[Deputy Andrews ]
We might first consider what a constitution should be - whether it should be an aspirational document containing values and ideals which we hope to achieve, an educative type of document, as one group described it, or if it should be a contemporary reflection of what the state is. Should it hold up a mirror and regulate the circumstances we see around us every day? Which model does the group suggest? Is there a debate in the legal world about such an issue? Judging from the contributions we have heard over the past couple of days, there seems to be such a debate.
The second issue relates to cohabiting couples. We did not settle the argument regarding when such a couple becomes a family, if one defines family in the way it is defined in the EU charter. Must a cohabiting couple register with the State, for example, or is there a presumption after a certain period of time that a cohabiting couple or a family is recognised as such? Are there circumstances in which a cohabiting family could continue to avoid the application of family law, if it wished to stay outside it and not benefit from family legislation?
In a number of cases since about 1998, the Supreme Court has found there are unenumerated rights in the Constitution with regard to children but that the court would not take it upon itself to enumerate them as this was the job of the Legislature. This is what we were told in previous submissions. I am thinking in particular of the case, North Western Health Board v. H.W., involving a PKU screening test, wherein the North Western Health Board tried to identify a child’s right as being superior to a family right. The Supreme Court did not agree with that point of view and would not do so unless there was an immediate risk to the health of the child. We got the impression that the case would probably have been decided differently if a non-marital child was involved because it is only the family based in marriage which is protected under the Constitution and not the other types of families discussed.
Similarly, a point was made in one submission with regard to foster care, where it would not be possible to adopt a child one is fostering if that child originated in a marital family, while one could do so if the child was from a non-marital family. The Constitution therefore protects marital children but in other ways puts them at risk. I would be interested to hear the group’s views on that point.
Numerous rights are set out in Article 28 of the South African constitution. Is there any case law on that issue? Do such rights represent the right way to proceed, or is it better to have a simpler statement of children’s rights that are unenumerated, and allow the Legislature to spell matters out?
Deputy O’Sullivan: I want to ask about the issue of the father’s rights and the biological versus social father. At what points does the father have rights? A purely biological father might have had no involvement with a child. Should he have rights?
Ms Reidy: Under the European Convention on Human Rights, a biological father has parental rights even if he has had almost no relationship with the child. We support that approach. That does not mean there will not be other competing parental rights such as those of the biological mother and a man who has played a “social father” role but may not be the biological father. One has to find a way of allowing participation in decisions about how the interests of the child are looked after. The child has rights under the European Convention on Human Rights, and the father, irrespective of how deep the relationship has been, has recognition of his rights as a father. One should start with those rights, which may then be curtailed by failure to exercise them over a certain period of time. Certain rights exist under the European Convention on Human Rights and the extent to which they may be exercised or curtailed may then be dependent on subsequent behaviour, and the rights of other stakeholders involved.
Mr. Power: Regarding Deputy O’Sullivan’s question, there is a slight difference between the ascription of rights and the exercise of those rights. There is sometimes a danger in that if one gives rights to a person who does not seem to deserve them, the child might be stuck with that situation. In any decision regarding the upbringing of a child it would be important to have a welfare provision - the Constitution is currently deficient in that regard - such that the exercise of whatever rights are ascribed is curtailed if they fail to match up to the welfare of the child. That is the safeguard the Deputy might have been seeking when she asked her question.
Deputy Andrews asked a great many questions and we will endeavour to respond. Regarding the Constitution and its function, to some extent when one looks at the interpretation as attempted by the Supreme Court, there are many different approaches. One involves an historical perspective. Do we take the Constitution to mean what it meant in 1937? Generally speaking, the Supreme Court has not taken that approach but suggested the Constitution must be a vibrant and dynamic document that recognises where we came from and where we are today. It is not mutually exclusive to have a document which is a framework, an aspirational and ideological document, and also a reflection of where the country is. It does, however, mean that it should be broad. It means that no group which ought to be given constitutional protection and recognition should be excluded unnecessarily or unreasonably. For example, families based on marriage should be included and families not based on marriage, de facto families, should be given protection. It should be open for them to be recognised in the Constitution as having a role to play in care-giving familial relationships. There is no one defining answer as to what is a constitution. It is a political, moral, aspirational and ideological document. That is the difficulty we all have.
The question of divorce was raised. Many issues that are important to people at gut level are included, as are ones that are aspirationally important. The joint committee will have a very difficult job in bringing together a set of wordings to cover the diverse submissions made. The ICCL submit it ought to take a view that ascribes respect and autonomy, respecting the equality of individuals. That would not diminish the rights of families based on marriage. It would be a recognition of those rights for others outside it. That is a proper role for a constitution.
Deputy Andrews: All the studies are telling us that the ideal is two parents under one roof. That is what we aspire to since it is best for children. I am not arguing there should be added rights for non-marital families but that there is a contradiction between the two. On the one hand, there is the aspiration to have two parents under one roof; on the other, we must reflect the fact that one-parent families are entitled to all the rights of their two-parent counterparts.
Mr. Power: : That is a recognition of diversity and special needs. We all know one-parent families have a higher chance of poverty. That must be addressed. Perhaps the focus is too much on two-parent families regarding service provision. I do not believe the Constitution need define one group to the exclusion of all others. That might be part of the problem. It should be broad enough to deal with both under the same roof. The Deputy raised the issue of cohabitation and asked when a relationship becomes such. This question causes difficulty in social welfare terms.
We propose various models. First, a civil registration provision should be permissible in order that those who do not wish to get married could register a union that might be seen as a lesser form of marriage but with certain of its key features. That, by no means, would allow those who actually cohabit to exclude certain other baseline obligations. We already have such a provision in law. For example, domestic violence legislation extends to cohabitees and those who happen to live together. Safety orders are available to a wide range of persons who live together, while barring orders are available to those who cohabit as husband and wife, as well as spouses. Adult children are also subject to them. There is, therefore, regulation of cohabitation in some respects. If children are involved, the basic principle must always be the welfare of the child. The joint committee will have heard many submissions in recent days but on that issue everyone is singing from the same hymn sheet.
There are two ways of dealing with the matter. If a couple enters into a recognised relationship, be it marriage or civil partnership, the other would be ascribed or prescribed to them. In other words, if one happens to be cohabiting as defined by the Domestic Violence Act 1996, one would become subject to it. At present, the law is a mix of the two. Some couples opt into marriage and some cohabit and because of this become subject to regulation by the Domestic Violence Act 1996.
Deputy Andrews raised the PKU test case involving the North Western Health Board and the H.W. and C.W. case. That is a very important decision since it highlights the role of married parents regarding children and upholds case law from the 1980s that was seen as the high water mark of parental rights. It is a decision one can criticise as being correct or incorrect, depending on one’s ideological viewpoint. I would criticise it from a very specific viewpoint.
The Supreme Court endeavoured to decide which of two groups had the right to determine whether a child should have a PKU test done, the health board or the parents. However, it endeavoured to do so without listening to the child. To my mind, that shows the absence of children’s rights since there should have been a third voice. The only voices the Supreme Court heard in argument were those of the lawyers for the health board saying it should be allowed to administer the test, even if the parents did not want it, and those of the lawyers for the parents saying they were autonomous and, because of Article 41, should make the decision.
Both viewpoints have pros and cons but the viewpoint not given an independent voice before the Supreme Court was that of the child. There was no independent articulation of the interests, views or welfare of the child. I am not saying the child could have had views in this case, since it was an infant, but it certainly had welfare and interests. There should have been an amicus curiae brief to articulate these views in court. However, even if the child was older, we do not have a proper system to represent children’s issues, something the European Convention on Human Rights demands. Many other international bodies, including the Committee on the Rights of the Child, have time and again stated this is a failure, not just in Ireland but in many countries. Perhaps the Ombudsman, the office established by the Oireachtas several years ago and now filled, might be able to fulfil this role but it is a very important gap and the court’s decision might have been better and stronger had the court heard those views.
Ms Walsh: On children’s rights, Deputy Andrews asked whether it might be preferable to leave the question unenumerated and stipulate that the Legislature should fill in the details. We do not believe that would be satisfactory, the principal reason being that we have a very strong form of judicial review that effectively allows courts to veto Acts of the Oireachtas. One has a considerable gap in legal certainty without specifically enumerated rights when the courts fashion what currently falls under the heading of Article 40.3 on a case by case basis. For that reason alone - maintaining the integrity of the separation of powers - children’s right should be enumerated clearly.
Deputy Andrews also asked whether section 28 of the South African constitution was a good model in that regard. We believe it is. In case law the courts have emphasised that the reference to children’s rights being paramount does not simply mean they are important but that they override all other considerations. In effect, that has removed, through South African case law, many of the inequalities between married and unmarried couples since the courts have construed it as a matter of children’s rights. One is not only discriminating between parents but against children.
We have mentioned that, as it stands, the Constitution provides special protection for marriage only. Treoir has raised the fact that it has led to children remaining in long-term foster care depending on whether the parents are married to each other. In South Africa many of those inequalities have been removed since a child should be available for adoption, whether the parents are married. It is a matter of children’s rights. In the same way, a child should have a right to have both parents recognised as guardians since it is important to his or her stability and security in questions of maintenance and so on. I ask the joint committee, when it examines the special protection of marriage, to tie this into the consideration of children’s rights since that is the nub of the matter. It is not really about adults.
I do not know whether anyone else has raised this matter but section 28 of the South African constitution refers to the socio-economic rights of children. I know that the joint committee will consider the overall question of socio-economic rights but we believe that including children’s socio-economic rights is of paramount importance, particularly in the light of Irish case law. The committee may be aware of the case of T.D. and others v. the State which concerned the rights of children who were homeless because their parents could no longer care for them. In the High Court Mr. Justice Kelly ordered various Ministers to provide secure units for the children concerned since the plan had not been complied with. The Supreme Court overturned that order, not on the merits of the case as such but on the basis that the Constitution did not empower the courts to enter a domain of the Executive since it involved the expenditure of money.
We argue that the courts should be given that competence regarding extremely vulnerable children. It should be explicitly stated in the Constitution that the State has a direct obligation towards children whose parents can no longer care for them. That would remove the problem with the separation of powers. The courts would welcome this. If one looks at how South African case law has played out, one sees that it has not led to a usurpation by the courts of the ordinary role of the Legislature, the Executive and so on. They have stated they will review state policy and see whether it is reasonable and addresses the children whose needs are most acute. A reasonable policy is one that looks after homeless children first and then children in lesser situations of deprivation and so on. The question is referred back to the Legislature in order that it can come up with a plan that accords with the constitution.
Vice Chairman: I thank the Irish Council for Civil Liberties for its contribution. We will conclude this session of the meeting and suspend proceedings for two minutes before the next session begins.
Sitting suspended at 4.41 p.m. and resumed at 4.43 p.m.
Vice Chairman: The next item on the agenda is the presentation by the Christian Solidarity Party, represented by Mr. Cathal Loftus, president and Mr. Michael O’Brien, general secretary. The delegates are very welcome.
Before we begin I must remind visitors that members of this committee have absolute privilege, but the same does not apply to witnesses appearing before it. I now invite the delegates to make their presentation, which will take approximately six to eight minutes. It will be followed by a question and answer session.
Mr. Cathal Loftus: I am Cathal Loftus and Michael O’Brien accompanies me. We sent in a written submission to the committee previously. I propose to quickly run through the points in that submission. I have made some handwritten notes and I would like to comment on some of the earlier contributions.
On 30 January 2005 we responded to the request from the Joint Committee on the Constitution and made a written submission. We are now making our verbal submission. We are not aware of any widespread demands to amend the Constitution in so far as articles dealing with the family are concerned. Ireland has been well served by these articles and given the importance to society of the sound principles they enunciate, they should not be changed without very good reason.
As this committee is aware the legal framework for the family in Ireland is defined by Bunreacht na hÉireann, specifically by Articles 40 to 42, inclusive. Questions have been put to us by the committee regarding these articles and we are responding to them in the order in which they have been posed.
The first question is how the family should be defined. The family is the bedrock of society and must be understood as being founded on marriage of one man and one woman. Within marriage the mutual gift of self by husband and wife creates an environment in which children can be born and develop their potentialities, become aware of their dignity and prepare to face their unique and individual destines. Marriage, by its nature, is a lifelong partnership and therefore provides stability. The growth and development of children, which extends over many years, requires this stability. As the fundamental nucleus of society the family has a right to the full support of the State in order to carry out fully its particular mission.
How should we strike the balance between the rights of the family as a unit and the rights of the individual members? Existing provisions in the Constitution between the family as a unit and individual members give a fair balance. Article 40 covers personal rights, which are common to all citizens. If the law needs to be strengthened, for instance, to deal with the abuse of children, then such legislation should be enacted. If there is a grave violation of mutual rights within a family, public authorities should restore his or her rights to the individual victim. However, those in charge of public affairs should not go beyond these limits.
Is it possible to give constitutional protection to families other than those based on marriage? Society needs to protect the institution of marriage. Marriage is a lifelong commitment which is necessary for the stability of the family. Any pressure nowadays to consider as legally equivalent to the union of spouses forms of union which lack this lifelong commitment should be strongly resisted. Members of families which are not based on marriage have the protection of the personal rights listed under Article 40 of the Constitution. Stability really matters for children and people are more likely to stay together if they are married. A statistic quoted in a recent debate in the United Kingdom, showed that within five years of a child’s birth only 8% of married couples had split up compared with 52% of cohabitees and 25% of those who marry after the birth of a child.
Should gay couples be allowed to marry? No, marriage is not just any relationship between human beings. It has its own nature, essential properties and purpose. To grant legal recognition for homosexual unions would be to radically redefine marriage. Homosexual unions are not able to contribute to the procreation and survival of the human race. Society owes its continued survival to the family founded on marriage. We recognise there are people with a homosexual orientation and we would condemn any unjust discrimination in their regard. Provisions in law, as it applies to all citizens, can be availed of by all people in homosexual unions to protect their rights in matters of common interest.
Is the Constitution’s reference to a woman’s ?life within the home? a dated one that should be changed? Certainly not. Society is greatly helped when the work of women in the home is recognised and respected by all for its irreplaceable value. While women have the same right as men to perform various public functions, wives and mothers should not, in practice, be compelled to work outside the home. It should be ensured that their families can live and prosper in a dignified way, even when they themselves devote all their time to the family. Government policy in this matter should be influenced by an awareness of the pivotal role of motherhood in producing the type of citizens necessary for a stable family and society. At the moment a large number of mothers with young children have to work, irrespective of what their emotions and instincts tell them. Motherhood and childhood are entitled to special care and assistance.
Should the rights of a natural mother have express constitutional protection - what rights should a natural father have, and how should they be protected? Both the natural mother and the natural father should have the same rights under legislation This legislation should also set out the obligations of these parents to their children. It is not possible or desirable that an attempt should be made to amend the Constitution to cater for every departure from the traditional family.
Should the rights of the child be given an expanded constitutional protection? We believe that children’s rights are covered under the Constitution. Any deficiencies which are seen to exist in present legislation should be corrected.
Does the Constitution need to be changed in view of the UN Convention on the Rights of the Child? We feel that Bunreacht na hÉireann has sufficient child centred Articles. What is perceived to be a right in other countries would not necessarily be so viewed in Ireland. For instance, the most fundamental right of a child, the right to life, is calmly set aside by the so-called right to abortion. Legislation permitting abortion has been enacted in many countries. The words “inalienable” and “imprescriptible” in Article 41.1.1° should not be removed from the Constitution, as it will only weaken the family right and increase the power of the State.
There are newspaper reports that representations on behalf of one parent families suggest that there is a connection between the poverty of one parent families and the lack of official status that is given to two parent families. This assertion is not valid and should not be the basis of any experimental tinkering with the Constitution. Coincidence is not necessarily proof of cause and effect. Newspaper reports and representation by Barnardos seem to suggest that marriage makes it hard for adoption processes. It is insufficient grounds for amendment that difficulties may arise. Traffic lights should not be abolished because some people cannot discriminate red from green. Both representations have expressed concern for what they call the best interests of the child. That is not as simple as it sounds, as it implies that the State rather than the parents would decide those so-called best interests.
Senator Dardis: I thank Mr. Loftus for his presentation. He is recommending a very minimalist approach to changes to the Constitution and he is not alone in that view. The family based on marriage represents the Christian model. It may even be specifically the Catholic model, as the Church of Ireland will bless second marriages. Divorce is now permitted under the Constitution, so that is now a fact. How do we deal with second unions? These can be very loving unions. The natural parent of a child of a first marriage may have abandoned it, but the step-parent in the second marriage may look after the child very well. Many contributors to this debate regard the lack of enumerated rights of the child as the Constitution’s most serious defect. How can we protect children that are not within the nuclear family unless we do so through a constitutional amendment that affords them certain inalienable rights? It is a matter of fact that many children belong to single parent families or to families whose parents are in second relationships. If we are to focus on the protection of the child, how can we do that without an amendment to the Constitution that gives the child specific protection?
Mr. Loftus: That is a difficult question. I am not a lawyer and I will not attempt to be one. When we speak about the family based on marriage, then I presume that the second union is the family based on marriage. Where people have divorced the first union has ceased to be. When defining marriage, it is not just a notion of Catholic marriage. There is a feeling that because we are Catholics, we should not impose our idea of marriage upon other people. The idea of one man, one woman and however many children God sends them is reasonably widespread. It is not an exclusively Catholic concept and it is shared very widely. Marriage derived from cohabitation in northern Europe and formalisation in southern Europe, especially in Rome. In early medieval times, the church brought those two ideas together and a kind of legal status was conferred on the union. This union was not completed without cohabitation and consummation, so it represented a fusion of northern and southern European tradition. Roman law was pre-Christian as was the northern European tradition.
Senator Dardis: Let us assume the committee left the family provisions of the Constitution as they are. Why would we then not go on to include the rights of the child as a separate entity?
Mr. Michael O’Brien: The child is a person and under the Constitution all persons have rights. While it is desirable to mention the child specifically under the family provisions, if the family is to be broken up by divorce, the child remains a person and has rights. There is nothing to prevent the legislator from legislating to give that child whatever rights a person would need to have. It is not as if the child is being abandoned under the Constitution as it is currently framed. There are provisions which deal with non-marital cases. If a couple divorce, I presume a non-marital situation then exists in reality.
Vice Chairman: Mr. Loftus stated that the reference to a woman’s life within the home was not dated and should certainly not be changed. He recognised the women’s right to life within the home. Some of the submissions received stated that there are many situations where the father is in the home and that the father in the home should also be recognised.
Mr. Loftus: I know of couples who have arranged things in that way. It is an interesting aside. I do not think there will be such a paradigm shift in parenting. Traditionally, mothers did the most nurturing in the home. I think most young children would prefer to be with their mother. They might enjoy being with their father, but if they want to be cared for properly, they will turn to their mothers. It has been my experience that daddies are useless. Many women wish to spend more time with their families. It is against the economic wishes of society, which wants everyone out there contributing to the economy. Decent mothers who step out of remunerated employment to attend to this very important and enjoyable work are making a significant long-term contribution to the economy. The notion that a woman should not be obliged to leave the home to support her family unless she so wishes, as set out in the Constitution, was a noble and decent ideal.
Vice Chairman: The delegation’s document states, “ we are not aware of any widespread demand to amend the Constitution”. What is its reply to those who observe the Constitution was drafted in 1937 when society was completely different? At that time, 50% of the workforce were employed in agriculture while the corresponding figure today is 6%. Many family units in the 1930s were based around small farm holdings. The Constitution has since been amended to reflect changing social mores such as the provision for divorce. Does the delegation believe it is wise for the committee to look to a constitutional provision that was framed in an entirely different social context from that which pertains in modern Ireland?
Mr. Loftus: I do not subscribe to the notion that the provisions of the Constitution should remain unchanged for all time. The Constitution should be a dynamic and interactive entity. However, although I was not born until 1946, I contend we are not dealing with a total change in society. There has been much social and demographic change and wonderful economic improvements in most people’s circumstances. People have access to better education, housing, clothing and nourishment. In many ways, Ireland is a much improved society to that which existed in 1937. We are not fighting against modernity.
However, the instincts of children have not changed dramatically over the years in that they still crave the security of family. Younger children in particular love their routine and dislike any changes in this regard. Stability is something children insist upon to some extent and they will demand consistency from their parents. The needs of the human heart have not changed a great deal from biblical times to the present. The Constitution represents a snapshot in time but many of its provisions remain valid today.
Mr. O’Brien: While society’s mores may have changed radically from those which prevailed in 1937, the principles enshrined in the Constitution do not impinge on those mores. For example, people may be more sexually active but most get married and the constitutional provisions that relate to marriage remain valid for them. Today’s youngsters who claim their behaviour differs from that of their parents do not necessarily find the provisions relating to the family unacceptable. The changes in society mean we take as a given that those provisions are unacceptable to many but this does not reflect reality.
Some 90% of cohabiting couples are married, for instance, and the remaining 10% can choose to get married. However, it is argued that the Constitution should be amended to take account of the situation of this small percentage of cohabitees. It is untenable to amend the Constitution continually to meet every departure from the norm. Principles may evolve in order to meet changing circumstances but the basic core value of a given principle should not be set aside lightly.
G.K. Chesterton said, Wherever you have Ireland you have the family and it counts for a great deal. The family is the bedrock of society. This is not solely a Christian concept but is indicative of society the world over using its common sense to recognise the importance of man and woman coming together, procreating, creating stable families and imparting values to their children. Society is founded upon this continuing process of marriage and family creation through the generations.
I do not contend that those with another view have no rights but to have every idea mooted today written into the Constitution would demonstrate to our young people that we have no values and no objective truth. It is unacceptable that we should take a “whatever you are having yourself” approach and I would be disappointed if my own children were to say I had not instilled in them the sense that good values do not change according to the weather. In endeavouring to hold onto what is good we will not deprive anyone of anything.
Cohabitees are entitled to get married if they so choose. I read a newspaper article today in which a man spoke about how he and his partner had broken up after living together for six months. When people come together to form a family there must be an underlying concept that such a union is a lifelong commitment whereby each is for the other and their children are for both. To amend the Constitution according to the dictates of changing fashions means we will write a novel rather than a Constitution.
Vice Chairman: I thank Mr. Loftus and Mr. O’Brien for their contributions. All members will have access to the documentation they have supplied.
Mr. O’Brien: I apologise that our notes are handwritten. We did not realise they would be circulated to committee members.
Senator Dardis: They are quite legible.
The joint committee adjourned at 5.10 p.m. until 10.30 a.m. on Friday, 22 April 2005.