WELFARE OF ILLEGITIMATE CHILDREN

HL Deb 22 February 1967 vol 280 cc707-21

2.55 p.m.

BARONESS SUMMERSKILL rose to call attention to the law concerning and the welfare of illegitimate children; and to move for Papers. The noble Baroness said: My Lords, in the course of our debates on the modification of the divorce laws frequent reference has been made to the subject of illegitimacy and the immorality, in these days, of allowing the sins of the fathers to be visited upon the children. My purpose to-day is to focus attention on the law and the provisions made for the unmarried mother and the children born out of wedlock. In one sense, these children start level with legitimate children, in that no child is born of its own volition. Whatever may be said of the parents, a child is innocent of any wrongdoing. To discriminate against him, therefore, is to punish him for a wrong of which he is not guilty. It seems to me that unmarried mothers are still treated as scapegoats: scapegoats for social disapproval of the present greater permissiveness in sexual behaviour which characterises our time. By bearing a child the unmarried mother has produced evidence of sexual intercourse outside marriage, conduct which can be tacitly ignored where no child is conceived.

The public disapproval, and lack of adequate social and financial support, results in the posing of a tragic problem to the unmarried mother. Will her child's future be better if the child stays with his mother and his blood family, or will it be easier with a substitute family, under adoptive status, which to some extent masks the stigma of illegitimacy? This is the problem which faces 63,000 unmarried mothers. The illegitimate children born in England and Wales in 1964 represented 7.2 per cent. of all live births; and about 40,000 of these children were adopted. The maximum number of illegitimate births are to mothers aged between 20 and 24, but the largest single age group is of 19-year-old girls. So I think I can appeal to your Lordships' sympathy in this debate when I impress upon you that to-day we are considering the lot of the immature individual who very often finds herself a parent before her time.

We do not know how many children are brought up for long periods by mothers who remain single, isolated from their own families. But it is the group, which has no family backing that is the most socially vulnerable, and a check reported in the excellent pamphlet, Fatherless by Law, for which the right reverend Prelates are responsible, indicated that the greatest single factor causing children to remain in residential care is illegitimacy, and that income areas at least 50 per cent. of the children in care are illegitimate. My Lords, if the law contributes to thousands of innocent children being brought up in public care, this in itself is sufficient reason for the law to be reformed. The services provided for this very vulnerable group lag behind the services provided in less punitive countries. Consequently, the illegitimate child tends to start life handicapped, not only because of his status but because the community has failed to face up to its responsibilities.

I should like to pay a tribute to the statutory and voluntary agencies which have sought to advise and help these mothers, particularly the National Council for the Unmarried Mother and her Child, who, with the devoted assistance of their General Secretary, Mrs. Bramall, have set out the problems in a paper called Children on our Conscience. It seems to me that the unmarried mother shares with the widow and the divorced or deserted wife many of the problems arising from having the sole responsibility for bringing up her child without a father in the home: she has to supply economic and emotional security, not only for the children but for herself.

We have at various times tried to tackle this problem. The Affiliation Proceedings Act made few important alterations to the law—I am afraid there was not much change when I came to examine it—contained in the Bastardy Amendment Act of 1852, one of our laws still, which embodies the assumptions of the Middle Ages. The obligations of the father are still limited—limited to the payment of a small sum while the child is incapable of earning. The maximum amount was increased from 2s. 6d. to 5s. 0d. per week in 1872, to £1 in 1923, to 30s. in 1952, and to £2 10s. 0d.in 1960. This is the maximum which the girl can claim. However, certain minor reforms have been introduced which have helped to avoid embarrassment to the illegitimate child. The Legitimacy Acts made it possible for children to be made legitimate by the subsequent marriage of the parents; and an Adoption Act confirmed legitimate status on adopted children. I would, however, remind your Lordships that that is very little different from Roman times. The short birth certificate was welcome, but the real value is dependent on its use by a substantial part of the population; otherwise, of course, the illegitimate child cannot possibly disguise from an employer that it has a short birth certificate for certain reasons.

In 1962 a United Nations Sub-Commission recommended that illegitimate persons should be granted equal legal and social status to that of the legitimate, and they added that in those countries where this equality existed there was no indication that it had led to an increase in the percentage of illegitimate births. In Denmark, where a most enlightened policy has been introduced, the unmarried mother is treated almost as though her status were equivalent to that of the "legitimate mother"—and I really would say that, when one uses the word "illegitimate" in this connection, it is not the child who is illegitimate but the parents who are illegitimate. Denmark has pursued for many years a very enlightened policy. Yet, despite that, the illegitimacy rate has fallen.

The Continental practice is different from ours, for the amount of maintenance is not limited to a sum fixed by law. In Switzerland no limit is specified. Both parents are equally liable to maintain the child. In Germany the father is primarily liable. On the Continent, whoever brings affiliation proceedings is doing so on behalf of the child, whereas in England the child has no rights at all to claim maintenance; he is not even a party to the action.

I am afraid there is no legal system whereby one can ensure that a child born out of wedlock, or in wedlock for that matter, will not be abandoned by his father. However, a legal system can provide facilities for inducing "illegitimate fathers" to accept greater responsibilities. There are some major and minor reforms which could be implemented without further debate. Two years ago your Lordships gave a Second Reading to a National Assistance Bill of mine, designed to underwrite for married mothers the maintenance awarded to them by the court. This Bill had your Lordships' approval, but it did not meet with the approval of the Minister of that time. I hope, now that a little time has passed, and in view of this debate, and of what I hope my noble and learned friend who sits on the Woolsack will say to-night—at least perhaps he willshow his sympathy, if not going into too much detail—that the Minister of Social Security will now be able to accept the principle embodied in that Bill, if only within the limits of the Social Security grant. The Report of the Russell Committee dealing with inheritance and illegitimacy is generally welcome for the provision it makes for children in cases of intestacy, but I must say I regret that equal provision is not made for children who inherit from members of the mother's and father's families.

There are some further questions, of course, much wider questions, which must be examined by some committee of inquiry. I do not specify the nature of the inquiry, but I hope it will not be a Royal Commission, because Royal Commissions are notorious for sitting for so many years, and I think this is a problem which cannot wait much longer. I hope these other questions will be examined by a committee of inquiry to discover ways in which illegitimate persons can be assimilated and their legal position equated so far as possible with that of legitimate persons. It seems to me that wherever possible a legal relationship should be established between the child born out of wedlock and his father. There is a basic need for all of us to know our origins, and there is a general consensus of opinion that lack of knowledge of his father may hamper the emotional development of a child.

The Legitimacy Act 1959 illustrates the trend towards giving more responsibility to fathers. But this trend could be increased by legislation if we, for instance, adopted the Scottish approach. Scotland permits voluntary acknowledgment of children by fathers, and when filiation is established the father's name is inserted in the Register of Births. In Scandinavia it is the mother's duty to reveal the name of the father to a statutory authority so that proceedings can be taken. But I realise the full implications of that, and this question would have to be very carefully examined by a committee of inquiry.

One of the problems of the unmarried mother which many of your Lordships hear about when you hear complaints from people in the country is to get regularly the money to which she is legally entitled. There should be a standard fatherless children's allowance, vested in the child and payable to all illegitimate children; and, indeed, I believe, to all children of unsupported mothers. This should be recovered from the fathers to the full amount, or up to the amount decided by the courts, and paid through the Post Office in the same way as family allowances. The procedures for maintenance and affiliation certainly call for radical reform. I think that their unpopularity with unmarried mothers is evidenced by the fact that, in respect of the 63,000 illegitimate births in 1964, only 7,169 affiliation orders were+ granted. A woman barrister, Mrs. Olga Aikin, said There is a definite stigma attached to affiliation proceedings, and the burden of proof which the mother must discharge to show paternity is heavy and similar to that of prosecution in a criminal case".

I believe that the answer is to establish family courts for the hearing of maintenance and affiliation proceedings and, of course, other matters connected with the family. The rights should be vested in the child, and where his mother is unable or unwilling to act a best friend should be appointed on his behalf. I understand that a Committee under the Chairmanship of Miss Jean Graham Hall is considering the present maximum allowance, and I am hoping that the maximum will be abolished, and that, if fathers can pay more, then the court will award more. Again, there is the 12 months' time limit after which affiliation proceedings cannot be brought. I regard this as totally unfair to a young mother, who needs much longer to recover from an overwhelming emotional experience. The Ministry of Social Security exercise their right to bring proceedings within three years, and a United Nations Sub-Commission went much further and recommended that no time limit should be fixed.

There is another point. Courts vary. In many courts the clerk is a wonderful man—understanding, sympathetic, treating these young women as though they were his own daughters. But, of course, the attitude in courts varies, and I feel that it should be the duty of all clerks to act on behalf of the mother in arrears proceedings, when she is in the greatest difficulty. Parents of children horn out of wedlock often prefer voluntary agreements (and we can all understand why that is), rather than affiliation proceedings, and I believe that these should be registrable with the clerk of the court and thus given the same status as affiliation orders.

I understand—and I am glad to hear this—that the Government are consulting Commonwealth Prime Ministers about extending the scope of the Maintenance Orders Act 1920 to cover affiliation orders. I hope that we shall soon hear of a satisfactory outcome, and that on these matters there will be a reciprocal arrangement between the Commonwealth and this country. We are accustomed to seeing designations which are offensive or hurtful to those to whom they are applied changed, and there is a strong case for substituting for the words "bastard" or "illegitimate" in Acts and official documents some other term. Where it is necessary to distinguish between the status of children, the words "in wedlock" or "out of wedlock" should be substituted.

It seems to me that a mother should be given a free choice to decide whether or not to keep her child; and, of course, this is possible only if provision is made to enable her to make a decision in her own good time. I think the best arrangement would be the establishment of a comprehensive local authority service which could provide advice and practical help, including the care of the children while the mother is at work, for the day-nursery provision is quite inadequate. There is an urgent need for both temporary and permanent accommodation for the mother and child, and the growing numbers of local housing committees which accept unmarried mothers on their lists are deserving of our praise. Before this is done, prejudice rears its ugly head, and prejudice does not respond to a rational argument. The fact that the mother and the child need a home is not enough: society feels that the mother must be punished; and in punishing the mother it penalises the child.

The most poignant problem, of course, is that of the schoolgirl mother. She presents a special problem. These girls need help to see that the pregnancy is not a final disaster; that it does not completely destroy their lives. So a girl is entitled, and should be encouraged, to complete her school and more advanced education. In the four large urban local authority areas surveyed by the Department of Education and Science, it was found that, of 216 schoolgirl mothers, 141 received no education during pregnancy. I believe that we should aim to see that all unmarried mothers are placed in the best possible economic position, so that they can properly support themselves and their children if they wish to keep them.

Law reform should be based on the principle that all children are of equal value, and they should be granted all the rights and privileges which their innocence merits. The contention that family life would be threatened does not seem to rest on any solid social or ethical foundation. It would seem, therefore, that the time has come for a major review of the social and legal position of the illegitimate child and his parents; to examine ways in which illegitimate persons can be assimilated and their legal position equated, so far as possible, to that of legitimate persons. My Lords, I beg to move for Papers.

3.18 p.m.

LORD DERWENT

My Lords, I am sure we are all grateful to the noble Baroness for raising this important subject. Many people probably do not fully appreciate just how important it is. Your Lordships must be becoming rather bored with me getting up in debates of this kind and saying, first of all, that I am not an expert; secondly, that the debate deals widely with questions of law and that I am not a lawyer. In this particular case, from a technical point of view I cannot (so far as I know) declare an interest, but anyone who has been a Minister at the Home Office must take an intense interest in this subject, because it is now generally agreed that one of the important causes of juvenile delinquency is in fact illegitimacy. It is quite understandable. The child grows up feeling that it does not really belong and that it is rather different from other children. The child gets a grudge against society, and where this happens juvenile delinquency may well start. This subject is therefore important in the public interest, quite apart from the interests of the children, because anything we can do to decrease juvenile delinquency is very much in the public interest.

In so far as the illegitimate child is concerned, unlike the noble Baroness I prefer the word "bastard". I do so for the same reason that she does not like the words "illegitimate child", because I agree with her that it is the parents who should be called unlawful. But for the sake of convenience I shall refer to "illegitimate children", because that is the modern parlance. The difficulties of the illegitimate child are twofold: there are social difficulties and legal difficulties, and although they impinge on each other they are not quite the same. May I deal first with the social difficulties? These have altered somewhat in the last 150 years, and, in my view, for the worse in so far as the child is concerned. Up to the beginning of last century there would appear to have been little social stigma as regards the bastard child, so far as one can make out. The mother was made to suffer, but to be a bastard child was considered no fault of the child, and, as we all know, in certain cases it was rather a smart thing to be if the father was suitably smart. I do not think there was any real social stigma at that period. As I say, the stigma attached to the mother, and it also attached to a large extent to the father. It came about, I think, because communities were small, and social conscience is apt to be more fully developed in a small community than it is in a large one. So, as I say, in those days things were, if anything, from a social point of view, better for the child.

I am not referring to what took place in the large cities. London in those days was almost, though not quite, the only large city, and the whole system of living was different. If a father in a small community was unmarried he was expected to marry the girl, and if he did not marry the girl he probably had to leave the neighbourhood; indeed, as a rule the marriage took place before the child arrived and the child was never illegitimate. It did occur, of course—I am speaking of those days—that it was occasionally socially impossible (I think that is a proper phrase to use) for a man to marry the particular girl, but he was still expected to provide financially for her and for the child. In those small communities if the father was a married man it was well known who he was, and again he was normally expected to provide financial aid for the mother and child. Again he was severely blamed, if no worse, if he did not undertake this duty; and where it happened that the father was not prepared to undertake this duty it frequently happened that the mother and the child were brought up by the mother's family.

This still goes on in small rural communities; at least, it does in England proper—I use the phrase "England proper", as your Lordships realise, for that part of the United Kingdom that lies between the Trent and the Scottish Border. In the country districts, certainly in the North, and I imagine also in the South, it is unusual in the small communities for a girl who is having a baby to be "cast off", to use the old phrase. In the towns it is different.

Then at the beginning of last century the Industrial Revolution started, with a new, large, get-rich-quick middle class. The automatic effect was that communities became larger, and, in my view, social conscience over many years became less pronounced. What were then known as the upper class and the lower class were, traditionally, I think, always kinder to their own than were the new middle class. The upper classes of those days were quite a small community and looked after their own, and the poor looked after each other rather better than some of their richer neighbours, because if they did not look after each other and stick together nobody else was going to do it for them. But as this new industrial middle class formed larger cities, for the first time, I think, the word "bastard" became a term of abuse. All that they were interested in—not all of them, of course; many were very charitable people, but by and large as a community—was getting on in the world. Then in the latter part of the last century we had the appalling Victorian hypocrisy which had grown up, and the only thing that mattered was to avoid a scandal. That has to some extent persisted to this day, though I think things are getting rather better from the social point of view as regards the illegitimate child.

May I come now to the legal side, which has been slightly touched on by the noble Baroness? In those earlier times the mother had very few legal rights, but particularly during this century she has gradually acquired a few more, though not very many. In those days the bastard child had no rights. In so far as his position as a bastard is concerned, he has no rights to-day. He is no better off now than he was then. The last thing that ought to occur, if it can be avoided—I do not want my words misunderstood—is that the child should be taken into care and sent to a home, whether it is a local authority home or a voluntarily run home or a hostel. I know it is frequently absolutely necessary, but that is the last thing that ought to happen to any child if possible. It gives him or her no family at all.

Good foster parents are one stage better; they give him or her a home, but they do not really, except in very rare cases, give a child a proper family background. Adoption, when it can be carried out, is probably rather better again. But the best thing for the child is for it to be brought up if possible by its mother, even if she is not very good at it, unless, of course, in certain circumstances the illegitimate child can even be brought up by the father and mother. That is what we have to aim at. I would suggest that it is in this sphere that alteration in the law might well be speeded up and is necessary. In so far as the social stigma is concerned, there is nothing we can do by legislation, though legislation may help.

I want to deal with only two of the matters already mentioned by the noble Baroness—two legal matters. One is the question of affiliation and maintenance. As the law is at present—and I always find myself saying that phrase when the noble and learned Lord the Lord Chancellor is going to speak later—the affiliation order is for the mother; the maintenance is for her. She need not, in law, spend a penny of it, when she has got it, on the child, if she does not want to; the child has no rights whatsoever. They do things better on the Continent. There—I will use the phrase "affiliation order"—the affiliation order is the right of the child. The child can claim against the father. It is usual, or frequently happens, that the mother acts on behalf of the child and claims the maintenance, the money; but it is not in the least necessary, and if the mother is either unable or unwilling to claim, then the court or the appropriate local authority, depending rather on which country it happens to occur in, appoints a guardian for the child and that guardian acts for that child. The right of maintenance is the child's, and that is asked for either by the mother or the guardian who is properly appointed.

I should not have thought it difficult to alter our law to come into line with the Continental habit, which seems to be much better. It has two advantages. If the mother dies, the child still has its own maintenance money. Even more important, if the father dies the main- tenance money is a charge against the father's estate, because it is the child's right to have that money up to a certain age. So I would suggest that that is the first way the law might easily and profitably be altered.

The other matter that I think should be looked into in regard to changes in the law is the question of what is known as recognition. In English law the father has no legal right at all to his own illegitimate child. He is not in law expected to assume full paternal responsibility for his child—in fact, he is seriously hindered from so doing by lack of any possibility of voluntarily putting himself in a legally recognised relationship of father to the child. That is the position in law in this country. On the Continent—this varies again from country to country—the father can legally recognise his own illegitimate child. The effects of that recognition vary from country to country, but the main effect of the father's voluntarily recognising the child is that the father then has the same legal responsibility towards that child as he has towards his legitimate children, even in some cases as regards property, though I think what corresponds to entailed property is never brought in to the illegitimate child. But the father then is responsible for that child in the same way as he is for the legitimate children.

It may be considered a strange thing, but fathers are quite prepared to do this. There seems to be an encouragement to them to do it voluntarily. As a result, the child, even though not living with the father, has a complete family background. He is the same as other children; he has a father and mother. He has a legal father and mother. This, I believe, is most important. Although it is a new concept in English law, I would suggest that the law might well be altered to bring it into line with one or more of the Continental countries, who I think are ahead of us in this matter. I have spoken long enough. I would merely ask the noble and learned Lord, the Lord Chancellor, when he comes to reply, to say whether the Law Commission have yet examined either of these two matters, recognition and the Continental system of affiliation orders; and, if not, whether they will have time in the near future to go into these questions.

3.34 p.m.

THE LORD BISHOP OF EXETER

My Lords, I am at once surprised and gratified to find that at last I have discovered a subject on which I am substantially, if not completely, in agreement with the noble Baroness; and I am most grateful to her for having introduced this subject and for the proposals which she has made concerning it. For anyone like myself, who has a background of extremely happy and secure childhood, it is very difficult to think oneself into the position and the feelings of an illegitimate child. I do not myself believe that the stigma of illegitimacy is the gravest part of the problem. It may have been in older times, say, forty, fifty or sixty years ago, but I doubt whether that is the case now. Where, for example, illegitimate children are brought up by their natural parents, along with brothers and sisters in a home which is relatively secure and affectionate, I greatly doubt whether the children suffer any great damage by reason of their illegitimacy alone. After all, such children know who their parents are, and they are in a continuing and factual relationship with both of them.

It would appear that these are the two greatest needs for all children. Of course, adopted illegitimate children have this latter need satisfied, in that they are in continuing factual relationship with both a male and a female parent. But the child of the unmarried mother who is being brought up by the mother alone has neither of these two satisfactions. It neither knows who is its father, nor is it living in a factual relationship with a married couple. These deprivations have a lasting effect upon the child as it passes from infancy to childhood, from childhood to adolescence and so to maturity. The present law, by regarding an illegitimate child as legally fatherless, is therefore itself a severe contributing cause of this dissatisfaction and unhappiness in the life of the illegitimate child. Therefore, I fully support the suggestion which has been made both by the noble Baroness and by the noble Lord, Lord Derwent, that our law should provide for some kind of voluntary registration in the form of a legal document by the father of the illegitimate child, whereby he would incur both responsibilities and rights as regards the child.

I agree also that the present system of affiliation orders should be altered, so that maintenance payable by the father should be the right of the child and not the property of the mother; and that there should be provision for a guardian of each illegitimate child to take action on the child's behalf if the mother is unable or unwilling to do so. In other words, I think that what one has to try to do is to create a situation in law whereby the bastard child is in precisely the same position vis-à-vis its maintenance and its parents as is the child of divorced parents; and that the attitude of society towards the bastard child should be based on the same principle; namely, that the primary consideration is neither the convenience nor the embarrassment of either parent, but the true well being of the child.

Again, it is, I think, of immense importance that the affiliation order or maintenance order, or whatever it is to be called, should not, as at present, be limited to the derisory figure of 50s., which is calculated as being roughly equivalent to the cost of maintaining the child by the public authority, but should be based on the child's welfare and the parents' means. When one considers for one moment the almost insuperable difficulty with which an unmarried mother is faced if she has to care for her own illegitimate child on 50s. a week, especially when she must herself go out to work and must presumably therefore employ someone to help with her child, is it in any way surprising to find that in so many cases the young unmarried mothers, who have started with every intention of bringing up their children themselves, have in the end had to abandon them and that the children have had to go into public institutions? The number of illegitimate children who are in public institutions for almost the whole of their childhood is immensely greater than the number of legitimate children. I have some up-to-date figures in relation to Dr. Barnardo's Homes. The numbers of children who have been in care for 12 to 14 years are: 41 legitimate, 108 illegitimate. As to those who have been in care for 10 to 12 years, the figures are 54 legitimate as against 134 illegitimate, and so on. These are things which ought not to be.

It has been argued that to show any special consideration for the interest of illegitimate children, to do anything to bridge the gap of privilege between the legitimate and the illegitimate child must to some extent prejudice the stability of marriage. It must, so it is said, lessen that sense of importance which people are now assumed to have not to procreate children before they are married. But if this thesis is true, the Illegitimacy Acts, whereby the subsequent marriage of the parents makes the children legitimate, must, one would have thought, have produced already a very strong diminution of the stability of marriage. But, so far as I can see, there is not the slightest evidence of that.

It is, of course, true, that some such system as voluntary registration of the father, or more extensive application for recognition of the fatherhood by the man, might put some strain on some marriages because there would be a revelation of a concealed adultery. But I should have thought that for such marriages, if they were already happy and stable, the shock would be survived. For others, which were unhappy and fragile, this perhaps might be the last straw. It is also sometimes argued that it is unjust to the legitimate children to divert from them any of their parents' property to which they might think themselves to be lawfully entitled. Of course, it is true that whatever you give to illegitimate children, you must take away from legitimate children. If you like you may say that that is unjust, but it is not nearly so unjust as is the present law in relation to illegitimate children.

Human weakness, lust, treachery, disloyalty, passion, have their tragic consequences, and more often than not these consequences fall, not upon the offenders, but upon innocent bystanders; and again, more often than not, among those bystanders, they fall upon small children. Things are what they are, and their consequences will be what they will be, and in these situations unhappiness, even injustice, cannot be entirely avoided. It is our duty to see that everything possible is done to alleviate unhappiness and to reduce it to the minimum, so that everything possible is done to secure fairness and justice all round, and so that the situation is rendered as little tragic as human persons can arrange.