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GAZETTE
MARCH 1977
illegitimate children should be based on the precedents set
by reforms in New Zealand and the United States. Both
these countries have Commom Law systems like ours.
The
Statute of Children, Act, 1969
in New Zealand removed
the legal disabilities of children born out of wedlock. The
relationship of
every
person in New Zealand to his parents
is to be determined regardless of the parents' marital
status. The American
Uniform Parentage Act
is a model
draft to fill in the vacuum left by the Supreme Court
decisions. It also provides that all children should be equal
in status.
The child would receive full rights of succession and
maintenance as would befit his status. The main problem
that reforming legislation encounters is proof of paternity.
This works in two ways. Firstly there is a non-contentious
procedure where the father acknowledges the child as his
own. Though this is as yet unknown to Irish law, it would
be a simple reform to introduce. Where there is a dispute,
then proof of paternity is more difficult. The haphazard
rules presently used in affiliation proceedings would have
to be updated to include medical evidence, though it
would be foolish to regard it as any sort of conclusive
proof. Finally I believe legal aid to be essential for the full
working of these reforms.
Tinkering with the system is a hobby of Irish
Governments. What we need is a radical new structure in
Family Law including the problem of parentage and
children's rights. A start is to be made with a referendum
to change the constitutional position on Adoption. Let us
use this opportunity in the Spring, when the decision is to
be put to the people, to broaden the issue mto a new
Charter of Rights for all children which shall hold them,
as human persons, equal before the law.
The Resolution "That the best thanks of the Society be
given to the Auditor for his Address, and that it be
published at the expense of the Incorporated Law
Society" was proposed by the Chief Justice, the Hon. T.
F. O'Higgins.
A call on the Government to provide more money for
the improvement of courthouses throughout the country
is essential. He said that District Justices were facing the
difficulty of having to deal with family law
cases—required to be held in private—in unsuitable
courthouse accommodation.
He explained that the new Family Law Act required
that cases be held "otherwise than in public", but that
District Justices were still faced with inadequate
courthouse facilities.
The Chief Justice added that he hoped the appropriate
Minister and the Government realised that suitable
accommodation was needed if these cases were to be
heard in private.
The Chief Justice said that it was a fact of life that
cases relating to marriage breakdown were becoming
more and more a feature in the hearings before the
Courts.
Referring to the address on Illegitimacy in Irish Law he
said: "It is, I think, a good thing that in a society such as
ours that thought-provoking subjects should be put
forward for discussion so that all of us realise that these
are community problems which must engage the attention
of all".
. .
He felt that little or no progress had been made in tne
treatment under the law of illegitimate children, in regard
to succession.
This Resolution was duly seconded by Mr. James
O'Reilly, B.C.L., LL.B., Lecturer in Law, University
College, Dublin. Mr. O'Reilly said:-
The Auditor, Mr. O'Mara, is to be congratulated on his
choice of topic. The injustices daily imposed by the law
of illegitimacy cannot be glibly ignored anymore. A child
never asks to be born. As the law now stands, we are all
witnesses to a system that brands an innocent person as
an outcast. Nothing less than the extirpation, root and
branch, of the disabilities imposed by the status of
illegitimacy, will do justice now. Our Constitution in Art.
40, s. 1. guarantees equality. While there are hopes of
possible developments under this section, the recent
Constitutional amendment put forward by the Irish
Council for Civil Liberties would seem preferable. In their
report on Children's Rights under the Constitution, they
suggest adding the new section to Art. 41 which Senator
Robinson mentioned as the proposed At. 41, s. 4, sub.-s.
2:
"Equality of rights under the law shall not be denied
to any child on the basis of status at birth or
parentage."
Here, in a Constitutional directive, you have enshrined
what many want to see. This proposed amendment would
ensure real equality among children and the removal of
the present status of illegitimacy.
At present, society is ambivalent towards the plight of
this child. The maxim
Nolumus mutare leges Angliae
arose in the context of illegitimacy seven centuries ago,
and it still reflects the basic approach of the law. We must
not let fears about conventional morality or threats to the
stability of the family, deflect society from the path of
reform. We cannot let ourselves forget that a child never
asks to be born. How can our legal system be so
insensitive to the claims of basic justice now being put
forward on behalf of illegitimate children? Fears and
doubts pale into insignificance when presented with the
sight of an innocent child.
To some,adoption is the solution. It is not. The
percentage of illegitimate children being placed for
adoption is decreasing. In 1969, over 90% of illegitimate
children born in that year were adopted. By 1976, that
figure has been reduced to almost 50% While many
"single" mothers may have their children adopted, the
presence of such facilities does not remove the need for
reform nor does it solve the problem of illegitimacy.
Irish society would like to pride itself on its attitude to
life. To most of our politicians abortion is anathema.
Abortion, like illegitimacy, is an ugly word. What many
do not want to realise is that in many cases the legal
discrimination society places on this child and his mother
are an impetus to seek an abortion abroad. The challenge
facing Irish society now is to make it as open as possible
to live. If our system is pro life, it must be pro all forms of
life and not just "legitimate" life. If this is admitted, then
the case for reform is made.
While the Courts may be able to achieve something
through a jurisprudential development, here the primary
responsibility lies with the politician. His obligation is
patently clear, namely the removal of the status of
illegitimacy from Irish law.
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