§ 3.12 p.m.
§ Order of the Day for the Report of Amendments read.
My Lords, on behalf of the noble Lord, Lord Chorley, who apparently is not here, I beg to move that this Report be now received.
§ Moved, That this Report be now received.—(Lord Rea.)
§ On Question, Motion agreed to.
§ LORD DENNING moved to insert as a new Clause 1:
".—(1) For subsection (2) of section one of the Legitimacy Act, 1926 (which excludes the operation of that Act in the case of an illegitimate person whose father or mother was married to a third person at the time of the birth), there shall be substituted the following subsection:
'(2) Nothing in this Act shall operate to legitimate a person whose mother was married to a third person when the illegitimate person was born and who has been accepted by such third person as his child.'
§ (2) In relation to an illegitimate person to whom it applies by virtue of this section, the Legitimacy Act, 1926, shall have effect as if for references to the commencement of that Act there were substituted references to the commencement of this Act."302
§ The noble Lord said: My Lords, at the Committee stage of this Bill Clause 1 of the Bill was rejected. By this Amendment, those with me seek to have it reinstated, but with modifications. The clause, as your Lordships may remember, sought to render legitimate all children whose parents are lawfully married one to the other, no matter whether the child was born before they were married, and no matter that, at the time the child was born, one of its parents was married to somebody else. On the Committee stage, a particular objection to the clause was raised which I am sure impressed some of your Lordships. It was raised particularly by my noble friend Lord Conesford, and it was that it would enable a mother first to bastardise and then to legitimise her own child.
§ The noble Lord took as an instance the case where a married woman has an intrigue with a lover, unknown to her husband with whom she is living at the time, and later a child is born. The husband accepts the child as his, and years pass. The husband dies, and then, after all that time, the mother seeks to bastardise the child, saying that it was never her husband's child, and seeks to legitimate it by marrying her lover, That was the case which my noble friend put. It is a case which, I submit, could hardly ever occur, because I cannot imagine any judge or any court bastardising any child at the instance of the mother. But in case there may be some of your Lordships who think otherwise, we have now modified the clause so as to exclude the possibility of such a bastardising and legitimation. Subject to that modification, my Lords, I would ask you this afternoon to reinstate the clause.
§ As objections were made to it in principle at the Committee stage, may I just remind your Lordships of what legitimacy means? The law of legitimacy is a necessary corollary of the law of marriage. So long as you have a law of marriage, you must have some children who, when born, are legitimate, and others who, when born, are illegitimate. But so far as legal consequences are concerned, there is a great difference. The legitimate child, as your Lordships would expect, is recognised by the law as the heir and successor to his parents. The illegitimate child is not. It is cast 303 off; it is not the heir or successor to its parents at all. And it is because illegitimate children are under legal disabilities that I believe a stigma attaches to them. This stigma follows the legal disability; it does not create it—because just consider what happens when the legal disabilities are removed. Take the case of a child who is adopted by parents. He has no legal disabilities at all. Most adopted children are born illegitimate. When they are adopted, they are adopted into the new family without any legal disabilities at all. They can succeed as heirs and successors to their adoptive parents in every respect save as to titles and dignitaries. What happens is that when the legal disabilities are removed this stigma is removed. There is no stigma on any child by reason of its being adopted.
§ So, my Lords, I would consider why and when should legal disabilities still remain on children. Our English law has had two principles involved in this matter. The first principle was this: that all children born in lawful wedlock are legitimate, and that those born out of wedlock are not legitimate. It does not matter when the child was conceived; it matters when it was born. So, as your Lordships know, when young people, a couple, are expecting a child, they often hurry to get married before it is born. They marry, as they say, "to give it a name," because they know that so long as they marry before it is born, it is legitimate. That is the old English Common Law. That is the old principle. But a new principle also was introduced in 1926, where, if the parents marry after the child is born, the child is legitimated by the subsequent marriage. Why should it depend on the circumstances? Perhaps the man may be overseas for a time and unable to marry the woman before the child is born. So long as he marries her afterwards, surely that child should be legitimate. So has the law been since 1926.
§ But in 1926, when that new principle of legitimation by subsequent marriage was introduced, at that very time a proviso was also introduced which I suggest to your Lordships has worked injustice. The proviso was this: that if one of the parents was married to somebody else at the time the child was born then that child is illegitimate and cannot be legitimated 304 in any circumstances whatsoever. My Lords I say that the proviso was unjust and is unjust, and the reason I say it is because of the numberless cases which have come before me as a Judge in the Divorce Court as I was, and since, involving the operation of this clause. The most numerous type of case in which it applies is when husband and wife separate and live apart from one another. It may be that, early on in the marriage, they find they cannot get on, and they go their separate ways; or it may be that a soldier goes to the wars, or a man goes overseas, and the wife is left at home. At all events, being separated, human nature being what it is, one side or the other sets up house with another person and has a child by that other person. That is the common case. The husband, returning from the wars, finds that his wife has had a child by another man and is living with that other man. He of course brings divorce proceedings, and a divorce is obtained. The woman marries the other man. They may have three more children. Now, the child born before marriage is illegitimate and the three children born after marriage are legitimate, as the law now stands.
§ Let me observe to your Lordships the legal disabilities that fall on the eldest child of those two people. I am not speaking of stigma at the moment. If the father or mother dies, the eldest child takes nothing of the property on intestacy, the three youngest children take everything by the mere fact that they happened to be born after the divorce went through and the other before. If a will is made by the father or mother, the grandfather or grandmother or any other member of the family, leaving their property to the children of that couple, the money by the will goes to the three youngest children, not to the eldest child, though they have been brought up as one family all the time through. I submit that that is unjust.
§ It means that the eldest child, being in law illegitimate, is cast out by the law. It reminds one of Scriptures, of the casting out of the son of the bondwoman, for the son of a bondwoman shall not be heir with the son of a free-woman. This is a casting out of the eldest son born before marriage, for he is not to be heir with the children born after marriage. Not only is this a common case of injustice, but over thirty 305 years ago, when this proviso was before Parliament, those who take the same side as I would to-day included four Prime Ministers—Sir Winston Churchill, the noble Earl, Lord Attlee, Mr. Neville Chamberlain and Mr. Ramsay MacDonald—my noble friend Lord Swinton and two Lord Chancellors, Lord Haldane and Lord Birkenhead. In those days, all those great men opposed the introduction of this unjust proviso and sought to have it out, as I would seek to have it out to-day. It does not stop at those names. I would call to aid every Judge of the Divorce Court, because they do everything that they can to mitigate the injustice caused by this proviso.
§ There are scores of cases which I have tried in this fashion. The wife is going to have a child by another man and the husband brings a divorce. He gets a decree nisi, but a child is likely to be born before the decree becomes absolute. If it is born before the decree becomes absolute, that child will be illegitimate and nothing can be done to help it to become legitimated. In these circumstances, applications are made every day to Judges of the Divorce Court to speed up the decree absolute because then the divorce will go through before the child is born and it can be legitimated. Every Judge of the Divorce Court, so far as I know, accedes to such applications as of course. Why should the child be penalised for the law's delays? I was speaking to a senior Judge in the Divorce Court only last week and he told me that in the last three days he had had fifteen of such applications and, of course, granted them all. Every one of those children was conceived in adultery. If there was any moral principle to be invoked, surely those Judges would have known of it; but every one of the Judges, in order to prevent the injustice created by this clause, expedites the decree so that the child will not be born during the marriage. So I say that the clause is unjust.
§ What are the arguments against it? It is said that we must keep this proviso in so as to deter persons from committing adultery. My noble friend Lord Cones-ford did not put that point. He was not impressed by it, and I hope that your Lordships will not be impressed. Who-ever heard of a couple bent on 306 committing adultery stopping to think whether there would be a child or not, or, even more, stopping to think of whether that child would be illegitimate or not? Would that deter them? I suggest that it would not.
§ The next argument is that it is contrary to principle that a married man should be able to beget lawful children by another woman whilst his marriage continues. This principle has the support of my noble and learned friend Lord Morton of Henryton and the majority of his Commission. But if that were an essential moral principle, I am afraid that the Judges of the Divorce Court infringe it every day, because in all those cases that I have mentioned the child is begotten in adultery and it is only by expediting the decree that it is able to be afterwards legitimated. I submit that those Judges do not infringe any essential moral principle. If your Lordships had the responsibilities of those Judges, as I have had, and were faced with an application to expedite a divorce decree because, it is argued, why should a child suffer because the divorce is so long in going through, because the solicitors may have held up the matter a bit, I do not think you would refuse it. No Judge thinks of refusing. Such cases alone—I said fifteen in three days—run into hundreds, and the cases which a Judge can remedy are only a few. There are many more in which he is powerless because a child has already been born before the divorce.
§ The next argument against it is that it is contrary to the principle of monogamy. If monogamy were still with us intact so as to prevent people from divorcing and remarrying, there might be something to be said for this argument, but the law of this country now allows divorce and remarriage. So, if we make a union lawful, surely all the product of that union should also be lawful. It rather surprises me that those who oppose my Amendment should do it on this basis, because there is a second clause in this Bill which legitimates children of a bigamous marriage even though the parents are not married. And not one of those who oppose this clause took serious objection to that clause, though my noble friend Lord Conesford did raise his eyebrows about it.307
§ What is the next objection? It is said: The law on this matter of legitimacy is founded on a pretence. It is pretended that the marriage took place before the child was conceived, and how can it be pretended that a marriage took place when one of the parties was already married to another person? That is a fiction which has no place in our English law whatsoever. It may be a fiction in Canon Law, but not in English Law. We have a simple, clear law. How poor an argument it must be that has to resort to legal fictions for its support!
§ It is said: "Why should not the child be adopted?" Many parents have neither the knowledge nor the money to adopt a child, and one cannot adopt a child of more than twenty-one years of age. So that adoption does not cure these cases. Then, there are three specific instances which are given against the new clause. It is said that undue pressure can be put upon a wife to bring a divorce suit. If it is realised that a child of the other woman may be illegitimate, pressure may be brought on her to bring a suit so that it can be legitimated. I know that some women refuse to bring a divorce against their husbands because of religious grounds, some because of financial grounds—they want to inherit the money—and some out of spite. But I have never heard of one who brings or refuses a divorce because the children of the other woman may not be legitimated. Then it is said—and this I have already mentioned—that it would enable a mother to bastardise and then to legitimise her child. That is so fantastic a case and so unlikely to happen—the presumption of legitimacy would always prevail—that I do not think I need take up your Lordships' time with it. But in case some of your Lordships were impressed by that, we have put this provision in the clause which says that in such a case there shall not be the bastardisation and legitimisation.
§ The last instance is that given by the right reverend Prelate the Lord Bishop of Exeter when he spoke about Smith Major and Smith Minor. He referred to the bold bad baronet who goes off with another woman and has a child by her before the divorce and another child by her after the divorce and when they are married. The children go to a preparatory 308 school and, of course, the older is Smith Major and the younger Smith Minor. Then the baronet dies; the position is then reversed and the younger becomes the baronet. That shows nothing wrong with the clause about legitimacy on subsequent marriage; if anything is wrong, it has to do with titles. You can take any fantastic case of this kind in which you can point to some oddity or quirk in its application.
§ I may say that my noble and learned friend Lord Birkett, who is unfortunately unable to be with us this afternoon because of his other engagement, has asked me to say how strongly he supports this Amendment, and to say also that any rejection of it would be, in his opinion, a completely retrograde step, I submit that to bring up fantastic instances against this great humane measure would be a retrograde step in your Lordships' House. I ask your Lordships to reinstate the substance of the clause as it originally was. If any of your Lordships are impressed with the fantastic illustration of bastardising and legitimating, we have met that in our Amendment. For myself, I should not be impressed by it. I see that my noble and learned friend Lord Meston has a further Amendment down to that which I am now moving, and he wishes to reinstate the clause wholly, just as it was in the beginning. For my part, I should be readily agreeable, if your Lordships thought it was the right course, to reinstate it as it was in the beginning without any modification. But in case any of your Lordships are worried about one or two fantastic instances, then I would ask you to accept the Amendment that I now move. It is a piece of justice to remove legal disabilities from children who ought never to suffer by them. I beg to move.
§ Amendment moved—
§ Before Clause 1 insert the said new clause.—(Lord Denning.)
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I should like to say a word about the procedure. According to the general practice of your Lordships' House, I will now call on the noble Lord, Lord Meston, to move his Amendment to the Amendment moved by the noble and learned Lord, Lord Denning, and it is open to your Lordships to have the subsequent debate 309 restricted to Lord Meston's Amendment to the Amendment and dispose of it and then return to the substantive Amendment. On the other hand, it might be convenient if there was a general discussion on the principle and I then returned to the vote and put Lord Meston's Amendment to the Amendment and later, according to the fate that that has, put the substantive Amendment. It is entirely for your Lordships, but if it is convenient your Lordships can adopt that course.