Before the adjournment for lunch I was replying to the specific contributions made by different Senators and had just dealt with the point about the effect of Canon Law classifications of illegitimacy on the common law. I had introduced some further material on this matter to show the effect of changing concepts of property, feudal principles and attitudes towards the family on the concept of legitimacy.
I should like to comment now on what Senator FitzGerald said about the problems involved in a change in the law which would give succession rights to illegitimate children. He claimed this could interfere with and distort the family relationship of the family based on marriage and could be an unfair and unwelcome change in the law. I do not have the advantage of having the script of what Senator FitzGerald said last night. I will have to rely on my own memory. The limitations on the newspaper reporting of debates resulted in his speech getting about three lines in the newspapers. I hope I will accurately represent the serious queries he raised and try to deal with them. In essence the question is whether giving succession rights to illegitimate children would discriminate against the family based on marriage so that it would not be a good amendment of the law. I would maintain that what must be achieved is a balance of conflicting interests. I think we would differ on where the balance lies. Very many countries have taken the plunge and have decided to give property rights to illegitimate children. There has not been any social tension or any outcry from families based on marriage as a result. For example, countries like New Zealand, Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Portugal, Sweden, Britain, numerous States in the United States, Australian States such as Western Australia, and Canadian provinces and Saskatchewan. That is not a totally inclusive list of the countries which have conceded the principle and have changed their laws so to allow more or less rights of succession to the illegitimate child. Consequently, there is plenty of evidence in practice of countries who have taken this plunge and have not seemed to meet with the dangers which Senator FitzGerald warned us about last night.
If one analyses the objections put forward, I believe that they do not stand up to a detailed analysis. There are serious flaws in the theory that a change in the law would seriously affect the expectation of the wife and children born within wedlock. These rights are very substantially protected by the Succession Act, and the granting of property rights to an illegitimate child would not substantially affect this position. It would create a better balance in the conflict of interests and in the rights concerned. The argument that is put forward is that a change in the law which would give property rights to illegitimate children would interfere with the reasonable expectation that the lawful wife and legitimate children may have. The wife and her children properly expect to inherit a certain proportion of the husband's property; and, as was pointed out by other Senators as well as Senator FitzGerald, they may have contributed directly or indirectly to its accumulation. The argument is that they might suddenly find their share of this property reduced by the intervention of an outsider claiming a right of support. There are a number of answers to that objection.
First of all, the illegitimate child has reasonable expectations deriving from the basic fundamental principle that a man who fathers a child bears responsibility to contribute to the support of the child. At present the law does not reflect and cater for the reasonable expectations of the child of a father, if that child was born out of wedlock, to inherit the property of the father. We concede that the father's duty in relation to illegitimate children should be enforceable during his life. There is not a problem here because of the possibility of affiliation proceedings for maintenance. But this relationship should also continue on his death through a system of succession which would give all his children the right to a fair share in that estate. It is inconsistent to say that a natural father has a duty to maintain his child while the father is alive and the child is dependent on him, but if the father dies that is the end of the responsibility. That seems to me to be logically indefensible.
Secondly, the principles of succession which were laid down in the Succession Act of 1965 go a long way towards securing the position of the wife in the circumstances. If the man dies intestate, she is entitled to at least two-thirds of the estate. Her entitlement to this portion would not be reduced by according rights of succession to any illegitimate children. They would simply take a share with the legitimate children, if there were legitimate children, and accordingly the share of the children would be lesser; but the wife would still have her portion. The wife would suffer a reduction if the only children fathered by her husband were illegitimate. In that case instead of taking the whole estate in the absence of children, she would take only two-thirds; but she would get two-thirds no matter how many illegitimate children had been born of her husband. Therefore, in the case of intestacy the spouse is protected, and the giving of rights to an illegitimate child would not affect her portion on intestacy.
If the deceased husband dies leaving a will, then he can under the present law make provision for illegitimate children or make provision for anybody else — a stranger, his friends and so on. But it is now provided by the 1965 Act that the wife's position is again secured and protected, in that she has an automatic right to at least one-third of the estate and can defeat the will to that extent. The two reforms which would be introduced if the illegitimate child was to be put on an equal footing with a legitimate child would be that where a will exists then a reference to children in that will would be deemed to include illegitimate children; and, secondly, that illegitimate children would be accorded the right, if their father did not make adequate protection for them, of coming in under the appropriate section of the Succession Act, claiming that the father had not acted as a prudent and reasonable parent and made provision for them. Again I emphasise this would not interfere with the legal right of the spouse, as guaranteed by the Succession Act, to defeat the will to the extent of claiming her legal portion.
Senator FitzGerald referred to the contribution of Senator Higgins of Galway who had been critical of the concept of inheriting property, and yet seemed to want to extend that concept to include the right of an illegitimate child to inherit property. There are in fact two quite separate issues here. While we still have a system of property devolving on death, and the concept of inherited property, then that system and the laws relating to it should deal on an equitable and equal basis with all persons and should not discriminate against children born out of wedlock.
I think Senator FitzGerald exaggerated the dangers to the rights and the expectations of the wife and the legitimate children concerned, and that he also failed to advert to the fact that so many countries have changed their laws in relation to giving property to illegitimate children which has not caused deep social tensions or deep problems of fraud and collusion. I would be happy to see proper safeguards against fraud and collusion. I would he happy to see the Government Bill, which the Minister has undertaken to introduce containing safeguards such as provision for blood tests. In conclusion on this point, I do not think that the arguments put forward rule out the necessity for a change in the law which will give succession rights to the child born out of wedlock.
I should like to emphasise that it is important to remember that it is not the pounds, shillings and pence of the property involved that is really the key issue here. Senator O'Higgins and Senator FitzGerald referred to the fact that the property which devolves on death usually comes to a person when he is adult. In the normal run the deceased was of an advanced age and the offspring concerned is himself an adult or very close to an adult. Therefore, it is not the expectation of the pounds, shillings and pence that is so important. The maintenance provisions are much more important to meet that particular problem by supporting the child during the young years and during education; but the property rights have an important psychological aspect and are very important for the emotional and balanced development of the child in question. This is something which Senator Noel Browne dealt with and which I will deal with in more detail when I am referring to his contribution. It is essential, when talking about changing the law to create property rights, not to focus too much on the monetary value of the property involved, partly because it is not by any manner of means the case that the majority of people have large estates. The key issue is the very important emotional and psychological consequences for a child of not having any rights of succession to his father, and of seeing that other children of this man have those rights. It can have a very damaging effect on the personality of the child, and that is much more important than any actual property or money.
Turning to the contribution by the Minister for Justice, I was glad that he, too, welcomed the principles in the Bill and the need for a change in the law in these areas, although he was not in favour of the method chosen in the Bill, particularly in relation to property rights. I was glad that the Minister undertook so clearly to bring in a Family Law Reform Bill in the very near future. He stated that the heads of this Bill had already been drafted and that he would introduce it this session. It was this undertaking that encouraged the sponsors of this Bill to withdraw in favour of the Government measure, but to do so with the warning that if the Government Bill is not forthcoming during this session then we will exercise our right to reintroduce an improved Bill on this subject in six months so that there will be a continuing pressure for reform in this area.
This sort of pressure, or an indication of this pressure may be necessary, because the Minister last night, and on previous occasions when I have heard him talking either in this area or other areas of family law reform, placed great emphasis on the need for study, for caution, for thought and for detailed consideration about changes. I would agree with him that there is no value in change for the sake of change, that the change must be a genuine reform, but I would have a substantially different time-scale to the one that he appears to have in relation to the urgency of the need for family law reform in this country. I have never seen much evidence of this study at Government level, or the detailed examination of the position since the Coalition Government came in which would justify the Minister's attitude in relation to it.
When one can clearly point to injustice and discrimination, and when the victims of this injustice and discrimination are innocent children, then the time-scale should be very short indeed and the urgency of the law reform should be much more evident than it is. I make this comment although I am aware and I make allowances for the fact that the Minister has very substantial responsibilities at present which are also the responsibilities of his Department. For that reason I welcome the fact that we will be discussing the Bill on the Law Reform Commission later on in the session in this House, because it may be that this will be a much more dynamic vehicle for law reform. I would submit that the Minister cannot rest on the premise that a change in the law in this area of family law requires detailed study and consideration. It would be more helpful to take the subject in smaller doses, and to introduce change in particular areas with all speed. At a time of economic difficulties it would be an opportunity to make necessary and valuable changes in the law which do not cost a great deal of money but which would improve the social conditions and the environment in this country.
The first speaker in this morning's debate was Senator Martin, who referred to the fact that it was useful to have had the opportunity of reading the contributions of other Senators in the Bill. But I must say that having listened to his own contribution I felt that he had not really given the matter the deep thought which I think it would merit, and of which he is eminently capable — because I have heard him on other subject matters giving a very thoughtful and useful contribution. He felt that the Bill was based too much on the assumption that the man is to blame. I think that is an altogether too facile comment about the Bill. The Bill proposes to improve the system for bringing affiliation proceedings since virtually no affiliation proceedings have been brought in the Irish State since the Act enabling the procedure during the 1930s. I do not think that his remark is a fair, or a valid or even useful comment on the situation. Furthermore, he said the Bill could be dangerous because of the strident feminism which is apparently rife in Ireland at the moment, and it made me smile because the aspect to which he was referring at that time was the idea of treating illegitimates equally and giving them property rights. I am sure that the Catholic Hierarchy who have expressed themselves so strongly in favour of this change in the law would be amused — or bemused — to find themselves accused of radicalism and strident feminism. Therefore I think that Senator Martin might perhaps address himself more deeply to the overall problem. At the same time, I respected his preference to wait for the Government Bill rather than support the terms of this Bill, and he has no problem in fact because we are not pressing this Bill to a vote.
Senator Russell made a contribution as a non-lawyer and a nonacademic. As such he welcomed the broad principles of the Bill and also the fact that the forum of the Seanad was being used to debate an issue of this sort and to introduce a Bill which could bring about a necessary change in public opinion and indeed inform public opinion in order to secure the passage of such a law. He referred to the fact that a debate of this sort would have been most unlikely to take place in 1931 and that it is a reflection of changing attitudes, and I fully agree with him in this. Unfortunately one sometimes gets the impression that debates in this House are lagging behind some of the changes in social attitudes that are taking place in the country. However, I had an impression that Senator Russell had a better sense of urgency about the need to remove obvious and existing disabilities, and then perhaps to tackle the more complex issues, than the Minister seems to have. I would recommend that he influence the Government in this respect.
His contribution was followed by a very interesting contribution by Senator Noel Browne, who indeed reviewed the debate which has taken place on this Bill and then gave it a very valuable new dimension by emphasising the medical and psychological aspects of what we are discussing. He emphasised the necessity for us to create a society where the children, all of the children in that society, can have an opportunity to develop as balanced integrated personalities. He emphasised the need for the sort of environment which will promote their emotional health, and which will remove the present stresses, and he referred in particular to the stress on an illegitimate child — the stress of guilt, the legal disabilities which we are trying to remove but also the social and economic deprivations. He referred to the stress on the mother of that child, the single mother bringing up the child, and the fact that instead of society putting every possible facility at her disposal we have been slow to even create a category in our social welfare code of the unmarried mother, and slow to improve the facilities for adoption and also the conditions which would create a real choice for the single mother in deciding what would be in the best interest of her child.
Senator Browne then paid tribute to the voluntary organisations which have played such a valuable and important part in the improvement of social conditions in this area. I should like to take the opportunity of joining with him in this tribute. I think that it is a most welcome phenomenon of modern Irish life to note the number of voluntary organisations which have chosen particular areas in which to operate, and have done so effectively with a very intelligent use of the media, with great goodwill and concern by the people involved, and with a humanity that goes far beyond what we have managed to develop at the official level. I am thinking in this context obviously of CHERISH, the organisation of single mothers who have come together, and who are willing to extend their umbrella to cover all one parent families, and of the way in which they have given themselves a dignity which our Irish society would not give them until they organised and spoke up for themselves. I am thinking of ALLY, AIM, Women's Aid, CARE and other such voluntary organisations. I think they play an enormously valuable part in our thinking and that they ought to try to influence us more.
I am happy to know that, for example, the papers given at the conference organised by CHERISH in October are ready for publication and will be available very soon. I hope these will be made available to Members of both Houses, that we may read the detailed analysis of the situation in relation to the illegitimate child in Ireland and that the debate on the Government Bill may be that better informed.
Senator Browne expressed a certain surprise at the acceptance of the principles of this Bill considering that illegitimacy is a delicate topic. He was surprised that there was no acrimony in the debate and no dissent from the principles in the Bill and he put forward various theories as to why that might be the case.
I now refer to the next contribution, from Senator Kitt Aherne — I think she was the only other female Senator who participated in the debate. I was very glad that she accepted the principles in the Bill and that she proclaimed, without qualification, that the innocent should not be made to suffer and should not be discriminated against under Irish law. She asked a question about blood tests — I have answered that question by saying that I would welcome a provision in the Government Bill to that effect — and she emphasised the need for a change in public opinion and attitudes.
The last contribution was from Senator Deasy who voiced a certain hesitation in making a contribution on this technical Bill. I accept that it is a very technical Bill, but the subject matter is one on which any politician can have a view, and his contribution was particularly welcome as that of a young politician who is making his career in Irish politics and who has the courage to express his views and also the concern for all citizens in the country and who is prepared to voice that concern and to join in arguing the necessity for a change in the law.
At this point I have to make a rather sad reflection of disappointment that there was not a contribution from a spokesman for the Labour Party, as such. Of course, one of the co-sponsors of the Bill, Senator Higgins, made a very full contribution in sponsoring the Bill; and I regard the contribution by my colleague, Senator Browne, as being the contribution of a colleague in the Dublin University constituency. So that there was not, unfortunately, any separate contribution from a Senator of the Labour Party, as such.
I should like to deal with another general issue at this point and that is the question of our general approach to family relationships in this country. I shall also look at the approach which has evolved elsewhere, because this is inherent in an examination of the question of legitimacy and illegitimacy. I wish to refer, firstly, to the provisions in Article 41 of the Constitution relating to the family. I mentioned this aspect very briefly when introducing the Bill and Senator FitzGerald seems to be under some confusion as to the point I was making. Article 41 provides for the State recognition of the family as "the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". Subsection 2º provides that "The State therefore, guarantees to protect the Family in its constitution and authority, as a necessary basis of social order and as indispensable to the welfare of the Nation and the State." Section 3.1º, provides that "The State pledges itself to guard with special care the institution of Marriage on which the Family is founded, and to protect it against attack."
The point I was trying to make is that the wording of that Article could give rise to very difficult problems if it were to be interpreted narrowly. If the provisions that I have read out were so interpreted that the family, as far as the Irish Constitution is concerned — as far as the rights under the Irish Constitution is concerned — means the family based on marriage and that consequently, if it is not based on marriage, it is not a family.
It is not necessary to follow that line of reasoning. I do not believe that it is desirable socially, and if it were felt that this was the only conclusion that one could draw from the wording of Article 41, then that is yet another Article — possibly more important than some of the better known political Articles such as Articles 2 and 3 — which should be changed in order that we may develop proper and humane laws in this country.
One area where there did appear to be a tendency to regard the family under the Constitution as being confined to the narrow married family was in the development of Adoption Law. This was evidenced by the fact that under the basic adoption law — the Adoption Act of 1952 — adoption is confined to children who are illegitimate or orphans. I was very encouraged by the fact that when the Adoption Bill, 1974, was discussed in the Seanad Senator Alexis FitzGerald spent so much time dwelling on the fact that in his view — and I would agree with him — it would not be in conflict with the Constitution to extend adoption to include children who had been born within wedlock but who had perhaps been abandoned by their parents, or where one parent had died, or where circumstances were such that the child would be better placed in adoption.
The fundamental reason we have confined the facility of adoption only to illegitimate children or orphans is because the official view was that because of the family relationship based on marriage the married family had inalienable and imprescriptible rights and therefore — even though the married couple had never assumed any responsibility, had never looked after the child, never extended any love or care to the child, never supported it financially — that there was some imprescriptible bond there, because the family had been based on marriage. Whereas the same attitude did not apply at all to a relationship between a single mother and her child where the relationship was not based on marriage, that this was not in the fullest sense a family relationship. This would be a very narrow, a very regrettable, proposition and it is one which in my view is not necessarily required by the wording of the provisions of the Constitution.
I should like to draw attention to an example of the development in this area in the United States at the federal level, where the National Conference of Commissioners on Uniform State Laws have compiled a Uniform Parentage Act. This Act was compiled in 1973. I will refer very briefly to its provisions because they can make an important contribution to the discussion of the way in which we develop the law in this country. This Uniform Parentage Act is a code, a model Act, which the various states of the United States can adopt. It is a procedure for reform which is increasingly popular in the United States and which has meant that many states adopt the Uniform Act in a particular area. This Uniform Parentage Act provides, in section 1, for the definition of the "parent and child relationship". It provides:
As used in this Act, "parent and child relationship" means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.
Section 2 goes on to provide that this relationship is not dependent on marriage:
The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.
Section 3 provides for how this parent and child relationship is established:
The parent and child relationship between child and
(1) the natural mother may be established by proof of her having given birth to the child, or under this Act;
(2) that the natural father may be established under this Act;
(3) an adoptive parent may be established by proof of adoption or under the [Revised Uniform Adoption Act].
Section 4 — this is the last section I intend to refer to — refers to the presumption of paternity. It is a fairly long section about the way in which paternity may be presumed but I think it is worth putting on the record.
(a) a man is presumed to be the natural father of a child if:
(1) he and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court;
(2) before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnised in apparent compliance with law, although the attempted marriage is or could be declared invalid, and,
(i) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or
(ii) if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;
(3) after the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnised in apparent compliance with law, although the attempted marriage is or could be declared invalid, and
(i) he has acknowledged his paternity of the child in writing filed with the [appropriate court or Vital Statistics Bureau],
(ii) with his consent, he is named as the child's father on the child's birth certificate, or
(iii) he is obligated to support the child under a written voluntary promise or by court order;
(4) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; or
(5) he acknowledges his paternity of the child in a writing filed with the [appropriate court or Vital Statistics Bureau] which shall promptly inform the mother of the filing of the acknowledgement and she does not dispute the acknowledgement within a reasonable time after being informed thereof, in a writing filed with the [appropriate court or Vital Statistics Bureau]. If another man is presumed under this section to be the child's father, acknowledgement may be effected only with the written consent of the presumed father or after the presumption has been rebutted.
(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.
The significance of this Uniform Parentage Act is the attempt to create parent/child relationships which are not necessarily based on marriage, which are not discriminated against if they are not based on marriage, which give equal rights to the relationships outside marriage. This is the product of a different system, a product of a more varied system in the United States than we have. However, it is worth knowing how the law is developing at the moment in a country such as the United States — not that we should immediately in a parrot-like way adopt similar provisions — but we should be aware of a very conscious and deliberate decision by a country like the United States to eliminate discriminations in the law and in property qualifications and the social stigmas involved in the distinction made between the legitimate child and the illegitimate child. This should give us food for thought as to the way in which the law is developing here, and in particular it should reinforce the point that I was making: that it is a narrow and dangerous development in the law to confine the family and rights of the family solely to the family based on marriage.
In conclusion, I hope the proposals in this Bill, and the wide ranging and constructive debate which we have had on it, will contribute to the informing of public opinion and will also hasten the time when the Minister introduces his Government measure and encourage him to know that he will receive a welcome when he does choose to introduce the Bill to change the law in this area.
Bill, by leave, withdrawn.