O'B. v W

• Jurisdiction: Ireland
• Judge: HENCHY J.,KENNY J.
• Judgment Date: 01 January 1982
• Neutral Citation: 1976 WJSC-SC 1138
• Docket Number: No. 183 Sp. ct. 6/1975,[S.C. No. 212 of 1975]
• Court: Supreme Court
• Date: 01 January 1982

1976 WJSC-SC 1138

THE SUPREME COURT

HENCHY J.

GRIFFIN J.

KENNY J.

No. 183 Sp. ct. 6/1975

(212/1975)

O v. M

REVERSING HIGH - 13.11.75

In the Matter of the Illegitimate Children

(Affiliation Orders) Act, 1930:

In the Matter of the Courts Act, 1971:

And In the Matter of S. E. O'B. an Infant

O.

v.

M.

1 JUDGMENT OF HENCHY J.DELIVERED THE 29th JULY 1976

2 The problem presented in this case is whether the mother of an illegitimate child may institute proceedings in the High Court by special summons claiming an affiliation order against the putative father of the child. This, it would seem, is the first case in which the point has been raised.

3 Before 1930 the law applicable in the geographical area of this State did not allow the mother of an illegitimate child to obtain an affiliation order against the putative father. Only a local body administering the relief of the poor could have got an order of that nature, under the Bastardy (Ireland) Act, 1863. The only legal procedure available to the mother for the recovery from the putative father of a sum of money which could be used for the maintenance of the child was a common-law action for seduction, in which the plaintiff - necessarily somebody other than themother - could reover damages for the loss of the mother's services during her confinement. But the action was maintainable only if the circumstances supported a finding of such loss of services to the plaintiff. Aside from that doubtful remedy, the mother was left by the law to fend for herself in the task of rearing the child.

4 In 1930 the legislature of the Irish Free State set out to redress that unsatisfactory situation. It passed the Illegitimate Children (Affiliation Orders) Act, 1930. This Act repealed the Bastardy (Ireland) Act, 1863, but it retained the right of a local body administering the relief of the poor to apply for an affiliation order against the putative father. The principal change made by the Act was the introduction of the right of the mother of an illegitimate child to apply for an affiliation order against the putative father.

5 The 1930 Act and the rules of court which were made for its implementation (now the District Court Rules (No. 2), 1962, replacing earlier Rules) constituted a self-contained code covering the application for, the making of, the variation of, the commutation of and the recovery of sums payable under affiliation orders made in the District Court. The District Court was the only court given original Jurisdiction under the Act.

6 S. 2(1) of the Act specified how an application for an affiliation order may be initiated. It provides that in regard to an illegitimate child, "upon an information in writing upon oath being made by the mother of such child identifying the father of such child the Justice of the District Court in the District in which such mother resides may issue a summons or other process requiring the person (in this Act referred to as the alleged father) identified in such information as the father of such child to appear on the hearing of an application [for an affiliation order]".

7 The subsection unequivocally makes the filling of a sworn information identifying the father of the child a prerequisite to the issue of a summons. Rule 3(1) of the District Court Rules (No. 2), 1962, provides in effect that where the information is not sworn before the District Justice, it shall be vetted by the District Justice and, if he considers it necessary, he may require the inclusion in it of further particulars. It is only when the District Justice is satisfied that the sworn information identifies the father that a summons may be issued, and even then, it is only the District Justice who may issue the summons, whereas ordinarily a summons may be issued by a Peace Commissioner or a District Court Clerk, as well as a District Justice: see rule 30 of the District Court Rules, 1948.

8 The requirement in s. 2(1) of the 1930 Act that a summons in the District Court claiming an affiliation order must be issued by a District Justice, and be preceded by a sworn information identifying the father, is obviously a precaution aimed at ensuring that only genuine claims for affiliation orders may be made. The unusual prerequisite of a sworn information, to the satisfaction of a District Justice, identifying the father of the child, was intended to act as a barrier against unfounded or blackmailing claims. (As a matter of legislative history, it may be noted that s. 2(1) was enacted in its present form as an amendment introduced to allay the fears expressed by members of Dail Eireann that in its original form it would have permitted groundless and damaging claims to be easily made; see Dail Eireann Reports, vol. 33, cols, 138-9, 170-3, 1901).

9 Such was the law between the passing of the 1930 Act and the passing of the Courts Act, 1971. During that period the District Court had sole seisin of claims for affiliation orders, subject to an appeal to the Circuit Court: s. 84. of the Courts of Justice Act, 1924. That law was changed by s. 19 of the Courts Act, 1971. This section (which is now amended by s. 28) of the Family Law (Maintenance of Spouses and Children) Act, 1976) amended the 1930 Act in certain respects. As far as this caseis concerned, the important amendments made by s. 19 (as thus amended)were:

10 (1) Claims under the 1930 Act for the payment of a weekly sum exceeding £15 (originally £5 in the 1971 Act) for the maintenance and education of a child were excluded from the jurisdiction of the District Court.

11 (2) Such excluded claims were required to be heard in the High Court, and the 1930 Act was to apply, "with any necessary modifications and adaptations, in relation to any such proceedings in the High Court, or on appeal therefrom in the Supreme Court".

12 (3) Rules of court were to provide for the conduct of such proceedings in the High Court in a summary manner.

13 (4) When the High Court has made an order under the 1930 Act, the District Court shall have no jurisdiction to make an order under that Act in relation to the matter. That is to say, it is to have no jurisdiction to vary an affiliation order, to commute a weekly sum, or to make any of the consequential orders which the District Court could make under the 1930 Act if the affiliation proceedings had been commenced in...