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Family Law Reform Bill Lords

Volume 114: debated on Tuesday 7 April 1987

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Order for Second Reading read.

10.1 pm

I beg to move, That the Bill be now read a Second time.

In recent years, as part of the Government's programme of law reform the Lord Chancellor has tried each year to include at least one important item relating to family law.

The subject of illegitimacy has twice come before the Law Commission for England and Wales and has once come before the Scottish Law Commission. The purpose of the Bill is to enact generally the recommendations of the first report of the English Law Commission, subject to modifications proposed in the second report, deriving from the Scottish line of approach, which has already been enacted.

The importance of the subject may be illustrated by the fact that, in 1985, 126,000 children were born of parents who were not married to one another at the time of their children's birth. Illegitimacy, being a result of sexual intercourse outside marriage, may occur for a number of reasons. They range from indifference as to whether children are brought up within the framework of a marriage, to promiscuity, adultery and rape. None is facilitated or encouraged in the least degree by this Bill, which does nothing to undermine the institution of marriage but which does mitigate the impact upon children of the sins of their fathers—or for that matter their mothers—by eliminating so far as possible the legal disadvantages of illegitimacy.

Under the existing law there is discrimination that directly affects the position of both the illegitimate child and its father. The maintenance of such a child is subject to special restrictions affecting the jurisdiction of magistrates' courts; for instance no lump sum exceeding the relatively paltry figure of £500 may be awarded. An illegitimate child is subject to discrimination in its right to inheritance. It cannot, upon intestacy, inherit from a brother or sister or any other collateral, and though it can inherit from a parent it cannot inherit from any more remote ancestor. It cannot be the heir to an entailed interest. The father of an illegitimate child is also subject to discrimination by law, which may adversely affect the interest and welfare of the child.

Part I of the Bill contains only one clause, but it lays down the fundamental principle on which the Bill is based. Subsection (1) applies both to enactments and to instruments passed or made after the commencement of the Act. It provides that, unless a contrary intention appears, relationships are to be construed without regard to the marital status of the parents at the time of birth. This reflects the Scottish approach.

The policy of clause 1 is applied, by clause 2, only to certain specified past enactments. Clause 3 renders enforceable an agreement between parents relating to parental rights and duties, if, but only if, the court considers that the child will benefit by the agreement. Clause 4 and following clauses give the father of an illegitimate child various rights that he does not, at present, enjoy. It provides that the court may order that he may enjoy—subject to any contrary direction—jointly with the mother, if she is alive, or guardian, all parental rights and duties with respect to the child. The courts will, of course, have a discretion as to whether to make such an order and such an order will be made only if to do so is in the child's interest. It is envisaged that a typical situation in which such an order might be made would be where the child's parents have been living in a stable relationship which is ended by the mother's death. The effect of an order vesting all the parental rights and duties in the father would effectively be to put the father into the same legal position in relation to the child as he would have been in had he been married to the mother at the relevant time. The need for the ability to make such an order was emphasised in a recent case.

Under this Part of the Bill the father of an illegitimate child is also given certain other rights in relation to that child. He will be able to apply for these rights only if he already has rights to custody, or care and control over, the child in question.

Additionally, whenever it is in the child's interests to do so, the father of an illegitimate child who actually has custody of him is given certain rights as a "parent" under the Children and Young Persons Act 1969 and the Child Care Act 1980. It is considered that the creation of these rights strikes the righ balance between the father's parental rights and the duties of the local authority in such a case. They also ensure that a father who, before a child is taken into care, has had responsibility for its upbringing, is put in the same position as its mother.

Part II makes general provision for custody and access orders and for financial provision on behalf of the illegitimate child.

The Guardianship of Minors Act 1971 is amended so that the courts will be able to make custody or access orders in relation to all children, whether or not legitimate, either on the application of either parent, or where a guardian has been appointed to the exclusion of the surviving parent, or where there is a disagreement between joint guardians, one of whom is a parent. When the court makes an order under those provisions it will in all cases apply the principle that the child's welfare is to be the first and paramount consideration.

Let me deal in a little more detail with the financial provision for illegitimate children. The Bill repeals the Affiliation Proceedings Act 1957. That Act is a direct descendant of the old bastardy laws, whose object was to relieve the parish of the burden of child maintenance if it could be placed on the father. The repeal of this Act abolishes the separate and distinct procedure for enforcing financial provision for an illegitimate child by affiliation proceedings. The Bill provides that orders for financial provision for all children, irrespective of their parents' marital status, are to be obtained by proceedings under the Guardianship of Minors Act 1971, as amended.

Accordingly, there will no longer be a time limit of three years after the birth of the child for the bringing of financial proceedings for illegitimate children. Secondly, there will no longer be any special rule of law requiring corroborative evidence that the putative father is the natural father of an illegitimate child. This distinctive requirement, which the Law Commission thought had no place in the civil law, dates back to the Poor Law Amendment Act 1834, under which the overseers of the poor could recover from the putative father the cost to the parish of supporting the illegitimate child. Thirdly, the child's mother will be able to apply for a financial provision order in respect of an illegitimate child, notwithstanding that she is married to a man other than the child's father. Finally, the special avenue of appeal from the magistrates court to the Crown court will no longer be available. Such an appeal has been unique to this area of domestic jurisdiction and has been an accident of history.

Under the Bill the High Court, the county courts and the magistrates' courts will all have jurisdiction to make orders for financial provision for an illegitimate child, as they already have for legitimate children. Magistrates' courts will cease to have exclusive jurisdiction. As with orders for custody and access, the courts will be empowered to make financial provision orders, either on the application of one of the child's parents, or where there is a guardian to the exclusion of the surviving parent, or where there is a disagreement between joint guardians, one of whom is a parent. Additionally, provision is made for applications by children over the age of 18 whose parents are separated and who are undergoing further education or training, or who have special needs, such as some form of physical handicap.

Part III deals with an illegitimate person's entitlement to certain property rights. This area of the law was last reformed by the Family Law Reform Act 1969. It made various changes which to some extent improved the position of an illegitimate person. However, that Act did not remove all the legal disadvantages which affect an illegitimate person in this regard. Part III remedies this deficiency.

The rules of intestacy are amended so that illegitimacy becomes, in general, irrelevant for the purposes of entitlement or intestacy; and this covers not only the succession of the illegitimate child to the property of others but the rights of others to succeed to the estate of an illegitimate person who dies intestate. Various reforms are effected which benefit illegitimate persons in relation to their rights of succession under wills and other dispositions, including entailed interests.

None of these changes affects succession where a person dies intestate before the coming into force of the provisions, or succession under a will made before their coming into force. None of these reforms will alter the descent of titles of honour, or the devolution of property along with such titles.

Am I right in understanding that adopted children will have all the rights of natural children except that they will not be able to succeed to a peerage?

I shall deal with my hon. Friend's question about adoptive children in more detail later, if he will permit me to do so.

Part IV provides a new remedy by way of a right to seek a declaration by the courts, to those who seek to establish the facts of their own parentage. For example, there may be a question of future entitlement to property which turns on a dispute as to parentage. The best evidence to resolve such a question, such as blood tests, might no longer be available at the time when the property came to be distributed. In such cases a potential claimant might wish to seek a declaration of parentage at the earlier stage when that evidence is still available.

Part V facilitates the recording of paternity on the birth certificate of an illegitimate child, and part VI deals with a number of miscellaneous and supplemental matters. The most significant clause in this Part is clause 27, which deals with the legal status of a child born as the result of the artificial insemination of a married woman by a donor. When the woman is artificially inseminated with the semen of someone other than her husband, and her husband consents to such insemination, the clause provides that the child is to be treated in law for all purposes as the child of the marriage.

Will my hon. and learned Friend confirm that that would apply equally to a test tube baby that was born to an anonymous donor, be it a father., a mother or both parents?

As I have said, it applies to the artificial insemination of a married woman by a donor in circumstances in which the husband consents to that insemination with the semen of someone other than her husband.

The policy of clause 27 has been endorsed in the report of the Warnock committee of inquiry into human fertilisation and embryology. The clause was part of the draft Bill that was attached to the Law Commission's first report in 1982, but after the publication of its second report, the Law Commission indicated that it-would have preferred the matter to be dealt with as part of any future comprehensive legislation on the issues discussed in the Warnock report. However the Government considered that the clause should remain in this Bill. They did not think that a Bill that removed, the discrimination against illegitimacy would be just without clarifying the position of the AID child at least to the extent that Warnock approves. If need be, the clause can be amended later in the light of any future legislation. But to delay an agreed policy until full legislation on the Warnock report could not, in our view, be justified.

The Bill is an important law reform measure that will help illegitimate children to have as normal a family life as possible. Because such children may be born in unstable family circumstances, it is of great importance that the law should not inflict any additional disadvantages upon them. The Bill seeks as far as possible to remove the remaining legal disadvantage from which they suffer. I acknowledge with gratitude the work that the Law Commission put into the preparation of the Bill, and I commend it to the House.

10.14 pm

First, I thank the Solicitor-General for his detailed explanation of the Bill's contents and for letting me have sight of the notes on clauses, which have been prepared to help him make his presentation. It is helpful for me, on behalf of the Opposition, to have sight of the enormous amount of detail that is contained in the document. It helps to deal with detailed matters that perhaps we would otherwise have trawled in Committee. I am grateful to the right hon. and learned Gentleman.

The purpose of the Bill is to enact the recommendations of the first report of the English Law Commission, which is LC 118, which was modified into the second report, which is LC 157. The object of the Bill is to remove any avoidable discrimination against, or stigma attaching to, children born out of wedlock. I welcome that principle unreservedly. The policy that lies behind the Bill is that to the greatest possible extent the legal position of a child born to unmarried parents should be the same as that of a child born to married parents. This will bring the United Kingdom into line with the Council of Europe convention on the legal status of children born out of wedlock and with the European Convention on Human Rights.

This is clearly an important subject. In 1985, there were 126,000 children born to unmarried parents. At present children who are born out of wedlock are discriminated against in a number of ways. For example, in the provision of maintenance, there is special jurisdiction exercised by magistrates. They cannot award a lump sum for maintenance in excess of £500. The law on inheritance provides that a child born out of wedlock cannot inherit on an intestacy from a brother or sister. He or she can inherit from a parent but not from remoter ancestors. Although it is less common, a third example of discrimination is that the father of a child who is born out of wedlock is also subject to discrimination. If he is awarded custody of the child, no maintenance contribution can be ordered from the mother, irrespective of her means. Further, a father's consent is not required for the adoption of such a child or the marriage of such a child who is under the age of 18 years.

Clause 1 applies to instruments passed both before and after the commencement of the Act and provides that in general, unless a contrary intention is evident, relationships are to be construed without regard to the marital status of a person's parents at the time of his or her birth. In clause 4, certain rights are given to the father of a child who is born out of wedlock. The courts are given a discretion to order that the father can enjoy jointly with the mother or guardian of the child all parental rights and duties. Furthermore, there are a number of rights that are given specifically to the father. The father has the right to apply to the courts for directions when the parents disagree on questions of the child's welfare. There is now the right to apply to become the child's guardian on the death of the mother, and the right to appoint a testamentary guardian. As well as this, the father has the right to object to a testamentary guardian appointed by the mother. The father's agreement is now to be a precondition to the child being adopted or to him or her getting married under the age of 18 years.

The Solicitor-General referred rightly to the financial provisions. The Bill abolishes the Affiliation Proceedings Act 1957. This removes the separate procedure which exists for enforcing provisions for children born out of wedlock by affiliation proceedings. The procedure will be that laid down under the Guardianship of Minors Act 1971. In other words, the position will be the same for all children. The High Court and county courts will have jurisdiction to make orders to provide financially for children born out of wedlock.

The Solicitor-General referred also to property rights. The rules of intestacy are to be amended so that illegitimacy becomes irrelevant for most purposes as regards entitlement to property on an intestacy. The hon. Member for Bolton, North-East (Mr. Thurnham) will, I assume, be pleased to be able to anticipate good news in later years. The descent or devolution of titles or property which devolves with titles is unaffected by the Bill. I do not know whether that is good news for the hon. Gentleman, but he has expressed an interest.

It is my understanding that an adopted child is not in a position to succeed to a peerage. That is my reading of the position, and I consider it to be unfortunate.

Obviously the hon. Gentleman is not pleased enough. It is my understanding that the Bill makes no change in that direction, so perhaps it does not go as far as the hon. Gentleman would like.

The Bill contains a number of miscellaneous provisions. There will be a new remedy whereby a child born out of wedlock can apply for a declaration from the court to seek to establish the facts of his or her parentage. Paternity can be recorded on the birth certificate of a child born out of wedlock. Where the husband consents to his wife conceiving by artificial insemination, the child is to be treated as a child of the marriage.

All of that is welcome. However, there is a major anomaly that we shall wish to trawl in Committee with an amendment from the Opposition. That deals with the effect of the Bill on anomalies as regards citizenship. The principal defect of the Bill is that it does nothing to remove the anomaly created by the British Nationality Act 1981. The problem was stated clearly by the Law Commission in paragraph 3.22 on page 13 of its report. It states:
"A legitimate, legitimated or adopted person can derive British citizenship under the new British nationality Act 1981 from his mother or from his father. An illegitimate person can only derive citizenship from his mother because for the purposes of the Act "father" means only the father of a legitimate or legitimated person."
That issue has received widespread public attention, especially from pressure groups, particularly the Joint Council for the Welfare of Immigrants and the Commission for Racial Equality. Briefly, the arguments are that the Bill is designed to
"remove, as far as possible, the legal disadvantages of illegitimacy so far as they affect the illegitimate child."
By failing to deal with the question of nationality the Bill is subject to a glaring omission. The British Nationality Act 1981 created the problem. The Act ended the conferral of British citizenship by birth. British citizenship is the key to the right of abode, which makes the problem all the more important. By virtue of the 1981 Act children born in the United Kingdom are British by birth only if one parent is British or is settled in the United Kingdom. By section 50(9) of the Act the word "parent" does not include the father of an illegitimate child. Therefore, if his mother is a foreigner the child does not obtain British citizenship. Similarly, fathers of illegitimate children born abroad can confer no rights of citizenship.

When the 1981 Act was in Committee the Government said that they were not dealing with the problem because the Law Commission was reconsidering the position of illegitimate children. That reconsideration brought about the legislation that we are discussing today. However, the right hon. Member for Aylesbury (Mr. Raison) said :
"If an acceptable solution could be found, the matter could be dealt with by legislation based on the Law Commission's reports."—[Official Report, Standing Committee F, 17 February 1981; c. 102.]
The Commission argued strongly for the change. In paragraph 11.9 of its report it said :
"we see no reason of principle which would cause us to change the proposal … that non-marital children should be enabled to acquire British citizenship from their fathers on the same terms as does a marital child under the existing law."
However, it did not draft proposals, because it was unable to make definite proposals as regards Scotland.

In another place amendments were sought to rectify the position and the noble Lord Silkin was the principal proponent. The Lord Chancellor stated that he and the Government had no objections to the general principle that a child should be able to acquire citizenship from his father. However, the Lord Chancellor itemised two objections. The first was that the Bill applies only to England and Wales whereas citizenship is a matter for the United Kingdom. He said that that required consultation. Secondly, he said that there could be difficulties in establishing the paternity of children born abroad. I have to say that that looks like time-wasting. There does not appear to be evidence that the issue will be contentious. Further, it is five years since the Law Commission made its proposal. Why has nothing been done since then? What has been done since the matter was raised in the Lords? Where do the Government stand on the issue now? We shall find out in Committee, if not later tonight.

To deprive children born out of wedlock of their right to British nationality is to deprive them of a fundamental human right. To fail to correct that glaring omission in the Bill and to pass the buck between the Home Office and the Lord Chancellor's Department seems to be cruel and contrary to the whole object behind the Bill. If the Government do not deal with the issue now, it is fair to ask, when are they going to get round to it? That is the only major matter that we shall be wishing to pursue in Committee. However, there are three other minor matters that I shall trail now.

The first is the representations that I have received, and I am sure that Conservative Members have received, from the Magistrates Association. It proposes an amendment to the Bill to rectify what it describes as an anomaly as regards illegitimate children. Its case is that section 16(1) of the Domestic Proceedings and Magistrates' Courts Act 1978 provides that :
"Either party to a marriage may … apply to a magistrates' court for an order under this section."
The section empowers the court to grant injunctions to parties to a marriage to restrain domestic violence. The Magistrates Association argues that it is in the interest of law and order that small children should be protected from violence in the home, whether or not their parents are married. I am sure that no hon. Member will disagree with that.

The association goes on to argue that the children of married parents are afforded this protection by section 16, but it is contrary to the principles of natural justice that children of unmarried parents should be treated differently. While unmarried mothers and their children can obtain injunctive relief from a county court judge under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976, the Magistrates Association argues that county court judges are not as easily accessible and available as magistrates. Therefore, protection should be extended to non-married people and their children by amending the Bill.

As I understand it, the Lord Chancellor argues that the Bill is not an appropriate vehicle for such an amendment because it would be outside the scope of the Bill. While it affects children who are born out of wedlock, it has wider-ranging implications and consultation with child welfare authorities is necessary. I can see that there is some force in this, and I am certainly not pre-judging the issue. Unlike the issue of nationality, I still have an open mind on this subject.

The Law Commission, in its report which led to the 1978 Act, decided only to extend the magistrates' jurisdiction to married persons, and clearly there was some good reason behind that decision. While the change in the law is desirable, the protection from county courts is aleady there and the Bill may not be the right place for such an amendment. There will be an opportunity for us to explore these points again more thoroughly in Committee.

Two other points have been made to mc. The first is the use of the word "minor" rather than "child" in the Guardianship of Minors Act 1971. A detailed commentary on this has been sent to me by my right hon. Friend the Member for Leeds, East (Mr. Healey). He was sent it by the Campaign for Justice in Divorce. It is closely printed, if not closely argued, and the substance of the case that it makes is one at which we may be able to look in Committee.

The final argument that is raised on the Bill came inThe Sunday Times on 28 January by a journalist, Maggie Drumond, in an article entitled "The Reality of Being Illegitimate". She argues that the real problem is not the legal stigma of illegitimacy, which the Bill proposes to remove, but the poverty that comes from being in a one-parent family. She argues that unmarried mothers are poor because they have difficulties in earning a decent living.

The thrust of the article, which criticises the Bill, is that it does not give fathers rights but merely the opportunity to apply to courts for rights, and that women will be terrified of men trying to get their hands on the children. Furthermore, the Bill
"with its emphasis on men's rights is for the trendy, joint non marital partners with their cohabitation cookbook."
I can see the case that Ms. Drumond is trying to make, in that the points about poverty have some force, and I sympathise with them. However, I cannot see that, by themselves, they make a case against the Bill. The seeks to remove the legal discriminations against children born out of wedlock. That is its narrow purpose, and I support it in that narrow purpose. It does not deal with wider issues, because it was never intended that it should. On its own terms, it is clearly to be welcomed. While there are matters to be explored in Committee, I am sure that the measure will, in principle, command a great deal of support from all sides of the House.