The Gazette 1979

GAZETTE

APRIL 1979

reform and consequently the illegitimate child's only remedy in the meantime rests with the Courts. However, it must be acknowledged that the Courts can only go so far within any legal framework towards im- proving existing laws. It has been remarked by one writer 48 that if the problem is left solely to the Courts the solution will be a prolonged and patchwork process. The major step in reforming any piece of legislation must be taken by the legislature itself. Hopefully some of the issues raised in this article will be clarified by the Oireachtas before the Courts are called upon to do so. 3. "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the Laws" [Art. 14 U.S. Constitution]. 4. The State (Nicolaou) v. An Bord Uchtala 119661 1R 567. 5. ibid. 6. P. 639. See also judgement of Kenny J. in Murtagh Properties Ltd. v. Cleary [ 1972) IR 330 at 335. 7. See footnote (4). 8. 1972 IR 144 at 156. 9. O'Higgins C. J. in deBurca and Anderson v. A.G. [ 1976] IR 38 at 59. 10. Walsh J. in de Burca and Anderson v. A.G. ibid at p. 68. »11. See footnote (9) p. 72. In the recent case G. v. An Bord Uchtala lUnreported Supreme Court 19/12/1978) Mr. Justice Henchy at page 9 of his judgement states that "The moral capacity and social function of parents are, in constitutional terms, not alone distinguishable but necessarily distinguishable depending on whether the children are legitimate or illegitimate ..." Un- fortunately he does not elaborate on the meaning of those two phrases. 1. Gazette June 1978. 2. 119651 IR 294. A.G. [1970] IR 317 at 333. 16. Quinn's Supermarket Ltd. v. A.G. [1972] IR 1 at 31. 17. ibid at p. 14. 18. See footnote (12) p. 319. 19. See also the judgment of O'Higgins C. J. in the The State (Healy and Foran) v. Governor of St. Patrick's Institution and Ors. 112 1LTR 37 at 40. 20. Walsh J. in the de Burca case, see footnote (9) p. 69 (quotation adapted here to a slightly different context of discrimination). 21. See footnote (9) p. 27. 22. Juries Act 1976. 23. Sections 7, 8 and 9 of the Juries Act 1976 deal respectively with those persons who are ineligible or are disqualified from jury service or who may be excused from service. 24. In the de Burca case at page 68. 25. When a child is born there is nothing in the child itself to categorise it as legitimate or illegitimate. Statua of birth is a crea- tion of man for his own purpose. 26. See decision of U.S. Supreme Court in Mathews v. Lucas 2 FLR 3074 29th June, 1976. 27. Art. 41.1.2°. 28. See the judgements of Henchy J. In re J. an Irfant [ 1966] IR 295 and Walsh J. in The State (Nicolaou) v. An Bord Uchtala [1966] IR 567. 29. See footnote (4) p. 642. Note also the comments of O'Dalaigh C. J. in O'Brien v. Keogh and O'Brien [1972] IR 144 where he limited somewhat the generality of this statement... "legal rights are the same in the same circumstances." Also O'Higgins C. J. in the de Burca case at p. 62. "This (Jury) law must conform to the general principles of the Constitution." 30. ibid. 31. See footnote (26) p. 3076. 32. See footnote (3). 33. Trimble v. Gordon 3 FLR 3081 at 3083. 34. ibid. 12. McGee v. A.G. [1974] IR 284 at 315. 13. G. v. An Bord Uchtala (see 11 above). 14. See footnote (9) p. 59. 15. East Donegal Co-Operative Livestock Mart Ltd. and Ors. v.

impenetrable barrier that works to shield otherwise invidious discrimination." 37 The succession issue which has heretofore validly distinguished the illegitimate child from the legitimate child should now be viewed further in the light of pre- vailing concepts and ideas. 38 The developments by our fellow member countries within the Council of Europe is adequate proof of a changing attitude in this sphere. 39 Further proof is apparent from the "European Con- vention on the Legal Status of Children Born out of Wedlock." 40 Although this convention has only been rati- fied by two Member Countries, 41 most of the other Member Countries are gradually moulding their laws into conformity with its various provisions which aim to abolish may of the existing distinctions between such children. 42 Under the Preamble to the Constitution, we are bound, as O'Higgins C . J . pointed out in the Healy and Foran case, 43 to consider rights "in accordance with concepts of Prudence, Justice and Charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The Preamble envisages a Constitution which can absorb or be adapted to such changes." Similar sentiments were echoed by Walsh J. in the McGee case 44 when he said "It is but natural that from time to time the prevailing idea of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts." It is submitted that if the succession issue in relation to illegitimate children is examined by our Courts regard must be had to the prevailing views of those member countries within the Council of Europe which have pro- moted greater change in their existing laws dealing with illegitimate children — laws that already exceed our present law in this sphere. Article 45 Under Article 45 of the Constitution, the provisions of which "are intended for the general guidance of the Oireachtas," it is stated that "The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which Justice and Charity shall inform all the institutions of the national life." 43 Kenny J. has held that the Courts may take this Article into consideration "when deciding whether a claimed con- stitutional right exists. 46 Therefore in any legal discussion on the status of illegitimate children, we should ask whether justice and charity is apparent in our treatment of such children. Again it is submitted that under existing legislation, it is not nor could it be when a child is prevented purely be- cause of the circumstances surrounding its birth from in- heriting in the entire intestate estate of its father and in practically all of the mother's estate save as is provided by Section 9 of the Legitimacy Act 1931. There have been assurances that further legislation will be introduced to improve the existing legal status of the illegitimate child (including the area of succession) 47 but both the scope of this legislation and the time when it will be introduced are not known. There certainly would not appear to be any likelihood at present of immediate

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