The Minister referred to his speech in the Dáil and said he would not weary the Seanad. He implied that those of us who were interested would have read his speech in which he raised all those issues. This is a very important issue and I hope that the Minister will allow me to refer to the Labour Party's Bill and to develop the whole question as to the kind of Bill we should have. I do not intend to take up too much of the time of the House but it is a major issue and I would like to put forward the kind of problems that we have and the sort of Bill we should expect particularly as it will involve the people in a referendum, which is a very complex and expensive procedure.
Mr. Justice Henchy referred to the issue of the rights of the natural mother and said:
Rights and duties in regard to the custody of a child who was born out of wedlock and who is not a member of a family in the constitutional sense of the word are not encompassed, expressly or impliedly, by any of the constitutional provisions I have cited. Rights and duties arising under those provisions are by the terms of their constitutional recognition confined to children of a family founded on marriage, and they are vested not in one or other parent but in the parents.
Again, Mr. Justice Henchy concluded that the natural mother in a relationship with her child or indeed the natural father and the natural mother in their relationship with their children, have no constitutional right to the custody of their children. We should pause there and think. We are not only talking about the normal situation of a natural mother with her child with no sign of the natural father but we are also talking about very stable relationships where, for legal reasons, there is not a marriage in the sense of the civil law. We are talking about a case, for example, where one or other party had a Catholic Church annulment and the parties remarried in the Catholic Church. They have children. They have no constitutional rights to those children according to those two judges of the Supreme Court. They only have a legislative right under the Guardianship of Infants Act. This would seem to be a major problem arising out of the wording of the Constitution and a problem which should concern us very much as legislators.
I quoted two judges from the Supreme Court who expressed in their judgments the view that the natural mother has only a legislative right and not a constitutional right. Happily the other three judges of the Supreme Court and, therefore, a present majority of the Supreme Court, went the other way and decided that the natural mother does have a constitutional right to her child. I refer very briefly to the judgment of Mr. Justice O'Higgins, the Chief Justice, and he said:
In the first place it should be noted that the mother is not the mother of a family in the sense in which the term is used in the Constitution. Article 41 of the Constitution which recognises 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, refers exclusively to the family founded and based on the institution of marriage. It is this family which under Article 41.2 the State guarantees to protect in its Constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. But the Plaintiff is a mother and as such she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being which the State is bound under Article 40.3.1º of the Constitution to respect and to defend and vindicate.
The Chief Justice found that the natural mother has constitutional rights as part of her personal rights under Article 40.3 of the Constitution.
Mr. Justice Walsh, who was a member of the Supreme Court for this case, affirmed the constitutional right of an unmarried mother. He stated:
The mother and her illegitimate child are human beings and each has the fundamental rights of every human being and the fundamental rights which spring from their relationship to each other. These are natural rights. It has already been decided by this Court in Nicolaou's case that among the mother's natural rights is the right to the custody and care of her child. Rights also have their corresponding obligations or duties. The fact that a child is born out of lawful wedlock is a natural fact. Such a child is just as entitled to be supported and reared by its parent or parents who are the ones responsible for its birth, as a child born in lawful wedlock. One of the duties of a parent or parents, be they married or not, is to provide as best the parent or parents can the welfare of the child and to ward off dangers to the health of the child.
On what might be thought to be a very basic issue the provisions of the Constitution create enormous difficulties, so much so that the Supreme Court have divided three to two on rights of citizens of this country, such as unmarried mothers or parents in a situation which would not be recognised by the State as being a valid marriage, where one of the parties has been divorced, and divorce is not recognised here, or where there has been a Catholic Church annulment and remarriage have a constitutional right or not. The number of people in that situation is growing year by year. There are a rapidly increasing number of Catholic Church annulments and remarriages by one or other party and families who would be most surprised if they were told that they do not have protection under our law and Constitution. The wording of the Constitution in relation to rights is a basic issue for us as legislators to consider.
I am very disappointed that the Minister seems to disregard the need for or the desirability of looking at the provisions of the Constitution dealing with these kinds of rights. The Minister resists the increasing call for the extension of the right to, and the facility of, adoption to legitimate children. The Minister repeated what he said in the Dáil that this might give rise to a problem of parents trying either to give away or sell their children. This seems to be an extraordinary argument to put forward. First of all, it is common practice in most other jurisdictions for legitimate children to be eligible for adoption. It does not seem to give rise to a queue of people trying to sell their children. It is not even the case with the unmarried mother. The pattern at the moment is that an increasing number of unmarried mothers, despite the social prejudice, the economic disadvantage, the problems of lack of support and the social stigma involved are trying to keep their children. More unmarried mothers are keeping their children and bringing them up themselves now than was the case in 1952 or even in the sixties under the operation of the procedures. The Minister's argument is very hard to understand.
We know—and this was referred to in the Lower House by Deputy O'Keeffe —that there is the small problem, and it should not be exaggerated, of children who may be born to married parents. It may be the case where the child, although born to married parents, is illegitimate, that the husband is not the father of it, or there may be other circumstances. Some of these children are sent to Northern Ireland so that they can be adopted there, so that they can have the facility of adoption as legitimate children. That is one kind of problem. Far more important than that is the number of young children who spend their early lives in institutional care. We cannot estimate the effect on a young child, on a baby in the first year of its life of being in institutional care, not having the advantage of that first valuable eight or nine months of forming the personal bond of a child living in family circumstances. We are only beginning to understand that the impact of the first two years of a child's life may have an effect that can never be redressed, or the child may be forever somebody who lacked the opportunity of being a normal, happy well-rounded person. We should use every effort to try to ensure that any child has the right to grow up in a family, that any child has the right to be eligible for adoption if the circumstances of the child are such that the child cannot stay with its parents. We know of a numbers of instances where married parents have totally disclaimed their responsibilities as parents, where young children have been beaten and maltreated by parents or just abandoned, and the problem of the unwanted child and the child being transferred to an institution, perhaps transferred immediately as a baby or in very young years and then having only the option of short-term or even longer term fosterage but nothing like the security and the legal rights which strengthen the family links of adoption. Therefore, it is deeply disappointing that the Minister refused to accept the amendment which was contained in the Labour Party's Bill to amend the Constitution and has produced no similar amendment here.
I should like to refer to the Bill tabled in the Dáil by the Labour Party, in particular to the sections of it which delete words from the Constitution which give rise to the kind of problems which the Supreme Court was trying to cope with in the G case that I have just referred to. This would be to remove from Article 4.1.1º the words "inalienable and imprescriptible". The effect of that would not be to undermine the family, to in some way cause enormous hardship; the effect of it would be that, where parents had abandoned their rights or so abused their rights that they should not have any other right, the welfare and interest of the child could be considered and the child could be given an opportunity of life with another family but would not be condemned forever by the fluke of the kind of parents the child had and the fact that those parents would not assume any responsibility. We cannot rest easy on the fact that the child's parentage can affect that child for the rest of its life and it can never escape from the situation, even if it is totally abandoned and there is ample proof that the parents would not assume their responsibility. The amendment proposed in the Labour Party's Bill of removing the word "inalienable" in Article 42 is a follow-up of that. In any case, the words "inalienable and imprescriptible" cause great difficulties. It is very difficult, even for the Supreme Court with judges sworn to uphold the Constitution, to ascertain precisely what is meant. After all, the rights are not inalienable and imprescriptible when the child becomes an adult. Clearly, adults leave the home and that is the end of it. They form new relationships themselves. They may or may not marry, have children, whatever the circumstances may be. So they are inalienable and imprescriptible during their childhood but what is inalienable and imprescriptible?
We now have two kinds of constitutional rights. We have the constitutional right, identified by a majority of the Supreme Court, of the natural mother to the custody of her child, but it is not an inalienable imprescriptible right. It is a right that she can alienate. This raises the question of what exactly are their inalienable and imprescriptible constitutional rights when the fact of them being inalienable causes such hardship and such suffering to young children growing up in the State and condemns them to institutional care or condemns them to the much less secure position of fosterage. This is a major area where the Minister and his advisers should have been actively considering how to introduce a balanced referendum on this issue.
The other major area is the question of the rights of the illegitimate child. I recall that in this House there have been a number of debates. In particular, there was a debate on this whole question of giving rights to an illegitimate child. Senators on both sides of the House, in response to a Private Members' Bill that I had tabled with some other Senators, made it clear then that they were in support of a change so that the discrimination against illegitimate children could be removed. The Minister makes a halfhearted attempt to meet that area. He gives a watery indication that he may look into it. One has to read his indications with great care because over a year ago he was in this House telling us that he would introduce civil legal aid without any delay and we have not heard anything more about that. The indication that he might look into the question of the status of the illegitimate child is much more watery and diluted and very vague indeed.
Once more, one must examine the interest of the Minister and his advisers in this problem. Do they really care that children are discriminated against legally by the fact of their parentage? Do they really care that because of the lack of any facility for terminating a marriage in Ireland the picture is becoming more and more clouded and complicated? Many people who think they are married are not married. Many people who think their children are legitimate have illegitimate children. Is it not about time, in particular in the context of a country where you cannot legally terminate a marriage, that we came to terms with the enormous problems posed by the very narrow definition of "family" in our Constitution and the difficulties that this gives rise to? The fact that the constitutional definition of "family" confines it to a family based on marriage may to the lay person sound very appropriate and appear to be something that, as a country, we should totally adopt. The problem is that by making a constitutional matter and a constitutional standard of what a family is we have all the kinds of problems that I have been outlining: the problem of whether or not the natural mother has rights, the problem that certain people who may think they are married do not have any constitutional rights and are not a family under the Constitution. I do not believe that the people want this sort of situation to get worse. We may not have termination of marriage but we do have breakdown of marriage. The more the problem of breakdown of marriage deepens and gets more complicated because of the Succession Act, the more this becomes a major social issue.
Perhaps in that context we may see some movement about it because it seems as though there has to be a major lobby and a major area of discrimination before the Government and the Department of Justice are prepared to act on the matter. It is not enough that there is, and has been down the years, legal and constitutional discrimination against illegitimate children because they have appeared just to be the offspring of unmarried mothers and therefore unfortunate and regrettable but not really a major concern for policy makers. It is regrettable if we have to wait until the social problems become so convoluted and so strong and irresistible that it becomes a mainstream lobby. A Government must lead in removing any injustice that exists. The blatant discrimination against the illegitimate child flies in the face of the equality of the citizens as human persons which is proclaimed in Article 40.1 of the Constitution.
I am not at all impressed with the Minister's moth-eaten argument that it would somehow undermine the rights of the legitimate wife and legitimate children if one were to give succession rights to an illegitimate child. The reason I am not impressed by that is that the Minister himself is singularly failing to bring in the kind of legislation which would give the best protection to the married wife and legitimate children in present circumstances.
If we want to protect the wife within marriage and the children within marriage—and of course we want to protect them and to ensure that they have security—then why not introduce legislation dealing with property within marriage? Why not introduce legislation which provides that during the lifetime the wife has a property interest and share in the property of the husband or marriage and vice versa? Why do we have to wait until after death? There is this curious anomaly, curious paradox, that it is not until somebody dies that the spouse gets a legal right to the estate. During the lifetime she will not have any property rights unless she brought in money herself, unless she has invested in the family home or has made a financial contribution. That is how you meet the real concern and real worry of the wife within marriage and the children of the marriage. You do not do so by penalising the child born outside wedlock. Similarly, there is the growing social problem that many children who think that they were born within marriage, think that they are legitimate, but are not. When the time comes for father or mother to die they will realise that they do not have any succession rights. Unless they have been provided for expressly in a will they may very well find themselves without any provision. This is a major social problem, a major problem relating to the relationships between people.
It is not as though the issue of adoption and the whole question of family rights could be reduced to the single matter which is dealt with in this Bill. This was the third matter dealt with in the Labour Party's Bill. Having dealt with the question of removing the phrase relating to inalienable and imprescriptible rights so that legitimate children could benefit from adoption, the Labour measure then proclaimed rights for the child and, in particular, said that there would be no discrimination on the basis of parentage. The section would have contained a Schedule and would have added new provisions to the Constitution as follows:
1. That children shall enjoy special protection by law and other means to enable them to develop physically, mentally, morally and spiritually to their fullest potential and in conditions of freedom and dignity and in the enactment of laws relating to children the welfare of the child shall be the first and paramount consideration.
2. Equality of rights under the law shall not be denied to any child on the basis of status at birth or parentage.
3. The State acknowledges the family as the social unit best fitted to provide the continuity of care essential to the upbringing of a child. Where, however, the welfare of the child requires it, whether by reason of the death of the parents or by reason of their unwillingness, neglect or inability to discharge their parental duties, the State shall supply the place of the parents by appropriate means which may include the enactment of laws providing for the transfer of parental rights to substitute parents.
This is the kind of provision in the Constitution which would allow very careful legislation. I am all for taking into account a number of the matters raised by the Minister, particularly in his longer speech in the Dáil. There should be evidence of manifest abandonment or neglect by married parents in order to invoke the provisions. Where there is manifest abandonment or manifest ill-treatment followed by abandonment and no parental link subsisting, and where the child is therefore placed in a home and will grow up in a home, then the Legislature, as in every other country, should be in a position to say that this child can be adopted and can have a substitute family with all the legal security of that.
I should like to turn to a matter which the Minister dealt with in some detail in the Dáil and which he just touched on in his briefer speech this afternoon. That is the question of the phrase which is contained here, which is also in the Guardianship of Infants Act and the Adoption Act, 1974, that the welfare of the child should be the first and paramount consideration. I read with care the arguments the Minister put forward about the problems that can arise and it was a matter that was dealt with in some detail by the Supreme Court in the G. case. Problems could arise. The use of the word "paramount" can potentially give rise to problems. I am aware that Mr. Justice Walsh has distinguished between the first and paramount consideration and then the other considerations, the second, third, fourth and fifth considerations. Nevertheless, I could see that it might possibly, if it were to be the overriding provision relating to all laws relating to children, which is what is contained here, give rise to difficulties. That is a point that could well be discussed on Committee Stage of a Bill like this where one would try to examine, first of all, whether it would be better to insert the substitute wording "the best interests of the child" or whether that provision is necessary at all in the Constitution if you have the affirmation contained in the rest of the section.
I go some way with the Minister in his argument that there are problems relating to a clause which would give overriding consideration to the welfare of the child in all legislation and in all such circumstances. However, I do not accept the Minister's confidence that there is no problem under the present situation where the Constitution lacks appropriate balance between parents and children, between the rights of adults and the rights of children, and where there is an imbalance against the rights of the child in the wording of the relevant portion of the Constitution.
I do not accept the Minister's confidence that there is no issue relating to the statutory provisions referring to the welfare of the child being the first and paramount consideration. The Minister seemed to think that this was not a problem. He referred in the Dáil to a number of cases in the longer judgment but he did not refer to a more recent case where this issue again arose in the Supreme Court. He referred to the case of J. where Mr. Justice Henchy had seen this as a problem, but he did not refer to a judgment of 22 June 1977 delivered by the Supreme Court in the matter of the Guardianship of Infants Act, 1964, J.V.D. and Others. This was a case where the father wished to recover the custody of the children. The children were legitimate. They were children born within marriage and the father was living in England with another woman. The children were with the grandparents. The mother was dead and he wished to get custody of them. In the judgment the very interesting thing is that the Supreme Court went quite a distance, indeed, it is very refreshing to see the possibility of the Supreme Court, despite some of the difficulties in the wording of the Constitution, being able to identify the rights of the child within the Constitution. This is an example of that. Mr. Justice Kenny said in his judgment:
Counsel for the Plaintiff, when asked whether he wished to argue that S. 3 of the Guardianship of Infants Act 1964 was repugnant to the Constitution, said that he did not.
So it was not an issue here where you have a father with inalienable and imprescriptible rights. He had to be asked if he wanted to argue that because the Supreme Court are aware that there is a problem there, that if you have a married parent with inalienable and imprescriptible rights challenging an order made under the Guardianship of Infants Act where the first and paramount consideration is the interests of the child, it raises a conflict of constitutional rights and that potentially that section may not stand constitutional challenge. As I have said, the Minister in his recital of cases did not refer to this case and did not note, as I think one must note, that the Supreme Court felt they had to ask whether the issue was going to be raised because they are well aware that it is an issue on which substantial argument could take place and where potentially section 2 of the Guardianship of Infants Act could be struck down.
What I have been attempting to do is to outline some of the major legal issues, some of the major social issues and some of the major problems which are getting worse and worse under the present system because we have increasing incidents of marriage breakdown, we have no termination of marriage, we have discrimination against the illegitimate child under our law and we have a discrimination against the legitimate child under our adoption law in the provision that they are for all time and under statute barred from being eligible for adoption.
If the Minister tables a Bill to amend the Constitution it should not confine itself to one single issue, an issue which the Minister attributes to the McL. case and which was certainly in the background and in the arguments by counsel but was not part of the judgment and decision of the Supreme Court. I have nothing against providing for the security of the Adoption Board in making the orders they make and for the adding to Article 37 of what is proposed in this Government measure. As I have outlined at the beginning, the Minister does not meet the other major constitutional problem which was raised in the McL. case. He does not give the more than 26,000 adoptive parents the security that he is purporting to give them. The Minister still leaves them with the fact that if there is a challenge by married parents, if the unmarried mother marries the natural father, or if it was argued that the child placed for adoption was an illegitimate child, that the husband was not the father of the child, or if there are other defects in the procedure such as that the adoptive parents, although considering themselves to be married when they apply to adopt, are not in fact married under our law because one or other of them had an impediment in that he or she was either divorced in a way that would not be recognised or had been party to a Catholic Church annulment, those kinds of defects can still render the status of the adoption uncertain and can allow it to be challenged years afterwards on constitutional grounds. The 1976 Act did not cover this; the 1976 Act did not change this. The only way we can change it is by ensuring constitutional security for all adoption orders.
Like Senator Molony, I am somewhat surprised that the Minister did not refer to the learned opinion submitted by two of the leading senior counsel at the Bar who gave as their opinion that, apart from dealing with the question the Minister deals with here—the question of the powers of the Adoption Board—there also should be a time limit within which an adoption order could be challenged. The Minister should seriously consider this point. He should examine the possibility of introducing an amendment on Committee Stage which would provide for a time limit within which adoption orders could be challenged. The reason sometimes given for not wanting to have a time limit after which there could be no challenge to an adoption order is that it would be a substantial curtailing of rights in a particular situation, that even if a basic defect arose that the adoption order would remain valid.
When we are dealing with something as vulnerable and as precious as the welfare of a child it is appropriate that that legislative and constitutional decision be taken. It is a matter for legislative policy how long the period should be. It would be legitimate to think in terms of a period of one year or, at the very most, two years after which an adoption order could not be challenged on constitutional or legal grounds because at that stage the interests and the welfare of the child would be very strongly the need to remain within the family which had become the real family for that child.
The Minister has not given adoption orders the full security that they ought to have; he has met only half the problem that arose in the McLoughlin case and, above all, he has produced the most minimalist Bill on this question of adoption and the constitutionality of adoption orders that it was possible to devise. He has left out of the picture all the other problems and needs of children which are so important and worthy of attention in this International Year of the Child.