LEGITIMACY BILL. [H.L.] (Hansard, 25 March 1926)

§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, in moving the Second Reading of this Bill I shall detain your Lordships only for a few minutes. It is in substance similar to Bills which were passed by this House in the years 1924 and 1925. The main purpose of the Bill is set out in Clause 1, which provides that where the parents of an illegitimate person marry then the marriage shall render that person legitimate from the commencement of this Act if the marriage has already taken place, or from the date of the marriage, whichever last happens.
On previous occasions we had debates as to whether there were sufficient safeguards in the Bill. Your Lordships will find the present proposals in the Schedule, which deals with re-registration and provides that the Registrar-General shall not authorise the re-registration of the birth of a legitimated person where information with a view to obtaining such re-registration is not furnished to him by both parents, except in the cases mentioned in the Schedule—namely, (1), where the name of a person acknowledging himself to be the father of the legitimated person has been entered in the register in the ordinary way; or (2), where the paternity of the legitimated person has 801 been established by an affiliation order, or something of that kind; or (3), a declaration of the legitimacy of the legitimated person has been made under the Legitimacy Declaration Act, 1858.
The remaining clauses of the Kill deal mainly with the effect upon property, inheritance, succession, and so on, and upon the status of the child. I do not think I need go through them again. The form of the Bill has boon carefully considered and resettled for the purposes of this particular Kill, and I think your Lordships will find that in form it is somewhat of an improvement on the Bill of last year.

§ VISCOUNT HALDANE
My Lords, this Bill in its present form is the outcome of a great deal of discussion which took place in this House and outside it. The Bill as it stands may or may not be ideal. Obviously there were considerable differences of opinion under which some compromise had to be come to if the Bill was to pass. In its present form I think it is a fair attempt to redress certain very crying injustices in the old system and as it stands I have no hesitation in saying that I hope that your Lordships will consent to pass it. The Bill may or may not come up to the ideals of some of its supporters, it may or may not come up to the ideals of some of its opponents, but on the whole it is a fair compromise on a matter on which there was great divergence of opinion, and I trust that your Lordships will take such steps as will enable it to become law as quickly as possible.

§ LORD MUIR MACKENZIE
My Lords, I should like to say one word about this Bill because it happens that not once but twice I was responsible for bringing a Bill on this subject before this House. Upon the second occasion the Bill made some progress, but it happened that the House was suffering under the misfortune that the noble and learned Viscount who then occupied the Woolsack was not able to attend the House for a short time and I proposed therefore, that the next stage of the Bill should not be taken at the time put down but that it should stand over till the Autumn Session. The Autumn Session never took place because 802 there was one of those many Dissolutions of Parliament to which we became accustomed at one time. The reason which I gave for postponing the consideration of the Bill was that I should not like to be responsible for it without its having been thoroughly under the attention of the Lord Chancellor. Since that time the Bill has had that attention and I should like to bear my respectful testimony to the fact that the Bill has been, with one exception, in my opinion very greatly improved and it is now in a form in which I shall join in the hope that it will pass. The one exception to which I refer is Clause 1 (2). I had always hoped that that might be omitted, but this House has decided very positively that it will not allow the omission, and therefore I cordially support the Bill as it now stands.

§ LORD BANBURY OF SOUTHAM
My Lords, I think the Bill might be worse and as long as it is not amended and remains in its present form I shall not oppose it.

§ LORD PHILLIMORE
My Lords, you may remember that I have taken an interest in this measure on previous occasions. My object has always been, while assenting to and indeed approving of the main scope of this measure, to see that careful provisions were made to prevent a woman thrusting upon the family a, child that was not the child of the supposed father. I thought that this measure as last approved had been so universally accepted that I was surprised to find that it did not pass the other House and I do not yet know how that came about. Perhaps the noble and learned Viscount on the Woolsack may think well to inform us.
I notice that the shape of the present-measure is very different from the shape of the former measure. It has been mentioned that matters are put into the Schedule which were before in the body of the Bill. I am sure we can trust the noble and learned Viscount if he tells us that there is no real alteration in the substance. I will mention one thing which occurs to me. It is stated in the Schedule:— The failure of the parents or either of them to furnish information as required by this Schedule in respect of any legitimated person shall not affect the legitimation of that person. 803 if that means simply what it says I am entirely in accord with it, bit I have a certain amount of fear whether it might be so construed as to mean that the Registrar-General should register the birth of that person notwithstanding the fact that the conditions mentioned in paragraph 1 of the Schedule had not been complied with. Perhaps if there is any doubt on that matter the noble and learned Viscount will see that that is made quite clear. I have not compared the two measures, but as far as I can gather by reading this one—and my recollection supports the impression—there is no substantial alteration in the Bill as compared with that which your Lordships approved on another occasion.

§ THE EARL OF MIDLETON
My Lords, the noble and learned Lord has alluded to the change in the arrangement of this measure. I should like to call your Lordships' attention to a really great change which has taken place since you pronounced a very definite opinion two years ago, even assuming as some members of the House did not assume, that the Bill is in principle desirable. It was argued two years ago, and your Lordships carried Amendments to the measure then brought forward, that if parents of children who were illegitimate subsequently marry they should at least designate by registration at the moment of marrying, or within a reasonable time afterwards, the children whom they desire to legitimise. Your Lordships will see that these provisions for registration have been relegated to the Schedule of the Bill. They are elaborate provisions, but they are—I will not say ludicrous, though they tend in that direction, because in the fourth paragraph the Lord Chancellor asks us to declare that The failure of the parents or either of them to furnish information as required by this Schedule in respect of any legitimated person shall not affect the legitimation of that person. It is difficult for a layman to speak after so many distinguished lawyers, but I venture to say that that paragraph, whether it is equitable or not, really opens the door to the most grave imposition on those who are the legitimate heirs of the person whose marriage is under discussion.
It is perfectly possible for a man to have had children, to have subsequently 804 married, to marry a second time and legitimise children at a registry office, or anywhere else, without the knowledge of those who are affected by his testamentary dispositions. And when he dies, although the onus of proof that a child is legitimate may lie on the offspring of the marriage, under that fourth paragraph there is nothing to prevent the legitimate heirs from being put to enormous expense on prolonged litigation in proving that their father was not the father of the person which it is sought to legitimate under this Bill. Surely, when you are making so very great a concession in regard to a, matter which has not got—as many of your Lordships thought two years ago—to be set right within a few months of the marriage but may be set right thirty years afterwards, it should be at least incumbent on those who bring forward such a measure as this to make provision that the legitimation should depend on an immediate, or at all events a prompt, registration of those who are to be brought under the Bill.
With great respect to noble Lords of great legal attainments, I would deprecate the bringing forward of one measure after another, even from the Woolsack itself, placing the heaviest possible charges on the laity either to prove titles or to take action in one way or another. I speak from my own knowledge when I say that the reason why this measure did not get through last year was that there was very strong feeling in certain quarters in another place that the measure was unwise and unjustifiable. The late Mr. Bawlinson, among others, took that view very strongly and owing to the discussion which was engendered the Government had to let the Bill go. I appeal to the noble and learned Viscount on the Woolsack to take this paragraph out of the Schedule and to make what seems to be a reasonable arrangement—that any man may legitimate children by a subsequent marriage, but that at least one or other of the parents must be responsible at the time, or within a reasonable time, for making a declaration as to who are affected by the marriage.

§ THE LORD CHANCELLOR
My Lords, I have only a few observations to deal with. I think it is the fact that the 805 former Bills failed to pass in another place only because time was wanting for the purpose. In one year there was a Dissolution and in another year the Bill was abandoned at the same time as a number of other Rills which, from want of time, could not be passed. I have been asked whether it makes any difference that some of the provisions which were in the body of the earlier Bill are now in the Schedule. It was certainly not intended to make any difference, and I do not think it does. If my noble and learned friend Lord Phillimore thinks otherwise, of course I must pay great attention to what he says.
As to the fourth paragraph of the Schedule, I think too much is made of that. It is not new. It was in the former Bills. It is not intended to have the effect of allowing the registrar to re-register even though information is not given, and I do not think it really has that effect. Indeed, if that paragraph went out I do not think it would make very much difference to the Bill, nor, I believe, would that meet the real objections of the noble Earl, Lord Midleton. I am saying this to be quite frank with him: that I do not think the omission of that paragraph would really have the effect that he wants, or rather what he certainly wanted last year—namely, that unless the parent registered the child at the time of marriage, or within a short time afterwards, that child should lose its chance of being legitimated altogether. That I think was the point. It is a substantial point, not depending at all on paragraph 4, and I have no doubt that when we come to the Committee Stage we shall have once more to consider it. But I think the intention of the Bill is that if the parentage is not registered at the time of marriage the child should still have a chance in future years, for instance, when it comes of age, of going to the Court under the Act of 1858, the Legitimacy Declaration Act, and proving its parentage to the satisfaction of the Court, and that the mere neglect of its parents to go through the act of re-registration shall not deprive the child of that privilege or that chance. That is the effect of the Bill. I agree that it is something to which the noble Earl has always objected and to which he is still perfectly at liberty to object. But 806 I hope he understands that his objection will not be cured by dropping paragraph 4. It will require some substantial amendment of the Bill itself. However, we will discuss that point when the time comes.