I am glad to have this opportunity of addressing the Seanad on what I regard as one of the more important social issues of our day. I have listened with interest to the contributions to the debate so far, and look forward to hearing what other Senators may have to say this evening. I can assure the House that all the points made will be carefully considered in connection with the proposals for amendment of the law on illegitimacy which are at present being prepared in the Department of Justice. This work is being given top priority, and I expect to have a Bill ready for presentation to the Oireachtas by the end of the year. I should like to stress here that there is no question of hesitation or ambivalence on the part of the Government in regard to these proposals, as Senator Robinson suggested in her opening remarks.
What I find particularly gratifying is the element of consensus which has emerged as to the principal features of the proposed legislation. My impression from the debate is that there is broad agreement on all sides as to the approach to be adopted to the problem.
As I said in my statement of 24 October last, announcing the Government's decision to reform the law in this area, it is intended to concentrate on removing those provisions in our law which discriminate against children born outside marriage. The terms "legitimate" and "illegitimate" will be avoided in the proposed legislation.
As regards parental rights, the legislation will provide a means whereby the fathers of children born outside marriage can obtain parental rights in appropriate cases, the guiding principle being what is in the best interests of the child in each case.
In relation to succession rights, the Government have accepted generally the Law Reform Commission's recommendation that children born outside marriage should have the same succession rights as other children on the intestacies of their fathers and mothers and of relatives of their fathers and mothers. As mentioned by Senator Robinson, under existing law a child born out of marriage has no succession rights on the intestacy of its father, but may benefit on the intestacy of its mother if she leaves no legitimate issue. People, of course, are free to provide by will for their children born outside marriage, subject only to the legal right of a spouse to a certain share of the estate.
The Government have also accepted the recommendations of the commission that the present rule of construction, under which words such as "children" and "issue" when used in wills, deeds or other instruments are presumed to refer prima facie to children born within marriage, should be set aside. It should be borne in mind, incidentally, that when speaking of “children” in the context of succession, we are referring in practice, in many cases, to mature adults.
Other matters that will be dealt with in the proposed legislation are actions to prove parenthood, blood testing as an aid to proof of paternity, the registration of the births and maintenance of children born outside marriage. Senators will appreciate that the issues involved in these changes are complex and time-consuming. Proposals being worked on at present are of a very tentative nature and I am not in a position, as yet, to say what solutions are likely to be proposed in particular areas.
At this stage, I think I should say that, on the basis on which Senator Robinson proposed and Senator Higgins seconded this motion and the explanations given by them for bringing the matter before this House, I am happy to accept it. However, I should like to take issue with one point that appears to me to be important in clarifying the issue.
In proposing the motion, Senator Robinson spoke of the need to abolish illegitimacy. Other Senators in their contributions also used this expression. In the development of her argument, however, it seemed to me that Senator Robinson's thinking on how the problem should be tackled was much closer to the Government's approach than might have appeared from her opening remarks.
On the face of it, the idea of abolishing illegitimacy altogether has an attractive simplicity about it. It has, indeed, been welcomed not only by several Senators but by a number of people and organisations as the proper formula for reform. The problem with this formula, however, is that while it probably is usually seen as relating to children only, it does have implications in relation to the parents of these children, some of which are unacceptable to most people. It is clear from her remarks that Senator Robinson also finds such implications unacceptable.
In practical terms, the abolition of the status of illegitimacy would mean that every father of a child born outside marriage, however fleeting his relationship with the mother, or however little actual interest he took in the child, would automatically have the same parental rights over the child and the same succession rights to the child's estate as a married parent has in relation to a child. If the father died, his relatives, claiming through him, would have the same succession rights on the child's intestacy as if the father had been married. The Law Reform Commission, in their Report on Illegitimacy of September 1982, at paragraph 202, accepted that the logical effect of their proposal to remove the status of illegitimacy from our law would be that, and I quote from the report:
The legal relationship between parent and child will arise without discrimination between children on account of the marital status of their parents. The Commission consider that there should be no condition precedent in our law which must be fulfilled before this legal relationship arises between parent and child. Such an approach would offend against the principle of equality on which our proposals are based.
Further on in their report, at paragraph 353, when dealing with guardianship and custody, the commission in accepting that their basic proposal entailed that the fathers of all children born outside marriage would automatically become joint guardians with the mothers, state, and I quote from the report:
In favour of this change it can be argued that, if the abolition of the concept of illegitimacy is to be meaningful rather than cosmetic, such a consequence must follow. To preserve a distinction as to guardianship based on the marital status of parents discriminates against the child as well as the parent since guardianship may be regarded as being in the child's interest as well as a right of the parent.
The commission then went on to cite arguments against this proposal, including some mentioned by Senator Robinson. These arguments did not sway them to alter their own view and, in paragraph 358 of their report which has been quoted by Senator Robinson, they recommended that both parents should be joint guardians whether the children are born within or outside marriage. The only concession envisaged by the commission was that a mother who would not wish the father to have guardianship rights should be entitled to apply to a court to have the father's rights set aside. The court might make an order to this effect when it was satisfied that it would be in the best interests of the child and proper to do so, having regard to the rights and interests of all other persons concerned.
Senator Robinson points to the difficulties such a situation would create for many unmarried mothers and to the concern about it felt by several organisations catering for single parents. She makes some positive and helpful suggestions for dealing with this problem. While I welcome these suggestions and shall have them carefully considered, I should like to point out that to give effect to them would necessarily involve differentiating between the parental rights of fathers, depending on whether their children were born within or outside marriage.
The Government were also unhappy about this situation, and it is for that reason that they decided, as I have already indicated, that the proposed legislation would not, as recommended by the commission, automatically give the fathers of children born outside marriage the same rights as married fathers enjoy. However, it has to be accepted that once it is decided to differentiate between fathers on this basis, even though it be in the interests of the children, one cannot speak of abolishing illegitimacy entirely. One could, of course, use another term, but the difference would remain. The Government, in adopting this approach to the question of parental rights had regard to views received from representative organisations to the effect that the automatic granting of such rights in all cases could be detrimental to the interests of children.
For instance, one of the major points to emerge from the public seminar which I organised in February 1983, to discuss the implications of the Law Reform Commission's report, was that many people involved in this area were very concerned about the consequences of the radical change proposed by the Law Reform Commission. It is interesting to note that the English Law Commission, in a working paper of July 1979, proposed provisionally that the status of illegitimacy be abolished entirely. Public reaction — including submission from the National Council of Women of Great Britain — to this working paper was such that, in their final report published in December 1982, this proposal was dropped. Instead, they recommended that an unmarried father should not be given parental rights in any case, unless he applied successfully to the court for such rights.
In this country, the Federation of Services for Unmarried Parents and their Children undertook a survey in 1983 of their member organisations, seeking their views on the recommendations of the Law Reform Commission. I might mention that the federation include in their membership most, if not all, agencies working in this field. The proposal that all fathers should automatically have full guardianship and succession rights in relation to their children born outside marriage was overwhelmingly rejected. The survey also showed that there is a widely held view that there should be a means whereby, in appropriate cases, the father of a non-marital child should be able to acquire such rights.
Senator M. Higgins spoke of correspondence which he received on this subject being "property-oriented" rather than "child-oriented". He pointed out that the child born outside marriage is likely to be at a disadvantage in society from the moment of conception.
The law can be, and will be, changed so as to remove discrimination against illegitimate children, but no matter what changes are made in the law, the element of social stigma which still attaches, regrettably and unjustly, to the child whose parents are not married to each other will not diminish unless there is a fundamental change in social attitudes. We are all aware, too, of the social handicaps facing a woman who finds herself in the predicament of being pregnant and unmarried. These are things which cannot be legislated out of existence, although legislation can assist in setting the tone for change in attitude.
I wish now to turn to the question of a support structure for one parent families. There are many voluntary bodies working in this field whose aim it is to help and support such parents and their children. What the State can do, and is doing, is to make financial support available to these bodies, in a small way from the Office of Women's Affairs but to a greater degree from the Department of Social Welfare, or through the health boards. The idea of an integrated support structure for one parent families, as suggested in the motion, is worth considering. This part of the motion is not, of course, confined to unmarried mothers and their children, as single parent status can arise from many causes, such as death, desertion, or separation.
There are a number of ways in which the health services are giving positive support to one parent families. The most important areas of support are their social work services and in helping to provide and encourage the development of day care facilities for children generally. Boards also financially assist a number of organisations who represent, support, advise and counsel one parent families and in some cases represent their interests at national level.
The policy generally in the health services with regard to day care centres for children is to help in their development and operation especially in deprived areas and for children at risk. Health boards do not themselves get involved in providing the services, but rather facilitate their provision by the voluntary organisations to ensure maximum involvement by the local communities. In certain cases where day care centres are catering for deprived children or children at risk, boards will actually provide funding.
The number of children in 1983 being catered for by centres funded by health boards was about 6,000 and the number of assisted centres has risen from 87 in 1981 to 175 by 1982 — the latest available figures.
There is at present a problem with regard to regulation of day care facilities in that no statutory regulation exists. However, a new Children Bill which is being prepared by the Minister for Health will provide for the regulation and control of day care services by health boards. This legislation will provide for the registration of centres and for the setting down of standards for the operation of day care centres and play groups.
Of particular relevance to one parent families is the proposed EEC second programme to combat poverty. A seminar will be held in Copenhagen in June to discuss the problems faced by one parent families, and it is hoped that concrete proposals for research and action relating to those problems will emerge and form part of the second EEC programme.
Adoption is a matter of considerable relevance to single parents and the organisations representing them. Over a year ago the Government transferred the functions in relation to adoption to the Minister for Health, who has the main responsibility for child care services. He has since established a Review Committee on Adoption Services. This committee have received submissions from a number of organisations representing one parent families, and the issues raised by them will be dealt with in the committee's report which will be submitted to the Minister for Health in the very near future.
In August 1983, the Government set up the Commission on Social Welfare to review and report on the social welfare system and related services, and to make recommendations for their development, having regard to the needs of modern Irish society. In the course of their deliberations, the commission will no doubt be examining the needs of one parent families — and, indeed, of all families — in this context. The commission are expected to issue their report in the autumn of 1985.
Before concluding, I should like to point out for the record that, contrary to what Senator Robinson and some other Senators have said, the Programme for Government of the present Government did not contain a reference to the subject of illegitimacy. The proposal which the Senators appear to have in mind was included under the heading Law Reform in the programme of the previous Coalition Government drawn up in the summer of 1981. When the present Government came into power, the Law Reform Commission's report had just been published and was clearly of such a nature as to require careful and detailed consideration.