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Seanad Éireann díospóireacht -
Wednesday, 16 May 1984

Vol. 103 No. 13

Illegitimacy Status: Motion.

I move:

That Seanad Éireann notes with approval the recent report of the Law Reform Commission recommending the abolition of the status of illegitimacy and calls on the Government to introduce legislation removing all existing legal discriminations against children born out of wedlock and providing an integrated support structure for one-parent families.

I welcome this opportunity to discuss one of the most fundamental issues of our society — the rights and status of children under our Constitution and laws. Therefore I am happy to move this motion, which has the support of the full Labour group in the Seanad. It is fair to say that it is a matter of public shame and a justifiable criticism of all of us as legislators that our laws in 1984 still discriminate against children solely on the basis of the relationship of their parents. Furthermore, we have to admit that our laws in this regard fall behind developments in most countries of western Europe.

Our succession laws contain a blatant discrimination that has been inherited from the old common law principle that a child born out of wedlock was filius nullius, the child of no one, and had no rights in relation to the family or in relation to succeeding and inheriting from parents. Other countries have made either very radical or substantial changes in this area but we lag behind in a very regrettable way in this important area of social policy. It is worth reflecting on this because we pay frequent lip service to a commitment to caring about children and about the rights of children in our society. We have a clear statement in our Constitution, in Article 40.1, that all citizens shall be treated equally before the law, and then there is a proviso taking into regard differences of physical or moral capacity and differences of social function. Basically there is that commitment to equality. Yet, for reasons that are worth our while looking at and reflecting on, we have been very slow to remove the concept and consequences to that status under our laws which we inherited as part of the common law tradition. We have made some modifications to this by statute but basically we have not got round to making any substantial or acceptable changes.

This is not the first occasion on which the Seanad discussed the question of the abolition of the concept of illegitimacy. There was a very full debate in December 1974 and in the early part of 1975 on a Private Members' Bill which was then tabled to achieve the more limited objective of removing some of the blatant legal discrimination against illegitimate children. That was a Bill entitled the Illegitimate Children (Maintenance and Succession) Bill, 1974 which I moved at the time as an independent Senator with the support of my two colleagues and which triggered off a very full and useful debate in the Seanad at that time. In moving the Second Stage of the Bill I said in the Official Report, Volume 79, of 1974, at column 55:

The first issue, I believe, is a constitutional one. It derives from the failure of our laws at present to live up to the constitutional guarantees and, in particular, the guarantee contained in Article 40.1 of the Constitution that "all citizens shall, as human persons, be held equal before the law". Children born out of wedlock are not equal before the law. Children born out of wedlock are discriminated against in that they do not have succession rights to their father's property; in that their family relationship is not given full recognition and protection, and in that they are burdened with the social stigma implied in being called illegitimate.

That was the position in 1974. Ten years later, as we come back to discuss this issue in the House, it is regrettably still the position.

There have been a number of developments in the interim. There have been changes of attitudes in different ways. First of all, there has been considerable development in the clarification by the courts of the rights of children. In a number of decisions the Supreme Court has made it clear that children born out of wedlock have the same rights, in a very broad range of areas, as children born within marriage. These rights were identified in a case reported in the 1980 Irish Reports entitled G v. the Adoption Board. Last January, the Supreme Court rejected a challenge to the constitutionality of the provision of the Succession Act, 1965 which excludes so called illegitimate children from succeeding on the death intestate of their father. The Supreme Court ruled that the distinction drawn between the position of children born out of wedlock and children of the married family in that instance was warranted by Article 41 referring to the protection of marriage and the family based on marriage. That is the present position as far as the judiciary are concerned. However, it was made perfectly clear in that case, entitled In re Walker-O'B v. S, that the Supreme Court saw no barrier to the Legislature making provision for the succession rights of children born out of wedlock. That was a very important distinction to have drawn and a further affirmation that the prime responsibility in this area rests with elected representatives. It is always open to citizens to seek to defend their rights and challenge legislation which they allege does not protect or guarantee their rights under the Constitution. The major responsibility and the broad based obligation to ensure that our social legislation conforms fully to the guarantees under the Constitution and to our own sense of justice and equality in our society is on us as elected representatives and legislators.

Since September 1982 we have had the benefit of a major report, the report of the Law Reform Commission which recommended the abolition of the concept of illegitimacy. That has been circulated to members of both Houses. It has been discussed a good deal in the media and referred to from time to time in this House. It is a major source from which we can all draw in considering the type of legislation we would wish to see. Before Christmas last year the Minister of State — whom I welcome to this debate and to whose contribution I look forward with interest — made it clear that the Government are committed to removing the concept of illegitimacy, as the joint programme of the Government made very clear when this Government took up office. There has been significant development but no change yet in the law in the ten years which have elapsed since we last had a major debate on this issue in the Seanad. As there is that Government commitment and as, hopefully, we will soon be considering the Bill to effect the change, I want in the first part of my contribution this evening to focus on some of the issues which arise in proposing to introduce this urgent and necessary social legislation. In the second part of my contribution I want to focus on the kind of supports and facilities for single parents and their children which society still has to ensure are available, and available in a well thought out and integrated way which genuinely recognises the needs of these parents and their children.

I now come to the question of the removal of the concept of illegitimacy. This is very clearly called for in the Law Reform Commission's report. At paragraph 200 of the report the Law Reform Commission state:

Accordingly we recommend that the legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage.

The importance of this cannot be overstressed. For a combination of reasons, some of them very deep in the conservative nature of our society, we have been very slow to move in this area. We must now move in a way which affirms the basic values which we are seeking to achieve. I emphasise this because there has been a hesitation if not an ambivalence in approach, in some of the statements made by the Minister of State on this issue where she referred to difficulties involved in abolishing the concept of illegitimacy. I hope she will take the opportunity to clarify what her thinking and Government thinking on this will be, because I will be laying very strong emphasis on the fundamental values we are discussing here and on the absolute necessity for a commitment to remove the concept of illegitimacy. Not to accept that clearly and carry it through would be very serious at this stage. Having waited for so long for change and there being a very broad base of support for such change and it is the only acceptable basis on which we can seek to move forward. When we have legislation to abolish the concept of illegitimacy before us one of the key issues with which it will have to deal, and on which the Law Reform Commission made recommendations in their report, is the basis for the establishment of paternity.

Before dealing with the approaches we could adopt to this, perhaps it would be worth spelling out briefly some of the existing legislative measures which affect the status of children depending solely on the relationship of their parents and therefore give rise to the concept of illegitimacy which it is proposed to abolish. The root of it is from the old common law principle that a child born out of wedlock was filius nullius. Originally that child had no rights to either parent. It was a child of no one as far as any legal and financial relationships were concerned. Gradually that position was ameliorated by giving the child certain statutory rights — by imposing on the mother an obligation to maintain her natural child, by providing for the bringing of affiliation proceedings so that a natural father could be obliged during the childhood of the child to provide financial maintenance. It has always been the position — and is still the law — that where an affiliation order is obtained it does not create the legal relationship of father and child. It creates merely an obligation to provide financial support.

We made some small inroad in relation to succession rights in the Legitimacy Act of 1931. In section 9 of that Act it is provided that an illegitimate child has certain limited succession rights to the child's mother. If the mother dies intestate and does not have legitimate children, the illegitimate child will succeed to the estate of the mother. It is a very limited qualified right which would be excluded if a mother had a child and subsequently married and had a child by that marriage, and then died intestate. The child of the marriage would take the whole estate under our present law and the illegitimate child would not be entitled to any rights other than a possible limited right to claim under section 117 of the Act.

We sometimes forget what the legal discriminations amount to. The legal discriminations have a two-fold impact in our society. First of all, they blatantly and unjustly discriminate against children through no fault of the child but simply on the basis of the status of the parents at the time of the child's birth. Secondly, they confirm or in some way give a legitimate colour to attitudes in our society. They reinforce prejudices and are a reflection of attitudes and values which are no longer acceptable or indeed accepted in our community. But we have not changed the law to conform to our sense of justice and sense of values. We are now seeking, quite late, in comparison to——

An Leas-Chathaoirleach

There is a division in the Dáil and the Minister will have to go.

I will continue, if that is agreed.

I understand that the Minister will not be contributing until next week so that she will have an opportunity to see Senator Robinson's contribution in print.

I should like to ask, regarding the procedure in connection with a motion, if there is a certain time set aside for a motion? Is the time given to the people who have signed the motion?

My understanding of the procedures we adopted recently is that there is rotation between the groups. When a group decides that a motion should be brought forward that group has the right of proposing the motion and the right of replying. The motion is open to debate by the House. Once it is moved, it is in the possession of the House to discuss and dispose of in whatever way it thinks fit.

One must classify the motion this evening as a Labour Party motion because Senator Robinson is proposing it. She has the half hour that is given to the proposer. She has the right of reply or of nominating someone to reply on her behalf at the end of the debate.

An Leas-Chathaoirleach

Senator Robinson has half an hour, other speakers will have 15 minutes.

Recently we dealt with a motion in connection with Comhaltas Ceoltóirí Éireann. I was confused because the proposer nominated the speaker.

An Leas-Chathaoirleach

That was not a motion. It was a matter on the Adjournment of the House.

I was referring to certain disabilities and disadvantages which exist at present and which are part of what we mean when we say that we are committed to the abolition of the concept of illegitimacy. From the child's perspective, we are committed to removing any legal disabilities and any social stigma and disadvantage which may follow from those legal disabilities and to securing what is in effect part of the basic guarantee in the Constitution — full equality before the law.

One important issue which arises in the context of the abolition of illegitimacy is to devise rules for establishing paternity. The approach of the Law Reform Commission to this is that they recommend a limited number of well-defined circumstances in which the parentage of a child may be presumed, and also recommend that there should be a court procedure for obtaining a declaration of parentage. I hope the Minister of State will be able to indicate to the House the extent to which she endorses, accepts or would deem it necessary in any way to modify the proposals of the Law Reform Commission in this area.

The Law Reform Commission are basically in favour of a presumption of paternity arising in our situations: first of all, where the father is married to and living with the mother at the time of conception or birth — that is a slightly narrower base than the present presumption of legitimacy which exists under our law; secondly, where the father's name is registered as such on the child's birth certificate; thirdly, where the father has formally acknowledged the child as his own and, fourthly, where a court has made an uncontested maintenance order against the father.

One issue which has given rise to some controversy, and on which it would be useful if Members could get clarification from the Minister, is to what extent, if any, co-habitation by a couple in a stable relationship would give rise to a presumption of paternity. The Commission does not recommend this because it saw difficulties in establishing that as a basis because of certain problems of definition, but it is something on which it would be useful to have clarification.

Another area where it would be useful to have clarification is in relation to the question of retrospection in relation to the approach to establishing rights of parentage. For example, will a presumption of paternity arise in a case where a child had already been registered, and the birth certificate contains the father's name, with the consent of the natural mother and the father?

Another area where it would be very helpful to have a clear statement is in relation to the exercise of parental rights. The most controversial recommendation made by the Law Reform Commission — one which has given rise to widespread debate and indeed considerable concern in the agencies which are particularly involved with the unmarried parent and child in our society — was contained at paragraph 358 of the report of the Law Reform Commission which states:

In our view, the principle of equality requires that no distinction should be made in the legal rights of guardianship on the basis of marital status, and accordingly we recommend that both parents of children should be joint guardians of the children, whether they are born within or outside marriage. We do not perceive that this will cause difficulties in many cases. Where the father is involved in the upbringing of the child it will bring about a significant improvement in the law; where he has no interest in the child, the change will have little practical effect on the position. The only case involving possible difficulties is where the father has an interest in the child but the mother does not wish him to participate in the child's upbringing.

This is the kernel of a particularly difficult and sensitive area where the Law Reform Commission starts from the proposition that the natural father and natural mother in an unmarried situation would have identical rights, in that the natural father would automatically have full guardianship rights. The Law Reform Commission's report contains a safeguard proposal allowing for the possibility of the natural mother applying to the court where necessary to, in effect, deprive the father of the exercise of the rights of guardianship. That is referred to at paragraph 368.

There are certain potential difficulties in that approach. The recommendations are couched in rather abstract terms which may not take into account sufficiently the practical realities for a very significant number of single mothers in Irish society. The realistic pattern is not one of a large number of natural fathers being prepared to exercise a substantial parental role. It is fair to say, and it is understandable as to why, that this has caused considerable anguish and difficulty. This matter has been debated by bodies such as Cherish, the Association for Unmarried Parents, Ally and other groups who work with single parents in our society and who are aware of the practical realities on the ground. One of these practical realities is that, to a very considerable extent, the good-will, cooperation and confidence of the single mother is essential to the legislation working well because it will be the single mother who, in many circumstances, can promote the knowledge of and the role of the natural father or not. If the mother is worried and afraid that she will be deprived of or in a competitive situation with the father in exercising her parenting role as mother, it may discourage her from letting the name of the natural father be known in particular circumstances. That could deprive the child of the possibility of having in effect a father as well as a mother to relate to. So it is a particular area of difficulty. The values to be emphasised in seeking a balance in this area include the importance of encouraging natural fathers, of recognising the importance of the role of fathers in relation to their children. We should, in devising the legislative approach, seek to carve out the greatest scope for the automatic exercise of parental rights by natural fathers while still recognising the reality; that the major role played in this area both down the years and for the foreseeable future is likely to continue to be by single mothers. There are various approaches which could be adopted. As I mentioned, the Law Reform Commission approach this problem by affirming the equality of the rights of both parents as joint guardians having equal rights in relation to the child in the exercise of guardianship rights, and it would give the mother the remedy or possibility of going into court to seek protection by applying not to have the father in a position to exercise the full rights of guardianship. To those of us who know the problems on the ground — the difficulty of getting access to legal advice and the very inadequate system of legal aid — that is not a realistic proposition. It would impose a very substantial burden on a single mother and it would create the kind of fear and apprehension to which I have been referring. Instead I would like to endorse the conclusion drawn by one authority on family law on this point. William Duncan in an article entitled "Abolishing Illegitimacy — a discussion of the Law Reform Commissions Proposals" published in The Dublin University Law Journal— having examined the various issues which I have been outlining, concludes, and I quote from the relevant passage:

Having said all this, it would be wrong to exaggerate the magnitude of the divide between those who do and those who do not favour automatic rights for the natural father. There seems to be broad agreement that, when it is in the interests of the child, the father should be able to become guardian, possibly when the mother agrees and certainly when a court so orders. The difference between the two camps boils down to this. Where the mother opposes the exercise by the natural father of parental rights, should the onus be on her to go to court to establish that such would not be in the interest of the child or should the onus be on him to establish that it would? It is submitted that on balance the onus should rest on the father, except in a case where he has had actual care of his child for a substantial and continuous period.

An Leas-Chathaoirleach

You have one minute to conclude.

I was interrupted for a few minutes.

An Leas-Chathaoirleach

That has been taken into account.

I will continue with the quotation.

If it is still felt that this approach leans too heavily against the father and that it acts as a positive disincentive to his assuming a caring role, another element of compromise might be injected. An analogy might be drawn with the position of the testamentary guardian. If a deceased spouse has appointed a testamentary guardian, and a dispute arises between the surviving spouse and that guardian, the onus rests on the latter to take court proceedings. The surviving spouse is entitled to act alone unless the testamentary guardian takes proceedings to establish that such is not in the interests of the child. A similar position might be found for the natural father; he would be guardian, entitled to act as such, save where the mother objects, in which case the onus would be on him to seek a court order. The beauty of this solution is it goes a long way towards meeting the demands of both camps. It awards automatic rights to the natural father; at the same time it protects the interests of the mother by allowing her to act alone, if she so wishes and by placing the onus of court proceedings in such a case on the father.

That is a very good balance in what is a genuine area of concern.

I have been somewhat alarmed by what appears to be a certain retrenchment, a retreat from acceptance of the most important values to be secured by the abolition of the concept of illegitimacy, of the importance of encouraging and recognising the role of natural fathers in our society and yet also of striking a proper balance on the ground given the reality of single parenthood so often in Irish society. The approach suggested there by William Duncan is an ideal approach.

Having heard you ring the bell, in effect, a Leas-Chathaoirligh, I have not time to develop — but I know my seconder will place considerable emphasis on this — to talk about the kinds of supports and services that are so badly needed for single parents and their children: in particular the support of pre-schools, aftercare, the proper regard for the economic disadvantages suffered by single parents. Very often the single parent in question is the single mother who has all the cumulative disadvantages of being a woman, a parent, very often a low income earner and somebody with sole responsibility for a child in a society that proclaims the rights of children but does nothing about them. We had a constitutional referendum on the rights of the unborn and yet devote far too little attention to the rights and needs of the born, particularly of the children in our society.

It gives me great pleasure to second this motion. Indeed, I had the privilege of supporting one of Senator Robinson's previous motions in Seanad Éireann when she moved the Illegitimate Children Bill on 4 December 1974. It gives me pleasure to be able to lend my support to this motion this evening.

Senator Robinson has expanded the reasons for a response to a number of documents that have addressed themselves to this question of illegitimacy and its inappropriateness. What I would like to concentrate on are the points to which Senator Robinson made some suggestion, that is the social aspects of illegitimacy and the consequences of illegitimate status. I must make this point: in 1974 we received a very heavy correspondence on the subject of the abolition of the status of illegitimacy, and the proportion of my correspondence concentrating on the implications for succession rights far outweigh other correspondence. I was very struck at the time by the dispassionate nature of this correspondence in a curious way. They were not child-oriented in terms of assessing the consequences. They were really quite property-oriented in so far as what was looked at was the changed nature of the disposal of property. These considerations seemed to outweigh other considerations. At that time, the Bill moved by Senator Robinson and seconded by the then Senator John Horgan, and supported by myself, made limited proposals which were deferred. It is now a decade later, and what we have to bear in mind is the decisions that have been taken and the publications that have appeared in that decade. Senator Robinson has already referred to a number of these.

The first question I want to take up is that when people discuss this subject they speak of illegitimate status. The word "status" is a very important one and one should not regard its inclusion in this sentence as merely academic. The experience of being called illegitimate is a damaged status with precise effects. If I was asked to summarise these I would argue that they can be summarised in terms of a damaged participation in the private sphere and in the public sphere. In the private sphere this damaged participation is reflected in the attitudes of the public and institutions, and let us remember the historical attitudes even towards recruitment into the church and so forth of people who were born out of wedlock, so called. The second kind of participation which is of a diminished and damaged kind was the relationship of people before the law itself, but also in interaction with institutions of the State. In relation to equality before the law, there have been, including the measures of 1931, some attempts to redress in a minor way some of the residual legal deficiencies, but it is in relation to the second category that to my mind there has been a very slow rate of progress. From the moment of the registration of the child's birth, right through to the different interactions throughout the whole panoply of State institutions, the child will encounter initially by way of an agent — that is, someone acting on the child's behalf — and later through all other institutions, the experience of being different in terms of being diminished and of being lessened and of being stigmatised. The word that we should use is the word "stigma".

I wanted to mention this point because there are a number of studies available about the experience of children to whom this status has been applied. Some of the British studies, for example, suggest that very often the experience of the status of illegitimacy in which a child to whom such status has been attached is being supported by a mother, who is excluded from the mainstream of economic life and very often has very little provision both for herself and her child, is that a series of contextual factors automatically arise. For example, because of the mother's position in society and her distancing from the main centre of society, the child is likely to have had diminished ante-natal care and the child in the home is likely to have had a less stimulating environment.

Some of the studies which have concentrated on the early experience of children to whom the status of illegitimacy was attached seemed to be addressing the question whether adoption was a better outcome for such children or being with their single parent. I think this would be to misconstrue the nature of such studies. What the studies were saying, and what many commentators seemed to miss, was that the atmosphere in which the status of illegitimacy was applied was complicated and compounded by additional factors that were associated with the special position in which the single parent had to cope. It was not as if one strategy of adoption versus being raised by the natural parent and so on were being balanced. It was that evidence was being piled, one study on top of another, that when you added social and economic deprivation to the question of this status, excluding the mother and diminishing the prospects of participation of the child, you were setting up a package that in a longitudinal study of the experience of children going through life could show that they were not participating as equals.

It is appropriate at this point to interject that it is the pursuit of equality from the different constitutional provisions in the name of the child that motivated the movers of the Private Members' Bill in 1974, and that motivates the Labour group in the Seanad in proposing this motion. Senator Robinson laid a very correct emphasis on our constitutional rhetoric. I use this phrase very carefully. We are in danger of reducing equality provisions to the level of rhetoric unless we are seen to attach these rights to the experience of the most vulnerable people in the community children.

I am back to the point of the correspondence in 1974 that was not child-oriented; it was property-oriented. I have to ask myself the question: to what extent can difficulties in relation to handling the vexed problem of succession be used to serve as obstacle or delay to significant improvements to undoing the status of illegitimacy? I most heartily commend the report of the commission when they speak of the abolition of the concept. This is very important because the abolition of the concept strikes right to the heart of the social attitudes that propped up the concept in the first place. To seek to take away a round abolition of the concept, to my mind, is to leave the focal point of anti-child attitudes still existing in society. This means that if we are to change the position of the child to whom illegitimate status has been attached, and the position very often of the natural mother who is seeking to rear the child, we will have to change the attitudes of the public as well as changing the law. You would do very much better if in the changes you make in the law you are striking a blow at attitudes that are — let me use the words carefully — perverse, anti-child and bigoted.

When we look across history at the experience of the status of illegitimacy we can see that it was a distortion of fundamentalist Biblical derivations that sought to visit on the child what was called the sins of the parents. But it makes no sense whatsoever to be suggesting that a child born out of what is regarded as conventional wedlock, be it male or female, should carry a badge of difference through life.

From correspondence I am reminded of it again. It will be suggested that to give equal rights to that child is somehow or other to diminish the rights of other children born in orthodox union. This distinction between the child of one circumstance and the child of another does nothing less than seek to condone the irresponsibility of the father very often who is seeking to evade his responsibilities altogether. This country has a long history of people who had to go through life, after an initial preparation in institutions in which the consequences of irresponsibility in a patriarchal society that did not accept its responsibilities in relation to the creation of life, were not accepted. This needs to be tackled head on.

I was encouraged by the Law Reform Commission's Report not only by its general provisions but by many others. I was encouraged by the ethos from which the proposals seemed to depart. They were child-oriented. For example, the notion of the child being able to initiate an application for a barring order through an agent is a direct concession in favour of the child. This proposal was made. I have often been quite appalled in reading of hearings involving children that they can be regarded simply as a piece of property to be circulated between one party and the other, not having the rights attached to them to be represented in their own right as to the circumstances that are best for their security and best for their development.

I have been a member of two local authorities for nearly ten years and I must confess to being totally unhappy with the manner in which provision has been made for women who are trying to rear their children, very often on their own. There is a prurience in the operation of some of the State measures in relation to a woman seeking to rear her child on her own. Only two weeks ago in my clinic in Galway a deserted wife came to see me. She was being investigated by an investigating officer because her neighbour had suggested that she was conhabiting with a man. She had brought somebody back to her place of accommodation and the neighbour had not seen the man leave. She felt impelled by her pro-life attitude to write immediately to the Department of Social Welfare and have an investigation made that this woman was not entitled to her deserted wife's allowance.

I mention this fact because I think it is important. I repeat this, that when we co-operate with the Minister in speedily bringing in such legislation as is necessary to abolish the concept of illegitimacy, we will do so in such a comprehensive way that we will not have simply avoided some of the minor consequences of the diminished status before the law but that we will have done so in such a way that we will have attempted reforming legislation in the social area, in the area of housing, in the area of health provision, in the area of education, in the area of participation in the fullest sense, in a private and a public manner. We will be able not simply to be seen to have mitigated the worst consequences of the status, but having abolished it, set up a programme of action for full participation by children. If we do that, we will very significantly have given more coherence to the notion of equality, particularly as it has affected children. I want to promise the Minister every support in that regard. When she replies next week I would like her to tell the House that no technical difficulty will stand in her way.

If some proposals are being offered in a simplistic form, if there is a need for a more complex proposal and broader approaches, she will have support in that too. It is a decade since we discussed this matter. In that ten years the diminished status has gone on for so many hundreds of children, perhaps thousands, that was unnecessary and it should be much less than a few months before we make the changes that are necessary to remove this disgraceful badge from ourselves as a people.

I wish I had more time to prepare my speech for this motion. I believe in this motion. It has my full, absolute and complete support. I hope the Minister will do something about it. When she does I hope she will not give half status, 75 per cent status, if that is the correct phrase to use, for children born outside wedlock, but give them full status. Do not half do anything, or three-quarters do anything; do it 100 per cent, because that is what the child is entitled to. I belong to an era when there was a terrible ignorance in the country. People were inclined to look down on the misfortune of children they suspected were born out of wedlock. Words and descriptions were used that are too horrible to even think about now. Whoever was responsible for that has an awful lot to answer for, as had people in authority. They denied children born out of wedlock certain things in life. That ignorant period of our history is better forgotten about, and we should do something about the present position.

When preparing the necessary legislation, the Minister will hear all the arguments, and I know exactly the arguments that are going to be put forward. The arguments used will be — and I am going to use Senator Higgins' words —"property oriented rather than child oriented." If there were no assets, there would be no problems in any family. It is when there are assets that the problems arise. I know what the Minister is going to hear. It will be said that the family within marriage have contributed to creating the assets of the family, or what right has a child outside that family to make a claim. That is a lot of nonsense. That child outside the family was never given a chance to do anything to help in the creation of the assets of that family.

I have an excellent report from the Law Reform Commission — Reports I to IV, 1981 and 1982. It puts forward the arguments and the counter arguments dealing with this question. In this age children are lucky that we have adoption and there are many parents anxious to adopt children. This means we do not have the same problems of earlier years. Today these children are not made to feel different from other children. We are living in a more enlightened age and the same problems do not arise now that used to. Nevertheless, the situation has to be changed, it has to be fully changed, and done properly. We have to give the same status to a child born out of wedlock as to a child born in wedlock and we have to ignore all the arguments that are going to be put forward, for the very simple reason that that is the right and proper thing to do. Many other arguments will be put forward very forcibly. There will be lobbies about it. I have a picture of what is going to happen. I know the type of people who will argue against this. They will be a powerful lobby but because they are forcible in their arguments, that does not make them right. The right thing to do is to give children born out of wedlock 100 per cent recognition, no ifs or buts about it.

I am giving my own honest and complete view on the difficulties that have to be dealt with. I do not know what my party's attitude will be about this motion or on the legislation which will be introduced. I do not know their policy or even if they have a policy. I just know my policy. As regards this matter, I do not care what my party's policy is. I will be supporting this 100 per cent, as long as full and complete recognition is given to the innocent party in all this, the child.

I join other speakers in welcoming this motion and in welcoming the opportunity given to all Senators to participate in this debate which affects all of us. Any issue recognised by law which conforms to and reflects discrimination in our society is something which affects all of us and as long as it continues it is damaging to society, and damaging to all of us.

I welcome the Law Reform Commission's report and in particular their recommendation to the effect that the status of illegitimacy should be abolished. I agree with the call in the motion that discrimination against children born out of wedlock should be removed. I also agree that support should be made available for one parent families. It is interesting that we have had much discussion on this issue in recent years. We have had much discussion on another issue in relation to children, namely, the reform of the Children Act. Yet nothing has been done in a legislative sense to take account of either of these matters. I do not know if our hesitancy in that regard reflects our attitude to these issues, but certainly I welcome the commitment by the Minister and by the Government to take urgently needed steps in these areas.

We can talk about the removal of the legal status of illegitimacy and legislate to do that, but we must do more, because there is the social status of illegitimacy and, irrespective of the legislation we enact in these Houses, we are failing in our objectives unless, through social policy and otherwise, we take steps to ensure that society as a whole recognises that legislation and accepts that the status we are talking about is non-existent. Unless that happens the scar which this status imposes on children will continue to exist. While I agree with Senator Hanafin when he said that he would fully support the Minister in doing what she can about this, we should campaign beyond legislation to ensure that society as a whole would support that idea. Senator Higgins used the phrase "conventional wedlock". This subject raises that question. What is conventional wedlock? If we abolish the status of illegitimacy, we are immediately raising questions about the conventional family, namely, the family founded on marriage as is constitutionally referred to and as we understand the family in this country. The questions were therefore raised: do we recognise other forms of unions? Do we recognise other forms of families? Are we going to take steps to see that other forms of families receive protection and support? In other words, is the family founded on marriage to be the exclusive family? If it is then any legislation we introduce is pointless. The legislation we introduce dealing with the recommendations of the Law Reform Commission Report can only be valid if we give a recognition of some kind to other families. The factual situation is that many families exist in our society other than those founded on marriage.

The Joint Programme for Government made a commitment that the status of illegitimacy would be abolished and that reforms in this area would be undertaken. Young Fine Gael have campaigned very hard in this area. It is the efforts of people who have campaigns which have created a situation whereby reform is now imminent. The Minister of State in a statement on 24 October last confirmed the commitment of the Government. I quote from her speech on that occasion as outlined in the relevant Government Information Services release:

The Government believe that the continuation of the legal disadvantages suffered by children born out of marriage is not in keeping with the Christian and democratic nature of the State. They have decided that legal reform should be concentrated on the elimination of discrimination against children born out of marriage, and, on the rights and obligations of their fathers. Conscious of the taint of illegality implicit in the term illegitimate, the Government have also decided that official use of the terms legitimate and illegitimate should be avoided in the amending legislation.

When we use the word, "illegitimate" we are talking, so far as the legal definition is concerned, of something that is not legitimate. When we refuse to give the mark or the badge of legitimacy to anybody or to anything we must do so far valid reasons. I do not think there are any circumstances under which a child should be refused that badge.

I wish to refer to two specific matters which arise in this debate. They are the questions of succession and of guardianship. Having perused the Law Reform Commission recommendations in so far as the succession provisions are concerned, I would like to make the following comments. I agree with their view that in so far as the succession to a mother's property is concerned equality should be guaranteed as between legitimate and illegitimate children. The same provisions should apply in so far as the children of a father are concerned. I do not agree with their suggestion that the same should apply in so far as remoter relations are concerned, for instance, grandparents, uncles or aunts. I say that because there could be two different types of family situations. The family based on conventional marriage as we know it is a family which extends beyond parents, a family which is developed beyond parents, a family which in its development takes in other people. But the non-conventional family generally is not a family that takes in the broader group of people. For that reason I agree with the situation currently existing in Northern Ireland and in England whereby the succession rights of children born out of wedlock should not extend beyond the parents because if these rights are extended beyond the parents many difficulties can be created.

There could be a situation where a natural father is married to somebody other than the mother of his child and has developed another family situation. He may have developed a business which may have been developed also by his wife and the children by that wife and in which his other child plays no part. There may be situations where distinctions would have to be drawn between the immediate parents-and-children family and the broader family of other relations.

I wish to refer to the guardianship situation. As I understand it, the present situation is that the mother of an illegitimate child is the guardian and the recommendation is that both parents should be guardians. The Minister has suggested that the rights of guardianship of the father are rights which should flow only following the making of a court order. I would agree with that because the factual situation is that the illegitimate child frequently will live in a family situation with the natural mother rather than with the natural father. A natural father may be in a double-guardianship situation if the recommendation is followed in that he would have guardianship rights over his legitimate family and also in relation to his natural child. I do not think that is a satisfactory situation.

I should like to see the Minister at an early date introducing a draft Bill. I would like to see the Minister doing so with the same commitment that the Minister for Justice gave when he introduced the Criminal Justice Bill. That was, that the Minister would welcome amendments along the line. This issue is one which strikes one in different ways if it is teased out. The best way of teasing it out and reaching a satisfactory conclusion in legislative form is by putting before the Houses of the Oireachtas a draft Bill with a commitment to accept amendments and giving us the opportunity of discussing it in that way.

First, I should like to welcome and praise the initiative being taken by way of this motion. I am proud to be a signatory to and a member of the party which initiated this motion here today. We recall that a Bill to the same effect was put before this House in 1974 by Senator Robinson — The Illegitimate Children (Maintenance and Succession) Bill. I must ask at this stage if, in view of the fact that it is ten years since we have had a Bill in this respect before either House, will it be another ten years before there is before us a Bill to solve the problem? It has been part of Labour Party policy since 1969 to bring about the removal of the status of illegitimacy.

When we speak about illegitimate children and the abolition of the status we speak not only of the child who is not born within a recognised union but also of the child born within wedlock. The situation of both will alter considerably when the status is abolished, noticeably under the Succession Act. There are various definitions of "illegitimate". These are not legalistic terms but in my own simple terminology. There is the child who is born to an unmarried woman, the child born to a couple who are cohabiting and the child born within certain unrecognised marriages in this country. At the same time and possibly even more interesting is to note the legal definition of legitimate children, children born within a legitimate and recognised marriage and the child born to a married woman even though that woman may be living apart from her legal husband but with another man. A child of that union is regarded as legitimate.

So we draw together those two situations. A child is illegitimate if born to an unmarried couple who cohabit, yet a child is legitimate who is born to an unmarried couple who cohabit but where the mother is married. In my view, and in all logical terms, the two situations are the same but one child is privileged as opposed to the other. The legitimate child has automatic succession rights. The illegitimate child has limited rights only to his mother's estate and none to that of his father, none to his mother's family or to his father's family. Yet the two children live in the same circumstances with cohabiting parents. This is ludicrous, sad, unfair and un-Christian. However, we can change the law, which would seem to be the simple answer. Changing the law is quite useless unless we can bring about a change in attitudes. I should like to give an example of a recent experience: I had the pleasure of meeting with a social science student from UCC. About six months ago, as part of her studies, she conducted a survey on the question of illegitimacy and found to her surprise that attitudes to unmarried mothers in the eighties had not changed from what we would call the olden days. This must imply that attitudes to illegitimacy are still unsympathetic.

Following the tragic death of a young girl mother, this student conducted another survey on the same basis and found that the same people were shocked, first that such a thing could happen, that they could compound this ever happening by their own deep-rooted attitudes, and tended towards a softening of their outlook. This finding is equally tragic to me, and it implies that change is not possible without major tragic mistakes and happenings unless, we, the elected representatives and the Minister take the lead and initiative to redress the situation.

What are the real difficulties with the removal of the status? Two came to mind: one is — and this is a view that has been presented to me — the down grading of the sacrament of marriage or of the marital status while the second is the alteration in succession rights. We should examine both of these areas. The argument that was presented to me on the downgrading of the marital status was that if a stamp of approval is given to the child outside of marriage, in other words if he is given equal rights with a child born within marriage, couples will no longer marry on the basis that their children will be legitimate. This may be so in some cases but no greater than the evergrowing number of couples who marry in church but who, for tax reasons, do not sign the register. A couple, at the time of marriage, marry for life. They do not marry for one week, one month or ten years. They make a commitment for life. They genuinely make that commitment, even though it may not work out later on. Couples marry for security and to have children. They do not marry so that their children will be legitimate but rather as a commitment given under the sacrament and with the State's stamp and recognition. This is a pre-requirement to their marriage. It is a basic demand on the basis of their upbringing and their teaching. If a couple benefit financially by not marrying surely that is an argument to put before the Minister for Finance and not the Minister for Justice.

The second argument is one of succession. Before I refer to this, I would refer to a recent poll which indicated massive support for the abolition of the status of illegitimacy. Undoubtedly a can of worms will be opened on this subject, but one must ask how long this support will last? One can get down to specific questions such as, will the unmarried father be willing to support and maintain his child and allow succession rights not only to his estate but to that of his parents also? Will the grandparents of these children allow the child succession rights to their possession? Would the wives agree to succession rights of a child who may be older than her marriage? Will a husband or wife, who jointly financed the purchase of a home, allow for succession rights to be extended to a child outside of their marriage? The list of situations could go on and on but the message is clear and the question is clear. Will the £ sign, or more importantly, the further sharing of those £s, prevent us from doing what we are required to do under Christian law and under the Constitution, that is, to treat our children equally? These questions are, of course, on the negative side. In asking these questions maybe I am being unfair to the loving and caring way in which we proudly think of our children in this nation. I earnestly hope so.

On the positive side, think of the changes that must take place in line with the abolition of the status of illegitimacy, most notably the laws involving adoption procedures. As it stands legitimate children cannot be adopted. If the status of illegitimacy is removed, presumably all children will be legitimate but is it possible that a third category would emerge which, in effect, would bring about the same situation as illegitimacy under a different name? I should hope that this would not be so.

Let us assume that all children, following the abolition of the status of illegitimacy, would be legitimate. Abandoned children could then be placed in permanent homes, be they from within or outside of marriage. Children whose parents cannot cope — be they married or single — could be given for adoption into loving and caring homes or, even better, perhaps there would be a reduced demand for adoption by allowing parents pride and love in their children. A child does not comprehend legitimacy or illegitimacy. We should stay with what the child understands and wants — to be just a child.

I had not intended to intervene in this debate. I listened to the debate rather to inform myself on this particular matter. As the debate has developed I have been impelled to intervene to make a few brief remarks. This is a tribute to the debate itself.

The problem of illegitimacy is one of a large number of problems that afflict Irish society. The Law Reform Commission stigmatised illegitimacy as a negative concept. One of the problems of Irish society is that we have so many negative concepts. Society will never be reformed and never will be made into a healthy society capable of flourishing in the modern world until we replace negative concepts by positive concepts. This is what we have to do in regard to this particular problem.

In regard to the question of illegitimacy there is a major consensus that this concept must be got rid of; that we must replace it by another concept — I do not want to use cliches or to be trite, I tend to sneer when people talk about cherishing all of the children of the nation equally — but surely if that phrase means anything at all, it means that the concept of a distinction between an illegitimate and a legitimate child is something which should be struck not just from the laws of this country but from the consciousness of all our people.

This brings us to one of the key problems. Those of us who are here tonight, sitting in this Chamber, discussing this problem, would like to see this negative concept wiped out at one stroke by single legislation. We face the very real problem if we attempt to do this that this approach will not achieve a similar reform and transformation in social attitudes and in the perceptions of the problem. We must recognise that we are up against severe problems in regard to the inherent conservatisms of Irish life.

It is most unfortunate that in this regard we have had a reinforcement of the Catholic ethos by the Protestant ethos for once combining together in order to produce a set of social attitudes that are most undesirable. If we look back at the roots of the present attitudes of our society to the concept of illegitimacy we go back to Tridentine triumphalist Catholicism which argued against the Protestant ethos that marriage was a full sacrament and that nothing must be done by Church or State which takes away in any way from the full glory of that sacrament. We have had that reinforced by the Protestant ethos which in many denominations does not recognise marriage as a sacrament but recognises the work ethic as something central to life and essential for salvation. This protestant ethos therefore, has contributed to the concentration on property which has been emphasised by Senator Michael Higgins and by Senator Hanafin tonight. We have here a moral attitude coming from both of the religious strains in our community combining in this regard to the disadvantage of the child born out of wedlock.

Unreformed Catholicism applied to the modern age is a cruel faith, and unreformed capitalism is a cruel social system. They have combined here to produce a cruelty in regard to innocent children that must be removed from our society. The question is how are we to change not only our law but how are we to change also our people? Here we have a real conflict. We often complain about the Law Reform Commission being slow in its work. But here we have had the report of the Law Reform Commission for two years and we must confess that we as legislators have been slow in its implementation. I only hope that what we say in this debate this evening and next week will help the Minister in what I am sure is her determination to see its implementation and some resolution of this problem without delay.

Let us not minimise the difficulties. I want to emphasise once again that what we need here is not merely legal reform but reform of social attitudes. I suggest that we have to be careful. Senator Higgins mentioned conventional wedlock and I accept that term, but Senator Higgins has a tendency to prefix nouns he does not like by the adjective "so-called". I do not know if he used it in this regard tonight, but it has been used in this regard.

Not at all. I used the word `conventional' deliberately to raise the question that we have in law to treat of other forms of union, such as households and so on.

I am sorry if I misheard, but let me say this — if people use the term "so-called wedlock" in the context of dealing with this problem they are impeding the solution of the problem. Let us face the reality. Let us take the principle that all children must be equal in law and all children must be equal in social acceptance, but I accept there are real difficulties in achieving these aims. I do not know if the Minister will be able to overcome all these difficulties in the first legislative effort, but I hope she will be able to achieve a sufficient amount of change in the legal system so that she passes the point of no return in regard to this problem. It may well be that we need some sort of iteration in this regard, that we need substantial legislation that will carry us virtually the whole way followed by a conversion of public opinion to accept this move so that the final achievement of what those of us who are concerned enough to be here tonight discussing it would like to see achieved as early as possible.

As I said, I did not intend to speak tonight. It would be wrong to use the word provoked in this regard, but I have been stimulated to make these few remarks.

I, too, have been provoked to address the House, and I do it not from the point of view of somebody who has studied the legal aspects or, indeed, the political implications but as someone who has been in maternity wards of hospitals and in theatres where children have been delivered into this troublesome world and where one has asked oneself how is it that one baby is to be denied its civil and human rights in the context in which another is allowed them, that one baby is to suffer the consequences of a difficulty created for him by his parents over whom he had no say whatever.

When we look at the human problem we must consider the effects on two such children. We spoke here only two weeks ago about homelessness — in that debate some of us made the distinction between houselessness and homelessness — and the need to support a warm, caring home environment was related to the wider community in which that home existed, the extended family to which the people in that home related. If we consider the effect on the child that has been labelled illegitimate, we would be less than honest to say that he suffers deprivation in many cases from the family who in normal circumstances would wish to give him all the love they could muster, from the community in which he is brought up and, from his peer group. Therefore, that child unless he has an exceptionally fine single parent with great courage, insight and feeling will grow up with all the potential for a stunted development in a so-called caring society. Senator Dooge was absolutely right when he said that the problem of illegitimacy is part of a much wider problem which confronts and challenges the people of Ireland today.

Debate adjourned.
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