University Education (Agriculture and Dairy Science) Bill, 1929. - Illegitimate Children (Affiliation Orders) Bill, 1929—Committee.
Debate resumed on Section 2.
Last night, in dealing with sub-section 1, I suggested that a change in the machinery proposed by the section would be desirable, the reason being that under the section as it stands the mother, or the expectant mother, of a child could go into the office of the District Court, and without application to the Justice have a summons issued there against the alleged father to attend and show cause why an order should not be made against him in respect of such child. I suggested that that was an undesirable procedure, for it would leave the way open for blackmail proceedings, and that something in the nature of a judicial mind ought to interfere before the summons is issued in that form, because the summons really amounts to this: that it is a prima facie finding that the person against whom it is issued is the father of the child. I agree that the word "may" in regard to the issue of the summons should stand, but that application should be made to the District Justice. There is an amendment, No. 11 on the Paper, and I do not know if I would be in order in referring to it having regard to the fact that I have not put down an amendment to the sub-section myself. That amendment, which stands in the names of Deputy Little and Deputy Law, is:—
To add at the end of the section a new sub-section as follows:—
All applications to the District Court and all cases under this Act shall be heard in camera, and publication of such cases shall be limited to the statement of the fact that an affiliation order has been granted in a particular court against a person whose name and address shall be included.
I think that this preliminary proceeding, namely, the issuing of a summons, should be not only safeguarded by having the application made to the Justice himself, but it should be further safeguarded by having the application for the summons made in camera before the Justice. I do not agree with the amendment as it stands. What it proposes is that the hearing of these proceedings should be in camera. Apart from the fact that it would be an infringement of the principle that the courts of our State are open courts, and that all legal proceedings should be in open courts, I think what is proposed by the amendment is undesirable for another reason. If a summons is issued and heard before a Justice, if the proposed amendment is accepted, then in a case where a man succeeded in clearing his character of the charge made against him, although probably the whole neighbourhood would be aware that the summons had been issued against him they would not be aware of the fact that he had cleared himself of the charge. I think it would be undesirable to have court proceedings held in camera. If an order is made against him there is no reason why there should be a departure from the ordinary principle of an open court. On the other hand, if a man succeeds in clearing himself of the charge against him it would be undesirable that there should be no publicity of that fact. I suggest the Minister should consider the advisability of amending the section by providing the safeguards I have suggested.
I reserve arguing the question as to whether such cases should be tried in camera until we come to deal with the amendment, but I think there is a great deal to be said for Deputy Rice's contention that only a District Justice should deal with this matter. I do not know what the view of the Minister was when the Bill was drafted. Now, however, that his attention has been drawn to it, and in view of the unsatisfactory state of the law and procedure with reference to certain matters which are dealt with by the Clerk of the District Court it would be far better to make it explicit in the Bill that the matter should come before a District Justice before the summons is issued, and that it should be in camera.
This is largely a matter of procedure. If any more satisfactory procedure than that embodied in the section can be discovered I am perfectly willing to accept it. I will consider bringing in on the Report Stage an amendment embodying Deputy Rice's views.
Section 2, as amended, agreed to.
SECTION 3.
(1) On the hearing by the District Court of a summons issued under this Act the Justice, if he is satisfied in accordance with this section that the alleged father of the illegitimate child (whether born alive or still-born) to whom such summons relates is the father of such child may make an order (in this Act called an affiliation order) adjudging such alleged father to be the putative father of such child and ordering such putative father to pay the expenses, as measured by the Justice, incidental to the birth of such child, and, where such child was born alive, such of the following moneys as may be appropriate, that is to say:—
(a) if such child has died before the making of such order, the funeral expenses, as measured by the Justice, of such child to an amount not exceeding five pounds, or
(b) such weekly sum not exceeding twenty shillings as the Justice shall fix for the maintenance and education of such child, or
(c) where the putative father so consents, a lump sum of such amount as shall be fixed by the Justice in commutation of any weekly sum which might otherwise be payable under this Act by such putative father in respect of such child.
(2) No Justice of the District Court shall be satisfied that a person is the putative father of an illegitimate child without hearing the evidence of the mother of such child and also evidence corroborative in some material particulars of the evidence of such mother.
(3) Where a Justice of a District Court by an affiliation order orders the putative father of an illegitimate child to pay a weekly sum in respect of such child he may attach such conditions as he shall think proper to the payment or to the receipt of such weekly sum.
(4) The provisions of this Act relating to the fixing of the amount of a lump sum paid in commutation of a weekly sum payable under an affiliation order and the payment, administration, and application of such lump sum shall apply to the fixing, payment, administration and application of a lump sum made payable by an affiliation order in commutation of any weekly sum which might otherwise be payable.
I move amendment 8:
In sub-section (2) section 3, line 39, to delete the word "particulars" and substitute the word "particular."
This is a very small amendment. It only emphasises the fact that it should not be necessary to have a series of particulars of evidence but that one piece of substantial evidence alone would be sufficient.
I would be satisfied roughly to accept the amendment if the Deputy would take it in this form: "particular or particulars."
Yes, lines 39 and 40 then to read: "evidence corroborative in some material particular or particulars of the evidence of such mother."
Amendment as altered, agreed to.
Amendment 9:
To add at the end of sub-section (2) the words "or, if the mother is not alive such other evidence as shall appear to the Justice to be conclusive."—Tomás O Conaill (not moved.)
Amendment 10:
To add at the end of sub-section
(2) the following proviso—"Provided that in cases where the mother is dead or is an idiot, lunatic or person of unsound mind the Justice be so satisfied on the evidence of any one or more credible witnesses and may receive in evidence a dying declaration by the mother."—Proinnsias O Fathaigh.
I think this amendment is in the same position as amendment 9.
Would the Minister consider a case where part of the procedure had been carried through by the mother before she died? How would the Minister deal with a case like that?
I think the man charged has a right to cross-examine the woman on her statement.
Would the Minister take a case where the man has admitted his liability and the mother then dies? As the Bill is now drafted there is no power to proceed further in such a case.
If the mother is not available as a witness I do not think it would be fair to proceed against the man.
Even where the man had admitted?
Or in the case of a dying declaration?
A dying declaration would be absolutely hopeless. But even in the case of a man who has made a statement, the value of that evidence depends on the person who heard him making the statement. If a man makes a statement taking responsibility for the child you may be sure he will support the child. Any man who takes responsibility for the child will, in fact, if he is able to, support the child.
Amendment 10, by leave, withdrawn.
I move amendment 11:
To add at the end of the section a new sub-section as follows:—
"All applications to the District Court and all cases under this Act shall be heard in camera and publication of such cases shall be limited to the statement of the fact that an affiliation order has been granted in a particular court against a person whose name and address shall be included."
This is an amendment which has created a good deal of interest amongst people who have a real experience of institutions where these women are looked after. Where the questions were put to them they said that it would be infinitely better to have cases of this sort tried in camera than to have them tried in public, because it is only the hardened sinners, people who have completely lost their self-respect, who will come into a public court in cases like this. You have people who would rather die than have the matter made a public matter, but you would find that these people would come into court when the question is heard in camera. There is no one who can be so inhuman as a legal theorist, and one must necessarily take cognisance of people who are dealing in a practical way from day to day with this problem —people who know the psychology of these people. These are people who have no ulterior motives, no motive other than that they are trying to do the best for those who are in their charge. I think that the facts they have put before us should weigh very heavily with the Dáil. This is not a kind of case where the question of the Constitution, as far as public courts are concerned, arises. It is not a case where Constitutional issues are involved or where an injustice can be done to people because the case is not heard in public. The amendment safeguards the public. The principle of publication comes in there; it lays down that when a decree or affiliation order has been granted in a particular case against a person, that may be published. In that way publication is not entirely evaded, but the actual hearing of the case is in the spirit of the old procedure of the ecclesiastical courts, which are the foundation in British law of the Chaneery Courts. The old ecclesiastical courts dealt with matters of this kind, and when they did deal with them they were not matters for publication at all. It would be in consonance with our tradition as well as being a merciful method of dealing with these cases that matters of this sort should be dealt with in camera. Also from the point of view of the man who is being charged there is far less chance of blackmail in cases where the question is to be tried in camera, because the force of blackmail depends upon the amount of publication which can be threatened, but if there is no publication then the threat of blackmail to a very large extent disappears. A man under a threat of blackmail may say, "Very well, take your action and bring it into court." If the case is heard in camera that will completely disarm the person trying to blackmail. I think the amount of public opinion in favour of this amendment justifies me in asking the House to accept it.
I will ask the House not to accept this amendment. I am not going to follow the Deputy through a good deal of his speech, because I have only to point out to him that all criminal and quasi-criminal courts in this country are public, with one exception, and that is with respect to a charge of incest. In England charges of incest were heard in camera for some time, but the experience there was of such a nature that they repealed the section dealing with that matter, and these cases are now heard in open court. I do not say that we should follow blindly English customs. I do not say that at all, but I do say that in this country, where legislation and the court procedure are very much the same as in England, where they have tried and where they have found the thing not to be successful, we should not lightly embark upon the same principle in new legislation. Really the words the Deputy has used here that nobody but a hardened sinner would come forward have very much surprised me. I am astonished at hearing a Deputy make such a case. The Deputy is a practising solicitor. As the law stands at present, actions for seduction may be brought, and such actions are brought from time to time. Whenever a girl lives with her father or mother, her father or mother can bring an action for seduction against the father of her child, if there is an illegitimate child. If the Deputy were correct, nobody but a hardened sinner would ever bring a case of this kind. That is not so; that is not my experience. I have acted for the defendants in a considerable number of those cases, and I have never heard in my experience anything of the sort suggested. I could challenge anybody, and I have challenged a deputation which came to see me on this very particular question. I challenged them to let me know if they knew of a single case in which fear of publicity had prevented a girl taking legal proceedings, and not a single one of the deputation could mention a case that in their knowledge had happened. It must be borne in mind in the first place that everybody's public is, so to speak, very much confined. It is generally what your personal enemies, your friends or your neighbours think of you. That is the public which affects the ordinary person. One's public is one's own immediate surroundings. If a girl has an illegitimate child every person in her neighbourhood, whether she brings the action in camera or in public, will know that she has had that illegitimate child.
Her reputation is no more damaged amongst the people that count as far as she is concerned; that is, her own immediate home circle. Nobody is made the slightest bit the wiser by the public hearing of the case. As I have said, I am perfectly satisfied that whether this case is heard in public or private there will be exactly the same number of cases brought. It ought also to be borne in mind that a girl in a case of this nature, or in an action for seduction, has not to go through anything like the same ordeal as, for instance, a girl who is a State witness in a case where there is a charge of indecent assault brought against a man and she is the individual who has suffered. In such a case it is necessary to have a very close examination of the facts. That examination must be gone into and certain very unpleasant details have to be brought out. I now refer to charges of rape and indecent assault. In charges for seduction, no unpleasant details are gone into. Simply the main fact of the seduction is deposed to. There is no necessity to go into details and there is no putting of difficult questions for the girl to answer beyond the one leading question: "Were you or were you not seduced by this man?" and she answers "Yes." There is not in the case of seduction the terrible ordeal to the girl which there sometimes is in charges of rape.
According to this amendment, if an action is brought against a man it can never be known that he is clear of the charge. If there is a verdict against him, that can be published. The girl's name is not published, but his name has to be published. That is as I understand the amendment. But suppose the charge against him is dismissed; suppose he completely vindicates his innocence—that fact can never be published. Is that fair? After all, men have their reputations to look after as well as women. A charge may be brought against a man and it may be very damaging to him. He may face that charge and demonstrate his innocence. Is he not entitled to let the public know that his innocence has been demonstrated? I will go further than that. The mere fact that the charge against him has been dismissed is not enough. All his neighbours will know, of course, that a charge has been brought against him. If a summons is served on him it will pretty quickly get out and all his neighbours will know of the charge. Suppose that they even hear that the charge has been dismissed, they will not know the grounds upon which it has been dismissed. Sometimes the charge may be dismissed on technical grounds and for want of corroboration. The man may be guilty or innocent, but the case has not been proved against him. He gets a dismiss on that ground. But suppose it may be otherwise; suppose he proved that he was not in the country at all at the date of the conception of the child that he is alleged to be the father of; suppose he can completely establish his innocence. In such circumstances is he not entitled to have that fact made public? In my judgment——
I am quite willing to accept any change in the amendment which would meet the Minister's point and which would give the man the option of publishing.
But how can it be published? How can the fact be published unless there is a newspaper reporter there?
There will be the official stenographer in court and his notes can be used.
It will be necessary to have one if there is an appeal.
I do not quite follow the Deputy.
I take it that in a case like this, just as in any case that would come before a District Justice—but, of course, there is no official stenographer in the District Court.
Perhaps a stenographer could be engaged for the purpose.
Then who is to decide whether or not the case will be published?
The general principle is that a person who has a serious charge brought against him is entitled to a public investigation of that charge. The Deputy talks about blackmail. Surely this amendment makes for blackmail. If there is a decree against a man his name is to be published. I could see visions of some hardened woman getting a decree against one man. Everything is kept quiet and private and only the name of the man is published. Possibly, if there is to be no publicity, that hardened woman might get several decrees in respect of the same baby against different putative fathers. They might even go so far as that if you are going to have no publicity. A woman might issue summonses against three different persons and everything is heard in camera. The safeguard of the individual is the publicity of the proceedings against him. I am perfectly satisfied that if the cases are heard in public not one single woman less will bring a charge under this Act.
I am sorry to find myself in opposition to my friends the Minister and Deputy Rice. I should be the more affected were it not for this consideration, that I know so well that if the legal profession has a weakness—which I should be reluctant to admit—it would be attributable to undue conservatism. Deputy Rice's objection rests mainly on the point that to give in camera proceedings in this particular class of case would be contrary to our general legal procedure. Of course that is quite true. The Minister bases his objection upon that ground partly and also upon other grounds with which I shall deal in a moment. On the general question, this is not the first time one has come up against this sort of attitude. I remember some years ago—I happened to be in England then—when an Act was passed which regulated and restricted the publication of details in divorce proceedings. That Act, of course, does not provide for what we call in camera proceedings, but it does—and we copied it in our own Censorship Bill last session—very greatly restrict the amount of information in such cases which can be published in the newspapers. Even that moderate measure met with the most determined and violent opposition from members of the Bar in England, notably from personal friends of my own, leaders of the Bar in Divorce and Probate. I do not believe that now, after some years' experience, anybody would wish to go back to the old state of things. I spent a considerable part of one year in attending proceedings in that Division and I was profoundly convinced that nothing but harm could come, whether to the public or to the parties, from the publication which formerly attended such proceedings. This is relevant to something that the Minister said a moment ago. He pictured—and I think it was one of the most forcible parts of his speech—the possibility of a man being the victim of a false charge. His neighbours would know that a charge was made against him. Under this amendment, if carried, he would be unable to obtain any publicity beyond the mere fact that the case against him had been dismissed.
He could not even get that.
I think Deputy Little indicated that there would be no difficulty in adding words which would secure that. I was assuming that would be done. It ought to be done. I am only concerned to point out that exactly the same sort of problem arose in connection with the divorce procedure in England. I remember having been very deeply impressed by one case in which the charge made against the husband was of a terrible nature. I think it was quite the most revolting case to which I ever listened, as presented by the wife's counsel. In the course of cross-examination, however, her case completely broke down, but no doubt there must have been many people who were aware of what had been said about that man who had no opportunity by means of any publicity attending the proceedings of letting people know that the case had broken down and that the particular charges had been completely disproved. That seems to me to be one of the risks which we have constantly to take. Now I come to consider another matter. Broadly, there are two parties who are to be considered— namely, the man against whom the charge is made and the woman who brings a claim for an affiliation order. So far as the man is concerned I am inclined to agree with Deputy Little. It is a very nicely balanced question. Take a man against whom a charge has been improperly brought. Is he more likely or less likely to yield to threats of blackmail if the proceedings are to be attended with full publicity or to be held, I will not say in secret, but with modified publicity? It is a very difficult question, and on the whole I should be inclined to agree with Deputy Little. If it were my own case I should be more inclined to fight and not to yield to threats of blackmail if I were not going to be exposed to the full view of all the loungers in a public court and to all the publicity attending such proceedings with unrestricted publication in the papers.
That is my personal point of view, and I find that it is shared by many people, but it is a nice question upon which people may come to various conclusions. Now I come to consider the question of the woman. The Minister says that he does not believe that any girl would be deterred from applying for an affiliation order because of the publicity attending the proceedings if the Bill is passed as is proposed. He also tells us that he believes that exactly the same number of cases would be brought in the one instance as in the other. The Minister may be right—I do not believe he is—but I do know that neither the Minister nor I can be regarded as the best judge in these matters. The people who are the best judges of the psychology of the unmarried mother are surely the people whose duties bring them into contact with them, such as social workers, the clergy and certain religious orders like nuns. From what has appeared in the public Press and from private letters which I have received there appears to be absolute unanimity in opposition to the view put by the Minister. Rightly or wrongly, the decent girl—and in the great majority of cases they are fundamentally decent—will be prevented in many cases from bringing her claim to court if she has to face the publicity which is contemplated in the Bill. Therefore, for my part, though I see the force of certain objections raised by the Minister, I still remain of the opinion that such proceedings should be heard in camera, and I ask the House to agree with that view.
Like Deputy Law, I have been greatly impressed by the views of social workers and the nuns who run the Magdalen Asylum. They seem to be unanimous that these cases should be heard in camera. The Minister for Justice spoke about seduction cases, but I think that the number of such cases in the Free State is comparatively few. I think that many girls hesitate to bring actions on account of the publicity given to them, but they would be glad to get relief if the cases were heard in camera. With Deputy Little, I suggest that the Minister should agree to insert after the words "affiliation order has been granted" the words "or refused."
The Minister, in opposing the amendment, said that one of his reasons for doing so was that we should follow the precedent in England, give all the publicity possible to these cases and that it should be known through the local press whether a charge against a man was dismissed on technical grounds or whether he got off with a clear sheet. As Deputy Law pointed out, I think that there is a great outcry in England against this form of publicity. I know that there is an agitation to establish a censorship in the Press in order to cut out a lot of the stuff in which certain types of newspapers deal. According to the Minister we are to have plenty of publicity in regard to cases in which charges are brought in the courts against putative fathers. You might divide the mothers into two classes. You have the middle-class mothers with whom social workers and nuns in cities come into contact. In the other case, you have the mothers who go to the county homes and who comprise the vast majority of mothers of illegitimate children in the Free State. Amongst the latter type you have a small percentage of mothers who themselves are illegitimate, who come of an illegitimate stock, and who observe no moral code whatever, but are bred in the art of blackmail. Taking the male psychologist outlook in regard to this matter, it is not fair to the man charged that he should be brought into public court and the charges against him turned into a kind of comedy out of which certain people would get vulgar enjoyment. It would be embarrassing to him, he would not get as fair a trial in open court as if his case were tried in camera, and sooner than face that vulgarism he would prefer to pay off the blackmailer. Taking his point of view alone, the trial in camera, as advocated in this amendment, is the more desirable method. Whether the public know that he got off on a technical ground or cleared himself or not, is apart altogether from the matter. He will get publicity enough if he has to maintain the child, without going into the details of the evidence.
Again what applies to the man who is liable to be blackmailed by these charges in court also applies to the girl who perhaps is paying her first visit to any public court and it is only fair to her that the proceedings should be conducted in camera. We all know that in such cases the neighbourhood will know of it but there is a difference between the neighbourhood knowing it and having the proceedings conducted in public in court, with her name appearing afterwards in the local Press which will be read in three or four counties. As I say, if there is a precedent in England for this kind of thing it is condemned by the best thinkers in England and it should not be a precedent for us here. We ought to see that it is not followed here by adopting this amendment.
I wonder if the Deputy who last sat down has ever considered what is the idea of publicity in criminal trials. Is he aware that the general maxim is accepted that publicity is for the benefit of the accused and that everyone who is charged with crime is innocent until he is proved to be guilty? Let us examine briefly the point of view of the mother in the first place and of the alleged father in the second place. If the mother has a genuine case, if she is not a blackmailer or a virago, she has nothing to fear by coming into public court, and I thoroughly agree with the Minister that nothing shall deter her from doing so.
Deputy Murphy stated that there were very few seduction cases in this country. From a moral point of view, unfortunately, I must disagree with him. They are heard in every Circuit Court that I visit on the Leinster Circuit. I agree with the Minister that if the girl can prove through her father or mother that a man is the father of her child and if she wants the father or the mother to get damages for that, there is no reluctance on the part of the individual girl to come forward and give the necessary evidence. I would like to say also that the Minister was perfectly right when he stated that the character of evidence which had to be given in such cases is entirely different from that which is given in cases of indecent assault. Let us then take the position of the woman who might bring false charges against the alleged father. Is it not right that the charge should be tried publicly and if the charge is false then it shall be publicly broadcast? Take the case of the man who is guilty. Why should his guilt not be brought out in public? Why should the case not be decided in open court? Is it not for the benefit of the country that it should be known that this man has committed this offence?
Is it not for the benefit of the country that it should be known what the circumstances were in which this offence was committed and that he should be branded as the criminal that he has been found by the Court to be? Take the case of the innocent man. Surely, if a man is innocent he is not going to demand that a serious and, to a certain extent, an immoral offence should be heard in camera. On the contrary will he not come forward and say: "I want this case brought up against me in public. I deny this charge. Let the accuser come forward and make what statements she can and I will be prepared openly and publicly to deny them." That, to my mind, would be the natural viewpoint of the innocent accused, and when it is suggested, as it has been by Deputy Little and Deputy Law, that to have cases tried in public would lead to more blackmail, I cannot for the life of me understand the rationality of that view. Surely if one person wants to blackmail another it is far easier for him to do so when, as a result of his attempted blackmail, the issues will be tried in private and not in public. Surely it is easier for that would-be blackmailer to make these charges when he knows that the charges he is making will never be sifted in public. I certainly cannot follow the reasons put forward on the other side.
Then Deputy Law spoke about the divorce law in England. The procedure in regard to divorce law was changed in England with respect to the publication of the proceedings. That was done for one purpose and for one purpose only. It was done in the hope that it would not encourage people throughout the country by reading these proceedings to indulge, if I might so describe it, in divorce. What has been the result? Is there less divorce to-day in England than there was when this new procedure was adopted? On the contrary, I do not think I am wrong in stating that the divorces have actually in creased. But the main reason why I stand by the section as it is, may be, if you like, due to my conservatism, conservatism as a lawyer, perhaps, as well as conservatism in other respects, but conservatism in this way. I do not object to being called a conservative because what I want to conserve is the liberty of the subject, the liberty of the individual citizen of this State, that, when at any time a grave charge is brought against him, he shall have the right to have that charge brought forward and sifted and the issue decided in public. As the Minister has said, in respect of every criminal charge in this country at present, with the exception of a charge of the crime of incest, the individual citizen has the right to have his case tried in public. I think that not only would it be detrimental to the public interest at large if that system were discontinued, but it would be an exceedingly bad precedent for the future criminal administration in this country.
The fact that nollumus mutari is the motto of the King's Inns has been well exemplified by the speech we heard from Deputy Redmond.
Are you not a student there?
I have not yet acquired that legal attitude towards things which very often leaves out humanity. There is a social evil to be remedied here and what we should consider is not what the legal mind thinks of it as but how best to remedy it. Deputy Redmond says the case should be sifted in public. I wonder does he think that the presence in court of people who go to court to hear things for certain purposes will help to get justice for anyone accused. Do they go there in the legal frame of mind? Do they want to see everyone get fair play or do many of them go through idle curiosity to hear these cases? It would be well if that class were included. I notice Deputy Rice and Deputy Redmond time and again emphasise the case of the man accused. There are two parties to the case. Men are the sterner stuff and the tougher fibre and should be better able to bear the charge than the woman. We should give her the chance which it is agreed by social workers of all denominations she will have if the case is heard in secret, and we should not have, as very often happens, a ribald public present when these things are discussed. It is not, of course, a party question at all. It is a question of how best to remedy that social evil, and I am strongly of opinion that you are more likely to get the evil remedied by having the cases heard in camera.
With regard to the Minister's objection, it would be possible to add to Deputy Little's proposed amendment some such words as these: "or where the order is dismissed, such order in its entirety may be published or not, according to the desire of the defendant."
I think this House should be very slow to interfere with the general principle that all cases should be heard in open court. An attempt was made some months ago in this House to interfere with that principle or rather to introduce a certain element of secrecy into our criminal procedure, which we on this side resisted as far as we were able. I think that no case has been made on behalf of Deputy Little's amendment which would justify us in interfering with the principle. It appears to me that there is a further consideration that has not yet been touched upon, except in a very slight way by Deputy Redmond, and that is the question of the effect of these secret trials, as against public trials, on general public morality in the country.
It seems to me that we should consider the case not alone of the innocent man but of the guilty man also and consider the effect which publicity would have as a deterrent. I have no hesitation in saying that it would have a good effect on public morality and act as a deterrent against actions of this kind by a man who might occupy a responsible position and be inclined to take advantage of unprotected girls if it were known that the possibility of trial in open court was to be faced. If, on the other hand, he knew that even the greatest consequences of his act would be an affiliation order, which, so far as the actual financial cost of it went, meant very little to him, it would not be as great a deterrent as the possibility of being dragged through the public court would be. I think that is a consideration we must always bear in mind when deciding how we should cast our vote in this particular matter.
The main argument in favour of Deputy Little's amendment is whether or not justice will be sought, whether the mother will be prevented from seeking justice because of publicity. I believe you can roughly divide these people into two classes, the people who would be inclined to go to the court and the people who would be inclined to hide their shame and not tell anyone about it. As far as these latter are concerned, it will not matter much to them whether the proceedings are heard in secret or in public. They will endeavour so far as they can to keep away from the court whether the proceedings are public or private. I believe that the number of mothers who would be reluctant to go to the court because of the publicity would be comparatively few. I think the amount of possible hardship that would occur as a result would not be so great as to justify us in departing from the general principle of publicity. I think that, on the whole, the weight of the arguments is in favour of publicity and it is because of that that I intend to vote against the amendment.
Deputy Fahy has observed that the motto of the King's Inns is "We are unwilling to change." I confess that where we have experience behind us, not merely of generations but of centuries, I am adhering to the maxim. In fact, I have observed that Deputy Fahy himself, as his training in the law has progressed, has become more reasonable and broad-minded in the views he has put forward in this House, and I hope that progress will continue until he reaches a prominent rank amongst the members of the Bar. There is only one observation I desire to make in addition to what I have already said on the section itself, and that arises out of a suggested analogy by my friend, Deputy Law. He suggested that there would be an analogy here in our position if this amendment were adopted and the position in England with regard to the non-publication of the reports of divorce proceedings. I suggest that that is not an analogy, because the main objection I had to this proposed amendment is that it does not give an opportunity of acquittance to the man who proves he is innocent of the charge.
Deputy Fahy said that I spoke of the man who was being accused all the time. I do not desire any protection for the man who is the father of an illegitimate child and who has refused to shoulder his obligations, and if publicity is his punishment I think he should get as much publicity as the Press will give him. But I am concerned with the man who is innocent and may be falsely charged. If you have this amendment, he cannot get an acquittance in the eyes of the public. There is no analogy between the position if this is accepted and the position in England with regard to the publication of divorce reports because, there, a special exemption is made, in prohibition of publication, in favour of the summing up of the judge at the conclusion of the case. Of course, when a man is innocent of the charge brought against him he can get no better acquittal in the eyes of his fellowmen than the summing-up and conclusions of the judge at the conclusion of the trial. For these reasons, I oppose the amendment.
I would like to remind the House, first of all, of the purpose of the Bill. It is to make provision mainly, I think, for the child, to impose upon the father the obligation of providing for the child he has begotten. It is quite true that in attempting to make that provision, we do offer to an unscrupulous person what might be an instrument of blackmail but, at the same time, we have to bear in mind that the principal purpose of this Bill is to ensure that provision shall be made for the child. Therefore, we should do nothing that will tend to make this Bill in any way ineffective. In that connection we have got to remember the deterrent, even from defending proceedings, that the danger of publicity may be. I listened to Deputy O'Connell who stated that publicity would deter men from committing these offences. The unanimous testimony of social workers is that publicity will deter the wronged woman from seeking redress and the main purpose of the Bill is to enable that woman to seek redress. Therefore, when dealing with this question the first consideration should be, what is going to make the Bill more effective, and the second consideration, possibly, ought to be that the Bill should not be used for the purposes of blackmail.
Deputy Redmond in dealing with this measure said that the general maxim is that publicity is in favour of the accused; that everyone charged with a crime is innocent until proved guilty. That is the theory but I am sorry to say that it is not in accord with the actual facts. I think in the minds of the general public a man is held almost invariably guilty until he is proved innocent, and even after he is proved innocent, and after the verdict of the jury is given in his favour, very often he is held to be guilty more or less. That general attitude of public opinion in this country towards the accused person will often deter men accused in the wrong from defending themselves and from incurring the publicity which such defence will assuredly entail. They prefer to settle in secret rather than have the cases blazoned in the columns of the newspapers. That publicity is one of the things that will go towards making this Bill an instrument of blackmail. That is the argument for the man. If a man knows that a case will be heard in camera, that he can go and put his case before the judge, that no publicity will ensue, you may be certain if he is conscious of innocence he will defend the case and not submit to blackmail.
In the same way, if a woman falls, she can go there to seek redress without exposing her shame to the public view. Then the woman, for the sake of the child, and possibly for the sake of herself, will take advantage of the Bill and seek redress. There is one other point I would like to mention. The Minister said that after all a person's public is very limited and circumscribed. That depends very largely on the position of the person. A person may belong to a family known over a much larger area than the particular person has acquaintance with. In that case, a woman will be very often deterred from taking action, because of the fact that such action will reflect not only on herself, but on her friends and relatives who might be known, as Deputy Kennedy said, throughout three or more counties. It is not merely the limited circle of one's friends that will be affected in these cases. No person can set a limit to the damage which might be done not only to the reputation of the aggrieved person, but to the reputation of her relatives and friends in cases of this sort, and for that reason, and for the sake of the persons concerned, we think these cases ought to be heard in camera.
The last argument I want to advance is this: On the one side, you have heard the lawyers, practically unanimous, against the amendment, while on the other side I think you have social workers, practically unanimous, in favour of the amendment. I ask the House which of these has the more intimate association with, and knowledge of, the persons affected by this Bill? Surely those who are succouring these unfortunate women can speak with much greater knowledge as to their psychology and desires than the Minister for Justice, Deputy Redmond or Deputy Rice. If the fate of the amendment is going to be determined by the experience of one or other of these parties, then I think the House ought to be determined in its judgment by the experience and desire of those engaged in social work who want this amendment to be accepted.
I have very few words to say on this matter. It appears to me that if there is any question of women being deterred from bringing actions for the future women would have been deterred from bringing actions in the past.
I would like to hear of any concrete case, from social workers or anyone else, of a woman having been so deterred. As I said before, I asked social workers if they could give me a concrete case, and they said not. It appears to me to be a question of theory against the actual experience which we have, which not only lawyers but everyone in this House more or less must have, that girls who bring an action for seduction, girls who have only fallen once, girls who until that fall were virtuous, are never deterred from going into court. I would like to hear of a concrete case in which a girl said she would go into court if the case were heard in secret. It is mere speculation as to what will happen in the minds of girls in the future, weighed against the course of conduct which girls similarly circumstanced have adopted in the past. I completely agree with Deputy Fahy in this, that it is certainly not a party matter. It is not a political matter. It is a matter which has nothing at all to do with political questions. It is purely a social question. It seems to me to be a social question of no slight importance. Deputy MacEntee says that the main thing we must look on is the position of the woman. That is slightly wrong. The Bill is for the support and maintenance of the child, and not for the advantage of the mother at all. The question here is, will this alleged shame of letting not only her own immediate circle, who do know, but outside persons know, that she has borne an illegitimate child overcome in her mind parental affection? I do not think it will. In fact, I am sure it will not. As a matter of fact, any girl who has borne an illegitimate child, who has had to face the scorn which we all know the mother of the illegitimate child receives from her acquaintances, has borne a very hard thing. She has borne a thing in comparison with which appearing in public court is a mere trifle. I am sure the House will agree with me in that. To say that she would be deterred by going into court appears to me to be utterly wrong.
I heard the Minister say that he had not got any definite cases. I have not got them at present, but when the Bill was introduced I was speaking to a parish priest who told me that he knew several cases where girls would not bring a case into court for the reason that they did not want the thing broadcast. It is bad enough to have local publicity, but when it comes to broadcasting it all over the country it is another matter; probably for the reason that their friends and connections would be also blamed. Being a lawyer, every case which came under the Minister's notice came into court. Lawyers think that every case should be brought into court. I wonder has that occurred to the Minister.
I confess I find very considerable difficulty in making up my mind about this question. I was very much impressed by what the Minister said with regard to it being equally our duty to protect the innocent as to look after the mother of the child in certain cases such as are under consideration. I was also impressed by what the Minister said, by what Deputy Rice said, and, particularly, by what Deputy O'Connell said. In consequence I find myself in the position of not liking the amendment as it appears on the Paper. I do not think I can vote for it as it stands. I do feel, with those who put the amendment forward, and feel very strongly, that if the Bill goes through in its present form it will very largely fail to meet the difficulty which it sets out to meet. I have a certain amount of social experience. I am bound to say that that social experience does not confirm me in the view that the Minister takes, that open publicity in court does not deter very many people from seeking to fix guilt upon a father which he ought properly to bear. I do not think that the amendment is right, and I do not think that the Bill in its present form is going to be as useful as I would like it to be. My inexperience of courts rather prohibits me from putting in any concrete form any suggestion, but I cannot help thinking that the Bill could be improved if there was some intermediate course possible.
I think the pronouncement of the justice or the judge who hears the case ought to be given every publicity, and that, I think, would very largely protect the innocent person. I think if there was partial publicity of that kind, if the statement of the judge and the result were made known, the taking of evidence, etc., being held in secret, it would go a certain distance towards helping these unmarried mothers to get the help for their child which they ought in right to be entitled to receive. I think the Minister has made his point strongly that the amendment, even partially altered as Deputy Murphy suggested, would not sufficiently protect from attack in some cases men who are quite innocent of what they are accused. Again, as it stands, I do not know that the Bill will meet very many cases.
As far as I am concerned, I shall certainly accept and welcome the suggestion which Deputy Thrift has made, if Deputy Little will agree with me, that in addition to that provided in the amendment publicity should be given to the statement of the judge.
I think that suggestion is a very good one, and, provided we can establish the protection in the form of the trial being in camera, we are willing to accept any adjustment after that which would be in the best public interest. I do not know if either Deputy Redmond or Deputy O'Connell adverted to it, but we have tried in the amendment to protect the principle of publicity, because the decree is to be published when it is made against the party. That meets some of their arguments. The Minister said that he had not come across cases where women were deterred from coming into court. Curiously enough, within the last twelve months I myself have had a case in my office of a woman who would not go into court in such case. I do not wish to specify the action, but it was an analagous case. She had a clear case if she had gone into court, but she refused because of the publicity which would attach to its being heard in public.
It was a case of the same nature.
What was the nature of the action?
I can explain privately to the Minister what the cause of action was. If the Minister would agree that on the Report Stage he would consider carefully a further amendment, having regard to what Deputy Thrift has said, I think we can let the matter go at that.
I personally am against privacy. I should like to point out to Deputy Thrift that there is no analogy between the case of a judge charging a jury and a magistrate giving a decision, or a Circuit Court Judge giving a decision on an appeal. The judge charging a jury will go through and examine all the evidence placed before the court. On the other hand, a magistrate giving a decision very often simply will say "decree" or "dismiss," and not give any reason.
If in such a case it was obvious that an innocent man had been wrongly charged, would be not go out of his way to make clear his defence and justification?
If there is anybody there to report it. You mean that the public are to be admitted to hear his judgment. I do not see how such machinery could be devised. Anyway, I am opposed to privacy in this matter.
Surely it is not beyond the wit of man to discover a way in which the judgment can be published in a case like that. If the justice is directed by an Act of Parliament to write his judgment, whether it be short or long, it cannot take very long to write it, and let that judgment be published. We are under a misapprehension here. Technically speaking, it is not a criminal matter. It is an action for tort. It is not a criminal proceeding at all. It is not a case where the State intervenes and prosecutes. There is no prosecution in these cases. These cases are civil cases arising out of a criminal act.
It is the other way about. It is a criminal matter because the man is ordered to pay so much.
It is a civil procedure arising out of a criminal act.
The difficulty as far as the Minister is concerned seems to be that he does not believe that there are any cases of suppression of this kind due to publicity. It seems to me that that might be statistically examined. There is such a thing, I presume, as a return of illegitimate births. What proportion do the affiation orders bear to them?
There is no existing procedure for affiliation.
What proportion do actions of this kind bear to the recorded number of cases of illegitimate birth? I should imagine a very small proportion, and, therefore, prima facie the case seems to be that there is suppression. What I am going to put to the Minister is this: If between now and the Report Stage Deputy Boland or someone else brings to his notice cases of suppression will he, on Report Stage, consider whether he can meet this difficulty or not?
No, I am in favour of publicity.
The difficulty is this: I frankly say the Minister is entitled and is bound to act as strongly in the protection of the man as in the protection of the woman. He is bound to be fair between the two. There is no suggestion whatever that he has any special obligation towards the woman as distinct from the man. But take a case of seduction where there has been no publicity of any kind, where, from the fact that they may have means or facilities of one kind or another, the matter has been kept entirely private. The only way under the Act that I can see to get any remedy is to get the very publicity which they try to avoid. The Minister says that this is not the clause for a division on party lines or anything of that kind. Neither should it be, but there is a difficulty here, and I think between the amendment and the Minister's own view there ought to be accommodation. If between now and the Report Stage there is put in the Minister's knowledge the kind of cases which he says do not exist, that ought to modify very considerably his action in relation to this matter.
It has been said that this Bill is primarily in the interest of the child, but I do think that publicity is not in the interest of the child. That is one of the reasons that might deter an unmarried mother from seeking redress in open court. I certainly do not think we should in this Bill, where we can avoid it, add to the handicap which such a child already carries or receives on its entrance into life.
I notice a great deal is made of the suggestion that there is a value in publicity as a deterrent in this matter. I would like to urge the opposite point of view, and to plead that for the sake of the public we should be careful not to establish the doctrine that publicity is a cure in matters of this kind. I can visualise a state of affairs where the Press, which has already a sufficiently large appetite for this kind of news, will be encouraged to indulge still further in that appetite, and ordinary, inoffensive citizens will be deluged with all sorts of nauseating details which are of no benefit and to which they object. I think some people are apt to make a sort of fetish of publicity in matters of this kind. There is no virtue in publicity in itself. In so far as it is urged as a deterrent, it seems to me that the penalties inflicted by this Bill, if it becomes law, ought to be a sufficient deterrent and that publicity is a weapon which is apt to act in both ways. I think that is one of the most objectionable results of a certain type of cheap Press that we have in the modern world, and so far from being a deterrent, you may very easily by the artificial publicity which you give to acts of this kind —by a kind of morbid suggestion— encourage such acts.
To my mind, a Bill of this kind will do much damage if it goes through in its present form. Its chances of being effective will be lessened considerably and the chances that it may do actual harm instead of good will be increased. As far as I know, social workers, interested in this matter, are all in favour of having such cases heard in camera. They believe the interests of both persons—the injured and those against whom the charge is made—will be secured by having them heard in camera. The only argument urged against that is the rather doctrinaire and visionary notion that publicity in itself has some virtue attached to it. I think we should be very careful about that notion, and we should remember that while publicity may have these virtues in some respects, there are other respects in which it is as much a disease and a danger as a virtue.
I suppose the Minister has accepted our suggestion that the division should be on non-Party lines?
Oh, yes, the division on this amendment is not on Party lines. I take it the division is on the amendment as it stands.
Amendment put.
The Committee divided: Tá, 64; Níl, 55.
Tá
- Aiken, Frank.
- Allen, Denis.
- Alton, Ernest Henry.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Seán.
- Briscoe, Robert.
- Buckley, Daniel.
- Carney, Frank.
- Carty, Frank.
- Cassidy, Archie J.
- Colbert, James.
- Conlon, Martin.
- Connolly, Michael P.
- Cooney, Eamon.
- Corkery, Dan.
- Corry, Martin John.
- De Loughrey, Peter.
- Derrig, Thomas.
- Doherty, Eugene.
- Doyle, Edward.
- Doyle, Peadar Seán.
- Everett, James.
- Fahy, Frank.
- Flinn, Hugo.
- Fogarty, Andrew.
- French, Seán.
- Gorry, Patrick J.
- Goulding, John.
- Hennessy, Thomas.
- Holohan, Richard.
- Houlihan, Patrick.
- Jordan, Michael.
- Jordan, Stephen.
- Kennedy, Michael Joseph.
- Kerlin, Frank.
- Killilea, Mark.
- Kilroy, Michael.
- Law, Hugh Alexander.
- Lemass, Seán F.
- Little, Patrick John.
- Mathews, Arthur Patrick.
- McEllistrim, Thomas.
- MacEntee, Seán.
- McFadden, Michael Og.
- Moore, Séamus.
- Mullins, Thomas.
- Murphy, Joseph Xavier.
- O'Dowd, Patrick Joseph.
- O'Kelly, Seán T.
- O'Reilly, Matthew.
- Powell, Thomas P.
- Reynolds, Patrick.
- Ryan, James.
- Sexton, Martin.
- Shaw, Patrick W.
- Sheehy, Timothy (Tipp.).
- Smith, Patrick.
- Tierney, Michael.
- Tubridy, John.
- Ward, Francis C.
- White, Vincent Joseph.
Níl
- Aird, William P.
- Anthony, Richard.
- Blythe, Ernest.
- Bourke, Séamus A.
- Brennan, Michael.
- Brodrick, Seán.
- Byrne, John Joseph.
- Carey, Edmund.
- Clancy, Patrick.
- Collins-O'Driscoll, Mrs. Margt.
- Colohan, Hugh.
- Cosgrave, William T.
- Craig, Sir James.
- Daly, John.
- Davis, Michael.
- Dolan, James N.
- Lynch, Finian.
- McDonogh, Martin.
- MacEóin, Seán.
- McGilligan, Patrick.
- Mongan, Joseph W.
- Mulcahy, Richard.
- O'Connell, Richard.
- O'Connell, Thomas J.
- O'Connor, Bartholomew.
- O'Donovan, Timothy Joseph.
- O'Hanlon, John F.
- O'Higgins, Thomas.
- Duggan, Edmund John.
- Dwyer, James.
- Egan, Barry M.
- Esmonde, Osmond Thos. Grattan.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Haslett, Alexander.
- Hassett, John J.
- Heffernan, Michael R.
- Hennigan, John.
- Heary, Mark.
- Hogan, Patrick (Clare).
- Hogan, Patrick (Galway).
- Kelly, Patrick Michael.
- Leonard, Patrick.
- O'Leary, Daniel.
- O'Mahony, Dermot Gun.
- O'Sullivan, Gearóid.
- O'Sullivan, John Marcus.
- Rice, Vincent.
- Roddy, Martin.
- Sheehy, Timothy (West Cork).
- Thrift, William Edward.
- Vaughan, Daniel.
- Wolfe, George.
- Wolfe, Jasper Travers.
Tellers: Tá, Deputies Little and Hu gh Law; Níl, Deputies Rice and Barry Egan.
Amendment declared carried.
Section 3, as amended, ordered to stand part of Bill.
Sections 4 to 8, inclusive, agreed to.
SECTION 9.
I move amendment 12:
To delete sub-sections (1) and (2) and substitute a new subsection as follows:—
"(1) In the case of every affiliation order directing the payment of any money (other than in respect of the costs of such order) whether in one sum or periodically by the putative father of an illegitimate child such payment shall be made to the District Court Clerk or to such other public officer as the Justice of the District Court may with the approval of the Minister for Justice appoint to collect such money to be applied by such officer in such manner as the Justice shall from time to time by order direct."
This amendment is an attempt to prevent a person who has to pay an affiliation order paying it directly to the mother of the child. It has been found by social workers that where that has been done in the past it has led to undesirable results. Quite recently a case came under my notice where, actually, the putative father had been paying money to the mother and, because of the fact of having to see the woman it led to a repetition of the offence.
Making a voluntary payment?
Yes, one that had been adjusted by lawyers on both sides. We suggest, as a substitute for that possibility, that the money must be collected by some court officer. We hold an open mind upon the wording of the amendment. If the Minister is prepared to accept the thing in principle we are quite willing that he should re-draft the amendment. We also hold an open mind as to who the officer should be who is to collect the money and pay it over. There is a further reason why that procedure should be as automatic as possible. It is this: that if there is delay in making payment, or if the defendant does not pay the affiliation order then, according to the wording of the Bill as it is, it would be necessary for the mother or whoever the person is who is ordered to collect the money, to take proceedings in court, whereas according to the machinery that we suggest that should be done by the court. If the money is not paid regularly into court, then automatically the matter would be dealt with by an official of the court.
Under the Bill as it stands, a complete discretion is given to the District Justice. He can order that the sum of money which is to be paid shall be paid over in one sum or in weekly instalments, as the case may be, to the District Court Clerk, "to be applied by him in such manner as the Justice shall from time to time by order or otherwise, direct for the purposes for which such money was so ordered to be paid." That power exists. If the District Justice thinks in his discretion, or a Judge on appeal thinks in his discretion, that it is wiser that it should be paid not to the District Court clerk but to the mother of the child, or to whoever may be for the time being the guardian of the child, he can make such order. He will make it to the District Court clerk, to the mother or the guardian of the child as the case may be. I think it is wise that he should be left that discretion.
Is there power to vary the order on application?
Under Section 5 a Justice of the District Court "may vary all or any of the conditions relating to the payment or the receipt of such weekly sum." I submit it is better and wiser to leave the District Justice to make up his mind as to whom the money should be paid.
I will not press this if the Minister will agree to consider it on the Report Stage if very strong pressure is brought to bear by those who have had experience in the matter.
I think it is better to leave the discretion with the District Justice. Certainly, in the first instance discretion should be given to him. If experience shows that evil things are happening, then this Act, which is rather an experiment, can be varied by subsequent legislation. I think we ought to start off by giving full discretion to the District Justice.
I am not clear regarding the meaning of sub-section (b) regarding changing the person to whom such weekly sum is payable. It does not seem to meet the point where the payment is in arrears.
It is payable to the District Court clerk or to the mother or whoever may be the guardian over the child. The District Justice can direct the money which has heretofore been paid to the District Court clerk to be paid to the guardian of the child, or the money paid to the guardian of the child can be paid to the District Court clerk.
But if an order has been made for payment to the mother and the money has not been paid to the mother, but has run into arrears, could the District Justice then direct that it should be paid into the District Court? And then there would be a further order that it could be paid out of the District Court to the mother?
The mother would collect it as a civil debt just as the District Court clerk would collect it. The District Court clerk would have to take proceedings.
Amendment 12, by leave, withdrawn.
With regard to amendment 13, at present there are certain difficulties about the interlocking of different areas of District Justices. For instance, it would be very difficult for a District Justice under the present law to give an order to a District Court clerk out of another area dealing with a matter like this.
I follow what the Deputy means. For instance, a District Justice may think it is wise the money should be collected by another District Court clerk. I will consider the matter on the Report Stage.
Amendment not moved.
I think amendments 14 and 15 go together. Amendment 14, which I move, is: "To, delete sub-section (4)."
Amendment 15, which is in my name, is as follows:—
To insert at the end of the section a new sub-section as follows:—
Where any such payment or any part thereof is in arrear for seven days, the collecting officer shall notify accordingly the person who is entitled under the affiliation order to receive such payment. On the request in writing of the mother or other person entitled to recover payments under the affiliation order the collecting officer shall proceed on behalf of the mother or such other person against the putative father for recovery of the payments under the affiliation order, and all costs properly incurred in such proceedings shall be payable by the putative father.
The object of my amendment is to obviate the necessity for those actions the Minister referred to. It will make the collection of arrears automatic and it will also prevent association between the parties again, which would be very undesirable. These are the three main purposes of the amendment, which would replace amendment 14.
I do not quite follow what the Deputy means. There must be always proceedings taken to decide whether or not a man owes money or whether or not he has paid.
But if he pays into the Court, or pays the clerk of the Court, it will then be known that he has paid.
But the defendant might make the case that he has paid; the District Court clerk may say "I have not got it," and then the defendant will have the right to have the matter decided by a tribunal as to whether or not he has paid.
Does the Minister not consider that it would be better that the officer should collect the arrears and if the man is in arrears he could proceed against him? If the man has already paid he can take action. An action should not be necessary before he is applied to for the money.
If there is no action, how is the money to be recovered? There may be a seizure made on the man's property for the arrears or there may be proceedings to have the man committed for nonpayment. All these things must come to Court. The Deputy himself suggests proceedings should be taken.
The amendment, if carried, would certainly keep the mother of the child out of the case, and that is desirable. Let the Court take proceedings.
That is the idea—that the Court should take proceedings and not that the District Court clerk should, as it were, himself adjudge the matter. Proceedings should be taken at the instance of the State rather than at the instance of the mother.
The Court, having once awarded payment, will take the responsibility of seeing that it is paid.
I do not think that could be done. Very often it would be much wiser to pay it to the guardian.
The point we have in mind is to keep the woman out as a litigant. The Court has decided that the man shall pay a certain amount of money and we want some machinery by which it will be assured the woman will get the money without herself having to go to law.
If the District Justice considers that it is wiser the money should be paid to her directly, and there is a failure in the payment, then she will have to take proceedings herself. If the District Justice, in his discretion, considers that it would be wiser to have the money paid to some other person, that other person would have to take proceedings. If it is the District Court clerk, then he will have to take proceedings. It is only the person to whom the money is payable who can say whether or not it has been paid. I think, if they consider it. Deputies will see that there is really adequate procedure.
I am in a difficulty about this matter. We are discussing at present in another Committee questions of possible future legislation, and it might arise that we might be able to make a recommendation for an amendment of this, though it seems hardly likely as the period over which this experiment will be made will not be sufficiently long.
I suggest that the Deputy should wait to see if the present procedure is not adequate. It is a new departure and one can never really foresee every difficulty which may arise. The best thing is not to start looking for difficulties which may never arise; if they do, then they can be met and overcome.
Amendments 14 and 15, by leave, withdrawn.
Question—"That Section 9 stand part of the Bill"—put and agreed to.
[An Leas-Cheann Comhairle took the Chair.]
SECTION 10 (5).
(5) Before the mother of an illegitimate child in respect of whom no affiliation order has been made under this section applies to a Justice of the District Court for his approval of an agreement she shall make an information in writing upon oath identifying the admitted father as the father of such child and the making of such information shall be a condition precedent to the making of such application by such mother.
I move the following amendment:
To add at the end of sub-section (5) the following proviso—
"Provided that where the mother has died or is an idiot or person of unsound mind the application may be made by any person having custody of the illegitimate child and the information may be made by any person who has actual knowledge of the facts stated therein and such information shall be deemed sufficient if it raises a prima facie case of identification of such father."
There were one or two other amendments, more or less of the same effect before the House already. I do not think that this amendment is exactly similar to them. Let us take the case that the putative father has agreed. Then if the mother dies or goes to a mental hospital there is no one who can take an action, as far as I can see, under the Bill.
The child can sue through its guardian.
Yes. However, I will make perfectly sure of that point.
It is merely a matter of procedure.
Amendment 16, by leave, withdrawn.
Sections 10 to 18, inclusive, and the Title, agreed to.
The Dáil went out of Committee.
Bill, as amended, reported.
Report Stage fixed for Thursday, 27th February.
