The Gazette 1978

GAZETTE

JULY-AUGUST

Aspects of Our Present Law

Relating to Illegitimate Children

TOM O'CONNOR, Solicitor.

Common Law

At Common Law, the illegitimate'child was in an

invidious position as he was regarded as

filius nullius

and

consequently was granted no legal status whatsoever. The

harshness of the Common Law was to some extent

mitigated by varios judicial decisions, particularly

towards the end of the last century and early this

century.

However, such decisions, which related to a

rather obscure right to maintenance and an even more

obscure right to custody, were by no means uniform and

hence the urgent need for statutory intervention. It is to be

seen that this urgency was not, unfortunately, attended to

until 1930 when the Illegitimate Children (Affiliation

Orders) Act was passed. Although, that Act was, by

present day standards, totally inadequate, it must be

acknowledged that it was quite a "stepping-stone" in the

field of social legislation at the time, particularly when one

has regard to the then prevailing views on illegitimate

children and unmarried mothers. The vestige of those

views still exist in our society today as is apparent from

the Seanad Debates

during the introduction by Senator

Mary Robinson of her Private Members Bill, entitled

"Illegitimate Children (Maintenance and Succession) Bill

1974".

Statutory Intervention

The initial statutory intervention into this area of the

law seems to have come with the Poor Law Act 1834.

However, that Act merely imposed a statutory duty on

the mother to maintain her child. It did not contain any

affiliation provisions and hence, in that respect, it could be

said to have "fallen by the wayside". However, it is

important to note that this duty to maintain an illegiti-

mate child is still primarily incumbent on the natural

mother. Section 27 of the Public Assistance Act provides,

inter alia, that:

Every woman shall be liable to maintain such of her

children, whether legitimate or illegitimate, as are for the

time being under the age of 16 years (Section 27 (d)).

If that woman is married, then the primary duty rests

on her husband, irrespective of whether or not he is the

father of the illegitimate child (Section 27 (e)).

The Illegitimate Children (Affiliation Orders) Act 1930

(hereinafter referred to as "the 1930 Act") is,

accordingly, our starting point. This Act has been

amended by the Courts Act 1971

(hereinafter referred to

as "the 1971 Act") and The Family Law (Maintenance

of Spouses and Children) Act 1976* (hereinafter referred

to as "the 1976 Act").

With the passing of the 1976 Act and more

particularly Section 28 of that Act, we had the first major

and successful attempt at equating the legal rights of

illegitimate children. There are still many barriers to be

surmounted, but certainly the foundation stone has been

well and truly laid.

Recognition of Illegitimate Children

In quite a number of the "Civil Code Countries" today

it is still necessary for one of the parents of an illegitimate

child to formally recognise that child before it can acquire

any rights under its national legislation.

Thus the birth of

an illegitimate child gives it no rights whatsoever in

relation to its mother until she has formally recognised it.

The same principle applies with regard to die rights of the

mother to that child. Fortunately, under Irish Law, there

exists the notion of

mater semper certa est,

i.e. the

automatic establishment of the principle of irrefutable

maternity arising solely from the birth of the child.

As was pointed out earlier, the primary duty in this

country rests on the mother

and, furthermore, she is

stated to be the guardian of that child

although the

natural father is given the right to apply to the Court for

custody.

(1) See particularly the judgment of Gavan Duffy P

. In re M an

Irfant

(1946) I.R. 334 where he discusses at some lenght, the

historical aspects of illegitimacy.

In re O'Connor(

1919) 1 I.R. 361, judgment of O'Connor LJ.

"Family Law in the Republic of Ireland" by Alan Shatter, p.p.

321-323.

(2) Volume 79 Seanad Debates (1974).

(3) The Bill was withdrawn by leave after only the Second Stage,

the reason being that the Minister for Justice had then given

assurances that a Bill would shortly be introduced to alleviate

substantially the illegitimate child's position under our law. This

proposed Bill was what is now, the Family Law (Maintenance

of Spouses and Children) Act 1976.

See Senator Robinson's concluding speech to the Debate on her

Private Members Bill: Seanad Debates Vol. 79 No. 7 p.p. 616-

649. Also her introduction to the Cherish booklet "The

Unmarried Parent and Child in Irish Society".

(4) Oddly enough, Section 27 (b) of that Act states that "every

illegitimate person shall be liable to maintain his mother"!

(5) Section 19. Thefigure of £30.00, in sub-section 1 (a) and (b) of

this section were later increased to £200.00, by Section 28 (I)

(j) of the 1976 Act.

(6) Sect. 28.

(7) e.g. France, Italy and Luxembourg. But once that child has

been recognised it is in a superior legal position to the

illegitimate child in Ireland, particularly as to its right of

inheritance in the estate of the parent who has recognised it.

(8) Other "Civil Code Countries" such as Belgium and Austria

have recently introduced Bills into their Parliaments which

when enacted, will establish this principle of

mater semper certa

est.

See provisional working paper of the Council of Europe

entitled "Changes in Member States of the Council of Europe

1971-1976". Ref. CJ-DJ (77)5. Also Council of Europe

"Newsletter on Legislative Activities" No. 27.

(9) Sect. 27 (d) of the Public Assistance Act 1939.

(10) Sect. 6 (4) of the Guardianship of Infants Act 1964.

(11) Sect. 11 (4) of the Guardianship of Infants Act 1964.