HC Deb 07 February 1964 vol 688 cc1600-12

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Batsford.]

4.10 p.m.

Mr. Leo Abse (Pontypool)

In the 10 years since 1953, the proportion of illegitimate births has risen from 4.8 per cent. to 6.4 per cent. and seems, unfortunately, likely to continue to rise. Some 50,000 illegitimate babies are now being born every year, which is about one in fifteen of all births. Even excluding those subsequently legitimised or adopted, there are probably more than 2 million illegitimate people in this country. The number increases annually.

There are probably as many illegitimate people in Britain as the total population of Wales. It is all the more surprising, therefore, that the Government announcement that an inquiry into the rights of so many illegitimate people throughout Britain was to take place should have been made almost furtively in the inner recesses of the Scottish Grand Committee considering the Succession (Scotland) Bill.

This esotery was gravely discourteous to those hon. Members representing English and Welsh constituencies. Knowing the many courtesies that the Joint Under-Secretary of State has extended to me, I would normally apologise to him for bringing him here so late on a Friday, but on this occasion he and the Attorney-General owe us an explanation as to why such an important inquiry was announced in such a curious manner.

The Secretary of State for Scotland indicated that the inquiry was prompted by a recognition that, during the last 12 years, views on illegitimacy and the place of the illegitimate child in society have been changing. That is so. Apart from a minority like the former Archbishop of Canterbury, Lord Fisher, who insists on dubbing these hapless little ones with the repugnant and pejorative term "bastards", majority opinion has emancipated itself from the noisy restrictive and self-acclaimed moralists who seem determined to extend moral condemnation of the unmarried mother on to the hapless child.

Precisely because the Government belatedly recognise the change in public views, it is difficult to understand why the inquiry should be so severely limited. Apparently it is to be confined to examining only a few and certainly not the most important of the difficulties. I know of no organisation or group of social workers dealing with unmarried mothers that is not dismayed that apparently the inquiry does not include an examination of the present working of the Affiliation Act.

As a consequence of that Act, the majesty of the law insists that, even if the little one was the result of the passing whim of a millionaire, the court must never order the father to pay more than 50s. a week for that child. At the moment, this sum is payable, unless there is a special direction, only until the child is 13. But, even if the father has to pay up to the age of 16, no further provision can be ordered if the child cannot maintain himself because of physical or mental disability. Even to recover the paltry sum usually ordered, the mother has to humiliate herself speedily in court, where the odour of criminality surrounds every stage of the proceedings.

If the bewildered young mother delays in rushing into court, then the child is fatherless for ever. If she does go to court, is granted a payment for the child and works to keep herself and the baby, the paltry award obtained from the father will be added to her earnings and severely taxed as unearned income.

If the father, proved to be the father by the court, dies, perhaps leaving a fortune, the maintenance ceases. Not a single penny of the father's estate will go to his legally determined offspring. If he dies leaving arrears of maintenance due for the upkeep of his child, even those are not recoverable from the estate.

The Joint Under-Secretary of State for Scotland said that the inquiry would be concerned with the moral and social implications of any extension of the rights of illegitimate children. If that is so, I cannot understand why the Solicitor-General told me in a written reply that there will he no examination of the workings of the affiliation Act, which places an illegitimate child at so great a disadvantage.

Is it not time that we inquired into the law which exists in this country under this Act and which enables the seducer of a married woman living with her husband to incur no legal obligation whatsoever to any child which is born out of the affair? Is it not time that we inquired as to whether it is in the interests of illegitimate children that in affiliation proceedings the accused man should be protected from self-incrimination, that he can refuse to give evidence himself and at the same time can procure witnesses to attack the credit of the mother by alleging that any one of them is the father, and that none of those witnesses runs any risk to himself, whereas in other countries, such as Sweden, all the witnesses might find themselves being condemned as the paying fathers?

Unless the terms of reference of this inquiry are extended, not only may many injustices not be inquired into, but the Committee itself will find itself in difficulties. Would the Under-Secretary inform the House whether the present terms of the inquiry will permit the Committee to consider the Inheritance (Family Previsions) Act, 1938, and subsequent Amendments to it? This Act placed some check on a husband or wife irresponsibly willing his estate away and as a result leaving a spouse or unmarried daughter completely destitute. At present, not only the father of an illegitimate child but even its own mother can will all to an institution for stray cats and leave the illegitimate offspring totally abandoned. Nothing at the moment impairs the freedom of testamentary disposition of a mother or father of an illegitimate child, because in the eyes of the law the illegitimate child on the death of the father or mother ceases to have any call upon its parents. Will a Committee dealing with the law of succession be able to consider this cruel omission in our law?

Since considering succession will mean considering who are those who could possibly succeed, can we be reassured that the Committee will be able to consider how formal but private recognition of paternity may be given by a father of an illegitimate child, perhaps at a registry office or the office of a clerk of magistrates, for this is a grave omission in the law which distinguishes it from the law of so many Continental countries where some procedure is available whereby recognition can be given to an illegitimate child other than through the court itself?

Again, is it not long overdue, as has been said again and again by my hon. Friend the Member for Dagenham (Mr. Parker), that we inquire as to whether it is any longer acceptable in this country that an illegitimate child of a British mother born abroad, say in Scandinavia or Switzerland, is not only fatherless, but Stateless? Yet again, should we not ask whether it is not time in the interests of the child that there should be an inquiry into the present situation where a mother seeking to enforce or vary an affiliation order may find herself having to do so in open court before the Press and before the public?

I am aware that it can be said that there has been piecemeal legislation in the past which has dealt with certain matters and that we can go on in this rather sluggish way, but that is not satisfactory. There is a law which reads: Children born out of wedlock shall enjoy the same rights as children born in lawful wedlock. No person shall be allowed to harm or discriminate against children born out of wedlock. That is now the modern law of Red China, not that of twentieth-century Britain. While that law was being enacted in Communist China, the leaders of the Established Church here successfully sabotaged my efforts so to amend the divorce laws that some 200,000 illegitimate children would be freed from the legal disabilities about which we are now expressing our concern. I believe that public opinion has now moved in such a way that it is ripe and ready for radical changes. I believe that unless a committee has terms of reference which can enable it to deal with the wide and many disabilities which these children already suffer, that public opinion will feel that the issue is being shelved.

I do not think that this nation any longer wants to carry forward the Victorian view that the sins of the mothers must be visited on the children. If the reply of the Under-Secretary indicates that no serious attempt is to be made to inquire how we can amend the law to stretch out a hand to those 2 million of our fellow-countrymen who are second-class citizens through no fault of their own, then our boast that it is the tolerance and compassion in forming our laws which distinguishes us from godless totalitarian lands will regrettably, but certainly, sound singularly hollow.

4.21 p.m.

The Joint Under-Secretary of State for the Home Department (Mr. C. M. Woodhouse)

The hon. Member has introduced this subject with all the sincerity and humanity which the House is accustomed to expect from him, and I congratulate him upon his success in bringing, to so brief a speech, all the points that he had tabulated in the Motion which he wished to move today and which, to my regret as well as his, the House did not reach.

As a lawyer as well as a humanitarian, he will not regard it as pure pedantry on my part if I explain that some of his points fall outside my responsibility because they arise not simply from legitimacy but, in some cases, from fatherlessness—from the absence of a father, whether or not the child is illegitimate. Such problems as those arising from fatherlessness are nonetheless real and they are certainly not irrelevant to this debate. We discussed them at some length in the Second Reading of the Family Allowance and National Insurance Bill.

I shall deal fully with the points that he raised, but I will stress, in order that there should be no misunderstanding—I know there is none on his part, but there may possibly be in the reporting of the debate—the distinction between the problems of the legitimate child and the problems of the fatherless child. I am glad to have this opportunity of placing on record the fact that a great deal has been done and is being done to remove, so far as it lies with Parliament to remove, the undeserved disabilities which once fell on the illegitimate child.

During the past forty years legislation has progressively narrowed the areas of illegitimacy as a legal concept and has progressively improved the legal position of those still left within its scope. The Legitimacy Act, 1926, introduced into English law the conception of legitimation by subsequent marriage, and also improved the position of the child who remained illegitimate by enabling him to succeed on his mother's intestacy if she had no lawful issue.

Another Act passed in 1926, the Adoption Act, enabled adoptions to be put on a legal footing, paving the way for many children—most of them illegitimate—to be given not only the security of a normal home life but a new status in the eyes of the law. Adoption law has undergone several improvements, and was consolidated in the Adoption Act, 1958. The Legitimacy Act, 1959, made further notable changes. It extended to many more children the benefit of legitimation by removing the requirements in the 1926 Act that parents must have been free to marry at the time of the child's birth. It conferred legitimacy on the children of void marriages, where the parents reasonably believed the marriage to be valid. It enabled the father of an illegitimate child to apply to a court for the custody of a child and empowered the court to grant it if that arrangement was for the child's welfare. It enabled a woman who was unmarried at the birth of her illegitimate child to apply for an affiliation order even though she had since married another man.

There were other improvements in the position of the illegitimate child in the Matrimonial Proceedings (Children) Act, 1958, the Matrimonial Proceedings (Magistrate Courts) Act, 1960, and the Birth and Deaths Registration Act, 1947, which I need not go into detail. Perhaps I might also touch, in dealing with the present prospective state of the law, on the point raised by the hon. Member on behalf of his hon. Friend the Member for Dagenham (Mr. Parker) about certain nationality problems and problems of statelessness raised in the case of illegitimate children. The hon. Member for Dagenham, as we know, has the intention of introducing a Private Members' Bill to deal with this problem and I am sure he would acknowledge that my Department has been helping to ensure that when this Bill is presented to the House it will be legally watertight.

A great deal has been done to reduce the circumstances in which illegitimacy may give rise to legal disabilities, and the few remaining legal disabilities—I stress that it is a fairly narrow area now—concern the right to inherit. This is where we come to the question of the inquiry to which the hon. Gentleman referred. This is being appointed by my noble Friend the Lord Chancellor and my right hon. Friend the Secretary of State for Scotland acting jointly. I should like to assure the hon. Gentleman that there was no intention whatever of discourtesy in the method of announcing it. The point which needed inquiry arose in the consideration in the Scottish Standing Committee of the Succession (Scotland) Bill, and it was naturally there that it was first discussed.

It was announced by the Secretary of State on 26th November while the principle of the Bill was being considered, but the terms of reference were announced in the House in reply to a Question by the hon. Member for Glasgow, Craigton (Mr. Milian) on 16th December. This, I think, entailed no discourtesy to the House. The terms of reference were as follows: To consider whether any alterations are desirable in the law of succession in England and Wales and in Scotland in relation to illegitimate persons. The law relating to succession of property is, as I have said, now the main field—indeed, the only major field—in which illegitimate persons as such are still subject to legal disabilities. As my hon. and learned Friend the Solicitor-General told the hon. Gentleman in reply to a Question, this inquiry would not be concerned with the workings of the Affiliation Proceedings Act, 1957. I shall explain why in a moment. I understand from the Lord Chancellor's Department that the other Act to which he referred, the Inheritance (Family Provision) Act, 1938, would be deemed to come within the terms of reference of the proposed inquiry so far as questions of the law of succession are entailed.

The hon. Gentleman has made it clear that his concern is not only with the disabilities attaching to the legal status of illegitimacy but also with the plight of the child, whether legitimate or illegitimate, who is separated from his parents. There is an important distinction here which will underlie a good deal of what I have to say because there are obviously many fatherless children who are not illegitimate, and there are at least some illegitimate children who are not fatherless.

The difficulties, as I say, may arise because the two parents cannot get married, generally because of a previous marriages, who are nevertheless living together as a family in good financial circumstances and the child is not, therefore, denied the benefits of a home. But there can be difficulties in connection with the succession of such a child to property, and this is the problem with which the Committee will be concerned.

There are a few other marginal disabilities connected with, for instance, the succession to titles, but I do not think that this is likely to occupy much of the Committee's time and, indeed, there seems to be a general trend of opinion now to the effect that being debarred from succession to a title is not necessarily in itself a disability. But with regard to the matters in which the illegitimate child may suffer hardship, some of the suggestions which the hon. Gentleman has made, which I take from the terms of his Motion, would put this legislative body in the difficulty that it would be asked to put an illegitimate child in a more advantageous position than a legitimate child.

Mr. Abse

Is it not the fact that in the case of a legitimate fatherless child it is possible to go to the High Court and obtain a maintenance order in respect of that child? But that is not possible with the illegitimate child. To suggest that there is parity between them is not correct in this respect, as in many others.

Mr. Woodhouse

I agree that there are such difficulties, and these are the questions with which the Committee will deal, but I think that if the hon. Gentleman allows me to pursue the points in order it will be more convenient because it will enable me to cover the ground in the rather limited time that I have available to the best advantage of us both.

The hon. Gentleman's first suggestion was that the right of maintenance under the Act should be vested in the child. If the intention of this proposal is to avoid the difficulty that may arise when the mother is unable to establish paternity, or unwilling to bring proceedings, a change in the law would be ineffective. A defendant would be liable to pay maintenance only if paternity were established, and that is essential to the enforcement of any right that may be vested in the child. Proceedings to enforce such a right would have to be taken by somebody on behalf of the child, and it is difficult to conceive how such proceedings could be taken by anyone other than the mother, because extemely difficult questions of evidence would arise, no other person being in a position to give the kind of evidence which would be necessary to establish paternity. Even if the mother were bringing proceedings on behalf of the child, that difficulty could still arise.

The hon. Gentleman's second proposal concerns the level of the maximum weekly payment. He wishes to raise it from the present level of 50s. I see his point about the possibility of the father of an illegitimate child being a millionaire, but again it would not be right in law—after all, even the father of a legitimate child may be a millionaire—to put the illegitimate child in a more advantageous position than the legitimate child.

Mr. Abse

The hon. Gentleman does not understand the position. In the case of the legitimate child, if the father is a millionaire a claim will be made in the High Court. At the moment the law does not permit anyone to go to the High Court to make a claim for maintenance in respect of an illegitimate child.

Mr. Woodhouse

What we are dealing with is the maximum weekly payment under the existing Act. To alter it for the illegitimate child would be to put him in a more advantageous position than the legitimate child. I think that the hon. Gentleman is confusing, not only the problems of the legitimate and fatherless child, but also the problems of assistance from public funds and funds to be obtained by civil action.

The figure of 50s. which the hon. Gentleman wishes to see increased was fixed as recently as 1960, and I think that it is too soon to hold out any prospect of a further increase now. But in deciding how much to order a defendant to pay—and this I think touches the point made by the hon. Gentleman about the millionaire—a court must, and will, be guided by considerations of how much the putative father can afford. This consideration renders any increase in the maximum ineffective in precisely those cases which are the ones most likely to produce hardship, since any change of this kind will not be reflected necessarily in the defendant's financial position.

The hon. Gentleman's third proposal was to end the bar to proceedings twelve months after the birth of an illegitimate child. I am sorry to have to tell him that this would create real difficulties, because the object of the period of limitation, which is in some respects to the advantage of the mother, is to ensure that proceedings are brought as soon as possible while the evidence is still fresh. Not only is it to the mother's advantage, but it seems that it is also just, because it would be wrong to allow a considerable period to elapse during which a potential defendant might have other substantial responsibilities and after which the mother might bring proceedings in the hope that the court would order the payment of a more substantial sum than it would have done at the original date. If the putative father is in a poor financial position at the time of the child's birth, it is open to the claimant to ask for, and the court to award, the payment of a sum which can be increased at a later date if the father's circumstances change and a further application is made.

The fourth suggestion which the hon. Gentleman made concerned the enforcement of affiliation orders against the estate of a deceased putative father. This would introduce a very radical change in the general law. These orders, like all other maintenance orders made by magistrates, are enforceable only against living persons. They involve continual weekly payments and if they were to be enforceable against the estate—and this applies equally whether a child is legitimate or illegitimate—that would make it impossible for the estate to be wound up after the death of the father. The change, if it were made only in the case of illegitimate children—which I understand is the hon. Gentleman's suggestion—would have the effect of putting them in a more favourable position than the legitimate child.

The hon. Gentleman has also made a general plea for a review of the financial and other handicaps of fatherless children in general, although illegitimate children in particular. It is perfectly true that there are certain cases of fatherless children for whom provision is not made in the National Insurance Scheme. These include—although I do not have time today to go into the technical details of this—both some cases of illegitimate children and some cases of legitimate children. Thus this is not purely and simply a matter of the legal concept of legitimacy. It is, as I have said, of a technical character and one for which my right hon. Friend the Minister for Pensions and National Insurance rather than the Home Secretary is responsible; but I will draw my right hon. Friend's attention to the points which the hon. Member has made.

Without going into the details of this, I can tell the hon. Member that the mother or guardian of these children normally has the right to maintenance from the father or mother through the courts, but where maintenance is not obtainable or is inadequate and the mother is not able to carry the burden by her own efforts, National Insurance comes into play and will normally be payable. However, these are matters primarily for Departments other than the Home Office and time permits me only to comment on the position of the illegitimate child, strictly so defined.

I hope that I have made two things clear, for it is important to have this on the record. Firstly, there remain a few respects in which the illegitimate child is legally worse off than the legitimate child. These are now being examined. Secondly, wrong though it would be that the illegitimate child should suffer handicaps under the law compared with the legitimate child, it would also be wrong, even with the best motives—and I know that the hon. Gentleman's motives are the best ones—to seek to redress the handicaps by putting an illegitimate child in a better position under the law than a legitimate child.

The Question having been proposed after Four o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty minutes to Five o'clock.