The Gazette 1978

GAZETTE

JULY-AUGUST

Birth Registration

The mother is also repsonsible for registering the birth

of the child and this must be done within 42 days of its

birth.

There is an equal duty imposed on the-father to

obvious reasons, he rarely fulfils it. If neither the mother

nor the father register the birth of the child, then under

Section 1 of the Births and Deaths Registration (Ireland)

Act 1880, the duty falls upon the occupier of the house in

which, to his knowledge, the child was born and failing

this, each person present at the birth of the child or if

there was no such person present, then the person having

charge of that child.

The father of an illegitimate child cannot be required

by any person to give information concerning the birth of

that child and the Registrar shall not enter in the

Registrar the name of any person as father of such child

unless there has been a joint request from the mother and

the person acknowledging himself to be the father of the

child, in which case they will both sign the Register.

The illegitimate child will invariably acquire the

surname of his mother but in cases where the father has

signed the Register under Section of the 1880 Act, he

may acquire the father's surname.

Were it not for the intervention of the Social Welfare

Act 1973, the mother of an illegitimate child could and

often did, find herself in a serious financial predicament.

Under existing legal provisions she may not institute

maintenance proceedings on her own behalf, only on

behalf of the child. What is most surprising in this respect,

particularly in modern times, is the outmoded common

law right, existant in the father of a girl who has given

birth to an illegitimate child, to insitute proceedings for

the seduction of his daughter.

Undoubtedly this

anachronism in the law should be repealed and in doing

so, it is worth considering whether the right existant in the

father, should be transferred to his daughter thereby

enabling a form of maintenance proceedings to be

instituted which would render her financial assistance

over a certain period of time after the birth.

Social Welfare Act 1973

With the passing of the Social Welfare Act 1973, the

mother of an illegitimate child was granted the same

financial assistance as a widow or deserted wife, which

meant that the effective distinction between legitimacy

and illegitimacy under our Social Welfare legislation was

then abolished.

Affiliation Proceedings

Should the mother wish to render the putative father

liable for the maintenance of the child, she must institute

affiliation proceedings under the 1930 Act.

These pro-

(12) Sect. 1 of the Births and Deaths Registration (Ireland) Act

1880.

(13)

Ibid

Sect. 7.

(14) See "Seduction and Irish Law" by

WM.

Binchy,

GAZETTE NOV.

1977. Also "Family Law in the Republic of Ireland" by Alan

Shatter, p.p. 91-93.

(15) If the putative father had to pay maintenance to the mother of

the illegitimate child, for say, one year after its birth, this would

then enable her to discharge the various financial expenses

which will be incurred and which are both directly and

indirectly attributable to her pregnancy. It will also assist her in

trying to resume, what one might term, her normal role in

society.

(16) Sect. 2 as amended by Sect. 19 of the 1971 Act and Sect. 28 of

the 1976 Act.

ceedings can often be a traumatic experience for her, par-

ticularly as she herself must give evidence and that

evidence must be corroborated "in some material

particular or particulars".

However, the difficulty posed

by Section 3 (2) of the 1930 Act has been alleviated

somewhat by the enactment of Section 28 (I) (d) and (2)

of the 1976

Act which provides that proceedings must

be held in camera and that no material may be printed or

published which would tend to identify the parties to the

proceedings.

It is not proposed to discuss in this article the

procedure involved in affiliations proceedings as that

subject has been more .than adequately dealt with in

"Family Law in the Republic of Ireland" by Alan

Shatter.

Voluntary Maintenance Agreement

The alternative to affiliation proceedings is a voluntary

agreement for the maintenance of the illegitimate child

under Section 10 of the 1930 Act, made between the

mother on the one hand and the father who admits

paternity on the other hand. Either party can then apply

to the District Court to have the agreement approved and

made a rule of Court.

However when one considers that

the maximum payment per child under an affiliation order

is now £15.00 per week, it would seem highly unlikely in

the vast majority of cases that the District Court, which

must ensure that the benefits which the child and its

mother could obtain are, at least, equal to those which it

could have obtained under the Act,

can approve of such

an agreement. The reason being that its jurisdiction

extends merely to £250.00, which if a maximum award

were granted, would only be 16| weeks' payment.

Accordingly, if an agreement under Section 10 of the Act

has to be approved by the Court, then that Court must of

necessity be the High Court which by virtue of Section 19

(2) (a) of the 1971 Act was granted unlimited jurisdiction

to hear and determine proceedings under the 1930 Act.

The Court shall not approve any agreement under this

Section unless the Judge is fully satisfied that it is in the

best interest of the child and that the benefits it confers on

the child are not less than those which it could or did

obtain under an affiliation Order.

Statement of Earnings

In making such an Order, it would seem highly

desirable that the District Justice or Judge be given

powers to compel both parties to produce evidence of

their earnings. Unfortunately though, the only stage at

which the production of a statement of earnings can be

ordered,

is on the application for an attachment of

earnings Order under Section 10 of the 1976 Act.

Furthermore, the statement of earnings may only be

(17) Sect. 3 (2) of the 1930 Act.

(18) Amending Sect. 3 (5) and (6) of the 1930 Act.

(19) p.p. 323

et seq.

See also: "Directory of Services in Ireland for

Unmarried Parents and their Children" published by the

Federation of Services for Unmarried Parents and their

Children p.p. 56-60. "A Brief Guideline on the Law relating to

Illegitimate Children" by the Society of Young Solicitors, in the

GAZETTE

, Nov. 1977. "Blood Tests and the Proof of Paternity"

report of the English Law Commission 1968. "Children's

Rights" an article written by Christina Sachs in "Fundamental

Rights" (published by Sweet & MaxweU 1973) p.p. 36-37.

(20) Sect. 10(1).

(21) Sect. 10 (3).

(22) Sect. 13 of the 1976 Act — Statement of Earnings.