HL Deb 21 January 1969 vol 298 cc907-13

3.11 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Lord Chancellor.)

On Question, Motion agreed to.

THE LORD CHANCELLOR moved Amendments Nos. 1, 2 and 3:

Clause 13, page 10, line 37, after ("Act") insert ("or at common law")

Clause 14, page 11, line 40, after ("Act") insert ("or at common law")

Clause 15, page 13, line 11, after ("Act") insert ("or at common law").

The noble and learned Lord said: My Lords, your Lordships will have ob- served that Amendments Nos. 1, 2 and 3 are all in exactly the same words and consequently, if no noble Lord objects, I will move all three together.

Amendment No. 1, to Clause 13, is a drafting Amendment, which excludes from the operation of Clause 13 illegitimate children who are recognised at common law as having been legitimated. Clause 13 confers upon illegitimate children and their parents rights of succession on intestacy which are not as extensive as those conferred by Section 3(1)(a) of the Legitimacy Act 1926 on "legitimated persons". The main difference is that the rights conferred by Clause 13 extend only to the parent-child relationship, whereas under Section 3(1)(a) a "legitimated person" is treated, for all purposes of an intestacy occurring after the legitimation, on a par with a person born legitimate.

By virtue of Sections 8(2) and 11 of the Act of 1926, "legitimated person" in that Act means either a person who is legitimated under the Act (that is to say, a person whose father was domiciled in England at the time of the relevant marriage), or a person recognised by virtue of the Act as having been legitimated—that is to say, a person whose father was at the time of the relevant marriage domiciled in a foreign country the law of which provided for legitimation by subsequent marriage. It was, however, held by Harman, J. in Re Hurll: Angelini v. Dick, in 1952 that a person who would have been recognised at common law as having been legitimated independently of the Act of 1926 was not a person so recognised by virtue of that Act. The object of Clause 13(8) is to ensure that no person born illegitimate and subsequently legitimated should be treated less favourably than he would be if Clause 13 had never been enacted. It is therefore necessary to exclude from Clause 13 all classes of legitimated persons, and the Amendment makes it clear that persons recognised at common law as having been legitimated are so excluded.

The analogous Amendments to Clauses 14 and 15 make corresponding provision for the construction of references in those clauses to "illegitimate child". In both those clauses it is necessary, unlike the position in Clause 13, to ensure that references to illegitimate children do include references to all categories of legitimated persons.

On Question, Amendments agreed to.

THE LORD CHANCELLOR moved Amendment No. 4. After Clause 24, insert the following new clause:

Entry of father's name on registration of birth of illegitimate child

(" .—(1) In section 10 of the Births and Deaths Registration Act 1953 (which provides that the registrar shall not enter the name of any person as the father of an illegitimate child except at the joint request of the mother and the person acknowledging himself to be the father and requires that person to sign the register together with the mother) for the words from 'except ' onwards there shall be substituted the words except—

  1. (a) at the joint request of the mother and the person acknowledging himself to be the father of the child (in which case that person shall sign the register together with the mother); or
  2. (b) at the request of the mother on production of—
    1. (i) a declaration in the prescribed form made by the mother stating that the said person is the father of the child; and
    2. (ii) a statutory declaration made by that person acknowledging himself to be the father of the child.'

(2) If on the registration under Part I of the said Act of 1953 of the birth of an illegitimate child no person has been entered in the register as the father, the registrar may reregister the birth so as to show a person as the father—

  1. (a) at the joint request of the mother and of that person (in which case the mother and that person shall both sign the register in the presence of the registrar); or
  2. (b) at the request of the mother on production of—
    1. (i) a declaration in the prescribed form made by the mother stating that the person in question is the father of the child; and
    2. (ii) a statutory declaration made by that person acknowledging himself to be the father of the child;
but no birth shall be re-registered as aforesaid except with the authority of the Registrar General and any such re-registration shall be effected in such manner as may be prescribed.

(3) A request under paragraph (a) or (b) of section 10 of the said Act of 1953 as amended by subsection (1) of this section may be included in a declaration under section 9 of that Act (registration of birth pursuant to a declaration made in another district) and, if a request under the said paragraph (b) is included in such a declaration, the documents mentioned in that paragraph shall be produced to the officer in whose presence the declaration is made and sent by him, together with the declaration, to the registrar.

(4) A request under paragraph (a) or (b) of subsection (2) of this section may, instead of being made to the registrar, be made by making and signing in the presence of and delivering to such officer as may be prescribed a written statement in the prescribed form and, in the case of a request under the said paragraph (b), producing to that officer the documents mentioned in that paragraph, and the officer shall send the statement together with the documents, if any, to the registrar; and thereupon that subsection shall have effect as if the request had been made to the registrar and, if the birth is re-registered pursuant to the request, the person or persons who signed the statement shall be treated as having signed the register as required by that subsection.

(5) This section shall be construed as one with the said Act of 1953; and in section 14(1)(a) of that Act (re-registration of birth of legitimated person) the reference to section 10 of that Act shall include a reference to subsection (2) of this section.")

The noble and learned Lord said: My Lords, this amendment enables the name of the father of an illegitimate child to be entered on the register of births, first, without the need for his attending personally to sign the register on the occasion of first registration, and secondly, on the re-regisration of a birth that has already been registered. Under the current law applicable to England and Wales, the name of the father can be entered only at the joint request of both parents and on the father's signing the register. This is under Section 10 of the Births and Deaths Registration Act 1953. There is no provision for the "late entry" of the father's name unless the child's birth is re-registered on legitimation. This comes under Section 14. It is thought that these provisions may, in an appreciable number of cases, prevent the father's name from appearing on the register notwithstanding that both parents wish it to be included and that its inclusion might be of some benefit to the child.

In Scotland, the position is different. Under Section 18(1) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, the father's name may be entered on first registration, not only if he attends with the mother and signs the register but also if there are produced to the registrar a declaration by the mother stating that he is the father and a statutory declaration by him acknowledging paternity. Moreover, Section 18(2) enables the registrar subsequently to record the father's name by making an appropriate entry in the Register of Corrections if, inter alia, there are produced to him declarations to the like effect made by the mother and the father within 12 months of the birth. Your Lordships may remember that in Committee the noble Viscount, Lord Colville of Culross, suggested that the Bill might provide an appropriate means of extending to England facilities similar to those available in Scotland, and moved a new clause based on Section 18(1) of the 1965 Act. I said that I accepted the principle underlying the noble Viscount's Amendment but that there were drafting difficulties about it and if he would withdraw his Amendment I would consult with him to see whether we could find appropriate terminology. On that, the noble Viscount withdrew his Amendment. This Amendment meets that undertaking.

Subsection (1) of the new clause amends Section 10 of the Act of 1953 so as to provide, as an alternative to the current procedure, that the father's name should be inserted in the register on first registration at the request of the mother and on the production by her of, first, her own declaration in the prescribed form stating that the man concerned is the father and, secondly, a statutory declaration made by him acknowledging paternity. This is the same procedure as that provided for by Section 18(1)(b) of the Scottish Act, the only difference being that subsection (1)(b) of the new clause states in terms that the father's name is to be entered on the production by the mother of the appropriate declarations, whereas Section 18(1)(b) of the Act is not explicit on this point. However, the form of declaration currently prescribed is such that it can be produced only by the mother. The mother's declaration has to be in a prescribed form—that is to say, a form prescribed under Section 39 of the Act of 1953; the father's declaration must be a statutory declaration. The reason for requiring a statutory declaration by the father is that otherwise there would be no sanction for a deliberately false declaration, whereas the mother's declaration, being made by an informant, falls within Section 4(1) of the Perjury Act 1911.

The principle underlying subsection (2) and subsection (1) is that the father's name should appear on the register only if both parents desire it. Subsection (2) also departs from the Scottish precedent in providing directly for re-registration and not for prior amendment of the original entry. The disadvantage of operating by way of amendment is that the method of correction laid down by the Registration Acts would give more than normal emphasis to the circumstances of the child's birth.

I do not think I need trouble your Lordships with the other subsections. I hope that the noble Viscount, Lord Colville of Culross, will feel that the moving of this Amendment complies with the undertaking that I gave. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am more than grateful to the noble and learned Lord the Lord Chancellor for moving this Amendment. It certainly meets the point that I made in the Committee stage and, indeed, as the noble and learned Lord has said, goes a good deal further than my Amendment did then. I hoped that it would be possible to provide a fairly straightforward and comprehensive means whereby if both parents wanted to re-register the child's name, or if they both wanted the father's name to appear as well, this would be possible. It seems to me that the substance of the new clause does exactly that. That is all I sought, and I am grateful to the noble and learned Lord for having had the clause re-drafted properly and for putting it in the Bill. I can say in advance that it seems to me that the consequential Amendment in the Title is also a great improvement on what I tried to put in.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment in the Title is consequential on the new clause dealing with the registration of illegitimate births. I beg to move.

Amendment moved— Line 10, at end insert ("to make further provision, in connection with the registration of the birth of an illegitimate child, for entering the name of the father").—(The Lord Chancellor.)

On Question, Amendment agreed to.

LORD HILTON OF UPTON

My Lords, in order to enable my noble friend the Leader of the House to make the Statement which he promised earlier, I beg to move that this House do now adjourn during pleasure until shortly after 3.30 o'clock.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned during pleasure.

House resumed.