The only matter that remains over arises on Section 1, on a question raised by Senator Colonel Moore at the last sitting as to whether there should not be some declaration by the father in order to bring about legitimacy. Accordingly Senator Colonel Moore has sent in two amendments—they are really only one, because one is consequential on the other. I take it that the Senator now desires to move his amendment.
SECTION 1.
Colonel Moore
Yes. I move :
Section 1, sub-section (1). To delete all after the word " legitimate " in line 15 down to the end of the sub-section and to substitute therefor the words : " from the date of the marriage or from the date of the filing of the declaration in sub-section (3) of this section mentioned whichever is the later."
The main point is, I think, that we are agreed more or less that the question of legitimacy should depend on a statement by the father. We might include the mother, but it seems to me that she goes without saying. If the Committee desires to include the mother I will not be displeased, but I think it is sufficiently clear as it is. It does not matter very much about the mother, but it matters very much about the father. The mother might be dead.
Or the father might be dead. Under the Bill as it stands it is the mere fact of marriage that legitimates the child from the date of marriage. I am assuming that the child is the child of the parties to the marriage. Senator Colonel Moore wants to make a very radical amendment to the Bill. He is not legitimating the offspring from the date of the marriage. All the consequences that follow as to property under the Bill are to follow from the date of the declaration instead of the date of the marriage.
When we had this matter under discussion before I was disposed to support the idea of Colonel Moore, but since then I have examined the Bill more carefully and have given it a little more thought, with the result that I have altered my view in regard to it. I am now of the opinion that the amendment is not necessary, because it appears that the provision in the Schedule relating to re-registration substantially meets his point. That provision ensures that after the marriage, within a certain time, the duty is imposed upon the parents of submitting to the Registrar an application for re-registration.
Colonel Moore
Where is that ?
Clause 2 of the Schedule.
There are no penalties attaching to failure to do that.
No ; there is no penalty, but it is imposed as a duty on parents to go before the Registrar, and that, in a sense, is a declaration.
It makes the entry on the Registrar prima facie evidence of the fact that the child is theirs.
And the correction of the Register arises from the initiative of the parents in the first instance or, failing that, from the initiative of the Registrar, who tells them to come and give information which will enable him to form a judgment as to whether the child should be entered as a legitimated person or not. It means in effect that if a parent of the child does not wish hte child to be legitimised he does not go to the Registrar for re-registration and, if he does not go, there is a presumption that he does not wish the child to be legitimated. That, in effect, is what Colonel Moore's amendment is intended to do, that is, to make registration dependent on the wish of the parents.
Colonel Moore
Supposing he does not do his duty and supposing the mother is dead ?
It must be done within a specified time, and, if it is not done within three months, the Registrar sends for the parents and then forms his judgment on the matter. That defers the effect of the declaration only for three months.
Colonel Moore
It puts the duty on the registration officer. How is he to know about it ?
Supposing the father does not wish the child to be re-registered as a legitimated child and the mother does not desire it also, the chance of its being registered as a legitimated child is practically nil. Assuming that the mother wishes the child to be registered as legitimated and the father does not, it is open to the mother to go to the Registrar and say that she wants the child to be legitimated. The Registrar then sends for the father, gets his evidence, and decides the matter. Assuming that neither parent goes to the Registrar it is open to a relative of either party to go and give information and, if neither of these things happens, there is a presumption that the parents do not wish the child to be legitimated and the child is not legitimated. Apart from that, a parent who wishes the child to be regarded as legitimated could always make a declaration, either in the presence of witnesses or in some legal form, which would be practically conclusive evidence of legitimation. Though that would not be public it would be available in case of dispute. Although I was in favour of the principle of the amendment on the last occasion, I have changed my mind, because I do not think that it is necessary and it might open the door to other dangers.
Colonel Moore
Supposing the father is dead.
At what time ?
Colonel Moore
Shortly after the marriage. The child may not be the offspring of the father at all, but it might be to the mother's interest to have the child legitimated in order to get money which the child might not otherwise get. The mother could then make a declaration and the child would be legitimated.
No ; not necessarily. That is only evidence of the child being the child of the father, but, if there were property dependent on it and if the child never appeared before, do you not think that the people whose property is going to be affected would not raise the question and it would then have to go to Court ?
Colonel Moore
You want to bring the lawyers into all this.
No ; but we want the spirit of the Act to be carried out.
You cannot keep the law out of it. Everything depends on who are the parents.
Colonel Moore
You have to prove it. If the father makes a declaration at the time of the marriage or afterwards there is no question of law.
There may be.
Colonel Moore
If the father said that it was his child that would practically end the matter.
Mr. O'Hanlon
Everything in Senator Hooper's line of reasoning seems all right except that re-registration legitimates.
Oh, no!
Mr. O'Hanlon
This is only evidence.
Official evidence. It is the kind of evidence that you can get a certified copy of, but it is only raising a presumption.
Mr. O'Hanlon
It is not final.
No, it is only mere evidence. There is the evidence of the Registrar already that the child is illegitimate. What they want is to take away the effect of that registration—the official evidence that legitimates the child. It is only prima facie. The whole thing can be disputed. As far as the child is concerned in this Bill as it stands, it is marriage that legitimates. If you make the filing of this registration with the Registrar compulsory you may prevent a child who ought to be legitimated from being legitimated. You may prevent his being legitimated in the case of a father who does not know the law and does not know anything about filing with the Registrar. He simply marries the woman to put the thing right.
Colonel Moore
I think the declaration of the father is the one essential point of the whole matter. If the father chooses to say that it is his child it is an end to the thing.
You want to alter the whole frame and spirit of the Act. The frame of the Act depends on the fact that marriage legitimates.
Is not the passing of this Bill a very drastic change ?
It is.
It is a very important thing to my mind.
It is going a long way. It has been done about five years ago in Great Britain. It has been done in Scotland.
It has been done in France and Switzerland.
It has been the law in France for a considerable time.
Colonel Moore
A declaration of the father is required in France, I am informed.
I do not know.
Colonel Moore
I am assured that that is so.
It has always been the law in Scotland.
Colonel Moore
In Scotland, all you have to do is to say you are married and that is an end of it.
You can imagine a case where a man is willing to get married to the mother of the child, but where if he has to make a declaration he may not be willing. He may be the prospective heir to a considerable property, and the fact of his having to make that declaration may put him out of his inheritance. It might be better in the interests of everybody that he should not be forced to make that declaration.
Colonel Moore
He would not marry the mother of the child in that case.
You can imagine a case where a man is anxious to marry the mother of his child and he may find himself in a very awkward difficulty by a consideration of that kind or some other family consideration. He may hesitate to bring shame upon his parents. There are many considerations of that kind that may arise in the event of such a condition being imposed which would prevent marriage taking place at all.
On the other hand, this Bill is going to impose a condition upon the child to which he may be antagonistic.
You could not make him register.
You cannot provide against every possible difficulty. What Senator Colonel Moore is anxious to try to prevent is fraud by the mother, especially when the father is dead. It is a very laudable endeavour, but it may work very much greater difficulties and raise very much greater hardships. There is always the Court to come to in case of fraud.
Is there an appeal from the Registrar to the ordinary law ?
The Registrar's is not a decision at all ; it is simply a record. So far as the Registrar-General is concerned, he is bound to register on the evidence.
If he gets evidence.
There are many important legal questions arising for him before he decides to re-register.
He has merely to correct a record that does not happen to be correct.
Would it be open to anybody to go to the Court to have it upset ?
It would.
In the same way if a birth was registered wrongly.
Colonel Moore
We are going a long way in legitimising the child. I see a great danger. The advantage in the father declaring that he was the father of the child is that it practically ends the law.
The cases you are advocating are only odd cases.
Colonel Moore
The main thing is to know that the child is the child of a certain person. As regards the mother there is no question about that. If you once know that the child is the child of a particular person as far as I am concerned that ends the matter. But the person may be in Australia or some other place.
It would save all the difficulty, but, on the other hand, it would limit the operation of this Act to a very small number of cases. It would create very great hardships on the part of children who could not help themselves.
Everyone of us is in favour of making the illegitimate child legitimate. That is the root and kernel of this Bill. I think if you adopt this amendment you are making it more difficult for legitimisation in many cases. For instance, if the father neglects to do that the child loses the opportunity of being made legitimate through inadvertence. It might be only inadvertence on the part of the father. It could not afterwards be done because, according to Colonel Moore's amendment, it has to be done within a certain time.
Colonel Moore
I am not particular about the time at all.
Why should there be any difference between what you call " an illegitimate person " and a legitimate person ? No matter what you do, the child is illegitimate still in everybody's eyes, because it is born out of wedlock.
If this Bill is passed it would no longer be illegitimate. It would be legally legitimate.
Could not all this be done by Act of Parliament even if the father never got married ?
That would not get over the Colonel's difficulty at all.
Why should you not make every illegitimate child legitimate ? It is not the child's fault that it is illegitimate and is it not a human being as well as everybody else ? You are trying to do a certain thing in this Bill but you are going to do it only in the case where parents get married. Senator Mrs. Wyse Power talked about the injustice to the child. What about the child whose parents do not get married ?
I am afraid that would be too large an order. I wish it could be done. I wish a child could have a claim against its father or whatever legal rights it ought to have.
It is not the child's fault.
It would create very awkward inquiries.
Worse things than that could happen.
Colonel Moore
No matter where you go you are up against something. One may go a little bit too far or one may not go far enough. To my mind, the only way is to get a declaration from the father that he is the father of the child.
I say that the procedure provided in the Bill gives you all you want.
Colonel Moore
It may be sought to have the man declared the father simply because he happened to be a rich man. He may not be the father of the child at all.
If you did not put in a time limit for the declaration——
Colonel Moore
I do not care if he puts it in six months or ten years as long as he says: " It is my child."
Assuming he puts it in within six months and the mother comes along and says that this is his child.
The penalty is on the child unfortunately.
Colonel Moore
The penalty has been worse on the child up to now—on the child of an unwilling father.
If there is an unwilling father he will not marry the mother.
I think Colonel Moore's amendment would not meet it.
Colonel Moore
Why not ?
" It is a wise child that knows its own father."
Colonel Moore
If the father chooses to take that responsibility on himself, you cannot go beyond that. Somebody was talking here the other day about children who never appeared at all until after the father had married the mother. The father believed the mother to be a maiden. He dies, and suddenly a child who has been for five or six years living with the mother's mother appears on the scene.
In that case, if the father dies the people who are the next-of-kin of the father would dispute the question of the paternity of the child at once.
Mr. O'Hanlon
It makes a case for the Court, but Colonel Moore is endeavouring to eliminate that. That is what he is at. The Colonel wants to eliminate the possibility of any recourse to the Court.
In that case, will you keep the case from the Court if there is a quarrel in cases of that kind ?
If there is a fraud done it will go to the Court.
There is no remedy for frauds.
There would be a clear case for fraud if there was anybody else claiming the father's property.
Mr. O'Hanlon
Where there is a marriage under these particular circumstances the father signs a declaration which legitimises that child. In that particular case there is no question afterwards of fraud. If the woman produces a second child it is different. She has had an opportunity of having the child legitimised.
That is if the woman is aware that such a provision is in the Bill. How many would ever read that ?
Mr. O'Hanlon
Take the other case. Section 2 of the Bill has met Mr. Hooper's point or at least it has met a certain aspect of it. You take another somewhat different aspect of that case. A man and woman marry. The father dies, say after five years. The woman then produces a child and she says : " That child is a child of my late husband." At once it can be argued in the Court that this child was not registered within three months after the date of the marriage. The woman says that she was not aware of that provision. In that event, what are you to have in the Court ? The husband is not there to submit evidence. There is the woman's contention in the Court that it is her child and the child of her late husband. You have her failure to have registration effected within three months after the marriage. It is going to take the wisdom of Solomon to say who was the father of that child. Difficulties will arise in five, six or eight years. The worst that can be charged against the surviving parent, the mother, is that the child was not registered within a specified time after the marriage. How is that going to be solved in Court ? I cannot understand it at all.
The onus would be on the mother and if she could not show it by some course of conduct of the father she could not succeed. If she could not show that the father had contributed to the support of the child or if she could show that he had and that he had allowed it to live in the house, then you would have some evidence. If, however, it were shown that the father never recognised that child, I do not think the mother could succeed. The onus would be on the mother.
In order to safeguard against a case like that, are you prepared to say that a declaration is necessary to legitimise the child ?
Mr. O'Hanlon
It should be our object as between such persons to make marriage as easy as possible and to enable the child to be legitimised by any reasonable method. That is what is being aimed at in the Bill before us. At the same time Colonel Moore is asking for more definiteness in the interests of justice ; and in order to prevent fraud he is asking that by a statutory declaration be given effect to at the time of the marriage. If that would prevent marriages which might otherwise take place, I would be inclined to go against it. My own opinion is that it would not. The marriage is just as likely to take place even if the alleged father of that child has simply to sign a declaration. A lot of things have to be inquired into. I do not think you could prevent a man in this particular instance marrying the woman if he had simply to sign a declaration that he was the father of the child named. If it does not prevent marriage I would be rather inclined to favour Colonel Moore's suggestion.
Colonel Moore
With regard to the difficulty that has been raised that the woman would not know about having this declaration made, it becomes known generally all over the country that if a father signs a declaration legitimising the child, that this is the law. That is a simple thing. But the other would be an elaborate thing. People do not know that they would not have to go into Court in order to do this and that. The matter becomes difficult for poor people to understand, but everybody generally understands that if the father signs a certain paper the matter is finished in a practical way. And it becomes quite simple for everybody in the country.
Mr. O'Hanlon
But is it not better to have the whole case at one time and have the declaration signed at marriage ?
When does Colonel Moore suggest that the declaration should be signed ?
Colonel Moore
Any time.
If Colonel Moore adopts that view, then registration meets the case.
Colonel Moore
If the father dies before he signs the declaration then the declaration is useless. My real point of view is that I want the father to say that it is his child and whether it is done at marriage or three months later I do not care.
Mr. O'Hanlon
Colonel Moore argues in favour of Senator Hooper's view when he said the declaration can be signed six months afterwards. But if the father dies in the meantime then the question may go to the Court. In my view there is only one time to sign it and that is at the marriage. It should be gone into then and the matter should be put an end to.
As the amendment stands on the paper the declaration may be made at any time. Senator Colonel Moore wishes to alter the wording of the amendment so as to have a declaration made within a certain time after the marriage.
In the declaration that Colonel Moore has embodied in his amendment there is in my opinion a matter that is not right and I am against it altogether.
What amendment of his amendment does Colonel Moore want ?
Colonel Moore
I do not care when the declaration is made. I suggest that both amendments be put one after another.
I do not know that we can do that, because if time is to be part of the amendment it must be a definite time—either at the marriage or within a definite period after. I cannot put a vague amendment.
Colonel Moore
If the father made a declaration in time then the child is legitimised.
That is the effect of the amendment on the paper. This legitimisation takes place from the date of the declaration and not from the date of the marriage.
Colonel Moore
Leave the amendment as it is and put it to the Committee.
I am afraid I cannot. It must be one way or another—the declaration should be a declaration at the time of the marriage.
I would like to say that I think the whole discussion centres round the case where property is involved. After all in the case of a poor man's child it does not matter very much one way or another. Senator Colonel Moore is trying to protect the property of the father from the child. I think that is the whole thing.
Colonel Moore
No, it is not.
And not as far as I am concerned. I object because there is a case where the child is going to be foisted on to a man who is not his father. It makes it possible for the woman to foist a child on a husband who never knew anything about it.
She will not do that when the father is alive.
Why not ? Does not the marriage of the man and woman legitimise any previous child of that woman ?
No, only such child of whom the husband is the father.
Where is that in the Bill ?
That is in the Bill.
Where is it in the Bill that it can prove he is the father ?
It is in the first section of the Bill.
There is reference there to parents. Let us suppose that A gets married to B and that C is the child of A. As soon as A and B marry, C becomes the legitimate child of both those people.
Provided it was their child.
Who is to decide that ? The child is to become the legitimate child of A and B. B must have the responsibility whether or not he is guilty. Where is the provision which will enable him to prove that C is not his child ?
The word " parents " covers that. The same thing covers everyone of us.
The parents in this case will be the two people defined. In the case of the illegitimate child the male parent is not defined and you are going to give that child a male parent.
They cannot make him the male parent if he is not the male parent.
Mr. O'Hanlon
Who is going to establish that he is not the parent ?
You may always depend on a father recognising a child of his own.
Mr. O'Hanlon
Would it not be better to have a declaration ?
It would be, if everybody knew the law. Unless you have the declaration made actually on the occasion of the marriage, you might have cases of very great hardship where a declaration would not be made before the father died.
Mr. O'Hanlon
If you have the declaration made on marriage, that definitely establishes the parentage of the child.
To put matters right it will be necessary for Senator Colonel Moore to get the leave of the Committee to alter his amendment.
Leave granted.
The amendment as altered will now read :
Section 1, sub-section (3). Before sub-section (3) to insert a new sub-section as follows :—
(a) Nothing in this Act shall operate to legitimate a person unless the father of such person shall on or before the date of the marriage file a declaration in the prescribed form that such person is or was a child of his body.
(b) The form of such declaration shall be prescribed by regulation of the Registrar-General of Births and Deaths in Ireland and shall be filed in accordance with such regulations.
Amendment, as altered, put. The Committee divided : Tá, Senators O'Hanlon, Duffy, and Colonel Moore ; Níl, Senator Mrs. Wyse Power, Sir Edward Bigger, and Hooper.
That leaves three on each side. I vote against the amendment and therefore it is lost.
Question proposed : " That section 1 stand part of the Bill."
Are the words " if living " necessary in line 15 ?
It depends on what you want. This would not legitimate a dead child and, after all, what would you want to do that for except from the point of reputation ? There is nothing to be gained by it. I would be inclined to leave the wording as it is.
The form of wording in the first three lines is rather peculiar :
" Subject to the provisions of this section where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act. . . ."
There seems to be some confusion there.
The English is not very nice, but I think it is in the Act that we have followed. I am not responsible for this at all. Perhaps you would call attention to it on the Report Stage.
Question put and agreed to.
Schedule and Title agreed to.
Bill ordered to be reported to the Seanad.