I move : " Section 12, sub-section (2), to delete the word ‘ March ' and insert in lieu thereof the word ‘ July.'"
SECTION 12.
(1) This Act may be cited as the Legitimacy Act 1931. (2) This Act may come into operation on the first day of March 1931.
The first March has of course gone by and we have to extend the date on which the Act will come into operation.
Mr. O'Hanlon
I second the amendment.
Amendment put and agreed to.
Section 12, as amended, ordered to stand part of the Bill.
SCHEDULE.
The schedule apparently refers to nothing but the registration of the births of legitimated persons. It provides those persons with an opportunity of having their legitimation evidenced in a public register. That is the sole object of the schedule. Clause 1 provides that the Registrar-General may on production of such evidence as appears to him to be satisfactory authorise the re-registration of the birth of a legitimated person. I suppose that is to get rid of the sort of stigma which would be involved by leaving his registration as registration of an illegitimate.
It seems to me that that would advertise the stigma more than ever.
This is more for evidence than anything else. The whole object of the schedule is to have a public document to prove legitimation.
This will be a public document showing that at one period a certain person was illegitimate. By going to that document and running right through it, you could find out all the people who were illegitimate and who were subsequently legitimated.
No doubt you could.
But the illegitimate child must be registered in any case.
Who knows that he is illegitimate ?
Any person who wishes can get a copy of the entry in the register.
To get that, he must have originally known or suspected that the person was illegitimate.
If a person suspects that another person is illegitimate he has only to go to the register and get a copy of the birth certificate to find out whether he is or not.
For legal purposes, he can go privately to an office and get proof. Here you have a document open to the public.
Colonel Moore
When an illegitimate child is registered, he is registered in such a way that you know he is illegitimate.
You cannot mention the father's name.
That involves a search for a particular item in a large number of items and it does not advertise the fact that the person concerned was, at some period, illegitimate in the way which is proposed here. This would enable anybody who finds a name on this list to point to the person concerned as having the bar sinister.
It is not compulsory on a person who is legitimated to have registration carried out. The Bill merely gives power to have that done.
Does it not make it compulsory ?
It authorises registration, but it does not compel it. It casts a sort of duty on the parents of an illegitimate child which has been legitimated to re-register.
On the parents.
Colonel Moore
Not merely on the parents but on the child.
That gets rid of Senator Hooper's objection, because the legitimated child need not do that if he does not like.
Colonel Moore
But that does not settle my original point.
I should imagine that very few people would put the names of their children on this register.
Mr. O'Hanlon
The question of registration is not for the father or mother but for the Registrar.
The Schedule says : " The Registrar-General of Births and Deaths in Ireland . . . may on production of such evidence . . . authorise at any time the re-registration of the birth." That must be read with the proviso that " the Registrar-General shall not authorise the re-registration of the birth of any such person in any case where information with a view to obtaining such re-registration is not furnished to him by both parents. . . ." The Registrar-General must be set in motion by somebody. He does not act of his own accord.
It is optional with either the parents or the legitimated person to re-register.
The second clause of the schedule sets out that it shall be the duty of the parents of the legitimated person to furnish information to the Registrar-General with a view to obtaining re-registration. That is set out as a duty without any penalty, so that there is no compulsion on the parents to effect re-registration.
Colonel Moore
The reputed father might be dead and the mother by making this declaration might use the father's name.
Only if they had been married subsequently.
It is only if they have been married subsequently that the Bill would apply at all.
Colonel Moore
But the assertion of the mother might be quite untrue. The person mentioned might not be the father of the child at all.
You have to take the risk that people will perjure themselves. Is not this a very unlikely contingency ?
Colonel Moore
I do not think so.
Would it not be still more unfair if because the father is dead you could not legitimate the child at all, even though the father had married the mother of the child ?
Colonel Moore
If you put in some provision such as I suggested at the beginning of the Bill, it would probably get over that difficulty. If there was some declaration by the father, it would avoid all the trouble. There might be a great deal of property involved and, because of this declaration, it might go to other heirs.
In that case it would be better to go back to the first arrangement.
I think it would simplify the matter.
We must not forget that Section 1 deals with one thing and this section deals with a totally different matter. Section 1 deals with the effect of the subsequent marriage of the parents of the illegitimate child ; the mere marriage effects legitimation. You must, of course, bear in mind the matter of the re-registration of the birth of the child that was born before marriage. How could you alter Section 1 to bring about what you want, Senator ?
Colonel Moore
That is more a question for a lawyer than for me—to invent a section.
It would be necessary to have a definition in regard to the parent.
Mr. O'Hanlon
Who is to determine whether or not they are the parents ? There should be an acknowledgment on their part, at any rate some sort of a statutory declaration.
People getting married like that may not wish at the moment to make an acknowledgment, and still it would be only fair to the children to have them legitimated by the marriage.
If the father has been supporting the child and calling it his child, any evidence of that sort would raise the presumption that he was the father.
You cannot go further than that.
Mr. O'Hanlon
You may have this state of affairs and you may not ; but in the absense of anything of that sort would it not be expected that there should be a declaration on the parents' part ?
On the other hand you must not make it difficult for these people to get married. If you present difficulties you may prevent the marriage taking place and that is not desirable.
If the father and mother are anxious to have the child recognised as legitimate they can act under the Schedule and get it re-registered ; if we are not it would be very hard on the child to get its legitimation proved after the death of the parents. It is provided here that a child can give evidence before a Circuit Court that it has lived with its parents all the time when young and that it was educated and brought up by them. That is evidence on which the Circuit Court would act, undoubtedly.
Mr. O'Hanlon
Let us take the case where a woman has a child. Later on she marries a man. There is no question about that man being the father of the child. That man has property. Shortly afterwards he dies. The woman then goes and makes a declaration legitimating that child. That child may not be the child of the man to whom she was married.
She makes a declaration which entitles the Registrar-General to register the child as legitimate.
I know a case where a woman has three children. They are all now grown up. Not very long since she married a man with property. It is doubtful if the man knows that she has had any children at all.
Do you think that man is going to allow legitimation ?
Mr. O'Hanlon
Let us say he is dead.
There must be some evidence.
Mr. O'Hanlon
Take the case of a woman who has had a child and who then marries. Suppose that man is not the father of the child and shortly after being married he dies. The widow gets the property and then she makes a declaration that the child is the child of the dead man and herself and she asks for legitimation. There is no evidence that the man is not the father of the child. The mother rears the child and the father does not know anything about it.
Colonel Moore
We ought not to go too far. We are going a long way and we may step a little too far. When we begin to touch other interests, I think we ought to leave matters as they are. I think we ought to go only so far as we consider absolutely just, so that we may not strike against anybody.
Assuming there is a case such as has been suggested, the legitimate children would raise the matter in court and would declare that the child in question was not the child of their father.
Mr. O'Hanlon
But suppose the mother says that the child born before marriage is the child of that man ?
That is not conclusive evidence. It is only prima facie evidence, and in any dispute she would be subject to cross-examination.
Colonel Moore
If you have the declaration of the father it would make the matter all right.
Mr. O'Hanlon
Supposing a child is born and the woman marries some time later. Supposing the father dies shortly after. The child is then actually the child of the man she has married, and it was born prior to wedlock. Will that woman be entitled to have the child legitimated ?
Certainly. That would be the effect of the marriage.
Mr. O'Hanlon
There is the possibility that the man she marries is not the father of the child. Her husband dies, and that woman has it within her power to take steps to legitimate a child that may not be the child of her late husband. Is it not better that there should be some form of declaration so that the man may be declared to be the father of the child born out of wedlock ?
You would then make the legitimation depend not merely on the marriage alone, but on the marriage plus a declaration.
Mr. O'Hanlon
There should be a declaration prior to marriage. Marriage legitimates, but it is a legitimation of children born to those two people prior to marriage. Why not at the time of marriage have a declaration ?
Would it be a declaration before some official—a statutory declaration which would have to be filed somewhere ?
Would the registration by both parents be sufficient ?
The registration is really for the purpose of perpetuating evidence ; it does not legitimise ; it merely creates evidence of legitimation.
I think it is a pity when a pair get married that it is not compulsory on them to legitimate whatever children were born before the marriage.
I am very much inclined to agree with you, but as Senator Mrs. Wyse-Power says, that might very likely discourage them getting married.
It would make it more difficult.
Mr. O'Hanlon
There certainly has been a very big advance made in the matter of the legitimation of children. I think, however, there should be some form of declaration on the part of the two people getting married and who want to legitimate certain children born to them prior to the marriage. That is not too much to ask, and there is no risk.
It is quite possible that the woman a man marries may have a child ten years old. The man knows absolutely nothing about that child. The child becomes his legitimate child without his knowledge. At the time of his marriage the man may know nothing at all about the child.
Senator Mrs. Wyse-Power's point might be met if we included a declaration at the marriage or within a definite period afterwards.
The point I want you to fix your mind on is this : that a man marries a woman, and that woman has a child already. She does not inform the man, and then the Bill legitimates this child. The result is that the man has a son that he knows nothing about.
The man may say, " That is not my child."
But he does not know about its existence.
In Ireland he does not know about it.
In several cases that I could cite you, the man married a woman and then found she had a child before the marriage of which he did not know. I know a case where a woman had a child ten years of age before her marriage.
If the mother applies to legitimate a child ten years of age, will the Registrar-General do so ?
Mr. O'Hanlon
Automatically. And on the other hand, take the case where the woman has a child and that child lives with the woman's mother. The child, though ten years of age, prefers to remain with the woman's mother. Suppose that woman marries a certain man and that man dies, is it not going to be a hardship on that woman to be prevented from legitimating it ?
The way to look at it is this : Human nature goes on all the time, and I do not think the child could be kept away from the mother simply because of her marriage.
That is an important matter, but it has been raised now without any amendment. We will have to regularise our procedure in some way. The question now for us to consider is whether we ought to adjourn this sitting to another day, and in the meantime allow an amendment to be put down to do what Senator Colonel Moore suggests. The alternative is that we should report that there being only one amendment before the Committee on the Report Stage before the House an amendment could be put down. Which course does the Committee prefer ?
Colonel Moore
It is better to adjourn. Perhaps the Chairman would help us to draft the amendment in proper form, as we are not lawyers.
If you tell me what you want, I will.
I would suggest a declaration if not at marriage, then a certain period after marriage.
Would you put down on paper what you want, and I will undertake to put it into proper form.
I hope the Bill will be left as it is, because the difficulty of getting it through the Dáil again would be enormous.
There is a great deal in what Senator Mrs. Wyse-Power says about the difficulty of getting the alterations through the Dáil.
Perhaps we had better adjourn now, and we can conclude our consideration of the Schedule and resume our consideration of Section 1 when we have a definite amendment before us to deal with the point now raised.
The Committee adjourned at 12.55 to 11.30 a.m. on Thursday, 23rd April.