The Gazette 1978

GAZETTE

JANUARY/FEBRUARY 1978

these provisions to amount to an unreasonable discrimination against children bom out of wedlock. It could not understand why such a child should have no "legal status" and it considered the limitation of the child's inheritance rights to be so restrictive as to seem almost punitive". 22 In the light of this rather forceful statement, it is curious that the Parliamentary Assembly did not deal with this point in its Opinion 23 on the third report of the application of the Charter when urging the Committee of Ministers to make a recommendation to the Irish Government (and the Governments of some of the other member States) for stricter application of certain specified articles of the Social Charter. They did however refer to the general legal position of illegitimate children in the light of Art. 17 of the Charter but without reference to any specific State. Unfortunately though, their statement in this respect is rather vague and evasive but it is still worthy of note and clearly indicates the general feeling amongst European parliamentarians on any discrimin- atory treatment of illegitimate children: "The opinion of the Governmental Committee deserves consideration but can doubtless be modified. Where the legal status of children born out of wedlock entails such obvious and substantial discrimination as manifestly to impair their economic and social situation, it might be argued justifiably that the State in question has not taken 'all appropriate and necessary measures' as required under this provision" 24 (i.e. Art. 17). The Assembly then went on to say that "it would be helpful for the Committee of Experts to clarify its standpoint on this matter". Clearly this non-committal viewpoint falls almost directly between the arguments, discussed earlier, on the corelation of social and economic rights on the one hand and legal rights on the other hand; however, at the same time, it could be said to indicate more of a leaning towards the views of the Independent Committee of Experts than towards those of die Governmental Sub- Committee which again reveals the importance of the former body. The conclusions of the Governmental Sub-Committee, like those of the Parliamentary Assembly, on the views expressed by the Independent Committee of Experts regarding illegitimate children, did not deal specifically with any one country but were couched in general terms and whilst they did not agree, as was earlier pointed out, that the subject came within the sphere of Art. 17, they did remark that "the rapid and progressive elimination of any discriminatory treatment arising from legal differences between various categories of children should be included in a Contracting Party's programme". 25 It is not known to what extent the Irish Government's programme is in conformity with that assertion, although there is evidence that further reforming legislation will be introduced along the lines of Sect. 28 of the Family Law (Maintenance of Spouses and Children) Act, 1976. However it will probably first await the report of the Law Reform Commission who are presently examining the legal position of illegitimate children. Certainly the Dail and Seanad Debates which preceded the passing of the said Act give much hope for the introduction of further and more far reaching reform. The comments, of Mr. Cooney, the then Minister for Justice, are particularly noteworthy: [The Family Law (maintenance of Spouses and Children) Act 1976] "is part of a continuing reforming process, some of which has already begun but more has to come. One of the areas in which reform has yet 7

that a clear distinction must still be drawn between the two sets of rights is very much open to argument. Mr. Voogd in his explanatory memorandum to the Social Charter states that "social rights are inseparable from civil and political rights", 19 whereas Mr. Jacobs in referring to the distinction between the United Nations Covenant on Economic Social and Cultural Life and its Covenant on Civil and Political Rights (both of which may respectively be compared with the European Social Charter and the European Convention on Human Rights) clearly distinguishes the two standards of rights: " . . . a distinction had to be drawn between two different classes of fundamental rights. Social and economic rights, although they appear in the Universal Declaration, are less universal in the sense that they constitute standards to be attained, depending on the level of economic development. They require action by Governments whereas civil and political rights often require protection against executive action". 20 Whatever stand one takes in this argument, I think it cannot be denied that the two sets of rights complement one another and this was clearly evident in our own legal system after the passing of the Social Welfare Act, 1973. This Act for the first time introduced social welfare payments for the unmarried mother and thereby complemented, if not outmoded, her then existing legal rights. Whilst the argument may continue indefinitely without the protagonists, and particularly the Independent Committee of Experts and the Governmental Sub-Committee, reaching any definite agreement, it is to be hoped that Governments will not ignore the objective and carefully considered conclusions of the body. It is indeed sad that the Irish Government would seem to have ignored most of the conclusions of the Independent Committee of Experts dealing with the situation of children born outside wedlock with regard to inheritance. After the second biennial report which covered the period 1968 and 1969, the Committee, whilst acknowledging that Ireland was developing a meaningful family policy, considered that a recommendation should be addressed by the Committee of Ministers to the Irish Government urging it to intensify and extend its laws in this area as the then existing situation revealed serious gaps and inadequacies in respect of, inter alia, the general legal position of illegitimate children and the protection of unmarried mothers. The only reforming piece of legislation introduced since then was that dealing with maintenance, 21 which in the limited area that it covered was a significant development as it equated the rights of unmarried and single mothers and their illegitimate children with those of lawfully married mothers and their legitimate children. It is surprising that further developments have not been introduced particularly when one has regard to the scathing criticism of the Independent Committee of Experts: "As to the general legal position of children bom out of wedlock, the Committee particularly observed that the second Irish report explicitly states that illegitimate children have no legal status unless and until it has been conferred on them as a result of action taken under the Adoption Acts or the Legitimacy Act, 1931. The first report also shows that under the Legitimacy Act, 1931, it is only where the mother of a child born out of wedlock dies intestate without leaving any legitimate issue surviving, that the child becomes entitled to the same interest in the mother's real and personal property as if he had been born in wedlock. The Committee considered