The Gazette 1977

APRIL 1977

GAZETTE

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. 29

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 Re 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