Status of Children Bill, 1986 Seanad Bill Amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 82, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration," the Minister may explain the purport of the amendments made by the Dáil and this is looked upon as the report of the Dáil amendments to the Seanad. The only matter, therefore, that may be discussed is the amendments made by the Dáil.

For the convenience of Senators I have arranged for the printing and circulation to them of those amendments.

Question proposed: "That the Bill be received for final consideration."

As Members are aware, they may speak only once on this question.

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.

I have nothing but enthusiasm for the amendments which have been introduced. This Bill spent an enormous number of hours in this House. They were very worthwhile and satisfying hours for those of us who are in Opposition in the sense that it involved us in great detail in the working through of legislation.

A few of the amendments are worthy of comment. I am very glad that the section dealing with the protection of trustees has been removed. It implied a degree of difference between children born outside wedlock and those born inside wedlock. I appreciate that the advice of both the Minister and his predecessor was that the legislation did not provide any distinction and there was no difference in the obligations of executors and trustees. I am very glad that the matter has been clarified completely and it is now clear that the obligations on trustees towards children born outside marriage are effectively the same as those to children born within marriage.

I am equally happy that the rather selective nature of the provisions of the exclusion of unworthy fathers has been dealt with. As the Minister said, it was mentioned in this House on a few occasions and I am sure it was mentioned at length in the other House. Amendments Nos. 10, 12 and 13 seem to be nothing more than a recognition of the reality that a legal separation should be introduced as well as a provision for divorcea mensa et thoro. I know that the specific circumstances referred to in the Bill are somewhat limited but nevertheless they are most welcome.

I welcome the amendments, I compliment the Minister on the fact that he accepted the procedure of reintroducing the Bill at the stage it had reached in its process through the Oireachtas. That speeded up the passage of what I regard as an extremely important piece of legislation which deals with the rights of 10 per cent of the children born in the State every year whose parents are not married at the time they are born. It is extremely important that their rights should be clarified. I hope that this quiet night, with nobody from the media here, will go down as the moment when the term illegitimacy ceased to have any meaning in our society in the area of the rights of children. I congratulate the Minister on pursuing this matter vigorously and I am happy to be here to see the end of it.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

I would like to take this opportunity to thank the Members of this House for their co-operation in dealing with this Bill, not only on this occasion, but also when it was first before the House. This House has had a major influence on the final shape of the Bill, and deserved much credit for that.

As Senator Ryan said it is an important piece of legislation: it makes significant changes in the status of a sizeable, and growing, number of our citizens. It has a direct effect on the law in areas such as succession, guardianship and maintenance. Its indirect effects, however, will be felt far into the future, because it puts a duty on us, the legislators, to consider the position of people whose parents have not married each other, and to ensure that in each Bill before us, no distinction is made between people on the basis of the marital status of their parents unless that is for some reason necessary. I would hope that the enactment of this Bill will help in the development of attitudes of tolerance, so that the child of unmarried parents will not be regarded as somehow less worthy of equal treatment socially than the person whose parents have married each other.

I should also like to put on record my appreciation of the positive, constructive and non-contentious manner in which the Bill was debated in both Houses. Its basic purpose of removing discrimination in the law against persons born outside marriage was fully supported by all Members, regardless of their political affiliations. I have already expressed my appreciation of this support to Members of the Dáil and I am very happy to do so now in this House.

I should not like to let the occasion pass without paying tribute also to the role played by the various interest groups — in particular, Cherish and the Federation of Services for Unmarried Parents and their Children. I think they can be well pleased with the Bill as it has finally emerged.

Finally, I should like to point out that the Bill is to come into effect at the latest six months after it is signed by the President. I shall endeavour to ensure that the necessary regulations and rules of court, which require to be made to enable various procedures provided for in the Bill to operate smoothly will be made without delay, so that at least some Parts of the Bill can be brought into operation before that time.

I slipped up because I did not realise that we would have a Fifth Stage. I want to add one thing on a slightly flippant note but it is important. The Minister paid a tribute to Cherish. Their campaign on this issue is a model of what a positive lobby can be. There is much capacity in this country to cast down the idea of pressure groups and lobbies. A lobby like Cherish can be a very positive one in directing our attention towards certain issues. During the passage of this Bill through both Houses, they have been single-minded and very constructive in their approach to this issue. They have worked with Members on both sides of the House who wanted to listen to them. One of the reasons I am very happy that this Bill is being passed this week is that Cherish are having a party next Saturday to celebrate the passage of the Bill through both Houses of the Oireachtas. It is, therefore, most appropriate that the Bill should have passed through both Houses of the Oireachtas and, we hope, will be signed by the President before they have their party. I am very glad about that and I should like to thank the Minister for putting the Bill through both Houses so speedily.

I should like to thank the Minister for facilitating the House by remaining on to complete this Bill. Had I known that there was a party next Saturday night I might not have asked the Minister to deal with it.

I have not been invited to the party as yet.

I will put in a good word for the Minister.

I could not accept an invitation because I will be attending a party for Deputy John O'Leary.

Question put and agreed to.
The House adjourned at 7 p.m. until 2.30 p.m. on Wednesday, 16 December 1987.