LAW REFORM (MISCELLANEOUS PROVISIONS) (SCOTLAND) BILL [Lords]. (Hansard, 6 August 1940)

§ Mr. Robert Gibson (Greenock)

Before we part with this Clause something should be said about it because the change that it makes in the law of Scotland is pretty wide. The learned Solicitor-General for Scotland, in his speech on the Second Reading, said with regard to this Clause: We think it right that in this matter adopted children, and for that matter illegitimate children also, should have the same right of recourse to the court for damages as the ordinary legitimate child has to-day."[OFFICIAL REPORT, 10th July, 1940; col. 1197, Vol. 362.] In view of that statement I felt it my duty to examine Clause 2 in order that it might be clear what was the change that was being made in the law of Scotland as regards the position of adopted children particularly. In the end, the learned Solicitor-General conceded that the rights that accrue under this Clause with regard to the adopted child are reciprocal. The adopted child has the right to damages and solatium in the event of the death of the adoptive parent and the adoptive parent has the right to damages and solatium in the event of the death of the adopted child. That was not the case, however, with regard to the illegitimate child. Clause 2 specifically gives to the illegitimate child only the right to recover damages or solatium in respect of the death of either of his parents in the same way as if the child were legitimate. No corresponding right is given to the adoptive parent. Accordingly, while there are reciprocal rights created by this Clause in the case of the adopted child, there are no reciprocal rights in the case of the illegitimate child. The right is only in the child in the event of the death of the parent.

Over the week-end I have had the opportunity of speaking with various 157 people in Scotland, and I have found pretty widespread surprise in Scotland at this inequality of treatment of the adopted child in the one case, and the illegitimate child in the other. That surprise was expressed both by members of the general public and members of the legal profession. Legal adoption is a creature of statute, as far as Scotland is concerned, and is a recent thing, so recent, in fact, that the legal profession in Scotland has not yet quite accommodated itself to the change in the law. It may be rather surprising for the Committee to learn that about a month ago I was asked to advise upon an offer in a case in court. The offer was to an adopted child who was seeking damages in respect of the death of an adoptive parent. I had to refresh my memory with regard to the Act that owes its being to the work of my hon. Friend the Member for Linlithgow (Mr. Mathers), and it was a clear inference from the Act that the adopted child had no claim in law to damages or solatium, and I had not the slightest hesitation in advising that the offer that had been made be at once accepted, before the other side discovered that they were making an offer where there was no real claim in law. This Clause, as far as the adopted child is concerned, must be a matter of very great satisfaction to my hon. Friend the Member for Linlithgow. It carries a stage further the work that he did, but it leaves the matter of the rights of succession of an adopted child with regard to the estate of adoptive parents, and vice versa, to be dealt with in future legislation and one may hope that that stage will be reached quite soon. Bit by bit we are assimilating the position of the adopted child to that of the child born in lawful marriage.

I think that before we leave this Clause it is right and proper that we should pay a tribute to the members of the Faculty of Advocates of a generation ago, who fought hard for rights for the illegitimate child. That was not a popular fight in view of the judicial opinion held at that time. The fight at one stage was successful up to a point. In 1886 a decision was obtained from the Second Division of the Court of Session in virtue of which an illegitimate child was held liable to support the mother. Hitherto, there had been only an obligation on the part of the parent to support the illegitimate child. But that victory did not last very long. In consequence of that 158 victory an effort was made to obtain from the court a decision that the mother of an illegitimate child had a right to damages and solatium in respect of the death of her illegitimate son who had been supporting her, and that fight was carried to the House of Lords. The decision in the House of Lords in 1890 was very strong and in no mild terms at all. Scotland was told very emphatically the legal position of illegitimate children, according to the law of Scotland. The harshness and the severity of the common law were declared very clearly. Illegitimate children were described as bastards and the bastard was, at common law, a filius nullius, the son or the daughter of nobody. While it was said that a bastard—using that term again—had a mother but not a father, yet in law he had no rights at all in, relation to the parents. It was said, emphatically, that it was the purpose of the law to discourage the illigitimate child altogether.

The harshness of that decision was apparent to the outside world. In this branch of the law we owe a great deal to the humanising influence of the Workmen's Compensation Act. The Committee will recall that the first Act of 1897 gave, when a workman died as the result of an accident arising out of and in the course of his employment, a right to workmen's compensation, as far as Scotland was concerned, to those persons who, at common law, had a right to sue for damages for solatium, in respect of the death of that workman. The law was again tested in 1899 on that point, and a case was brought in Dundee, where a worker in a mill there died and left an illegitimate child. It was sought to recover workmen's compensation for the illegitimate child in respect of the death of the mother who had been supporting the child. The case came on appeal to Edinburgh and the Court of Session again was peremptory in refusing the claim, Lord Trayner used exactly the words which I used during the Second Reading, in giving his judgment. He said that there was no reciprocal right of support between the mother and the child. In the House of Lords in 1890, the decision of the Court of Session in the 1886 case had been expressly disapproved and, accordingly, it could no longer be said that the illegitimate child was under an obligation to support the mother.

159 During the discussion in the workmen's compensation case in the Court of Session in 1899, there was evidence of very considerable research into the law of Scotland. The court was informed of a decision away back in 1542, where, under the old law of Scotland, dealing with an action for assythment, an illegitimate child had been found entitled to damages. This showed clearly that, in the course of years, the position of the illegitimate child had deteriorated under our Scots law. It was in the working of the workmen's compensation law that the need for a change was felt. When the new Act was passed in 1906, the right to workmen's compensation was given to the dependants of the deceased workmen, and the right of an illegitimate child was specifically recognised. Surprise, as I have said, has been expressed by members of the Faculty of Advocates that there are no reciprocal rights in this Bill in the case of illegitimate children and the parents. The committee of the Faculty of Advocates, which first investigated this question, reported in favour of giving reciprocal rights in the case of the illegitimate child. I was so informed on Saturday in Scotland. The recommendations appear to have gone to other quarters and were never returned to the committee which drafted the Bill in its original form. For that reason there was surprise that changes had been made elsewhere—I do not know by whom or in what circumstances or for what reason—but the first intimation received by those to whom I spoke, was from the report of the Second Reading Debate in this House.

There is another reason for regretting that there is no reciprocal right for damages in the case of the illegitimate child. It is that there has been created, as the result of the Marriage (Scotland) Act which the House passed last year a new class of illegitimate children. I think I am right in describing these as statutory illegitimate children. It is in consequence of the statute that they are illegitimate. The mother may not have the child declared legitimate. That right to declare a child legitimate was a very great benefit during the last war, and as the days go on during the present war, the taking away of that right from the woman to whom a soldier who has died for his country, would have been, married had he lived, may well become 160 more and more marked and serious. In the case of the adopted child, there is no tie of relationship at all between the child and the adoptive parent, but in the case of the illegitimate child there is a very strong tie—a tie of nature—and the affection which the mother has for that child may be all the greater and all the stronger because of the obloquy which she has to bear in the eyes of the world. The child is her solace. But under This amending Act, she is denied the right to damages and solatium when that child dies, and though in the days to come she might have been supported by that child, the courts in Scotland, even after this Act is passed, will refuse to the mother of such a child damages and solatium, just as the House of Lords declared in the year 1890. Regret has been expressed in Scotland that this Bill does not afford to a sister a right to damages and solatium in the event of the death of the brother who has been supporting her. We have in other branches of the law recognition of that attachment between brother and sister. Where a sister is acting as housekeeper to the brother, the brother gets relief to a certain extent, in respect of Income Tax. Young solicitors beginning practice are appalled to find that in actual practice such a woman—a sister—who has been acting as housekeeper to a brother has not that right to damages and solatium.

We have other influences at work—influences that are humanising and taking away the harshness of the common law. We find that in connection with allowances to a soldier. I have to bear witness to the very powerful assistance that I have received in this matter from my hon. Friend the Member for Gorbals (Mr. Buchanan). His knowledge of the life of the working-people of our country has been very effective in procuring changes with regard to these allowances. As a result of the social legislation dealing with national health insurance, unemployment assurance and kindred topics influences are being brought to bear on this branch of the law, and I hope that it will not be long before a further extension of the law is made, that these new Tights which are being conferred to a certain extent in Clause 2, will be yet further widened, for the benefit of those who stand in need, and that there will be a further recognition in this way of the work that has been done since the eighties of the last century.