The Year of the Bastard
Leo Abse
All are equal before the law, except bastards. Blacks, women and Jews are by statute and commission specifically protected against discrimination: contrariwise, against those born out of wedlock discrimination is enforced by law. And although there are probably three million illegitimates alive in Britain today, one and half million of whom have certainly been born since 1945, no significant lobby exists on their behalf. Gays may have come out, but bastards of Britain v:main too diffident to unite to break their chains. Unfashionably, the largest minority group in Britain does not campaign.
Despite contraception and abortion, their numbers increase each year. The birth rate declines, but the illegitimacy rate increases: now double that of fifteen years ago. One child in ten is today born a bastard. But with the proportion of very young mothers five times greater among the illegitimate than the legitimate, and with the unmarried mother receiving far less ante-natal care than the married, stillbirths and deaths in the first year of life substantially reduce the number of illegitimate children.
If survival is achieved, many of the children will live in a poorer social environment, in a-typical family situations, lacking a stable or constant father, and at greater risk than legitimate children of developing difficulties both in behaviour and learning because family relationships are disturbed or disrupted. Meantime, the economic and social status of the mother trying to keep the child nose-dives and, since many give up the unequal struggle, the proportion of children who come into care is five times higher among the illegitimate than among the legitimate. Not surprisingly, when the children arrive at school, tests and assessments used to explore and compare the abilities and attainments of the illegitimate and the legitimate reveal that the illegitimate are almost invariably at the bottom of the league table — whether for general knowledge, or oral ability, creativity, perceptual development, reading attainment, or arithmetical skills. Since, therefore, to be born illegitimate is to be born socially and educationally disadvantaged, the additional handicaps imposed upon bastards by the law provide an unseemly display of the courts kicking children when they are down.
The troubles of the illegitimate begin at the beginning; the law severely curtails the right of the new-born to be born with a certain and confident identity. If a mother seeks a paternity order, a special rule of evidence applies; her evidence, however convincing, must be corroborated, and only too often, if a father declines to give evidence, and so refuses to submit to crossexamination, the high standard of proof demanded leaves the child in limbo, fatherless. The requirement is now otiose; the recent great advances in the reliability of blood tests has led to a very high degree of probability in the establishment of positive paternity and has removed the justification for the old corroboration rule. Delay in making an application for a paternity order can also prove fatal if. because the father is an unemployed adolescent without means, the mother does not — within the laid down time limits — enter into the humiliating exercise of establishing in a court paternity of a child; such child may then be rendered permanently and legally fatherless. And if a father temporarily absconds overseas, and the mother does not learn of his return until twelve months have passed, then the father is immune from any legal. process. Even if the mother does obtain an order directing financial support for the child, she can only obtain an enforcement on any accumulated arrears of payment by going into a court unnecessarily open to public and press where her predicament is emblazoned abroad.
Indeed, far from assisting a child to have and know his father, the law, with deliberation, conspires to break or attenuate the relationship. The father who may have lived with a mother for years has no way of establishing his paternity without consent of the mother, whatever the consequences may be for the child. Nor is the consent of the father to the adoption of his own child required; and it follows that a father's consent to the marriage of his child during the child's minority is not required. Legally, the father of an illegitimate child is a nonperson. He has ro inherent rights of guardianship, custody or access — even when a paternity order has been made against him.
But whilst the concerned natural father has little opportunity of assuming his responsibilities, the bad father has ample opportunity for denying them. The court has no power to protect a periodic payment for the child by making the father provide security, such as a charge on his house. This is a provision which has proved useful as an aid to the enforcement of maintenance for legitimate children, but it has been denied to the illegitimate. And no new order can be made to compel the father to help an illegitimate daughter wishing to go to university — although he could be compelled to do so in the case of the legitimate child. Further, when an illegitimate child reaches eighteen, the court has no power in any circumstances to issue any new order.
The legal disadvantages of the illegitimate continue throughout their lifetime. If the father has the custody of the child and falls on hard times, no claim for help can be made upon the mother, however wealthy she may then be. If difficulties arise, perhaps because of warring parents, which make it wise that the child should have the protection of becoming a ward acourt and be placed under the care of some relative or good friend, no order can be made, as with the legitimate child, requiring either or both parents to pay for the child's maintenance and education. If a grandfather, aunt, uncle or half-brother dies intestate, an illegitimate — unlike a legitimate — can have no share of the estate, no matter how close his personal relationships may have been with the dead relative. If the child has been fathered by a man who enjoyed a life interest in what is termed an entailed estate, a life interest which the original donor has declared was to pass by succession to his heirs, then, although even an adopted child would be able to benefit when the father died, the illegitimate child is disinherited. And because a claim to UK citizenship depends upon a father's citizenship, and because in law 'father' means only the father of legitimate children, a child born outside Britain . to an unmarried British mother in, say, Switzerland, may have statelessness added to his burden of bastardy.
Nowhere perhaps is the hypocrisy of our attitude to legitimacy more richly illustrated than in the laws relating to titles. Although it is notorious that many families of ancient lineage sprang from the caprices of wayward kings, and have the bar sinister emblazoned on their arms, yet no illegitimate may inherit a title, even one founded by illegitimate ancestors like William the Conqueror. Titles are jealously guarded; not even the child of a union that is subsequently regularised can succeed to any title. The courts in the Strand may have been persuaded by legislators that in all matters affecting children the paramount consideration should be the long-term welfare of the child — but these persuasions have yet to succeed with the courts at Buckingham Palace.
In the Commons next month, James White MP and I will be presenting for a second reading a Bill designed to undermine the principles on which our illegitimacy laws rest. The affirmation that the sin of the parents must be visited upon the children, that the preservation of property rights is more important than the welfare of the children, that the institution of marriage must be buttressed by outlawing children born out of wedlock, will all be challenged. The House will be invited to jettison completely the legal distinction between the concept of legitimacy and illegitimacy, and to declare that the law hitherto applicable to legitimate children will become applicable to all children without distinction. Labour MPs will have an opportunity of paying off their debt to Keir Hardie, Ramsay Macdonald and Ernest Bevin — some of the founding bastards of the Labour movement; and the whole House can demonstrate its readiness to respond to the United Nations 1979 International Year of the Child. It would be a worthy gesture from a Christian country which believes in a Jewish child whose only father was God himself.
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