Children’s Legal Status: Legitimate or Illegitimate?
The common law of England (like virtually all other legal systems) distinguished between legitimate children, recognised as full members of the family, and illegitimate children or bastards.1 But the common law was, in one respect, much more severe than the canon and civil laws: those laws recognised that a child, born illegitimate, could acquire the status of legitimacy if his parents married; whereas for the common law it was an ‘indispensable condition’2 that a child could only be legitimate if he were born3 after his parents’ marriage.
An illegitimate child was not necessarily4 socially disadvantaged:5 it has been said6 that countless ‘children of the mist played happily in Whig and Tory (p.546) nurseries where they presented no threat to the property or interest of heirs’. But the majority of illegitimate children did suffer poverty and the administration of the Poor Law (upon which many such children were dependent for survival) was often harsh. Even for the favoured few not affected by poverty, the legal disadvantages of illegitimacy were considerable; and the fact that the illegitimate child was legally different may have reinforced the ‘stain and stigma’ of illegitimate birth.7 In effect, the illegitimate child was legally an outcast.8 As Blackstone put it:
‘Why bastard? Wherefore base?
When my dimensions are as well compact,
My mind as generous, and my shape as true,
As honest madam’s issue? Why brand they us
With base? with baseness? bastardy, base, base?’
The rights which appertain to a bastard ‘are very few, being only such as he can acquire; for he can inheritnothing, being looked upon as the son of nobody, and sometimes called filius nullius, sometimes films populi9 … The incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived.‘10
From the beginning of the twentieth century there was general agreement about the need for reform of the law affecting children born outside marriage; and the establishment of the National Council for the Unmarried Mother and Her Child in 191811 evidenced the strong feelings held by many people about the plight of such women and children.12 Over the years the legal position of children born to parents not married to one another has been greatly improved. First, the Legitimacy Act 1926 allowed a child, in certain circumstances, to be legitimated by the marriage of the parents. Secondly, legislation gradually removed many of the legal disadvantages formerly associated with illegitimacy in respect of matters such as maintenance and succession rights. Finally, the Family Law Reform Act 1987 sought to remove the ‘label’ illegitimate from the statute book. But no legislation has been wholly effective in remedying the economic (p.547) hardship and social deprivation which often characterise lone parent households.
The issues of legal status, property rights and entitlement to financial and other support are, of course, all inter-related; and this was recognised in the ambitious Bastardy Bill13 introduced into the House of Commons by Neville Chamberlain14 in 1920. But it soon became apparent that there were strong feelings about how far the law should go in seeking to remove the legal discrimination between legitimate and illegitimate children. It seems best to deal separately with the three main issues: legitimation by subsequent marriage, improved property and maintenance rights, and finally the attempt to remove the legal distinction between legitimate and illegitimate from the statute book.
LEGITIMATION BY SUBSEQUENT MARRIAGE15
The common law rule
As long ago as the twelfth century, there were debates about whether English law should accept the doctrine propounded by the Church allowing children born before their parents’ marriage the same legitimate status as those born after the marriage. But in 1236 all the Earls and Barons, assembled at Merton, ‘with one voice answered that they would not change the laws of the realm which hitherto had been used and obeyed’.16 It was 690 years before the Westminster Parliament (and then only grudgingly and partially) followed the example of the rest of Western Christendom and recognised legitimation by subsequent marriage.
(p.548) The problems of achieving reform: 1920–1926
Although, as the Home Office Legal Adviser, Sir Ernley Blackwell17 noted in 1920, the principle of legitimationper subsequens matrimonium18 was generally conceded,19 and legislation was ‘desired by all parties and especially by women’, the fluid and confused political situation in the early 1920s hampered progress.20 There were two highly controversial points which caused particular difficulty.21
The problem of the ‘adulterine bastard’
The first (and most emotive) issue was whether children born in adultery (‘adulterine bastards’) should be eligible for legitimation per subsequens matrimo-nium. To put the matter in plain English, should the fact that either or both the child’s parents was married to a third party make it impossible for their child ever to be legitimated? As Blackwell noted
the ‘argument in favour of giving such children the benefit … is that the interest of the child should be paramount and that it should not suffer from a parent’s adultery. On the other hand it is urged (1) that it is in the interest of the children generally to preserve family life, and that the interest of children generally is more important than the interest of a comparatively few bastard children. (2) A wife should be protected otherwise she will be subjected to much pressure to divorce her husband in order that the bastard child may become legitimated and she will be told that she ought not to be an obstacle to an innocent child’s future. (3) The fact that such a child may become legitimated will remove a deterrent against adulterous intercourse … [and finally] inclusion will be prejudicial to family life, increase divorce, and make it more difficult for a wife to restrain an erring husband or to regain his affection’.
The problem of filiation: determining parentage
It was all very well to say that a child should be legitimated by the subsequent marriage of the parents but how was the fact of parentage to be established? This would be a particularly difficult issue where the mother was married at (p.549) the time of the child’s birth: the common law would presume that the husband was the father of her child, so what was to happen when she married another man and claimed that he was in reality the child’s father? But even if legitimation were confined to cases in which the father and mother would have been free at the time of the child’s birth to marry, were there not risks that the child would make a bogus claim to be the offspring of the man she subsequently married?
These were difficult issues (particularly at a time when there were no effective and reliable scientific means for determining parentage) and the civil law systems which recognised legitimation per subsequens matrimoniumhad adopted different approaches. One suggestion was that the law should require some formal act of recognition of the child’s parentage; but on this issue the Home Office formed a clear view. In the words of Blackwell’s Memorandum:22
‘The object of an avowal is to prevent bogus claims from arising in connection with an intestacy or under an instrument in the future after the death of the parents. Various clauses have been proposed but they are all open to objection … [and] to require an avowal would to a large measure defeat [the Reform] since the parents of the majority of bastard children would be unaware of the requirement. Sudden death would sometimes intervene before a contemplated avowal were made, and in some cases the parents might be abroad’. For these reasons, the Home Office was clearly of the view that legitimation ‘should follow directly from the subsequent marriage, and should not be dependent upon a further act of the parents…. The onus of establishing the legitimation will always be upon the claimant and there is no reason to think that the Courts will not be able to deal with any disputed claim … on the evidence adduced’.
But in the absence of a formal system of recognition, the procedure for establishing legitimation became of crucial importance. There was a powerful movement which would have denied legitimation unless the court made a declaration of parentage;23 but the majority felt this would be too onerous.24 All that was left, then, was to rely on the birth certificate. And everyone agreed that it should be possible for a legitimated person’s birth to be re-registered and that re-registration would be valuable evidence in support of a claim. But what criteria were to govern the decision on whether to re-register or to refuse re-registration? Should this—Blackwell asked—‘be entirely a matter for the discretion of the Registrar-General, or should there be an appeal to a Court against his decision either way, or should he have power to refer an application to a Court’?
(p.550) The notion that a bureaucrat should have the apparent power to settle such matters was clearly anathema to some;25 whilst the technicality of the subject (of which the Registrar-General, Sir Sylvanus Vivian26 was a master) caused many problems.27 In the end, the Government managed to avoid further controversy by the time-honoured device of getting the draftsman to put the relevant provisions (which did indeed give the Registrar-General a substantial measure of discretion) into a Schedule to the Act.28
The compromise: the Legitimacy Act 1926
It was not possible to use such tactics to avoid the question whether or not to exclude the adulterine bastard; and six years of parliamentary discussion did not add much to the arguments summarised above. The issue was one on which emotions were strong.29 Lord Buckmaster devoted his considerable oratorical (p.551) talents to promoting reform. He urged30 that it was ‘inconceivable’ that a distinction be drawn between the child ‘born of a union that is both irregular and adulterous’ and the child ‘merely born out of wedlock by the irregular relations of unmarried people’. But the Archbishop of Canterbury was not the only one to believe that legitimation of the adulterine bastard would ‘gravely imperil’ the happiness and security of domestic life;31 and (even though the majority of parents who married after the birth of a child had not been free to marry at the time of the birth)32the reformers eventually had to concede33 that there was no likelihood of a Legitimation Bill becoming law unless the adulterine bastard were excluded from its scope.34 The Legitimacy Act 192635 duly provided that nothing in the Act should operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born. Even so, a large number of children were, over the years, legitimated under the provisions of the Act.36
(p.552) Thirty years on: reform achieved
After the end of World War II37 (and the associated large increase in the numbers of adulterine illegitimacies) there was increasing pressure to improve the legal position of the significant number38 of children who could not be legitimated because one or both parents had been married to third parties when the child was born. There were Private Members’ Bills, and in 1956, the Royal Commission on Marriage and Divorce39 considered whether legitimation by the parents’subsequent marriage should be extended to all children born out of wedlock. A majority40 of the Commissioners rejected this proposal. The majority thought the proposal wrong in principle:
‘Legitimacy is the status held by a lawful child of the family. Any departure from that conception can only be made by ignoring the essential moral principle that a man cannot, during the subsistence of his marriage, beget lawful children by another woman. It is unthinkable that the State should lend its sanction to such a step for it could not fail to result in a blurring of moral values in the public mind. A powerful deterrent to illicit relationships would be removed, with disastrous results for the status of marriage as at present understood. The issue is fundamental but perfectly plain. If children born in adultery may subsequently acquire the status of legitimate children, an essential distinction between lawful marriages and illicit unions disappears.‘41
The majority supported this argument of principle by one of pragmatism: it was perfectly possible for an illegitimate child to be legally adopted by the birth parents, and so an illegitimate child need not be ‘at any serious material disadvantage. It is right that it should be possible to mitigate the material consequences(p.553) for the child. It is quite another thing to suggest that no distinction should be made between the lawful children of the marriage and children who were born of an adulterous union’.42
The minority would have none of this:
They considered that there was no evidence that the law did deter couples from forming illicit unions. Even if the law did have this effect, the hypothetical risk of promoting immorality had to be weighed against the real benefits which legitimation conferred on a child. It was difficult to see why parents should be allowed to confer the consequences of legitimacy by the ‘circuitous and somewhat absurd process’ of adopting their own children rather than achieving the same result by marrying. Moreover, it would be wrong to allow an adulterous cohabiting couple to regularise their position by marriage as and when they became free whilst denying any possibility of such regularisation to the innocent offspring of the cohabitation.43
In 1959 John Parker MP44 introduced a Private Member’s Bill into the House of Commons. The arguments over legitimation had (he said) been ‘repetitive and a very big waste of time’ with the same points being made over and over again.45 The simple truth, evidenced by MPs’ constituency postbags, was that the law caused ‘grievous hardship and mental suffering to people at all social levels’; and this ‘helpless and unfortunate section of the community’ relied on Parliament to rectify injustice.46 The Government was advised by the Treasury Solicitor47 that drafting a satisfactory Bill would be ‘extremely difficult’, but none the less it decided not to oppose the Bill either on principle or on the basis of its manifest drafting imperfections.48 There was little resistance to the Bill in the House of Commons;49 and the Government agreed to make the services of Parliamentary Counsel available. There were indeed formidable drafting difficulties;50 but the only sustained opposition on the merits of the Bill came in the (p.554) House of Lords. Lord Salisbury51 (at the time a prominent figure in the Conservative Party) objected that the legislation would sanction a fiction,52 the Bishop of Exeter claimed that it would be totally inconsistent with the Christian concept of marriage,53 whilst the former Lord Chancellor, Lord Simonds, claimed54 that the proposal was ‘bad in principle and in law … likely to undermine the Christian ideal of marriage and to lead to grave confusion in the administration of the law’. But although the legitimation provision was struck out in the House of Lords Committee55 wiser counsels56eventually prevailed57 and the Bill received Royal Assent on 29 July 1959. The number of birth re-registrations for people who had been legitimated58 increased substantially.59
The putative marriage
It is perhaps surprising that the notoriously conservative 1956 Royal Commission on Marriage and Divorce60should—with ‘rare unanimity’ as a Home Office official rightly remarked61—have recommended that the canon law doctrine of the putative marriage62 (that is, that a child born of a void marriage63 (p.555) should be held to be legitimate where it is shown that one or both of the parents was or were ignorant of the impediment to the marriage)64 be reintroduced into English law.
The version of the 1959 Parker Bill originally debated in the House of Commons did not deal with this issue, but Parker moved an amendment at the Committee stage which was accepted without much discussion. Although the amendment was not originally well received by the officials dealing with the Bill65 the Government66 eventually decided not to oppose the inclusion of a suitably re-drafted clause.67 Surprisingly, the House of Lords agreed that a child of a void marriage who was thus to be treated as legitimate should68 (unlike the child legitimated69or adopted)70 be entitled to succeed to dignities and titles of honour on the same basis as a child born to a married couple.71 The child of a ‘marriage’ which has never existed72 was thus to be treated more favourably73(p.556) than the child of parents who had not married at the date of birth but did marry as soon as they were free to do so, perhaps only weeks after the birth.74
Mitigating the legal disadvantages of illegitimacy
Legitimation was an important reform. But it did nothing to improve the legal position of the large number of children born illegitimate whose parents had no prospects of marrying. In some cases this was because the mother or father was in fact married to someone else who refused a divorce; and the plight of these children of so-called stable illicit unions was a major factor in the campaign which eventually led to the introduction by the Divorce Reform Act 1969 of divorce for irretrievable breakdown. But in many other cases—the maidservant seduced by her employer’s son, the young girl led astray by the blandishments of a soldier on leave, for example—there was no realistic prospect of the parents ever marrying; and the plight of mother and child in such cases was unenviable. As witnesses told a House of Commons Select Committee in 190975 ‘any servant girl who is pregnant is thrown absolutely out of employment’ whilst none of the ‘better class of factory’ would keep a woman known to be pregnant on its staff.76 Such ‘fallen’ women and their children were almost inevitably left to such help as could be provided under the Poor Law unless the man concerned could be induced to provide support.
Statute77 had (as we have seen) given the mother of an illegitimate child the right to obtain a summons78 against the man she claimed to be the father. If the magistrates hearing her case adjudged the man to be the putative father they (p.557) could order him79 to pay a sum not exceeding 51– weekly80 to the mother81 for the child’s maintenance82 and education83 until the child was 13.84
A mother whose neglect to maintain her illegitimate child led to his being maintained by the Poor Law was liable to be punished as an idle and disorderly person or a rogue and vagabond under the provisions of the Vagrancy Act 1824.85 And if there was no application for a Bastardy Order86 the Poor Law authorities were entitled to apply to the court for an order against the father to recover the amount of relief they were paying in respect of the child.87
There was (the 1909 Select Committee reported)88 a ‘general and well founded consensus’ that the object of the law should be, firstly, ‘to secure the adequate care and maintenance of the child until it reaches the age when it can be expected to earn something for itself and secondly ‘to facilitate the process by which mothers … and others can recover from the male parent expenses incurred in the child’s birth or maintenance’. Equally there was little doubt that the law failed in these objectives.89 Pressure for reform90 before World War I achieved little.91 The decade following the end of the War was characterised by (p.558) the formation of pressure groups92 which campaigned vigorously93 for reforms in the law intended to improve the social conditions and status of women and children. But so far as financial provision for the illegitimate child was concerned the outcome was, in legislative terms, not great.94 Neville Chamberlain’s ambitious 1920 Bastardy Bill95 (with its provisions requiring a speedy investigation into the issue of paternity, encouraging putative fathers to enter into binding court-approved maintenance agreements96 and giving juvenile courts a supervisory jurisdiction over illegitimate children as well as considerably extending the courts’ powers to make financial orders) was opposed by the Government;97 and only a seven-clause Bill of limited scope eventually passed the Commons.98 Even in that form the Chamberlain Bill made no further progress, and all that eventually reached the statute book was an increase of the maximum maintenance order which magistrates could make in affiliation proceedings to £1 weekly (perhaps £30 in year 2000 values). A Bill intended to make both parents liable according to their means for the maintenance of all their children, whether legitimate or illegitimate, got nowhere. Parliament (p.559)insisted on keeping a clear division between the legal rights of the legitimate and the illegitimate.
The main structure99 of the distinctive regime for enforcing parental support for the illegitimate child remained, essentially unchanged, for 70 years.100 This was not because the law achieved the objectives set out by the 1909 Select Committee. More than 70 years later the Law Commission, noting the view that affiliation proceedings were ‘not a particularly effective way of obtaining financial provision for the illegitimate’ and the fact that the number of applications seemed to be falling, commented:101
‘This may be because many mothers of illegitimate children are already receiving adequate support from the child’s father, or from some other source; but it has been claimed that there is a significant number of mothers who ‘cannot or will not complain to the court’. Hence, affiliation proceedings do not play as important a role in securing financial provision for non-marital children as they might. Explanations for this may include the nature of the proceedings themselves, and the low level of orders that are actually made. There is now no formal limit on the amount of periodical payments orders made in affiliation proceedings, but in practice orders rarely exceed the level of the mother’s [welfare benefits] in respect of herself and her child. The result is that because in many cases the mother is receiving [welfare benefits] any sum that is awarded by the court will often merely go towards reducing the amount of that benefit…. For many mothers … the prospect of being involved in perhaps unpleasant proceedings outweighs any advantage which may be derived from obtaining an affiliation order.’
Research seemed to support the view that mothers preferred to rely on the comparatively generous level of social security provision available from the Welfare State rather than seeking an order against the father and that many refused to institute proceedings. It was pointed out102 that
If the mother ‘dislikes the prospect of subjecting herself and her lover to unpleasant proceedings in a criminal atmosphere, she can easily decline to complain. It is all the more (p.560) likely that she will act in this way if she hopes to establish a permanent relationship with the father of her child’.
Eventually, the Family Law Reform Act 1987 did away with distinctive affiliation procedure103 with its apparently gratuitous offensiveness. The law no longer discriminated against a child claiming financial support merely because the parents were unmarried: the illegitimate child was to be able to make a claim for all kinds of financial support in the same way and to the same extent as the legitimate child.
It proved easier to change the law than to change behaviour. There was increasing concern that men did not support the children they had fathered; and it seems that it came to be widely believed that the State would assume financial responsibility for the children of a failed relationship.104 The Child Support scheme was introduced in 1991105 in a deliberate attempt to change the culture in which such attitudes flourished.
(b) Property rights
The common law principle that the illegitimate child was ‘the son of nobody’ meant that he could not inherit real property as heir; whilst the same principle prevented an illegitimate child inheriting personal property under the Statute of Distributions. For these reasons, an illegitimate child had no right to succeed on the intestacy of a parent, grandparent, brother or sister; whilst neither of the child’s parents was entitled on his intestacy.
The fact that a person was illegitimate did not, of course, disqualify him from taking benefits as a beneficiary under a will or settlement; but in practice there were obstacles in the way of his doing so. First, there was a rule of construction under which words in a will or other disposition denoting family relationships were construed as referring only to legitimate relations, excluding anyone tracing the relationship through an illegitimate link. Thus:
In Dorin v. Dorin106 the testator married the mother of his two children and made a will leaving his property to ‘our children’. The court held that the children (p.561) were debarred by this rule of construction from taking under the will, notwithstanding the fact that there were no other children, legitimate or illegitimate, and that the deceased had always treated the illegitimate children as his children for all purposes.
Secondly, there was a rule of evidence that the court would not, in this context, allow any enquiry into the paternity of an illegitimate child. Thus:
In Re Homer107 a man who had been living with a woman for many years made a will naming their children as beneficiaries. Knowing that his partner was pregnant he made a codicil to his will shortly before his death and this gave property to any other child he and his partner might have. It was held that the child born shortly after his death could not benefit. To do so it would have to be proved that the deceased was her father, and the law prevented any enquiry being made into that issue.