Succession Rights for children born out of wedlock

STATES OF JERSEY

r

SUCCESSION RIGHTS FOR CHILDREN BORN OUT OF WEDLOCK

Lodged au Greffe on 12th August 2003 by the Legislation Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

(a ) th a t the Wills and Successions (Jersey) Law 1993 should be amended so as to permit any person

domiciled in Jersey to dispose of moveable estate as that person thinks fit subject to paragraph  (b) below;

( b ) t h at the Royal Court should have a jurisdiction to make such order as it thinks fit in the

administration of moveable estate of a person who has died domiciled in Jersey so as to provide a proper sum out of that estate for the maintenance and support of that person's dependents;

( c) th a t succession to moveable estate on intestacy should devolve in such a way that ensures all

children of the deceased have he same rights whether they be born inside or outside wedlock;

( d ) t h at new provision should be made for executors and administrators dealing with the

administration of the estate of the deceased in good faith.

LEGISLATION COMMITTEE

REPORT

This report and proposition follows 2 consultative papers issued by the previous Legislation Committee – R.C.32/99 presented to the States on 14th September 1999 under the heading "Succession Rights for Children born out of Wedlock" and R.C.3/2001 presented to the States on 2nd January 2001 under the heading "Succession Rights".

Copies of the 2 reports are annexed to this report for ease of reference.

In R.C.3/2001, the Legislation Committee indicated that it was minded to bring forward legislation in accordance with the terms of the proposition which is with this report to be put before the States Assembly. The Committee invited submissions to be made during the early part of 2001. The Committee was pleased to receive a number of submissions, from the Jersey Law Commission, Relate, the Family Law Sub-Committee of the Jersey Law Society, the Registrar of Probate (in relation to technical matters), individual lawyers and members of the public. The overwhelming response was to endorse the Committee's proposals as set out in R.C.3/2001.

Before proceeding to give the Law Draftsman a brief to take forward the preparation of appropriate legislation, the Committee considers that the States Assembly ought to have the opportunity of an in principle debate. Accordingly it brings this proposition. The rationale for bringing the proposals is set out in the discussion at paragraphs 8 to 17 of R.C.3/2001 and it would seem otiose to repeat the argument in this report.

SUCCESSION RIGHTS FOR CHILDREN BORN OUT OF WEDLOCK _______________

Presented to the States on 14th September 1999 by the Legislation Committee

______________________________

STATES OF JERSEY STATES GREFFE

140     1 9 9 9 R  .C . 3 2  

Table of contents

1. Historical background
2. Existing Jersey Law
3. The Convention
4. Options for reform
5. Option 1
6. Option 2(a)

Effective implementation of Option 2(a) in England in 1969

Questions of evidence

Protection of executors etc.

Presumption about the meaning of child' etc.

Option 2(b)

7. Arguments in favourof Option 2(a) or (b)

Non-discrimination

The position of principal heir no longer excludes co-heirs

Changes in lifestyle

8. Arguments against Option 2

The institution of the family

Difficulties of evidence

Possible consequences

9. Option 3

Effective implementation of Option 3 in England in 1987

10. Effective implementation of Option 3 inFrance in 1972
11. Considerations forJerseyin respect ofOption 3

Consistency with other jurisdictions

General considerations

12. Special considerations relating to the European ConventiononHumanRights
13. Overall conclusion

SUCCESSION RIGHTS FOR CHILDREN BORN OUT OF WEDLOCK

1. H  is torical background

1. T h e statusof the illegitimate child in Jersey law was encapsulated in theblunt statement that such a child was "un étranger à sa famille" – literally alien to hisfamily'. This alienation was virtually absolute in depriving the child of any right of inheritance including, in the early Coûtume, the rendering of an illegitimate child incapableofreceivingany legacy ofmovablesifitextendedbeyondmaintenance.
2. Il le gitimate childrenfaredno better under the common law of England andWales.According to Professor H.K. Bevan –

" L i k e m o s t systems of jurisprudence English law . based the legal relationship between the parent and the child not simply upon the fact of parenthood but upon the concept of legitimacy, to be determined by reference to the existence of a valid marriage of the parents. The feudal doctrine which insisted that the parents of a child must be lawfully married at the time of his birth or conception in order to entitle him to inherit an estate in land led to the principle that it was only in respect of such a child that legal rights and duties attached to parents. Otherwise, he was legally filius nullius and his exclusion seems to have been complete, until the Poor Law began to impose a duty on the parent to maintain him. Even thereafter parental rights were still denied, until finally, late in the nineteenth century, the mother's legal right to custody was acknowledged".

3. T h e law of France developedsomewhat differently, asexplained by Amos and Walton –

" I n t h e o ld French law the accepted theory was that illegitimate or natural' children belonged neither to the family of their father nor to that of their mother: bâtards ne succèdent point. The only persons to whom they might succeed were their own legitimate children. By contrast, under the sway of egalitarian sentiment, the law of the revolutionary period gave them the same rights of succession as legitimate children. The Code [Civil] adopted a middle course. It gave them a right in competition with legitimate children to a third of the share of a legitimate child, but at the same time declared that they were not heirs but irregular successors. . [R]ights were given [to] them by a law of 1896, which also declared them to be heirs. These rights var[ied] according to the heirs with whom they happen[ed] to be in competition."

4. T h isrégimebroughtabout three possible combinations –

T h e f irst was that, in competition with legitimate descendants of the deceased, a natural child took half of

the share to which he would have been entitled, had he been legitimate.

T h e s econd was that, in competition with ascendants (whether privileged or not) or privileged collaterals,

the natural child received three-quarters of the succession.

T h e third was that, in competition with ordinary collaterals, or the surviving spouse, he took the whole

succession, but subject in the latter case to the usufruct of the surviving spouse over half the succession.

T h e s e rights were only conferred on natural children who were not the issue of an adultery or incest and

had been formally acknowledged by the deceased as his offspring.

2. E x i stingJerseyLaw

2.1 Je r sey law has made only a small inroad into the underlying customary law which deems an illegitimate child to be an un étranger à sa famille. Article 11 of the Legitimacy (Jersey) Law 1973 has the effect that –

(a ) a n illegitimate child or, if he is dead, his issue, have the same rights in the estate of the mother,

whether she dies testate or intestate, as he/they would have had if he had been legitimate;

(b ) th e mother of an illegitimate child who dies wholly or partly intestate has the same rights in the

estate as she would have had if the child had been legitimate and she had been the sole surviving parent;

( c) th i s right is limited to the mother, and is dependent upon her surviving the child so that, for

example, a sibling of an illegitimate deceased cannot make only claim.

3. T h  e Convention

3.1 T h e broad aim of the European Convention on the Legal Status of Children born out of Wedlock is to improve the status of such children so that, as far as possible, legally and socially they are not disadvantaged as against legitimate children. The United Kingdom signed up to the Convention in 1975 subject to certain reservations. This signature did not extend to Jersey. Jersey decided in 1979 that it did not wish the Convention extended to the Island for the time being. One of the issues for consideration by the Legislation Committee is whether that decision should now be changed. It will be clear from the present state of Jersey law as described above that, should Jersey wish to sign up to the Convention in full, there would have to be fundamental changes to the Island's law of succession.

4. O  p tionsforreform

1. T h e Legislation Committeehas considered the following options –

1 .  T o make no change to the existing provisions in Article  11 of the Legitimacy (Jersey) Law 1973.

2 .  T o expand Article 11 of the 1973 Law to embrace (a) succession between father and illegitimate

child as well as between mother and illegitimate child or (b) direct succession to any degree (e.g. grandparents).

3 .  T o amend customary law generally to extend the rights of the illegitimate child to inherit from the

estates of his wider family as though he were legitimate.

2. T h e Committee,whilstaccepting that the illegitimate child shouldnotbe socially disadvantaged and mindful of the need to protect the rights of the child, iscognizant of the far reaching implications of seeking toamend the customarylaw generally to extend the rights of the illegitimate child to inherit as though he were legitimate. Beforereaching a concluded opinion, the Committee wishes to elicit a wide range ofviews from all interested parties.The purpose of this Paper is to try to identify theimplications of the options above.

5. O  p tion 1

5.1 O p tion 1 [that of no change] is self-explanatory and requires no comment except to observe that it would amount to a virtual renunciation of the aims of the Convention in so far as the Convention relates to rights of inheritance.

6. O  p tion 2(a)

1. O p tion 2(a) [thatofexpanding Article 11ofthe1973Law to embrace succession between father and illegitimate child aswellasbetweenmotherand illegitimate child] would be a partial step, albeit a substantial step,towardsimplementationof the aims of the Convention.
2. A t present an illegitimate childhasnoright to inherit any part of the immovable ormovable property of his natural father onan intestacy, nor does he enjoy thereserved rights of légitimewhich legitimate children have to the movable property of their father. The rights of legitimate childrenarenowcontained in Articles 6 and 7 of the Wills and Successions (Jersey) Law1993("the 1993 Law"). Subject to the

reserved rights of the widow and any legitimate children, as set out in the 1993 Law, a father is free to leave his

moveable or immovable property to an illegitimate child by Will.

E ff e c tive implementation of Option 2(a) in England in 1969

3. In England, section 9 of the LegitimacyAct1929,underwhichan illegitimate child and hisissue were entitled to succeedon the intestacy of his motherifsheleftno legitimate issue (and the motherofan illegitimate child was entitled to succeed on his intestacy asifshewere the only surviving parent) was superseded by section 14oftheFamilyLawReformAct1969whichimplementedtheequivalentof option 2(a),namelyexpanding Article 11 of the Legitimacy (Jersey)Law1973 to embrace succession between father and illegitimate child aswellas between mother and illegitimate child (and vice versa). Its aim was that an illegitimate child shouldbe entitled toshare in the intestacy of both his parents on an equal footing with their legitimate children and that both parents of an illegitimate child should be equally entitled to sharein his intestacy. Nodistinctionwasdrawnbetween illegitimate childrenwhohad been recognised' by their natural parents and others; it was a matter for proof in eachcase that the claimant wasthechild of the intestate.
4. T h e reform did not doaway with the distinction between legitimate and illegitimate birth forpurposesof intestate succession:theprinciplewas that an illegitimate child's relationship with eachofhis natural parents  was equated  with  that  of a  legitimate  child, but this  recognition did  not  extend to permit participation by an illegitimate person in the estate of ancestors moreremote than parents (for example grandparents) or in the estate of collaterals (for example brothersand sisters or half brothersor sisters). Nordid it permit participation by any such person in the estate ofan illegitimate intestate if he died without any surviving issue. The following examples illustrate how the reform worked in practice –

(a ) Z d ied intestate leaving a legitimate daughter, an illegitimate son who had been treated by him as

his son, and an illegitimate son whom he had never seen and of whose existence he was not aware. All three children were entitled equally, subject to proof of the relationship.

(b ) Z , an illegitimate child, died intestate without having married and without children. His mother

predeceased him, but his father survived. The father succeeded to the whole of his estate, whether or not he had recognised or supported Z at any time.

( c) Z died intestate survived by a legitimate son S. His illegitimate daughter D predeceased him

leaving three legitimate children. S took one half of his estate, the rest was divided between the children of D.

( d ) Z died intestate leaving a legitimate daughter D. His legitimate son, S, had predeceased him,

leaving an illegitimate daughter B, whom Z had taken into his house and maintained as a member of his family. D was entitled to the whole estate to the exclusion of B.

( e ) A and B were the products of an illicit union between X and Y who both died. X was the

legitimate child of G who survived. A died intestate without having married. He had been for many years a permanent invalid supported by his "grandfather" G and his "brother" B. Neither of them could succeed to his estate. G is a grandfather whereas B is a collateral relative.

Q u e s tions of evidence

5. T h e extension of succession rights to and from natural father/child raised questions ofevidence to prove a relationship which of coursedid not arise where the rightof succession wasconfined to mother and child. Section 14 of the 1969Actthrew the burdenofproofof a relationship onto any person claiming to be entitled to succeed as the father of an illegitimate child. His claim had to bemade out on a balance of probabilities. This is still the casetoday.

P ro t e ction of executors etc.

6. T h e 1969 Actalso enabled trustees andpersonal representatives to distribute property withouthavingto ascertain that no illegitimate child, orpersonwhoclaimedthrough such a child,wasormightbe entitled to an interest intheproperty.However this special protection wasremovedby the FamilyLawReform Act 1987. There does remain however protection fortrusteesandpersonal representatives in section 27of the Trustee Act1925.Theymayadvertise for claims and are then exempt from liability to all claimants except thoseofwhom they had notice (including constructive notice).Consideration will have to begiven in Jersey to the position ofexecutors and administrators in this respectif the rights of succession of illegitimate persons are extended.

P re s u mption about the meaning of child' etc.

7. T h e 1969Act also created a presumption that in dispositions of property, references to childrenandother relatives included references to, andtopersons related through, illegitimate children. This reversed the common law rule ofconstructionrelatingto wills, settlements etc.underwhich the description child', son', daughter', issue' and similar wordswereto be taken prima facieto mean legitimatechild' etc.
8. I n the Royal Court caseof In the matter of a settlement[1996JLRpage226]thedeceasedmade a settlement ofwhichamongst others his illegitimate son anddaughterwere beneficiaries, aswere their "children and remoter issue whether nowin existence or hereafter tobe born during the trust period". It was argued that the daughter's illegitimate children were precluded from being beneficiaries of the settlement. Howeverthesettlor'swidow and son gave evidence that the settlor hadalways intended all his grandchildren to benefit,whether legitimate ornot, and would have madeexpressprovision to that effect had hethoughtit necessary. The Court held that it waspropertoconstrue the settlement widelyto include the illegitimate children of the settlor'sdaughter.The Court relied partly onFrench authorities (Pothier and Dalloz)and it seems that therewasperhaps greater scope for the Royal Court to look behind the wording of the disposition and ascertain whatwasthe actual intention ofthe testator/settlor. However there remains in Jersey customary law a presumption albeit rebuttable that any reference to child' son' daughter' issue' etc. is a reference only to legitimate offspring. The only distinction arguablybetween Jersey customary law andtheoriginal English common law is that itis easier inJerseytorebut the presumption by extrinsic evidence.

O p t io n 2(b)

9. It w  ould bepossible to gobeyond what was originally done intheUnitedKingdombyproviding that an illegitimate child can share fully in any direct succession.Thushe could share in the succession of the parents of his father ormotherand they could similarly share in the estate of any illegitimate child who died intestate wherethe parents had pre-deceased the illegitimate childand the grandparents. Such an option would resolve the anomaly indicated in example (d) in paragraph 6.4above.

7. A  rg umentsinfavourofOption 2(a) or (b) N o n - discrimination

1. W  hyshould a natural child/grandchild bedisadvantagedwhenheis no sense blameworthy'? Indeed he/she mayhavebeendevotedto the father whilst the father's legitimate offspringmighthaveshunned him. Yetitis only the latter who have reservedrightsunder the 1993 Law.

T h e p osition of principal heir no longer excludes co-heirs

2. N o w that the status of the eldest legitimate sonhasbeen reduced bythe1993Law to one of equality with his  legitimate  brothers and  sisters, the  possibility has  been removed of an  illegitimate  child in a succession of immovables ousting the legitimate offspring by asserting the old preferential rights of principal heir.

C h a n ges in lifestyle

3. M  anymenandwomennowchoose to live togetherwithout marrying and to have childrenas part of a long-standing commitment to each other. Thefamily thereby produced is no less a family than where the parents  have chosen  to marry. It  is unfair that  the  children of such a  union should be in  a  less advantageousposition than children of a marriage. Thus a couplemay have livedtogetherfor50years and brought up their children in every respectas a family. Underthe present Law, if the father dies without making a Will, his children cannot inherit from him upon intestacy. Similarly ifhe chooses to leave all his estate tooneormoreof his illegitimate children and to exclude the others, they have noright to claim any reserved portion underthe1993 Law. The father mayofcourse achieve theobjectiveof fairness bymaking a Will but, if he does not, the childrenare disadvantaged ascompared with their legitimate counterparts.

8. A  rg umentsAgainstOption 2 T h e i nstitution of the family

1. In e vitably any extensionof succession rights of children of non-maritalunion will makesome inroad into the institution of marriage andthe traditionally recognised family unit. The task of the legislator is to weigh the undoubtedbenefitsof the traditional family unit against the unfairness of discriminating against persons whoarenotthemselves blameworthy.

D i ff ic ulties of evidence

2. A wideningofsuccession rights to the paternal side in a non-marital relationship inevitably increases the possibility of disputed claims to kinship. This is unavoidable if the goal ofnon discrimination is tobe achieved. Developments in blood testing and genetic fingerprinting have made it easier to establish paternity inmost cases.

P o ss i ble consequences

3. T h ere would be increased scopefordisputesand distress following the deathof a father. The father may have produced an illegitimate child in his youth.Hemaybeunawareof this because it was a casual relationship or because the motherchose to make her wayon her ownwithoutcontinued contact with the father. On the father's death, bywhich time hemay have been married for manyyearsand produced a family, the mother might well decide to inform the illegitimate childofhis or herfatherwhich might then result in a claim beingmadeon the estate of the father for the illegitimate child's share. The illegitimate child might equally have been conceivedduringan affair whichoccurredduring the marriage butwhich was unknowntothe wife or legitimate family. Clearly the bringing of such a claimis likely tocause considerable emotionaldistressaswellashavefinancialconsequences for the legitimate family.

9. O  p tion 3

1. E s sentially the comments in the preceding paragraphsapply with similar force to the option ofextending succession rights of offspring ofnon-marital relationships to collateral successions [i.e. successionswhere there arenosurviving children, grandchildren, grandparents etc.and the estate devolves collaterally' to brother and/or sisters, unclesand/oraunts and/or their children or, if there are no unclesand/oraunts (or any children of theirs) to first cousins (and their children) and so on].

E ff e c tive implementation of Option 3 in England in 1987

2. T h e policy underlyingtheFamilyLawReformAct 1987 was that to the greatest extent possible the legal position  of a  child  born  to unmarried parents  should  be the  same  as that  of  one born  to married parents' (perLord Chancellor, Hansard,H.L. Vol, 482, col. 647).TheAct is a productof two Law CommissionReports(Nos.118 and 157),published respectively in 1982 and 1986. Therecommendations of the first report were the object ofconsiderable criticism, not least from women's rights organisations. The recommendationsof the second report took accountof these criticisms and of the Scott ish approach to  the problem  in  the  Law Reform  (Parent  and Child) (Scotland)  Act 1986. The English  Law

Commission's second report saw significant advantages' in the Scott ish approach and also believed that, in so far

as was possible, there should be consistency' between the two legal systems on such an important subject'.

3. T h e 1987Act did not abolish the status of illegitimacy. Its aimwastoremove "so far as possible. any avoidable discrimination against, or stigma attaching to, children born outside wedlock"(per Lord Chancellor, Hansard, H.L.Vol.482, col. 647).TheAct followed the world trend towards the elimination of discrimination against those born outofwedlock.Therehad already been reform inNewZealand [Status of Children Act 1969, s.3(1)declaring that "for all purposes of the law of New Zealand the relationship between everypersonand his father and mothershallbe determined irrespective ofwhether the father and mother are or have been married to each other, and all other relationships shall be determined accordingly"], Australia, Switzerland,Netherlands,Germany,France. Further, in the U.S.A., there had been many decisions striking down legislation which treated illegitimate children differently from others as inconsistent with the constitutional guaranteeofequalprotection.
4. T h e Act lays down the general principle that, in the absence of a contrary intention, a relationship between two personsistobe construed withoutregardtowhether either ofthem,or any personthrough whom the relationship is deduced,isor is not legitimate. This principle is applied to the provisionsof the Act and applies to all enactments and instruments after 1987.
5. T h e Actalsodeals with rights ofsuccessionto property on intestacy. Illegitimacy is not to betaken into consideration in determining –

(i ) t h e rights of succession of an illegitimate person;

(i i) ri g hts of succession to the estate of an illegitimate person; and (i ii ) r ig hts of succession traced through an illegitimate relationship.

F o r th e purposes of obtaining a grant of probate or administration there is a rebuttable presumption that the

deceased left no surviving illegitimate relatives, or relatives whose relationship is traced through an illegitimate person.

6. T h e concluding paragraph in the general note on the1987Actin Sweet and MaxwellCurrentLaw Statutes Annotatedreadsasfollows:–

" M a ri ta l s ta tus thus remains relevant and the status of illegitimacy has not been abolished. The Scott ish Law Commission observed (Scot. Law Com. No. 82, para. 9.3) that it would be a matter for argument whether it was any longer justifiable to refer to a legal status of illegitimacy . whether minor differences in the rules applying to different classes of persons justify the ascription of a distinct status is a matter for commentators rather than legislators'. But differences do remain. Although the Act discriminates between fathers rather than children, the terminology legitimate' and illegitimate' has not been extirpated. The original Law Commission proposal. would have done this by distinguishing the marital' and non-marital' child. The value of this would have been to do away with the word illegitimate' with the connotation that this has of illegality and unlawfulness. But a rose by any other name.'. Marital status is not irrelevant: nor is legitimacy .".

10. E f fective implementation of Option 3 in France in 1972

10.1 T he modern position in France is set out by Professor Brice Dickson –

" . p r a ct i ca lly all the legal disadvantages attached to being illegitimate have now been removed from the statute book. A statute of 1972 established the principle that illegitimate children should in general have the same rights and duties as those who are legitimate, this now being enshrined in Article 334 of the Code Civil: L'enfant naturel a en général les mêmes droits et les mêmes

devoirs  que  l'enfant  légitime dans  ses  rapports  avec  ses  père  et  mère'. A  father's  relationship  with,  and

responsibility towards, an illegitimate child can be established either by his voluntary recognition of paternity in the form of an acte authentique (an authenticated document usually drawn up by a notaire) (Articles 335-339) or by the judgment of a court (Articles 340-341) . A child who cannot prove his or her paternity . [may] claim maintenance against a man who has had sexual relations with the child's mother during the period when the child might have been conceived (Article 342). As in English law, it is possible for an illegitimate child to be legitimated, either through the marriage of his or her parents or through a court order (par autorité de justice). The latter has been possible only since 1972 and is remarkable because it means that a child can now be legitimate even though his or her parents remain unmarried to each other. The 1972 statute also extended legitimation by marriage to children born of adulterous relationships (enfants adultérins), a group which had previously suffered discrimination because of the alleged affront to the first marriage which a subsequent marriage would imply".

11. C o nsiderations forJersey in respect ofOption 3 C o n s istency with other jurisdictions

1. A s wehave already seen, the majority of westerndemocraciesappearto have enacted legislation which goes towards the almost total elimination of discrimination against those born out of wedlock. The English LawCommission'sSecondReport expressed the view that,inso far aspossible,thereshouldbe consistency' between English andScots law on such an importantsubject'. It does not follow that Jersey ought to feelconstrained to adopt similar legislation, but it is a relevant consideration that there istoday far greater interaction of relationships across different jurisdictions and national boundaries. If Jersey law is significantly atvariance with most other countries, thescopeforconflictoflaw questions toarise becomes greater andsodoesthe associated riskof complex litigation (e.g. the Royal Court case In re a settlement referred to above would havebeenunnecessary and the cost of litigation spared had there already been reform).

G e n e ral considerations

2. T here is a clear difference between the relationship of parent and natural child andthe relationship of that child to brothers and sisters ortocousinsandremoter relatives ofthe parent. It is less likely that the brother or a cousinof a deceasedparentofan illegitimate child will knowoftheexistenceofthechild. This mayinfluence whether ornot that brother or cousin makes a will at all because he maybeaware only of a legitimate relative to whom the property would (sohe thinks) devolve. On the other hand there could be situations in whichan illegitimate person has cared and provided for the brother orcousinof his motherorfatherwhilst a legitimate half-brotherhastakennointerestatall.
3. A gain,given that the preferential status of the principal heir hasnow been extinguishedbythe1993Law, if a non-marital relative were admitted to a succession,he/she would beadmittedonanequal footing with the marital relatives, noneofwhomcouldbeexcluded altogether as a result.
4. It is alsoimportant to recall that in a collateral succession (assuming there is no surviving spouse)the deceased has hadcomplete freedom to make a will, both in relation toimmovableandmovableestate, disposing of everything he owns as he/she thinks fit.There are no reserved rights for collateral heirs whichcanoverridethe provisions of a will. It follows that anybodywhomay have misgivings about his/her propertydevolving upon non-marital relatives has freedom toexclude them altogether. Therefore the frequency with which the questionofentitlement of non-marital relatives arises will almost certainly be muchless than in cases of the parent/child/grandchild relationship where(aswehaveseen)certain rights are reserved irrespective ofwhatmaybe stipulated in the will.

11.6 O therwise the issues raised are similar to those summarised in relation to Option 2 above.

12. S p ecial considerations relating totheEuropeanConventiononHumanRights

1. A rticle 14 of the European ConventiononHumanRightsprovides that –

" T h e e n jo y m ent of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." [Emphasis added.]

2. It mustat once beunderstood that the freedom from discrimination which Article 14seeksto guarantee relates only to the enjoyment of the rights and freedoms set forth in this Convention'. In otherwords, Article 14 does not create its ownseparateright for a personnot to bediscriminated against and nor does the Convention expressly confer an entitlement upon any person (legitimate or otherwise) to inherit property. Article 14 has, so to speak, to becoupled' with the enforcement of a right orfreedomwhichthe Convention otherwise seeks to guarantee.
3. H owever,legalsystemswhich in the past have placed illegitimate relatives at a disadvantagehave been scrutinized in several casesunderthefollowing provisions –

(i ) A  rt icle 1 of Protocol 1 to the Convention which enshrines the right to the peaceful enjoyment of

one's possessions;

(i i ) A r ticle 3 of the Convention itself which provides that no one shall be subjected (amongst other

things) to degrading treatment;

(i ii ) A  rticle 8 of the Convention which (amongst other things) provides that everyone has the right to

respect for his family life.

Article 1 of the Protocol – peaceful enjoyment of possessions

4. I t was held by the EuropeanCourtin the caseof Marckx v. Belgium(1979) 2 E.H.R.R. page 350 at paragraph 50 that –

" .. . A r t ic l e 1 of Protocol 1 ... applies only to a person's existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions ... Since Article 1 of the Protocol proves to be inapplicable, Article 14 of the Convention cannot be combined with it on the point now being considered."

5. T he later caseof Inze v. Austria(1987)10 E.H.R.R. 394concerned a regional Law of Austria whichwas called into question because it discriminated against illegitimate children in the inheritance offarms.The regional Lawconcernedwasnotunlike the Jersey lawof partageunderwhich the eldest legitimate son had preferential rights to the main property.TheCourt [at paragraph 41 of its judgment]said –

" F o r t h e p u r pose of Article 14 [of the Convention], a difference of treatment is discriminatory if it has no objective and reasonable justification', that is, if it does not pursue a legitimate aim' or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised'.

T h e C  o n tr a c ting States enjoy a certain margin of appreciation in assessing whether and to what

extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to circumstances, the subject matter and its background.

In th i s r e s p e ct, the Court recalls that the Convention is a living instrument, to be interpreted in the

light of present day conditions. The question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the member States of the Council of Europe. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is presently in force in respect of nine member States of the Council of Europe. It was ratified by the Republic of Austria on 28th May 1980 ... Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention."

6. T heAustrianGovernment argued asserted that the birth criterion reflected the convictions of the rural population and the social and economic condition of farmers and that illegitimate children, unlike legitimate children, were usually not broughtup on their parents' farm and did not have closelinks with it and, finally, that one had to bear inmindthe special treatmentreservedto the surviving spousewhowas normally entitled tostayon the farm and bemaintained by the principal heir.
7. T he European Court reached the following conclusion –

" L i ke th e C o mmission, the Court is not persuaded by the Government's arguments. Most of them are based on general and abstract considerations – concerning such matters as the deceased's intentions, the place where illegitimate children are brought up and the surviving spouse's relations with his or her legitimate children – which may sometimes not reflect the real situation. For instance, Mr. Inze was brought up and had worked on the farm in question until the age of

23. Those considerations cannot justify a rule of this kind.

W h i ls t i t is tr ue that the applicant's mother could have made a will in his favour, this does not alter

the fact that, in the instant case, he was deprived by law of the possibility of taking over the farm on her death intestate.

T h e C o u r t a lso considers that the argument relating to the convictions of the rural population

merely reflects the traditional outlook. The Government itself has recognised the ongoing developments in rural society and has accordingly prepared a Bill which takes them into account...

.. . T h e C  o u r t ... concludes that there was a breach of Article 14 of the Convention, taken together

with Article 1 of Protocol 1."

8. H owever,in the Inzecase, the applicant had already acquired by inheritance a rightto a shareof his deceased mother'sestate, including thefarm, subject to a distribution oftheassetsin accordance with the relevant Austrian Law. Although hewas the eldest son, hecouldnothoweverrankasprincipal heir because he was illegitimate. Butgivenhehad a vested right, theCourt held that Article 14hadbeen breached whenreadin conjunction with Article 1 of Protocol 1.
9. T echnically, therefore, the Inzecase is probably notauthorityfor the proposition that an illegitimate child can rely on Article 14of the Conventiontogether with Article 1 ofProtocol 1 onthebasis only that heis excluded from a potentialrightofsuccession.

Article 3 of the Convention – degrading treatment

10. Article 3 of the Convention provides that –

" N o o n e shall be subjected to torture or to inhuman or degrading treatment or punishment." [Emphasis added.]

11. Mention has already been madeof the caseof Marckx v. Belgium in whichit was held that legislation discriminating against illegitimate children andtheir parents wasnotdegradingtreatment contrary to Article 3.However,as already noted, the Convention is a living instrument' and it ispossible in the future that discrimination against children born outofwedlock,whichconcernspersonalcharacteristics, will be held tobe degrading, contraryto Article 3. [See ProfessorD.H. Harris Law of theEuropean Convention onHumanRights' 1995 Edition at page 83.]

Article 8 of the Convention – respect for family life

12. Article 8 of the Convention provides that –

" 1 . E v eryone has the right to respect for his private and family life, his home and his correspondence. [Emphasis added.]

2 .  T h e re shall be no interference by a public authority with the exercise of this right except such as is

in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

13. In the caseof Marckx (referred toabove)itwas held that the State had a positive obligation to provide a system of domestic law whichsafeguarded the illegitimate child's integration into its family. By requiring further stepsbeyondmere registration at birth to establish maternal affiliation, Belgiumhad failed to respect the family lifeofthechild and the mother.Furthermore the Court held [at para. 59] that –

" [ T h e A p p l ic ant]was the victim of a breach of Article  14, taken in conjunction with Article 8, by reason both of the restrictions on her capacity to receive property from her mother and of her total lack of inheritance rights on intestacy over the estates of her near relatives on her mother's side."

14. Article 8 was considered further in the caseof Vermeire v. Belgium(1991)15E.H.R.R. page 488 at page 498. Paragraph 44ofthejudgment reads asfollows –

" In   th e   C o u r t's view, family life, within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren. Respect for a family

life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop

normally.

T h e C o m m is sion recalls that matters of intestate succession – and of disposition – between near

relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children's education; it also comprises interests of a material kind.' [This was a quote from Marckx]. It is true, as the Court has pointed out, that Article 8 does not require that a child should have a claim on the estates of his parents or indeed of other near relatives: in the matter of patrimonial rights also, Article 8 in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life......'

I t i s t h e d i s tinction drawn ....... between illegitimate' and legitimate' children which raises a

problem under Article 8 in conjunction with Article 14 of the Convention. It was still possible for a distinction between illegitimate' and legitimate' family to be regarded as permissible and normal in a number of European countries at the time when the Convention was drawn up. However, the Court recalls that the Convention must be interpreted in the light of present-day conditions. In this case it should be noted that the domestic law of most member states of the Council of Europe has evolved and is still evolving, along with the relevant international instruments, towards full juridical recognition of the principle of equality between legitimate' and illegitimate' descent. In recent decades, many European countries have adopted new legislation overturning the traditional system of law of descent and establishing almost complete equality between legitimate' and illegitimate' children."

Legislation Committee conclusion on questions raised by the Convention

15. The LegislationCommittee has taken particular note of that partofthe Inze judgment (referred to in para

12.5 above) in which the European Court recalled that –

" . .. .. . t h e   C onvention is a living instrument, to be interpreted in the light of present day conditions ..... [and the] .... question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the Member States of the Council of Europe".

16. The Committeealsonotes the conclusion in thecase of Vermeire (para 12.14above) that family life, within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparentsand grandchildren, and that respect for a family life implies an obligation for the State to act in a manner calculated to allow these ties to developnormally.

17. Thus it appears that any difference of treatment is unfairly discriminatory if, in the words of the European Court, it "has noobjective and reasonable justification, that is, if itdoesnot pursue a legitimate aim' or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to berealised'".

18. The Legislation Committee starts from the premise that any discrimination against illegitimate children requires objective andsubstantial justification. Toput it another way,there must beclear and strong reasons if the Island is to justify retaining discrimination asbetween legitimate and illegitimate relatives as a feature of the Jersey law ofsuccession.Thedomestic law of most MemberStatesof the Councilof Europe has evolved and is still evolving towards full juridical recognition of the principle of equality between legitimate and illegitimate descent.

19. These considerations weigh heavily infavourof the adoption bythe States ofOption3,namely, the widening of all successionrightson a non discriminatory basis.

13. O  verall conclusion

A t p resent the Legislation Committee is minded to proceed on the basis of Option 3 and generally to

extend the rights of the illegitimate child to inherit from the estates of his/her wider family as though he/she were legitimate, but, before reaching a concluded view, the Committee wishes to consult as widely as possible. Submissions are therefore invited from as many sections of the community as possible as to whether Option 1, 2(a), 2(b) or 3 is to be preferred.

SUCCESSION RIGHTS _______________

Presented to the States on 2nd January 2001 by the Legislation Committee

______________________________

STATES OF JERSEY STATES GREFFE

150     2 0 0 1 R .C . 3    

SUCCESSION RIGHTS

Preliminary

1. I n its consultative documentR.C.32/99, entitled "Succession Rights for Children born out of Wedlock" presented to the States on 14th September1999, the Legislation Committee,havingnoted that the status of the illegitimate child in Jersey law wasencapsulated in the bluntstatement that such a child was "un étranger à sa famille" – literally "alien to his family" – and that existing law had madeonly a small inroad into this underlying customary law principle, proposed that considerationbegiven to extending the rights ofthe illegitimate childto inherit from the estatesof his/her wider family asthoughhe/shewere legitimate. Inreaching that proposal, the LegislationCommittee had regard to the European Convention on theLegal Status of Children born outofWedlock, to which the UnitedKingdomsignedup in 1975 subject  to certain  reservations,  but to which Jersey  has not  signed  up; and also to  the  European Convention onHumanRightswhich will become part ofthe domestic law of Jersey when the Human Rights (Jersey)Law 2000 comes into operation.ByR.C.32/99, the Committee invited submissions from as many sections of the communityaspossible as towhichof the various options canvassed in that report would best befollowed.
2. T h e LegislationCommitteewas pleased to receive some very thoughtful submissions from a number of different people, and has been troubled by the possibility that the adoption of option 3 as set outin R.C.32/99, namely the widening of all succession rights on a non-discriminatory basis, might have undesirable practical consequencesincaseswhere the existenceof the illegitimate childwasunknownto the legitimate family ofthedeceasedpriorto the date of his death.TheCommittee continues nonetheless to  maintain  strongly  the proposition  that  any  discrimination  against  illegitimate  children  requires objective  and substantial  justification.  After anxious  consideration,  the  Legislation  Committee has resolved that as these two propositions comepotentiallyifnotactually into conflict as a result of the succession  rights  conferred by law, the  better  course is  to  adopt a  two-pronged approach by both removing the discrimination against illegitimate children and also removing the fixed proportion of the movable estate (or "légitime") to which the surviving spouse and the legitimate childrenare entitled at present undertheLaw.Itis for that reason that this report is beingpreparedfor the States for further for further consultation.

Historical background

3. U  n til the Wills and Succession(Jersey)Law1993, the customary law of the Island in essence provided that –

(i ) A   m  an leaving a widow and legitimate children was required to leave by Will one-third of his

movable estate to his widow and one-third to his children in equal shares. The Law afforded him the right to leave one-third of his movable estate wheresoever he liked (le tiers disponible).