The Gazette 1978

JULY-AUGUST

1

GAZETTE

Aspects of Our Present Law Relating to Illegitimate Children

TOM O'CONNOR, Solicitor.

Every woman shall be liable to maintain such of her children, whether legitimate or illegitimate, as are for the time being under the age of 16 years (Section 27 (d)). If that woman is married, then the primary duty rests on her husband, irrespective of whether or not he is the father of the illegitimate child (Section 27 (e)). 4 The Illegitimate Children (Affiliation Orders) Act 1930 (hereinafter referred to as "the 1930 Act") is, accordingly, our starting point. This Act has been amended by the Courts Act 1971 s (hereinafter referred to as "the 1971 Act") and The Family Law (Maintenance of Spouses and Children) Act 1976* (hereinafter referred to as "the 1976 Act"). With the passing of the 1976 Act and more particularly Section 28 of that Act, we had the first major and successful attempt at equating the legal rights of illegitimate children. There are still many barriers to be surmounted, but certainly the foundation stone has been well and truly laid. Recognition of Illegitimate Children In quite a number of the "Civil Code Countries" today it is still necessary for one of the parents of an illegitimate child to formally recognise that child before it can acquire any rights under its national legislation. 7 Thus the birth of an illegitimate child gives it no rights whatsoever in relation to its mother until she has formally recognised it. The same principle applies with regard to die rights of the mother to that child. Fortunately, under Irish Law, there exists the notion of mater semper certa est, i.e. the automatic establishment of the principle of irrefutable maternity arising solely from the birth of the child. 8 As was pointed out earlier, the primary duty in this country rests on the mother 9 and, furthermore, she is stated to be the guardian of that child 10 although the natural father is given the right to apply to the Court for custody. 11 (5) Section 19. Thefigure of £30.00, in sub-section 1 (a) and (b) of this section were later increased to £200.00, by Section 28 (I) (j) of the 1976 Act. (6) Sect. 28. (7) e.g. France, Italy and Luxembourg. But once that child has been recognised it is in a superior legal position to the illegitimate child in Ireland, particularly as to its right of inheritance in the estate of the parent who has recognised it. (8) Other "Civil Code Countries" such as Belgium and Austria have recently introduced Bills into their Parliaments which when enacted, will establish this principle of mater semper certa est. See provisional working paper of the Council of Europe entitled "Changes in Member States of the Council of Europe 1971-1976". Ref. CJ-DJ (77)5. Also Council of Europe "Newsletter on Legislative Activities" No. 27. (9) Sect. 27 (d) of the Public Assistance Act 1939. (10) Sect. 6 (4) of the Guardianship of Infants Act 1964. (11) Sect. 11 (4) of the Guardianship of Infants Act 1964.

Common Law At Common Law, the illegitimate'child was in an invidious position as he was regarded as filius nullius and consequently was granted no legal status whatsoever. The harshness of the Common Law was to some extent mitigated by varios judicial decisions, particularly towards the end of the last century and early this century. 1 However, such decisions, which related to a rather obscure right to maintenance and an even more obscure right to custody, were by no means uniform and hence the urgent need for statutory intervention. It is to be seen that this urgency was not, unfortunately, attended to until 1930 when the Illegitimate Children (Affiliation Orders) Act was passed. Although, that Act was, by present day standards, totally inadequate, it must be acknowledged that it was quite a "stepping-stone" in the field of social legislation at the time, particularly when one has regard to the then prevailing views on illegitimate children and unmarried mothers. The vestige of those views still exist in our society today as is apparent from the Seanad Debates 2 during the introduction by Senator Mary Robinson of her Private Members Bill, entitled "Illegitimate Children (Maintenance and Succession) Bill 1974". 3 Statutory Intervention The initial statutory intervention into this area of the law seems to have come with the Poor Law Act 1834. However, that Act merely imposed a statutory duty on the mother to maintain her child. It did not contain any affiliation provisions and hence, in that respect, it could be said to have "fallen by the wayside". However, it is important to note that this duty to maintain an illegiti- mate child is still primarily incumbent on the natural mother. Section 27 of the Public Assistance Act provides, inter alia, that: (1) See particularly the judgment of Gavan Duffy P . In re M an Irfant (1946) I.R. 334 where he discusses at some lenght, the historical aspects of illegitimacy. In re O'Connor( 1919) 1 I.R. 361, judgment of O'Connor LJ. "Family Law in the Republic of Ireland" by Alan Shatter, p.p. 321-323. (2) Volume 79 Seanad Debates (1974). (3) The Bill was withdrawn by leave after only the Second Stage, the reason being that the Minister for Justice had then given assurances that a Bill would shortly be introduced to alleviate substantially the illegitimate child's position under our law. This proposed Bill was what is now, the Family Law (Maintenance of Spouses and Children) Act 1976. See Senator Robinson's concluding speech to the Debate on her Private Members Bill: Seanad Debates Vol. 79 No. 7 p.p. 616- 649. Also her introduction to the Cherish booklet "The Unmarried Parent and Child in Irish Society". (4) Oddly enough, Section 27 (b) of that Act states that "every illegitimate person shall be liable to maintain his mother"!

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