The Gazette 1978

JULY-AUGUST

1

GAZETTE

ceedings can often be a traumatic experience for her, par- ticularly as she herself must give evidence and that evidence must be corroborated "in some material particular or particulars". 17 However, the difficulty posed by Section 3 (2) of the 1930 Act has been alleviated somewhat by the enactment of Section 28 (I) (d) and (2) of the 1976 18 Act which provides that proceedings must be held in camera and that no material may be printed or published which would tend to identify the parties to the proceedings. It is not proposed to discuss in this article the procedure involved in affiliations proceedings as that subject has been more .than adequately dealt with in "Family Law in the Republic of Ireland" by Alan Shatter. 19 Voluntary Maintenance Agreement The alternative to affiliation proceedings is a voluntary agreement for the maintenance of the illegitimate child under Section 10 of the 1930 Act, made between the mother on the one hand and the father who admits paternity on the other hand. Either party can then apply to the District Court to have the agreement approved and made a rule of Court. 20 However when one considers that the maximum payment per child under an affiliation order is now £15.00 per week, it would seem highly unlikely in the vast majority of cases that the District Court, which must ensure that the benefits which the child and its mother could obtain are, at least, equal to those which it could have obtained under the Act, 21 can approve of such an agreement. The reason being that its jurisdiction extends merely to £250.00, which if a maximum award were granted, would only be 16| weeks' payment. Accordingly, if an agreement under Section 10 of the Act has to be approved by the Court, then that Court must of necessity be the High Court which by virtue of Section 19 (2) (a) of the 1971 Act was granted unlimited jurisdiction to hear and determine proceedings under the 1930 Act. The Court shall not approve any agreement under this Section unless the Judge is fully satisfied that it is in the best interest of the child and that the benefits it confers on the child are not less than those which it could or did obtain under an affiliation Order. Statement of Earnings In making such an Order, it would seem highly desirable that the District Justice or Judge be given powers to compel both parties to produce evidence of their earnings. Unfortunately though, the only stage at which the production of a statement of earnings can be ordered, 22 is on the application for an attachment of earnings Order under Section 10 of the 1976 Act. Furthermore, the statement of earnings may only be (17) Sect. 3 (2) of the 1930 Act. (18) Amending Sect. 3 (5) and (6) of the 1930 Act. (19) p.p. 323 et seq. See also: "Directory of Services in Ireland for Unmarried Parents and their Children" published by the Federation of Services for Unmarried Parents and their Children p.p. 56-60. "A Brief Guideline on the Law relating to Illegitimate Children" by the Society of Young Solicitors, in the GAZETTE , Nov. 1977. "Blood Tests and the Proof of Paternity" report of the English Law Commission 1968. "Children's Rights" an article written by Christina Sachs in "Fundamental Rights" (published by Sweet & MaxweU 1973) p.p. 36-37. (20) Sect. 10(1). (21) Sect. 10 (3). (22) Sect. 13 of the 1976 Act — Statement of Earnings.

Birth Registration The mother is also repsonsible for registering the birth of the child and this must be done within 42 days of its birth. 12 There is an equal duty imposed on the-father to register the birth of the child, but in practice and for obvious reasons, he rarely fulfils it. If neither the mother nor the father register the birth of the child, then under Section 1 of the Births and Deaths Registration (Ireland) Act 1880, the duty falls upon the occupier of the house in which, to his knowledge, the child was born and failing this, each person present at the birth of the child or if there was no such person present, then the person having charge of that child. The father of an illegitimate child cannot be required by any person to give information concerning the birth of that child and the Registrar shall not enter in the Registrar the name of any person as father of such child unless there has been a joint request from the mother and the person acknowledging himself to be the father of the child, in which case they will both sign the Register. 13 The illegitimate child will invariably acquire the surname of his mother but in cases where the father has signed the Register under Section of the 1880 Act, he may acquire the father's surname. Were it not for the intervention of the Social Welfare Act 1973, the mother of an illegitimate child could and often did, find herself in a serious financial predicament. Under existing legal provisions she may not institute maintenance proceedings on her own behalf, only on behalf of the child. What is most surprising in this respect, particularly in modern times, is the outmoded common law right, existant in the father of a girl who has given birth to an illegitimate child, to insitute proceedings for the seduction of his daughter. 14 Undoubtedly this anachronism in the law should be repealed and in doing so, it is worth considering whether the right existant in the father, should be transferred to his daughter thereby enabling a form of maintenance proceedings to be instituted which would render her financial assistance over a certain period of time after the birth. 19 Social Welfare Act 1973 With the passing of the Social Welfare Act 1973, the mother of an illegitimate child was granted the same financial assistance as a widow or deserted wife, which meant that the effective distinction between legitimacy and illegitimacy under our Social Welfare legislation was then abolished. Affiliation Proceedings Should the mother wish to render the putative father liable for the maintenance of the child, she must institute affiliation proceedings under the 1930 Act. 16 These pro- (12) Sect. 1 of the Births and Deaths Registration (Ireland) Act 1880. (13) Ibid Sect. 7. (14) See "Seduction and Irish Law" by WM. Binchy, GAZETTE NOV. 1977. Also "Family Law in the Republic of Ireland" by Alan Shatter, p.p. 91-93. (15) If the putative father had to pay maintenance to the mother of the illegitimate child, for say, one year after its birth, this would then enable her to discharge the various financial expenses which will be incurred and which are both directly and indirectly attributable to her pregnancy. It will also assist her in trying to resume, what one might term, her normal role in society. (16) Sect. 2 as amended by Sect. 19 of the 1971 Act and Sect. 28 of the 1976 Act.

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