final" to allow the court, where necessary, to make an interim order without being prevented from doing so by the terms of the section.
Amendment agreed to.
Amendment reported.
Government amendment No. 11:
In page 8, line 32, to delete "child" and substitute "infant".
Amendment agreed to.
Amendment reported.
Government amendment No. 12:
In page 8, line 34, to delete "child" and substitute "infant".
Amendment agreed to.
Amendment reported.
Government amendment No. 13:
In page 8, line 38, to delete "The mother, if living, of a non-marital infant" and substitute "Where the mother of an infant has not married the infant's father, she, while living,".
Amendment agreed to.
Amendment reported.
Government amendment No. 14:
In page 8, line 40, to delete "the Act of 1986" and substitute "the Act of 1987".
Amendment agreed to.
Amendment reported.
Government amendment No. 15:
In page 9, to delete lines 1 to 3 and substitute the following:
" `6A.—(1) Where the father and mother of an infant have not married each other, the court may, on the application of the father, by order appoint him to be a guardian of the infant.".
Amendment agreed to.
Amendment reported.
Government amendment No. 16:
In page 9, lines 5 to 7, to delete "in the case of a non-marital infant, the appointment of the natural father of the infant as his guardian by the court under this section" and substitute "the appointment by the court under this section of the father of an infant as his guardian".
Amendment agreed to.
Amendment reported.
Government amendment No. 17:
In page 9, line 14, to delete "natural".
Amendment agreed to.
Amendment reported.
Government amendment No. 18:
In page 9, line 15, to delete "natural".
Amendment agreed to.
Amendment reported.
Government amendment No. 19:
In page 9, to delete line 17 and substitute the following:
"Registration Acts, 1863 to 1987,
and such procedure shall be as informal as is practicable and consistent with the administration of justice.'.".
This amendment deals with guardianship and rules of court. It concerns the making of rules of court to provide a special procedure for the appointment as guardian by the court of a father who has not married the child's mother, in cases where the mother consents to the appointment and the father's name appears on the births register, at section 11 of the Bill as it stands at present.
On Committee Stage Senators Robinson and McGuinness tabled an amendment with the purpose of stressing that the procedure should be of an informal nature. I agree that the provision as drafted did not spell out what was in the minds of the Legislature, and thus might be regarded as leaving too much to the discretion of the rules committees. Accordingly, the present amendment is intended to make it clear that the procedure should be as informal as possible.
The Minister has carried out the undertaking she gave on Committee Stage to look at this section and at the principle behind the amendment concerned. The wording that she proposes goes a substantial way to meet the point. It is very important because, as the Bill stands, the father of a child born outside marriage would not become automatically the guardian, but would be in a position to apply to court and, where the father has the support of the mother, it is in everybody's interest that that procedure be as simplified, as informal, as unburdensome as possible. It is a burden on anyone to have to go to court for any reason and it was not clear, as the section of the Bill stood, that the rules of court would, in fact, be addressed to making it as informal and, therefore, as accessible and as easy to obtain and as cost free as was practicable.
Just one other matter arises in the context of this amendment. I wonder if the Minister would clarify the position when an Act of the Oireachtas makes express reference to the enactment of rules of court. The rules of court are enacted, of course, by the rules of court committee and not by the Minister. Who takes the initiative? Does the Minister notify the chairman of the rules committee and say that is a matter on which rules should be urgently drawn up? How is it ensured that that is done?
The Minister has made it clear and indeed has amendments to that effect, that the Act itself will come into operation a month from today and that there will be no substantial delay on any part of it. Can she assure the House that there will be no delay on the formulation of rules for the purposes of this particular application and that these will be very widely promulgated to the various bodies like the Federation for the Unmarried Parent and Child, Cherish and all the other bodies who would be concerned about single parents, both mothers and fathers, and who would wish to know how this is operating and who would wish to advise and to encourage fathers to avail of this facility when it is available? Could the Minister clarify that?
I should just like to re-emphasise what Senator Robinson has said about the necessity for making sure that the rules are enacted rapidly because, under the Courts Act, 1981, there was a whole series of new family law rules. They appeared relatively quickly, but it does not necessarily happen automatically, as I have found to my cost. Senator O'Leary and I, in regard to a recent Courts Act, asked the Minister for Justice to amend the Courts Act so as to allow the enforcement of custody orders under the Guardianship of Infants Act in the District Court. The Minister very kindly acceded to our request and amended the Act in such a way that the amendment came in and was carried in this House and in the other House and there was no problem about that at all, but as far as I know to date, no rules of court for the District Court have been made for the operation of this. It was about last spring when this amendment was passed and still the rules committee have not made any rules to allow them to use this amendment to enforce custody orders in the District Court. It will be essential for the Minister not only to ask them but, I think, to keep an eye on them to make sure that they actually do it.
On the point of clarification, the rules of court are made by the rules committee, initiated by the Minister for Justice in the first instance, and then have to be consented to by him. I would like to reassure the House that this procedure will be started as soon as this legislation is passed by this House, so that it can be set in train, and that will be possible for the Minister for Justice and myself to do.
Amendment agreed to.
Amendment reported.
Government amendment No. 20:
In page 9, line 20, to delete "a non-marital infant" and substitute "an infant whose father and mother have not married each other,".
Amendment agreed to.
Amendment reported.
Government amendment No. 21:
In page 9, line 23, to delete "natural".
Amendment agreed to.
Amendment reported.
Government amendment No. 22:
In page 9, lines 25 to 27, to delete "; but no such order shall, on such application, be made under paragraph (b) of subsection (2)".
This amendment on the right of an "unmarried" father to seek maintenance from the mother is concerned with the proposed provision (at section 12 of the Bill as it stands at present) to replace section 11 (4) of the Guardianship of Infants Act, 1964.
The present section 11 (4) of the 1964 Act gives the father of an illegitimate child the right to apply, under the other provisions of section 11, for access to or custody of the child, but specifically excludes his right to seek maintenance from the child's mother for the child. This is because, at the time the 1964 Act was enacted, there was no provision in maintenance law which would enable the father of an illegitimate child to seek a maintenance order against the mother. The provisions of Part IV of this Bill will change all that, and will enable either parent who is not married to the child's other parent to proceed against that other parent for maintenance on behalf of the child. In that context, it is inconsistent that the restriction should continue in the guardianship Act. This amendment, accordingly, deletes the restricting words from the replacement section 11 (4).
I would obviously welcome this amendment. In addition to what the Minister has said about the father of an illegitimate child not having been able to apply for maintenance, in 1964 I do not think even the father of a legitimate child could have applied for maintenance. There was no such thing as the Maintenance Act. They might have been able to apply under the Guardianship of Infants Act but, in fact, very few people apply for maintenance under the Guardianship of Infants Act. It is generally under the Maintenance Acts. The other forms of maintenance only applied for women as to men. Naturally, I welcome this change, because there are situations where mothers can be earning considerably more than fathers and it is only right that the father should be able to apply for maintenance in this kind of situation.
I suppose, as Senator Dooge and I are the only men who participated in this debate at least I ought to welcome the amendment. It is a gesture in the direction of equality, in a direction which is rarely identified in the struggle for equality. May I ask — and I do not want to quibble — do we have to keep using the terms "legitimate" and "illegitimate"? Given what we are doing, perhaps we should be learning to use the more cumbersome but altogether more just phraseology that is intended to be used from here on? Are there legal reasons that at this stage we must keep using those terms?
Only in the context of where we are referring to particular sections in legislation for clarity, but I was very conscious indeed, Senator, of feeling uncomfortable using the word as I did and I think one of the other Senators in replying also did. In the context for clarity and description, it will still be used if it is in the context of existing legislation.
Amendment agreed to.
Amendment reported.
Government amendment No. 23:
In page 9, line 40, after "amended" to insert "in subsection (1)".
This is purely a drafting amendment.
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendment No. 24 is on the additional list. Amendments Nos. 24 to 28, 30 to 41 and 44 to 51 are related and may be taken together.
Government amendment No. 24:
In page 9, to delete lines 41 to 44 and in page 10, to delete lines 1 to 11 and substitute the following:
"(a) by the insertion after the definition of `Court' of the following definition:
` "dependent child" means any child (including a child whose parents are not married to each other) who is under the age of sixteen years, or, if he has attained that age—
(a) is or will be or, if an order were made under this Act providing for periodical payments for his support, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of twenty-one years, or
(b) is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully;',
(b) by the substitution for the definition of `dependent child of the family' of the following definition: ` "dependent child of the family", in relation to a spouse or spouses, means any dependent child—
(a) of both spouses, or adopted by both spouses under the Adoption Acts, 1952 to 1976, or in relation to whom both spouses arein loco parentis, or
(b) of either spouse, or adopted by either spouse under the Adoption Acts, 1952 to 1976, or in relation to whom either spouse isin loco parentis, where the other spouse, being aware that he is not the parent of the child, has treated the child as a member of the family;',”.
These amendments are related to new rules of construction for maintenance law. The Family Law (Maintenance of Spouses and Children) Act, 1976, deals with maintenance for "dependent children of the family", which expression is defined in that Act in relation to a spouse. There are two elements to that definition, one describing the relationship between the spouse and child and the other dealing with age and whether the child is disabled or receiving full time education. The approach taken in this Bill as originally drafted was to add (at the present section 15 of the Bill) a further definition to the 1976 Act of the expression "dependent non-marital child", defining such a child in relation to a parent; that definition contains the second of the two elements.
Now that the term "non-marital" is being discontinued, a fresh approach has had to be taken to the amendment of the 1976 Act resulting in the amendments now before the House.
Amendment No. 24 replaces the definition of "dependent non-marital child" at the present section 15 of the Bill, and restates the definition of "dependent child of the family" in the 1976 Act. These changes are as follows:
"dependent child" is described in terms of the second element of the original definition in the 1976 Act, i.e. the child's age and whether the child is disabled or receiving full-time education. It covers children both within and outside marriage;
"dependent child of the family" is restated to the same effect as the original definition in the 1976 Act. It is confined to children living within a family based on marriage, including adopted children and those to whom either spouse is in loco parentis.
The benefit of distinguishing in this way between the two categories of "dependent child" is that it gives greater flexibility in the use of language in setting out the liability of parents to maintain their dependent children at the proposed new section 5A being inserted in the 1976 Act.
Amendment No. 25 makes further changes to the definitions in the 1976 Act. The definition of "maintenance orders" is a restatement of that proposed at the present section 15 (c) of the Bill but excluding the words in brackets. These words refer to the proposed section 58, which is being deleted from the Bill by amendment No. 43 which was already discussed with amendment No. 4 relating to children of void and voidable marriages. The definition of "parent" is new to the Bill and to the 1976 Act. It is required so as to ensure that when the term "parent" is used, particularly in section 5A of the 1976 Act, being inserted by the present section 17 of the Bill, which deals with maintenance for children whose parents are not married to each other, it will include the adoptive parent of an adopted child but will not include the parent by blood of a child adopted by someone else.
Amendment No. 26 makes some additional changes of a drafting nature to section 5 of the 1976 Act. The words being inserted in section 5 (1) (c) of the 1976 Act by paragraph (a) (i) of the amendment are necessary to distinguish between maintenance orders made under section 5, dealing with maintenance for spouses and dependent children of the family, and those dealing with dependent children whose parents have not married each other, made under section 5A of the 1976 Act, being inserted by section 17 of the Bill as it stands at present. The words being inserted by paragraph (a) (ii) of the amendment are necessary because of the new definitions provided by amendment No. 24; the fact that the term "dependent child" has now been defined separately from "dependent child of the family" makes it necessary to add the extra, qualifying, words here. Amendment No. 29 inserts a table showing the amended section 5 (1) (c) as it will now read. Amendments Nos. 27 and 28 replace the now obsolete term "non-marital" with a suitable formula.
Amendment No. 30 makes a similar change in the proposed section 5A of the 1976 Act, at present section 17 of the Bill, which in its present form enables either parent of a dependent non-marital child to claim maintenance on behalf of the child from the other parent. The effect of the amendment is to enable either parent of a child whose parents are not for the time being married to each other to proceed against the other parent. This form of words will, incidentally, encompass, among others, children whose parents have been, but are not now, married to each other. Amendments Nos. 31 to 41, inclusive, make consequential changes to the proposed section 5A, either by simple deletion of the word "non-marital" or by the substitution of appropriate wording in order to carry the effect of amendment No. 30 through the section.
Section 6 (3) of the 1976 Act specifies the circumstances under which a maintenance order for a dependent child of the family terminates automatically or may be terminated by order of the court. Under the original wording of the changes to this provision, at present section 18 of the Bill, it would have been necessary to make a small change in subsection (3) and add another subsection of similar effect to deal with maintenance orders for dependent non-marital children. With the new wording, it has proved possible to achieve the desired result by simple amendment of section 6 (3) without the need for an additional subsection. Amendment No. 44 makes the necessary changes in section 6 (3) of the 1976 Act and contains a table showing that provision as changed.
Amendments Nos. 45 to 50, inclusive, have the effect of removing from the new provisions of the 1976 Act, being inserted by the present sections 19 and 20 of the Bill, the now obsolete term "non-marital" and inserting the appropriate formula in each case to describe a dependent child whose parents are not married to each other. The present wording of the amendment to the Defence Act, 1954, at present section 23 of the Bill, would introduce the term "non-marital" into that Act. Amendment No. 51 replaces this term with a suitable formulation to achieve the desired result.
I went carefully through these amendments. It seems they are desirable largely as drafting amendments to bring the text of the Bill in line with the approach to the defining of the status of the child by reference to the status of the child's parents. Then there are the consequential amendments in relation to the Family Law (Maintenance of Spouses and Children) Act, 1976. When trying to follow the Government amendments when they were circulated I was concerned that the Minister was necessarily amending sections of the Family Law (Maintenance of Spouses and Children) Act, 1976, which are extremely important sections — section 5 in relation to maintenance, section 3 in relation to definition and adding a section 5A for the child not of a marriage.
We are addressing the question of whether in relation to these amendments, we can ensure that at the end of the day the two legislative enactments are clearly capable of being read together and are helpful to practitioners, the courts and the people who want to know what the law is in relation to maintenance. What is proposed in the amendments is the tabling by way of a complete re-enactment, as amended, of a sections 3 and 5 of the 1976 Act. Alternatively it could be by substitution. The importance cannot be over-emphasised that we are making changes to basic provisions in relation to maintenance. I am very much in support of those changes because they are part of the principle and the objectives of this Bill. We are changing the manner of calculation of maintenance generally and we are changing the obligation to provide maintenance. Most maintenance applications come before the District Court and many people who apply for maintenance will not and need not have a lawyer to advise them. Certainly people would be advised to have a solicitor in the District Court, and possibly in a difficult case to have to counsel. Applications for maintenance are intended to be relatively straightforward.
What I am concerned about is that at the end of these necessary and consequential amendments it will be very difficult to be sure you have advised correctly because you will have to refer to the Status of Children Bill for some subsections, to the 1976 Act for other subsections and back again. It would be better to have the text of the sections completely reproduced so that we know where we are. It was for that reason I proposed the amendments in relation to the Bill.
I am confused. The burden of Senator Robinson's remarks seems to apply to amendment No. 25A. In fact, we have not yet disposed of the preceding group. I agree completely with what she said but it is in the wrong place.
I think we can dispose of amendment No. 24et al and then go on to what Senator Robinson has to say.
Amendment agreed to.
Amendment reported.
Which of them are we agreeing to? There is a No. 24 on the main sheet and a No. 24 on the additional sheet.
An Leas-Chathaoirleach
Amendment No. 24 on the additional sheet is a substitute for amendment No. 24 on the main list and that is what we are agreeing to.
Government amendment No. 25:
In page 10, to delete lines 16 to 22 and substitute the following:
"(d) by the substitution of the following definition for the definition of `maintenance order':
` "maintenance order" means, where the context requires, an order under either section 5 or 5A of this Act;',
and
(e) by the insertion before the definition of `variation order' of the following definition:
` "parent", in relation to a dependent child, includes a person who has adopted the child under the Adoption Acts, 1952 to 1976, but does not include a person who is a parent of the child adopted under those Acts where the person is not an adopter of the child;'.".
An Leas-Chathaoirleach
The footnote to the amendment should read: This amendment is in substitution for amendment No. 25 on the Principal List of amendments.
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendment No. 25a has a star in front of it and that is not correct as it is in the names of Senator Robinson and Senator Brendan Ryan. Amendment Nos. 29 and 29a may be discussed with No. 25a as they are related. No. 29 is an alternative to 29a. If No. 29 is accepted No. 29a cannot be moved.
I move amendment No. 25a:
In page 10 after line 22 to add to the section the following:
"(2) Section 3 of the Act of 1976 as amended by this section is set out in the Table hereunder—
`TABLE
(1) In this Act, save where the context otherwise requires—
"antecedent order" means—
(a) a maintenance order,
(b) a variation order,
(c) an interim order,
(d) an order under section 8 of this Act (in so far as it is deemed under that section to be a maintenance order),
(e) an order deemed under section 30 of this Act to be a maintenance order,
(f) an order providing for a periodical payment under the Illegitimate Children (Affiliation Orders) Act, 1930,
(g) an order for maintenance under section 11 (2) (b) of the Guardianship of Infants Act, 1964,
(h) an enforceable maintenance order under the Maintenance Orders Act, 1974,
(i) an order for payment of alimony pending suit or permanent alimony;
"attachment of earnings order" means an order under section 10 of this Act;
"Court" shall be construed in accordance with section 23 of this Act;
"dependent child" means any child (including a child whose parents are not married to each other, who is under the age of sixteen years, or, if he has attained that age—
(a) is or will be or, if an order were made under this Act providing for periodical payments for his support, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of twenty-one years, or
(b) is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully;
"dependent child of the family", in relation to a spouse or spouses, means any dependent child—
(a) of both spouses, or adopted by both spouses under the Adoption Acts, 1952 to 1976, or in relation to whom both spouses are in loco parentis, or
(b) of either spouse, or adopted by either spouse under the Adoption Acts, 1952 to 1976, or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he is not the parent of the child, has treated the child as a member of the family;
"desertion" includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living separately and apart from him, and cognate words shall be construed accordingly;
"earnings" means any sums payable to a person—
(a) by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service);
(b) by way of pension or other like benefit in respect of employment (including an annuity in respect of past services, whether or not rendered to the person paying the annuity, and including periodical payments by way of compensation for the loss, abolition or relinquishment, or diminution in the emoluments, of any office or employment);
"interim order" means an order under section 7 of this Act;
"lump sum order" means an order under section 21A of this Act;
"maintenance creditor", in relation to an order under this Act (other than an order under section 22 of this Act), or to proceedings arising out of such an order, means a person on whose application there has been made such an order;
"maintenance debtor", in relation to an attachment of earnings order, or to proceedings in which a Court has power to make such an order, or to proceedings arising out of such an order, means the spouse by whom payments are required by the relevant antecedent order to be made and, in relation to any other order under this Act (other than an order under section 22 of this Act) or to proceedings in which a Court has power to make such an order, or to proceedings arising out of such an order, means a spouse who is or, if it were made, would be required by such an order to make periodical payments for the support of persons named in the order;
"maintenance order" means, where the context requires, an order under either section 5 or 5A of this Act;
"normal deduction rate" and "protected earnings rate" have the meanings respectively assigned to them by section 10 of this Act;
"parent", in relation to a dependent child, includes a person who has adopted the child under the Adoption Acts, 1952 to 1976, but does not include a person who is a parent of the child adopted under those Acts where the person is not an adopter of the child;
"variation order" means an order under section 6 of this Act varying a maintenance order.
(2) Subject to section 16 of this Act, the relationship of employer and employee shall be regarded as subsisting between two persons if one of them as a principal and not as a servant or agent pays earnings to the other.
(3) References in this Act to a District Courts clerk include references to his successor in the office of District Court clerk and to any person acting on his behalf.
(4) References in this Act to any enactment shall be construed as references to that enactment as amended by any subsequent enactment, including this Act.' ".
Speaking as a lay person I think the accessibility of the law is an extremely important question. I have spoken often in this House about the need to ensure that the laity are not intimidated by the mumbo-jumbo of any profession, including my own, to ensure that simplicity ought to be the dominating objective in any area of legislation. During the past four years I have seen examples in this House of extremely simple drafting and on occasions examples of the direct opposite. Our amendment simply attempts to make clear what is the intention of the Government amendment and to make it easily accessible for practitioners, and also for lay people, so that they can understand the process by which many important decisions about their lives are taken.
In the areas of maintenance, and so on, important decisions about people's lives are taken by courts. It is important both for justice and for democracy, that people should understand it. These proceedings should not be carried out over their heads while the innocent lay person stands by and hopes for the best in a sort of late 20th century version of the rites of the Holy Roman Church which nobody understood but everybody believed were very efficacious for their souls. I think we can do better with the law than that. Therefore, to provide something as complex as this in the form of a table which states the reworded sections is important in terms of accessibility in particular.
I have great sympathy with this particular case and it is no wonder I have great sympathy because I have been pressing this case for a number of years and, indeed, Senator Eoin Ryan on the opposite side of the House has also been pressing this case. Unfortunately what we are doing, if we adopt this amendment, is doing something twice in the legislation which gives rise to difficulty. We have a fundamental problem here. We should revise our Standing Orders or the parliamentary draftsman should be instructed to do the semi-consolidation which is what is here. I am in sympathy with what is being proposed. We would get far better legislation and it would be legislation which more Members of the House would be able to discuss.
We have an extremely complex Bill here this afternoon and mere interest in it is not enough to allow one to follow the complexity of it. If most of it was in the form of amendment No. 5a then we would have a higher participation. My main problem is that, having already enacted amendments Nos. 24 and 25, the case for enacting amendment No. 25a is weaker. I would rather have amendment No. 25a in there and not have amendments Nos. 24 and 25. I think it is a more general problem. I have spoken on this matter for almost a quarter of a century and I leave it to others to try to see to its resolution.
In regard to amendment No. 25a, and indeed to No. 29a which is basically the same, I accept what Senator Dooge has said. There is a difficulty and we are doing the same thing twice. Perhaps the Minister might do the same thing as she agreed to do on our previous amendment and have another look at it before the Bill goes to the other House. As a practitioner it would simplify life enormously to have this sort of semi-consolidation that Senator Dooge was speaking of and which is contained in the amendment. Otherwise you are put in the position where you take your copy of the Maintenance Act and go through it line by line stroking out things with a pen and writing out other things. Not only do I have to do this as an individual but the librarian and the Law Library will have to do this with every copy of the maintenance Act that is in the Law Library. I know from experience that when trying, for instance, to do a case under the Children's Act 1908, you have this ancient volume of 1908, Statutes and every bit of it is full of little arrows and little bits of writing in and out where the Act has been amended piecemeal from time to time. I suggest that to do this in the way of semi-consolidation will be extremely helpful. I have a very vivid memory of hearing a colleague making an argument in the Circuit Court on the Children's Act, 1908, with regard to a section in his copy. It happened to be a copy that belonged to Longford Circuit Court rather than the Law Library. His copy had not notified him that that section had long ago been deleted so that horrible things can happen to you as a practitioner if you have to rely on these written in amendments. Perhaps the Minister would accept that, as in the previous amendment, this is something that could be looked at, to put in a substitute section. A substitute section might be as good a way as any to approach it or alternatively to put in a table as in the amendment. This would make maintenance cases much more simple in the future.
I thank the House for support on this. I think we all feel strongly about it. I could not emphasise enough, as Senator McGuinness has done, that this is a mainstream area which comes up every day in the District Court. It is vital that the proper text be accessible and available to people. It is a simple drafting amendment. Perhaps we cannot do it on Report Stage because of what we have already done. For example, in amendment No. 5 the Minister substituted an amendment which in fact was a substitution for section 2 of the 1964 Act. The Act of 1964 is hereby amended by the substitution for section 2 of the following section. All that would be required would be a drafting amendment to do that in relation to sections 3 and 5 of the 1976 Act. Once the amendments have been agreed, then it is purely a drafting amendment.
I appreciate the reasons for putting down these amendments and the thinking behind them. In my time in Parliament I have had cause to deal with legislation that could have been a bit more fleshed out. I am informed this would be a major change in drafting practice and that this is not the first time this request has been made. I cannot accept it as it would constitute a major matter at this point. What we will do — and it will to some extent achieve the same purpose — is to include an explanatory memorandum which could be published with the Bill when enacted. That is the only commitment I can give at this time. However, the Senator's views will be taken into consideration but I cannot give ann further commitment.
Certainly an explanatory memorandum would not achieve the purpose. Practitioners and people going into court do not go around carrying copies of explanatory memoranda. They are usually lost as soon as a Bill is passed and never surface again. I find it difficult to see a major difference between consolidating the amendments made to section 3 of the 1976 Act or section 5 of the 1976 Act on maintenance by way of substituting what is a re-enactment of the section as amended, and what was done in amendment No. 5 tabled on Report Stage. Amendment No. 5 substitutes, by way of a new section 9 to the Bill, a substitution for section 2 of the 1964 Act. A lot of what is being substituted is contained in the 1964 Act; it is bits of it only that are being changed. Most of section 2 is what is in the 1964 Act, which I have here. It is only bits of it that are being changed but it is important and I fully support the suggestion that we have an actual text. I do not see the qualitative difference between what is done there in relation to section 2 of the Guardianship of Infants Act — which was to rewrite it by substituting a clean section — and what is proposed here to be done in relation to the 1976 Act.
There was one phrase the Minister used — and I certainly sympathise with her point of view — and that was that it would be a major change in parliamentary drafting practice. So what? It is a major change in parliamentary practice that Parliament wants. The parliamentary draftsmen should realise that they are servants of Parliament and of the people. We are not dealing here with the Circumlocution Office, though sometimes we may gain the impression we are. It is the clear wish of this House, it has been expressed many many times in this House, that this type of semi-consolidation legislation, the wholesale substitution of sections in amendments form, is what Seanad Éireann wants in legislation that comes before us. I want to say as strongly as I can — I am saying it for the last time — that I think the attitude of the parliamentary draftsmen in refusing to change on this point is reprehensible and is bordering on insolence to this House.
May I support fully what Senator Dooge has just said. I do not have anything like the years of experience that he has here and neither do I have the patience he has. During Senator Dooge's 25 years here this anonymous person called a parliamentary draftsman has probably been 20 or 30 different people, all of whom tell us what is the practice. The practice is obviously a practice which is convenient for some people but which makes the whole area far more complicated. I have a suggestion that whoever forms the next Government should consider either reforming the parliamentary draftsman's office or sacking them.
I am a great believer that a reasonable, intelligent and logical person should be able to understand what legislation is about. The requirements of reasonable, logical people should be the requirements that legislation should meet. Legislation is not the property of a specialist minority. It is the property of the people. It is the basis on which people both have their freedoms and have their freedoms restricted. Any suggestion that some sort of mystical practice of draftsmen over centuries can be justified in making life more complicated for ordinary people is reprehensible, as Senator Dooge quite rightly said. Whether we are going to do it on this Bill or not it is something which should be done and done quickly.
I can merely repeat what I said. I can sympathise with the views expressed. Quite frankly, I can say that I would be very much in sympathy with what Senator Dooge and Senator B. Ryan have said. For the present, I cannot accept this. It is the first time I have come across it and it does make sense. Given that we are not in the last century in printing, now that there is computerisation, it should not be terribly difficult to insert extra sections into Bills. I will recommend strongly that this should be seriously considered.
An Leas-Chathaoirleach
Is amendment No. 25a withdrawn?
Yes, partly because it is not in the form it would need to be in to push the matter further. The proper way to draft would be by way of substitution at this stage and it is not in that form. In the light of what has been said by Senators in this House I hope the Minister's good intentions in this regard will be carried into practice.
Amendment, by leave, withdrawn.
Government amendment No. 26:
In page 10, to delete lines 23 and 24 and substitute the following:
"17.—Section 5 of the Act of 1976 is hereby amended—
(a) by the insertion in subsection (1) (c)—
(i) of `under this section' after `maintenance order' , and
(ii) of `of the family' after `dependent child' in each place it occurs
and
(b) by the substitution of the following subsection for subsection (4):".
Amendment agreed to.
Amendment reported.
Government amendment No. 27:
In page 10, line 33, to delete "dependent non-marital children" and substitute "other dependent children".
Amendment agreed to.
Amendment reported.
Government amendment No. 28:
In page 10, lines 41 and 42, to delete "dependent non-marital children" and substitute "other dependent children".
Amendment agreed to.
Amendment reported.
Government amendment No. 29:
In page 10, to delete line 44 and substitute the following:
"need for care and attention.',
and the said subsection (1) (c), as so amended, is set out in the Table to this section.
TABLE
(c) A maintenance order under this section or a variation order shall specify each part of a payment under the order that is for the support of a dependent child of the family and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child of the family shall be made.".
Amendment agreed to.
Amendment reported.
Amendment No. 29a not moved.
Government amendment No. 30:
In page 10, to delete lines 45 and 46 and in page 11, to delete lines 1 to 4 and substitute the following:
"18.— The Act of 1976 is hereby amended by the insertion after section 5 of the following section:
`5A.—(1) Subject to subsection (3) of this section, where, in respect of a dependent child whose parents are not married to each other, it appears to the Court on application to it by either parent of the child that the other parent has failed".
Amendment agreed to.
Amendment reported.
Government amendment No. 31:
In page 11, line 10, to delete "dependent non-marital child" and substitute "child as aforesaid".
Amendment agreed to.
Amendment reported.
Government amendment No. 32:
In page 11, line 15, after "where" to insert "in respect of a dependent child whose parents are not married to each other".
Amendment agreed to.
Amendment reported.
Government amendment No. 33:
In page 11, line 17, to delete "to whom subsection (1) of this section relates".
Amendment agreed to.
Amendment reported.
Government amendment No. 34:
In page 11, line 18, to delete "a dependent non-marital child" and substitute "the child".
Amendment agreed to.
Amendment reported.
Government amendment No. 35:
In page 11, line 38, to delete "non-marital".
Amendment agreed to.
Amendment reported.
Government amendment No. 36:
In page 11, to delete lines 41 to 44 and substitute the following:
"(iii) any other dependent children of either parent,".
Amendment agreed to.
Amendment reported.
Government amendment No. 37:
In page 11, lines 46 and 47, to delete "non-marital".
Amendment agreed to.
Amendment reported.
Government amendment No. 38:
In page 11, line 53, to delete "non-marital".
Amendment agreed to.
Amendment reported.
Government amendment No. 39:
In page 12, to delete lines 3 to 6 and substitute the following:
"(iii) any other dependent children of either parent,".
Amendment agreed to.
Amendment reported.
Government amendment No. 40:
In page 12, lines 7 and 8, to delete "non-marital".
Amendment agreed to.
Amendment reported.
Government amendment No. 41:
In page 12, line 13, to delete "non-marital".
Amendment agreed to.
Amendment reported.
Government amendment No. 42:
In page 12, to delete line 33 and insert "the said subsection (2) shall not be payable.'.".
Amendment agreed to.
Amendment reported.
Government amendment No. 43:
In page 12, to delete lines 34 to 56 and in page 13, to delete lines 1 to 4.
Amendment agreed to.
Amendment reported.
Government amendment No. 44:
In page 13, to delete lines 5 to 28 and substitute the following:
"19.—Section 6 of the Act of 1976 is hereby amended in subsection (3)—
(a) by the deletion of "of the family" where it first occurs, and
(b) by the substitution of "for the purposes of the order" for "of the family" where it last occurs,
and the said subsection, as so amended, is set out in the Table to this section.
TABLE
(3) That part of a maintenance order which provides for the support of a dependent child shall stand discharged when the child ceases to be a dependent child by reason of his attainment of the age of sixteen years or twenty-one years, as the case may be, and shall be discharged by the Court, on application to it under subsection (1) of this section, if it is satisfied that the child has for any reason ceased to be a dependent child for the purposes of the order.".
Amendment agreed to.
Amendment reported.
Government amendment No. 45:
In page 13, line 32, to delete "dependent non-marital child" and substitute "dependent child who are not married to each other".
Amendment agreed to.
Amendment reported.
Government amendment No. 46:
In page 14, line 14, to delete "non-marital child" and insert "child whose parents are not married to each other".
Amendment agreed to.
Amendment reported.
Government amendment No. 47:
In page 14, lines 18 to 20, to delete "of the family or a dependent non-marital child, as the case may be,".
Amendment agreed to.
Amendment reported.
Government amendment No. 48:
In page 14, line 20, to delete "such a" and substitute "a dependent".
Amendment agreed to.
Amendment reported.
Government amendment No. 49:
In page 14, lines 23 to 25, to delete "of the family or a dependent non-marital child, as the case may be,".
Amendment agreed to.
Amendment reported.
Government amendment No. 50:
In page 14, line 25, to delete "such a" and substitute "a dependent".
Amendment agreed to.
Amendment reported.
Government amendment No. 51:
In page 15, lines 46 to 48, to delete "marital children or non-marital children (within the meaning to the Status of Children Act, 1986)" and substitute "children (including any of his children in respect of whom his spouse is not a parent and any children he has adopted under the Adoption Acts, 1952 to 1976)".
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendments Nos. 52a and 53a are consequential on amendment No. 51a. Amendments Nos. 53b, 54, 54a and 55 are alternative amendments and all are related to amendment No. 52. Amendments Nos. 53, 55, 57, 59, 60, 62, 66, 72 to 78, are also related to amendment No. 52. Amendments Nos. 51a, 52, 52a, 53, 53a, 53b, 54, 54a, 55, 57, 59, 60, 62, 66 and 72 to 78 to be discussed together.
I do not know where I am. Senator Dooge will take a poor view of the Cathaoirleach's remark. If amendment No. 51a falls amendments Nos. 52a and 53a cannot be moved.
I move amendment No. 51a:
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."
This amendment is a matter which was raised on Committee Stage by way of a similar amendment. It is an important issue. I was sorry the Minister did not table any amendment to meet the concern to ensure that the provisions of the Act in relation to construction of wills would apply from the time of the passage of the Act. The amendment is an amendment to section 26 of the Bill on construction of dispositions. It is necessary to put it in the context of section 26. As it stands, section 26 (1) says that:
In deducing any relationship for the purpose of any disposition (including a disposition creating an entailed estate) made after the commencement of this Part, the relationship between a person and his father and mother shall, unless the contrary intention appears, be determined irrespective of whether the father and mother are or have been married to each other,...
It is operating for the future. Under subsection (5) of section 26 as it stands, it states:
In relation to any disposition made before the commencement of this Part—
Under 6 (a) it states:
In this section "disposition" means a disposition, including an oral disposition, of real or personal property whether inter vivos or by will.
That is that it would not affect any disposition. What is of very real concern is the fact that a person may have made a will in 1986 but may not die for 30 years. That will would not come under the new construction proposed in section 26 in relation to deducing relationships. That seems to be an unnecessarily restrictive provision, unnecessarily solicitous of the freedom of testamentary disposition. If a person makes a will in 1986 and then lives for another 30 years, the law has changed. The principles for construction have changed. That person can make another will to replace the will but cannot avoid the consequences of the law. Why should they be allowed to avoid the consequences of the law? The strange thing is that although the Bill, as it stands, will only apply to wills made after the passage of the Bill, another section provides that it is open to a child to apply under section 117 of the Succession Act in circumstances which would in effect allow the person to apply even if the will was made before the passage of the Act. I cannot understand the full reasoning of that. It is a very complex area but what we are saying is that if the will was made before the Act came into operation, it will not be construed in accordance with the new principles for construction which ensure that children would get full and equal rights. If the will has excluded a child outside the marriage, that child could go to court and apply under section 117. If we are concerned about freedom of testamentary disposition, we have already made a change in that. Even though the person made a will and that at the time they made the will, section 117 would not have applied to it, if the person dies after the Act has come into operation, section 117 will apply and a person can apply to court. Why are we not going the full measure on this and providing that it will apply to wills made, provided the person dies after the operation of the Act? The amendment which has been put forward here is drawn from and indeed represents precisely what was put in the Succession Act, 1965. The wording is taken verbatim from section 9, subsection (4) of that Act which is a general interpretative section. It applied to the provisions of the Succession Act in the following terms:
The provisions of this Act 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 dies after such commencement, whether the will was executed before or after that time.
I do not understand why the Government are not prepared either to accept this amendment or have not tabled a similar amendment to ensure that we do not carry forward two types of construction of wills into the future indefinitely. This Bill encourages people to go out and draw up wills which would not be subject to the construction we are talking about, where, for example, if a testator simply says: I leave my property equally to my children, at the moment that would not include children outside marriage on a construction. After this part of the Act comes into force it would but not in relation to the will of somebody whose will was made before the Act came into operation. That person would know what the construction of the law was and could potentially, within certain limitations, draw up a will which complied with the law as it was known to the testator. Of course the provision should not apply retrospectively to people who died before the Act came into operation but why not apply it to wills made before the Act came into operation because the person concerned knows the law has been changed, knows the extent of the law and can, if necessary, make further modifications within the limits of the law? We are determined that there will be equality but why are we allowing a running interpretation for the next 20, 30 or 40 years of certain wills which are going to be interpreted along different lines and in accordance with different values? We seem to be perpetuating a discrimination into the future for no valid reason.
To add to what Senator Robinson has said, in particular because this amendment is precisely what was done in the Succession Act, 1965, one could envisage that had that Act done the same kind of thing as this Bill is doing, we would still be dealing with the wills of people who had made wills before the Succession Act and who were only dying now. Their wills would be dealt with in one way so as to exclude the legal rights of spouses or whatever, whereas other wills would be dealt with in another way. It is the way in which this clause of the Bill carries things forward into the future that makes matters so difficult. I cannot help feeling that the fact that this has been included and has not been amended is still a sort of sop to people who do not want to give equality to these kind of children and who are hoping that by keeping the thing going for another few years at least it will do out their time as it were. In contrast the provisions under section 117 of the Succession Act where we are enabling children whose parents were not married to apply to court. This is going to compound the confusion because there is a large number of applications under section 117. The courts have formed the habit of interfering quite considerably with the wishes of the testator in these cases, so that it is quite possible that children would succeed in applying under section 117. Unfortunately then they are left in the practical position that they are succeeding at the cost of an application to court. The cost of the application to court will be taken out of the estate and the costs of these section 117 cases are quite high — very often Senior Counsel have to be instructed, and so on so that the estate may be left with nothing by the time it has paid the lawyers. That is not what we want to achieve. If we could accept the principle of amendment No. 51a, it would definitely improve the Bill and ensure that equality for children of unmarried parents will come in at a much earlier stage than if we allow the section the way it is.
I am beginning to suspect there is something going on around this country on a scale that none of us suspected. There seems to be a grand fear that if we do not give a 30 year period of grace to the men of this country, children will appear from all sorts of places laying large claims on their estates. There is no other way of understanding the blanket nature of the provision in this Bill. I do not think anybody exaggerates when they say we could be waiting 30 years and probably longer. Anybody who has any reason to have the faintest suspicion that some problem of the nature referred to in this legislation may surface will probably be advised to draw up a will, if they have not already done so, secure in the knowledge that the precious family farm — a matter that seems to surface with frightening regularity — is fairly well protected.
I would like to hear the Minister elaborate at some length on the reasons for it. I do not want to hear yet again about constitutional problems because from what my two eminent lawyer colleagues have said, the provisions in the Succession Act would be unconstitutional if what we propose here were to be unconstitutional. Besides which, I am led to believe that some of the interpretations in the area of property in the Constitution handed down some time ago are perhaps being qualified somewhat by some of the more recent interpretations. Therefore, we might have more reason to be hopeful about a balance of view from the Supreme Court on the issue of property in the future. I would like to hear a fairly detailed response from the Minister as to the reasons behind this, or are there — can I use the word with a small "p" at least — political reasons for having the provision as it is. I cannot understand the extraordinary open-ended nature of the provision as it stands.
This amendment was before the House on Commitee Stage, when I undertook, having regard to the strength of the arguments adduced in support of it by its proposers, to consult further on the issues involved. I have since obtained additional advice on the matter and must reiterate I cannot accept the amendment.
The Law Reform Commission, in their Report on Illegitimacy, at page 140, when recommending the abolition of the present rule of construction of wills and other dispositions stated:
The Commission consider that it would not be advisable for the legislation to provide that the abolition of this rule of construction should be restrospective in its effect so as to apply to instruments made before the enactment of the legislation. Such a policy would greatly unsettle the law and would cause immense confusion, practical difficulties and uncertainty. Accordingly we recommend that this change in the law should apply only to instruments made after the enactment of the legislation.
The suggestion has been made that a waiting period of, say, two years might be provided for, during which testators would have an opportunity to change their wills, and that, thereafter, the section would apply to all wills whether made before or after that date. As I said on Committee Stage, such a provision would not cater for the situation where, for whatever reason, a testator may be unaware of, or have become incapable of comprehending, the changes being effected by this part of the Bill.
I know there are contrary views to this, but I am advised that there is also a distinct possibility that any such provision would be held to be contrary to Article 43 of the Constitution which, as Senator Ryan said, is related to property rights.
I will just refer to the comments made about the Succession Act. There is a great distinction between the interpretation of a person's wishes expressly laid down in a will on the one hand and, on the other, interfering with the putting into effect of those wishes by means of an application under section 117.
I want to pursue this matter further because it is very important and I am not satisfied with the Minister's response. She quoted the Law Reform Commission which was basically raising pragmatic, practical objections that it would unsettle the law if it applied. I certainly think there is just as much of an argument for saying, as of the time of coming into operation of this Act the same law will apply to the construction of all wills. That is very clear and I do not think it would leave the law in a state of uncertainty. What does create the uncertainty is to predict that in 20 or 30 years time certain wills will be construed in a different way from other wills. The norms we are talking about today that may appear quite radical at the moment will, we hope, be very much part of the normal position because the law will have been in effect for 20 or 25 years. Yet we will have wills interpreted in a different way so that children will not include all children, including children outside marriage, but will be construed as only having included the children of the marriage, forcing a person to apply under section 117 if they wish to contest the will and incurring the kind of expense and diminution of the estate for the reason Senator McGuinness was talking about.
There is also a change since the Law Reform Commission published their report. As was made clear when we were talking about the long title of the Bill, we now have a legal obligation. We are bound legally to create the conditions of equality in relation to children and not to have any discrimination. That would seem to be a further reason for ensuring that as of the coming into operation of this Bill we will not project into the future situations where wills will still be construed in a discriminatory manner.
I do not think it is a question of interpreting the intention so much as setting out the legal rules of interpretation in an objective sense. I gave the example of the person who made a will in 1986, who is still alive and can alter that will. Once this Bill is passed the person knows what the law is and can take steps accordingly. The person cannot take steps which would be such as to contravene the provisions of the measure. What a person could seek to do as a testator is potentially decide that he is going to provide X amount for one child and X amount for another. He is aware that an application could be made under section 117 but, in his view, he is acting as a prudent and just parent in the circumstances, he knows what he is doing and that is what he intends to do. What we are saying, in effect, to people who made their will in 1986 or earlier is not to mind about the provisions of the Bill; we are not concerned about it, that they should be perfectly happy the law will continue to apply in a discriminatory manner in the case of their wills, even though we want to be good for the future, even though we want to equalise the rights of children in the future.
The principle is an extremely important one. The Bill is a very strong statement of the parliamentary intention to create equality in relation to children. It seems to me to be essential that we do not make it retrospective in the wrong sense in relation to persons who died before the operation of the Act, but that we make it retrospective in the sense of affecting any wills which were written before the passage of the Act. The will does not come into full effect until a person dies. A will speaks from the death, and that death could be 20 or 30 or 40 years ahead. It is a fundamental principle; it is an extremely important principle. It cannot be disregarded on the kind of grounds that the Law Reform Commission mentioned, that the law might be a bit unsettled. I reject that ground for the reasons I set out.
We must make a choice here. The issue is fundamental to our commitment to removing discrimination. How does a mother explain to the child: "Your father made his will before the Act that gave you equality of rights came into effect"? What does the child think of that? What does that say for the status of the individual? "It is too bad; your father was advised to make a will by his solicitor before the Act came into being". How many solicitors around the country are advising people to make wills for the purpose of avoiding the implications of this Bill and why are we making it easier and possible for them to do this, if that is what is being done?
It is a very serious issue. It is one of fundamental principle. We are not carrying through the full commitment, unless we ensure that it will apply to wills made by a person who will die after the coming into operation of this Part, as was proposed in the 1965 Act. Presumably the Law Reform Commission in relation to the 1965 Act would have made the same comments, that it would be unsettling in relation to the 1965 Act. If there had been a Law Reform Commission at that time, exactly the same considerations would apply. It would be unsettling there if it applied to wills which were already executed, although they did not come into effect because the person had not died, but that is not what section 9 (4) of the 1965 Act said. I fail to see how any distinction could be drawn.
The force of Senator Robinson's argument is convincing. The only way I would be swayed from my views on this is if there were convincing legal arguments. I have sufficient regard for Senator Robinson's knowledge of the law to be persuaded that there are no legal obstacles to what we want to do. We might as well effectively write into this Bill a provision that the succession aspects of Part V will come into force in 2017 and give it 30 years to filter through the system as leave this in its present unsatisfactory state. If we are talking about righting an injustice there is only one time when you can right an injustice and that is now. If there is a manifest injustice in the way we discriminate between children just because of the relationship between their parents, it is something that should be dealt with now. People who have been irresponsible in their lives should have to take the consequences for their irresponsibility. We are very good in some areas at lecturing people about personal responsibilities.
The Minister is not the major obstacle to change in this area. The obstacles to change in this issue are far beyond her control. The least we in this House can do is our best to deal with those obstacles with the freedom we have in this House by amending this Bill in the way we have proposed.
I will make a few points in response. I am sure I do not have to remind most Senators that with or without the provisions of section 26 it will still be, as it has always been, open to a testator to discriminate against any or all of his children on any basis. He or she may leave property to none or to all of the children, or to all with red hair, or to all female children. We all know there are legal practitioners who are skilled and expert at ensuring that people who want to do this kind of thing can do it. No law will force testators not to discriminate against children born outside marriage. The difference between this legislation and the 1965 Act is that we are changing the meaning of words in section 26 of this Bill. That was not the case in the 1965 Succession Act. Words will have a different meaning now, a different interpretation. There is a great distinction between the interpretation of a person's wishes as set out in wills and interfering with the putting into effect of those wishes by means of an application under section 117. The section 117 application is retrospective, is open and available under this legislation.
Senator Robinson said people will know this Act has been passed when it is passed. One cannot presume that all the time. I am in a position to know that some of the legislation with which I have been involved in my career as a Minister has been passed and is relevant but even solicitors do not know it has been passed. We cannot presume that people know. On that basis, it would be unjust and unfair to accept the provisions of this amendment.
Unjust and unfair. It is the antithesis of that. It is unjust and unfair to continue a discrimination and that is what is proposed. I accept that testators can pick and choose as between children, can omit a child expressly, and that the present law is that children of the marriage can have recourse to section 117. When this Bill becomes law, any child can have recourse to section 117 and that will apply retrospectively. We have already discussed that. We are not responsible in this House for what testators do. We are not responsible for the choices individuals make in their family context, but we are responsible for the interpretative norms; we are responsible for the statutory provisions.
Because we are not prepared to apply the statutory norms to wills made before the Act was passed, which can be changed by the testator while that testator is still alive, we are projecting discriminatory norms 20, 30 and 40 years into the future. To do so is to deny the basic principle of what we are doing in this Bill. It is to perpetuate an inequality.
It is to carry it forward. It is to have mothers trying to explain to their children. It is to have children saying: "I thought we had abolished all of that and now I find we have not just because my father made his will in 1986 or 1985 or 1984." Why should we feel some burning sense of justice to a testator in those circumstances, where that testator can have the opportunity to alter a will, can have access to legal advice on the matter and so on? Why should the testator be enabled to do this once we have decided that as a society these are the norms, these are the standards, and that we will not allow discrimination? The Court of Human Rights tells us we have a legal obligation to provide for equality as between children. I cannot accept the Minister's response to the amendments and her apparent justification for continuing the discrimination indefinitely in the future.
It is not acceptable to backdate interpretative norms. That is the essential point at issue here.
Is the amendment withdrawn?
Amendment put.
The Committee divided: Tá, 13; Níl, 17.
Tá
- Cassidy, Donie.
- de Brún, Séamus.
- Fitzsimons, Jack.
- Hanafin, Des.
- Hillery, Brian.
- Honan, Tras.
- Kiely, Rory.
- Lanigan, Mick.
- McGuinness,
- Catherine I.B.
- O'Toole, Martin J.
- Robb, John D.A.
- Robinson, Mary T.W.
- Ryan, Brendan.
Níl
- Belton, Luke.
- Bulbulia, Katharine.
- Burke, Ulick.
- Connor, John.
- Cregan, Denis (Dino).
- Howlin, Brendan.
- Kelleher, Peter.
- Kennedy, Patrick.
- McDonald, Charlie.
- Daly, Jack.
- Dooge, James C.I.
- FitzGerald, Alexis J.G.
- Harte, John.
- Higgins, Jim.
- McGonagle, Stephen.
- McMahon, Larry.
- O'Brien, Andy.
Tellers: Tá, Senators Robinson and B. Ryan; Níl, Senators Belton and Cregan.
Amendment declared lost.
Government amendment No. 52:
In page 16, to delete lines 21 to 27 and substitute the following:
"27.—(1) In any disposition (including a disposition creating an entailed estate) made after the commencement of this Part, references, however expressed, to relationships between persons shall be construed in accordance with section 3 of this Act.".
Amendment agreed to.
Amendment reported.
Amendment No. 52a not moved.
Government amendment No. 53:
In page 17, to delete lines 6 to 8 and substitute the following:
"(3) For the purpose of any property right to which this section or section 4A (inserted by this Act) of the Act of 1965 relates, the provisions of section 26 of the Adoption Act, 1952 (which relates to the property rights of persons adopted under the Adoption Acts, 1952 to 1976) shall be construed as applying also to any person adopted outside the State whose adoption is recognised by virtue of the law for the time being in force in the State.
(4) (a) Subject to paragraph (b) of this section, this section is without prejudice to section 26 (as construed in accordance with subsection (3) of this section) of the Adoption Act, 1952.".
Amendment agreed to.
Amendment reported.
Amendments Nos. 53a and 53b not moved.
Government amendment No. 54:
In page 17, line 31, after "by will" to insert "or codicil".
Amendment agreed to.
Amendment reported.
I move amendment No. 54a:
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".
I was aware that we were supposed to discuss this amendment but I was confused and I suspect other Members were also confused. I am quite sure the Minister was not confused but the last thing I wanted to do was to introduce an amendment separate to the issue we were discussing simply because we were discussing them together. This is an amendment I already introduced on Committee Stage. I had hoped the Minister would think about it because the Bill as it stands provides that the executors of a will have no obligation to endeavour to ascertain whether there are children whose parents are not married who might have a claim on the estate and for whom they are acting as executors. That is effectively a discrimination against children whose parents were not married, justified on the basis of avoiding inconvenience and distress for executors. I said at the time that an index for births and for recognition of parentage and declaration of parentage would simplify that whole area.
Part of the objective in remedying an injustice is to organise the way the State deals with people who have been the victims of injustice so as to deal with that injustice. You cannot just express a good intention and then ignore the hard bits. You cannot, as we are doing in this case, say that we believe that children whose parents are not married should have the same entitlements to an estate of a parent as children of parents who are married, and then say that because it would be very difficult and complicated for the executors of the will they do not have to find out if there are any such children before they carry out their duties.
The amendment we have introduced is an attempt to make it compulsory on executors, personal representatives and trustees to make reasonable inquiries to determine whether any person exists who can claim an interest in the estate or property by reason of this Act. It is a reasonable attempt to balance the interests of personal representatives or trustees against the interests of children who might otherwise be excluded from what would be a legitimate claim on the estate of a parent. We endeavoured to simplify this by inserting subsection (2) of this amendment, that a trustee or personal representative shall be deemed to have been made reasonable inquiries 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.
It is, of course, an extra duty but anything as fundamentally reforming as this Bill will impose considerable extra duties and obligations on unmarried parents. I hope it will inhibit men in particular who perhaps do not feel inhibited at the prospect of procreating children with women to whom they are not married because they do not feel that there are any binding legal obligations involved. Following our regrettable decision on the previous amendment all they have to do is make sure they have their will drawn up. We should at least put some obligation on representatives and trustees to make some endeavour to find out, and to exclude from their duties any requirement to make such inquiries is to copperfasten a form of discrimination. I know the last thing in the Minister's mind is to want to retain any vestige of discrimination against children whose parents are not married, but in the interests of convenience and the avoidance of distress of trustees and personal representatives, that is precisely what he is doing. That is why I moved this amendment.
I second this amendment. I submit that the arguments put forward by Senator Ryan are very strong in the context of this legislation. The amendment is very balanced because it does not require that the personal representative or trustee hold an open ended inquiry. It is saying that the personal representative or trustee has a responsibility because of the provisions of this Act and because of what we are doing. Subsection (2) of the amendment makes it clear that a trustee or a personal representative can discharge that responsibility by taking very modest steps. It provides that "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."
That seems to be a very limited form of inquiry which nevertheless acknowledges that on the coming into operation of this part of the Act references to issue or to children will include children not of a marriage and that the personal representative or trustee should be satisfied that all reasonable inquiries in that regard have been made. Otherwise the balance of the Act operates too much against the effective vindication of the rights which we are creating. A change having been made and it being clear that this will include children not of a marriage, personal representatives should be put under a limited responsibility to trace and look at the obvious places to ensure that they discharge their responsibilities before distributing the estate.
The Bill provides that there will be a presumption against there being children outside marriage unless there is evidence of it, but it would seem appropriate that the Bill would provide that very limited responsibility on a personal representative to simply search the obvious sources and it would be a vindication of the rights we have provided in this legislation. I support the amendment.
When this amendment was debated on Committee Stage, I indicated that, while I was opposed to it, I had not had an opportunity in the short time available to me then to consider it as thoroughly as I would have wished. However, having now examined the matter, I remain opposed to the amendment.
Personal representatives and trustees are under a general duty to take care and to act reasonably. Accordingly, if there is good reason to believe that a deceased testator, for instance, was survived by a child born outside marriage, it would be incumbent upon the personal representatives to make reasonable inquiries to trace that person. This section caters for the generality of cases where there is no particular reason to think that the testator was survived by a child born outside marriage. It would also come into play where remoter relationships would require to be traced. Its purpose is to relieve the personal representatives from considering themselves to be under an obligation to make searches for possible non marital links in lines of succession in practically every case. As I said on Committee Stage, such searches, particularly by zealous or over-conscientious representatives, could result in the assets of an estate being used up in the expenses of the administration.
I should like to point out that the Law Reform Commission in their report recommended, at recommendation No. 56, that, and I quote:
The legislation should include provision exempting trustees, administrators and executors from the obligation to enquire as to whether there are claimants, born outside marriage, and relieving them from liability where they administer estates in ignorance of the claims of such persons.
I might add that the suggested provision at subsection (2) of the substituted section proposed in the amendment does not appear to afford much protection since, in the absence of very elaborate indexes and lists, it would simply not be possible to make the type of search in those records which the provision appears to envisage.
If section 27 of the Bill did not exist, the Minister's response to the amendment would be more authoritative. There is, of course, a general duty of care on personal representatives and trustees and they must act with due care and discharge their responsibilities, but section 27 specifically gives them a protection which seems to deny that they have any responsibility in this matter. This is the worry because section 27 provides that:
Notwithstanding section 26 of this Act or section 4A of the Act of 1965 (inserted by this Part), personal representatives or trustees may, in relation to any real or personal estate or any trust property respectively, convey or distribute to or among the persons entitled thereto without having ascertained that there is no other person who, in so far as the said section 26 or the said section 4A confers...
We are saying: "It is all right; distribute; it does not matter if the person has not actively come forward". It seems that once in section 26 we identify to that extent or create rights for the first time, we must vindicate and protect them and that the approach proposed in this amendment is a balanced one. It provides that the trustee or the personal representative must make reasonable inquiries and then it indicates what those reasonable inquiries are.
With regard to the Minister's second objection, that under subsection (2) of the amendment inquiries, searches into the register of births and the records of statutory declarations and court orders may not be very good unless they are properly indexed, it is back to the Minister and the authorities on that one. They should be properly indexed and properly available and if this section helps to promote that, then that is extremely desirable. It should be something which can be ascertained by having the proper records kept and the proper indexing of those records. I think that is an argument in favour of the amendment rather than an objection on any sort of practical grounds to it.
To add to what Senator Robinson has said, hearing what the Minister said about the general duties of executors or personal representatives I would have felt that the duty to take reasonable care would not have been too difficult to provide for, but I cannot avoid interpreting section 27 as effectively saying that in this area you have no obligations whatever. It seems to mean that in the specific area of the possible existence of children who would have a claim on the estate where the parents are not married, the personal representatives have "zilch" obligations, that they are excluded, that this is one area they can happily ignore. I do not understand how one can say "without having ascertained there is no other person" and then "if there is reason to believe there is somebody". You either know or you do not know and it appears those words mean that even if you have a vague suspicion you do not have to ascertain anything.
Secondly, it happens frequently in this House that everybody seems to think that when you talk about indices or records you are talking about vast bundles of paper. The sort of search that would be required here, if the record were computerised, would be done by any respectable software package in virtually no time nowadays. Any sort of cross-checking or search for names or key words etc. can be done so easily that we should not keep talking about things as if we were talking about Victorian offices full of dusty files. A large number of the sort of records involved here could easily be dealt with by computer with extreme efficiency and it is a pity that Victorian notions of documentary indices should perhaps inhibit us from doing something we might otherwise wish to do.
I am sorry I cannot agree with the Senators on this amendment. Some of Senator Ryan's proposals are rather ludicrous. I do not accept that the representatives will not act in a responsible manner in carrying out the requirements as they see them to ascertain whether there would be children where there are reasonable grounds given to suggest that there are. The Senator's proposal that for every will there should be a search for non-marital children is not sustainable.
One further point. The wording of section 27 seems to make it perfectly clear that a personal representative or trustee has no function in this matter. That is what concerns me. Notwithstanding that we have now provided for new interpretation which would include children outside marriage in the construction of wills, dispositions, trusts documents etc., section 27 states that:
Personal representatives or trustees may, in relation to any real or personal estate or any trust property respectively, convey or distribute to or among the persons entitled thereto without having ascertained that there is no other person.
In other words they have no role to ascertain. They are protected if they distribute without having ascertained. Where does it say that they have to ascertain, that they have to be reasonable, or that they have a responsibility in relation to children outside marriage? Are we not saying the opposite, that they have no responsibility, that they need not make any searches, that they can distribute without ascertaining?
To repeat what Senator Robinson said, how can it be stated that I, if I was the executor of an estate, can, in relation to any real or personal estate or any trust or property respectively, convey or distribute to or among the persons entitled thereto without having ascertained? The term "without having ascertained" seems to be explicit, clear and straightforward. It does not say without having ascertained, where there is no reason to believe, it does not say without having ascertained where there are no reasonable grounds, it says without having ascertained. The term "without having ascertained" is as explicit as one could make it. I cannot understand how the Minister can say that there will still be an obligation on personal representatives or trustees where there are reasonable grounds to do otherwise. It is stated that they can distribute the estate without having ascertained. Either the parliamentary draftsmen are playing games again or else the Minister knows something I do not know: that is quite possible.
We are talking about words here and I accept they are very important. Perhaps I can give a commitment that we will look again at section 27 and see if it can be amended without going so far as to impose an obligation.
Amendment, by leave, withdrawn.
Government amendment No. 55:
In page 17, to delete lines 44 to 46 and substitute the following:
"(a) any interest on any person whose parents have not married each other or the issue of such person, or
(b) any interest on the father of any person who has not married such person's mother or anybody related through the father to such person,".
Amendment agreed to.
Amendment reported.
Government amendment No. 56:
In page 18, line 7, after "insertion" to insert "in subsection (1)".
Amendment agreed to.
Amendment reported.
Government amendment No. 57:
In page 18, to delete lines 11 to 19 and substitute the following:
"and
(b) by the insertion of the following subsection after subsection (1):
`(1A) In this Act a reference, however expressed, to a person whose parents have married or have not married each other shall be construed in accordance with section 4 of the Status of Children Act, 1987.'.".
Amendment agreed to.
Amendment reported.
Government amendment No. 58:
In page 18, line 25, to delete "the Act of 1986" and substitute "the Act of 1987".
Amendment agreed to.
Amendment reported.
Government amendment No. 59:
In page 18, lines 25 and 26, to delete "irrespective of whether the father and mother are or have been married to each other," and substitute "in accordance with section 3 of the Act of 1987".
Amendment agreed to.
Amendment reported.
Government amendment No. 60:
In page 18, line 28, to delete "a non-marital child" and substitute "a person whose father and mother have not married each other".
Amendment agreed to.
Amendment reported.
Amendment amendment No. 61:
In page 18, line 35, to delete "the Act of 1986" and substitute "the Act of 1987".
Amendment agreed to.
Amendment reported.
Government amendment No. 62:
In page 18, to delete lines 37 to 39 and substitute the following:
"(4) This section is without prejudice to section 26 (which, as construed in accordance with section 27 (3) of the Act of 1987, relates to the property rights of adopted persons) of the Adoption Act, 1952.".
Amendment agreed to.
Amendment reported.
Government amendment No. 63:
In page 18, lines 41 and 42, to delete "the Act of 1986" and substitute "the Act of 1987".
Amendment agreed to.
Amendment reported.
Government amendment No. 64:
In page 18, line 43, to delete "the Act of 1986" and substitute "the Act of 1987".
Amendment agreed to.
Amendment reported.
Amendments Nos. 65 and 67 to 71, inclusive, are related and may be discussed together.
Government amendment No. 65:
In page 19, line 4, to delete "67A"
I welcome this amendment. I was waiting for the Minister to make her case for deleting the section. The case which was made substantially on Committee Stage is to delete the provision in relation to the case of injustice. Serious reservations were expressed on both sides of the House, first to having this provision at all and certainly, if it was to be included, that it must operate on an equal basis. Perhaps the Minister will give us some indication of what led her to decide to delete it entirely. I am pleased she has taken that course of action but it would be of interest to Members of the House to know why that approach was adopted.
I suggest that the debate in this House led very much to its deletion. The present section 32 of the Bill would insert a provision into the Succession Act, 1965, enabling application to be made to the court to alter the effect of the rules for distribution on intestacy in certain circumstances where the parent of a non-marital child dies intestate. This provision was the subject of extensive debate on Committee Stage during which it emerged that while the provision does not discriminate against children whose parents have not married each other, the inconsistencies inherent in the provision were unacceptable to Senators. It is clear that there are only two positions where no inconsistency arises. The first of these, which would mean extending the right to apply to court to all cases of intestacy, is totally unacceptable as it would throw wide open to contest an area of the law which has hitherto operated with a high degree of certainty and the minimum of litigation and could result in even greater injustice by the frittering away of estates on legal costs.
For this reason, therefore, the Government have decided on the second position, put into effect by amendment No. 67, which removes the proposed provision from the Bill. Thus the rules for distribution on intestacy, as amended by the new section 4A of the Succession Act, will apply in the same way in all cases regardless of whether there is any person involved in the distribution whose parents have not married each other.
Amendments Nos. 65 and 68 to 71 have the effect of removing from the Bill other provisions which arose as a consequence of the provision at the present section 32 of the Bill. The deleted provisions include the present section 33 (b) and section 34.
I wish to thank the Minister for introducing the amendment. Nothwithstanding the occasional slightly irritable word I may have issued over the last couple of hours she has done a fine job, first, of producing this Bill and, secondly, of responding. Perhaps somebody, at the end of this session of the Seanad, will notice that far from being a talking shop we have actualy discussed and amended about six pieces of major legislation in the last four months. We not just amended them in detail but amended a number of them, including this one, quite fundamentally. That was made possible partly by the willingness of a number of Ministers in the Government to listen to argument and partly because of the consistency of positions adopted in this House by Members from all sides. We never got involved in party political wrangles about important issues. Therefore there were no party political points of pride to be defended and we were able to make reasonable progress. I want to thank the Minister for this. I appreciate the motives behind the original section. Senator O'Leary contributed considerably — as he is not present I might as well compliment him — by pointing out some of the inconsistencies that were written into it. I am very glad the Minister has accepted the points that were made.
Amendment agreeed to.
Amendment reported.
Government amendment No. 66:
In page 19, to delete lines 11 to 14 and substitute "survived by any person related to him whose parents have not married each other or by any person whose relationship with the deceased is deduced through a person whose parents have not married each other.".
Amendment agreed to.
Amendment reported.
Government amendment No. 67:
In page 19, to delete lines 15 to 46 and in page 20, to delete lines 1 to 15.
Amendment agreed to.
Amendment reported.
Government amendment No. 68:
In page 20, to delete lines 16 to 18 and substitute the following:
"33.—Section 117 of the Act of 1965 is hereby amended by the insertion of the following subsection after subsection (1):".
Amendment agreed to.
Amendment reported.
Government amendment No. 69:
In page 20, to delete line 28 and substitute "the commencement of the said Part V,.".
Amendment agreed to.
Amendment reported.
Government amendment No. 70:
In page 20, to delete lines 29 to 35.
Amendment agreed to.
Amendment reported.
Government amendment No. 71:
In page 20, to delete lines 36 to 49 and in page 21, to delete lines 1 to 3.
Amendment agreed to.
Amendment reported.
Government amendment No. 72:
In page 21, line 6, to delete "a non-marital child" and substitute "a person (in this section referred to as `the deceased') whose parents have not married each other".
Amendment agreed to.
Amendment reported.
Government amendment No. 73:
In page 21, line 8, to delete "that child" and substitute "the deceased".
Amendment agreed to.
Amendment reported.
Government amendment No. 74:
In page 21, line 10, to delete "that child" and substitute "the deceased".
Amendment agreed to.
Amendment reported.
Government amendment No. 75:
In page 21, line 11, to delete "that child" and substitute "the deceased".
Amendment agreed to.
Amendment reported.
Government amendment No. 76:
In page 21, line 15, to delete "that child" and substitute "the deceased".
Amendment agreed to.
Amendment reported.
Government amendment No. 77:
In page 21, line 16, before "father" to insert "deceased's".
Amendment agreed to.
Amendment reported.
Government amendment No. 78:
In page 21, line 18, to delete "his non-marital child" and substitute "the deceased".
Amendment agreed to.
Amendment reported.
Government amendment No. 79:
In page 22, line 14, after "occupation" to insert "or, where no party to the proceedings ordinarily resides or carries on any profession, business or occupation in the State, by a judge assigned to the Dublin Circuit".
This amendment relates to jurisdiction in declarations of parentage. The additional words to the present section 38 (2) of the Bill provided by this amendment are to cater for the situation which can, though it rarely will, arise where a declaration of parentage is sought and neither the applicant nor any other party to the proceedings resides in the State. The amendment is necessary for completeness.
Amendment agreed to.
Amendment reported.
Government amendment No. 80:
In page 22, between lines 24 and 25, to insert the following:
"(2) An application may be made under subsection (1) of this section notwithstanding the fact that any person named in the application as the father or the mother or a parent, as the case may be, is not, or may not be, alive.".
This amendment relates to the declaration of parentage where the parent, or parents, is or are deceased. Committee Stage amendments moved by Senator Brendan Ryan on the one hand and Senators Eoin Ryan and Lanigan on the other, drew attention to the fact that the present section 38 of the Bill, as drafted, does not make it clear that a declaration of parentage may be sought where the alleged parent or parents is or are dead. This amendment removes any doubt there may have been by ensuring that applications may be made in such circumstances.
I am always slow to rise before Senator Robinson because I am always afraid that she will identify an inadequacy that I did not notice and therefore I will have to sit down and say I am not thanking the Minister any more if she has done something. On the assumption that Senator Robinson is not going to identify a major flaw, I should like to thank the Minister for the amendment.
I also thank the Minister for the amendment. I recall it was the wording of subsection (1) where it says "named on the application is his father or mother" that gave rise to this worry. The subsection which the Minister proposes makes it very clear that it would extend to circumstances where the parent may not be alive. It is a small point, but I welcome the fact that the Minister has clarified it.
Amendment agreed to.
Amendment reported.
An Leas-Chathaoirleach
Amendments Nos. 80a, 81 and 82 may be discussed together.
First, I should point out an error in the list of amendments. In subsection (2) of amendment No. 82 "toro" should be "thoro".
Government amendment No. 80a:
In page 27, line 16, to delete "a presumption of law that that person is legitimate" and substitute ", by virtue of section 49* of this Act, a presumption of paternity relating to such person".
Amendment agreed to.
Amendment reported.
Government amendment No. 81:
In page 27, to delete lines 46 to 48 and substitute the following:
"47.—Any presumption of law as to the legitimacy or illegitimacy of any person is hereby abrogated.".
In the light of the recasting of the provisions of the Bill, so as to avoid the use of terms with pejorative or potentially pejorative overtones it is now possible to give effect, with some modifications, to the Law Reform commission's recommendation — No. 3 in their Report on Illegitimacy published in 1982 — that the presumptions of legitimacy and illegitimacy under existing law be abolished and that presumption of paternity of a mother's husband be set up instead. Accordingly, amendment No. 81 abolished the presumptions of legitimacy and illegitimacy and amendment No. 82 sets up presumptions of paternity and non paternity arising out of similar circumstances.
Amendment No. 82 also includes a presumption of paternity arising out of the appearance of the father's name on the child's birth certificate, in similar terms to the provision for a presumption of legitimacy at the present section 50 of the Bill which the amendment replaces. The amendment provides that these presumptions will be rebuttable on the balance of probabilities, the normal standard of proof in civil matters; this is the same standard as is provided for in the Bill as originally drafted at the present sections 48 and 50 being replaced by these two amendments.
Where there is a conflict between the presumption of paternity arising out of marriage and arising out of the entry of the father's name on the births register, the latter will have precedence. In other words, where the name of a man other than the mother's husband appears on the child's birth certificate, the law will presume that the man named on the birth certificate, and not the woman's husband, is the father of the child.
Amendment No. 80a makes the necessary change in the reference to the presumption of legitimacy to the present section 46 (3) (a) consequential on the abolition of that presumption by amendment No. 81 and its replacement by the presumption being provided for in amendment No. 82.
This is a substantial improvement which is now open under the terms of the Bill as it has proceeded. I am somewhat confused as to how the additional amendment 80a will——
It is purely consequential.
I can see that now. There is just one other point to which Senator Ryan has drawn my attention and perhaps the Minister would clarify it. Subsection (4) of amendment No. 82 is in relation to section 49: "For the purposes of subsection (1) of this section `subsisting marriage' shall be construed as including a voidable marriage and the expression `the termination, by death or otherwise, of a marriage' shall be construed as including the annulment of a voidable marriage." Perhaps the Minister would like to clarify what the import of that subsection will be.
At present, the child of a voidable marriage born during the subsistence of a voidable marriage is presumed to be legitimate. Subsection (4) gives rise to a presumption of paternity arising out of the same matter.
Again, that was what appeared on the face of it. What was the reason for excluding a void marriage in this context? Given that it is a question of moving towards the circumstances of presumption of paternity, I am not quite sure that I see the clear distinctions which clearly must have been drawn by the Minister's advisers between a presumption arising in the case of a voidable marriage and a presumption not arising in the case of a void marriage. I would just like to be clear about that.
A void marriage is no marriage.
A voidable marriage is no marriage once it has been declared as not being a marriage.
Yes, it is valid until it is declared invalid or void.
Just to be assured, subsection (4) is to be construed as including a voidable marriage provided that no proceedings have been taken?
Amendment agreed to.
Amendment reported.
Government amendment No. 82:
In page 28, to delete lines 32 to 39 and substitute the following:
"49.—(1) Where a woman gives birth to a child—
(a) during a subsisting marriage to which she is a party, or
(b) within the period of ten months after the termination, by death or otherwise, of a marriage to which she is a party.
then the husband of the marriage shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities.
(2) Notwithstanding subsection (1) of this section, where a married woman who is living apart from her husband under a decree of divorcea mensa et thoro gives birth to a child more than ten months after the decree was granted, then her husband shall be presumed not to be the father of the child unless the contrary is proved on the balance of probabilities.
(3) Notwithstanding subsection (1) of this section, where—
(a) the birth of a child is registered in a register maintained under the Births and Deaths Registration Acts, 1863 to 1987, and
(b) the name of a person is entered as the father of the child on the register so maintained,
then the person whose name is so entered shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities.
(4) For the purposes of subsection (1) of this section `subsisting marriage' shall be construed as including a voidable marriage and the expression `the termination, by death or otherwise, of a marriage' shall be construed as including the annulment of a voidable marriage.".
Amendment agreed to.
Amendment reported.
Amendments Nos. 83 to 90, inclusive, are related and may be discussed together.
Government amendment No. 83:
In page 29, to delete lines 12 to 14 and substitute the following:
"7.—(1) In the case of a child whose parents were not married to each other at the date of his birth or at any time during the period of ten months before his birth, no person shall as father of the child be required to give information concerning the birth.".
The present section 53 of the Bill inserts new provisions in the Births and Deaths Registration Act (Ireland), 1880, to deal with the registration and re-registration of the births of non-marital children. The purpose of amendments Nos. 83 and 88 is to replace the term "non-marital", in the first subsection of each of the sections being substituted in the 1880 Act, with a form of words in terms of the parents of the child not being married to each other at the date of birth or at any time during the period of ten months beforehand.
Amendments Nos. 84, 86, 87 and 90, as a consequence, delete other references in those provisions to "non-marital child" and, where appropriate, substitute them with suitable phrases.
This is agreed in the sense that this is one of the major changes which follow from the approach being adopted in this Bill. We are amending the Births and Deaths Registration (Ireland) Act, 1880, and substituting a new section 7. The new section 7 of the 1880 Act will be in the language of the Oireachtas now in relation to the situation. Will we find that there are other references to "legitimate" or "illegitimate" in relation to the registration of births? It reinforces the argument we had earlier that we are substituting a section and putting it in, in language that is in accordance with our intention and, therefore, we are changing what in the Bill was a reference to non marital. It is a fair guess that in relation to other provisions of the 1880 Act there are likely to be references to legitimate or illegitimate as being the classifications. I think it reinforces the necessity for either a schedule of amendments or some power to the Minister to make those amendments in future.
There are consolidation proposals in the Department of Health with regard to this legislation. I did not finish the arguments behind these amendments so I will give some further points on amendments Nos. 85 and 89.
At present, as the result of a High Court case, S.-v.-S. [1983] IR, it is possible to have the name of a man other than the husband of a married woman entered on the births register as father of the woman's child without the need to go to court to have the presumption of legitimacy rebutted, if the mother, the father and the husband agree. The judgment was delivered, however, in the context of there being a legal presumption of legitimacy rebuttable on proof beyond a reasonable doubt. The changes brought about by amendments Nos. 81 and 82 mean that that presumption will no longer exist. In order that a similar system will continue to operate in the same circumstances in the changed context of a presumption of paternity of the mother's husband, rebuttable on the balance of probabilities, it is now necessary to put the matter on a statutory footing.
Amendment No. 85, accordingly, adds a new subsection to the proposed section 7 of the 1880 Act, dealing with the registration of a child of parents not married to each other, to cover the situation where the mother is married but not, of course, to the father of the child. In such a circumstance, where the registrar is asked to enter the name of the father, whether at the joint request of the parents, paragraph (a) of subsection (1), at the request of the mother with a statutory declaration from the father, paragraph (b), or at the request of the father with a statutory declaration by the mother, paragraph (c), it will in addition be necessary to produce to the registrar either a statutory declaration from the mother's husband before the father's name can be entered, paragraph (a) of the amendment, or else a further statutory declaration from the mother to show that she is separated from her husband by a divorce a mensa et thoro, paragraph (b) of the amendment. This latter will be sufficient to establish the presumption of non-paternity set out at subsection (2) of the section being inserted in the Bill by amendment No. 82. Amendment No. 89 provides similarly for cases of reregistration of the birth of a child whose parents were not married to each other at the appropriate time so as to show the father's name on the register.
Amendment agreed to.
Amendment reported.
Government amendment No. 84:
In page 29, lines 16 and 17, to delete "non-marital child" and substitute "child to whom subsection (1) of this section relates".
Amendment agreed to.
Amendment reported.
Government amendment No. 85:
In page 29, after line 49, to insert the following:
"(3) Where the mother of a child to whom subsection (1) of this section relates was married at the date of the birth of the child or at some time during the period of ten months before that birth, the registrar shall not, in respect of a request made by virtue of paragraph (a), (b) or (c) of subsection (2) of this section, register the name of a person as father except, in addition to the said paragraph (a), (b) or (c) being complied with, on production of—
(a) a statutory declaration by the husband of the mother stating that he is not the father of the child, or
(b) a statutory declaration by the mother stating that she has been living apart from her husband under a decree of divorcea mensa et thoro for more than ten months before the birth of the child.”.
The Minister elaborated on this amendment but I do not think we discussed it. I was not aware that it was being taken in the context of the other group of amendments. I would like to welcome this amendment. It was important to have a legislative response to the case of S.-v.-S. It gave rise to a number of difficulties as to what the responsibility of the Registrar was if the child was an extra-marital child. It is desirable, as the Minister has framed it, that there be alternative proofs such as a statutory declaration by the husband of the mother stating that he is not the father of the child, or if the husband refuses to give such a statutory declaration or if relations are such that he cannot in effect be approached to do that, that there is another way of proceeding to have the child registered in accordance with the facts, with the proper father as the child's father. I welcome this legislative step taken on foot of the S.-v.-S. case.
Amendment agreed to.
Amendment reported.
Government amendment No. 86:
In page 30, line 14, to delete "non-marital child" and substitute "child (being a child to whom subsection (1) of this section relates)".
Amendment agreed to.
Amendment reported.
Government amendment No. 87:
In page 30, to delete lines 19 to 21.
Amendment agreed to.
Amendment reported.
Government amendment No. 88:
In page 30, to delete lines 22 to 26 and substitute the following:
|
“Re-registration of birth so as to show who is father.
|
7A.—(1) Where the birth of a child (being a child whose parents were not married to each other at the date of his birth or at any time during the period of ten months before his birth) has been registered under this Act, but no person has been registered as the child's father, the registrar shall re-register the birth so as to show the name of a person as father—”.
|
Amendment agreed to.
Amendment reported.
Government amendment No. 89:
In page 31, between lines 12 and 13, to insert the following:
"(2) Where the mother of a child to whom subsection (1) of this section relates was married at the date of the birth of the child or at some time during the period of ten months before that birth, the registrar shall not, in respect of a request made by virtue of paragraph (a), (b) or (c) of the said subsection (1), re-register the birth so as to show the name of a person as father except, in addition to the said paragraph (a), (b) or (c) being complied with, on production of—
(a) a statutory declaration by the husband of the mother stating that he is not the father of the child, or
(b) a statutory declaration by the mother stating that she has been living apart from her husband under a decree of divorcea mensa et thoro for more than ten months before the birth of the child.”.
Amendment agreed to.
Amendment reported.
Government amendment No. 90:
In page 31, to delete lines 25 to 27.
Amendment agreed to.
Amendment reported.
Question: "That the Bill, as amended, be received for final consideration" put and agreed to.
Agreed to take remaining Stage today.
Question proposed: "That the Bill do now pass."
As one who has frequently berated the outgoing Government and who may not have another opportunity to either berate them or congratulate them in this House, I congratulate this Government notwithstanding my great regret about one aspect of this Bill, on getting this legislation this far. It is one of the issues on which nobody including the Minister will get much in the line of either political, electoral or other form of credit for it. It is possible that some of us with perhaps more benign electorates will get more credit for our contributions in the form of amendments than the Minister will get for her substantial efforts in getting the Bill here in the first place. Nevertheless, I congratulate her on the Bill as far as it has gone. I congratulate her particularly on the energy that must have been required to go at it a second time having got a Bill through the Cabinet, having got it here and then having listened to the arguments here and with some other groups come back a second time with what is effectively a new and substantially improved Bill. I will be saying many things over the next few weeks about certain matters to do with the policies of the present Government but on this issue they deserve to be congratulated.
I would like to say as I said earlier today that in the case of this Bill we have a measure that is substantially different from the Bill as initiated. When this House is subject to criticism, even criticism to the point of proposing its abolition, one of the things we can offer in our defence is the manner in which this piece of legislation has been handled. Against this background we see the hollowness of the assertion made recently that the Adoption Bill, 1986, was too important a Bill to be brought into the Seanad and that it should be brought into the Dáil where it could be more appropriately treated. Every Member of this House can take pride in this Bill even if the contributions towards it were representational rather than widespread. It is a Bill of which the Seanad can be proud and it is also a Bill of which the Minister and the Government can be proud. On this day, which may well be the last day of normal business of this Seanad, the discussion which we had has been not just a good note to end on; it is more than a note, it is a melody.
I am not the only one who will be trying to get back in here but I am the only one now. I do not like to talk about final days but in case he may not be in this House, again I want to warmly thank the Leader, Senator Dooge——
I thought you were going to speak on the Bill.
I want to thank the Minister, Deputy Fennell, on her Bill. I also want to thank Senator Robinson, Senator Ryan and Senator McGuinness for their tremendous contributions to this legislation. I also want to add my strong views, as Senator Dooge has, about legislation going through this House. I have at all times seen and hope I can see in the future the importance of the Seanad with the amount of legislation that has gone through in such a detailed fashion. I was not aware that they did not think the Adoption Bill should not come in here.
It was not the Government, I want to make that quite clear.
I should like to contribute very briefly on the Fifth Stage of this Bill. Like other Senators I feel it is one of the most important pieces of social legislation this House has dealt with for a decade. It is an extremely important Bill. It is a very good Bill. We are ahead of a number of other countries which had made more progress in this area than we had. We can hold our heads high on this issue if the Bill, as it is now formulated, passes speedily through the other House when certain events have taken their course.
Like Senator Ryan I should like to pay tribute to the Minister for the energy and commitment she has shown in relation to this Bill, for being prepared to be open to the issues on Committee Stage which were raised by way of amendment and open to the representations from Cherish and the other bodies, for being prepared to go back to the Government with a substantial number of amendments and to come before this House so that we could continue the discussion in this very developed Report Stage that became a Committee Stage so that we could consider about 100 amendments.
The Bill, as it now stands, represents what is largely sought in the community. I say that because there appeared to be some fears initially that this legislation would be particularly difficult. Happily, we have accepted the importance of equality in our laws and the administration of justice in relation to children. That is a very deeply felt motivation here. I have no doubt that it helped to have had discussions earlier in the Seanad on the issue of illegitimacy both by way of Private Members' motion and by Private Members' Bill. This House has given leadership in the area which has been very welcome. I am delighted with the Bill as it stands, notwithstanding that there may have been one or two other matters that it would be nice to have in the Bill which may yet be in it before it is finally passed. I again warmly congratulate the Minister and hope that the Bill will be speedily passed.
I do not want to repeat what others have said but I would not like the Final Stage of this Bill to pass without saying how glad I am that this Bill has succeeded in passing this House and I hope it will be taken up rapidly by any incoming Government. I am encouraged by the fact that this Bill has received a welcome from all sides of this House and has been supported on all sides of this House. It is not regarded as a party political matter. Therefore, it does not really matter from the point of view of this Bill which Government come in after the election. This Bill should be high on their priorities whoever they are. They have the example of this House before them where every party joined in a genuine effort to try to improve the Bill and it has been a successful effort.
The Minister's approach to this Bill and to the debate was really a model of what a Minister's approach should be to debates on Bills. She was quite prepared to listen. She was quite prepared to amend. She was quite prepared to consider. It is a pleasure to deal with a Minister who is prepared to respond to what Members of the House suggest. She should be congratulated on this. The Bill has been fully discussed and much improved and should not create fears for anybody in any section of the community. I hope it will be generally acceptable. It is very important for the rights of a very large number of people in Ireland I hope it will not be long before it finally becomes law.
I should like to inform Senators that the Bill having now passed the Seanad, will go on the Order Paper of the next Dáil. Senators will be glad to hear that the Bill, as amended by this House, when published will be accompanied by a revised explanatory memorandum. When it is enacted this State will have fulfilled its obligations under the European Convention on Human Rights. As a result of the Johnson case it is incumbent on the incoming Government to pursue this legislation with due expedition.
For my own part I should like to say at this point how much I appreciate the approach taken in this House right through from the introduction of the Bill. I am very proud to end my term as Minister on this note because it is something that I have had a commitment to for many years. As Senator McGuinness will know, this Bill, as far as I am concerned, started with a public seminar four years ago when I was a very new Minister of State in the Department of Justice. It has taken four years to get this far. I know it has frustrated many people because it was so slow but it was the right way to approach it. The canvassing and the consultation, the open-mindedness displayed by everybody, by the Government, by the Department and by the various groups who made submissions to us, helped this process along.
Having expressed my deep appreciation to all Senators for the debates here, I should like in particular to thank organisations like Cherish and Ms. Higgins — who is here with us — who contributed so greatly in every way to the improvement of the Bill. I should like to thank the Federation of Services for Unmarried Parents and their Children, the Council of Social Welfare, Young Fine Gael, the National Youth Council and AIM group, all of whom helped me and the officials in the Department to construct what I consider to be an excellent Bill. I should like to pay tribute to the two officials who worked with me from the beginning of this Bill. They are Mr. Ingoldsby and Mr. McAuley. They withstood my exasperation and my frustration over the years. Today we all agree it has been well worth while. I should like to end on that note.
Question put and agreed to.
