The Gazette 1977

GAZETTE

APRIL 1977

the blessings, it was the Ampthill Russells. Its curse was

litigation".

Clearly, we as lawyers must see legitimacy as a legal

concept which gives recognition to the status of a couple's

child. I think status is very important. If a child is

illegitimate he is

filius nullius,

that is child of no-one and

with no general rights of support.

The only statutory provisions which help to support

the single parent family are those in the

Illegitimate

Children (Affiliation Orders) Act. 1930,

and the

Social

Welfare Acts

of recent years. From the lawyer's point of

view the former would seem to be of more importance.

The 1930 Act does not appear to have been brought in

just for the benefit of the child, but rather to relieve the

state of any civic responsibility it may have owed to the

child. This is a concept dating from the Poor Law of

Victorian times. The 1930 Act tries to make the father

pay maintenance for his child through the mother. In fact,

the Act used to be very restrictive and inaccessible. For

example, there was a time limit of six months and only the

mother could bring an action for an affiliation order.

A Bill introduced in the Seanad some years ago stirred

the Minister for Justice into amending the law in his own

Maintenance Act of 1976, section 28. Since May of last

year there has been a much more humane approach with

the placing of the illegitimate on the same plane as the

legitimate, though there is still a petty-minded limit of

three years in which to issue a summons. Surely the

ordinary rules of evidence cover any possible risk

here? I believe that one important development in the

new Act is that both parents of an illegitimate child are

obliged to maintain the child. It would appear from the

wording of the Statute that a third party, or even the child

himself could use this to apply to the Court I think this is

a very welcome development. With the more secure

maintenance rights available, no doubt more and more

mothers (and perhaps fathers) will keep their children.

If the maintenance position has improved, rights of

succession have not. An illegitimate child has no rights of

succession to property other than those under the

Legitimacy Act 1931 which allows him to succeed to the

estate of his mother if she dies intestate and without

lawful issue. This of course, has no effect on any legacy

left to the child but in an age where the freedom of the

testator is rapidly decreasing it is not fair to so minimise

rights

to succession. The child could possibly use section

117 of the

Succession Act 1965

to gain proper provision

for himself but this would only work out if the Court held

that there was a moral duty owing by the testator.

Interestingly,

the Rent Acts

cater for all children

regardless of status in succession rights.

I feel that the law of succession practises an invidious

discrimination against illegitimate children, and I shall

argue later that this is susceptible to constitutional

challenge in the courts.

Aside from the position of the child, there is the effect

of the law on the natural parents. Gavan Duffy P. in

M. [1946] I.R.

took the view that the constitutional

guarantee for the Family in Article 41 did not avail the

mother of an illegitimate child, although he regarded the

child "as having the same natural and imprescriptible

rights under Article 42 as a child bom in wedlock to

religious and moral, intellectual, physical and social

education". It seems absurd to me to refuse to the single

mother and her child the same protection as is afforded to

the ordinary family. What difference is there between the

widow and her child and the unmarried mother and her

child in social function, particularly, in view of the decline

of the traditional role of the family and the increasing

security provided by the Welfare State? The question of

the status of the single parent family has an important

practical effect in the area of adoption (Art. 41). The

Constitution lays down that the Family has natural

imprescriptible and inalienable rights and duties. If we are

to accord such "natural" rights to the single mother and

her child how can she lawfully consent to the adoption

order which will take away her child? How can she

transfer rights which could be regarded as inalienable, or

non-transferable, under the Constitution? This argument

was disposed of in the famous

The State (Nicolau) v. An

Bord Uchtala (1966) I.R.

at p. 630 (Supreme Court).

In that case, the natural father of an illegitimate child

tried to prevent his child being adopted, and when the

Adoption Board refused to hear him he applied to the

High Court for an order of certiorari to quash the

adoption order but lost his case there and also in the

Supreme Court. One of Nicolau's grounds for his

application was that the

Adoption

Act

was

unconstitutional in that it did not respect the

inalienable and imprescriptible rights and duties of the

Family recognised by the Constitution. The Supreme

Court held however, that Articles 41 and 42 of the

Constitution do not cover either of the natural parents.

The Court went on to say that the mother could only find

rights in Article 40 and that that Article did not prevent

or restrict or transfer any of those rights.

Whatever one thinks of the actual decision or of the

position of the natural father, I think it can be said with

respect to the Court that it was a very harsh

interpretation for the status of the unmarried mother and

her child. The Court reasoned that an illegitimate child

"may be begotten by an act of rape, by a callous

seduction, or by an act of casual commerce by a man

with a woman". While this is so, there are other situations

possible—for example, a nullity decree, as we have seen

can produce illegitimacy; more commonly if people are

living together in stable relationships although not

married, are their rights to be crudely lumped in with

those of the casual relationships the Supreme Court cited

in its judgment?While the natural father's rights (perhaps

rightly) should be small, how can we deny him at the very

least a fair hearing or an interest in his child? The only

statutory provision which seems to give him any

recognition is

s.II

(3) of the

Guardianship of Irfants Act

1964,

which allows him to apply for custody of his child.

Parental rights have produced some of the most tragic

cases to come before our Courts in recent years, there has

been a number of custody cases involving children where

adoption orders have been challenged. Often, the welfare

the child has been a side issue for the Court and parental

rights have been clouded by obscure points of law. I

believe the recent

Mc L. case

(June 1976) is a classic

example of this. That was the case concerning the six-year

old child whose adoption order was quashed by the

Supreme Court as the natural mother was not fully

informed of her position at the time of the consent to the

adoption. In the end, the case was settled in the High

Court. However, public opinion forced a change in

Adoption Law and s. 5 of the new

1976 Adoption Act

provides that adoption orders shall not be invalidated if

the best interests of the children would be put in jeopardy.