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GAZETTE
APRIL 1979
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
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.
1. Gazette June 1978.
2. 119651 IR 294.
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.
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.
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.
56