Illegitimate Children (Affiliation Orders) Bill, 1929—Committee Stage.

Section 1 and 2 agreed to.

SECTION 3.

Sub-section (5): 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.

Mr. O'Farrell

I move:—

"Section 3, sub-section (5). To delete all after the words ‘in camera' down to the end of the sub-section."

This amendment is to give effect to opinions that were expressed here on the last occasion. The section provides that all Court proceedings in regard to affiliation orders shall be heard in camera. The second part of the sub-section makes provisions for publication in certain circumstances where an affiliation order is granted by the Court. There is permission to publish, and it is made mandatory, in fact, that the name and address of the person against whom the affiliation order is made, shall be published. The effect of my amendment is to delete all the words after the words "in camera," and to make no provision for any publication. There are strong arguments in favour of hearing a case in camera, as there are strong arguments against. To take one argument against publication, unsavoury details may be disclosed. I am disposed to think that whatever the other effects may be, it is desirable that a case should be heard in camera, but if cases are to be heard in camera, let that principle be observed throughout, and let there be no publication. The section provides for no publication in the event of a person against whom proceedings are taken proving himself innocent. It was suggested that provision should be made for publication in such circumstances. I do not see how provision can be very satisfactorily made. On the whole, I think the better course is merely to provide that the proceedings shall be in camera, making no provision for publication of any kind. It has been argued that publication may nullify the effect of the affiliation order, as the person affected may lose his post or be ruined in business, and in that way the affiliation order could not operate. I look upon this Bill as a protection for the lives of those unfortunate children who are born out of wedlock, and who have nobody to take any interest in them during their childhood. It is not intended merely as a punitive measure against the putative fathers of the children. Unless it is so intended, I see no reason for leaving in the concluding part of the section.

Mr. Comyn

I am in the unfortunate position that an amendment I intended proposing to this section was late. I am very glad of the opportunity of referring to the amendment which was proposed. I agree the Bill has for its object the protection of child life. It is really the charter of these children of illicit love. I support the amendment by Senator O'Farrell, but I suggest to him that it would be an even better method of dealing with the matter to meet the objections which were raised by the Minister for Justice. As the Minister said on the last occasion, the words "in camera" connote a kind of secrecy in the conduct of cases. That was not intended and is not desirable. My view would be that in a case where an application is made for an affiliation order power should be given to the Judge to exclude from the Court all persons whose presence in the Court was not desirable in the public interests. That would include all the Peeping Toms that come in to hear cases of this description. It would allow the principle of the open court to remain unassailed, and I can assure the Minister that that is an important consideration. You can carry your point in another way by leaving it to the Judge to exclude persons whose presence is undesirable. I would also leave it to the Judge to decide whether publication should be allowed or not. Gentlemen of the Press who are there in the ordinary course of their work may if they like take a shorthand note, but I would not give them the right to publish anything in connection with the case unless they applied to the Judge and got leave.

Senator O'Farrell made a good point when he said that the Bill as it stands means the compulsory publication of the name of one of the parties, but there is no obligation on the Press to publish any names. The Bill as it stands provides for compulsory publication, but my suggestion to the House is that the matter should be left to the discretion of the Judge to say whom he would exclude. It should be also left to the discretion of the Judge as to whether a case should be published. There are many cases in which an affiliation order is sought in which it would be desirable in the interests of the parties there should be some publication. A man or girl may be very seriously wronged by the talk that has gone on in regard to an affiliation order even before the application comes to be tried. The only way that that wrong could be righted would be, perhaps, by a judicious publication of some of the circumstances that came out during the course of the case. For that reason, although I support Senator O'Farrell's amendment, I think it could be further amended in the way I have indicated, and I intend to bring in a further amendment on these lines on the Report Stage.

Mr. Farren

With all respect to Senator Comyn. I think the proposal he has outlined dealing with this matter would cause a tremendous amount of complication and difficulties. The amendment before the House is simple, and does what is required. It says these cases shall be heard in camera, and the sub-section stops at that. That is a simple, straightforward non-legal —if I may use the term—way of dealing with the matter. It is easily understood from the layman's point of view what the position is. We do not want to be hedged around with legal technicalities. By leaving to a Judge discretion as to whom he shall let into the court during the hearing of a case would lead to endless complications.

Sir Walter Nugent

I think Senator Comyn's point is covered by Senator O'Farrell's amendment. If "in camera" means anything it means the public are to be excluded from court. I think if you want to reach the class of people the Bill proposes to deal with you must have these hearings in secret. If people who get into trouble for the first time are dragged into open court, it is perfectly certain they will lodge no complaint. As to publishing names, what is the good of it? I listened attentively to what Senator Comyn said, but I could not see that he proposed anything not covered by Senator O'Farrell's amendment.

Mr. Douglas

I had reached practically the same conclusion as Senator O'Farrell as a result of the debate which took place last week on this subject. I am not in entire agreement with the one point made by Senator Farren about the amendment being clear to the non-legal mind. If you take the amendment and stop at the word "camera," will that prevent publication? Is it quite clear that a newspaper cannot publish? I think it would probably be necessary to add words to the effect that no publication shall take place. If you leave it as it is, we will not be in the exact position that Senator Sir Walter Nugent has suggested.

Mr. Wilson

The position in that case would be that the newspaper would be subject to the Censorship Act.

Mr. Johnson

I think the words "in camera" have a technical meaning, but it has not been explained what they mean technically. As technicalities would determine the course of procedure it would be well if we had a legal definition of the meaning of the words "in camera."

The McGillycuddy of the Reeks

There are one or two points I should like to have cleared up. On hearing the Minister's speech last week I came to the conclusion that the members of the Dáil, when voting on this issue, had not informed themselves properly of the meaning of the words "in camera." I have endeavoured to inform myself as to their meaning. In Halsbury's "Laws of England," there is no definition of them. I understand that if a Justice or a Judge hears a case in camera, a record is made in Court. That record is not available to the public. I should like to be made clear on that, because I was in much the same position as Senator Comyn in being late with regard to an amendment which I wished to bring forward. It is rather doubtful whether it is wise to have these cases heard in camera. In this Bill we are trying to protect the child and not the father or mother. The hearing of a case in camera is simply to protect these two individuals, and it is no protection to the child. I do not intend to go further than asking the Minister whether he will give some information on the question as to whether publication of proceedings in camera by the Press is possible or legal.

Sir Thomas Esmonde

I listened very carefully to the debate on this Bill on the last occasion. I have had some experience of local administration. There was always great difficulty in bringing these cases into Court owing to the examination of the mother. The Bill proposes that if an affiliation order is obtained against a man his name and address shall be published. If it is desirable that the mother's evidence should be tendered in camera it is only fair that the man against whom the affiliation order was sought should be protected likewise, and, in spite of what Senator Comyn has said, I think the way proposed by Senator O'Farrell is the right way to go about it. If there is then any publication that an affiliation order has been granted I imagine that would be a matter of contempt of Court, but that is purely a legal point. I speak subject to the correction of the Minister for Justice, but it seems to me the fairest way of dealing with the question is to carry Senator O'Farrell's amendment, for which I will vote.

Minister for Justice (Mr. Fitzgerald-Kenney)

I find myself in a rather awkward position, because I am an avowed opponent and enemy of hearings in camera, and now I find in various parts of the Seanad people who differ from me, and saying "we do not know what in camera means, but we are in favour of it though we have not the remotest idea of what it means." I notice that there appears to be a split in the Labour Party upon this matter. One Labour Senator was in favour of leaving in the words "in camera," as he said every man in the Seanad would know what they meant. But another Senator of the same Party with experience of the Dáil and Seanad says that in camera is obviously a legal term, and "for goodness sake tell us what it means."

That seems to be the position at the present moment. The only one as far as I know where "in camera" was used implicitly was in the Incest Bill. There are certain powers for hearing in camera in the Children Act, but there it is clearly defined who can be present. I would rather complete publicity in open court, but I agree more with Senator Comyn than with most of those who have spoken. Under the Children Act where there are certain indecent offences against girls they have to be heard in camera. All the witnesses may be present and also Press reporters may be present. That is how "in camera" was defined there. If you are going to have "in camera" at all I believe you should have the Press. It is another safeguard. It prevents a person bringing charge after charge and wandering round the country successfully victimising men. There is also another thing which the Senate should bear in mind. All men are not supermen. Judges and District Justices are men, and it is a good thing when exercising their powers and performing their duties that the eyes of the public should be upon them. I think that is a great help. A particular Justice who has got a fad in one direction might give no decrees in cases of this kind although there might be no more kindhearted person, and there might be another Justice who might decide in the girl's favour against the weight of the evidence. That is possible, and it is highly advisable in the interests of the clean administration of justice that the public should know exactly how justice is being administered and that the Press should be there to report—not to report indecent detail, because that is guarded against by the Censorship Act—but to report in a sensible manner. Senator Esmonde asked me if there were publication would that not be contempt of court? No, because the District Court is not a court of record, and has no power to punish for contempt of court unless there is contempt of court of a particular nature, in facie curiae, contempt done within the precincts of the court. It has not got any power to punish for contempt of court which contempt is not done actually in the presence of the court. If there were publication, even though the statute says there should not be publication, it would be a dead letter unless you prescribed punishment for the publication. I would again urge upon the Senate that, at any rate, it should not exclude the Press.

Mrs. Wyse Power

I am heartily in agreement with the amendment. It puts things in the proper position. As to the suggestion made by Senator Comyn, I do not think it would work in the interests of those it is supposed to work for. I think the very fact of a girl knowing that a Justice may clear the Court or may not do so, would probably prevent her from going into Court. That has been the difficulty experienced by social workers, and that is why "in camera" has been put into this Bill, as a result of the representations that were made.

A great many people do not understand why these cases should be in camera, but social workers and clergymen interested in these girls put their point of view before members of the Dáil, and stated that unless the cases were heard in camera the girls would not go into Court. The Bill can easily be amended afterwards if it is found necessary. For the present I think anything like what Senator Comyn suggested would only complicate matters. I would ask Senators to vote for the amendment.

Mr. Douglas

When I spoke before I stated that I had come to the conclusion that what was proposed by Senator O'Farrell's amendment was on the whole the wisest course, but in view of the Minister's statement, to the effect that there can be publication, even though you say "in camera," I think it would be a most mischievous way of dealing with it. Not to have the Press present, but to have a hearsay case published against either the man or the woman concerned would be, I think, more mischievous, and would defeat the object of having it in camera. I think the matter would require more careful consideration before we insert this amendment. We would need to have something more than that there should not be publication.

Cathaoirleach

I quite agree. I think there is a danger there. Perhaps Senator O'Farrell would consider what Senator Douglas has pointed out, and withdraw this amendment. He could bring in a further amendment on the Report Stage.

Mr. O'Farrell

This is a very simple matter, and when I was drafting the amendment I was under the impression that before this sub-section passed the Dáil there was some legal interpretation of the words "in camera" and their effect. I am surprised to find that the Minister does not seem to be quite clear as to the definition, and that it may lie with the House to interpret the phrase. I am rather disposed to ask the House to vote for the amendment, and if it requires any amplification it can be done on the Report Stage. I think we should adopt the principle of the amendment. Senator Comyn has suggested another arrangement—to leave the matter to the discretion of the Justice. I see a good deal of practical difficulty about that. He suggested that the Justice would be enabled to remove from the court what might be termed Peeping Toms and so on. Would there not be an amount of difficulty about that? You would cause a tremendous amount of personal offence to people. A man is charged with a certain offence, and the girl in the case can have no assurance in advance that various people who should not be there would be removed before the case came on. She has to rely on the chance that the Justice will remove those who should not be there. Frankly, I see no object in having the Press there unless you allow material publication of the facts. I am in favour either of open court in the ordinary way or in camera pure and simple. I say there is really no half-way house.

Mr. Fitzgerald-Kenney

What does "in camera" mean?

Mr. O'Farrell

In private, so that only the principals in the case, their legal advisers, and essential witnesses would be there. I think the Minister stated that the words have been already used in the Children Act.

Mr. Fitzgerald-Kenney

They are defined there.

Mr. O'Farrell

I think we might consider on the Report Stage defining the term "in camera," but it would be well for the House to indicate what it has in mind. It would be easy for anyone on the Report Stage to make any necessary consequential amendment or amplify this amendment. Until we decide this matter one way or the other we cannot decide what other amendments may be necessary. I ask the House to vote for my amendment.

Mr. Jameson

It is very difficult to make up one's mind how to vote on this amendment. I agree that if we passed the section in the shape it is now in Senator O'Farrell's amendment, it seems absolutely necessary. I was very glad to hear Senator Mrs. Wyse Power explain the reason for the sub-section, to induce these girls to come to court and state their case. Unless they are given protection so that their names will not be known they will not go to court. I take it that is the object of the sub-section. Before the House comes to a decision it should consider whether it would not be doing greater evil in trying to remedy one evil by allowing a clause to appear in an Act by which an accusation could be brought against an ordinary citizen, where the name of the accuser is not to be published. There are temptations to have an accusation made against one class of individual instead of another class. We have been looking at this matter from the girl's point of view. But look what it means to the liberty of the subject. What happens? The girl's name is not to be published. She may make an accusation against an individual, and as the Bill stands the name of that person can be published. In order to prevent that state of affairs, Senator O'Farrell is attempting to amend the section—a course with which I thoroughly agree. I doubt very much from the discussion whether the people Senator Mrs. Wyse Power referred to are going to get what they want. Unless the clause is altered much more materially than Senator O'Farrell's amendment would alter it, I do not believe the privacy they want will be obtained. I think Senator Mrs. Wyse Power should look into the matter before the Report Stage with someone who knows more about the law and advise the promoters of the clause whether it will give them what they want. I doubt if it is going to do what the promoters think it will do.

The other point is that we are creating a state of affairs that in the interests of the community we should be very slow to create. I would not like to be alone in my house with any clever and designing servant girl if my wife was away for a night or two. If the sub-section is left as it is, is it not open to any such girl to bring an action against her employer? For hundreds of years such cases have arisen. Both the girl and the man should be able to secure justice. Senators want to try to do what they can for the girl and for the child. But in order to do that we must not put a clause in the Bill which has been proved time and again to be wrong, in all common justice to the community, to benefit one particular class. Let there be justice done to all, and let the Seanad look at the class of people we will be dealing with. We are not dealing with a highly moral class of people; we are dealing with girls whose idea of their conduct is such that they are not very particular about their honour. This clause is a temptation; it holds out a temptation to prove a case as simply as possible.

If such a clause were in any other Bill the Seanad would throw it out at once and would not give it legal sanction. The Seanad should take more time to consider this clause before passing it. I doubt if the proposal is going to do what the promoters think it will do. I think we are establishing a principle of law that we should be very slow to establish and that we should not put on record the principle that one citizen can accuse another citizen of an offence and that the case is not tried in open Court. Try to apply that principle to any other offence and it will be rejected. I doubt whether we should break what is the great principle of common justice for the good that might be done under this Bill. Otherwise the Bill is an excellent one. I think we would be treading on most dangerous ground if we pass this section as it is worded. If it is to be passed I would prefer to vote for some amelioration of Senator O'Farrell's amendment.

The McGillycuddy of the Reeks

May I quote some statistics which will to some extent clear up what I regard as a certain amount of sentimentality about the question of not going into Court? The Commission for the Relief of the Sick and Destitute Poor reported that in 1926 when they made an examination of these matters there were two classes of unmarried mothers—one of them were first offenders, amounting at that time to 629, and the second class, for which they catered specially, amounted to 391—that is practically over 600 of one and 400 of the other. That is the point I make with a view to the Seanad seriously considering the question on the Report Stage. I cannot believe that a second offender will not willingly go into open Court.

Mr. Farren

In answer to Senator Jameson might I say that there are certain risks in connection with this Bill, but at the same time it is well to point out that the type of person he has in mind—the blackmailer— will not be afraid to go into open Court. For a person who is prepared to blackmail a man open Court has no terrors. It is the person who is not the blackmailer we want to protect. We want justice for the girl and we want the father of the child to contribute to its support. From experience we know this type of girl. She will not go into open Court to look for the justice to which she is entitled.

Mr. Fitzgerald-Kenney

Will you give a single example of that? That is what I am crying out for and cannot get.

Cathaoirleach

The amendment deals altogether with the words "in camera." The debate has gone outside the scope of the amendment.

Mr. Farren

The Minister asked a question, and if I am permitted I would like to answer him. The Minister asked if I could cite a single case where the girl refused to go into Court. I would answer that by asking him another question—to show me any Act of Parliament where the girl has power to go into Court to seek an affiliation order.

Mr. Fitzgerald-Kenney

Not an affiliation order, but to get damages for seduction.

Sir Walter Nugent

I was going to mention an illustration. You see illustrations occasionally in the daily Press when you read of girls destroying themselves sooner than go home and face the disgrace.

Mr. Fitzgerald-Kenney

That is quite a different thing.

Sir Walter Nugent

That is the class of case we want to deal with.

Mrs. Wyse Power

I have here replies from those who conduct the homes that deal with these girls. The details appear in a letter written to the Press by Rev. Fr. Devane after he had communicated with the different hostels that look after these girls. He does not give the names of the convents:—

Convent A., 160 penitents.—"As to seeking redress in open Court— we believe no girl would expose herself to such an extent. If such cases were heard in a private court, we feel sure that the majority of mothers would seek maintenance orders for their illegitimate children. We have never heard of a case of blackmail."

Convent B., 107 penitents.—"Very few, or none, would submit to a public Court. Some respectable farmers' daughters would be glad of a private court with redress. One case of blackmail in thirty-six years."

Convent C., 140 penitents.—"As to seeking redress against the father in open Court—we believe that no girl would compromise herself and her people to such an extent or subject them to such an exposure."

I could read very many more reports of a similar kind.

Mr. Fitzgerald-Kenney

But not a concrete case.

Mrs. Wyse Power

Father Devane wrote to every one of these convents in Ireland asking for the number of inmates, and for their views on the question.

Sir T. Esmonde

I listened to the Minister's speech and as a result of that speech I think that there must be something in Senator Comyn's idea. I would suggest to the Senator that he should think over the matter and put down an amendment dealing with the case for the Report Stage.

Mr. Kenny

I am sure that most Senators who have at any time been members of boards of guardians will remember that the difficulty that there always was in getting girls to help the guardians to bring a case before the court was because there was always an understanding arrived at which, of course, the girl who came before the guardians would not tell of, but which could be inferred owing to her unwillingness to give any particulars or help the guardians in any way, the understanding being with the man who has got her into trouble that if she in any way divulged his name or got him into trouble he would cut her off and she need never look to him any more. That has been the experience in the vast majority of cases of this sort, and it is not the hardened culprit at all, the girl of loose character, but the innocent girl who falls for the first time. These were the girls we found we could get no help from whatever. Individual members of boards of guardians knew that that understanding had been arrived at. The whole of the discussion here seems to range around these words "in camera," as to which there seems to be no specific or definite meaning. It is a technical term, subject to qualifications in the Children Act. I would suggest that Senator O'Farrell should leave the matter over and not press his amendment at present, because I can see that what he wants can be arrived at by another set of words. The term "in camera" means anything or nothing. We can put down in plain English what we require— who shall be present and who shall not. I suggest that the whole thing be left over to the Report Stage.

Mr. Johnson

On the suggestion of leaving the matter over to the Report Stage, might I recall the mind of the Seanad to the terms of the amendment? It is not specifically to approve of the provision that applications must be heard in camera: that is not prejudiced by acceptance of the amendment. The acceptance of the amendment would mean that the following words shall be deleted: "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," that is to say, the part of the sub-section which everybody admits ought to be deleted is sought to be deleted by the amendment, and why that should be put back to another stage I cannot understand. It is quite within the power of the Seanad to delete the whole sub-section on the Report Stage if it wishes, but the idea of the Seanad would be carried out absolutely by the acceptance of the amendment.

Mr. Jameson

As long as we are not precluded on the Report Stage, either from producing another amendment or debating the clause again very fully, I will certainly vote for the amendment. But if it means that the clause will be finally passed, and that anybody who votes for the amendment will not get another opportunity of saying what he thinks about the clause, then I would have difficulty in voting for it. But once it is clear that we can on the Report Stage have the matter fully debated again I will certainly vote for the amendment.

Cathaoirleach

Ample opportunity has been given for discussion on the amendment. The amendment does not at all exclude "in camera." I allowed the debate to take a wider scope so that the question as to whether "in camera" was advisable or not could be discussed. Nothing would prevent Senator Jameson or any other Senator from bringing in an amendment on the Report Stage, providing that "in camera" be not adopted.

Amendment put and declared carried.

Section 3, as amended, the remaining Sections, and the Title, put and agreed to.

Bill ordered to be reported.

The Seanad went out of Committee.

Bill reported with one amendment.

Report Stage ordered for Wednesday, 2nd April.

Seanad Éireann díospóireacht - Wednesday, 26 Mar 1930