The Status of Children Bill has been passed by Dáil Éireann, with amendments, and I would like to explain those amendments to this House.
Amendment No. 1 is a technical amendment necessitated by the enactment of the Irish Nationality and Citizenship Act, 1986.
Amendment No. 2 amends the definition of the term "adoption order" in the Guardianship of Infants Act, 1964, to bring it into line with subsection 3(2) (b) of the Bill. It will mean that that Act will now apply to infants adopted under foreign adoption orders, which are recognised in this country, in the same manner as it applies to infants adopted under domestic law.
Amendments Nos. 3 and 4 deal with the position of a father in avoid or voidable marriage as guardian of any children of the union.
Senators may recall that, on Report Stage in this House last January, Senator Fennell, who was then Minister of State, proposed Government amendments to deal with this matter. The present legal position is that, where there are children of a void marriage, or of a voidable marriage which has been annulled, the father is not their guardian. The intention of the Government amendments moved at that time was that, in all voidable marriages and in void marriages where the father reasonably thought at the appropriate time that the marriage ceremony was valid, the father would be guardian of the children of the marriage by operation of law, and would not have to apply to court under the proposed section 6A of the Guardianship Act to become their guardian.
The Seanad at the time accepted the amendment in principle. However, Senator Robinson and former Senator Catherine McGuinness pointed to a phrase used in the amendment which could, they suggested, be construed as conferring on a couple whose marriage was void or had been annulled a status as a family under the Constitution which would be inappropriate. The amendments now before the House, which have been made by the Dáil, recast this proposal so as to achieve the desired effect without the undesirable consequence referred to. This is achieved by providing in effect that, in the circumstances outlined in amendment No. 4, the father shall be guardian, rather than, as in the earlier version, that "the father and mother shall, for the purposes of this Act, be treated as if they had married each other."
Amendments Nos. 5,6, and 7 deal with the maximum sums which a court may award by way of lump sum order for birth and funeral expenses. The maximum under existing legislation is £200, but this applies only to sums payable by fathers of children born outside marriage and was last set in 1976. The Bill had originally proposed a new maximum of £500 under each head of expense; this new limit would also apply to sums for children of married parents, and would be payable by either parent — matters not provided for in existing legislation. Following further examination, and having regard to changes in the Consumer Price Index since 1976, I decided to amend the maximum amount in each case from £500 to £750; and the overall total has, accordingly, been increased from £1,000 or £1,500.
Amendment No. 8 is purely a drafting amendment.
Section 28 of the Bill has been deleted. That section provided for the protection of trustees and personal representatives when distributing an estate or trust property, in relation to the tracing of possible beneficiaries born outside marriage. The section had been criticised in this House on the grounds that it appeared to givecarte blanche to trustees and personal representatives to act without any regard to the possible existence of such beneficiaries. I consulted the Attorney General who, in turn, sought advice from prominent lawyers practising in this area. That advice was to the effect that there was no need for the section, having regard to the provisions of section 49 of the Succession Act, 1965, in the case of personal representatives, and general trustee law and practice in the case of trustees. I accordingly, proposed the deletion of the section to the Dáil.
Section 31 and 34 of the Bill have also been deleted. Senators may recall that section 34, which provided for the exclusion of certain fathers to succeed on the intestacy of a child born outside marriage, was the subject of extensive criticism in this House. That criticism was based on the fact that there were inherent anomalies in excluding an unworthy father from a right to succeed on intestacy, and not an unworthy mother; it was also felt to be anomalous to confine the provision to fathers of children born outside marriage, to the exclusion of any father who had married his child's mother. My own view coincided with that of the former Minister of State: that it was preferable to have no provision of this nature at all in the Bill than to extend it to encompass all intestacies. The latter course would undermine the certainty and freedom from litigation with which the rules for distribution on intestacy operate at present. The Dáil concurred in this view and section 34 was deleted. As a consequence, section 31, whose only purpose was to provide for the jurisdiction of the Circuit Court in proceedings under section 34, was superfluous and has also been deleted. Amendment No. 9 is a purely drafting amendment for purposes of clarity.
Amendment Nos. 10, 12 and 13 are related to each other. Amendment No. 10 is concerned with the situation where the husband of a married woman is presumed not to be the father of her child. Under existing law, this is known as the presumption of illegitimacy, and arises in circumstances where a married woman who has been living apart from her husband under a decree of divorcea mensa et thoro for at least ten months gives birth to a child. Amendment No. 10 extends the grounds which would give rise to what will now be a presumption of non-paternity of the mother's husband, so as to include the case where a married couple are living apart for the requisite period on foot of a deed of separation.
One of the more immediately perceived benefits of a presumption of this kind is that, when a married woman has a child in the circumstances covered by the presumption, she and the father of the child may have the father's name entered on the births register without having to obtain either the consent of the mother's husband or, where that is not forthcoming, a court decision as to parentage. Amendments Nos. 12 and 13 make the necessary consequential changes to the births registration provisions of the Bill. Amendment No. 11 is purely a drafting amendment.