The Gazette 1978

GAZETTE

JANUARY/FEBRUARY 1978

that a clear distinction must still be drawn between the

two sets of rights is very much open to argument. Mr.

Voogd in his explanatory memorandum to the Social

Charter states that "social rights are inseparable from

civil and political rights",

whereas Mr. Jacobs in

referring to the distinction between the United Nations

Covenant on Economic Social and Cultural Life and its

Covenant on Civil and Political Rights (both of which

may respectively be compared with the European Social

Charter and the European Convention on Human Rights)

clearly distinguishes the two standards of rights:

" . . . a distinction had to be drawn between two different

classes of fundamental rights. Social and economic rights,

although they appear in the Universal Declaration, are less

universal in the sense that they constitute standards to be

attained, depending on the level of economic

development. They require action by Governments

whereas civil and political rights often require protection

against executive action".

Whatever stand one takes in this argument, I think it

cannot be denied that the two sets of rights complement

one another and this was clearly evident in our own legal

system after the passing of the Social Welfare Act, 1973.

This Act for the first time introduced social welfare

payments for the unmarried mother and thereby

complemented, if not outmoded, her then existing legal

rights.

Whilst the argument may continue indefinitely without

the protagonists, and particularly the Independent

Committee of Experts and the Governmental

Sub-Committee, reaching any definite agreement, it is to

be hoped that Governments will not ignore the objective

and carefully considered conclusions of the body.

It is indeed sad that the Irish Government would seem

to have ignored most of the conclusions of the

Independent Committee of Experts dealing with the

situation of children born outside wedlock with regard to

inheritance. After the second biennial report which

covered the period 1968 and 1969, the Committee, whilst

acknowledging that Ireland was developing a meaningful

family policy, considered that a recommendation should

be addressed by the Committee of Ministers to the Irish

Government urging it to intensify and extend its laws

in this area as the then existing situation revealed serious

gaps and inadequacies in respect of,

inter alia,

the general

legal position of illegitimate children and the protection of

unmarried mothers. The only reforming piece of

legislation introduced since then was that dealing with

maintenance,

which in the limited area that it covered

was a significant development as it equated the rights of

unmarried and single mothers and their illegitimate

children with those of lawfully married mothers and their

legitimate children. It is surprising that further

developments have not been introduced particularly when

one has regard to the scathing criticism of the

Independent Committee of Experts:

"As to the general legal position of children bom out of

wedlock, the Committee particularly observed that the

second Irish report explicitly states that illegitimate

children have no legal status unless and until it has been

conferred on them as a result of action taken under the

Adoption Acts or the Legitimacy Act, 1931. The first

report also shows that under the Legitimacy Act, 1931, it

is only where the mother of a child born out of wedlock

dies intestate without leaving any legitimate issue

surviving, that the child becomes entitled to the same

interest in the mother's real and personal property as if he

had been born in wedlock. The Committee considered

these provisions to amount to an unreasonable

discrimination against children bom out of wedlock. It

could not understand why such a child should have no

"legal status" and it considered the limitation of the

child's inheritance rights to be so restrictive as

seem

almost punitive".

In the light of this rather forceful statement, it is

curious that the Parliamentary Assembly did not deal

with this point in its Opinion

on the third report of the

application of the Charter when urging the Committee of

Ministers to make a recommendation to the Irish

Government (and the Governments of some of the other

member States) for stricter application of certain specified

articles of the Social Charter. They did however refer to

the general legal position of illegitimate children in the

light of Art. 17 of the Charter but without reference to

any specific State. Unfortunately though, their statement

in this respect is rather vague and evasive but it is still

worthy of note and clearly indicates the general feeling

amongst European parliamentarians on any discrimin-

atory treatment of illegitimate children:

"The opinion of the Governmental Committee

deserves consideration but can doubtless be modified.

Where the legal status of children born out of wedlock

entails such obvious and substantial discrimination as

manifestly to impair their economic and social situation, it

might be argued justifiably that the State in question has

not taken 'all appropriate and necessary measures' as

required under this provision"

(i.e. Art. 17). The

Assembly then went on to say that "it would be helpful

for the Committee of Experts to clarify its standpoint on

this matter". Clearly this non-committal viewpoint falls

almost directly between the arguments, discussed earlier,

on the corelation of social and economic rights on the one

hand and legal rights on the other hand; however, at the

same time, it could be said to indicate more of a leaning

towards the views of the Independent Committee of

Experts than towards those of die Governmental Sub-

Committee which again reveals the importance of the

former body.

The conclusions of the Governmental Sub-Committee,

like those of the Parliamentary Assembly, on the views

expressed by the Independent Committee of Experts

regarding illegitimate children, did not deal specifically

with any one country but were couched in general terms

and whilst they did not agree, as was earlier pointed out,

that the subject came within the sphere of Art. 17, they

did remark that "the rapid and progressive elimination of

any discriminatory treatment arising from legal

differences between various categories of children should

be included in a Contracting Party's programme".

It is not known to what extent the Irish Government's

programme is in conformity with that assertion, although

there is evidence that further reforming legislation will be

introduced along the lines of Sect. 28 of the Family Law

(Maintenance of Spouses and Children) Act, 1976.

However it will probably first await the report of the Law

Reform Commission who are presently examining the

legal position of illegitimate children. Certainly the Dail

and Seanad Debates which preceded the passing of the

said Act give much hope for the introduction of further

and more far reaching reform. The comments, of Mr.

Cooney, the then Minister for Justice, are particularly

noteworthy:

[The Family Law (maintenance of Spouses and

Children) Act 1976] "is part of a continuing reforming

process, some of which has already begun but more

has to come. One of the areas in which reform has yet