§ Order for Second Reading read.
§ 1.4 p.m.
§ Mr. James White (Glasgow, Pollok)
I beg to move, That the Bill be now read a Second time.
When last I was fortunate enough to introduce a Private Member's Bill the House of Commons was packed to capacity. Great emotions were aroused, but fortunately on that particular day we won the vote. That Bill concerned the unborn child, Today, although the House is not packed, I believe that this subject is equally important, because it concerns the born child.
I do not intend to go through the Bill clause by clause. I intend to leave that to my hon. Friend the Member for Pontypool (Mr. Abse), who, as a lawyer, is more capable of doing so than I.
Although the birth rate has dropped dramatically, unfortunately the number of illegitimate births is rising. In Scotland, one in 10 children is born illegitimate. That means that an extra 6,000 illegitimate children are born in Scotland every year. I intend to say only a few words about the Bill. I am grateful to the hon. Member for Tynemouth (Mr. Trotter) for taking such a short time on his Bill and for enabling me to introduce my Bill.
I must begin by quoting clause 1, which states:Notwithstanding anything to the contrary, whether contained in any statutory order or rule of law, a child born out of wedlock shall have and enjoy rights, privileges and duties identical in all respects to those of other children.There is no special novelty in putting the Bill forward. Similar legislation has already been introduced in other countries, especially New Zealand. I think that we in the House of Commons must apply ourselves to this matter today. We must establish the difference in paternity laws between Scotland and England. Even if paternity of a child is established, and the full armoury is made available to ensure that periodic payment under an order is actually made to the child, it is not as yet deployed in Scotland. This happens in England, and I should like to see it carried out in Scotland as well.
808 With regard to the scandalous rules governing the guardianship of illegitimate children, the law in Scotland states that if the mother and father require a tutor they must go to an outside person and apply to the courts. Only if we accept the principle that a child born out of wedlock should be treated as all other children can we get rid of anomalies of the kind that I have described. Some hon. Members may take exception to some of the clauses in the Bill, but I and my sponsors guarantee that in Committee we shall be pleased to discuss them.
In the past 20 years there have been seven different Bills dealing with illegitimate children, and each did something to help them. Today I expect the House to have a grand slam and to abolish once and for all the dreadful title "illegitimate children".
The House may be interested to learn that I have had more correspondence on this subject than I have had with regard to the referendum. This is a silent lobby. Illegitimate people do not want to parade with placards or to make their case known, because they are ashamed. The House of Commons must do something about that.
Christ said:Suffer the little children to come unto me…for of such is the kingdom of God.I believe that the House of Commons can do nothing less, and I expect the House to give its full-hearted support to the Bill.
§ 1.9 p.m.
§ Mr. Leo Abse (Pontypool)
I am sure that the whole House is deeply grateful to my hon. Friend the Member for Glasgow, Pollok (Mr. White) for having used his good fortune in the Ballot, yet again, to pursue the interests of children. I am sure that his constituents will be proud that their Member has sought to bring in a Bill which, if the principles were accepted, would be historic, because it would mean that for the first time in our history we would be giving equality before the law to the illegitimate.
All, indeed, are equal before the law, except those who are deemed to be bastards. Blacks, women and Jews are by statute and commission specifically protected against discrimination. Contrary-wise, against those born out of wedlock, discrimination is enforced by law.
809 Although there are probably 3 million illegitimates alive in Britain today, 1½ million of whom have been born since 1945, no significant lobby exists in respect of them. My hon. Friend the Member for Pollok emphasised the silence of illegitimates. Unlike gay people, they do not come out. They remain too diffident to unite to break their chains and their very silence imposes special duties on the House.
Perhaps the wounds of illegitimates are much deeper than others fully appreciate. It is precisely because they feel the wounds so deeply that they have such reticence. Is it not our duty to seek to help and to be articulate when they are silent? They evidently have deep feelings which prevent them from expressing themselves in the fashionable way, in lobbies.
I do not doubt that they are probably the largest minority group in Britain. Despite contraception and abortion, their numbers are increasing each year. The birth rate is declining, but the illegitimacy rate is increasing and is now double that of 15 years ago. One child in 10 is born a bastard and there is not only a duty on Back Benchers but an enormous duty on the Government to make certain that those millions of people feel that nothing is being done that is an obstacle to the bringing into effect of a law that gives the illegitimate equal status.
Although many are born and many survive, many illegitimate children do not survive. The proportion of very young mothers is five times greater among illegitimates than among the legitimates, and the unmarried mother receives far less antenatal care than does the married mother. Stillbirths and deaths in the first year of life substantially reduce the number of illegitimate children.
If survival is achieved, many of the children will live in a poor social environment and in atypical family circumstances, lacking the stability of a constant father, and at greater risk than are legitimate children of developing difficulties in behaviour and learning because family relationships are disturbed or disrupted.
In the meantime, the economic and social status of the mother trying to keep the child nose-dives. Since many give up the unequal struggle, the proportion of 810 children who are taken into care is five times higher among illegitimates than among the legitimate. Not surprisingly, when children arrive at school and tests and assessments are used to compare abilities, it is revealed that the illegitimate are almost invariably at the bottom of the league table—whether in general knowledge, oral ability, creativity, perceptual development, reading attainment or arithmetical skills.
Since it is a fact that to be born illegitimate is to be born socially and educationally disadvantaged, the additional handicaps imposed upon bastards by the law provide an unseemly display of the courts kicking children when they are down.
The troubles of the illegitimate begin at the beginning. The law severely curtails the right of the newborn to be born with a certain and confident identity. If a mother seeks a paternity order in the courts, a special rule of evidence applies. Her evidence, however convincing, must be corroborated and those of us who have had the bitter experience of appearing for an unmarried mother often find that, if a putative father declines to give evidence and refuses to submit to cross-examination, the high standard of proof that is demanded—far more than applies in any issue affecting a legitimate child—means that the child remains in limbo—fatherless.
Those requirements are otiose. Naturally, evidence must be convincing to a court if it has to decide on paternity, but recent great advances in the reliability of blood tests have led to a very high degree of probability not only in establishing what we have known for years and what has been used frequently, the negative establishment that a man is not the father, but in establishing positive paternalism. That has removed the justification not for convincing evidence but for the old corroboration rule.
Apart from the rules of evidence, there are procedural rules which severely disadvantage the unmarried mother. Delay in making application for a paternity order can prove fatal. If the father is an unemployed young adolescent and the mother does not, within the prescribed time limit, enter into the humiliating experience of establishing in a court the paternity of her child, that child may be 811 reduced to being permanently legally fatherless. If a father absconds overseas and the mother does not learn of his return until after 12 months has passed, the father may be immune from any legal process.
Even if the mother obtains an order directing financial support for the child from the father, she can obtain an enforcement on any accumulated arrears of payment only in a court. That is unnecessary, and the court is open to the press and the public so that her predicament can be emblazoned abroad.
Far from assisting a child to have and to know his father, the law, with deliberation, conspires to break or attentuate the relationship. The father, who may have lived with the mother for years, has no way of establishing his paternity without the consent of the mother—whatever the consequences may be for the child. Nor is the consent of the father required in adoption proceedings.
It follows that a father's consent is certainly not needed to the marriage of his child during its minority. Legally, the father of an illegitimate child is a non-person. He has no inherent rights to guardianship, custody or access, even when a paternity order has been made against him.
While the concerned natural father has little opportunity of assuming his responsibilities, the bad father has ample opportunity for denial. The court has no power to protect a periodic payment for the child by making the father provide security, such as a charge upon his house.
This is a provision which those of us who have been involved in family law professionally have found is very useful in connection with legitimate children, but it is sad that it is denied to the illegitimate. No new order can be made to compel a father to help an illegitimate daughter who wishes to go to university, though he could be compelled to do so in the case of a legitimate child. Further, when the illegitimate child reaches the age of 18 a court has no power—unlike in the case of a legitimate child—to issue any new order.
The legal disadvantages of the illegitimate continue throughout their lifetime. If the father has custody of the child and falls on hard times, no claim for help 812 can be made upon the mother, however wealthy she may then be. If difficulties arise, perhaps because of warring parents, a legitimate child will inevitably become a ward of court, be placed under the care of a relative or next friend, whereas in the case of an illegitimate child no such order can be made.
No order can be made to require either or both parents to pay for the child's maintenance and education. If a grandfather, aunt, uncle or half-brother dies intestate, an illegitimate child, unlike a legitimate child, can have no share of the estate, no matter how close the relationship between the illegitimate child and the relative with whom he or she might have lived for many years.
A child may have been fathered by a man who enjoyed a life interest in what is termed an "entailed estate", a life interest which the original donor had declared should pass by succession to that father's heirs. Even though an adopted child would be able to benefit on the father's death, the illegitimate child is completely and utterly disinherited.
In law, because the claim to United Kingdom citizenship depends upon the father's citizenship, and because in law "father" means only the father of a legitimate child, a child born outside Britain to an unmarried British mother in, say, Switzerland, may have statelessness added to his burden of bastardy.
I am sure that my hon. Friend the Member for Fife, Central (Mr. Hamilton) will be directing his attention, if he intervenes, to one clause. Although I share some of his dislike for inherited titles, as long as we have them—and I am not suggesting that they should be perpetuated—illegitimates should be treated in the same way as legitimates, even though the other place may not be very enthusiastic about such an idea. Perhaps this aspect of the law reveals the hypocrisy of our attitude to legitimacy. I think that it is more richly illustrated in the laws relating to titles than in any other aspect of our law, although it affects only a very small minority.
Although it is notorious that many families of ancient lineage sprang from the caprices of wayward kings, and have the bar sinister emblazoned on their arms, no legitimate child may inherit a title—even a title founded by an illegitimate 813 bastard such as William the Conqueror, who indeed was well known as "William the Bastard". Titles are jealously guarded. Not even the child of a union that is subsequently regularised can succeed to any title. A child cannot be legitimised by the subsequent marriage of its parents to the extent of making the right to an inherited title valid.
I hope, Mr. Deputy Speaker, that you will not mind my mentioning that we have had distinguished Speakers who have had the bar sinister emblazoned on their coat of arms. Indeed, when we are welcomed into Mr. Speaker's House, as we sometimes are, we note that at least one distinguished Speaker is shown in the arms in the Speaker's House to have a bar sinister. Therefore, nobody is exempt from the possibility that illegitimacy can somewhere or other impinge upon him or her through their families or connections.
I regret, therefore, that although the Law Courts in the Strand may have been persuaded by legislators that in all matters affecting children the paramount consideration should be the long-term welfare of the child, these persuasions have yet to succeed in another court or in Buckingham Palace.
Let me state clearly that my hon. Friend the Member for Pollock and I, in bringing this Bill before the House, are deliberately seeking to undermine all the principles upon which our present illegitimacy laws stand. The House must understand that this is a most radical measure. We are challenging the affirmation that the sin of the parents must be visited upon the children, that the preservation of property rights is more important than the welfare of the child, and that the institution of marriage must be buttressed by outlawing children born out of wedlock. All these things the Bill, is clearly and unequivocally challenging in its first clause.
We are challenging these principles because they are totally out of alignment with what public opinion would want. The community at large undoubtedly accepts that the principles upon which our illegitimacy laws now stand are outmoded, outdated, and, indeed, in many respects evil.
Clause 1 states the principle, and the subsequent clauses are little more than 814 illustrative, trying to overcome the disadvantages which the House has patiently listened to me seeking to categorise. The list of disadvantages that I have delineated is certainly not exhaustive. As I do not wish to detain the House, I have mentioned only those disadvantages which are most explicit.
Clause 2 tries to deal with some of the problems of succession. Clause 4 tries to deal with the problems of maintenance, to which I have made some reference. Clause 5 deals with the problem of citizenship, which I have also mentioned.
These problems are in no way resolved for the illegitimate by the recent helpful statement on this question by my right hon. Friend the Home Secretary. That statement certainly helped legitimate children born outside the United Kingdom but was not extended to those born illegitimately outside the United Kingdom.
Clause 6 seeks to deal with the question of titles in a radical manner. Clause 7 is an attempt—though no doubt a clumsy one—to deal with the technical problems that family lawyers would understand could arise with the proposed abolition of the status of illegitimacy, since at present the existence of a marriage raises the presumption of a child's legitimacy.
Clause 7 seeks to prevent the marriage presumption, which is a valuable one, from being subverted by our abolition of the status of illegitimacy, so seeking to preserve the benefit of the marriage presumption in the form of a presumption of paternity.
I am keenly aware of the defects and blemishes of the Bill. All Back Benchers will understand that problem. The Bill must of necessity be rough-hewn, as it tries to deal with such an enormously complex issue.
Perhaps anticipating what may be said by my hon. and learned Friend the Parliamentary Secretary to the Law Officers' Department, I begin by describing some of the complexities that must be wrestled with once one begins to deal with the problem of illegitimacy in the radical way that I hope the House will believe to be necessary. I shall illustrate the problems by talking about the child conceived as a result of artificial insemination of the mother with sperm provided by a third-party donor.
815 As the law stands, such a child is illegitimate. It is immaterial that the mother's husband has consented to the insemination. The child's status in law is the same as that of the child conceived in adultery at which the husband had connived.
For legal purposes, paternity is essentially a question of genetic fact, so that it is the donor who is the legal father of an AID child. Therefore, unless special provision, which the Bill does not contain, is made by law on the abolition of the status of illegitimacy, the donor rather than the mother's husband would be the man who had the parental rights and duties in respect of the child. Therefore, the question arises whether the law should be framed so that in proper cases it gives effect to the social reality that the child is the offspring of the husband and wife rather than the genetic truth that he is the offspring of the wife and the donor.
The present law imposes severe hardships upon a husband and wife, who, finding that they have fertility problems, have acquired their child as a consequence of AID. At present the wilful making of a false statement to the registrar in order to procure the making of an erroneous entry in the register is an offence under the Perjury Act. Therefore, if the mother knows that the child has been conceived as the result of artificial insemination, she should not state that her husband is the father, with the consequence that the part of the register relating to the father would be left blank.
In practice, however, of course the mother and husband would rightly want the husband's name to appear in the register as the father. The fact of their marriage, together with the confidentiality of the artificial insemination operation, offers an irresistible temptation to a married couple not to disclose the operation. It is unrealistic to suppose that people will not almost always yield to this temptation.
Therefore, if such a Bill as this were passed it would be necessary to work out a policy, embodied within a clause or clauses, to ensure that, where a married woman has received AID treatment with her husband's consent, the husband rather than the donor should for all legal purposes be regarded as the father of the child conceived as a result.
816 I have deliberately brought to the attention of the House such a problem, which I think can be quickly grasped, in order to emphasise the enormous complexity of the issues when one makes a bold assault, such as my hon. Friend the Member for Pollok is making, upon the whole present base of our illegitimacy laws. There are innumerable issues of such a kind, all of which I am sure our experienced Parliamentary Secretary will be able to adumbrate.
All these facts and issues could be catalogued in an attempt to kill the Bill. The Parliamentary Secretary's approach could be that the Bill is too rough-hewn and raises so many issues of such complexity that it is inappropriate that it should proceed at all. I trust that neither he nor any other hon. Member will express that view.
I do not say this out of political opportunism, although everyone will do well to remember in an election year that, if the figures are as they appear to be, it is likely that each of us is today speaking on behalf of 2,000 or 3,000 of his own constituents. I do not believe that political opportunism would enter into consideration of such an issue. However, one must point out how significant the problem is. It would be sad if any action were taken by my hon. Friend on behalf of the Government to create a situation in which it could be said that this House was out of sympathy with a move radically to reform onerous and harsh illegitimacy laws.
Happily, the whole issue if illegitimacy is under review by the Law Commissioners. It has been under review for a long time. I grant that the Law Commissioners have many burdens, but perhaps they have been too slow in coming to the issue, and some might suggest that they have been too tardy in coming to a conclusion. I am aware that they have speeded up their inquiries. The fact that my hon. Friend the Member for Pollok has brought the Bill before the House has accelerated the Law Commissioners' consideration of the matter.
All of us would want to make certain that the Law Commissioners, the body set up by the Lord Chancellor to review our laws, came to their conclusions speedily so that a highly sophisticated Bill 817 could be available. Although it is improbable, I do not believe that it is impossible that that could be done even within the lifetime of this Parliament.
The sponsors of the Bill believe that the House should have an opportunity to give the Bill a Second Reading. I hope that all hon. Members will support that view, because, although we have tinkered on many occasions with the laws relating to illegitimacy, seeking each time to take away some of the disadvantages that the illegitimate have suffered, it has indeed been only a process of tinkering. I have been associated with some of those measures. Many of us felt that we should do something rather than nothing. Even though what we were doing was small, it was some contribution to relieving the difficulties.
The time has come for the Law Commissioners to be helped in their discussions. They need to be helped by our making clear that, although we recognise the complexities of the tasks, which the Parliamentary Secretary can be relied on to indicate, the House gives a clear and unequivocal direction affirming the principle in clause 1. If such a message went out from the House, the Law Commissioners would understand when considering the various options that hon. Members want not a timorous report but a genuinely radical report.
I hope that in the comments which my hon. and learned Friend the Parliamentary Secretary will make he will not say merely that this is a very worthy aim and that the Bill is no good. I hope that the Government will not take up an attitude which will inhibit the House from giving this Bill a Second Reading. If they do, it will be regarded as unforgivable by millions of our people who will not accept the sweet words that may come but will accept that the Bill will have been killed, as they see it.
I can hardly believe that a Government such as ours will do any such thing. This is a moment when Labour Members especially will be thinking of their forebears who founded our party. They will be thinking, perhaps, not of the founding fathers but of the founding bastards. They will be thinking of Keir Hardie. It is very appropriate that an hon. Member representing a Scottish constituency 818 should introduce a Bill relating to illegitimacy. It is an attempt at least to pay off a debt to the great founding Scots bastard, Keir Hardie. There are many others. We have the example of Ernie Bevin. No trade unionist knowing his contribution to the creation of the trade union movement can doubt that he was one of the architects of our movement. He, too, was illegitimate.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
Why is not an English hon. Member allowed to scotch this sort of effort?
§ Mr. Abse
There was another remarkable Scotsman who shaped our movement. I refer, of course, to Ramsay MacDonald. He, too, was illegitimate.
Let Government supporters remember that perhaps we have a special duty to make certain that we repay our debt. Despite the extraordinary difficulties or disadvantages which weighed upon them because of their illegitimacy, these men wanted to have a more equal society. They felt as children that they were outsiders, and that may have been part of the dynamic behind their drive to create a more equal society.
This is the international year of the child. The United Nations has made it so. This is the year in which the House and the Government can show that they intend to make their own contribution. I believe that there are no illegitimate children. There are only illegitimate parents. It is time that this House affirmed that and ensured that in the very near future all people, including bastards, were equal under the law.
§ 1.45 p.m.
§ Mr. Peter Hardy (Rother Valley)
I do not intend to make a long speech, but I wish to endorse the quite powerful arguments advanced by my hon. Friend the Member for Pontypool (Mr. Abse). He has offered the House very good reasons why the principles which are served by this Bill should be accepted and, it is to be hoped, enacted in the near future.
My purpose in rising is first to commend my hon. Friend the Member for 819 Glasgow, Pollok (Mr. White) for the Bill. He has done this House and society a great service in giving the House the opportunity to debate this subject. We are greatly indebted to him. It may be that the Bill will require substantial amendment and refinement. But that does not mean that the principles which my hon. Friend is seeking to serve in this Bill are to be disqualified, and I hope that they will not be by this Administration.
The Bill will be extremely useful. In the last few years we have seen a transformation of the law relating to children. We have the Children Act, and I served on the Committee which considered that legislation in 1975. We have the Adoption Act of 1976. This further step is a very logical one.
I am a trifle anxious about clause 6, which concerns itself with titles. I do not take as flamboyant an attitude to these matters as some of my hon. Friends do, but I am concerned that this provision could seek the perpetuation of those titles in our society which were not awarded originally for any worthy worthwhile activity. I am also concerned because it could be that, if the Bill were enacted in its present form, the illegitimate child would have an advantage over the adopted child. I have two adopted children, although I have no expectations of ever securing a title which I should want to pass to them. But it ought not to be the case that the adopted child of a titled person should be disqualified from inheriting that title if an illegitimate child of that same person were allowed to inherit it. I hope that that anomaly, which it would be if the Bill remained as it is drafted, will be removed if only to ensure that the titled person concerned will not at some time be subjected to the inordinate temptation to spurn conventional morality.
I hope that we can secure the change which will remove the statutory disadvantage which an illegitimate person faces in society. As my hon. Friend the Member for Pontypool reminded us, there are many other disadvantages in society which such children face. The child of the single parent is gravely disadvantaged in comparison with the child who is brought up in normal family circumstances. Often there is economic as well 820 as social deprivation. If we can remove some of the disadvantage which is placed on the child by statutory terminology, we shall serve society well and serve children especially.
We as a Parliament have approved the Children Act and the Adoption Act. Having done that, we should seek to ensure that the intentions served by the commendable initiative of my hon. Friend the Member for Pollok are properly effected as soon as possible.
§ 1.48 p.m.
§ Mr. William Hamilton (Fife, Central)
Lest anyone be under any misapprehension about where I stand on this matter, perhaps, in view of the fact that my wife died about 10 years ago, I ought now to recount a very painful and personal experience.
When I was courting her, I was a serving soldier and she was a serving nurse. In our duties at that time we were some hundreds of miles apart. At the full flood of our courtship she wrote me a letter telling me what she was. She thought that I might wind up our relationship. I wrote back by return of post to allay her anxieties, and subsequently I married her. But despite that, of course, she bore that to the end of her days. Anything that we can do in this House to prevent that happening the better.
I agree with the basic aims and principles of the Bill. I agree with my bon Friend the Member for Pontypool (Mr. Abse) that no child is illegitimate. They are all God's creation. As I say, if we can do anything legislatively or otherwise to put that into law, I shall be the first to accept it. The heartache, the embarrassment and even the fear caused by this vile discrimination over the years is outmoded, repulsive and an affront to every decent citizen of Britain.
It is true that in recent years a lot of disabilities flowing from the label of illegitimacy or bastardy have been removed. My own Government have a record for which they need not apologise. As my hon. Friend the Member for Pontypool said, the Law Commission is currently examining not only this aspect of the law but all aspects of family law. I am sure we would all agree with my hon. Friend that the law is highly complex, controversial and emotive. He knows that internationally, too, the legal status of 821 children as a whole is being dealt with through the Council of Europe convention on the legal status on children born out of wedlock.
Having read some of the provisional conclusions of the Law Commission, I am driven to conclude, however reluctantly, that these problems are too complex to be dealt with by a Private Member's Bill—certainly not at this stage of the life of this Parliament. The Bill, with the best of intentions, has little prospect of becoming law before the general election, even assuming that it got a Second Reading today and went to Committee. The problem is infinitely complex and controversial, far more so than the sponsors of the Bill would seem to suggest.
Speaking as a Scottish Member, I congratulate my hon. Friend the Member for Glasgow, Pollok (Mr. White) on introducing the Bill. It is good to ventilate these problems in the House to show that they are not forgotten and that we appreciate the depth of feeling associated with them. Not the least objection to the Bill, however, is that it presumes to deal with the law in these matters in Scotland as well as in England. My hon. Friend knows that the law in Scotland on these and related matters is different from that in England, in many ways fundamentally different. I am not expressing an opinion, but there may well be a separate legislative Assembly in Edinburgh within the foreseeable future. That Assembly would undoubtedly have the power and would want to exercise that power to deal with these problems in ways that would suit the Scots, Scotland and Scottish law.
The Scottish Law Commission is not studying illegitimacy as a subject in itself. It is examining all aspects of family law and succession. I have seen one of its early reports. It is also working on problems associated with the crime of incest, which has a bearing on the sexual relations between parents and illegitimate children. The Bill, if it applies to Scotland, seems untimely, if not unwise, for the reasons I have outlined.
§ Mr. Abse
Perhaps as the result of the initiative of my hon. Friend the Member for Glasgow, Pollok (Mr. White), the fact is that in the discussions—I do not believe I am giving away any confidence—and the further inquiries being made by 822 the Law Commission for England and Wales, the Scottish Law Commission is being brought in specifically on the issue of illegitimacy. I mention this because my hon. Friend the Member for Fife, Central (Mr. Hamilton) should know that, far from the Scottish Law Commissioners not becoming involved, they are becoming enmeshed in the discussions.
§ Mr. Hamilton
I am aware of these matters. For that reason, it is imperative that we should wait and see whether there is to be a Scottish Assembly. Its Members, representing Scotland and dealing with Scottish law, will want to deal with these matters according to Scottish custom and tradition. That is all I am saying. It ill becomes this House or this Parliament, at this juncture of Parliament, to seek the legislate on behalf of Scotland.
I should like to refer to one or two matters in so far as they relate to Scotland. The common law concept of an illegitimate child in Scotland was a debt incumbent on both parents which each was obliged to meet according to his or her means. That doctrine in Scotland has been greatly modified by statute over the years. The main disabilities suffered by illegitimate children in Scotland have also been eliminated, but legal disabilities still remain which would not necessarily be removed by the passing of this Bill.
There are some distinctive Scottish aspects of law which might not be dealt with in a United Kingdom Bill in Scotland. I want to put three points on record as an introduction. A mother, although unmarried, can bring proceedings for maintenance of an illegitimate child at any time until that child reaches the age of 16. The second point is that both father and mother are liable to maintain that illegitimate child, according to their means. With a legitimate child, on the other hand, the primary duty is on the father. As a result, it is possible in theory for the father of an illegitimate child in Scotland to obtain maintenance from the mother. The third point I want to emphasise is that the consent to marriage is not a requirement of Scottish law. There are other objections to which I want to refer relating to specific points in the Bill.
My hon. Friend the Member for Pontypool went through the Bill in a fairly 823 cursory manner. That is expected in a Second Reading speech. But there are strong arguments against the provision in clause 7 (2) that the presumption that a married couple are the parents of a child born to them may be rebutted if another man simply signs a statement that he is the father and submits that statement to the registrar. That seems to me an indefensible proposition. It is not made clear how the signer of that letter is to satisfy the registrar that he is the father. He simply signs a letter saying that he is. I mention that to show how loosely and carelessly the Bill is drafted.
Clause 2(2) would have a particular effect in Scotland, if not in England and Wales, which I should like to outline. At present no Scottish court has the power to order the taking of a blood test to establish parentage. To introduce this in the context of a Bill to deal with illegitimacy would inevitably create an anomaly in relation to the law governing parentage in general. In that law, illegitimacy is not the main issue—for example, in proceedings for maintenance or divorce or even in criminal proceedings for rape.
Clause 2(2) leaves it unclear what weight the court would be expected to attach to blood test evidence. Clause 2(1) provides that the rules of court in cases involving the establishment of a child's parentageshall be…similar in all respects to those applicable in matrimonial or consistorial proceedings.Those words seem contradicted by subsection (2), which introduces a new procedure inconsistent with the present rules.
I mention those specific instances of drafting to show that the Committee stage of a Bill such as this would be likely to be prolonged and controversial. That is no reason of itself why the Bill should not be given a Second Reading, but I am profoundly concerned about the impression being given by the sponsors of the Bill that this is a simple matter of writing down "No child shall now be regarded as illegitimate, irrespective of what any other law says." I am afraid—I say this regretfully—that it is not as simple as that.
Some subjects can be properly handled by Private Members' legislation. The Licensing (Amendment) Bill which 824 we have just considered was one such. But these sensitive, emotive and complex problems—I hope that I have made it clear that I profoundly agree with the intentions of the sponsors: no one would question for a moment their sincerity or motives—are better dealt with in a comprehensive Government Bill, leaning heavily on the advice, guidance and recommendations of the two Law Commissions which are now dealing with these matters, one in England and one in Scotland.
I hope that the reports of those Commissions will not be long delayed. If the Bill has done anything to expedite their completion, it will have served a useful purpose. I hope that whatever party comes to power after the next election will deal with this matter as a matter of urgency and will introduce a comprehensive Bill. I am assuming that the Scottish aspect will be dealt with if and when there is an Assembly.
Meanwhile, the whole field is so covered with mines that it had better be dealt with by the appropriate bodies, the respective Governments—whether by one in Westminster or by one in Westminster and one in Edinburgh. I hope that the Minister will be able to tell us something of the progress that the Law Commissions are making and when he thinks that their conclusions will be forthcoming.
§ 2.4 p.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
This is a vital subject. The welfare of children should concern us all. Yet, apart from the hon. and learned Member for Darwen (Mr. Fletcher-Cooke), on the Opposition Front Bench, not a member of any of the Opposition parties is present. Despite the difficulties of a Friday—of getting to constituencies and so on—it is supremely important to have expressions of opinion from all quarters of the House on a vital subject such as this.
My hon. Friend the Member for Glasgow, Pollok (Mr. White) has seized the initiative, as one would expect, to present a Bill with the laudable object of removing the legal disabilities of children born out of wedlock. I am sure that everyone will applaud that object—including hon. Members opposite, if they had been here.
825 I am afraid that I missed many of the important observations of my hon. Friend the Member for Pontypool (Mr. Abse), but I did hear the last part of his speech when he talked about the Labour Party and Keir Hardie and the importance of giving the Bill a Second Reading. I must join issue with him. It is doubtful, to say the least, whether a subject of this kind can be adequately dealt with in a Private Member's Bill. I know that in such Bills one seeks to cure difficulties and to overcome problems, even if only in the interim. But it is important to be practical, however much we may talk about our ideals and desires in the Labour Party to help people by reference to Keir Hardie and our predecessors.
A Bill to abolish the status of illegitimacy must give rise to all sorts of consequential issues. This Bill, despite its merits, cannot do so. Family law, particularly as it relates to illegitimacy, is complex. The Law Commission is now reviewing the law of illegitimacy. I am told that the studies are well advanced. A working paper has been prepared which I gather will be published in the next few weeks. That obviously must be the basis for considerable public discussion.
It is common ground that the status of illegitimacy should be abolished and that any legal disabilities suffered not only by the illegitimate child but by the father of such a child should be removed. I understand that such recommendations are likely to be made by the Law Commission. In that way, the objects which the promoters of the Bill heartily desire will be achieved.
It may be asked why we should delay, but we have waited years for legislation of this kind and it is surely better to await the consequences of the Law Commission report, which will be the product of the most detailed study, than to risk going ahead with a Bill which, I hope to show, is defective in certain respects.
My hon. Friend the Member for Pontypool will surely acknowledge that the Government have done a great deal to improve the position of illegitimate children. Under the Family Law Reform Act 1969, for instance, illegitimate children inherit on their father's intestacy. There is also the Council of Europe convention on the status of such children, which was 826 signed in 1975 and which will be ratified shortly. The fact that the Government are behind the Law Commission review which is taking place during the tenure of this Government is an indication of where the Government's sympathies lie.
I turn to the provisions in the Bill. Clause 1 is declaratory. It states:Notwithstanding anything to the contrary, whether contained in any statutory order or rule of law, a child born out of wedlock shall have and enjoy rights, privileges and duties identical in all respects to those of other children.The title of that clause is "Abolition of illegitimacy." Will the clause have the effect that its title suggests? Will it deal with all cases? I doubt it. I am certain that in some cases it will not. It is true that clause 4 might remove the disability to acquire United Kingdom citizenship. But nothing is said in the Bill about the requirement of a putative father to establish paternity.
To establish paternity so that citizenship can be established automatically for a child born abroad, safeguards are needed. Without such safeguards there might be abuse. Immigration rackets might develop. I suggest that my hon. Friend the Member for Pollok considers that matter. It is important.
One must remember that at present the illegitimate child can acquire United Kingdom citizenship through its mother. Clause 7(2) contains a rebuttal of the presumption that a man married to a woman at the date of conception, or, when the mother has been unmarried, until the date of the birth of the child, is the father of the child. Thus, the unsupported evidence of one man would deprive the child of his legitimacy. That is a serious matter, particularly when a child is born as a result of artificial insemination.
Let us examine clause 2(2). It gives power to a court to order blood tests to be taken to assist in determining parentage and provides that such tests should be used as evidence. This applies to both civil and criminal proceedings. But there is no provision for the person upon whom the test is made to give his consent. Already there is some provision in this respect in the Family Reform Act 1969.
There are a number of legal disabilities in England and Wales which are not dealt 827 with in the Bill and which, despite the general wording of clause 1, would cause great difficulties. I take as an example affiliation proceedings. They are subject to special procedural rules. How are they to be dealt with? Can an illegitimate child inherit on the intestacy of a grandparent, a brother, a sister or a more remote relative? Can he succeed in the case of an entailed estate? What about the rights of guardianship, custody and access, even where an affiliation order is made against the parent? What about the father's agreement to adoption or to marriage?
I mention these matters not out of a desire merely to argue and to raise difficulties. It can be said that some of these points can be dealt with in Committee. I accept that. But there are so many difficulties that, in my view, it sets at nought the general statement in clause 1—" Abolition of illegitimacy." I mention these matters to illustrate, however sympathetic one is and however much one desires to join wholeheartedly in the objects of the Bill, the vital necessity for detailed examination of the problems in all their aspects.
This matter cannot be dealt with satisfactorily in a short Private Member's Bill, however meritorious that Bill may be. In spite of the impassioned words of my hon. Friend the Member for Pontypool and his general remarks, surely he must recognise that we should be practical. Surely it is wiser, as I have urged and on grounds which I have described in detail, to await the report of the Law Commission.
I understand that amendments will be required to at least a dozen enactments. I understand that that is the view that the Law Commission will put forward. If that is so, how can this short Bill manage to deal with these matters? I understand that the report of the Law Commission will contain more than 50 recommendations. If the Law Commission, after the most detailed study of the matter, produces a paper on which there can be public discussion, and if those 50 recommendations are to be considered, how can my hon. Friend the Member for Pollok possibly suggest that this Bill can deal with the law as it stands and achieve the object that we all want contained in the title to clause 1?
§ Mr. Abse
If my hon. and learned Friend had done me the courtesy of listening to my speech rather than absenting himself, he would have known that I emphasised that I am inviting the House to affirm the principle contained in the first clause so that we can help the Law Commissioners in their various options. I have made plain that it is a question not only of words and sympathy but that the House wants the total abolition of the status of illegitimacy.
§ Mr. Weitzman
I apologise for not having been in the Chamber when my hon. Friend delivered words to that effect. But there is a great deal of difference between giving a Second Reading to a Bill, sending it to a Committee and having it examined in detail, and the expression of opinion which shows that the House is wholly in favour of the Law Commission's objective of attempting to abolish illegitimacy.
Surely it is better that the public, the Law Commission and everybody else should know that no one in the House dissents from the view that we should do everything that we can to abolish illegitimacy. We shall not achieve that through a Bill which is defective in many ways and which does not deal adequately and in detail with the situation. That should be left to a working party report. Then, on the basis of public discussion, the Government should promote a Bill which sets out and adopts in detail the recommendations of that working party.
I put forward that view in the hope that my hon. Friend will accept it as a sincere and genuine attempt to deal with this problem. I congratulate him on one point—on providing the House with an opportunity to discuss this matter and to show what my hon. Friend the Member for Pontypool wanted, which was that the House is in total agreement with the desire to abolish illegitimacy. I suggest to him, with respect, that, in the light of what I have said, he should withdraw the Bill.
§ 2.21 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
The growing number of illegitimate persons in this country suffer from one great disability. It is all the greater because it is not their fault. There is nothing they can do to remedy this handicap. There has been a universal expression of desire 829 to see that they are not thereby disadvantaged more than circumstances compel. At one stage I thought, although I now think that I was wrong, that I detected in the eloquent speech of the hon. Member for Pontypool (Mr. Abse) a desire that they should have the benefit of what I think is called reverse discrimination. But having listened to his entire speech I think that I was wrong.
The classic case for reverse discrimination comes in the great monologue of Edmund in "King Lear" when he is contrasting his position as illegitimate with the advantages of legitimacy possessed by his rather priggish half-brother Edgar. He saidWhy brand they usWith base? with baseness? bastardy? base, base?Who, in the lusty stealth of nature, takeMore composition and fierce quality,Than doth, within a dull, stale, tired bed,Go to the creating a whole tribe of fops,Got 'tween asleep and wake?—Well, then,Legitimate Edgar, I must have your land ".That is perhaps the classic case of reverse discrimination, but I do not think that the hon. Member went so far as to say that the illegitimate were in any way superior to the legitimate. The disadvantages and, indeed, the horrors that illegitimate persons used to suffer, and still do to a great extent, reached a pitch in the treatment of Ramsay MacDonald in the First World War. Anybody who has read Mr. Marquand's book on the life of Ramsay MacDonald which showed how he was attacked between 1916 and 1918 in the national press for being illegitimate must be ashamed at the conduct of that campaign.
The trouble is that we can all say things like that, but, as the last two hon. Members who have spoken have pointed out, it is extremely difficult to remedy the problem for this reason. So long as succession, whether to property, to position, or to nationality, depends upon the blood, then the uncertainty surrounding the provenance of so many illegitimate children makes it extremely difficult to treat them in the same way as the legitimate.
Of course, there is often uncertainty surrounding the provenance of the legitimate, and perhaps the struggles of the Duke of Monmouth and the battle of 830 Sedgemoor illustrate that. But where there is illegitimacy the uncertainties are liable to provoke litigation and worse in large measure if all we are going to do is, as I fear is sought to be done by clause 1, simply to say that illegitimate equals legitimate, and that is all one needs to know. That will not achieve the degree of certainy which succession by blood requires.
The hon. Member for Pontypool added yet a further difficulty, a difficulty from which past ages never suffered and one which adds a new and frightening dimension to this problem. It is artificial insemination by third paries. The hon. Member's solution for that did not much appeal to me. He said that one should, as it were, produce a fiction, that one should say that the blood was the blood of the husband when it obviously was not. I do not know whether that would be acceptable. So long as blood matters in our law, and I do not think that it ought to matter as much as it does, it seems that one must be consistent about this. The hon. Member's solution strikes me as inconsistent.
The uncertainties relating to illegitimacy—about who is the father and so on—were illustrated in the Act referred to by the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman)—the Family Law Reform Act 1969. It sought to give illegitimate children and the parents of illegitimate children the same rights as would be had if they were legitimate. It ran into very difficult times. Eventually a special provision had to be made that on the death of an illegitimate child who died intestate it was necessary to have a statutory presumption that he had not been survived by his father unless the contrary were positively proved. This presumption does not apply to legitimate children, but it was necessary to have that presumption because no estate of an illegitimate child would ever be wound up if inquiries had to be made of the far-reaching nature of those that so often have to be made about paternity. These would be so very difficult in the case of an illegitimate child who may himself have been of advanced years. Therefore, the special provision had to be put in if the estate of an illegitimate person who died intestate was not to be permanently held up from distribution.
831 That is one example where this House has already recognised that one simply cannot say that legitimate equals illegitimate. There are many others. I am sure that the Law Commissions for Scotland and for England will deal with this. My attitude, if I may speak for my hon. Friends, is that although we shall in no way obstruct the progress of this Bill—and unlike the hon. and learned Member for Hackney, North and Stoke Newington I do not think that the bringing forward of this Bill is in the least reprehensible, because it is a perfectly legitimate propaganda exercise—
§ Mr. Weitzman
I did not suggest that it was reprehensible to bring the Bill forward. I merely said that this was an area for which a Private Member's Bill was not advisable.
§ Mr. Fletcher-Cooke
I apologise. Perhaps I said the same thing in rather more violent language. I do not take that view. This is a perfectly legitimate area for a Private Member's Bill, and, furthermore, it is legitimate to put it forward in the form of what one might call a manifesto rather than a Bill, which is what has been done. This is a legitimate use of the vehicle, and I shall certainly not oppose its Second Reading. But I think that the promoters know, as we all know, that it will not get on to the statute book. It is an expression of collective will, and is none the worse for that.
§ 2.29 p.m.
§ Mr. Michael Brotherton (Louth)
I am one of the sponsors of the Bill. I believe that it is entirely right that the stigma should be removed from those who are born out of wedlock. The Bill begins with the statementto Remove the legal disabilities of children born out of wedlock.That is important for the people of this country.
I am the father of a happy family of four children, and have happily enjoyed married life for the past 11 years. It is intolerable that because a person has been conceived out of the nuptial bed he should be stigmatised as illegitimate or a bastard.
With permission, I shall read a letter to The Times dated 25 February 1918 by Mrs. Irving, the daughter-in-law of Sir Henry Irving, the great actor: 832Sir, Mr. Galsworthy, in his article in today's Times on ' The Nation's Young Lives,' strongly advocates the adoption of widows' or mothers' pensions, and the proper protection and care of unmarried girl mothers and their illegitimate children. His words are opportune. No amount of Welfare Centres can do anything radical to help the children of widows or those born out of wedlock, until the State has awakened to its grave responsibility for their welfare.The State should even today awaken to its great responsibility for the welfare of those born out of wedlock. It continues:I have, within the last two days, been present at a meeting of a committee of women Poor Law Guardians in one of our great provincial cities.By Jove, we have changed since then.They were engaged, no doubt unconsciously, in a game which for want of a better name, I must call girl-baiting, I saw a young expectant mother cruelly handled, and tortured with bitter words and threats; an ordeal which she will have had to endure at the hands of four different sets of officials by the time her baby is three weeks old. These guardians told her, in my presence, that they hoped she would suffer severely for her wrongdoing, that they considered that her own mother who had treated her kindly, had been too lenient, and that her sin was so great that she ought to be ashamed to be a cost to self-respecting ratepayers. They added that the man who was responsible for her condition was very good to have acknowledged his paternity, but expressed belief, nay, rather the hope, that he would take an early opportunity of getting out of his obligation. Meanwhile, a pale, trembling girl, within a month of her confinement, stood, like a hunted animal, in the presence of such judges.We pray constantly in our churches for ' all women labouring of child, sick persons, and young children, the fatherless, the widows, and all that are desolate and oppressed', and yet we continue this oppression of the desolate. Yours faithfully ".I trust that we are not doing that today. Therefore, I commened the Bill to the House.
§ 2.33 p.m.
§ The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)
It is difficult for me to follow the literary and dramatic renditions of the hon. Member for Louth (Mr. Brotherton) and of the hon. and learned Member for Darwen (Mr. Fletcher-Cooke). Their speeches were interesting, well presented and pertinent to the debate. I praise my hon. Friend the Member for Glasgow, Pollok (Mr. White) on introducing this measure. I also praise the speech of my hon. Friend the Member for Pontypool (Mr. Abse), who set out eloquently and 833 fairly the disabilities of those born through no fault of their own out of wedlock. I also compliment my hon. Friend the Member for Fife, Central (Mr. Hamilton) on his most moving speech. He has always shown tremendous concern for social reform and has contributed as much as anybody and more than most to achieving measures of social reform. His cautionary remarks about the Bill must be taken seriously. My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman), who is most respected for his legal knowledge, also pointed out many of the legal shortcomings and consequences if the Bill were passed today.
I should like to express at once the Government's broad sympathy with the aims and objects of the Bill. That is not a mere expression of words but a genuine and deep-felt sympathy with the sincerity and motives of those who have promoted the Bill. Although in recent years many of the antiquated and unreasonable disabilities imposed by the law on illegitimate children have been removed, some disabilities remain. I am not talking of social disabilities, as regrettably no Bill can solve those.
It is the Government's view, borne out by measures that we have introduced, and also the view of any reasonable and impartial person, that any of the remaining disabilities that can no longer be completely justified—and there are few that can—should in principle be abolished. There is in this country a growing distaste for all forms of arbitrary discrimination. Discrimination against an individual based on the circumstances of his birth is in most people's view not only outmoded but abhorrent, unjustified and totally unfair.
The sympathy of the Government is not merely a matter of unemotional and sympathetic statement. It is a matter of fact. There are many examples on the statute book of the removal of disabilities. There are also current initiatives by the Government both domestically and internationally. Hon. Member after hon. Member has referred to the Law Commission. The Law Commission is undertaking a comprehensive examination of family law. It is including in this an equally comprehensive review of illegitimacy. The Commission set up a working party in October 1976 to consider 834 the law on affiliation proceedings. I am happy to say that that has led to the preparation of the draft working paper to which my hon. and learned Friend the Member for Hackney, North and Stoke Newington referred. It is hoped to publish that within the next few weeks. That paper will comprise a deep, searching examination and analysis of the whole subject of illegitimacy and will put forward many provisional proposals.
In accordance with the Law Commission's usual and correct practice, that paper will be widely circulated and will be followed, when sufficient time has elapsed for the expression of views, by a report, incorporating, it is hoped, a draft Bill. The Law Commission's initiative has the full support of the Government.
My hon. Friend the Member for Pontypool knows that very soon the Law Commission is to hold a seminar at All Souls college. Indeed, I think that he has been invited to attend and take part in that seminar. Therefore, he will know that the Law Commission is treating this matter seriously and urgently and that it is anxious to have the maximum consultation and discussions on the impact of its proposals.
As my hon. Friends may know—indeed, my hon. and learned Friend the Member for Hackney, North and Stoke Newington referred to this matter—the United Kingdom has signed the Council of Europe convention on the legal status of children born out of wedlock. Its object is to establish that the legal status of children so born should be assimilated with the legal status of those born in wedlock and to provide a stepping stone for harmonising the laws of member States on this question.
I hope that it will be clear from what I have said that the Government are at one with my hon. Friends the Members for Pollok and for Pontypool in wanting to bring to and end the surviving inequalities, injustices and unfairnesses in this area. I hope that they will also accept that the Government's record in this sphere is good and honourable.
The disabilities, disadvantages and personality difficulties caused by illegitimacy have been outlined by several speakers in the debate. The hon. and learned Member for Darwen referred to them. Therefore, it is not necessary for me to dwell 835 on them. Equally, it would be a disservice to the House if I or anyone else were to give the impression that, however passionately we may want to get rid of the disabilities brought about by illegitimacy, one simple statement of that fact in a Bill could bring it about. It cannot. If we are to abolish all the legal distinctions between children born in wedlock and those born out of wedlock, a far more comprehensive measure than the Bill before us will have to be introduced. The Bill will need massive changes to achieve anything like the objectives which the promoters hope for it.
I think that it is my duty to indicate some of the general difficulties and objections inherent in the Bill. I shall illustrate some of those objections by reference to particular instances.
It is true that illegitimacy is an extremely difficult and complex area of the law. That is not just my view or the Government's view. That is the view of any lawyer who has examined the problem, and it is certainly the view of the Law Commission. That view will be made abundantly clear when the Law Commission's working paper is published.
The position of illegitimate children and their parents is material and impinges on other Acts which are already on the statute book. That is a hard fact, but it is true, as my hon. and learned Friend the Member for Hackney, North and Stoke Newington was right to point out. If we were to pass this measure, we should have to examine closely and minutely many other pieces of legislation already on the statute book to see what changes were required in those Acts. The Law Commission is supremely well qualified to undertake that work. As the House knows, the Law Commission has the assistance of legal experts, sociologists and, perhaps most important of all, people who have first-hand experience of the difficulties, unpleasantness and embarrassment to which illegitimacy gives rise. In other words, the widest possible consultations and discussions will have to take place before the full consequences of a measure attempting to deal with the inconsistencies and anomalies brought about by illegitimacy can be put on to the statute book.
Another objection is that, although I have said and repeat that the Government support the principle of the Bill, there are elements of controversy in almost every 836 aspect of the lay on illegitimacy. We need to consider most carefully all the consequences of abolishing the present distinction and to decide whether the principle of abolition should brook of no exceptions at all or whether there may be some circumstances in which abolition would produce an unjust result—a result which the promoters of the Bill and the House would not wish to bring about. That is very much a matter for discussion not only in the House but outside.
We need to know far more about the state of public opinion on what I might call the contentious or controversial aspects. We need to consult public opinion in order to help mould the legislation. We often pass Bills which we are told, when they reach the statute book, do not have the force of public opinion behind them. On that ground, the Law Commission's initiative is bound to be helpful fruitful and of great value.
The third objection that I have to put to the House is perhaps of a more technical nature, but it is, none the less, of great importance. It is plain that if we start with the proposition that the distinction between legitimacy and illegitimacy should be abolished, the law will need to be amended—and pretty dramatically. By that I mean not only specific provisions relating solely to illegitimate children but also, and equally important—I think that the sponsors must also understand this—provisions relating to legitimate children. In other words, the changes would have to deal not only with the disabilities of illegitimate children—the disabilities which have been outlined in speech after speech, and which all of us in the House agree ought to disappear—but also with the privileges—I use that word very loosely, but perhaps it is the only word which properly describes what I am trying to say—of the legitimate.
But it goes further even than that. One cannot deal with the position of children in isolation from the position of their parents. Changes in the law, if changes were to be made, would have to take account of the rights and duties of the fathers and mothers as well as merely seeking to change the position of children. This is not only a complex matter but also, obviously, a controversial matter. When one is attempting to change the status of parents in a situation in which there is probably a strained, difficult and 837 sensitive relationship between them anyway, the complexities can be immense, and they should not be underestimated by the House.
These, in general terms, are the objections which I seek to put to the House on behalf of the Government to too hasty legislation on this highly difficult subject. But I must give some particular examples to illustrate what I mean. Perhaps I may refer to the present position of the father of an illegitimate child. He has no automatic right of guardianship, of custody or of access. His agreement to the adoption of the child is not required. His consent to the marriage of the child where the child is under the age of 18 is not required. He cannot be registered as the father without the mother's consent. My hon. Friend the Member for Pontypool pointed out many such disabilities.
If the child is to be treated exactly as if he had been born in wedlock, which is a proposition which the Bill aims to achieve, it might follow that the father should have certain rights which he does not now possess—rights of custody, rights to give consent, and so on. Indeed, I took it that that is exactly what my hon. principle has far-reaching consequences principle has far reaching consequences. It certainly has consequences for the mother. The mother may not be at all happy that a father who was, perhaps, not in any way kind or compassionate to her would have rights of this sort. Admittedly, she would be able to ask for the court's intervention on her behalf, but one of the objects of the Bill is to prevent women from being put in that embarrassing position. Therefore, this sort of consequence of a massive change in the rights of the parents of illegitimate children has to be considered, and the Bill does nothing to make clear what those rights will be.
§ Mr. Abse
In his erosion of the Bill, I trust that my hon. and learned Friend is not resiling from the central principle that the legitimate and the illegitimate child should have the same rights. I am distressed by what he has just been saying. A mother in a guardianship dispute at present with a legitimate child may be very distressed about it, but the court protects her. Is my hon. and learned Friend in any way coming back from the position 838 that the paramount consideration in all these matters, well decided by the courts and, indeed, by the House in recent Acts, is the long-term welfare of the child? In order to make his point, why does he illustrate a position in which already, with legitimate children, all these problems arise? He is really attempting to justify discrimination in some way by saying that an unmarried mother could be put into difficulties which already a married mother is put into when it comes to questions of guardianship, for example, which he is citing.
§ Mr. Davidson
My hon. Friend is really being very unfair in suggesting that I am in any way trying to erode the Bill, or that I am less passionately concerned to get rid of the discriminations from which illegitimate children suffer than he is. He does not have a monopoly of concern in this matter and I am sure that other hon. Members feel as strongly about it as he does. However, I would be failing the House if I did not inform it of what the consequences of the Bill would be. Those happen to be the consequences. My hon. Friend cannot deny that they happen to be the consequences. He cannot deny that it happens to be a matter that could produce a controversial result. The House ought to know that, and these matters ought to be properly debated and the public ought to be given an opportunity to comment. That is all that I am saying.
Let me illustrate my point about some other possible areas of controversy. Clause 1 would have the effect, amongst others, of giving a child born out of wedlock the same rights on the intestacy of a relative as a child born in wedlock. That may well be right. Personally, I think that it is right. But it might possibly be thought to be contrary to the wishes of distant relatives, such as grandparents, uncles and aunts, that on their intestacy an illegitimate child should benefit. Again, it is vital that the Law Commission should know the state of opinion on a matter of this kind.
I come to another example and turn to the point on which my hon. Friend the Member for Pontypool interrupted me. How far should the law go in giving the father of an illegitimate child the same rights as the father of a legitimate child? It may or may not be right that they 839 should have joint custody with the mother, rights of access or rights of consent. I am sure that many mothers would say that such fathers should not be given such generous treatment. My hon. Friend is not being honest with the House in attempting to suggest that these are problems which are easy to solve.
§ Mr. Brotherton
Is the Minister saying that the views of grandparents about grandchildren who are born out of wedlock are important? Is the hereditary principle important to him?
§ Mr. Davidson
No, it is not of the slightest importance to me and I am strongly opposed to the hereditary principle. However, it would be ridiculous to suggest that there are not grandparents who might be concerned. This is a far-reaching proposition and I have a duty to put it to the House. I cannot pretend that it does not exist.
I should like to give some other examples of the effect upon the general law. Married parents can make agreements concerning their parental rights which are enforceable if they are for the children's benefit. However, unmarried parents cannot make such agreements. Therefore, there is a need to consider whether enforceable agreements about parental rights should be retained, bearing in mind the residual jurisdiction of the court to decide what is for a child's benefit. There may be a case for amending the general law. That would be another amendment to the general law and not the law relating to illegitimacy.
In law, the domicile of the illegitimate child is with the mother, whereas the domicile of a legitimate child is with the father. If one adopted a general principle, the domicile of a child born out of wedlock should be with the father. However, it is arguable that, since the father of an illegitimate child very often has little to do with that child, because of the nature of the relationship, the child's domicile should remain with the mother. Therefore, the equalisation of the position of legitimate and illegitimate children would be best achieved by providing that in all cases the domicile should remain with the mother—and again that would mean amending the general law.
840 I shall not express an opinion about the desirability of either of those courses, but I put the matter before the House because I feel that it should be given close consideration. It reaches far into all aspects of law and should be given weight by the Law Commission. Obviously, the Law Commission would wish to hold consultations about the matter.
I turn to some of the provisions of the Bill. My objection to the Bill is that, far from its being too wide, it is too narrow in its scope. The long title speaks only of removing "the legal disabilities" and does not mention "connected purposes"—the usual all-embracing formula for widening the scope of a Bill. It does not mention other changes in the law that affect the family.
If the Bill were to receive a Second Reading, the House would be endorsing the mistaken principle that the law should be changed only in respect of the rights of illegitimate children. That endorsement could tend to limit what all hon. Members wish for—the movement towards wider-ranging reforms.
I shall not discuss clause 1 in detail, but neither that clause nor any other amends the Acts that affect illegitimacy. The Government do not believe that to be a safe or convenient way to legislate. It would mean that, whenever one is faced with an Act about the rights or duties of children, one would have to consider whether it had become obsolete. That would be a massive task. It is not easy to plough through Act after Act in Committee in order to decide the consequences.
§ Clause 2 concerns procedure and evidence.
§ Mr. Brotherton
Does not the hon. and learned Gentleman believe that children are children and that nothing else matters? Is not that the important thing? Whether or not they are illegitimate all that matters is that they are children and that they are all born of parents.
§ Mr. Davidson
I agree with absolutely everything that the hon. Gentleman said, but, unfortunately, Acts happen to be on the statute book. There happen to be a whole range of other measures. It is no good the hon. Gentleman raising his head and nodding. I did not put them there. Previous Parliaments have put them 841 there, and they impinge upon matrimonial law in its widest sense. They would have to be dealt with. That is a fact. I cannot help it.
Clause 2 concerns procedure and evidence, which has been dealt with by several hon. Members. The only point I ought to make is that subsection (2) makes a major innovation by providing for compulsory blood tests, or by enabling the court to order blood tests, for the purpose of establishing parentage. Many people would find this a controversial measure. It would be something entirely new. I would be very hesitant indeed about legislating for compulsion of this kind, however important it may be to establish the facts of paternity. It may well be that that is what the House wishes, but it should not pretend that this is not a controversial, far-reaching measure which would have to be thought about very carefully before it was enacted.
Clause 4 deals with the maintenance of children born out of wedlock. I want to say a few words about this. The clause provides that, where a question of maintenance of or by an illegitimate child arises, no law shall apply which is different from that which applies in respect of any other child. I take it that this clause is intended to abolish the special provisions relating to applications for maintenance for an illegitimate child that are contained in the Affiliation Proceedings Act 1957. These include the fact that under the 1957 Act an applicant must be "a single woman", either at the time when the child was born or when she makes her application. Under that Act her evidence must be corroborated, and her application must normally be made within three years of the child's birth.
In addition, affiliation proceedings can only be brought in a magistrates' court and the court's powers are limited to the making of an order for weekly maintenance, which cannot extend beyond the age of 16 in the first instance, although it can be continued for a further two years.
As my hon. Friend the Member for Pontypool pointed out, both in his speech today and in his interesting article in The Guardian, these provisions clearly place an illegitimate child at a disadvantage. The Government recently introduced a number of improvements in the Domestic 842 Proceedings and Magistrates' Courts Act 1978. The Act which my right hon. Friend hopes to bring into force later this year will allow the courts to order the payment of a lump sum not exceeding £500 in affiliation and other family proceedings in magistrates' courts. It will also allow the courts to order the payments to be made direct to the child, which may have a tax advantage, and will allow a maintenance order made in affiliation proceedings to extend to the age of 17 or, in special circumstances, to any age that the court thinks fit.
My hon. Friend the Member for Pontypool said that no fresh order for maintenance could be made in respect of an illegitimate child after he has reached the age of 18. That is correct, but the Bill will not change that position. Such an order can be made only in matrimonial proceedings, and clause 4 will not allow an illegitimate child to benefit from such proceedings because the mother will not be married to the father. I know what my hon. Friend the Member for Pollok wishes to do, but the Bill will not achieve his aim.
The Government deliberately refrained from going any further in the 1978 Act because they did not wish to anticipate the results of the Law Commission's review of the law relating to illegitimacy. The difficulties in doing that are well illustrated by the Bill. I do not want to criticise clause 4 further, but much more substantial provisions would be needed in order to achieve the objectives of the Bill.
Clause 5 enters the minefield of nationality law. Its broad aim is to provide that a father should be able to transmit his citizenship of the United Kingdom and colonies to his illegitimate child born abroad, in the same way as he can to his legitimate child. The nationality law is complex and is based throughout on the relationship between a father and his legitimate child and there would probably be other consequences that would need to be studied carefully.
The hon. Member for Louth takes a great interest in immigration problems and he ought to realise what could be the consequences of clause 5.
§ Mr. Brotherton
I note the problem, but I believe that any child of an Englishman should be allowed to come to this country while those who are not children 843 of Englishmen should not have an automatic right of entry. Whether the sons or daughters are illegitimate is irrelevant.
§ Mr. Davidson
Under the law as it stands, illegitimate children born in this country automatically become citizens of the United Kingdom and colonies at birth. The ability to transmit citizenship to children born abroad is confined to men and their legitimate children. Clause 5 would allow a father—not a mother—to pass on citizenship to an illegitimate child born abroad. That has far-reaching consequences that ought not to be dismissed lightly.
§ Mr. Abse
Is the Minister saying that in endeavouring to deal with the problems of illegitimate children we shall suddenly be confronted with hordes of illegitimate children coming into this country from abroad?
I recognise the need for a ministerial speech, but the comments of my hon. and learned Friend would be more appropriate in Committee and I deplore his suggestion that we are creating an additional problem on immigration. Such a suggestion does not become him.
§ Mr. Davidson
I am sorry that my hon. Friend the Member for Pontypool should feel that way. However, if I did not point out some of the consequences I should be criticised for not doing so. My hon. Friend is quite unfair to make that point. I did not say that this Bill created an immigration problem, nor was I talking about hordes of people coming into this country. It is an unfair, unjust and mean point to make, and it is an exaggeration. I do not accept what my hon. Friend said at all. In his desire to get the Bill on to the statute book, he should not try to misinterpret the views or the words of someone who is merely trying to put to the House what the consequences are.
The problem of illegitimate children born abroad has mainly been a problem for mothers who, quite naturally, would like to pass on their citizenship to their children. My right hon. Friend the Home Secretary announced on 7 February that a woman born in the United Kingdom would normally be able to have her child made a British citizen. That includes, incidentally, her illegitimate child, and not, as my hon. Friend said, merely her legitimate child. It gives her the right 844 to have a child registered as a citizen of the United Kingdom and colonies. This has to a large extent dealt with the problem. I hope that that also firmly establishes that what my hon. Friend said in his intervention was totally wrong and in very bad taste.
The Government totally approve the spirit of the Bill and the motives of the sponsors, who have made such sensible points in its favour. I do not dispute what they are trying to do, but the scope of the Bill is too narrow. It does not cover a whole range of questions affecting parents, and also affecting illegitimate children as well as legitimate children. It would require a massive carpentry job—to use an inelegant phrase—if the Bill went to Committee.
My hon. Friend knows very well—it has been said over and over again—that the Law Commission is about to produce a most comprehensive report on this matter. In fact, I think my hon. Friend has seen the report—I do not think that is a secret. He knows how far-reaching those proposals will be and he cannot deny that many of the consequences that would flow from this Bill, if it were passed today, would be far-reaching over a whole range of other aspects of the law.
I am as concerned as my hon. Friend that all the disabilities that affect illegitimate children, all the embarrassments that they have to go through, all the consequences that many of them still have to suffer, should vanish, preferably at a stroke and certainly as soon as possible. I only wish that this Bill would achieve that, but the reality is that it would not. I wish that I were in a position to recommend the Bill to the House. I cannot, however, do so, much as I praise the motives of the sponsors, as much as I am in favour of their intentions and as much as I want to see the disabilities of illegitimacy disappear for ever from this land. However, I do not think that this Bill will achieve that.
I entirely agree with my hon. and learned Friend the Member for Hackney, North and Stoke Newington and my hon. Friend the Member for Fife, Central that the best thing we can do is to wait for the Royal Commission's report. We can then have proper consultations and, I hope, a Government Bill which will be far more nearly all-embracing than the Bill 845 before us, to do away once and for all with all the unpleasantness of illegitimacy and the inconsistencies that it has caused over the years.
§ Question, That the Bill be now read a Second time, put and negatived.