– in the House of Commons at 12:00 am on 30th January 1959.
I beg to move, That the Bill be now read a Second time.
The first important legislation brought before this House on the subject of illegitimate children was in 1576. It is interesting that the Preamble to that Act reads:
The said bastards being now left to be kept at the charge of the parish where they be born to the great burden of the said parish, if ordained that.…
And then the Act follows. Its main aim was to save a charge on the rates. No attempt was made to face the problems of illegitimate children or to deal with them nationally. There has been a great deal of debate on the subject of illegitimate children since that date, but the old tradition still covers much of our law and administration.
It is of interest that the British Medical Association report on the matter stresses the fact that:
It is not yet universally recognised that whatever the guilt of the parents of the illegitimate child, no moral blame can rest on the child itself.
After the First World War the House of Commons for the first time really tried to face this problem. Between 1918 and 1926 there were no less than twelve Bills on the subject of illegitimacy introduced into this House and three in the other House. Most of those were Private Members Bills, and the principal Clause in each aimed at legitimising children whose parents subsequently married.
Most of the discussions on these Bills were repetitive and a very big waste of time because the arguments were gone over again and again. The discussions on the first of the Bills cleared up most of the difficult problems, such as succession to titles and so on, but later a violent controversy developed over the Clause which I seek to amend by Clause 1 of this Bill, namely, that which limits the legitimisation of children whose parents subsequently marry by cutting out cases where one of the parents had been married to a third party at the time the child was born. The Clause which I seek to exclude was usually dropped from the various Private Members Bills in Committee but restored later on the Report stage in a vain attempt to buy off opposition to the Bills, because the Bills never got through in the Session in which they were introduced.
Finally, the House became tired of the succession of Bills and the Government of the day introduced one which became the Legitimacy Act, 1926. In that Bill, at the bidding of Dr. Davidson, the then Archbishop of Canterbury, the Clause excluding children from being legitimised if their parents had been married to a third party at the time of their birth was included. It is interesting to look at the debates of thirty years or more ago to see the principal arguments in favour of this Clause which I seek to exclude.
The most common argument first put forward was that
justice could be done to the child but only by lowering the standard of public morality.
The strongest supporter of this view and, perhaps, the most extreme one, was Sir Charles Oman, the historian, who was then one of the Members of Parliament for Oxford University. He went so far as to say that
all men were potential Henry VIIIs
and that if this Clause were excluded
it would be an incentive to a man to commit the murder of his wife in order that he might marry his mistress.
The second most common argument put forward in this discussion was that it would encourage divorce. It was said that people would think twice before committing adultery if the resulting child would be legitimate. Dr. Davidson, however, in his speech in the other place, avoided excesses of that kind. He definitely said that he did not think immorality would be encouraged by
adopting this Clause because immorality was due
to the passion of the moment and to other things.
However, he supported the Clause, firstly
on the ground of general expediency,
and secondly because it would bring the law of England into line with that of Scotland. He was himself a Scot.
Leaving aside these arguments of the Archbishop, the other most interesting argument was that put forward by Douglas Hacking, then the Under-Secretary at the Home Office. His main point was that this was necessary to protect the wife from undue pressure for divorce when her husband had had an illegitimate child by another woman and wanted to marry its mother.
It is worth while considering how far these various arguments of over thirty years ago stand up today. The most interesting thing about all these arguments is that underlying all of them is the evil, wicked doctrine that the end justifies the means, that one should discourage 'divorce, protect the woman, maintain public morality or tidy up the law so as to bring it into line with that of Scotland by condemning innocent children to suffer a stigma for life. The underlying doctrine that the end justifies the means we have seen underlying much of Nazi and Communist propaganda in recent years, but it is a serious reflection that it was so generally advanced in this British Parliament more than thirty years ago, without shame apparently.
One should look at these different arguments in detail. First, I find it very difficult to understand the value of a public morality which in order to be maintained demands that guiltless children should go through life with a stigma just because one of the parents was married to a third party when the child was born.
As to the argument that this Clause would discourage divorce, let us look at the facts. In England and Wales in 1926 the number of divorces was 2,622. In 1957 the number was 23,785. Whatever other reasons there may be for divorce, the Section to which I am referring would not appear to have discouraged divorce in any way.
With regard to the argument that it is a good thing in these matters that our law in England and Wales should be in keeping with that in Scotland, I think we should all agree that if the Scottish law is better than our law we should copy it, but if we can do better than Scottish law, that should not hold us back from making improvements.
The last point to look into is that somehow or other the existence of this Clause will protect a wife from undue pressure to agree to a divorce. How real is the danger? It seems to me that if that were an effective argument the present law would be different from what it is. Under the present law a child can be legitimised if it is conceived in adultery but cannot be legitimised if it is born in adultery giving an illogical position altogether. One might think that if the argument applied in one case it should also apply in the other.
If one examines the law reports in The Times over the last two or three years one finds that the courts are consistently doing their best to speed up divorces if ever there happens to be a child on the way in order to ensure that the child is born out of wedlock so that it can subsequently be legitimised when the parents marry. There was an interesting case recently in which a child was born at 7·30 in the morning. A divorce was granted the same day after 10 o'clock, and the courts held that the divorce dated from midnight so that the subsequent marriage would legitimise the child, and the father was made responsible for maintaining the child when he subsequently married and later deserted his second wife. I think that the courts in the line which they are taking are reflecting public opinion, because a large number of people believe that the present law is unfair. Much as one may respect Her Majesty's judges and magistrates, Parliament ought to be the body which takes the lead in these matters and settles the law.
Other arguments are advanced today against this proposal. It is said that parents can adopt an illegitimate child and that that gets over all the difficulties. But it does not. It may do so from the legal point of view, but, in fact, I can say from all the correspondence that I have had on the matter that the one thing that parents most fear is that children will learn that they were born illegitimate, and they do the best they can to prevent that information passing to the children because they believe that it will upset family life and lead to insecurity within the family. It is a real fear. If a child is adopted, although the parents may rightly be trying to do their best by adopting it, it means that sooner or later the child will be asking why it has been adopted and it will then find out about its illegitimacy.
Secondly, it is said that we should reduce the stigma and the importance of illegitimacy and see that it does not mean anything very much and that if it is no longer a stigma the disadvantage is taken away. Some of the other provisions of the Bill are aimed at removing some of the disadvantages of illegitimacy. I think it will be a very long time, however, before public opinion definitely regards illegitimacy as not being a stigma of some kind or other, and, therefore, the fewer illegitimate children we can have the better. If we can make this change, it will reduce the number and give a good deal more happiness to a considerable number of people.
There are other arguments of importance today to be advanced in favour of my proposal. First, juvenile delinquency is a serious problem which we have to face. It is difficult enough in any case to rear a family where there has been a divorce, but when a new attempt is made to put a family together, we want to give that family as much security and stability as we possibly can. I cannot believe that it can help to establish security and stability in that family if some of the children in it are illegitimate and some legitimate. That is bound to create difficulties and friction in the family. If we remove the difficulty by making it possible for all the children to be legitimised on subsequent marriage we shall be helping family life.
In 1951 the British Medical Association and Magistrates' Association made an inquiry into illegitimacy and juvenile delinquency. The figures for London showed that in one year the percentage of illegitimates among delinquent boys was 3·7 and among non-delinquent boys 0·8. In the provinces illegitimacy among delinquent boys was 5·1 per cent. and among non-delinquent boys 25 per cent. In other words, in the provinces there is more than twice as much delinquency among illegitimate boys and in London four times as much. Experience proves that where there are unsettled home conditions and illegitimacy is one of the factors for it, one is more likely to have juvenile delinquency than otherwise. I suggest that there are very strong arguments for passing the Bill in order to reduce the danger of juvenile delinquency and generally to strengthen family life in the newly set up families which follow after divorce.
With regard to the other Clauses of the Bill, the second one deals with a fairly small point, but a quite important one. It would enable a woman to make an application for a bastardy order any time within the first year after the child is born. At the present time, she cannot do so if she happened to be married at the time when the application is made. This would remove that exception for a group of women, and I think that the original Act undoubtedly overlooked this particular point. In other words, it will put right an anomaly in the present law.
In regard to Clause 3, there are quite a number of cases in which the father of an illegitimate child would like to secure its custody, and, where the court feels that it is in the interests of the child, he should be able to do so. This Clause would enable that change to be made in the law. Clause 4 seeks to cut out undesirable Press publicity in bastardy cases. Clause 5 would enable illegitimate children to be placed in the same position as legitimate children in asking, in certain cases, for something to be done for them out of the estate of its parents. At the present time, under the 1938 Act, the surviving spouse, infant child, or children who happen to be invalids and, in certain cases an unmarried daughter, can make a claim on the estate. This Clause will enable illegitimate children to do the same.
I would say, on behalf of the sponsors of the Bill, that if it is given a Second Reading today, we will give very sympathetic consideration indeed to any constructive Amendments which hon. Members may care to put forward in Committee in order to try to correct any other abuses against children not born in wedlock. We have attempted to deal with a number of these, but we readily recognise that there may be others, and if the House is good enough to give the Bill a Second Reading, we will gladly consider adding Amendments on these particular points.
I have already referred to the debate on this matter of thirty years ago, and it is very interesting, looking back over the past, to see that the proposal made in Clause 1 of my Bill, was backed thirty years ago by the present right hon. Member for Woodford (Sir W. Churchill), Mr. Attlee, as he then was, and Mr. Neville Chamberlain, and, in another place, by such authorities with such varied opinions as Lord Birkenhead and Lord Haldane. I know that on that occasion the leaders of thought in the House sympathised with the point of view put forward in my Bill, and it was because of back bench obstructionists in this House, who took the line that this proposal should not be included in the Bill, that the Government wanting to get the Bill through, they decided to deal with it at a later stage.
I hope that, in this year of grace 1959, back benchers will give a lead to their leaders in this House and say that they want this change made. I should have thought that it is out of harmony with the best thought of the present time that the doctrine that the sins of the fathers should be visited upon the children and should continue. I ask for justice for innocent children, guiltless of whatever their parents may have done. I believe it to be wrong that they should carry this stigma right through life, because there is nothing which they or their parents can do to put it right, and I ask for that stigma to be removed. I am sure that I am not asking the House in vain.
I beg to second the Motion.
On behalf of hon. Members on both sides of the House, I should like to congratulate the hon. Member for Dagenham (Mr. Parker) on the skill, the good temper and the sincerity with which he moved the Seconding Reading of his Bill. I hope, in regard to the final sentiments which he expressed, that he will soon see his Bill enshrined on the Statute Book.
This is the third occasion on which I have been privileged to participate in sponsoring a Bill which has substantial support from both sides of the House. The first occasion was in 1937, when I proposed a Bill which conferred a social benefit on some 17,000 Thames watermen, many of whom live in Dagenham, and I then had as one of my supporters Sir Ben Smith. The second occasion was in 1954, when the hon. Member for Old-bury and Halesowen (Mr. Moyle) invited me to second the Motion for the Second Reading of the Slaughter of Animals Bill. I would say to the hon. Member for Dagenham that if there be anything in the old adage about the proverbial luck attaching to third occasions, the mere fact that he has invited me to support him might be the happiest indication for him that his wishes will be met by both Houses of Parliament.
Some hon. Members may recall that I have been active politically in five constituencies, either as Member or candidate, over thirty-five years. In these circumstances, one goes to many shop windows, and so my mind goes back to the 'twenties, when I used to visit a quite well-known but small bookshop in Dartmouth Street to buy many political pamphlets. One which I recollect buying there was called "Some Unresolved Social Problems," and among the catalogue it contained was the very matter which is the subject of this Bill today. I have a picture in my mind of the hon. Gentleman sitting behind a glass partition busily at work on the affairs of the society which published the pamphlet.
Be that as it may, as the hon. Member for Dagenham has so rightly pointed out, the Bill is supplementary legislation to close a gap that was most unfortunately left by the proceedings in this House in 1926. Perhaps I may be allowed to devote most of my remarks to the tactical circumstances of those discussions at that time, which have been mentioned by the hon. Gentleman. Of course, the general wish of the House in 1926 was that the Bill should be passed, and many members of the Government were in sympathy with it and against the opinions expressed in another place. However, like all Governments of that time, they were preoccupied with machinery and Parliamentary time. It was not sufficient to send Captain Douglas Hacking, as he then was—the late Lord Hacking—down to the House of Commons merely to answer in terms of the usual channels. As the hon. Gentleman has pointed out, he used what I consider to be quite facetious arguments in inviting the House to decide that it would be wise to accept the Amendment that had come from another place and to pass the Bill as it then stood.
The hon. Gentleman has already indicated that Hacking's first argument was the protection of the wife. In the breakup of a marriage, if anybody has in fact taken such a step as to go in another direction and beget a child by another woman, that marriage, ipso facto, is almost on the rocks. So many arguments in the divorce court are devoted, not to the break-up of the marriage, but to the protection of the children, and more often than not to money settlements. I see nothing in the argument that was then advanced by the spokesmen at the Home Office that to protect the wife would, in fact, save the marriage. I think that the records of our courts over the last thirty years would indicate the reverse.
The second argument was even more ridiculous in the circumstances. He said that he wished to deny a benefit to a minority of children on the basis that by so doing he would protect the children generally. That is almost as silly as saying that we cannot have 9 million men wholly employed unless we have half a million unemployed. It is a matter of individual tidiness in economic circumstances to see that everybody is wholly employed. The intention of 1926 was to give this legal benefit to all children Irrespective of the circumstances of the moment when they were born, if one or other of their parents happened not to be free.
I cannot think that there was great sincerity in the Government's argument and in inviting the then Under-Secretary to put forward those arguments which were designed to save the Bill and to get it through that Session. The basis of the argument was that the majority of children could enjoy the benefit if a minority of children continued to carry the crucifix of the legal disability of being illegitimate.
The lobby against the wishes of the Government contained many famous names—my right hon. Friend the Member for Woodford (Sir W. Churchill), who was then Chancellor of the Exchequer, Mr. Neville Chamberlain, who was Minister of Health, the late Mr. Ramsey MacDonald, and Lord Attlee. All those in their turn became Prime Minister. Such is the slowness and difficulty of the machinery of the House, and perhaps the memory and conscience of individual Members, that thirty-three years were allowed to pass before anything was done, about this matter.
That is a sad commentary on our Parliamentary proceedings. To condemn a child legally for all time to the penalty of being illegitimate is wrong in modern circumstances. Every honest and honourable churchman, be he officer of the Church or merely a member of the faith, if he is sincere to himself will subscribe to that point of view. The social disability can never be quite removed. That is for the ordinary men and women who surround the child in its infancy and as it grows up. It is an attitude of mind within the family itself and we cannot legislate about that.
I ask hon. Members, in considering the Bill, to keep in the foreground not so much the religious and social aspects of this matter, which touch upon provocative subjects concerned with the divorce court, but primarily to regard this as a children's Bill to benefit a minority of children who have to drag socially one of the worst crucifixes in life which can be imposed upon a young child.
Although it is not directly related to the Bill and is, as it were, in the margin, I am glad that my right hon. Friend the Home Secretary in July invited a Committee to report upon matrimonial proceedings in magistrates' courts. The day before yesterday, the result of those deliberations was placed in the Vote Office. A draft Bill was submitted to the Home Secretary at the beginning of the week recommending that children who are penalised in a magistrates' court because they are illegitimate and who now have no claim for maintenance should in future be able to receive maintenance from their parents of up to 30s. a week.
That again is connected with matters more controversial than the general sentiments which I am trying to express, but it is a helpful step which must be considered by the House. Until I read the draft Bill, I did not know that an illegitimate child was under any such penalty or disability as not to receive maintenance from its parents.
The social circumstances in which we live today are a little different from those of the 1920s. The 1920s suffered from the uprooting of one world war. We have today had the uprooting of two world wars. Family life has been disintegrated and points of view have changed enormously, especially about divorce.
The other day, when reading a well-known quarterly magazine, I came across some additional proposals which may come before the House. The Marriage Law Reform Society is reported to be trying to introduce the Bill to provide painless divorce for all cases where marriage has broken down. The article listed the attitude of individual families to the sanctity of marriage: as a sacrament; merely as a contract between two parties as a means of legitimating children born or about to be born; as a means of getting a British passport for the bride; as an occasion for a smart wedding or a bottle party. That is a facetious and popular way of cataloguing reasons which may or may not surround a marriage.
The vows of marriage remain sacred always, but there is an implicit obligation in those vows not to confer a permanent disability on someone who has not yet entered the world. This is a Christian adjustment of mind. We all know of many cases of grave incompatibility where to continue a marriage is grossly unfair to legitimate children, because of the agony in which they have to live in such unhappy domestic circumstances. The true Christian outlook is to balance the claims of the marriage vows with the obligations one has to those who follow after.
Thirty-three years after its intention, I hope that Parliament will now concede the wish of the hon. Member for Dagenham and that he will soon see this valuable, small but important social Bill on the Statute Book.
May I congratulate my hon. Friend the Member for Dagenham (Mr. Parker) on seizing his opportunity to introduce a Measure which endeavours to carry out some very necessary reforms. I very much agree with everything that was said by the hon. Member for Manchester, Withington (Sir R. Cary).
I suppose that in popular parlance the word "bastard" will continue to be a term of reproach, but undoubtedly the weight of public opinion today is such that people recognise that as far as possible no disability ought to attach to illegitimate children. Disabilities, of course, attach to them today, and in my view they ought to be removed. They ought to be considered as a relic of the past. In former ages many people spoke about not visiting the sins of the fathers on the children, but hypocritically they continued to do so.
It is important that we should know what are the disabilities from which illegitimate children suffer. If I have any criticism of the Bill it is that it does not go far enough in the reforms which could be carried out. In a recent judgment, when dealing with a case in which the mother of an illegitimate child sought to adopt that child, Lord Denning referred very clearly to the disabilities from which illegitimate children suffer. It is important that we should realise what the position is. I therefore hope that the House will forgive me if I quote what Lord Denning said. He said:
An illegitimate child, according to the old common law, was a child of nobody, so that if the mother, grandmother or grandfather died without making a will, none of their property would ever go to the illegitimate child, because it was no relation in law to them. It was of no kin to anyone. If money was left to children by will it never went to an illegitimate child, since the word 'children' was always construed as referring only to legitimate children.
Then follows the significant remark:
That old law has been altered in part, but only in a very small part, by Section 9 of the Legitimacy Act, 1926. Now, if the mother of an illegitimate child dies without leaving a will, and has no legitimate children, the illegitimate child can take as next of kin of the mother. That is the only alteration. In all other respects the old law remains. If the mother of an illegitimate child marries and has legitimate children, the illegitimate child is still excluded on an intestacy.… Again, if the mother dies before the grandmother, and the grandmother dies intestate, the illegitimate grandchild is excluded from any benefit in the grandmother's estate… Again, if the mother, or anyone else, leaves a will leaving money to the 'children' of this mother, the illegitimate child will take nothing …
The learned Law Lord pointed out the difference which would result if the mother of the illegitimate child in the case in question were able to obtain an adoption order.
I have read that to the House because it seems to me to set out very clearly the disabilities from which an illegitimate child suffers. As I have said, if I have any criticism of the Bill it is that it does not go far enough. It does not endeavour to deal with the removal of those disabilities.
Nevertheless, it is certainly a very helpful Measure in repealing subsection (2) of the 1926 Act. It is very important that power should be given to legitimise a child born to a mother married to a third person. I think the words of Clause 1 have been very wisely chosen in leaving a very small exception, the exception being that the mother was married to a third person, not living separate from him when the illegitimate child was born, and the same third person accepts the support of the child. I suppose that the reason for the continued exclusion in that Clause is that the third person has agreed to consider the illegitimate child as part of his family. If he does so, one can see a good reason why in that case the Act should not apply. I certainly agree.
In the hon. and learned Member's interpretation of that Clause, does the husband take the child knowing or not knowing that it is illegitimate? Is the bastard passed off on him? The difficulty under this exception is that the father might never know it was not his child. He could think it was his own.
I recognise that this Clause must be carefully considered in Committee. I recognised when I read it that difficulties might arise. I thought that the view adopted by those promoting the Bill was that there is the ordinary presumption that the child is a child of the marriage, and in the ordinary way the question of legitimacy would not arise in that case, but it is a matter which must be gone into more carefully. At any rate, the principle set down in the Clause is important, and I agree with it.
Frankly, I see some difficulties about Clause 2. There was a very recent case in which Devlin J., as one of the members of the Divisional Court, dealt with the question, of a single woman and what exactly was meant by "single woman". In his judgment he said:
It has been settled by a series of cases that in construing the expression 'single woman' the court will have regard to the de facto position of the woman rather than to her status in the eyes of the law.
Of course, he was there dealing with the position of the woman as at the date the application was made. This is an alteration in the sense that it makes the time at which we construe whether the woman was a single woman as the time when the child was born and not the time of the date of the application.
Certain difficulties might arise in the application of that Clause. For example, supposing the woman is living with her husband when the child is born and supposing the husband later dies, or supposing he divorces the woman. The child is born at a time when in fact she is living with her husband. I see no reason why in such a case a woman should not be construed as a single woman and should not be enabled to make an application. It is a matter to be dealt with in Committee, but I point out the difficulty.
Clause 3 is a very useful Clause. There must be cases in which the father of an illegitimate child would be the proper person to have the custody of the child, from the point of view of the child's welfare, which is always the paramount consideration. We have to remember that in deciding this question of custody the court takes into primary consideration the welfare of the child. There is no reason why in a proper case that custody should not be given to the father. I am glad to see that my hon. Friend the Member for Dagenham has taken the opportunity of inserting a provision in the Bill which will enable the court, in a proper case, to give such custody to the father.
As to Clause 4, I believe that in every proper case it is important that there should be the greatest possible publicity. That is a wise precaution, but I am ready to recognise that in cases involving very intimate matters—and domestic matters are naturally of that kind—people will very often be reluctant to go to the courts because publicity may result and they may suffer in some way. There is no doubt whatever that the cases that will come under the Acts of Parliament mentioned in Clause 4 are cases of that kind. They are cases that involve intimate details of the family, and it is very wise to provide that they should be heard in private, and an opportunity given for evidence to be given unhampered by considerations of publicity.
I turn now to Clause 5. The provisions of the Inheritance (Family Provision) Act, 1938, are very valuable. Amongst other things, they provide that in the case of an unmarried daughter, an infant son, or sons and daughters who, because of mental or physical disability, are unable to maintain themselves, a claim may be made against the testator's estate in cases where the testator has not provided for them by will. A great many cases have been brought under that Act. The courts have inquired into them and, as a result, a good deal of injustice has been remedied.
There is no reason why claims of that kind should be limited to legitimate offspring. One has to remember that in many cases illegitimate children are in exactly the same position as legitimate offspring; cases where illegitimate children, suffering from mental or physical disability, are not able to maintain themselves. The courts now have wide discretion. They inquire into the case, see the justice in it, and only in a proper case does a learned judge, after consideration of all the facts, allow the relief that the claimant seeks. I certainly agree that it is right that an illegitimate child should, in the same way as legitimate offspring, share in the benefits accruing from the 1938 Act.
This present Measure contains very valuable provisions indeed. I was glad to hear my hon. Friend say, in introducing it, that he would be ready to consider in Committee any provisions that might add to its benefits. As I said at the outset, my only feeling is that the Bill does not go far enough in removing the disabilities from which illegitimate children suffer. I hope that it will have a unanimous Second Reading, and I hope, further, that if at all possible, the opportunity will be taken to provide further relief.
The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) has advanced substantial arguments as to why the powers of inheritance of illegitimate children should be extended. I found those arguments very attractive, but I did not find them bearing, to any great extent, on the purpose of this Bill, which is to deal with the exceedingly difficult question of whether children, not born out of wedlock but born of a parent who is tied in wedlock, should subsequently be legitimated.
I find very great difficulty in making up my mind on this problem. While we have heard of the opinions expressed in this House some thirty years ago, a very much wider body of opinion has considered the question more recently, because it was one of the matters dealt with by the Royal Commission on Marriage and Divorce, which reported in 1955. For a period of some four years, the Royal Commission had under consideration the whole question of marriage and divorce, and this particular proposal was one of the matters upon which it reported.
There was a division of opinion; twelve of the members were not in favour of the proposal as it appears in the Bill, while seven were in favour of the proposal contained in Clause 1. Among the majority opposed to the present proposal were the Chairman, Lord Morton of Henryton, Mr. Justice Pearce, Sir Russell Brain, Sir Frederick Burrows, and Lady Portal.
It is necessary to remind ourselves of the arguments that were found satisfactory to that majority opinion. They approached the matter on the basis that, on the one hand, one has to consider the interests of illegitimate children—and I entirely concede all that was said by the hon. Member for Dagenham (Mr. Parker) and the hon. Member for Withington (Sir R. Carey) about how the benefits and interests of illegitimate children who, through no fault of their own, have been born in this unhappy situation, could be benefited by the Bill—while, on the other hand, one has to weigh the fact that, in a sense, by passing this Bill we would be making an attack upon the idea of the sanctity of marriage within the State.
This Measure is, perhaps, a product of the extraordinary muddle into which our divorce laws have got as a result of the English desire for compromise. On matters of divorce, there cannot be any compromise between Rome and Reno. What Parliament has been doing slowly and gradually over the last few years has been to go to Reno without saying so, and at each stage of the passage of Measures dealing with divorce, children and separation, we do, in fact, take our marriage laws one step further towards divorce by consent.
It is difficult to say, of course, that Parliament or the present law takes a very strict view of the sanctity of marriage when we have 25,000-odd divorces a year. I believe that it was Lord Hewart, as Lord Chief Justice, who, when dealing with a number of undefended divorces, inquired the price of a wireless licence at the Post Office and wondered why divorces could not be obtained at the same price at the Post Office with equal facility.
Nevertheless, we should consider whether or not this Measure does not make an additional breach in the idea of the sanctity of marriage. After all, the birth of a legitimate child is one of the distinctive features of the purpose of marriage as we know it in the State, and I am sure that everyone would agree that the maintenance of family life within lawful unions is in the general interests of the State.
Therefore, what we now have to decide is whether this Measure will, to some extent, cause a breach in the idea of the sanctity of marriage and, if so, whether the benefit that will be conferred on the few children whom it may concern in the future ought to outweigh that consideration. The Royal Commission on Marriage and Divorce majority put the argument in this way, that one of the fundamental moral bases of marriage in this country is that a man cannot during the subsistence of that marriage beget lawful children by another woman, and that if in accordance with this Measure adultery and bastards could be legitimised subsequently, an essential distinction between lawful marriages and illicit unions would disappear.
There is that view as expressed by that weighty body, and I am bound to say that, on balance, at the moment I feel inclined to accept the views of that body rather than to confer what is undoubtedly a benefit upon what must be a small, but, of course, important section of unborn children. One must remember that there will still remain a very large number of persons who will be illegitimate despite this Measure. There are many mothers or fathers of such children who will not remarry the man or woman who was the other parent, and there will be many children of marriages which cannot be dissolved under the present law because the other party to the marriage refuses to bring a divorce and survives. That is not an argument in favour of not passing this Bill, but it does show the limited benefit which this Bill may confer.
There are one or two other difficulties that I feel about Clause I. There is the distinction between the situation where, assuming the illegitimate child is the child of the mother, the lawful husband of that mother maintains and accepts the child. I cannot understand how this distinction can be valid. How long has he got to maintain it—a week, or a fortnight? Will the illegitimate child be excluded from the benefits of this Clause, if it is to be passed, because the lawful husband of its mother for a fortnight or perhaps six months, or whatever period it may be, maintains and accepts the child? What indeed does "accept" mean? As my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) pointed out, must there be knowledge? What happens to the woman who deceives her husband as to the real paternity of the child? That husband may accept and maintain the child in complete ignorance for ten years, or six months. Is the child then to be deprived of the benefits of this Clause, if this Bill is passed, or is the question of knowledge to affect the matter? If so, how can that be proved, and when will it come up for proof?
One of the difficulties about this Bill is that it affects the status of the individual. We may very frequently get cases in which it will be in the interest of the mother of the child and of the child at one period to say that it is the legitimate child of that woman's husband; then at a later stage when he has died and the child has inherited from him to say, "Oh, no, the child was never born in wedlock at all. This is an illegitimate child"; and then to claim that it is legitimated, under this Measure, as the child of the other man whom the woman says is the parent. The child might then inherit also from that other man.
All these matters raise the most extraordinary difficulties, and, while I as a member of the Bar am greatly in favour of increasing litigation within reasonable limits, it seems to me that this would lead to the most extraordinary difficulties. For anybody to establish his claim under these provisions he must prove, first of all, illegitimacy in regard to one of his parents. He must then prove non-acceptance and non-maintenance by that parent and he must then prove paternity or maternity by the spouse who has re-married.
All these matters, under the Bill as it stands, may not come to be litigated and investigated until 80 or more years later because it may be his children who are claiming in respect of an estate to which they are entitled only if their parent is legitimate. All these matters could, of course, be solved if the parents of such a child were thrown back upon adoption if they desired it to have the rights of inheritance. I fully appreciate the argument that within the family it is very much better for the individual child to be accepted as a lawful child without any argument or question of it being adopted. But one has to remember that under this provision there are four principal persons concerned and all their collaterals. There is the lawful husband—assuming it is the illegitimate child of a woman—and there is the mother. There is the other man who is alleged to be the father of the child, and there is the child itself. Those are the four principles.
I would have thought that if in these circumstances a child was to be legitimated it ought to have been established at the earliest possible moment by all those people being made a party to proceedings in order that it can be investigated and established at the earliest possible date, If the matter is just allowed to drift on for years and years until somebody tries to establish it when half the parties are dead and do not know what happened, it will be very unsatisfactory. But if one does have to try and establish it formally at the earliest possible stage, there is no advantage for the unfortunate child because it might just as well be an adoption order which gets over the difficulty. The taking of the proceedings will of themselves draw attention to the fact that it was conceived by an adulterous association of a person who was bound by wedlock.
There is only one other thing I desire to say on Clause 1. I very much regret that this is not to apply to Scotland. I know that Lord Davidson was a Scotsman and may have felt an interest in Scottish law, but I should have thought that if this was a proper provision for Clause 1 it ought to have applied throughout the United Kingdom. Any step which differentiates between the individual rights of persons according to whether they or their parents are domiciled on one side of the Border or the other, I regard as a retrograde step. Perhaps I should not remind the House that the finest view that a Scotsman ever sees is the high road to England. There are still many Scotsmen who find that to be so but who yet, no doubt, desire to retain their Scottish domicile and origin.
Those who practise in the law know that all too often one has to determine the rights of the children of such persons to inheritance upon an intestacy and all sorts of things according to whether the father was still domiciled in Scotland or had abandoned his Scottish domicile. That single question, whether a Scotsman has remained a Scotsman or has lost his Scottish domicile, makes great differences to the rights of individuals, and I regret every occasion when it determines the rights of other individuals. If this Bill does contain the right principle it ought to apply to the whole of the United Kingdom. If it is not the right principle and the Scottish principle is the right one, surely this Bill ought not to be passed.
May I shortly deal with one or two of the other Clauses? I entirely agree with the principle of Clause 2. The Bastardy Laws Amendment Act, 1872, has been wholly repealed; that is only a technical detail and it is now the Affiliation Proceedings Act, 1957.
With regard to Clause 3, I foresee a difficulty. That requires rather careful thought. The Guardianship of Infants Act not only provides for questions of custody but also empowers the making of maintenance orders in respect of children who are the subject of proceedings. Therefore, if the Guardianship of Infants Act were amended in this way one could seek a money order under that Act which would raise the question of the paternity of the child.
One would, therefore, have two methods, either under the Affiliation Orders Act, 1952, or under the Guardianship of Infants Act, of testing what was the paternity of a bastard child. I quite appreciate, approve of and support the object of the promoters of the Bill, that there should be power to make a custody order in respect of an illegitimate ox bastard child, but, with respect, I should have thought that the right way to do it would be by making that order under the Bastardy Acts and not by making a confusion between those Acts and the Guardianship of Infants Act, allowing questions of paternity to be raised under the Guardianship of Infants Act.
I come now to Clause 4, the Clause dealing with bastardy proceedings. I entirely agree with and support the proposal that the other proceedings mentioned, under the Children Act, 1948, and the National Assistance Act, 1948, should be domestic proceedings and that as little publicity as possible should be given to them. With regard to the Bastardy Acts, however, one must remember that the Magistrates Courts Act, which it is proposed to amend, does not prevent the publication of the proceedings. It prevents only publication of the details of the proceedings. Anyone may publish the names of the parties, the nature of the case, the charges and counter-charges which have been made, the decision of the court and its observations thereon.
If the provisions of Clause 4 with regard to bastardy proceedings are intended to protect the child from the stigma of illegitimacy, they simply will not do so, because, of course, it will be perfectly apparent from the names of the parties and from the result of the proceedings that the child has been found by the court to be the illegitimate child of the father or that, at any rate, it is the illegitimate child of the mother and the father against whom proceedings have been taken is not its lawful parent. It does not, therefore, provide any protection at all for the innocent illegitimate child against the knowledge that it has been the subject of bastardy proceedings.
I cannot see any reason why the parties to bastardy proceedings should have the benefit of lack of publicity. In my view, it is a restraint upon seducers and others that they may have to come before the courts and may have to face the publicity of proceedings. Indeed, it can be, and frequently is, of the greatest assistance to the parties themselves that there should be publicity.
I have had experience of a case, tor example, where a woman tried in three different sets of proceedings, in court, on appeal, and in court again, but could obtain no corroboration at all. It was only because the proceedings were published in the Press that a quite unknown third party came forward and was able to give material, convincing and conclusive corroborative evidence which enabled that woman to win her case. It does not seem to me, therefore, that there is any benefit to the infant, and, on general principles, the bastardy proceedings should be reported fully, as they are at the moment. I think that the publicity does good, and there is no earthly reason why the grown-up parties to the proceedings should have the protection of privacy.
That is all I have to say about the Bill. I regret having detained the House for so long. On balance, I am afraid that I am not in favour of the principle of Clause 1, but I concede that it is an extraordinarily difficult principle. I have the greatest sympathy with the objects in the mind of the promoters of the Bill, though not with the means which they propose.
The hon. and learned Gentleman the Member for Warwick and Leamington (Mr. John Hobson) has given us a most attractive and closely reasoned statement of his views about the Bill. I am sure that his assistance would be most helpful in the Committee stage. We all welcomed the reasoned way in which he put his fears and hesitancies with reference to parts of the Bill itself. None the less, he made it very clear that he supports the general principle that we should put into law everything that can be devised to ensure that innocent children are not made to suffer. Those of us who are not legally trained and who have not had the advantage of extensive experience in the courts recognise that the House is united in the view that something should be done, and we are trying to find the best possible way of doing it.
We are more than grateful to my hon. Friend the Member for Dagenham (Mr. Parker) for bringing the matter before us. It seems to me that there are here three questions which we must ask ourselves. They were put very well, I think, in an
interesting editorial in The Times of 6th January. The questions are these. Will the Bill, if we pass it as it is, encourage the formation of illicit unions? Will it multiply the number of divorces? Will it weaken respect for the marriage bond? Having put the three questions, the writer of that particular editorial expressed his conclusion in these words:
The probability is that it would not make much difference.
If the Bill will not make much difference in respect of those three matters, if, in fact, there will not be an encouragement of illicit unions, if we shall not have a multiplication of divorces, and if the marriage bond will not be weakened as a result of the Bill, then we should have no hesitation in giving it support.
Society as a whole feels some guilt about this problem. All of us are responsible for legislation as it stands, just as we are responsible today for an attempt to introduce some new legislation. Society knows very well, and there is no one who would deny, that it is wrong to make the innocent suffer. This is an attempt to bring about, so far as possible, the avoidance of any such result. The hon. and learned Gentleman quite rightly pointed out that very great care will have to be taken in the further stages to ensure that we do not create new problems unnecessarily. If we give the Bill a Second Reading, as I hope we shall, every care must be taken to see that the possibility of unknown problems difficult to solve does not arise as a result of our work. We must take everything into account during the Committee stage.
Society is agreed upon the ideal that the marriage bond should be utterly permanent. That it is not is due to the fact that society, as time has gone by, has accepted that there are exceptional cases where there is such incompatibility and suffering as a result of two people living together that it is better that they should not continue to do so. It is a great pity that this should ever happen. It is a most unhappy situation. Medical men accept—if my hon. Friend the Member for Barking (Mr. Hastings) were here, I am sure he would agree—that the common denominator of mankind is not man or woman but man-woman. The unit of mankind is the man-woman relationship. If that is short lived and haphazard, is based upon passion and lust, is unwilling to accept the obligation of creating a home, of bringing children into the world, caring for them and surrounding them with love and certainty, then something serious has happened and something very precious has been lost.
We cannot, however, close our eyes to the fact that marriage is not always successful. I think that the fault is perhaps our own because we have not the means by which we can approach that man-woman relationship and give them assistance to understand themselves and their problems. If we created machinery by which we could give assistance and not leave them alone to quarrel and ultimately to part, we might be more often successful in preventing divorce.
The Bill concerns a group of children whose plight is so sad that no one can defend our past attitude towards it. If we do what we can to assist them, we shall be doing what is often done on Fridays, when civilised transactions are heard and presided over by you, Mr. Speaker, as compared with the rest of the week. We shall be doing something of which we shall never be ashamed. I again congratulate my hon. Friend the Member for Dagenham and the hon. Member for Manchester, Withington (Sir R. Cary).
I commend the Bill to the House, because I have had a little experience of trying to introduce a Bill designed to do precisely the same thing as is encompassed in the first Clause of this Bill. As a new Member, I was lucky enough to draw a place in the Ballot for Private Members' Bills, and I inserted a Clause in the Bill to repeal the offending subsection (2) of Section one of the Legitimacy Act, 1926.
I took the trouble of reading the old debates, and while the Bill was before the House—it did not, unfortunately, get a Second Reading—I received a considerable volume of correspondence from people affected by the Act of 1926. It is apparent that real grievous hardship and mental suffering are being experienced by a wide range of people at all social levels by virtue of the stigma of illegitimacy. If we pass the Bill we shall make a very material contribution towards the contentment of mind of this class of person.
I contend that subsection (2) of Section 1 of the 1926 Bill is a blot on our social conscience, and I hope that we shall take practical steps today to get rid of it. I see that my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) has left the Chamber. I am afraid that I cannot support his legalistic arguments. Perhaps it is a good thing that today the lawyers are in a minority in the House; perhaps we can let our hearts dictate what we should do rather than give undue weight to a series of possible legal difficulties which may arise under the Bill. Let us give the benefit of the doubt to illegitimate children and not worry about one or two distressing points of interpretation which may possibly come before the courts if the Bill becomes law.
My hon. and learned Friend the Member for Warwick and Leamington referred to one of the objections to the Bill, namely, that the sanctity of marriage would be affected and that men may be tempted with the thought that they can beget lawful children by another woman. I cannot think that this House will believe that a man will turn up this Bill when it becomes an Act and decide that he is now perfectly safe to beget lawful children by another woman. I think that that is going too far.
Does not my hon. Friend think, however, that he may tend to seek divorce from his present childless wife in order to legitimise existing children by another woman?
That possibly may be so in certain instances. But I follow my hon. Friend the Member for Manchester, Withington (Sir R. Cary) in saying that this is a Bill to deal with the disability to which children are subject. If there are a few unscrupulous adults in the category mentioned by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), then I think we must disregard them and give our full attention to the plight of illegitimate children.
I am concerned with Clause 1 of the Bill. I see that the hon. Member for Dagenham (Mr. Parker) has added a few additional words, no doubt with the intention of overcoming certain objections to a straightforward elimination of the offending subsection in the 1926 Act. I have no doubt that this point will be dealt with in Committee.
The whole point of the present law and the measures to which we hope to take today to remedy it is that when a child is to be born and one or other of the parents is married, unless divorce comes through and the parents marry before the child is born, then that child is affected by the stigma of illegitimacy for the rest of its life. I have received quite a number of letters on this point, in particular one from a man who obviously must remain nameless, who has the O.B.E. and the Territorial Decoration. The circumstances are worth bringing to the notice of the House.
This man wrote to me saying that his mother and father were married in 1890, but that his father had been married before in 1876 and his wife had been presumed to be dead. It was subsequently found that this was not the case. He says:
My parents remarried in 1912, having lived all those years together and raised their family. So they were able to rectify the position for themselves, but their children who were innocent had to remain illegitimate with all that means in suffering.
I think that that sums up very cogently the points in favour of the Bill.
It has been contended, and it was contended when this matter was debated in the 'twenties, that a Bill of this type would loosen morals. One of the arguments used in the debates in the early 'twenties was this:
There is a strong feeling against children of adulterous unions being made legitimate.
I ask the House to mark the words,
… a strong feeling against children being made legitimate.
After all, it is hardly the children who are illegitimate. It is the parents who are illegitimate parents, and it is certainly wrong for the children to suffer on that account.
In considering the changes which have taken place since the 1926 Act was passed, we are inevitably driven to look at changes which have taken place in the divorce laws. A cutting from a newspaper was sent to me while the other Bill was in progress dealing with the present position in the divorce courts. If a divorce is in progress and a child is about to be born, then the decree absolute is expedited. This article states that the judge marks the papers "Fit for expedition"—in other words, let the case go through so that the marriage can take place in time for the child, when it is born, to be legitimated. It seems to me to make nonsense of the law if the divorce courts conspire to defeat the 1926 Act. Let us give them an opportunity to carry out their normal procedure without having in the background this bogy of the 1926 Act, which causes certain cases to be given special treatment.
It is clearly desirable that children of unmarried parents should be legitimated. When the 1926 Act was being discussed in this House, it was felt that in view of the substantial opposition in cases where one of the parents was married, the Bill would again be blocked in another place and that in view of the good which would be done to the many illegitimate children whose parents were free to carry and subsequently did so, and were not subject to the hindrance of one of the parents being already married, it would be better to allow good to be done to the many and to leave the few in their difficult predicament.
The 1926 Bill had already been waiting for about five years for an opportunity to pass through the procedures of Parliament and it was plainly desirable that it should wait no longer. At the same time, an undertaking was given that a short Bill would be introduced in the near future. As my hon. Friend the Member for Withington remarked, that was 33 years ago. My original notes say "29 years ago," but it was four years ago that I endeavoured to bring in a Bill to deal with this point. This shows how time can skip by without vital social matters of this nature receiving the attention of the House.
A good deal has happened since 1926. I hope that the uncharitable view which prevailed in those days and prevented the Act from being as far-reaching as it should have been will be replaced by more enlightened views, particularly in another place. It is said that hard cases make bad law. This instance of the operation of the law is a classic example of bad law making a great number of hard cases. I hope that the House today will take this opportunity to help those hard cases and to remedy a harshness in the law which has existed for all too many years.
I want to say a word or two in support of the Bill because, especially through Clauses 1 and 3, it will provide a normal family life for a large number of children who otherwise would not obtain it. We would all agree that a normal family life, especially with a mother, best of all with the father also, is the very best thing for the physical, moral and emotional development of a child. As my hon. Friend the Member for Dagenham (Mr. Parker) pointed out in moving the Second Reading, excellent boarding-out homes and even adoption, although the next best, come second to a normal family life.
There are at present under the care of the London County Council alone nearly 9,000 children who have been deprived of a normal family life. If we can give back a normal family life to even a few children who would not otherwise have it except for this Bill, it will be worth while.
In my view, which is supported by many who understand the matter much better than I do, the earlier we can bring a child into normal family life, the better. The all-important time in the development of a child is its first three years, when not only does it learn to walk and to speak and acquire other permanent habits, but its psychological and emotional development takes place at the same time.
Clause I provides for the legitimation of a child even though it was born when one of its natural parents was married to somebody else. There may be objections to this, legal and otherwise, but surely, if we can get a child back as soon as possible into the family life in which we hope it will remain for the rest of its life, so that from its earliest years it can be part of that family, it will be a great thing.
Clause 3 makes it possible for the custody of the child to be given to its natural father. This will be of great assistance, particularly to those of us who are members of the Children's Committee of the London County Council and have to deal with so many children one of whose parents is of a colour different from the other. I do not have exact figures, but I have been told by matrons of more than one home, or nursery, as it is called, for children under the age of five that at present approximately half the children in these nurseries are coloured. Not all are of the negro type. Some are of Indian parentage on one or both sides and some are of other nationalities.
What is constantly happening in London is that a dark man becomes acquainted with and attached to a white girl. They live together. A child is born which is coloured, often darkly coloured, it may be with all the characters of a negro. The mother and the natural father are both very attached to the child for a time and then, not infrequently, the mother suddenly becomes ashamed of having produced a dark-coloured baby and disappears.
The father takes the child to the London County Council because he is unable to look after it and the child goes into one of the L.C.C. nurseries. The father, however, is still very attached to the child. Although the mother cannot be found, the father visits regularly, bringing little presents and showing a great interest in the child. Surely, it would be a good thing if in suitable cases—not in all cases—the father could be given, by order of the court, the custody of the child.
What would happen much more frequently than it does if the Bill were passed is this. The father would take the child away to his country of origin where the marriage laws are, perhaps, less restrictive than they are here and where the unit is not just a family of two individuals but the whole group, parents, grandparents, uncles and aunts and so on, and where the group looks after and cares for the children. Surely that sort of thing would be very much better for the child. This is very much needed at the present time and would help the work of the children's department in London and many other towns as well.
The question of delinquency was raised by my hon. Friend the Member for Dagenham. I have had a certain amount to do with delinquent children as chairman of the committee of management of one of the remand homes of London, and I am convinced that the delinquent child comes from the broken home. At any rate, it is in many of the incomplete and broken homes that illegitimate children are found. If we can do anything to reduce the number of illegitimate children we shall reduce the amount of delinquency in the young. As we know, the child is the father of the man, and that applies to delinquency as well as to other matters.
Major W. Hicks Beach:
Let me begin by apologising to the hon. Member for Dagenham (Mr. Parker), who moved the Second Reading of the Bill, and my hon. Friend the Member for Manchester, Withington (Sir R. Cary), his seconder, for not having been present to hear what they had to say. I am afraid I had another engagement.
I wish straight away to make it clear that nothing I say will be in any way intended to imply that I do not accept the principle which has long been a principle of the courts, namely, that in all these cases with which we are here dealing and others which concern infants what is of paramount importance is, of course, the interest of the child. However, there are other persons who are interested in this problem we are dealing with, and I think that their interests should be considered, too.
I refer hon. Members to paragraph 1182 of the Report of the Royal Commission on Marriage and Divorce, presented in 1956. Dealing with this problem which is the subject matter of this Bill, the Commissioners said:
We have been unable to reach agreement on the proposal that all children should be legitimated by the subsequent marriage of their parents. Twelve of us are opposed to it, for the reasons set out in paragraphs 1179–1181—
some of those were religious—
seven of us consider that the law of England and of Scotland should be altered to give effect to the proposal.
That shows one thing, that whether the proposal in the Bill is right or wrong there is great divergence of opinion in this country and that there are people who hold on extremely strong grounds that these proposals should not go through. I feel that their views should be respected.
My personal view is that anything which interferes with the sanctity of marriage should as far as possible be opposed. I do not wish to be, and I do not think I am, bigoted in this matter, but that is what I feel. I may be right, I may be wrong. Therefore, it seems to me that this is a matter which should be dealt with by some form of compromise, so that the views of those who are opposed to the proposal are respected and so that the matter of paramount importance, the interest of the children, should be looked after and safeguarded.
I was very attracted by the speech of my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) and his thought that, though he was not in principle against what is proposed in the Bill, the matter was not being deal with in quite the right way, and that the legitimisation provisions in Clause I, which is the only Clause I propose to deal with, would impose by Statute provisions on persons who on religious grounds, might be bitterly opposed to them.
I do not know whether this is an impracticable suggestion, but it seems to me that this problem, put before the Royal Commission, could be overcome so that we get agreement by compromise by providing that where it is desired to make a child legitimate there should be procedure through the courts, preferably, I think, the Chancery Division, by any interested party. That would prevent a dog-in-the-manger attitude, if I may so put it. There might be provision for application to be made to the Chancery Division where the feelings and interests of all interested parties could be considered in Chambers, so that there would be no publicity at all; and then, if the court thought it proper, on the lines of the Bill an order could be made in proper cases. In the majority of cases, I think, an order would be made, but there might be cases in which the judge might feel not justified in making an order.
I do not think it can be beyond the wit of man to devise some such procedure as that. I would not seek to advise the promoters of the Bill on how to accomplish it, and I do not know whether they are willing to accept the proposal, but I hope in all sincerity that they will consider some proposal of that nature, and see if they can produce in Committee on the Bill some such provision, because I entirely accept the prin- ciple that the interest of the children should be paramount, but there are a great number of people in this country who regard with grave concern anything which interferes with the sanctity of marriage, and I believe that those people are entitled to have their views respected and if possible met, and that they should have some safeguards.
With these very few words, I would say that in principle I approve the Bill provided there can be some safeguards for those who feel very strongly on this matter, particularly on religious grounds.
I am very glad to support the hon. Member for Dagenham (Mr. Parker) and, indeed, I put my name to the Bill.
I would say to my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) that perhaps we can take some encouragement from the fact that upon the Bill relating to maintenance orders there was at first a vote against, and among those against was Lord Morton, but that he changed his mind while in Australia, for Australia already had that provision in its laws. That may be some comfort to my hon. and learned Friend.
I realise, as my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach) has just said, that there is a difference of opinion about this matter and that some of it arises on religious grounds, and that those who are critical of the Bill upon religious grounds may have to be safeguarded; but the main consideration, to my mind, is the question of the children. It is not just a question of inheritance. It is a question of their whole work in life. Illegitimacy is a great handicap to a great many people, as I hope to show in a moment.
It was pointed out by the Royal Commission on Marriage and Divorce that great difficulty may arise in a family in which one child is born when the parents are not in a position to marry, and the next child is born before the parents are married although they are in a position to marry, and the third child is born when they are married. That first one never becomes legitimate. The second one can be legitimated. The third, of course, is born legitimate. Thus, in one family there are three children of different status. That is a situation we really wish to avoid.
It was said in paragraph 1181 of the Report:
The fact that an illegitimate child may be adopted and can thus acquire property rights shows that such a child need not at present be at any serious material disadvantage.
However, I do not think that one wants to adopt one's own child, and I think that this does make a difference between the subsequent children of the marriage and makes for an unfortunate feeling to arise between the children themselves.
My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) said that a man might wish to leave his childless wife to marry a woman who has several children. He might wish to leave his first wife either because the marriage was very unhappy or because he wanted to reproduce himself and marry a woman who could bear him children. It would be better, therefore, if the second marriage took place and the children were given a rightful inheritance.
The Scottish system has been mentioned, but I am glad that it is not proposed that we should adopt that system. It operates on the basis of the time when the child was conceived and it leads to great difficulties. The period of gestation has generally been taken to be nine months, but recent court cases have decided that it might be anything between five and even eleven mouths.
I should like to put in a plea for the woman or the man who thinks that the spouse is dead and who then lives with and subsequently marries someone else bigamously without knowing that that offence has been committed. It happens sometimes that the woman has a great number of children by the bigamous marriage and suddenly finds that the previous partner is still alive: but if subsequently she gets a divorce from the first husband the children do not become legitimate. A large number of children suffer under this handicap of the law.
I should like to quote cases of other difficulties, which I hope will help hon. Members to make up their minds about the Bill. There is the case of a man employed by Her Majesty's Overseas Colonial Service. His wife was free to marry when the child was conceived, but her divorce was delayed and the child was born. The man subsequently married the woman. He is compelled to pay into a widows' and orphans' fund, as administered by the Crown Agents, but the child will never be able to benefit from the fund.
Again, there are great numbers of difficulties about obtaining passports. I should like to quote briefly from a letter which puts this rather complicated matter better than I could put it in my own words. It reads:
I am an electrical engineer, employed by an oil company abroad. At present I am on six months' leave in England. Whilst I was working in East Pakistan, my wife gave birth to my son at Dacca on 24th July, 1957, and whilst endeavouring to get him registered as a U.K. citizen it was discovered that my own parents were not married until 1941, my father's divorce not being absolute until that time. I was born in 1929, in Munich, Germany, and left that country in 1932 for England, where I remained until I took up my present employment and sailed to India in 1956.
Due to the fact that my birth was not registered at a German Consulate, also that my parents, who were both British subjects, were not married at the time of my birth, my British passport issued in 1950 was withdrawn. I travelled back to England after over two and a half years in India and Pakistan by obtaining an affidavit. I am now regarded as an alien, although I served my National Service in the British Army and the T.A. I cannot get my passport back …
We need a remedy for this type of case.
There is a further case to which I should like to draw attention, in the hope that it will help to secure support for the Bill. It concerns children who come before the magistrates' court in the way described in the following letter from a clerk to a court:
As the law stands at present a child, one of whose parents was married to a third party at the time of birth, is not legitimated by the subsequent marriage of his natural parents, and, therefore, if these parents subsequently appear before the magistrates' courts, these courts cannot award anything towards the maintenance of the child as the child is not considered to be a 'child of the marriage'. Moreover, the woman will not generally be in a position to obtain a bastardy order in respect of the child since broadly speaking a married woman cannot take out a summons for a bastardy order against her husband.
I hope that the Bill will put these matters right. I support it for these reasons and hope that it will be given a Second Reading.
I had not intended to speak in the debate, but the speeches have been so interesting that they have roused in me a wish to make one or two brief observations. I frequently find myself in agreement with my hon. Friend the Member for Dagenham (Mr. Parker) provided that he keeps off the subject of the Sabbath Day. He usually promotes in the House some very good Bills outside that subject, and I should be very happy to support his Bill today.
I am glad not to have missed the debate if only because of the opportunity I have had to listen to a very fine speech by the hon. Member for Manchester, Withington (Sir R. Cary) on the real down-to-earth matters relating to this problem. I am the last who would wish to be offensive to the legal profession. I appreciate that legal considerations will enter very strongly into our consideration of a Bill of this kind, but occasionally, after listening to legal arguments on matters like these, I think that the only thing that lawyers produce is chaos. I make that comment, I hope inoffensively and perhaps understandably, because I am not a lawyer.
We should be mainly concerned with laying down principles and, having had the principles laid down, I am quite confident that the Home Office draftsmen and whoever else may be involved will take jolly good care that the legal points which hon. Members have in mind will be given consideration. I am sure that if hon. Members apply sufficient arguments they will probably succeed in having the Bill amended on these points.
Hon. Members come across cases of the kind with which the Bill is intended to deal over and over again in the course of constituency life. We are dealing here with a helpless and unfortunate section of the community who can do nothing for themselves and who rely absolutely upon us to rectify injustices as we see them. The children with whom we are concerned are the legitimate outcome of illegitimate association. If we want to place responsibility or blame or a stigma on someone, we should place it where it rightly belongs—on the people originally guilty of the offence of bringing an illegitimate child into the world.
The House is always at its best when it discusses problems of this kind. I hope that today we shall remember the victims of these associations and try to do something that will help to give them some sort of opportunity. As the hon. Member for Withington said, we cannot eliminate all the stigma that rests upon them, but we can go a long way to help them. What we can do I hope we shall regard as our responsibility and that we shall do it this day.
There is one thing we are all agreed upon, and that is the importance of any legislation which affects family life. The only thing I doubt is whether this ought to be a matter for a Private Bill and whether it should be discussed on a foggy Friday with a rather poor attendance. I was rather bothered as to whether I ought not to act accordingly, but on reflection I think not. I have listened with great interest to this debate, and I have no doubt of the sincerity of the views expressed. I was a little shocked when I heard my hon. Friend the Member for Manchester, Withington (Sir R. Cary) suggest that anybody who opposed Clause 1 must be insincere, because I can differ from people over this matter without challenging their sincerity.
The Bill contains one big purpose to which most of the attention has been directed. It has five purposes in all, and I will first say something about the ones to which I find no objection. Passing over paragraph (2) of the Explanatory Memorandum, I come to paragraph (3), where, I think, there has been some misunderstanding. There is now an inherent power in the courts to give the custody of any child to the putative father and he would be under an obligation to support it. What does not exist is a power to act under the Guardianship of Infants Act, 1925, as was shown recently in a decision of Mr. Justice Roxburgh. Therefore, all that paragraph (3) would do would be to enlarge the statutory jurisdiction, though, as my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) pointed out, there might be some better way of securing it than in the rather short way it is done in Clause 3 of the Bill. It is, however, obviously desirable and necessary that the statutory jurisdiction of the court should be enlarged.
I think Clause 5 is right. If a putative father is under an obligation by law, as he is by morals, to support his illegitimate child during this life, there is no reason why his estate should not be responsible after his death. I accept the view of my hon. and learned Friend the Member for Warwick and Leamington on paragraph (4), and I will come back to it in a moment, because it is the basis of my objection to Clause 1.
There has been a great deal of misapprehension about the handicaps in the law at present suffered by illegitimate children. One speaker read out a passage from a law report. As I understand it, the only practical handicap in law of an illegitimate child is the question of succession to property. Ordinarily speaking, if the word "child" is mentioned in a will or settlement, it means a legitimate child and an illegitimate child cannot succeed on intestacy. I think it is right to say that, apart from this, the law by Statute has given as much protection to illegitimate children as to legitimate ones.
Nobody has mentioned the Fatal Accidents Act, under which damages can be awarded to an illegitimate child, the Family Allowances Act and the Army and Navy Acts, under which there can be allowances for the illegitimate child. The fact is that in law the illegitimate child is at no disadvantage except that of inheritance. That can be put right now, though it could not be done before 1926, for the child can be adopted. Indeed, many unmarried mothers adopt their children for this very purpose. Not only that; most of us here know of families where the parents' own children are brought up with adopted children, with no trouble or domestic difference. Indeed, the children only find out later that they are adopted and they do not much mind. I submit, therefore, that it is not necessary for the child's status to alter the law by legitimising one class of people. I say that because if the people concerned afterwards marry and decide to give the full rights to their illegitimate child, they can adopt it.
Now I come to what is rather a paradox, the phrase which is used passionately about the stigma of being called a bastard. It is an interesting phrase. People do not like it. I remember prosecuting in a court-martial during the war in which the issue was whether the guard had manhandled the Italian prisoners of war. It came out in the course of the evidence that the guard had been a little annoyed by the Italian prisoners shouting, as he thought, "Bastard." The interpreter pointed out that what they were saying was "Basta," which meant "Stop it." Perhaps because they used that phrase they got rather roughly handled.
People in England in these days do not like being called a bastard. Why? Because they do not like their parents being insulted. It is the reflection on the family to which they object. It is the fact that a slur has been cast upon their parents to which they object. History, except for questions of succession to property, has never really been hard on bastards themselves. There have been many famous figures. William the Conqueror did not mind being called a bastard. We all remember Bernard Shaw's play "St. Joan"; the reference to the "Bastard of Orleans" did not seem to hurt him very much. Don John of Austria the famous conqueror of Lepanto, was a bastard. So bastards have played their part in history and nobody thought the worse of them. Therefore, the stigma is directed strictly to the parents, and when people object to it they object to the insult to their parents which implies that they broke the marriage vow.
Before leaving that point about history, perhaps the hon. and learned Gentleman can tell us why the shame always seems to rest on the mother, whereas a certain pride seems to rest on the father?
The hon. Gentleman and I know how conceited men are. There is no moral reason in it. Morally it is wrong, but the difference has always been because the social effect has been more serious if the offender is a woman. If the adultery is committed by a married woman there is what Dr. Johnson called "the confusion of progeny". Socially, therefore, they have been treated more harshly.
I was dealing with the stigma of bastardy. Chesterton once gave an account of a man who was known by the odd name of "Damned Higgins." It was pointed out that he was a Roundhead who had been rather cheerfully christened "Had Christ-not-died-for-thee,-thou- wouldst-have-been-dammed, Higgins." He said that many of the words we used were the end of a sentence. Perhaps when we say "bastard", it is the end of a long sentence. It might well be: "You unhappy man who, as the result of the disloyalty and weakness of your parents, cannot call yourself legitimate and must ever, through no fault of your own, be known hereafter as a bastard." Nothing is said of the man about himself personally, but people are recognising that somebody else has done something wrong.
I believe it to be true that public opinion now does not attach any blame to the child. It puzzles me, therefore, why everybody should be so anxious to remove a phrase for which in fact nobody blames a child. If we take it the other way and say that people still pay attention to it. it is because people still pay attention to the real origin or the trouble, that is, the fact that somebody has committed an attack upon the institution of marriage.
Can marriage, under assault now from every side, properly stand more of these assaults? Is it for the benefit of family life that this group should have a true description taken away from them or an opprobrious epithet removed from them? Opinions might reasonably differ about that. One of the reasons why the word is an insult is that legitimacy is something of which to be proud. People are wrong when they think of a family as some welfare association of a father and mother and children living in a house. That is not the English tradition. The family includes grandparents and grandchildren. We are rightly proud of our ancestry and our grandchildren, and to a great extent our pride involves not only recognising their achievements but their loyalty. It is a source of legitimate pride to say that one's grandfather and one's grandmother lived happily together for fifty years.
It is idle to think that by a law one can or should remove from the view of the world the fact that a married person has committed one of the most dishonourable acts he can, that while he is pledged by everything that is decent to one woman he should not even wait for a divorce but has to associate with another woman. There should be no excuse. In connection with the matter of divorce, the adulterer has, after all, not long to wait to get new sexual satisfaction. But the man or woman is in a hurry and cannot wait for the marriage vow to be dissolved, if it can be, by the law; he or she cannot wait for that but must have a new partner and, according to paragraph (4), nobody is to know about it.
I think a great risk is being taken, by this well-intended Bill, against the institution of marriage. I do not think it can afford to have it. I do not like the assumptions behind it. I do not understand why people bother to get divorced four times and then marry unless it is to give a veneer of respectability to promiscuity. There comes a time when people must face the facts. There are around people who are known as illegitimate, who themselves are not blamed but stand as witnesses to the consequences that happen, to the dislocation and sometimes the pain and embarrassment that happens not merely to the person concerned but to collaterals and other people. They are living witnesses to the fact that legitimacy and keeping one's word and being true are one thing, and no legislation and no retrospective legitimation alters the fact. We should face facts and not try, no matter how good the reasons, to disguise from ourselves that sin is sin.
I listened with great interest to the hon. and learned Member for Bolton, East (Mr. Philip Bell), trying to find out where he was and what he was getting at. He said that this was a well-intentioned Bill, and then that it was a Bill which would attack the sanctity of marriage. He said that no law can put right illegitimacy.
The hon. and learned Gentleman completely forgot that we are not talking about marriage. We are talking about the welfare of little children. The hon. and learned Member showed some very confused thinking. He said that nobody worries about the word "bastard", saying that it was the end of a sentence. He is wrong; it is the beginning of a fight, as a rule. If one gets among ordinary working people and uses the term "bastard", one is faced with a fight right away, because a man does not like being told that he is illegitimate and was born out of wedlock. It is not such a man's fault. He could not help it. He did not ask to be brought into the world, Why should people continue to suffer for this reason?
Youngsters of 10 to 14 can be very cruel about such a thing. It is not so much the starting of a fight in their case, but one hears children say "He is a bastard. His mother was never married." It is not the child's fault. I meet people who have withstood the stigma and have grown up to be decent men and women living a decent life in spite of the fact that all the time they have had the fear that someone might say that their father and mother were not married.
I read my Bible sometimes, and there is a phrase in it which I can read one way and some people read another way. It is:
Suffer little children to come unto Me …
Some people put the emphasis on "suffer", but that is not how the phrase was meant. When Christ uttered those words He did not look around and say "Were all your fathers and mothers married?" He applied the phrase to children of all colours and creeds; it did not matter whether they were illegitimate or not.
There is another phrase from the Bible that I have in mind in connection with what we are doing today. It is:
Inasmuch as ye have done it unto one of the least of these my brethren ye have done it unto me.
It is in that spirit that I hope the House will pass the Bill.
I have had the disconcerting experience today of listening for most of the debate to speech after speech with which I found myself unable to agree and wondering whether what I hoped to say could carry any weight or conviction at all. Now, having listened to my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell), it seems to me that he has already said what I would wish to say, and has said it so eloquently and so well that I am not sure whether I need take up the time of the House in adding to the discussion.
However, I should like to take part because I find myself in considerable disagreement with the hon. Member who said that we were here concerned in laying down principles. It seems to me that we are doing the very opposite, that we are tearing up principles. Although this may be a minority view in the House. I feel that it ought to be stated.
I apologise to the hon. Member for Dagenham (Mr. Parker), partly for not being here during his speech and partly because when this subject was brought to my notice by a constituent I indicated to the hon. Member that I hoped to be able to support the Bill. I must confess that I was under the impression that the Bill was mainly concerned with the items referred to in the latter part of the text, with most of which I have found myself in agreement. I hope the hon. Member will forgive me if, as I have told him this morning, I am not only unable to support the major part of the Bill but compelled to speak against it.
We are here dealing, in fact, with an example of retrospective legislation, and I go so far as to say that we are attempting the impossible. I stand open to correction, but legitimacy must surely basically depend upon children being born in wedlock. It derives its origin, its strength and meaning from that foundation. Children are legitimate when they are born in wedlock, and, unhappily—and I hope it is not inconsistent to say that I respect the motives of the mover of the Bill—the Bill is seeking to provide legitimacy for children born, not in wedlock, but in adultery. I cannot see how any Act of Parliament can create such an artificial situation as that.
If legitimacy of child birth depends on birth in wedlock, it cannot really, by any form of words placed upon the Statute Book, result in conferring that legitimacy upon children not only born out of wedlock, but born in adultery. I gather, and again I am open to correction, that under the Bill it will be possible for a husband to have a child by the wife of another man, and at some subsequent date, as the result of two divorces, for these people to marry and the child to become legitimate. I do not believe that we can do that. Whatever the form of words we use, I do not believe that we can wipe away the irregularities of the parents and place this matter upon a legal basis by any form of legislation.
I base my objections to the first Clause of the Bill, and therefore, in effect, to the whole of the Bill, upon the effect which it will have on our attitude towards marriage. I am most anxious not to appear censorious about this. I am one who has been happily married for over a quarter of a century, and it is easy for me to say that I do not like divorce, and I make full allowance for that. It remains the fact, however, that the effect on our social life of the increased number of divorces cannot be a satisfactory thing for the community. I have not got the exact figures with me, but the number of divorces in this country since the war must now be climbing up to half a million. I do not think that we should do anything which will erode still further the sanctity of married life.
I am fully aware of the disadvantages from which illegitimate children suffer, but, in passing, I should like to say something about the use of the word "bastard." Surely, it is the general experience of most of us that, among adults who make use of this word, it is generally used not as a description, but as a term of abuse. It is rare among adults to hear anyone called a bastard by his assailant or opponent because he is illegitimate; on the contrary, it is ordinary, plain abuse. I think it is a mistake to exaggerate the extent to which that word is applied to the people with whom we are dealing here.
I should also like to say that I am fully in favour of removing as many as possible of the legal and financial disabilities from which illegitimate children suffer. As my hon. and learned Friend the Member for Bolton, East has already said, we have already done a lot in that respect. I believe that it is not only unnecessary but unwise to go still further, and, in my judgment, strike at the very roots of the conception of home life and married life by laying down, in effect, in an Act of Parliament, that it does not really matter whether or not a child is born of parents who are married to each other, because in the long run, under this Bill, legitimacy and illegitimacy would be equated.
I said just now that I have great understanding of the difficulties of people whose marriages have broken down, and again I am not being censorious of those who beget children in irregular circumstances. We are all conscious of the passions and temptations by means of which, as Lord Birkenhead once said, nature has contrived to make agreeable the propagation of the species. I do not for one moment want to cast blame in the wrong directions, especially as, in the case of divorces, the parties themselves are often the chief victims, but society is also the victim when the divorce rate gets too high and when the results of these irregular unions are sanctified, or an attempt is made to sanctify them, by Act of Parliament.
There are some arguments in favour of the Bill, and they have been put forward in this House with great sincerity, but it seems to me that the overwhelming weight of argument is in favour of our indicating that we believe that the sanctity of the marriage vow is such that we must not brush away the distinction between legitimacy and illegitimacy in the manner proposed in the Bill.
I agree with almost everything said by the right hon. Member for Southwark (Mr. Isaacs), but I thought that what he said led me to exactly the opposite conclusion to that to which he came. When I was in Yugoslavia last year, I was told "We have no illegitimate children in Yugoslavia", and, when I expressed surprise at this, I was told" Of course, this is not a comment on the morals of the people, but simply a statement of law—that, by the law of the country, illegitimacy does not exist."
Of course, we in this House could pass a law to a similar effect, but that is not being proposed today, and it is not being proposed for the very good reason that the hon. Member who has submitted the Bill recognises that that would be really no use at all. Illegitimacy is simply a way of saying "being born out of wedlock." If one calls a person a bastard, one means that he has been born out of wedlock, and when we talk about the stigma attaching to illegitimacy, what we really mean is that there is a stigma attaching to the fact of being born out of wedlock. No amount of legislation will alter that fact, as my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) has just said.
That is the position with which we are confronted. I agree entirely that, of course, those directly concerned are never in any way responsible for the fact which attracts this stigma to them, and I personally believe that it is desirable that the public status of all children, whether legitimate or illegitimate, should be the same. My hon. and learned Friend the Member for Bolton, East has suggested that we have been moving in that direction, and I agree with him. I think that, as far as possible in such things as certificates and so on, we should not make any distinction in the way of describing children, but that is not the same as saying that we should by law alter the whole relationship between illegitimate children and their natural parents. That is quite a different thing. We are today impinging on that, without really doing what we want to do, which is to remove the public stigma attached to this condition.
I am trying to follow the logic of the hon. Member's argument. Is he in favour of repealing Section 1 of the Legitimacy Act, 1926, as it now stands? Logically, he should be.
That would be a gross over-simplification. What I am saying is that I would not call public attention to the fact that an individual was born in or out of wedlock. We cannot alter the fact. We can alter the law so that a citizen is not affected by the fact. What the Bill would do is to undermine the principle of monogamous marriage without providing for the true interests of the children born out of wedlock.
I do not want to say much about Clause 1. I agree with what was said by my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson). I want to speak about Clause 5, which is the best example of why the Bill has gone wrong. Clause 5 seeks to amend the Inheritance (Family Provision) Act, 1938. That is to say, it seeks to give the illegitimate child a right to claim against the estate of a deceased parent some benefit if the parent has not made provision for him in his or her will.
The promoters of the Bill have failed to check up the law on this subject. If they had done so, they would have seen that the Inheritance (Family Provision) Act, 1938, has been in effect repealed and re-enacted in the Fourth Schedule of the Intestates' Estates Act, 1952, with some substantial Amendments. The Amendments are to bring into the original Act a provision that a dependant can claim against the estate of a person who has died and who has cut him out of his will, or failed to make provision for him on intestacy.
It will be seen that if the Bill were to be amended in such a way as to take account of the Amendments which the hon. Member has omitted to appreciate, an illegitimate child of a person would at once be brought within the general class of people who are interested in that person's intestacy. That is going very far beyond anything suggested by the hon. Member for Dagenham (Mr. Parker). The relevant words of the 1938 Act as now amended are:
…if the court…is of opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable provision for the maintenance of that dependant, the court may order that such reasonable provision as the court thinks fit shall…
The result of bringing those words into the Bill would be that the illegitimate child of any person dying intestate would thereby be given, virtually as of right, a power to claim against the rightful legitimate children, because the general law relating to intestacy makes no provision for him. If those words were brought into the Bill, we would at once have to amend the whole law relating to intestacy.
We would have to amend the Administration of Estates Act, 1925, and bring illegitimate children into the body of the family as those entitled to claim the property of a deceased person. I do not think that the promoters would go as far as that. That is why I say that we cannot equate the position of an illegitimate person to that of a legitimate person as regards his own natural relations.
That is why I think that the provisions of the Bill have gone wrong. The sponsors have attempted to do the wrong thing in seeking to do something which we should all like to see. What is worse, they have done it in respect of only a small class of persons, whom we all want to help, that small class of persons whose parents subsequently marry.
It will be helpful if my hon. and learned Friend the Joint Under-Secretary can tell us what numbers of illegitimate children are likely to be affected. I venture to think that the proportion is small. It would not be right, in the interests of a small proportion, to pass a Bill which would certainly prejudice the position of all the rest. The terms of the Bill are unsatisfactory and it is not possible to amend them in Committee. Although the purpose of the Bill is good, it will not carry out that purpose and I cannot give it my support.
I hope that the hon. Member for Dagenham (Mr. Parker) will allow me to add my congratulations to him on having introduced the Bill, which I support. It is said that there are five principles in the Bill. Four of them are admirable, but I treat the fifth with some reservation, and I shall refer to it later.
Some time ago, as the result of a case in which I appeared professionally, I drafted a Bill which had the same intentions as Clause 3. Last October, when the names of those successful in the Ballot for Private Members' Bills were announced, I went round trying to persuade nearly every hon. Member who had been successful to adopt my Bill. Unfortunately, my powers of persuasion failed me and no one took it up. By a strange paradox, about the only Member I did not tackle was the hon. Member for Dagenham, and here he is introducing the very proposal which I wanted to introduce.
The arguments for and against Clause I have already been deployed. The Clause has had more attention than the others, and rightly so since it is the most far-reaching. The arguments were mentioned in the Royal Commission on Marriage and Divorce which, by a majority of twelve to seven, came down against the principle in Clause 1. In its report, the Commission gave what it described as the "essence of the objections" as follows:
So long as marriage is held to be the voluntary union for life of one man with one woman, that conception is wholly incompatible with the provision that one or other of the parties can, during the subsistence of the marriage, beget by some other person children who may later be legitimated.
In the same paragraph they describe that as "a powerful deterrent to illicit relationships".
I have practised only for some ten years in the Probate and Divorce Division and therefore am a very junior member of it, and it is with every respect that I find it impossible to accept that proposition. There must be untold tens of thousands of such illicit unions in the country, and those who live next door to them, sometimes even relations, regard them as lawfully married. Outwardly they present the facade of quite respectable married people. The wife will wear a wedding ring and talk of her husband, the husband will speak of his wife, and all the world will recognise them as an ordinary married couple. Such associations arise for a variety of reasons. A husband may be unhappily married and leaves his wife who, to use a popular phrase, says "I refuse to give him his freedom". Or a wife deserts a husband detained in a mental home. In such circumstances it is impossible to obtain a divorce and the two people live in an illicit union, and frequently children are born to them.
I find it difficult to accept the view that the thought that at some time a child may be born to them, and will be illegitimate, acts as deterrent to such people who wish to set up house together. Surely the essence of an illicit union is that two people want to satisfy their own passion of the moment and their own selfish desires. When a person is in that state of mind he thinks little of the consequences. When such an association is formed he thinks little of the possibility of having children. It probably begins with the intention of having no children, but as time passes, children are born.
Only the day before yesterday, in a contested divorce suit in which I appeared, there was such an illicit union between the respondent and the corespondent, begun with no intention of any children being born, yet such a child is to be born to them in a few weeks' time, a child which would have been illegitimate were it not for the fact that these divorce proceedings had been commenced some time ago and before the rule that one cannot obtain a decree absolute within three months. With all respect, therefore, to those who have argued the case against Clause 1, I cannot agree that this Clause will have any derogatory effects upon the sanctity of marriage.
There is one other comment I should have made about the Clause which I think has not been made in the course of the debate. I refer to its value to children who are born of void marriages. Unlike the law of Scotland, the law of England says that a child born of a void marriage is illegitimate. That used not to be so before the Reformation. According to the Canon Law of England, the child of a void marriage was legitimate. This Bill, if enacted, would therefore put back the clock, in my view justly, several hundreds of years.
The arguments mentioned by my hon. Friend the Member for Norfolk, Central (Sir F. Medlicott) surely do not apply to such illegitimate children, because there we have two parents who are anxious to regulate their affairs. They go through a marriage ceremony but the ceremony is defective, and by reason of that defect the marriage is void. Alternatively, the marriage may be void ab initio for some other reason; for example, there may be some consanguinity of which the parties were ignorant, or it may be that one of the parties has been married before and that marriage is still in existence and, unknown to his second wife, he is a bigamist. For such reasons such a marriage would be void and the children would be made illegitimate. The Royal Commission on Marriage and Divorce recommended unanimously that such children should be made legitimate and that the existing law as it applies to Scotland should be extended to England.
Clause 2 is largely unnecessary. A "single woman" under the law of bastardy does not mean the same thing as it means in ordinary language. All of us who have known the knockabout work of a magistrates' court, dealing with applications for this kind of affiliation order, know perfectly well that many a married woman has obtained an affiliation order. There were many instances during and just after the war of wives who, at a time when their husbands were serving overseas in the Armed Forces, had unhappily given birth to a child by another man. They were deemed to be single women under these Acts and they obtained affiliation orders accordingly. I can think of one instance in which a husband and wife were still living together under the same roof but the wife had been able to obtain an affiliation order against another man. That has been the rule since 1807, and since that year many a married woman has obtained an affiliation order, notwithstanding her marriage to someone other than the defendant.
There is, however, one instance in which the Clause would assist a wife. I refer to the case of Stacy v. Lintell, which occurred some time in the last century and which prevented any mother from obtaining a summons against a putative father after she had married a second man. In that case the facts are unusual and, as I see it, it is only when similar facts exist that the Clause would be of any assistance. It is a case where the putative father maintains a child and then, after a time, the mother marries another man and, by reason of that marriage, the maintenance comes to an end. The woman seeks an affiliation order against the putative father and it is not allowed.
My hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) said that Clause 3 was unnecessary, and quoted Mr. Justice Roxburgh as having given the custody of a child to the putative father. My hon. and learned Friend was, of course, speaking of the High Court. That is not the position in the magistrates' courts, so I should like to add a postcript to what he said.
Until some two years ago it was known for a putative father to obtain custody of the child in the magistrates' courts. There was then an appeal by a mother from, I think, the Clerkenwell Magistrates' Court to the Divisional Court. As a result of the decision in the Divisional Court it was held that it was impossible for a putative father to obtain custody and, since then, no magistrates' court has given it.
As I see it, that is unfair, not so much to the putative father as to the children. It may well be that the putative father has a perfectly adequate home. He may be a married man himself, or he may have a sister, a mother or someone else with whom he is living. He may be perfectly able and competent to look after the child and have a home that is infinitely to be preferred to that of the mother.
Moreover, one can think of a case where a putative father may marry the mother; and then the marriage breaks down. In those circumstances, under the existing law, only the mother would be able to obtain custody of the child. Surely, once they are married, that is wrong. Nevertheless, that is the position at the moment.
It is for that reason that I wholeheartedly support Clause 3, but I suggest to the hon. Member for Dagenham that before the Bill goes to a Standing Committee he should look at the Illegitimate Children (Scotland) Act, 1930, which makes the same provision for Scotland as this Clause seeks to make for England. He might think that the language used in that Act might be a slight improvement on that of the Bill as now drafted.
I have one reservation about Clause 4, and, in particular, to paragraph (g). Section 26 of the Children Act, 1948, enables the children's department of a county council to make a complaint for an affiliation order in a magistrates' court in the same way as can the mother. There are three circumstances in which it can do so. First, if the child is committed to the care of the County Council under Section I of the Children Act. It is the duty of the county council to receive into its care any child that is without a parent, or has been abandoned by its parents, or whose parents are unable to provide adequate accommodation, upbringing or maintenance by reason of some infirmity or other incapacity. Further, the county council can obtain the custody of the child if—and this is a wide and, therefore, a somewhat dangerous provision—it is in the interests of the welfare of the child.
The second circumstance in which Section 26 operates is in the case of an illegitimate child, when that child is committed to the care of the county council—the county council being regarded as a fit person. The third circumstance is that in which the county council is maintaining an illegitimate child in one of its approved schools, provided, of course, that it is the manager of that school.
There are two objections to the inclusion of Section 26 of the Children Act. In the first place, if a county council applies for the custody of a child it is public business, and what is public business is the business of the Press. I am no great friend of the newspapers when they probe into people's private affairs. It is for that reason that I support the Wills (Publication) Bill. And I dislike those newspapers that traffic in gossip about people. Those, however, are private matters.
The management of an approved school and the conduct of a children's department are public business, and it is the affair of all of us to know how those institutions are being managed and what is going on within them. I think that it would be a very retrograde step if the newspapers were not able to publish evidence about the management of those schools, and about such other matters as came to light in the course of a hearing under Section 26 of the Children Act.
My second objection is that, quite frankly, I have not all that much faith in children's departments of county councils. Twice before in this House, as the hon. Member for Barking (Mr. Hastings) knows, I have made some mention of my own experiences in the matter. I have spoken quite factually and, I hope, quite rationally. I regret to say that on both occasions my postbag was filled, on the one hand, by a number of rather unpleasant if not abusive letters from the people whom I had been gently criticising—child care officers.
On the other hand, I had letters written, sometimes in a pathetic strain, but certainly in a sincere way, from parents who had been troubled by officers from children's departments coming into their homes to take the children away, and to bring proceedings against them in the magistrates' courts. That correspondence has rather confirmed the views I held before.
Only last week—if I may give a personal reason for my objection to this part of the Bill—I had to appear for parents. My experience was the same as on previous occasions. These officers have gone into the witness box and have looked at me as if to say, "What right have you to question my knowledge of the matter?. What right have you to argue on behalf of these parents? I know best. I am a child care officer." Outside the court, one gets dirty looks from these officers and comments about interfering "nosey" lawyers and the like.
Last week, I appeared professionally, in a most distressing case. A child had been committed to an approved school on a report by a psychologist employed by the county council. I have the report before me. The wretched part of it was that at the magistrates' court one could not cross-examine the author of the report because she was not there. It was simply put in by post, and as a result that child was sent to an approved school. Fortunately, the parents were able to engage a most experienced solicitor who in turn was able to instruct leading counsel and two juniors. At the appeal the presence of the author of the report was requested and she was, therefore, cross-examined.
I do not wish to weary the House with any particular detail of the report, but there were four main allegations in it. For example, it was said that the mother was completely unprincipled. There was no foundation for that allegation whatsoever. In cross-examination it was clear that other statements in the report were obtained on hearsay evidence from other children and the other allegations without foundation. As a result, the appeals committee allowed the appeal and that child was taken away from the approved school and restored to its own home. I have no shadow of doubt in my mind that if the parents had not been able to afford the expense of a solicitor and leading counsel, the appeal would not have taken place and that child would still be in an approved school today.
I have no doubt, moreover, that the floodlight of publicity on that court and on the evidence of those officials was invaluable. It is, therefore, with many reservations that I support this Bill— reservations only because of this provision in Clause 4. It would be most dangerous to hold any more proceedings in camera. I would, therefore, suggest a compromise which could overcome this objection. By all means exclude the names of the parties. If the hon. Member for Dagenham could introduce some qualifications into this Clause whereby only the names are excluded from the Press reports, then surely the reason for this Clause could be satisfied.
I think it is most important that these proceedings should receive attendant publicity. Of course, it would be wrong to have the names of children and their parents in the newspapers, but I have never known any case involving affilia- tion proceedings being reported in a national newspaper; only rarely are they published in local newspapers, and then more often than not no names have been mentioned. The Press have acted most fairly in the matter.
Therefore, I very much hope that the hon. Member for Dagenham will look again at the Clause and see whether he can reach a compromise by which the names of the parties are excluded; otherwise let these cases be given publicity. Let us prevent children from being taken to approved schools on evidence which is thoroughly unsatisfactory, which is given by way of report, which one cannot cross-examine, which is hearsay and which no High Court would allow. For those reasons, and subject to that one reservation, I support this Bill wholeheartedly and hope that it will have a successful passage.
I rise to make it clear that this is not a party matter. It is not a matter on which the Opposition as such have a policy. If it is a fact that all six of my hon. Friends who have spoken on this side of the House have supported the Bill, it is equally a fact that an equal number of hon. Members on the other side of the House have also supported it. I hope the Government will consider that in deciding on the attitude which they should take.
The House has heard the arguments which have been put before it and, having heard all but ten minutes of the debate, I find that the most compelling argument has been that it is wrong and repugnant to the public conscience for innocent children to be branded for life.
My hon. Friend the Member for Bristol, South (Mr. Wilkins), was too hard on lawyers when he charged them with introducing chaos into our proceedings. One of our functions is legislation—to make laws—and to criticise, but I agree with him that if a Second Reading is given to the Bill nearly all the legal points which have been advanced can be dealt with in Committee.
I congratulate my hon. Friend the Member for Dagenham (Mr. Parker) not only on choosing this Bill when he had won a place in the Ballot but also on his continuing luck in the gamble in legislation. I often wonder whether he would be so successful at Monte Carlo as he has been in the Ballot Box at Westminster. However, that is a matter for his conscience and I will not go into that now.
I am confident that the House will give the Bill a Second Reading, and I believe that when it is amended it will bring our law more in accordance with the moral conscience of the country.
The House should give the Bill full consideration, as I know it will. The principal purpose—there are others to which I shall have occasion to refer later—is to legitimise otherwise illegitimate children, even though at the time that they were born one or both of their parents were married to a third party. Prima facie that sounds quite right, but one should also consider the other effects that it may have upon people.
A great deal has been said in such of the debate as I have heard—and I regret that I have not heard all of it— about the number of divorces which are now taking place and about the state of our divorce laws. I think that we could find a very wide division of opinion, from those who say that there should be no divorce, to those who say that it should be possible to buy it rather like a wireless licence in a post office. I do not belong to the latter class. I certainly believe that when a marriage has broken down it may be in the public interest that there should be a divorce, but it is also in the public interest that the state of matrimony and the family should be maintained for as long as possible and even under difficult, though not impossible, circumstances. Anything which tends to make marriages more inclined to break up, even when perhaps they are cracking, should be discouraged.
Undoubtedly in many cases, though not in all, the fear of the illicit union resulting in the arrival of children who will always be illegitimate has been a brake upon the breaking up of a marriage which may be approaching the rocks from which it can be saved with a certain amount of skill, care and compromise.
Undoubtedly we shall pass the Bill. I say at once that I shall not oppose it. For the reasons which I shall give I am generally in favour of it. But in passing the Bill we must realise what we are doing. We are taking one small step further in making the state of marriage less secure, less permanent and with fewer restrictions upon it. That is not in the public interest, since the family, while the smallest, is probably the most important union of our community.
When these illicit unions do take place and children who are illegitimate, in the legal sense of the word, are born—in one sense, of course, they will always be illegitimate and will be known by descriptions which will indicate their position— they may be adopted, and frequently are adopted, by one or both of the parents. Very often, the mother will have changed her name by deed poll to something else. That is the state of the law which, by its various subterfuges, allows and encourages these unions to be camouflaged and made to appear what they are not.
I share very many of the doubts which have been expressed with regard to Clause 1 and its wording. I agree that this is a point which will have to be thrashed out in Committee, and, although one is inclined to dismiss it by airily saying that it will be something to be thrashed out in Committee, I fear that the work of the Committee, even though everybody will, I know, attempt to find words to suit the point, will be extremely difficult. Here we are considering a case where people are living together, and the wife produces an infant. Although not a case of the cuckoo in the nest, whose word is to be taken about whose infant it is? That is the elementary practical question which comes to mind. In many cases, nobody will be able to give an honest answer to it. In many cases, the woman will merely look to see how the financial interests of the child would be advanced in considering who the other parent should be said to be.
One can imagine the case of a husband, living with and believing his wife completely, and suddenly finding a child born in the home and marriage being claimed, if I may use that expression, by another man. I hardly think that that is likely to encourage the continuance of marriage. I bequeath to the Committee the extremely difficult problem of sorting out the latter part of Clause 1.
According to the preamble of the Bill, it is intended also
to improve the law relating to children born out of wedlock in other respects".
Here the Bill does go wrong. I shall not refer to Clauses 2 and 3 which, apart from certain Committee points, I think, need not detain the House at this stage, but to Clause 4 I again have my objections. I use the word "objections" here rather than say that the wording is something which can be dealt with in Committee. I object to Clause 4, as I object also to Clause 5, for the reasons I will now give.
Why in the world should a mother of an illegitimate child, or the various authorities who have the same powers as she has to make an application in the magistrates' courts, be given the cloak of secrecy? I take the point made by my hon. Friend the Member for Billericay (Mr. Body) about the power being, perhaps, limited to a restriction on the publication of names. Of course, it would have to include the address, photograph or description by which the individual can be identified, according to the wording, as I recall it, of the Children and Young Persons Act. That might be a compromise.
In nearly every case, it is objectionable to someone that the details should be reported. In every criminal case it is objectionable to the criminal that his name should be bandied about. In every civil action it is objectionable to somebody that the judge should say that he has been guilty of a fraud, that his repudiation of a signature on a document was entirely false and he did sign it. Of course, it is objectionable to people in such circumstances that the details should be published in the newspapers, but it is the very safeguard of our legal system and the administration of justice in this country that these things should be done publicly, in the open, and that the Press, with the various exceptions which the House has ordered from time to time, should be allowed to publish such facts as it wishes about what happens in court and about the comments made by the presiding magistrate or judge.
I can see no reason at all for departing from that practice in this case. Why be so mealy-mouthed about it? Why should not the parent of an illegitimate child who has to go to court to get an order be in the same position as anyone else who complains about an indecent assualt upon her or someone who complains about some sort of fracas in which he has been involved? I really cannot see the reasons for Clause 4, and I do not think that it would improve the law relating to children born out of wedlock in any way at all.
Clause 5, with great respect, seems to me to be entirely irrelevant to the Bill. If the House accepts it, the Bill will enable children to become legitimate, but there will, of course, still remain many children who are illegitimate, either because their parents do not marry or they are not in a position to marry. They will remain illegitimate. If Clause 5 were accepted, it would put them in exactly the same position as the illegitimate children of any union. I do not think that that would be a good thing for the country at all.
Let us suppose that a person died intestate. Some child he may have had, whom he may not have owned in his lifetime, may come forward with demands for exactly the same rights as those possessed by a child whom he had brought up and acknowledged as his own. He might call evidence which would satisfy the court that, in fact, the intestate was the father. I cannot believe that that is what our law should provide or that it would be good if it were to do so.
My very strong doubts about the Bill have been, to some extent, counterbalanced by the recognition of the good it may do to a number of people—the exact number I do not know, and I doubt very much whether exact figures could be obtained—from whom we feel that this handicap, for which, of course, they are not responsible, should be removed. But let us not forget the possible harm we may do in other directions, and let us not carry the matter too far so that, by Clauses 4 and 5, we put them almost into a privileged position.
It may be for the convenience of the House if I indicate the Government's attitude towards the principle of the Bill. I refer to the principle of the Bill, but, of course, it has a number of principles. It would not be doing any injustice to the promoters of it if I were to say that any one of the five substantive Clauses of the Bill might have formed the subject-matter of a Bill on its own, judged by the standards of Private Members' Bills.
I should like to congratulate the hon. Member for Dagenham (Mr. Parker) and my hon. Friend the Member for Manchester, Withington (Sir R. Cary), not only upon their success in having obtained the initiative to introduce the Bill, but also upon the quality of the speeches with which they introduced it. Although the Bill deals with fairly controversial matters, they both presented the case very fairly and with some interesting historical allusions. I am sure that the House is most grateful to both of them.
The hon. Member for Bristol, South (Mr. Wilkins) rejoiced at the fact that up to the moment that he spoke scarcely any lawyers had spoken in the debate. I am afraid, however, that the hon. Gentleman rejoiced too soon, because I think he will find when he studies HANSARD tomorrow that more lawyers than laymen have spoken.
It was the intervention of the lawyers and the confusion which I alleged they had brought to the debate which inspired me to say a few words.
I am sorry if I misunderstood the hon. Gentleman, but he must be even more disappointed than he was when he intervened. I should like to console the hon. Member. Lawyers have a necessary function in society, just like cooks and doctors. It is sometimes for the lawyers to prepare things in such a way that they are palatable and do us no harm. It is for the doctors to put us right, and so do the lawyers from time to time.
This being a Bill in which there are live substantive Clauses, each one being independent of the others, it might be said that the Bill was entitled to a Second Reading if enough hon. Members wanted any one Clause. But that is not a practice which the House generally follows. There was a real precedent for this only last night, when a Bill with three substantive Clauses was before the House. One of the Clauses was hotly disputed, whereas the other two were not disputed by any hon. Member who spoke in the debate. But the House—and nobody could complain about it—decided to divide on the Bill because of the controversial nature of one of the three substantive Clauses. If hon. Members feel that the principle underlying Clause 1 is of such importance compared with the other four substantive Clauses in the Bill, I should have thought that hon. Members should feel themselves at liberty to vote if they wished. That is entirely a matter for them and not for advice from the Government. I merely throw that out in the hope of clarifying the position.
Although various aspects of the Bill are controversial, I think we are all agreed that the most important aspect and the matter of principle on which there has been and will be the most debate, both inside and outside Parliament, concerns Clause 1. Nobody who has read the views expressed on the question raised by that Clause in the Report of the Morton Commission on Marriage and Divorce, to which several hon. Members have referred, can have any doubt that it is a subject which raises strong feelings.
The controversy, however, is not on party lines, nor is it in any sense a political controversy. Rather, it is a controversy on matters of moral and even of religious principle. So far as Clause 1 turns on matters of moral principle, it raises questions which, in the Government's view—and I know that the hon. Member for Bristol, South will agree with me here—are pre-eminently matters for the consciences of individual Members and, therefore, matters on which the Government would wish not only to hear the views of hon. Members, as we have done today, but to know the decision of the House and then to consider the wishes of the House.
Perhaps it would be helpful if I were to remind the House of the issues which were so clearly set out in the Report of the Morton Commission. On the one hand, it was argued by those who take the same view as the Promoters of the Bill that it is in the public interest that children should not be stigmatised as illegitimate; that the present law may create hardship even within a single family, as my hon. Friend the Member for Plymouth, Devonport (Miss Vickers) pointed out, where one child of the parents may be illegitimate and his brothers and sisters legitimate; that, as the law permits parents to regularise their union, it is inequitable that the position of the innocent offspring should not be regularised. This, it is said, is a real instance of visiting the sins of the fathers upon the children, a phrase used by the hon. Member for Dagenham.
Finally, it was pointed out by those who took a favourable view of the Bill that if the law permits a parent to adopt his own child, there is no reason why the same object should not be achieved by the direct and legal process of legitimation. Those are the main arguments which commend themselves to only seven members of the Morton Commission, as against 12, who supported the principle of Clause 1.
On the other hand, it was argued by the remaining 12 members that there is an essential and, indeed, overriding moral principle, that a man cannot, during the subsistence of his marriage, beget lawful children by another woman. That majority also felt that any change in the law would weaken the sanctity of marriage, which, as my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) said, has been weakened a good deal already in this century. Those hon. Members said that the existence of the provisions enabling a parent to adopt his own child in fact supplied a practical solution to the problem by mitigating, at any rate, the material consequences for the child without infringing the moral principles which they considered essential.
I do not think it is for me at this stage of the debate to add anything on one side or the other to what has been said already in the debate and recorded to a great extent in the Royal Commission on those moral questions. I think it is right, however, that I should remind the House of them and stress the controversial nature of the matter.
If I may summarise this conflict, putting it at its shortest, it is a conflict between the sanctity of marriage and compassion towards children, the children not having chosen their parents. High principles, strangely enough, however great they are in themselves, often conflict. Here we have a conflict between morality and com- passion. I have sometimes felt that there is another serious conflict, which is irrelevant to today's discussion, but I mention it to illustrate the point which I am trying to make, namely, a serious conflict between liberty and equality. Many of our decisions in Parliament are made to try to resolve those conflicts when they arise, and there is certainly such a conflict on this Bill.
It is also my duty to remind the House of some of the more technical and practical aspects of Clause 1. Much has been said, both in the House and in the Press, about the so-called stigma of illegitimacy. That is not a mark of stigma imposed by the law, of course; it is a reflection of public opinion, and it is a reflection of what public opinion has felt for centuries. Whatever our views as individual hon. Members on this point may be, I suggest that we would do well to remember that what public opinion regards as a stigma, if it does still regard it so, is the mere fact of birth, but it does not regard the legal consequences as the stigma.
The Bill would directly alter the legal consequences of illegitimate birth, in particular relation to the property rights of the child. In rare cases it would affect hereditary titular rights and possibly also, to a rather less extent, it has an importance in matters affecting the nationality of the child. I shall have a word to say about that matter later.
I mention property rights expressly, because I think that the House will wish to bear in mind that, if the Bill receives a Second Reading, Clause 1 will require amendment, not merely as a matter of drafting, but also to ensure that it does not have any retrospective effect on the vested property rights of other persons.
There are other practical difficulties. My hon. and learned Friend the Member for Warwick and Leamington mentioned in some detail the position which arises with regard to adulterine bastards and to the illegitimate child born to a married woman. There is a legal presumption of legitimacy if the child is born in wedlock. That presumption of legitimacy would, of course, have to be removed by one or other of the procedures which are available to the court.
With regard to adulterine bastards, my hon. and learned Friend asked the pertinent question, what happens when a woman deceives her husband as to the paternity of the child? That is a difficult question of fact for a court to decide. It is one which has to be decided already under the law in different contexts from time to time. A much more difficult case, which my hon. and learned Friend did not mention, is when the woman herself is not sure but when both the potential natural father and the woman's lawful husband are in dispute about the matter. In that event, there might be serious confusion.
As my hon. and learned Friend also mentioned, the Bill is not intended to apply to Scotland. I do not think that any hon. Members from Scotland are present today, but clearly, if this change were to be made, it is for consideration whether it would be desirable to have different laws of this kind on either side of the Border.
The nationality point is not an easy one. As the law stands, the illegitimate child born abroad of a British father is not himself a British subject, but the Bill will change this in the case of those children whose fathers subsequently marry, provided—and here is a proviso that will lead to unevenness of treatment—that the law of the place of the child's birth also recognises such legitimation.
I feel bound to point out that the saving of the Bill appears to be defective. In the first place, its drafting is somewhat unusual and obscure, but also the meaning and the intention and effect are obscure. That is a matter which, if the Bill had a Second Reading, would require careful sorting out in Committee. It is impossible at the moment to say whether the consequential Amendments would be numerous, but my opinion is that a good number of consequential Amendments would be needed to apply the effect of the change of law to a considerable range of enactments, including the Births and Deaths Registration Acts. It is, however, too early yet to say to what extent that would be a major task.
The law of intestacy might have to be altered slightly in any event, but the combined effect of Clauses I and 5 would, as my hon. Friend the Member for Hendon. South (Sir H. Lucas-Tooth) suggested, require a radical alteration in the law of intestacy. These are some of the practical matters which, in deciding this important issue of principle, the House would wish to hear in mind. I do not suggest that those considerations should be decisive one way or another if the House takes a clear decision on the principle, but they are considerations which the House should wish to have in mind when it does so. For the reasons which I have given, we would be embarking on a major exercise from the legal and legislative viewpoint if we pass the principle of Clause 1.
I now turn, somewhat more briefly, to the remaining four substantive Clauses. With one exception, the Government offer no objections of principle to those Clauses, although they feel serious reservations about two of them and we must definitely advise against Clause 5. We have no reservations about Clause 2. The Government would certainly not oppose it if the Bill as a whole commends itself to the House. Its effect, as the hon. Member for Dagenham has said, is to enable a woman to obtain an affiliation order notwithstanding the fact that at the time of her application for the order she is married to a man who is not the child's father, provided she was not married to him at the date of the birth of the child. As the law now stands, a woman who marries after giving birth to an illegitimate child by another man cannot apply for an affiliation order against the natural father and hardship may result because, since the passing of the National Assistance Act, 1948, her husband is not liable to maintain the child which is not his. To a partial extent, it may be said that the National Assistance Act. 1948, anticipated this principle.
Neither do we take any exception on principle to Clause 3. which enables the natural father of an illegitimate child to apply to the court for an order for custody. I must, however, point out that the matter is a good deal more complicated than either the hon. Member for Dagenham, who is promoting the Bill, or my hon. and learned Friend the Member for Bolton. East (Mr. Philip Bell) seem to have envisaged. If the Clause is to appear on the Statute Book, I am advised that it will have to be completely rewritten.
For example, there is at present no legal process by which the father of an illegitimate child can, on his own initiative, establish the child's paternity. There are, of course, cases in which an affiliation order is made against a man or when the father has entered into an agreement to contribute to the maintenance of the child. Divorce proceedings may be brought in which the paternity issue arises. At present, however, there is no process whereby the natural father can use his own initiative. We should have to work out a process to make the Clause effective. At a later stages therefore, the House may wish to consider whether it would be better to limit the ambit of the Clause to those men who have been contributing towards the maintenance of their children, either by an affiliation order or in pursuance of an agreement.
Would it not be possible to give a father the right to apply in the petty sessional division for a declaration that he is the putative father of the child? Then, he could go on at the same time to make his application for the custody of the infant.
My hon. Friend has made a suggestion concerning one of several ways in which this might be done. The point I am making is that there is no way at the moment and that we should have to find a way. The way suggested by my hon. Friend would certainly receive consideration. It sounds attractive at first sight.
On Clause 4, we feel considerable reservations. They have been mentioned already by several hon. Members in the debate. The object of the Clause is to bring affiliation proceedings within the scope of those Sections of the Magistrates Courts Act, 1952, which prescribe already a special procedure for what the Act calls "domestic proceedings". Some of those Sections already apply to affiliation proceedings, but not all of them. The Clause will apply the rest of them. The effect of enacting the Clause in its present form would be to provide that the court should consist of only three justices. In general, it would exclude the public from the hearing of cases and it would restrict the right of newspapers to report the proceedings. As one of my hon. Friends said, of course the papers have always the right to report the fact that proceedings are taking place, even though they may not report what transpires at the proceedings.
The Government think it is right that the House should be made aware of very strong objections which have been expressed by persons well qualified to speak on such matters, with regard to the proposal, especially, that the public should be excluded from the hearings. The Government will be guided by the views expressed in the debate today on this matter, but I think that hon. Members ought to be aware of these objections.
I do not think I can do better than draw attention to the objections raised by one of the most distinguished judicial authorities whoever applied his mind to this matter. That was the late Lord Atkin in the House of Lords debate, to which reference has already been made, on the Summary Procedure (Domestic Proceedings) Bill, 1937. I was tempted to read a rather longer passage, but I am going to read only the last part of it. He said this:
Unfortunately, one knows cases in which the young woman concerned has made as defendant the person who is in her opinion the most likely to be able to pay, and very often, as we know, quite unfounded charges are made against persons in most responsible positions, often against the employer of the young woman concerned. They are cases which involve most serious questions of character. These are not cases which, with great respect, ought to have any special limitation applied to them at all. They are just the most important cases that can come before a bench of justices."—[OFFICIAL REPORT, House of Lords, 13th July, 1937; Vol. 106, c. 342.]
Now I turn to Clause 5. I must make this absolutely plain, that if the Bill obtains a Second Reading the Government will advise the deletion of this Clause altogether in Committee. I will say at once that that proposal will not be made because we consider that the Clause taken by itself is wrong on its merits. As we are at present advised the Government are neither conclusively in favour nor conclusively opposed to the principle that an illegitimate child should have rights in the estate of his father or mother on the ground that reasonable provision has not been made for him by the will or by the operation of the law relating to intestacy.
We do, however, consider that it would be wrong to give the illegitimate child rights under the Inheritance (Family Provision) Act, 1938, which do not correspond to the child's rights of succession on an intestacy. The two things must be linked up together. We consider that the child's rights on an intestacy and under the Inheritance (Family Provision) Act, 1938, should be considered as an integral whole. It would be wrong to legislate separately for them.
It may be asked why this Bill could not amend the law in that sense and deal with both parts of the matter. To that I would say two things. First, the law of intestate succession was tested very thoroughly as recently as 1951 by the Committee on the Law of Intestate Succession under the chairmanship of Lord Morton of Henryton, whose recommendations were incorporated in what is now the Intestates' Estates Act, 1952. That Committee was opposed to any change in the law relating to the rights on an intestacy of illegitimate children. That is the first reason.
The second reason is this. I add it because I would not ask the House to accept the recommendations of the Morton Committee, powerful though they are, as absolutely conclusive. They are strong guidance to us, but we are the people who in this sense have the last word. If we are to consider changing the law of intestate succession the question ought, I suggest to the House, to receive very much more detailed examination than is possible in proceedings on a Private Member's Bill. For these reasons we shall advise the House to delete Clause 5 from the Bill if it receives a Second Reading today.
I am afraid I have taken a good deal of the time of the House, but I make no apology for doing so. There is even more that could have been said by way, I hope, of helpful comment on the many interesting points which have been raised in speeches today. This is an important Bill. It raises questions of moral principle which are extremely controversial. The Government welcome the views of hon. Members of this House on this Bill, but it did seem to us that, although we are in the position of seeking rather than of giving guidance, there were a number of factors affecting the decision on the Bill which it was our duty to place before the House. I have done my best to explain what those factors are.
Time really does not permit me to make more than a very short speech, for there is another Bill which, I know, many hon. Members want to discuss after this one, and so I shall confine myself to several very short observations only.
I warmly welcome the Bill, and I hope it will receive a Second Reading, though I agree with all that has just been said by my hon. and learned Friend the Joint Under-Secretary of State about Clause 5. I think it provides insuperable difficulties, and the sponsor of the Bill, the hon. Gentleman the Member for Dagenham (Mr. Parker), may find himself in too great a difficulty in recasting the whole Bill to be able to proceed with that objective.
I want to refer briefly to Clauses 2, 3 and 4, and I shall omit any observations which, had there been more time, I may have wished to make about Clause I. They would take too long.
Clause 2 as it stands, I think, is all right. As to Clause 3, there is no doubt that that will need a further Clause which will need careful thought. At present one of the difficulties is that only a woman makes application for an affiliation order. A man has no status at all. I will illustrate that with one brief example in a moment. The result of that is that we never know who is the putative father of the child. Therefore, we must give the courts some power to be able on the father's behalf to decide whether he is the father of the child. I think that it can be done in the petty sessional courts. Where the father wishes to do so for any purpose I think he should be given the right to apply and call evidence to prove that he is the father of the child. If he can then establish that, he should certainly have the complementary right of applying for the custody of the children. As an aside, I should like to say that I think that the work done in this matter by the lay magistrates is absolutely first-class, in carrying out their jurisdiction in the custody of infants.
As to Clause 4, I am in the main very strongly in favour of the principle of free access of the Press to the courts. I think there is only one exception to that, and it is the one which is written into our law by the Judicial Proceedings (Regulation of Reports) Act, 1926, which provided that there could not be publicity for divorce matters, nor, if I may say so, for counsel or solicitors engaged in those cases. I think that if we are to have no publicity for divorce cases it is quite wrong to have it for bastardy and affiliation cases.
For this reason. Not so long ago I had to defend a very eminent journalist who was charged under the affiliation proceedings by a young lady. He would have had to have been in the position of going into the witness box to admit that he had had sexual intercourse with that girl. He did not want to do that because of the publicity involved. Nevertheless, he was in a very strong position to prove by independent evidence that it was not his child because of the date of the pregnancy. Nevertheless, he made a substantial offer, because although he knew it was not his
child he did not want publicity. She turned it down, and as a result the case took place. He did not have to go into the witness box because we were able to prove by other evidence that he was not the father of the child. In those circumstances the case was dismissed. The case was clearly one of blackmail. In fact it was an American who had gone overseas who was the father of the child.
I do not think that men ought to be put in that position of having to face publicity which may ruin their lives, even though they are wholly innocent of the charge made; and affiliation orders should not have publicity for that main reason. I hope that the Bill will have a Second Reading and in Committee may be amended to achieve some of the purposes which the sponsors have in mind.