The Gazette 1979

APRIL 1979

GAZETTE

Illegitimate Children and Succession

A BRIEF CONSTITUTIONAL ANALYSIS

By TOM O'CONNOR, Solicitor

approach to the question of discrimination under Article 40.1. Article 40.1 Under Article 40.1 all citizens as human persons are to be held equal before the law. However, the section con- tains an important proviso which limits the generality of the foregoing. "This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function". In the Nicolaou case 3 Walsh J. held that the first state- ment in Article 40 was "not to be read as a guarantee or undertaking that all citizens shall be treated by the law as equal for all purposes, but rather as an acknowledgement of the human equality of all citizens and that such equality will be recognised in the laws of the State". 6 It would be ridiculous to think that the law should pro- vide equal measure under all circumstances to every person and the proviso therefore to Article 40.1 is, as Walsh J. correctly pointed out in the Nicolaou case 7 "a recognition that inequality may or must result from some deficiency or from some special need". However, whilst there may be no diffificulty in agreeing with such statements in general, the problem arises when they are sought to be adpated to specific aspects of our law, such as our law in relation to illegitimate children. At the outset it must be pointed out that in any society one is bound to have permissible levels of legal and social distinctions or discriminations between various members of that society. The point was made by the late Chief Justice, Cearbhall O'Dalaigh, in O'Brien v. Keogh and O'Brien 8 when (referring to the judgement of Walsh J. in the Nicolaou case) he said that "Article 40 does not re- quire identical treatment of all persons without recognition of differences in relevant circumstances. It only forbids invidious discrimination." Invidious or Arbitrary Discrimination For the purposes of the present article we must con- sider whether the discrimination which exists between the rights of legitimate and illegitimate children on an intestacy is "of a kind which can fairly be described as being invidious 9 or arbitrary." 10 We must also consider whether the provisio to Article 40.1 justifies this dis- crimination. The latter consideration will be dealt with first. Proviso to Article 40.1 The proviso to Article 40.1 undoubtedly acknow- ledges that there are levels of justifiable discrimination but it will be noted that it does not state that enactments by 53

In an earlier article in this series 1 the succession issue in relation to illegitimate children and particularly their very limited rights on an intestacy were discussed. It was also seen how those limited rights contrasted sharply with the succession rights of legitimate children. Such a dis- tinction can undoubtedly be termed discriminatory, but the relevant question to pose and that which will be examined in this article is whether the discrimination can be justified under Article 40.1 of the Constitution which provides that: "All citizens shall as human persons be held equal before the law". This article therefore deals with discrimination between legitimate and illegitimate children viewed from the point of view of the illegitimate child's limited rights to inherit on the intestacy of a deceased parent. Ryan v. A.G. In the past ten to fifteen years our members of the legal profession, both practitioners and judiciary alike, have shown a far keener interest than was heretofore apparent in examining both the various defined and undefined con- stitutional rights and guarantees. The decision of Kenny J. in Ryan v. A.G. 1 must be an acknowledged landmark in the field of constitutional law as it opened up or more correctly revealed new horizons and provided the much needed catalyst to examine further those constitutional rights and guarantees. However, the prompting and en- couragement to be drawn from the decision of Kenny J. has not always been as apparent as many would have liked in our developing constitutional law and this has led to criticisms of the legal profession even by some of its own members. When one considers the lack of constitutional cases in the area of illegitimacy alone, the criticism is justified. No case has as yet appeared before the Courts to test the validity of the discrimination levied upon illegitimate children in the law of succession; a somewhat surprising factor particularly when one has regard to recent develop- ments by the U.S. Supreme Court (whose decisions are being increasingly referred to by our Judiciary) of its "Equal Protection Clause" 3 in relation to the numerous cases which have appeared before it on this topic. Our Supreme Court's decision in the Nicolaou case? may have contributed somewhat to this inactivity but whilst the judgement in that case (which related not to the rights of an illegitimate child but rather to the rights or, as it transpired, the "non-rights" of a natural father to his illegitimate child) has not been specifically overruled, subsequent decisions by the same Court and by Walsh J. himself, who gave the Supreme Court's judgement in that case, have in the writer's opinion, shown a more liberal