§ 3.54 p.m.
§ House again in Committee.
§ THE EARL OF IDDESLEIGH
I wonder whether I may make a suggestion to the noble Lord, Lord Hughes, in these terms. The Code Napoléon does what the noble Lord wants. It gives to the illegitimate child the right to a share in the family inheritance. Nevertheless, it provides careful safeguards which I believe would go far to satisfy the noble Lord, Lord Drumalbyn. I am certain that the noble Lord, Lord Hughes, could very profitably study those safeguards in the Code Napoléon or in a good manual on that subject.
§ LORD HUGHES
I am most grateful to the noble Earl for his suggestion, which I shall be happy to follow up. With the same attitude, I have no hesitation in advising your Lordships not to accept the Amendments in the form in which they have been proposed by the noble Lord, Lord Drumalbyn. The purpose of the first Amendment, as the noble Lord, Lord Drumalbyn, has explained, is to limit the succession rights of an illegitimate child to his mother's intestate estate only and to remove the words in the clause which would enable him to succeed also to his father's estate. The latter two Amendments would have the effect of confining the reciprocal rights of a parent to succeed to his illegitimate child's intestate estate to the case of a mother. I should say, in passing, that I am surprised at the narrow approach of the noble Lord to the improvement of the status of illegitimate children in succession matters which these Amendments reflect—particularly in view of the general sympathy which your Lordships' House has always expressed with the position of such children and the support which your Lordships accorded to the Russell Committee's Report during the debate in February, 1967, on the welfare of illegitimate children.
Behind these Amendments is, I think, the view that there is a real difference between a father's relationship with an illegitimate child and a mother's. That seems to me to be very deep water into which we are asked to venture. The Russell Committee, however, examined 229 this aspect of the matter and concluded that the simple view should prevail: that an illegitimate child has a moral right in the estate of both parents on intestacy both, after all, are responsible for the existence of the child. This is very much the view which the Government accept. I am sorry to reiterate phrases which I have used before, but I think it is necessary to do so in view of what the noble Lord said. It is in the Government's view morally wrong to allot an illegitimate child an inferior or unrecognised status in succession to both parents' estates, since to do so is to punish him for a situation for the creation of which he was blameless.
I may say that I am surprised at the sweeping nature of the proposed Amendment. Even those—and I include Sir Hugh Lucas-Tooth, who differed from the majority of the Russell Committee, and those who put down Amendments in another place—who were doubtful about the simple principle of the Russell recommendations appeared to accept that, where the father had in some way accepted the child into his family, it was reasonable that that child should have succession rights. I must say that I found this view difficult to understand since it would grant a right to the child who had already had the benefit of recognition and refuse it to the child who had not. The child who has been punished by being deprived even of recognition is going to be deprived even further, whereas the child who at least had the benefit of recognition is going to have succession thrown in as an added benefit.
But the noble Lord does not accept even this limited extension of the rights of an illegitimate child. He has referred to the difficulty of establishing paternity in some cases. One must admit the correctness of what has been said. These are practical difficulties, and it is easy to over-exaggerate them, but they should not divert us from the main purpose of the Bill, which is to accord to illegitimate children a status in succession which has for too long been denied them—a status which must be enjoyed equally with legitimate children in the estates of both parents.
It is only for the purpose of the convenience of this debate that I will 230 continue to refer to "illegitimate children". I do not accept that there are any illegitimate children. All I am prepared to admit is that there are illegitimate parents. If illegitimate children are to have a right of succession to their parents, it seems only reasonable that, in accordance with the Russell Committee, recommendations, a reciprocal right should be accorded to the parents. I know there are additional difficulties here, because the father may not be known, but subsection (3) of the clause provides in practice a way around such a situation. Given the existing law regarding the rights of parents to succeed their legitimate children, it seems to us a natural corollary of equating illegitimate children with such children in succession matters that both parents should acquire rights in the estates of their illegitimate children.
I may say, in passing, that although the noble Lord, Lord Drumalbyr, said that there was confusion in principle in the Russell Report in the excluded succession rights of illegitimate children to the estate of a grandfather, we do not think there is in fact a confusion of principle. The basic principle which is being accepted in this Bill is that the child should not be penalised for a fault which was not his but was the fault of his parents. But the fact that it was the fault of his parents does not make it the fault of his grandparents. It is for that reason that it is not necessary to extend the rights to grandparents' property.
I have said that these Amendments strike at the root of Part I of the Bill. For practical purposes, a right to the mother's estate will be of comparatively little value in comparison with a right to the father's. We shall not have gone far to improve the succession position of illegitimate children. For that reason, I say to your Lordships that we are faced with a simple question here: Do we accept the moral claim of illegitimate children to succession rights against their parents, or do we adhere to the view, which I am quite certain is not the view of the people of this country to-day, that they should continue to be penalised in succession rights by circumstances of their birth over which they had no control?
231 I have only one other point to make. The noble Lord said that the worst possible time at which a family could learn, perhaps for the first time, that they had an illegitimate half-brother or half-sister was when they were mourning the death of a father. But the noble Lord seems to proceed on the basis that it was only the illegitimate children of a father who would be unknown, and that the illegitimate children of a mother would always be known. In point of fact, in many cases it is just as likely to be the other way; namely, that the woman who has an illegitimate child before her marriage has successfully concealed knowledge of its existence both from her husband and from the children of that marriage. Yet the noble Lord is prepared to accept as reasonable that, in these circumstances, the family should learn for the first time of an illegitimate half-brother or half-sister simply because it was the child of their mother rather than the child of their father.
One must accept that if these are the circumstances in which it becomes known for the first time, the addition to grief will be equally great in either case. But it has never been a principle in this country that justice should be denied to anyone because it may cause hardship, grief or suffering to other people. The primary consideration is: What is the right thing to do? We have no doubt that in this matter—and up to the present this House has had no doubt in the matter—the right thing to do progressively has been to remove from illegitimate children the stigmas which have attached to them in the past and such material and other disadvantages as have been attached to that stigma. If noble Lords accept these Amendments as proposed by the noble Lord, Lord Drumalbyn, they will be turning their faces firmly to the past and rejecting the path which they have now trodden in relation to the improvement of the status of illegitimate children for quite a number of years.
THE EARL OF MANSFIELD
The noble Lord, Lord Hughes, has rather skated over the difficult question of establishing the paternity of a child. Will he be kind enough to say (I may be dull, but I cannot see where it is expressed in the Bill) how it is accepted who is the father of an illegitimate child? There are, un- 232 fortunately, young women who are somewhat promiscuous, and when an illegitimate birth is registered, if this Bill is to become law in its present form, the temptation will be for the young lady to attribute the paternity to those of her lovers who are of the most substantial financial resources.
§ LORD HUGHES
I do not think the noble Earl is fair to me in saying that I rather skated round the point. I admitted the difficulties. I pointed out that we made an attempt to deal with this matter in subsection (3) of the clause. Obviously, if there were not difficulties about establishing the paternity, the probability is that there would not be so many illegitimate children about; more of them would be legitimate in the beginning.
§ LORD KILBRACKEN
Is my noble friend aware of the great progress that has been made in the field of haematology over the last twenty years, that has made it possible to establish paternity with a far greater degree of certainty than previously?
§ THE PAYMASTER GENERAL (LORD SHACKLETON)
If the noble Lord, Lord Drumalbyn, is agreeable, I would intervene to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed accordingly.