HL Deb 07 July 1959 vol 217 cc812-42

5.35 p.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Chorley.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord MERTHYR in the Chair.]

Clause 2 [Legitimation of children of void marriages]:

LORD CHORLEY: moved to leave out Clause 2 and to insert instead:

Legitimacy of children of certain void marriages

"2.—(1) Subject to the provisions of this section, the child of a void marriage, whether born before or after the commencement of this Act, shall be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid.

(2) This section applies, and applies only, where the father of the child was domiciled in England at the time of the birth.

(3) This section does not affect the operation or construction of any disposition coming into operation before the commencement of this Act, or affect any rights under the intestacy of a person dying before the commencement of this Act.

(4) For the purposes of this section so far as it relates to persons born before the commencement of this Act the following provisions of the Legitimacy Act, 1926, that is to saym—

  1. (a) subsection (1) of section ten (which excludes the operation of that Act in relation to dignities and titles of honour); and
  2. 813
  3. (b) subsection (3) of section three (which contains savings in respect of property settled to devolve with dignities or titles of honour),
shall apply as if for references to that Act there were substituted references to this section.

(5) In this section 'void marriage' means a marriage not being voidable only, in respect of which a decree of nullity has been granted by the High Court or could have been so granted in proceedings begun at the date of the birth of the child.

(6) In subsection (1) of section seventeen of the Matrimonial Causes Act, 1950 (which enables an application to be made to the High Court for a decree declaring that the applicant is the legitimate child of his parents, and that the marriage of his father and mother or of his grandfather and grandmother was a valid marriage or that his own marriage was a valid marriage) for the words 'and that' there shall be substituted the words 'or that'."

The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. Clause 2 as at present framed was, of course, based on the recommendation made by the Royal Commission on Marriage and Divorce, who I think on this particular matter, unlike that which we were discussing the other day, were at one. When we were discussing this Bill on Second Reading the noble and learned Viscount on the Woolsack was on the whole, I think, favourably disposed to the objective contained in the clause, but pointed out a number of ways in which it is not satisfactory. The clause was inserted in the Bill at a somewhat late stage in another place, and it may be that there was some hurry in respect of the drafting. However, I entirely agree with the noble and learned Viscount that the clause as it stands is not satisfactory. For one thing, it implies that void marriages can be treated as nullities only if decrees of nullity are made by competent courts of jurisdiction, which is not at all what is intended. Then, no provision is made for succession to property or title of honours; and there are other ways in which the clause is defective. The noble and learned Viscount offered to place the resources of his staff at the disposal of the sponsors of this Bill, and we gladly availed ourselves of that generous offer. The result is that we have on the Marshalled List of Amendments what I am sure is a much better and very ably drafted clause. I should like to express our great gratitude to the noble and learned Viscount and to those members of his staff who have helped us in this way.

I do not know that it is necessary to explain in detail the different subsections of the clause, but perhaps I might indicate some of the more important of them. The effect of subsection (1) is that a person born after or, subject to the provisions of subsections (3) and (4), before the commencement of the Act is to be legitimate if either of his parents reasonably believed that their marriage was valid as at the times indicated. That is substantially what the clause is aimed at, and is the main operative part of it. I think there is possibly some slight question as to whether this exactly reproduces the law as it stands in Scotland at the present time, which, as your Lordships will remember, the noble and learned Lord, Lord Keith of Avonholm, told us, generally speaking, had enabled the offspring of void marriages of this kind to be legitimate and to inherit title and in other ways to be in just as good a position as if the marriage had not been void at all.

With regard to subsection (2), obviously some restriction on the extent of the proposed new clause is necessary in order to bring our own law into compliance with the rules of Private International Law, and this subsection has been drafted in order to achieve that objective. Subsection (3) provides that the legitimation of a person to whom the clause applies is not to have retrospective effect in relation to the important matters of dispositions of property or succession on intestacy. In this matter, of course, it goes on exactly the same lines as the corresponding provisions in the 1926 Act. I think the relevant section there is Section 10.

Subsection (4) excludes persons born before the commencement of the Act from any right of succession to dignities and titles of honour, and also to property which may be, and of course often is, devolved on settlement therewith. Under the 1926 Act, it is not possible for a person legitimated at any time by his parents' subsequent marriage to succeed to a title of honour. That, I think, is reasonable, because as the noble and learned Viscount pointed out in his speech, there is obviously a clear distinction between these two types of case. By subsection (5), the void marriage to which the clause applies is to be distinguished not only from a voidable marriage, which is valid (as I think the noble and learned Lord, Lord Denning, explained to us in his Second Reading speech) until it is annulled, but also from a state of affairs such as concubinage, which on any reasoning cannot be regarded as marriage at all.

Those are the main matters which are involved in this redrafted clause, and I am sure your Lordships will agree that if we are to have the clause at all—I am not concealing from myself that there is an Amendment down which would ask your Lordships to get rid of the whole thing—then I am sure your Lordships will agree that it is now in a fit state to become part of the law of the land. I beg to move.

Amendment moved— Page 1, line 13, leave out Clause 2 and insert the said new clause.—(Lord Chorley.)


As I have an Amendment further down asking that this clause shall be left out altogether, perhaps I may say a few words upon it; because I suggest that even the new clause is open to the most grave objection. In the first place, we must remember the fundamental rule of English law, that "legitimate" means "born in lawful wedlock". Many people have sympathy with the view that, when people are subsequently married, children born before or after shall by law be legitimate. But this clause makes the children legitimate, even though there has been no lawful marriage at all. To explain the matter I must first draw the distinction between a voidable marriage and a void marriage. The best instance of a voidable marriage is when people marry and one or other of them, maybe the man, cannot complete the sexual act properly. Afterwards, perhaps by artificial insemination by the the husband, a child is born. That is a voidable marriage. The wife can get a decree of nullity, but the child is legitimate. That is a voidable marriage which is good until the court voids it.

Here we are dealing with a void marriage altogether; and the most common instance, and the best instance, is that of an ordinary bigamous marriage. Let me give your Lordships some instances as to the way in which the clause as it stands works, and as the new clause would work. I have seen hundreds of bigamy cases. The second wife goes into the witness box and says, "He told me he was single", or, "He told me he was divorced", or, "He told me that he had not seen his wife for seven years." On that they go through a ceremony of marriage. Two or three months later, the lawful wife turns up and says, "He is my husband. There has been a bigamous marriage; there has been no marriage." On this clause as originally drafted, that second couple—and the second wife usually says she will stick by the man—can go on having legitimate children. The husband can be married to his lawful wife and have legitimate children by her, and at the same time he can have children by his bigamous wife, and those children are also legitimate. That is how the clause stands as drafted; and, indeed, it would apply even after the wife had known that the marriage was bigamous. Therefore, I suggest that the clause as drafted is open to the most serious objection—that a man can have a legitimate family by his lawful wife and, at the same time, a legitimate family by his bigamous wife.

By the new clause now proposed it is sought to say that if the second wife at the time the child was conceived believed that the marriage was valid, then the child shall be legitimate. The deceitful husband, the bigamous husband, in this way is given a great freedom; a great privilege in the law. He can have his own lawful family by his lawful wife, and by deceiving a woman into marriage he can have a legitimate family at the same time by his bigamous wife. Let me take an easy illustration. Suppose the bold, bad baronet, or one of your Lordships, should unfortunately have a succession of daughters and wish for a lawful son and heir. All he has to do under this clause, if it is passed as amended, is to deceive a young woman into matrimony by pretending he is single, perhaps saying nothing about his rank, and then beget a son by his bigamous wife. According to this clause that son will be legitimate: he will be the legitimate heir of the father, although there has been no marriage between him and the second woman. The clause puts a premium on deceit and dishonesty, because if he was open with the girl and did not deceive her, then, of course, he could not have a legitimate son. This clause means that the deceitful husband, the bigamist, can create legitimate children by another woman while his own lawful marriage is subsisting, and though he never marries that other woman. As it says in the Script tires: …the son of the bond woman shall not be heir with the son of the free woman. Can the son of the bigamous marriage be heir with the son of the lawful wife? That is the objection in principle. You cannot have legitimate children by a bigamous marriage while the lawful marriage is continuing.

Apart from the objection in principle, look at the uncertainty and confusion that is brought into the law. It is said that if at the time of the act of intercourse the second woman reasonably believed the marriage was valid then the child is legitimate. Not many women are accurate in predicting the time when the baby is to be born. The time of the act of intercourse may be anything from a fortnight to four weeks—anything at a guess. What uncertainty there! What was her knowledge then? Did she reasonably believe—that is the other question—that the marriage was valid? Supposing the man has told her, "I am divorced"? Can she reasonably take his word for it, or must she ask for the order of the Divorce Court? Moreover: his matter of whether there is legitimacy or not comes up years afterwards, even when the parties are dead. How can you inquire then into the state of mind of the parties, whether one or other reasonably believed the marriage was valid?

If you are doing it for the sake of the woman, look at another clause which says that if the father is domiciled overseas this clause shall not apply. Many people are domiciled overseas, maybe in the Forces or business men. A man might marry and not disclose it. The child of that mother who goes through a bigamous marriage unknowingly is not legitimate. You introduce uncertainty and confusion into the law as well, apart from the fact that it is wrong in principle. The truth is that by our English law "legitimate" means born in lawful wedlock. In the Canon Law or the Law of Scotland, which has adopted it, if the "child" is innocently conceived by one party it is apparently legitimate. That is a conception quite at variance with our English notion of legitimacy. I would ask your Lordships to say, as in 1236, that we do not want to change the Laws of England in this regard. While a lawful marriage and a bigamous marriage exist, the children of the bigamous marriage should not be legitimate.

5.52 p.m.


I regret on this occasion having to differ from my noble and learned friend Lord Denning, with whom I am so often in agreement. I am also rather surprised that in a matter which would produce, no doubt, a radical reform in the law of England, Lord Denning apparently on this occasion is against reform. I myself should have preferred to have this clause in its original form. I am not entirely clear about how this clause now proposed by my noble and learned friend Lord Chorley would be construed, because if one looks at subsection (1) we find these words: …if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid. I do not understand how both or either of the parties could believe the marriage was valid if the act of intercourse took place before the marriage, and it looks to me as if this clause could be so construed.

I am also not entirely happy (this is a matter for this House and those who are concerned with the laws of England to decide) about subsection (2), which restricts this reform entirely to the case where the father of the child was domiciled in England at the time of the birth. I can conceive of someone, a Frenchman, coming over here and marrying a girl domiciled in England, at least going through a form of marriage with a girl domiciled in England, the girl in bona fide belief that he is free to marry and going through a form of marriage. In such a case the child of the marriage would not be legitimated as a result of this clause.

I have always thought that there is more to be said for this type of legitimation than for legitimation by subsequent marriage, and I will explain why. The parties go through a marriage; the marriage is registered, and one or both of the parties believe that it is a valid marriage. All the people round about think they are married people; a child is born; the child is registered as the child of a valid marriage; and, according to the law of Scotland, that child would be regarded as legitimate. And that also, of course, was the Canon Law. It seems to me that that is a very equitable and proper result. Even if only one of the parties was entirely innocent and had gone through a ceremony of marriage believing that it was a proper marriage, that child, in my view, ought to be treated as legitimate; and so it has been held and so is the law in Scotland.

That law has a very respectable ancestry. There may be other noble Lords here who may deal with it more fully, but as a matter of history may I say this? The sister of Henry VIII married James IV of Scotland, and after his death married the Earl of Angus, went through a proper ceremony of marriage with the Earl of Angus. That marriage was declared null because of a previous impediment which prevented the Earl from entering into that marriage. But the widow of James IV was quite unaware of that fact, and the child of that marriage—because there was a child of that marriage born—was held to be legitimate. That is only one illustration which indicates that this principle has a very reputable ancestry.

But that is not all. In this House a very interesting event took place—I am now reading from an authority which I understand is of considerable repute. It is certainly an ancient authority, but that is nothing at all against it. It is called A Treatise on the Law of Adulterine Bastardy and it is by Sir Harris Nicolas, K.C.M.G., barrister-at-law. It was published in 1836. At page 61 of that work there appears this statement: Five years afterwards, namely in the 37th Hen. VIII a remarkable instance occurred of children born of an illegal marriage, being legitimated by Parliament. Sir Ralph Sadler, Secretary of State, married about the year 1534 Ellen Mitchell, who had been the wife of one Matthew Barre, under the belief that she was a widow, as Barre had deserted her for many years, and all inquiries about him had proved fruitless. After a connection of several years, and the birth of many children by Sir Ralph Sadler. Barre made his appearance; and there could be no doubt that his wife's marriage with Sadler was void, and that all her children by him were illegitimate. As however her second marriage arose from the misconduct of her first, and indeed only lawful husband, and as her marriage with Sadler was made bona fide with a 'pure conscience', under the impression that Barre was dead, Sir Ralph Sadler prayed that it might be enacted, that all his children by her should be reputed and adjudged 'lawful land legitimate, and be inheritable to him as if they had been begotten and born in 'lawful and perfect, and indissolvable matrimony'. The Act, after reciting all the facts of the case, provides that ' Thomas Sadler, Edward Sadler, Henry Sadler, Anne Sadler, Mary Sadler. Jane Sadler and Dorothy Sadler, and every of them, shall at all times hereafter for ever be had, reputed, taken, esteemed and adjudged legitimate and lawful children, begotten of the body of the said Ralph Sadler, and shall be inheritable, as well to the same Ralph Sadler, as to all and singular his ancestors, and to all other person and persons, and every of them, to he inheritable to other, in like manner, form and condition, to all intents, constructions, and purposes, as if they had been engendered, begotten and born in lawful, perfect and indissolvable matrimony, and as if the said Ellen had never been married to any other than only to the said Ralph, and as though the said Ellen had been lawfully married, in perfect and indissolvable marriage, to the said Ralph, and as though the said Matthew and Ellen had never entered, married or contracted any matrimony together; any law, statute, act, ordinance, constitution, canon, decree, custom, use, or any other thing of matter whatsoever to the contrary in any wise notwithstanding'. Those were the terms of the Act. The Act then confirmed the grants made to Sadler and Ellen, his wife, and to their heirs and assigns, of the inheritance of the estates of the late dissolved College of Westbury upon Trim, in the County of Gloucester; and provides that if any separation or divorce was prosecuted between Ellen and her husband Matthew Barre, that she should, during Barre's life, be considered a woman sole, as if she had never been married to him; and that by the name of 'Ellen Mitchell' she might during the lifetime of Barre take any grant of lands, etc., independently of him, and by that name to sue and be sued as a woman sole. If Parliament in England—because that was, of course, an English Parliament—can in a special case legitimate the children of a putative marriage entered into in good faith, why, I ask, should not Parliament make a general law which will have the effect of legitimating children in the same way as the children of Sir Ralph Sadler were legitimated? It seems to me that there is no real principle against it, and it has a great deal to commend it, because it protects the legitimacy of children who have been born in good faith where one or other, or both, of the parties thought that they had entered into a valid marriage. I am strongly in favour of this clause. The Royal Commission on Marriage and Divorce was unanimously in favour of a clause of this kind and I heartily welcome and support it.


I confess to having had great difficulty in regard to this clause, both as it originally appeared in the Bill and under the proposed Amendment that has been moved by the noble Lord, Lord Chorley. I agreed, I think, with most of Lord Chorley's description of the effect of the clause he now advocates, with, I think, one exception, if I understood him correctly. I understood him to say that the effect of subsection (4) of his new clause would mean that succession to a title of honour would not be affected by this new clause, just as, as I pointed out in my speech on the Second Reading, Clause 1 of the Bill, as it then stood, would not affect the devolution of a title.


This is dealing with past cases. What has happened in the past will remain; but in regard to the future as I think the noble Lord pointed out, the situation will be changed.


That makes us in agreement. I only thought that the Committee should realise that if this new clause is passed in its present form, then the devolution of a title will be affected under this provision as regards future births in a way that cannot happen under the existing measure of 1926. If I may remind the Committee of the example which I gave on the last occasion, the example given by my noble and learned friend Lord Denning again this afternoon—that of a bigamous marriage—the inheritor of a title under this clause could in some cases be the child of the bigamous union and not the child of the legitimate union. That is the effect of the new clause as it will be if we have in it the words so far as it relates to persons born before the commencement of this Act I want, however, to give another example, this time not of bigamy but of fraud or duress—another matter which can give rise to a void marriage. I desire to say very little more after the noble and learned Lords who have already spoken and before my noble and learned friend the Lord Chancellor deals with the matter. I feel considerable astonishment at this: where the recent Royal Commission gave the most careful reasons why we should not reform the law in the way that Clause 1 of this Bill originally did, the authors of this Bill, in its introduction, disregarded the advice of the Royal Commission. I admit that in Clause 2 they have the advantage of the unanimous advice of the Royal Commission. But practically no reason was given for that advice, and I think that before we make so sensational a reform of our law we ought to have rather better reasons given for it than have yet been given.

I know that the line I took on an earlier clause, with which the majority of this Committee then agreed, has been described in certain quarters as "reactionary". I should therefore like to point out that the objection to this present clause has been voiced most emphatically by two Solicitors-General of opposite Parties. The present Solicitor-General, my right honourable and learned friend, speaking in the debate in another place, gave what I thought were most cogent criticisms of the proposal contained in Clause 2 of the Bill, whether as originally drafted or as it will stand with the Amendment of the noble Lord, Lord Chorley. Under the Rules of Order I am not able to quote verbatim what he said in that speech, because it is in the present Session. But I am able to quote what was said by another Solicitor-General, the right honourable gentleman Sir Frank Soskice, in dealing with a precisely similar proposal on December 5, 1949. Let me quote a short passage [OFFICIAL REPORT, Commons, Vol. 470, col. 1654]: Take the case of duress or fraud. The effect of the clause is this. If the marriage becomes subject to a decree of nullity the children of the marriage are, nevertheless, if it could have been dissolved, to be deemed to be the legitimate issue of the two parties of that marriage. I should have thought that, much as one desires to afford every kind of protection to the unfortunate innocent children of any union, it is going too far to say that if a person has been trapped or forced or threatened into the union, which he would never have entered into, or intended to enter into or knew that he was entering into, he should have the issue of that union declared the legitimate issue of himself and the person with whom he was forced to enter into a spurious bond of marriage. I should have thought that was going a great deal too far. I have ventured to give the Committee cogent statements against this clause by two Solicitors-General, one of Her Majesty's present Government, the other a most distinguished Law Officer of the late Socialist Administration. Those being the views of those eminent and learned men, I hope it will not be said that questioning of this clause is in itself a ground on which one can be accused of being a reactionary—although that is a charge that has never troubled me. For the reasons I have given—that practically no reason for this change in the law has been given by the Royal Commission themselves, that it is has quite sensational effects and that it has been condemned by the two Law Officers whom I have quoted, I suggest that rather cogent reasons should be required before we pass it into law.


May I venture to ask one question as to the actual machinery which this clause will set up? What if a woman who has been deceived into a bigamous marriage goes to register the birth of her child and asks that a certificate should be issued by the registrar as for a legitimate child? He says to her: "Is this man"—the paternal name as given—"your legal husband?" The woman says, "No, Mr. Registrar, he is not actually my husband but I thought he was at the time. I had reasonable cause to believe that" I quite understand what "reasonable cause" means in a court of law but a registrar's office is not a court of law. Does the registrar then cross-question the mother as to whether her cause to believe that was indeed reasonable? I am asking the question (possibly a quite foolish one) because I do not know what is going to happen and I feel that we should be told.


I should like first to deal with the technical points of difficulty—the one just raised by my noble friend Lord Iddesleigh and the two that have troubled my noble and learned friend Lord Keith of Avonholm as to the drafting of the clause. With regard to the point made by my noble friend Lord Iddesleigh, as I understand it there will have been a ceremony of marriage; and if he will look at the Amendment of the noble Lord. Lord Chorley, he will see that this really comes on the next point, about which my noble and learned friend Lord Keith of Avonholm was doubtful. But the proposed words of subsection (1) are: if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid. Now that is to cover the point of time when the parents reasonably believed that their marriage was valid which was (a) at the time of intercourse resulting in the child—if the child was conceived after the ceremony of marriage; that is what is intended—and (b) at the time of the marriage if the child was conceived beforehand. It is intended to meet the difficulty of my noble and learned friend Lord Keith of Avonholm. If it does not exactly do so I am sure that the noble Lord, Lord Chorley, will look at it again.

On that basis there has been a ceremony of marriage which afterwards turns out to be void; but in most cases, of course, the child will have been born before the void nature of the marriage is shown, in which case it will have been registered as legitimate. In the other case, as I understand it, on the assumption that the previous husband has turned up or that it has been discovered that the union was void because the couple were within the prohibited degrees of marriage, then the mother of the child would go to the registrar and give the facts. If necessary, if there was a dispute, there is a procedure by which legitimacy can be declared in our courts, but I should have thought that if this clause were nut into operation that would not be necessary in many cases. I should like to look into that again, however, because it is an important point.

My noble and learned friend Lord Conesford has asked for the reasons. As I have told your Lordships, I have found this a very difficult subject because I have been brought up in the English Common Law and I share in the prima-facie approach that if there is no marriage it is very difficult to see a foundation for legitimacy. That is the logical English view and I was therefore most interested to go back to the history of the matter; and I am sure that my noble friend Lord Iddesleigh will be interested in this. If he will allow me to mention the fact, his Church—the Church of Rome—adopted this as their law and have acted upon this principle from time immemorial, relying on the Canon Law. I was told—and no doubt my noble friend Lord Iddesleigh will correct me if I have been wrongly informed—that the reason why this was adopted and has been maintained by the Church of Rome was that certainly in olden days (I do not know if it is the same to-day) a bastard could not become a priest of the Church. The Church of Rome felt that where one parent had acted innocently in good faith and had gone through a public marriage, intentionally and professedly in innocence and good faith, that gave the child at any rate one parent who had an impeccable and innocent background. And it was thought by the Church of Rome that it would be wrong to deprive a child in that position of the right of going into the priesthood. So I am told. All historical research is subject to correction but that was what mine told me.

The second point of interest is that it has been the law of Scotland both before the Reformation and since. Speaking broadly, before the Reformation the ordinary Common Law ran, but it was maintained after the Reformation. Knowing the concern of my noble and learned friend Lord Conesford, I asked my noble and learned friend Lord Keith of Avonholm if he could instruct me on the Law of Succession to Peerages in Scotland, and as to whether or not this point had arisen. He was good enough to give me his own views and to refer me to Riddell's book on Scottish Peerage Law, and I have read extensively, and with great historical enjoyment, what is in it. But the position one gets at the end of the day is that in Scotland, if you had these three requirements—innocence and good faith on the part of one party and a public marriage—then there has been no question, as my noble and learned friend Lord Keith of Avonholm said, that the issue were not only legitimate but could succeed to Peerages.

My noble and learned friend has quoted one of the well-known cases in which the child was Lady Margaret Douglas, the child of the Earl of Angus and Queen Margaret by a void marriage. The other classical case is that of the third Earl of Gordon who was the child of a void marriage, a marriage the father and mother afterwards treated as void; it was known to be void, but after a number of children had been born. There is no doubt that the oldest child of a void marriage succeeded as the third Earl of Huntly, although there were children by a marriage which took place afterwards and which could not be attacked. I have not been able to ascertain, but from a general look around your Lordships' House I think there must be thirty descendants of that void marriage who are now in your Lordships' House, although in most cases the descent is through the female line. I think my noble and learned friend will bear me out that there is no contemporary evidence of anyone suggesting that the children of the second Earl of Huntly were bastards, and I think he would agree that it would be a sound a priori assumption with regard to Scottish history in the fifteenth century that no one lived long enough to make the allegation twice.

Be that as it may, that is the second point of difficulty. Although it has been the law of Scotland it has never worked out any of the difficulties. My noble and learned friend Lord Conesford has very properly put the difficult cases, but in that case the second Earl of Huntly's third wife was a daughter of Lord Earle, who again at that time was, I think, Lord High Constable of Scotland, and there was never a question of difficulty about the children of the marriage: they never seemed to have complained of their lot.

The third point is that we appointed a Royal Commission on Marriage and Divorce under my noble and learned friend Lord Morton of Henryton. I remember, when we discussed their Report, noble Lords telling me from all parts of the House to get on with it and to put the recommendations of the Report into legislative effect. As my noble and learned friend Lord Conesford very frankly said, this is a unanimous recommendation of the Report. These are difficult points. You cannot laugh off a unanimous recommendation of the Morton Commission; you cannot laugh off what has been the law of Europe from time immemorial and also the law of Scotland. On the other side, I see the difficulty which my noble and learned friend Lord Denning is in in regard to 1236. In 1236 by the Statute of Merton your Lordships' predecessors said, "We do not wish to change the law of England" That is only, if my arithmetic is right, 723 years ago, and your Lordships may well think that that is a very short space of time after which to change your Lordships' minds on the point.

In spite of my little attempt at a joke, do not want my noble and learned friend Lord Denning to think that I really think this is a jocular matter. It is a serious change to make and it is contrary to our ideas. My right honourable and learned friend the Solicitor General was extremely worried about it, although I think I can go so far as this: that he did go on to point out, as I did, the pride of ancestry and the recommendations of the Commission.

That is the position. What is the test? This is what worries my noble and learned friend Lord Conesford. In this case, as I see it—and I think he would agree with me—there is no complication of adultery. We are regarding the innocent party who is not, to his or her knowledge, a party to adultery. That being so (I know that this point worried your Lordships the other day), are we not then entitled to look at the position of the child? I should have thought that we were. I speak as a Protestant, but it is interesting that that view has influenced another Communion than mine for such a long period. It influenced my own country for a long period. It has undoubtedly, as my noble and learned friend Lord Keith of Avonholm has said, influenced the Morton Commission. Again, I have told your Lordships that on this Bill it is a matter for your Lordships, but I have tried, as I hope your Lordships will agree, on every point to set out the accurate position fully. Again, as Lord Chancellor I am in a difficult position because, although the Government take a neutral line, as they very often do on matters of conscience, the House can expect to know what I think. I do not in the least mind whether or not the House adopt what I think; but, having given consideration to it, I would, on reflection, and indeed after a change of mind from my original position, vote in favour of the clause if I were going to vote.


I myself much prefer the clause as it stands in the Bill to the Amendment. It is much fairer and I think it is much more workable. My objection to the first clause was that it changed the whole law of succession in this country almost by tacit enactment, and because it opened the door to a tremendous number of frauds. I do not see that any great fraud can occur under this clause, and I certainly should support the clause and not the Amendment.


I hope the noble and learned Lord will not insist on pressing his Amendment. He has not actually moved it, but I take it that if he resists the Amendment before the House and gets it voted down it will come to the same thing. Before trying to deal with some of the points which he and the noble Lord, Lord Conesford, have made, I should like to say to the noble Earl, Lord Iddesleigh, that there is, of course, provision, as the noble and learned Lord has pointed out, to get questions of legitimacy brought before the court. Subsection (6), which is a very technical part of the clause before your Lordships, actually brings that into force with regard to the situation which this clause would set up. It requires a certain slight change in the law in order to enable that to be done, but if he will look at subsection (6) I think he will see that there is no difficulty in having a problem of this kind worked out in a court of law if the need arises.

May I say very shortly to the noble and learned Lord that I think it would be very unfortunate indeed if this clause is also removed from the Bill. I argued on the previous occasion that this, after all, is a Bill which was passed by the House of Commons by a very substantial majority. It is quite true that it was in a small House; but, in regard to this clause, there was no opposition to it whatever. We have now reached the situation in which noble Lords are saying that, because this is a Private Member's Bill, hereditary Peers and appointed Life Peers can override the decisions which have been taken by Members of Parliament who have been elected by the constituencies of this country; and I think it would be a very unfortunate thing if clause after clause is to be removed from this Bill by your Lordships' House. Clearly, from the newspapers there has already been a good deal of feeling in respect to what occurred last week. If the noble and learned Lord insists on having it over again, I think there will undoubtedly be trouble. Obviously, if this were a Government Bill it would not have been dealt with in this way. Your Lordships at the present time are not in such a secure position that you can afford to do things of this kind. And while I quite appreciate that it may well be that questions of conscience are so overwhelming that the interests of your Lordships' House as a whole must give place to them, I suggest that it is dangerous to push this sort of thing too far.

Having said that, I should like to say to the noble and learned Lord that his main objection—and, obviously, it is the one which any English lawyer must feel—is the one of logic: namely, there is no marriage; how can you have a child and regard it as legitimate? The noble and learned Lord really is the last of all the eminent lawyers of this age whom I should have expected to take a completely logical point of that kind, because his career in the law has been regarded on all hands, I think, as one which looked upon the line of the law as not being simply logical, but as being to get to the real circumstances of the case; "the felt necessities of the times" which require us to go beneath the logical surface of the situation and to get to the social facts. The noble and learned Lord was himself a little sensitive to a criticism of that kind, because he went on to suggest to your Lordships a number of difficult, complicated cases which might arise if this clause is passed into law, and argued that this type of difficulty was a reason why this clause should not be passed.

My Lords, I suggest that the noble and learned Viscount on the Woolsack has completely demolished that argument. If a country like Scotland, with which we are in the closest relationship, and if most, if not all, of the countries of Europe—which, after all, have a civilisation as old, if not older, than our own; and legal systems which have operated all the time—have succeeded for hundred of years in dealing with the sort of problems which arise under this clause, without getting into insuperable difficulties, then obviously our courts can do so, too. Law courts exist for dealing with the complicated and difficult case which is not the ordinary one arising in everyday life. It is only the difficult, complicated and borderline case which comes before the courts of law; and the law reports are full of the successful efforts (and some of the unsuccessful efforts) of courts of law to resolve this sort of situation.

This type of case can arise not only out of bigamous marriages, and not only out of fraudulent marriages, but has arisen, and does arise—and, again, the reports are full of cases of this kind—out of cases where marriages have been declared void because of consanguinity; because technically marriages were not carried through correctly; and in other ways. The point is that the parties have been perfectly innocent. In the present Year of Grace it is surely time that children conceived and born through marriages of this kind should no longer live on under the stigma of illegitimacy. I hone, therefore, that the noble and learned Lord will feel that it is not necessary to press this Amendment to a Division, and I hope your Lordships will accept this clause in its proposed and amended form.


A few moments ago I told your Lordships that I wanted to support the clause in the Bill as I thought it was right. I now wish to tell your Lordships that if anybody divides against this clause I will divide with them. I have sat in this House for a very long time, and I have never heard such threats addressed to it as have just been addressed by the noble Lord, Lord Chorley. I certainly think that if any case has to be supported by threats of that kind it must have a very feeble basis.

6.34 p.m.


I was really intending to give the Committee the opposite advice. Although from the last speech of the noble Lord, Lord Chorley, one might well think that this clause had no merits of any kind, yet I would ask them to disregard that speech, and would suggest that we should not divide on this occasion but should consider certain aspects of the clause again on Report. Let me at once utterly repudiate—and here I am in complete agreement with my noble friend who has just addressed the Committee—what I regard as the really preposterous speech of the noble Lord, Lord Chorley. This House was on the last occasion, and is on this occasion, endeavouring to address itself to the merits of the measure before it. It is completely and utterly untrue that the fact that it is a Private Member's Bill has anything whatsoever to do with it. Speaking for myself, I have not hesitated to divide against a Government measure, and to be myself a Teller against it, although on most things I hope I am a reasonably loyal supporter of Her Majesty's Government. It is the fine tradition of this House to try to consider matters on their merits, and I hope they will continue to do so. I hope that the speech of the noble Lord, Lord Chorley, will not influence the Committee to-day to insist on the deletion of this clause, but will be remembered perhaps at a later stage, when it may become most material.


My Lords, may I—


May I put one further point? One of the matters which troubled me most about this clause, and which I think we may want to consider further, should my noble and learned friend accept the suggestion I am making and not divide this afternoon, is this. He made what I thought was an extraordinarily important point about what he believed would be the law if this amended clause became part of the law of the land. It was not dealt with by my noble and learned friend the Lord Chancellor, and I am not sure whether my noble and learned friend agreed with it or not. My noble and learned friend Lord Denning said that it would not only be the children of a bigamous marriage who were born before the illegality of the marriage was known to both parties who would be affected, but that it would make further children legitimate even after the illegality of the marriage became known to both parties.


Would my noble friend allow me? I understood my noble and learned friend Lord Denning to say that that was the effect of the clause now in the Bill, but it was not the effect of the Amendment which the noble Lord, Lord Chorley, was moving. That is why I did not deal with it.


Yes, my Lords. I was pointing that out as an objection to the clause as it stands. The Amendment was at least necessary to correct that.


I am most grateful to my noble and learned friend for that intervention. That makes me completely happy not to oppose the new clause in any way at this stage, but I think there may be points that we should look at again at a later stage.


May I just say this: I think the noble and learned Lord opposite rather misconceived the position and the remarks made by my noble friend, Lord Chorley. Normally, the position is that opinions differ between the two Houses, and by means of Committees, Resolutions, and so on we attempt to get some measure of harmony. I myself firmly hold the view that the decisive voice can never be in this House finally, but in this case the noble and learned Lord has already cast out of the Bill the operative clause and there is no chance of putting it back. He has killed the Bill and asks that this House should kill the Bill. I do not know how much enthusiasm it may excite in another place, but only five people were moved to vote against it. That is a claim which cannot justly be made on behalf of your Lordships' House.


I would only say to the noble Viscount on that point that I said nothing of the kind.

On Question, Amendment agreed to.

Clause 3 [Custody and guardianship of illegitimate infants]:

6.41 p.m.

LORD DENNING moved to leave out subsection (2) and insert: (2) No order shall be made by virtue of this section on the application of the natural father of an illegitimate infant unless he is liable by virtue of any order or agreement to contribute to the maintenance of the infant and is not in default under such order or agreement. The noble and learned Lord said: May I state the object of this Amendment? The object of the clause as it stands is to give the father of an illegitimate child a standing to come before the court to ask for custody or access. At the moment, the law regards a bastard child as the son of nobody except its mother: filius nullius. The father has no standing to come before the court.

As your Lordships know, about six weeks after an illegitimate baby is born, the mother usually decides whether to have the child adopted or not. In such a case the father of the illegitimate child has no standing on the question of adoption unless he has been liable to pay by an order of the court or by an agreement. There is the case where the father of an illegitimate child lives with the mother for a bit and then goes off. Meanwhile, the mother marries another man, who keeps the child and wants to adopt it, but the father opposes it. In such a case, it has been held that he could not be heard on the adoption application. Is he in such a case, to be heard on the question of custody or access, when he has never taken any responsibility for the child at all, when he has never agreed to pay for it or been under any order or liability and where parentcy has not been established? The Amendment suggests that it would be a good thing to put him in the same position as in an application for adoption. The father would have a right, if he had a liability or had agreed to pay for a child, but if he had not assumed responsibility for the child then he should not have a right to claim custody or access. That is the object of the Amendment for your Lordships' consideration. I beg to move.

Amendment moved— Page 2, line 10, leave out subsection (2) and insert the said new subsection.—(Lord Denning.)


I am rather impressed by the arguments of the noble and learned Lord, but it is a matter with which I am not Very familiar and I should welcome the assistance of the noble and learned Viscount the Lord Chancellor, who has much greater knowledge on these matters.


I think that the best course might be if my noble and learned friend Lord Denning did not press his Amendment on this occasion, so that we might discuss it; and I should be grateful if my noble friend Lord Conesford would come in, too. This is lawyers' law. What worries me at the moment is that my noble and learned friend's Amendment says: unless he is liable by virtue of an order or agreement, to contribute to the maintenance of the infant and is not in default… There are cases where there is a deserving applicant, a man who has recognised his parental responsibilities to the extent of supporting and even living with the illegitimate child and the child's mother, but where there may not be an order or agreement. I should not like to see him barred from the right to apply for custody. But when I considered this point I found that it was difficult to define this deserving class. I considered whether the Bill should prescribe a minimum amount of maintenance payments which would qualify a man; whether the order should be recent, say in the twelve months before the application; whether the application might be made at any stage, and what should be the position of a man who is ready to support a child but who is prevented from doing so because of the child's mother, because, for reasons of her own, she has refused to allow him to do so. I should like my noble and learned friend to consider these points. From my view, they are practical points, not debating points, and I think that they raise a serious aspect in the matter which does not conflict with the view behind my noble and learned friend's Amendment. Therefore, I think it would be useful to consider this from a practical point of view to see whether we can do something so that, at the end of the day, we may not exclude some deserving cases. I suggest that we may have a talk about this matter before the next stage of the Bill.


On what my noble and learned friend has said, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clauses 3 and 4 agreed to.

Clause 5 [Procedure on applications for affiliation orders]:


This is a purely technical Amendment. With my noble and learned friend's assistance, a little defect in the Bill was discovered which requires a slight alteration in order to bring the Bill into line with the provisions of the Magistrates' Courts Act, 1952. I beg to move.

Amendment moved—

Page 2, line 42, at end insert— ("(2) In subsection (1) of section sixty of the Magistrates' Courts Act, 1952, the words 'or of proceedings for an affiliation order' are hereby repealed.")—(Lord Charley.)

On Question, Amendment agreed to.

6.48 p.m.

LORD DENNING moved to leave out Clause 5. The noble and learned Lord said: This Amendment raises a short point but an important one. It raises the question of whether proceedings should be in open court or not. For many centuries bastardy proceedings have taken place before the magistrates in sessions in the ordinary open court, where the public and newspaper reporters may come in the ordinary way. Again, on appeal to quarter sessions, where the evidence is taken all over again, the public and the Press have a right to enter. So far as I know, no complaint on any trouble has arisen because of that. The proposal is that, not at quarter sessions, but at petty sessions, this should be taken as domestic proceedings, which are held in semi-privacy. There are only three magistrates, not five; the newspapers are allowed to publish only the names of the parties and the result of the case; the general public are not admitted at all. It would not affect quarter sessions, where evidence would be taken in open court in the usual way.

Is it right to have one more invasion of the great principle that proceedings should be heard always in open court? It has often been said that one of the great safeguards of justice is that everything is held in public, where people can come to see the proceedings. The judge himself is on trial. Where these cases are contested, there is often almost flagrant perjury on one side or another. This proposal does not help the woman; her character and reputation are already gone. In my view, it saves her nothing, because the names of the parties can be put in the papers. Has there been any abuse of the ordinary procedure? I would suggest that no case whatever has been made why proceedings of this kind should not be dealt with as they have been dealt with for hundreds of years and, so far as I know, without any complaint or criticism. For that reason, I would ask your Lordships to support this Amendment. I beg to move.

Amendment moved— Leave out Clause 5.—(Lord Denning.)


Since the Second Reading debate I have again refreshed my memory of a celebrated speech made in this House on July 13, 1937, by Lord Atkin, who spoke very emphatically in the same sense in which my noble and learned friend Lord Denning has just spoken. I gave reasons in the debate on Second Reading, from my own recollection of the days when I was practising at the Bar, which made me think that this clause did not contain a wise proposal. I thought that in a class of case where perjury is so rife the parties would be, perhaps, a little less likely to commit perjury if there were people present in court who might know that the statements made were false. But I was impressed by the speech of my noble and learned friend the Lord Chancellor on that occasion, and I know well how much experience there has been since the days when Lord Atkin spoke.

I gather from conversations with those practising at the Bar to-day that there is certainly not less perjury in this type of case than there always has been; but I find differing views on the question whether that perjury is as likely to be detected in the form of tribunal which Clause 5, if we pass it, would prescribe as if it were heard in open court. While all my previous experience leads me to believe that my noble and learned friend Lord Denning is right, I should be content on this occasion to follow the considered advice of my noble and learned friend the Lord Chancellor, who will know what is the general opinion now held in this matter by those most competent to speak.


I confess that this particular clause is the only one about which I have had any hesitation, but it seems to me, on the whole, particularly in view of the fact that both the Magistrates' Association and the Magistrates' Clerks' Association, composed of men who have had probably more experience of this sort of thing even than the members of the Bar to whom the noble Lord, Lord Conesford, referred, are in favour of this proposal, that I ought to be prepared to accept their advice in regard to this matter. I have had a good deal of experience of dealing with bastardy cases as a chairman of quarter sessions for a number of years, and I never found that there was much hesitation in most of those cases in committing perjury in open court. I very much doubt whether the fact that proceedings are heard more or less in camera in the way that is suggested would make much difference.

One of the weaknesses in the administration of our law at the moment is that there is a great deal of perjury and very few prosecutions for perjury. If there were more successful prosecutions for perjury it might possibly have an inhibiting effect. But I do not think there can be much doubt that it is a sort of free-for-all in respect of the truth of statements made in the witness box in connection with many of these bastardy cases. I would not say it is always so, because I have had the encouraging experience of really honest putative fathers resisting the allegation of paternity, but obviously giving quite honest evidence. That happens from time to time, but undoubtedly, by and large, perjury is, as has been said, only too common, and I do not feel that there would be much difference if these matters were heard in camera. Therefore, on the whole, it seems to me that we should accept the advice of these experienced people and put this proposed change into the law.

On Question, Amendment negatived.

Clause 5 agreed to.

6.58 p.m.

LORD CONESFORD moved, after Clause 5 to insert the following new clause:

Conditions for re-registration of birth of legitimated persons

"Notwithstanding anything contained in section 14 of the Births and Deaths Registration Act, 1953, and the Legitimation (Re-registration of Births) Act, 1957, the Registrar General—

  1. (1) shall give to every legitimated person of full age whose birth has been registered in England or Wales not less than one month's notice of his intention to authorise the re-registration of his birth; and
  2. (2) shall not authorise such re-registration if that person gives to the Registrar General notice of his objection thereto."

The noble Lord said: I rise to ask the Committee to accept this new clause. Let me say at once that I do not regard it as nearly so necessary in the Bill as it now stands as it would have been in the Bill had we not struck out Clause 1 on the last occasion, because it will be seen that this Amendment refers only to a legitimated person of full age, and, of course, under the Act of 1926 the legitimated persons are normally children and frequently even babies. But, as I pointed out, under the Bill as it then stood the legitimated persons might well be persons of full age, who would certainly need such protection as my new clause affords. Although there will be few such people under the Bill as it now stands to whom my new clause will apply, I still think that it is a new clause of merit and should be adopted, even for the sake of those few.

The machinery of the re-registration of the birth of a legitimated person used to be contained in the Schedule to the Act of 1926, but it is now contained in the Statutes cited in my Amendment. The legitimated person, of course, is very much concerned in the re-registration of his birth. It will often not be in the interests of a child. I wish it had been possible to devise some machinery to make certain that the child's interests should always be considered, but that I think would be impossible without providing for just that type of law-suit which in the interests of the child should be avoided. But where the legitimated person is of full age, I see no reason whatever why his own decision should not be made on the question whether he wishes his birth to be re-registered or not.

I gave an example. Assume for a moment that a man is of full age, perhaps trading in the name under which he has grown up, the name of his unmarried mother. The people in the area in which he is trading may be utterly ignorant of the fact that he is an illegitimate child at all. Is it really just that, on the marriage of his mother to his natural father, it shall become automatically in the power of the Registrar General to re-register his birth, and to show in an official document that he has a surname quite other than that under which he has grown up and in which he is trading? I know that the promoters of this Bill are most anxious to serve the interests of the illegitimate child, though I do not think their proposals always have the intended effect. But in this particular case, where the illegitimate child is himself an adult, cannot we leave it to him to decide whether he wishes his birth to be reregistered? That is what this new clause proposes.

I will not trouble the Committee with the machinery of the existing sections. What I propose by this new clause is that where a legitimated person of full age is concerned, then the Registrar General shall give him not less than one month's notice of his intention to authorise the re-registration of his birth, and the person concerned shall be able to give a written notice of his objection thereto. If he does so the Registrar General will not carry out the re-registration. The advantages to the child are obvious. I cannot see that it is of any disadvantage to anybody, and I beg to move.

Amendment moved— After Clause 5 insert the said new clause.—(Lord Conesford.)

7.2 p.m.


I wonder if the noble Lord, Lord Chorley, would allow me to raise some technical points. I do not want to stand between him and the Committee, but there are some difficulties which I should like to put to my noble friend. The fact of legitimation is not dependant on the re-registration of the birth. That is ex concesso; and therefore a successful objection to re-registration would not alter the fact of legitimation, but would merely conceal it. One has to accept that point. The birth Register ought to show the true facts relating to the birth and parentage of the child, and the question whether the Register shows the child as legitimate or illegitimate ought to be determined by the facts and not by the desire of the individual to use one surname other than another.

I am very conscious of my noble friend's sentimental point on this Amendment, if I may so put it—I think he will not consider it offensive. He does not want to put the child into a difficult position. His difficulty arises from the fact that in his view it would be the Registrar's duty to alter the Register and change the name of the person. I am told that the re-registration would affect only the names of the parents as recorded in the Register and would not compel the child to change the name he had hitherto used.

Then there is the difficulty which arises the other way. In many cases a legitimated person has been brought up in the name of his real father and is ignorant of the circumstances of his birth. Many people (I know that this is a matter of great argument) think it undesirable that the fact should be disclosed to him in the way envisaged in the clause; that is, that he is suddenly faced with something of which he was previously ignorant. If the parents knew that the details could be revealed in this way it might deter them from applying for the re-registration of his birth, even though it would be to his benefit—I have in mind in a pecuniary, financial way—to have a legitimate form of entry. Therefore, what I say to my noble friend is that I do not think we have yet got to the root of this difficulty, and I should like him to consider it again between now and the Report stage. I hope he realises that I am most sympathetic towards what I have called, only in the most sympathetic way, the sentimental aspect of his Amendment. But there is an equally emotional difficulty in the situation which I have envisaged.


The noble and learned Viscount has made, much more cogently than I could myself, at any rate one of the points which I was going to make. I would only add this to what he has said. While I do not feel very strongly on this particular point, I would suggest that it is to some extent an academic proposal which would unnecessarily clutter up the law, which is always unfortunate. If the noble Lord could show me that it was likely to be a really hard case, I might go with him. But the only case which he has suggested as coming within this clause is a case where a man has been running a business under another name, and would be faced with hardship from a change in his name. I should not have thought that that was so at all at the present time. There is no reason why one should not use any name. During the war I think there was a Defence Regulation which made that illegal, but at the present time that particular difficulty really need not affect the man. Therefore, on the whole I should have thought that, in addition to the technical points the noble and learned Viscount has brought forward, there was a considerable practical reason for not pushing this particular suggestion.


I think the noble Lord, Lord Chorley, slightly misunderstood my point. I was not doubting the man's legal right to trade in whatever name he wished, but I think every lawyer, and indeed every layman in the Committee, can think of cases where it can he very disadvantageous to an adult to have any change made in the Register regarding his birth. I do not know the full implications—on what occasions you have to produce a birth certificate for certain purposes, and who is able to see a birth certificate. There would be many possible practical reasons for this Amendment had we not taken the action we did on the last occasion, when, under Clause 1, there would have been a great number of adults concerned. I agree that the number of adults who will now be affected is very much smaller. My noble and learned friend the Lord Chancellor understood far more accurately what was in my mind. I had considerable difficulty myself in considering all the technical points, and I am happy if I have succeeded in at least mentioning the correct statutory provisions in my Amendment. I will certainly study what my noble and learned friend has said on this occasion. I do not press my Amendment now, but we may have to consider the matter further on Report. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.


It was suggested to me that, as a result of changes in the Bill which have occurred since it was first introduced, the existing Title has become somewhat unfortunate and that it would be better to alter it in the way suggested in these Amendments. I hope that your Lordships will agree that it is a reasonable thing to do. In the circumstances I have much pleasure in proposing the first Amendment. I beg to move.

Amendment moved— In the Title, line 1, leave out ("and to improve") and insert ("to legitimate the children of certain void marriages and otherwise to amend").—(Lord Chorley.)

On Question, Amendment agreed to.


I beg to move.

Amendment moved— In the Title, line 3, leave out ("in other respects").—(Lord Chorley.)

On Question, Amendment agreed to.

Title, as amended, agreed to.

House resumed.