BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. This is an application seeking an Order of Certiorari by way of Judicial Review of a decision of His Honour Judge Devally made on the 1st November, 1995 in the matter of a claim for maintenance by L.M., the Applicant, in respect of her non-martial child, B., against D.W., the Notice Party herein who is the natural father of the child. The claim was brought under Section 5A of the Family Law (Maintenance of Spouses and Children) Act, 1976 (the 1976 Act) as inserted by Section 18 of the Status of Children Act, 1987 (the 1987 Act). The learned trial Judge dismissed the claim on the grounds that he had no jurisdiction to make an Order for maintenance.

2. B. was born in 1983. L.M. made an application to the Circuit Court in 1983 under the Illegitimate Children (Affiliation Orders) Act, 1930 (the 1930 Act) as amended by the 1976 Act. Section 4 of the 1930 Act provides for an Order for the payment of weekly sums by way of maintenance and Section 5 provides for variation of such Order. Under Section 8 these weekly sums may be commuted by the payment of such lump sum as may be fixed by the Court. Section 10(1) and (2) provide for application to the District Court to approve voluntary agreements between the natural father and the mother to make provision for the child either before or after an Affiliation Order is made. Subsection (3) provides (inter alia) that a Judge shall not approve of an agreement under this section unless he is of opinion and so records in his Order that the provision is substantially as beneficial to such child and its mother as the benefits which could be obtained under the Act. Subsection (4) provides:-

3. Subsection (5) is not relevant.

4. The jurisdiction conferred on the District Court under the 1930 Act was extended to the Circuit Court by virtue of Section 14 of the Courts Act, 1981.

5. No affiliation Order was made in this case. The proceedings issued by L.M. were compromised by an agreement between the parties which was approved in the Dublin Circuit Court on the 13th October, 1983.

6. The Order provided as follows:-

7. While the Order does not actually record that the Circuit Judge is of opinion that the provision is substantially as beneficial to the child (as provided in Section 10(3) of the 1930 Act), no point was taken in respect of the omission and the case was argued on the basis that the Order of 13th October, 1983 was a valid Order under Section 10(4).

8. The agreement was not signed until the 21st November, 1983. There it was agreed that in consideration of the payment of the sum of £7,750 (an increase of £250 from the sum agreed on 13th October, 1983) by D.W. to L.M., L.M. covenanted to apply the money for the maintenance, support and education of B., to provide B. with proper and sufficient food, clothing, lodging, medical attention and education until she was 16 and to keep D.W. indemnified against all actions and claims (etc.) in relation to the maintenance or education or otherwise in respect of B.. There was a reciprocal covenant by D.W. (inter alia) not to communicate with L.M.

9. Section 5A of the 1976 Act (as inserted by Section 18 of the 1987 Act) provides:-

10. It is not possible under the 1976 Act (as amended by the 1987 Act) to commute weekly maintenance payments by lump sum payments or to make lump sum payments so as to exonerate a parent from the obligation of maintenance of a non-marital child. Lump sum Orders can only be made towards the expenses incidental to the birth or the funeral of a child who is a non-marital child. (See Section 21A of the 1976 Act, as inserted by Section 21 of the 1987 Act).

11. Section 27 of the 1976 Act provides:-

12. Section 25 of the 1987 Act provides:-

13. The Applicant claims that the learned Circuit Judge erred in law in holding he had no jurisdiction to award maintenance and in particular by reason of the agreement of the 21st November, 1983. Ms. Clissman argued that Section 5A of the 1976 Act (as inserted by Section 18 of the 1987 Act) gives the Court power to order maintenance for the support of a non-marital child subject to the consideration of certain factual and financial circumstances laid down in subsection (3). This is an unfettered jurisdiction. The restriction in subsection (4) does not apply.

14. Any covenants or waivers made by the Applicant in respect of future claims for maintenance are void and unenforceable. This is analogous to a purported waiver of maintenance rights by a spouse as in D. -v- D . (unreported, Supreme Court, 8th May, 1978).

15. Section 27 of the 1976 Act precludes any agreement which would deprive an applicant from claiming maintenance for a non-marital child. The fact that the agreement was entered into before the passing of the Act of 1987 does not affect its invalidity. It ceased to have effect when the 1987 Act became law by virtue of the repeal of the 1930 Act and by virtue of Section 27 of the 1976 Act. The exclusion of a non-marital child from benefiting from an Order of maintenance under the 1976 Act (as amended by the 1987 Act) by reason of a pre-existing agreement would be contrary to the purpose of the 1987 Act which was to confer equality on children (see long title). The Order made in the Circuit Court under the 1930 Act on the 13th October, 1983 could not have been made under Section 5A of the 1976 Act. There were no uncompleted proceedings under the 1930 Act therefore subsections (2) and (3) of Section 25 of the 1987 Act do not apply. Section 5A does not include capital payments and so cannot be deemed to be an Order under Section 5A of the 1976 Act. Since the 1983 agreement is not caught by Section 25(2), it did not survive the repeal of the 1930 Act.

16. This has no application in that there is a contrary intention expressed. The savers in respect of Orders which could have been made under Section 5A did not affect any other Orders under the 1930 Act. The 1987 Act provides for a new procedure in applications for maintenance for non-marital children to which Section 27 of the 1976 Act applied. The agreement therefore should be construed in the same way as in D. -v- D ..

17. Mr. Durcan submitted there was a presumption that the statute was not intended to have retrospective effect. He cited Hamilton -v- Hamilton , (1982 I.R. 466) where the wife claimed that a disposition by the husband in pursuance of a contract entered into before the Act came into operation was void because she had not consented to the assurance to the purchaser after the Act became operative. Chief Justice O'Higgins considered the principle of retrospectivity. In that case it was decided that the provisions of the Family Home Protection Act, 1976 did not furnish either expressly or impliedly grounds for displacing the common law presumption that the Act was not intended to have retrospective effect.

18. Mr. Durkin said there was an end to the duty to maintain once the Order under the 1930 Act was made and to give the statute the interpretation claimed by the Applicant would call into question its constitutionality. He submitted that D. -v- D . was decided in the way it was because children who are marital have inalienable rights whereas children who are non-marital do not.

19. He submitted the operative effect of the Order made by the Circuit Court continues by virtue of Section 25(4) of the 1987 Act which enforces the presumption of non-retrospection. If not deemed to be Orders under Section 5A by virtue of subsection (2), the Order of the Circuit Court remains unaffected by the provisions of the 1987 Act and applies to the proceedings brought by the Applicant. It operates as a complete bar.

20. He cited the case of F. -v- F ., (1995 2 I.R. 354) which dealt with the effect of judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 by an applicant who had already applied for her divorce a mensa et thoro in 1986 and settled that claim. It was held the cause of action was the same and this precluded any fresh action claiming effectively the same relief. In this case the cause of action is the same, namely, a claim for maintenance.

21. He submitted this case has statutory immunity given by the 1930 Act. Even if the statutory immunity is not there, the agreement and the Order are sufficient to stop new proceedings. It was never intended that Section 27 would have retrospective effect.

22. In deciding this case it is necessary to consider what exactly was the immunity given by Section 10(4) of the 1930 Act. In my opinion it was a complete bar to proceedings under the 1930 Act and no more. While the immunity no doubt extended to cover the Act as amended, there was no immunity given to cover any statutory re-enactment dealing with the same subject matter.

23. The 1987 Act introduced a new regime for non-marital children. The maintenance was not limited by reference to a specific sum. Since the immunity given by Section 10(4) of the 1930 Act related only to proceedings under the 1930 Act, then once the new regime was introduced by the 1976 Act as amended by the 1987 Act, the indemnity did not extend to the new regime. That regime specifically provided in Section 27 of the 1976 Act that an agreement should be void insofar as it would have the effect of excluding or limiting the operation of any provision of the 1976 Act, the exception in Section 21 not being relevant.

24. It was held by the Supreme Court in D. -v- D ., (unreported, 8/5/78) per Walsh J. that it was not possible to contract out of the Act of 1976 by an agreement made after the Act came in to force or by agreement entered into before the legislation was enacted.

25. In that case there was an agreement compromising divorce a mensa et thoro proceedings under which a lump sum was payable "in full satisfaction of all claims in the petition". Walsh J. said (at page 7):-

26. And later (at page 9):-

27. In my view the same principles should apply here. The right to make an Order under Section 5A is not barred by reason of the agreement which ceased to have effect on the passing of the 1987 Act. The lump sum payment is a factor to be taken into account when the Court comes to consider the merits. The Court must consider whether D.W. "has failed to provide such maintenance for the child as is proper in the circumstances" (Section 5A(1)) and if it so appears to the Court, it may make a Maintenance Order for such amount and at such times for such period during L.M.'s life as the Court considers proper. In deciding whether to make a Maintenance Order and how much, it must have regard "to all the circumstances of the case", as well as in particular the matters set out in subsection (3)(a) and (b).

28. In her judgment, Denham J. said at page 369:-

29. And later at page 370:-

30. It seems to me that what was referred to by Blayney J. as a completely new right introduced by Section 5 of the 1976 Act was reference to a new regime for the payment of maintenance to spouses and children since the right to maintenance as such pre-dated the 1976 Act.

31. In the same way in this case a completely new right was given under Section 5A in respect of the maintenance of non-marital children.

32. The right given by Section 10(4) of the 1930 Act to the Notice Party was an immunity to proceedings under the 1930 Act. When that Act was repealed the immunity lapsed.

33. Since the immunity acquired under Section 10(4) only lasted until the repeal of the 1930 Act, the immunity could not carry over by virtue of Section 21(1)(c) of the Interpretation Act, 1937.

34. Quite apart from the statutory immunity under the 1930 Act to proceedings under that Act, the agreement itself ceased to have effect by virtue of Section 27 of the 1976 Act. When the 1987 Act inserted Section 5A into the 1976 Act this section became an integral part of the 1976 Act and was subject to Section 27 of the same Act.

35. Section 25(1) of the 1987 Act repealed the 1930 Act. The remaining subsections of Section 25 did not affect the operation of Section 27 of the Act of 1976. The effect of Section 25(4) of the 1987 Act simply meant that any Orders or unfinished proceedings under the 1930 Act which were not deemed to be Orders or proceedings under Section 5A(2) or (3) of the 1976 Act were not affected by the deeming provisions. In my opinion it cannot be interpreted to give extra validity to an Order which by virtue of the wording of Section 10(4) did not survive the repeal of the 1930 Act.

36. The 1987 Act conferred new rights on non-marital children. It takes account of the rights of the Notice Party, D.W., by requiring the Court to take account of all the circumstances of the case which would include the lump sum payment. Ultimately the decision is whether the Notice Party has failed to provide such maintenance for the child as is proper in the circumstances.

37. Section 5A does not have retroactive effect as it looks to the future maintenance of the child while taking account of the lump sum payment as a factor.

38. The appropriate Order is to grant an Order of Certiorari and send the matter back to the Circuit Court to hear the application on the merits.