The Gazette 1977

MARCH 1977

GAZETTE

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.

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

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