ILLEGITIMACY

HC Deb 16 July 1968 vol 768 cc1384-94

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

10.3 p.m.

Miss Joan Lestor (Eton and Slough)

I welcome this opportunity to draw to the attention of the House the problem of illegitimacy and the relationship of the illegitimate child and the law.

This is Human Rights Year and it is worthy of note that Article 25 (2) of the Declaration of Human Rights specifically mentions this question and states: That this Article provides that, within the Declaration, motherhood and childhood are entitled to special care and assistance and that all children, born in and out of wedlock, shall enjoy the same social protections. It is not my intention tonight, because of the shortness of time, to go in great detail into the social difficulties facing the woman who has a child out of wedlock. However, I would not want it to be thought, because I am not mentioning this subject at length, that these are not matters that we should be considering. It is, nevertheless, true that in Britain today we do not. in the application of most of our welfare and social services, indulge in any discrimination. Discrimination and difficulties occur in the use which people make of the services at their disposal, but in political and educational terms, there is no discrimination against those who are born out of wedlock. But many in this position feel that they are not socially acceptable. Although society does not generally act with that attitude, the use of the word "illegitimate" and particularly the use of the word "bastard", which is used as a term of abuse, have hurtful connotations to such people.

But although there may be no discrimination in social, political or educational terms towards the natural child, the legal position of such a child is far more serious and he suffers from grave inequality before the law, especially the law of inheritance and intestacy.

Last September, it was stated in the Modern Law Review that the most outstanding examples of legal discrimination against innocent people in our islands were to be found in examples affecting children born out of wedlock. Human rights are not related to numbers, but we are here discussing a fairly sizeable group of people, roughly 7 per cent. of all live births. For example, in 1965, out of a total of 997,000 births in the United Kingdom, 73,000 were out of wedlock. The important legal consideration is that 30 per cent. to 40 per cent. of these children were born to stable unions. There must be a distinction between those born to stable unions and those born to unstable unions or casual relationships.

One has to look to history to discover why we have different laws and different regulations for inheritance.

Mr. Speaker

Order. I assure the hon. Lady that I am in utter sympathy with the case she is pleading, but on the Adjournment she may not advocate a change in the law. She may ask for a change in regulations and she may ask for an inquiry into the problems of illegitimate children, but she may not ask for a change in the law.

Miss Lestor

I will bear that in mind, Mr. Speaker. History shows why children born out of wedlock are treated differently for inheritance purposes from children born in wedlock, but in 1968, when we have different views about the actions of others and about who should suffer and who should not suffer because of the actions of others, we ought to be able to free ourselves from prejudice and consider the situation more objectively and less emotionally.

In 1966, the Committee on the Law of Succession reported about illegitimate persons. The Report was welcomed by many people, including the Law Reform Society, and was warmly welcomed by the Government spokesman in another place. Very little investigation has followed and there has been very little inquiry into the recommendations of that Report which urged that the Government should try to establish whether the present law was applicable to present-day society, or whether a change was possible.

It came quite clearly from the Report that a natural child is a second-class citizen as regards inheritance. For example, if the father of such a child dies without making a will the child cannot claim and receives nothing, even if he was living with and supported by his father, that is, if he was one of the children to whom I referred who are the result of a long-standing and stable relationship. We learned from the Report that if an unmarried mother dies without leaving a will her illegitimate child can inherit only if she has no legitimate child. Under the Inheritance (Family Provision) Act, 1938, there is more inequality. Legitimate dependent children can have provision made for them by a court if the parents have willed their money away from them by some means judged to be either not in their interests or to have been done perhaps under strain, stress or emotional difficulty. The children can have the will changed in their favour, but this does not apply to the child born out of wedlock.

Bearing in mind the reception given to the recommendations in the Report, and that from time to time suggestions have been made that an inquiry should be held by the Government into the whole question of legitimacy and illegitimacy laws, I ask my hon. Friend to comment on what is the likely future situation. It would not be very difficult to correct the situation now. In 1959 the then hon. Member for Dagenham (Mr. Parker) introduced certain reforms. The thought was expressed then that although they were a step in the right direction they by no means went far enough to regularise the situation I have described.

Another aspect which I ask my hon. Friend to consider is the whole question of the claim of unmarried mothers against the father of their child, and what I shall say now applies also to the many other maintenance and affiliation orders. The unmarried mother, like others, often faces great difficulty in obtaining the amount due to her through the courts or allotted to her by the father. It is about time we dealt with such orders in a far more definite and more workable way through the same channels as, or something similar to, the family allowance method of payment. If it were done in this way it would be possible to recover the money through the Income Tax or National Insurance of the father against whom the order has been made.

I am very worried and concerned about the number of women in this position who have a court order awarded to them in respect of their child and very often cannot obtain the maintenance to which they are entitled. Where voluntary arrangements are made between parents they should be registered in the court so that they can be enforced through it and be recoverable by the mother where the father defaults although he has entered into a voluntary agreement.

Another point in connection with maintenance and financial orders, and another reason why we should look much more closely at the way mothers of such children are so often affected is that although social and welfare services are available to all mothers equally, whether or not they are married, the mother trying to bring up a child without a father faces greater financial and social difficulties because she starts at a tremendous disadvantage.

The mothers of a large number of children in the care of the local authority in some areas are trying to bring them up alone. Often the children are not in the care of the local authority because they were born out of wedlock but because the social circumstances of the mother, her home conditions and the difficulties of getting them looked after have put her in a difficult situation. Therefore, we should be saving, in terms not only of social suffering and emotional deprivation, both of mother and child, but of the financial commitments on local authorities if we could find ways of ensuring that mothers entitled to money from the father received it in a surer way. We must seek to offset, both financially and in other ways, the real difficulties which many mothers face as a result of social and financial problems.

Another aspect of this subject about which I had a Question down today and to which I received a reply from my right hon. Friend the Minister of Health concerns birth certificates. In this country, we have a system whereby one can have a short or long birth certificate. The idea was that we would remove the social stigma of illegitimacy by having a shortened version of the birth certificate which was available to all, whether a child was born in or out of wedlock. But the value of the shortened birth certificates lies in its increased use by all sections of society. Otherwise, one could easily argue that people with shortened birth certificates were born out of wedlock or had been adopted.

Although there is evidence from the figures which I have received that more people are using the shortened birth certificate, there is also evidence to suggest that the vast majority of people still go in for the long birth certificate unless they have particular reason for asking for the shortened version. In Scotland, a free copy of the shortened birth certificate is issued automatically and one pays for the long birth certificate if one wishes to have it. Perhaps we can encourage more people to take the short version. I should have liked us to consider whether we could do away with the long birth certificate altogether so that everyone had the same birth certificate and particulars of father, and so on, were entered perhaps in a register kept at the registrar's department. Perhaps we can use one of the ways which I have mentioned to encourage people to use the same type of certificates and thus remove this stigma. Many people born out of wedlock feel that the shortened birth certificate identifies them. Whether it does or not is another matter.

We should try to move towards a situation in which we cease to use the words "illegitimate" and "bastard" about children born out of wedlock. They are terms, particularly "bastard", which have abusive connotations. When used in legal documents and in legal jargon, they only encourage the stigma which many people feel they have.

Can my hon. Friend give us any hope that the rights of fathers in respect of children born out of wedlock will be reviewed? The father of a child to whose mother he is not married does not have adoption rights, although he may be consulted about the matter. The more rights fathers have in respect of children for whom they are physically responsible, the more likely we are to encourage them to accept responsibility for them, whether the relationship is stable or not.

Perhaps the suggestions which I have made could be considered in relation to the Russell Report and to what we know about the difficulties encountered by children born out of wedlock, and particularly by their mothers. It seems to me that changes of this sort could be considered, and are within our ken, within the next Session or so.

Having seen the working of the situation and that there is discrimination against these children, it seems to me that if we do not take the necessary action to try to reinstate them in equality—

Mr. Speaker

Order. I am more sympathetic than the hon. Lady can imagine to the points that she is trying to put, but she canot ask for new laws on the Adjournment. She can ask for inquiry. That is her safe line.

Miss Lestor

I am sorry, Mr. Speaker. I meant to ask whether it would not be possible, therefore, to have an inquiry based on the recommendations of the Russell Report and on the knowledge which we now have of the difficulties encountered in respect of the existing law.

10.21 p.m.

The Under-Secretary of State for the Home Department (Mr. Elystan Morgan)

Illegitimacy is not a subject which is often discussed in the House and my hon. Friend the Member for Eton and Slough (Miss Lestor) deserves our gratitude for bringing about this brief opportunity tonight to consider some of the problems which affect, as she has stated, a not inconsiderable proportion of the population of Britain.

I speak under two constraints. The first is one of time. I am sure that the House will allow me to illustrate this by mentioning that the study prepared by the United Nations on discrimination against person born out of wedlock, to which my hon. Friend has referred, runs to over 200 packed pages and even then it attempts to cover fully only the legal aspects of the problem.

The second constraint, as you have suggested, Mr. Speaker, flows from the fact that the rules of order prevent me from discussing whether it would, or would not, be desirable to make changes relating to inheritance by the illegitimate, or to birth certificates, or to other aspects of the legal status and rights of illegitimate persons. Such changes would inevitably involve legislation, and we may not discuss on the Adjournment whether new legislation is needed, or, indeed, planned.

For these reasons I propose briefly first to make some general observations about the special problems experienced by the illegitimate, whether or not these problems may be regarded as the result of discrimination. It is imperative to understand the nature of these problems, because otherwise we may run the risk of proposing remedies which are inappropriate or impracticable.

The United Nations report, although concerned primarily with questions of legal status, identified at least four distinct kinds of discrimination affecting an illegitimate person. The first, and the most fundamental—since it underlies all the others—is what one might describe as factual discrimination, and is not discrimination in the usual sense at all. As the United Nations rapporteur put it: Some differences exist, will have to remain, and may not be improved upon because of the fundamental difference of the situations of the two categories of persons stemming from the fact that their parents were married in the one case and were not in the other. Or, as my right hon. and learned Friend the Lord Chancellor put it when this subject was debated last year in another place: … unless one abandons altogether the institution of marriage and the legitimate family, one cannot get away from the fact that some children are born to mothers who are not married to the fathers and who may never marry them".—[OFFICIAL REPORT, House of Lords, 22nd February, 1967; Vol. 280. c. 772.] However far we may attempt to go in the law, or in the administration of our social services, towards removing or mitigating the consequences of this fact, we cannot do so entirely.

The second type of discrimination is social. So long as illegitimacy is regarded by some as carrying a stigma, the illegitimate will suffer for this in ways not experienced by those born in wedlock. The law has a part to play in influencing public attitudes on such questions, but this is also very much a matter of social education, to bring about the realisation that all people deserve respect as human beings, irrespective of the accident of birth.

The third kind of discrimination is that relating to public rights and welfare services. The United Nations study showed that such discrimination is now very rare. As my hon. Friend has stated, in the United Kingdom social services are made available on the basis of need and illegitimacy is in itself irrelevant. Most of the problems faced by illegitimate children and their mothers are those faced by all fatherless families whether the lack of a father is due to death, desertion, divorce or any other cause. This applies in the Health Service, in the local authority services concerned with welfare, children and so on, and in the field of social security. The Supplementary Benefits Commission also gives special help to unmarried mothers, for instance in obtaining affiliation orders.

Fourthly, there is discrimination in the law. We need to tread carefully here, for legal distinctions which do no more than reflect the fact that some parents are married to each other, and others are not, are not in themselves discriminatory. The removal from the law of such distinctions does nothing to alter the facts, and does not necessarily reduce legal discrimination though it may influence public attitudes.

In this country during the past 40 years or so we have made substantial progress towards eliminating legal provisions which can be regarded as discriminating against the illegitimate. The year 1926 saw the introduction into our law of the concepts of legitimation by the subsequent marriage of the parents, and of legal adoption, and succeeding years have seen the extension of legitimation, the introduction of the short birth certificate, the right of the father of an illegitimate child to apply for custody —this is one of the rights vested in fathers—and other improvements in the law of succession, custody, maintenance and affiliation, culminating in the Maintenance Orders Act, 1968, a Private Bill introduced by the right hon. and learned Member for St. Marylebone (Mr. Hogg), which removed the previous statutory financial limitation on the amount of an affiliation order. It is now true to say that the one remaining legal disability of real substance affecting the illegitimate relates to succession on intestacy.

The House will be aware that the Report of the Russell Committee, published in July, 1966, recommended the elimination of practically all the disadvantages currently suffered by the illegitimate in respect of rights of inheritance on the intestacy of their parents and rights to claim from the estate of a deceased person under the Inheritance (Family Provision) Act, 1938. In February last year the Government announced their intention to accept this Report in general, but I am precluded tonight from adding to that statement. My hon. Friend should not assume of necessity that little or nothing has been done or that little or nothing will be done in future in this connection.

My hon. Friend referred to the question of short birth certificates. This afternoon she asked my right hon. Friend the Minister of Health a Question on this subject, and of course I cannot add to the Answer which he gave, particularly since it would involve discussion of possible future legislation. I undertake, however, to draw the attention of my right hon. Friend to the matters to which my hon. Friend has alluded in this connection, particularly to the habit of the traditionally thrifty Scots to issue a free short form of certificate in such cases.

It is not wholly correct to say that the vast majority of certificates are in the long form of birth certificate. In 1967, 700,000 of these were in the short form and 900,000 in the long form. There is, therefore, no question of the short form of certificate being in any way synonymous with illegitimacy.

Finally, I will say a few words on the study of discrimination against persons born out of wedlock, prepared by a special rapporteur under the auspices of the United Nations Sub-Commission, on Prevention of Discrimination and Protection of Minorities, and published last year. This document is essentially a study of the position of illegitimate persons as it now is under the laws of member nations. It contains expressions of view, which are those of the author alone. Attached to it is an annex suggesting certain general principles to preserve equality and non-discrimination in this field; these principles have been put forward for consideration by the Sub-Commission, which is an independent body of experts, and the whole report is now before the Human Rights Commission of the United Nations. The Commission has not so far been able to give detailed consideration to the report, which is one of a great number of reports which it hopes to consider at an appropriate time.

Meanwhile it can be said that the report shows very clearly that the problem of eliminating or alleviating legal provisions which can be regarded as dis- criminating against the illegitimate person is dealt with in a variety of different ways in different countries, and that these differences are often related to differences in the social, religious and legal background. Provisions which are suitable in one culture or legal system may not be equally appropriate in another. While one would not wish to claim that no more progress is possible in England and Wales, we have certainly made much progress in this field over the last forty years or more. The one remaining area where illegitimacy involves important legal disabilities is inheritance and, as I have already mentioned, the Government accept the need to remove these disabilities.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes to Eleven o'clock.