REPORTS OF COMMITTEES
| Author | MARY HAYES |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01595.x |
| Published date | 01 May 1980 |
| Date | 01 May 1980 |
REPORTS
OF
COMMITTEES
LAW
COMMISSION WORKING
PAPER
No.
74:
ILLEGITIMACY
IT
is morally wrong for the law to discriminate against a child
because
of
the nature of his parentage. Furthermore the label
"
illegitimate child
"
is offensive and unkind
so
that, prima facie, it
appears desirable to abolish that status altogether. The Law Com-
mission presents two models for reform: the first is to abolish the
adverse legal consequences of illegitimacy, the second is to abolish
the status of illegitimacy entirely. In accordance with their usual
practice the Law Commission invite comment and criticism on the
questions raised and the provisional conclusions drawn in their
working paper. However, to limit comment and criticism to those
questions summarised at the end of the paper would be to accept
that the correct questions have been asked, and to accept that to
work out the consequences of the abolition of illegitimacy in an
impeccable legal way is what abolition of the status is all about.
The greater part of the paper deals in detail with the legal conse-
quences flowing from the abolition of illegitimacy at a high level of
abstraction, paying particular attention to the elimination of anoma-
lies and the amendment of legislation. The scheme of the paper may
be described as
a
linear progression: first, by outlining the present
law, to demonstrate the legal discrimination which is still extant
against illegitimate children; secondly, by reliance
inter
ah
on the
welfare principle, to argue against retention of the present law
where it discriminates against illegitimate children; thirdly, to
present two models for reform and provisionally to favour the
second model, abolition of the status of illegitimacy; fourthly, to
examine in various contexts the legal consequences which would
flow from abolition of the status; fifthly, to examine issues of evi-
dence and procedure relating to establishment of paternity; and
finally, to examine the legal difficulties relating to the status of the
child where a child is born as
a
result of artificial insemination of
the mother with sperm provided by a third party donor (A.I.D.).
Abolition of illegitimacy means that all fathers will enjoy full
parental rights equally with the mother. The Law Commission
analyse the new duties the law will impose on the father of an illegi-
timate child, and to a lesser extent they analyse his new rights.
One weakness of their paper
is
that only superficial attention is
given to the practical implications of giving rights to fathers, while
the emotional dimensions of implementing such a change are
virtually ignored. Furthermore the effect
of
giving rights to fathers
is
not tested against the welfare principle; this means that the Law
Commission fail to ask themselves some fundamental questions
before they conclude, at an early stage, that abolishing illegitimacy
promotes the welfare of the child. It is suggested that the views
of
299
300
THE
MODERN LAW REVIEW
[Vol.
43
the public should be sought on the following questions,
as
well
as
those asked in the working paper.
Custody
Will giving all fathers parental rights increase the number
of
conflicts over custody and access? Where the father has a right
rather than only a claim to be recognised, is he likely to be more
assertive? The welfare of the child is the motivating factor behind
this area of law reform, but if the answer to the above questions
appears to be yes then the effect on the child of increasing the
number of custody disputes requires careful study and considera-
tion. It could be argued that to give fathers rights makes little
difference because, under the present law, a father can apply for
custody or access under the Guardianship
of
Minors Act 1971,
SO
that whether or not he has rights the issue will be decided, as now,
on the basis of the welfare principle.’ But reference here to the
welfare principle conceals the reality that courts draw a distinction
in
practice between giving rights and taking rights away. Courts
almost always grant access to the non-custodial parent where the
child is legitimate. Furthermore it is fashionable at present to link
the right of access to the welfare of the chi1d.l
If
no discrimination
is permissible against natural fathers
it
seems that an increasing
number of access orders are likely to be made where there is nothing
in the father’s behaviour which debars him, although access is
strongly resisted by the mother. Indeed the Law Commission
acknowledges this may be the case
in
paragraph 3.16.
But will this be beneficial or harmful to most children? Gold-
stein, Freud and Solnit
s
advance the view that the parent with
custody, and not the court, should hove the right to decide whether
it is desirable for the other parent to have access, not as a matter of
parental rights but because such an approach best serves the welfare
of the child. The view of the Law Commission “that the decision
to exclude
a
father from all parental rights and duties is
so
import-
ant that it should not be the mother’s alone; the final decision
should lie with the courts
”
may be entirely misconceived.
Do
we
know enough about the impact of access orders on children to
risk a further proliferation of such orders? The response of the
working paper is, if there is a dispute over custody and access, the
courts
will
decide and they
“
are bound to regard the welfare of the
child as paramount.” But this approach is too simplistic and places
far too heavy a burden on the welfare principle which is not large
enough to embrace all the issues involved. First of all the matter
1
S.
v.
0.
(1978)
8
Pam. Law
11;
M.
v.
1.
(1978) 8
Fam.
Law
12.
2 M.
v.
M.
119731
2
All
E.R.
81.
Y
Beyond
the Besr Interests
of
the Child
(1973).
4
Para. 3.16.
5
For
a general review
of
research material
see
S.
Maidment,
‘*
Access
CondItlons
in Custody Orders,”
in
The
Child
and
the
Law
(19761,
p.
124,
edited by
Frank
Bates.
@
Para.
3.16.
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