The Gazette 1978

JULY-AUGUST

19

GAZETTE

conceivable that the illegitimate child could himself institute maintenance proceedings on his own behalf if he can prove that one of his parents has "failed to provide such maintenance for (him) as is proper in the circum- stances", and furthermore, in the case of his father, that an affiliation order or an order under Section 10 has been made against him. With the passing of Section 28 of the 1976 Act, the provisions enacted by Sections 9 and 10 of that Act, which related respectively to the transmission of main- tenance payments through the District Court Clerk and attachment of earnings in the case of legitimate children, were appled equally to illegitimate children. 28 Section 5 of the 1930 Act had already made provision for an application to vary, discharge or terminate an affiliation order and so it was not necessary to extend Section 6 of the 1976 Act to illegitimate children. 29 Undoubtedly, it was the legislature's intention in enacting Section 28 of the 1976 Act to equate the maintenance rights of legitimate children with those of illegitimate children. In so far as it is possible to equate such rights, it is submitted that the legislature succeeded However, one area not yet dealt with by the legislature since the passing of the Legitimacy Act 1931, is the law of succession in relation to illegitimate children. Many had hoped that the 1976 Act would have made sub- stantial improvements in this area, but as was frequently pointed out by Mr. Cooney, the then Minister for Justice, during the Dail and Seanad Debates which preceded the passing of that Act, it was entirely a maintenance Act and nothing more. 30 The succession issue is one area of the law in which legitimate and illegitimate children are clearly dis- tinguished, or as many would argue, an area in which they are clearly discriminated. Furthermore, it is the one clear aspect of illegitimacy which epitomises our "backward" treatment of such children compared to similar treatment afforded by our fellow European Countries who have introduced substantial changes in this field in the past. In England, the change was inaugurated in 1969 with the passing of the Family Law Reform Act of that year. However, whilst an examination of the law of succession will reveal the very limited extent to which illegitimate children have been treated by our Legislature in this area, it is important to note that there have been suggestions admirably. Succession (26) Sect. 3 (I) of the 1930 Act states that on the making of an affiliation order, the alleged father is deemed to be the "putative father". (27) Sect. 4 (4A) (3) (a) of the 1976 Act. (28) See Sect. 28 (I) (g) which renders the provisions of Sect. 9 of the 1976 Act applicable to illegitimate children. Also relevant ia the reference in Sect. 10 of the 1976 Act to "antecedent order" and this phrase is defined under Sect. 31 (I) (0 of the 1976 Act as including an order made under the 1930 Act. (29) Sect. 5 (3) of the 1930 Act was however inserted by Sect. 28 (I) (i) of the 1976 Act. (30) "This Bill . . . . abolishes the distinction between legitimates and illegitimates in regard to the question of maintenance. It goes no further than that." Dáil Debates Vol. 288 No. 5 Column 774. Mr. P. Cooney. 97

sought from the putative father, never from the mother. Once a voluntary agreement under Section 10 of the 1930 Act has been confirmed by Court Order, it is not necessarily a complete bar on further proceedings under the Act despite the wording of sub-section 4. 23 This is as a result of the new Section 4 (4) (a) and Section 4 (4A) 24 both of which surprisingly did not, expressly repeal that sub-section. Subsequent Maintenance Proceedings The mother of an illegitimate child, who has entered into a voluntary agreement under Section 10 of the 1930 Act may institute subsequent maintenance proceedings against the putative father or the father who admits paternity under Section 4 (4) (a) or Section 4 (4A) whilst a third party may only institute such proceedings under the latter sub-section. The effective distinction between these two sub-sections from the natural mother's point of view is that if she institutes proceedings under Section 4 (4) (a) she must first prove that an affiliation Order has been made against the putative father prior to the Order confirming the voluntary agreement. This is due first of all to the specific reference to "an Affiliation Order" 25 which is only granted once paternity has been established, and secondly to the direction that the Order under the sub-section be directed against the "putative father" who by definition, 26 is a non-existent person until such time as an affiliation order has been made against him. If, however, the application is brought under Section 4 (4A) the natural mother need only prove that the father of the illegitimate child is not complying with the terms of the voluntary agreement 27 and it is immaterial whether or not she has obtained an affiliation order prior to the execution of the Section 10 agreement. The third party, who need not bear any relationship to the illegitimate child, may still institute maintenance pro- ceedings under Section 4 (4A) on behalf of the child and against the putative father if it is proven (a) that he has failed to provide for it adequately and (b) that an affiliation order or an order under Section 10 of the 1930 Act has been made against him. Assuming the mother of the child was financially secure, then it would appear that if the Court thinks fit, the third party can institute main- tenance proceedings against her without any of the foregoing conditions, which apply in the case of the father, having to be fulfilled. The distinction is again due to the definition of "putative father". As the third party in this sub-section is referred to as "any person" it is

(23) Sect. 10 (4) states: "An order under this section recording the approval by a Justice of the District Court of an agreement shall, where no affiliation order has been made in respect of the illegitimate child to whom such agreement relates, be a complete bar to proceedings under this Act agains any person in respect of such child and, where an affiliation order has been made in respect of such child shall be a complete bar to any further proceedings under this Act in respect of such child against the putative father of such child and to all proceedings under this Act against any other person in respect of such child." (24) Enacted by Sect. 28 0) 0») of the 1976 Act. (25) See Alan Shatter "Family Law in the Republic of Ireland* particularly at p. 333.