Oral Hearings

Family Issues: Presentations.

Chairman: We would welcome a wording.

Mr. Shannon: There is an interesting provision in the South African constitution, in which legal framework there are some common law origins. Article 28 would be a useful model to adopt.

The German constitution is also a useful example. My colleague and I spoke last year at the Anglo-German judicial conference and I was struck by the German judiciary’s approach which can maintain the supremacy of the marital family. As the children are not invisible, it is possible to safeguard their welfare.

It is not a trade-off between family values and the rights of the child. They are not mutually exclusive; it is possible to have both. The model I recommend is Article 28 of the South African constitution. The German constitution provides a good model of a civil law jurisdiction where the provision operates effectively.

Senator Ormonde’s suggestion is interesting because it makes sense. The bottom line is to ensure all the appropriate legislative provisions are implemented. There are several provisions on the Statute Book which have yet to be introduced. One of the central messages we wish to communicate this morning is that there is a need to introduce these provisions immediately to put our house in legislative order. However, this message is balanced by the Chairman’s comments about certain areas in which it is difficult to provide for comprehensive law reform without amending the Constitution. Unfortunately, adoption is one of those areas. This came into sharp relief in the past week or so in a case which shows the difficulties arising from abandonment. It will be interesting to see how that case evolves in the coming weeks.

Deputy Morgan: I thank the Law Society for its presentation. Does it agree that, taken together, Articles 40 to 44 afford significantly less protection than more recently drafted constitutions overseas such as the Canadian charter of rights and freedoms and the South African constitution? Do they need overhaul or to be deleted and replaced? I am not asking for a suggested wording.

I am not surprised that, despite all the work done by Ms Justice McGuinness in her inquiry into the Kilkenny case, we have not proceeded much farther in 2005. In our public role we deal with some of the issues arising from the injustices to children of parents who are not married. I frequently deal with these issues and it is an indictment of the State that it permits this injustice to happen.

Ms Horgan: The Constitution was drafted a long time ago. It was modern for its day and is a good document. At the time it was drafted children were seen and not heard. The concept of children having rights independent of adults is a modern one. This concept is further developed in the UN Convention on the Rights of the Child. The interpretation in European Convention on Human Rights is a more fluid but that in the Constitution is cemented into the concept of the primacy of the married family. The Judiciary has not had the ability to change its tune and update the situation.

Senator Daly: I welcome the representatives and thank them for their comprehensive and informative submission. They referred earlier to the confusion surrounding divorce in the context of emerging decisions from Europe. It appears that a divergent position is emerging between the European and Irish situations. Perhaps the delegation will reconcile their views on that issue with that of clean-break divorce, as mentioned earlier. I am somewhat confused in that the Law Society states it agrees the family is paramount but its position in terms of clean-break divorce appears to compromise this.

Mr. Shannon: Our rationale for recommending clean-break divorce is that it appears at present that individuals are seeking to avail of the nullity jurisdiction by virtue of its absence. This is, in many respects, consistent with ensuring and maintaining the paramountcy of the family. Society argues that there is a compelling argument for clean-break divorce in the context of marriages of relatively short duration wherein there are no children. We believe that rather than compromising the submission, our argument solidifies it. In the context of the recognition of foreign divorces, we have a pre-1986 divorce regime, a post-1986 regime and a regime post-2001 and we are asking for is codification in this area.

Senator Daly: The Law Society could also argue the other way.

Ms Horgan: We are not suggesting clean-break divorce is the only form of divorce that should be available. We are suggesting that in certain circumstances it should be possible to cut the financial maintenance obligations going forward. At present, it is practically impossible to do that. There are instances when it is appropriate to opt for clean-break divorce but there are also instances when that option is entirely inappropriate.

Senator Daly: Perhaps the Law Society would comment on people leaving the jurisdiction to avail of divorce, an issue discussed in the national media in recent days. People are travelling to places like Belfast and so on in order to short-circuit Irish law.

Mr. Shannon: I am the Irish expert on the Commission on European Family Law. It is an issue of concern from a domestic perspective. People voted by the slimmest of majorities in 1995 to introduce divorce in this jurisdiction. The Brussels II regulation, as it is now known, became directly applicable on 1 March 2001 and people can now obtain a divorce in a much shorter period as long as they are habitually resident in a foreign jurisdiction. That is an issue we must continue to monitor and of which we must remain conscious, going forward, in terms of rationalising the recognition procedures in the context of foreign divorces.

Chairman: I have two questions. It is obvious from the Law Society submission that it is strongly recommending a constitutional referendum to enhance the rights of the child and that it believes the current provisions are inadequate.

The committee has received a number of submissions from gay and lesbian groups. What status does the Law Society afford to such people and can this issue be addressed by way of legislation? Gay and lesbian people are not seeking the right to marry but are seeking recognition in terms of income tax, inheritance tax and so on.

There are approximately 80,000 couples cohabiting and, according to the census, two thirds of them do not have children. Can such issues be addressed by legislation rather than by amendment to the Constitution?

Ms O’Mahony: Such issues were the thrust of our discussions prior to making our submission to the committee. Many issues of concern can be dealt with by way of legislation. Mr. Shannon raised the issues of nullity and confusion in terms of foreign divorces. Those issues relate considerably to the lack of ancillary relief for a person at the receiving end of either a decree of nullity or a decree stating that his or her marriage, which may have lasted for up to 30 years, is no longer valid because the person he or she married was not validly divorced in the jurisdiction wherein he or she purported to have obtained a divorce.

The lack of ancillary relief is causing problems. If the Legislature were to incorporate a system of ancillary reliefs which related not only to the litigants in nullity and foreign divorces but also to cohabiting couples and people who enter into a binding contractual relationship to live together and if this resulted in people acting to their detriment - for example, if one party gave up work or did not purchase a property - then it should not be prejudiced by the lack of reliefs by way of taxation or inheritance rights and so on.

The Government went a long way towards rectifying the situation for cohabiting couples in the Finance Act 2001, which allowed people who had lived together for a period in excess of six years to acquire the home in which they had lived, free of taxation, provided they continued to reside in the property for a further period of six years following the death of one of the parties. However, that relief does not relate to any other financial reliefs. It simply means the person remaining following the death of a partner has a place to live. That person may, however, be obliged to pay a considerable portion of inheritance tax on any money or other rights acquired as a result of a will.

Chairman: They are dealt with as strangers in law.

Ms O’Mahony: Yes.

Chairman: I thank the Law Society for its enlightening submission and for coming before the committee. The committee will take into account the written and oral submissions from the Law Society in producing its report.

Sitting suspended at 11.27 a.m. and resumed at 11.33 a.m.

Chairman: The next item is the presentation by the ISPCC, represented by Mr. Paul Gilligan, chief executive officer, and Ms Grace Kelly, director of services. They are welcome. Before we commence, I remind visitors that members of the committee have absolute privilege but that this same privilege does not apply to witnesses appearing before the committee. I invite them to make a presentation of approximately six to eight minutes which will be followed by questions and answers. The ISPCC has already made an excellent submission to the committee, which we do not want to rehash. If our guests could highlight the issues the ISPCC wishes to bring before the committee, members will engage them in discussion and pose questions.

Ms Grace Kelly: I thank the committee for inviting us to appear before it. I will briefly outline a sense of what the ISPCC does and then hand over to Mr. Gilligan who will speak more specifically about the particular issues on children.

Most people know that ISPCC stands for the Irish Society for the Prevention of Cruelty to Children. We are Ireland’s oldest children’s charity. We have a strategy called Stopping the Hurt, within which are five action pillars we have identified, namely: the child as citizen; protecting the child; the child in the family; the child in the school and community; and giving children a voice. We see these as being incredibly important.

The society has four main activities. We obviously provide services for children and parents. We are probably best known for providing the Childline service but there are other services which we provide nationally. Our Leanbh service, which works directly with children and parents who are begging on the streets, is only available in Dublin. Our childhood support worker service provides therapeutic interventions to children and families in their own homes. Our training and awareness officer service - STEPS - provides a service for children who are at risk of dropping out of school through the misuse of drugs and alcohol. We try to achieve the five action pillars through service delivery. The organisation also has a public and professional educational component, a strong campaigning and lobbying component and a considerable commitment and belief in the area of children’s consultation and children’s participation.

The ISPCC has a vision of a society in which children are loved, valued and able to fulfil their potential. It believes that this vision can be achieved through a child-centred approach to parenting, social policy and service delivery. We certainly do not see ourselves as experts in the legal field but we bring to the table our experience of working with children and a belief in the area of child-centred practice.

We define child-centredness as follows: that the child’s welfare and development is paramount; that the child is the primary focus of services, provision, legislation and social policy; that the child’s wishes and views should be considered in systems and decisions affecting his or her life; and that the child be facilitated in expressing his or her views, beliefs and feelings. It is our strong belief that: the child should have equal rights as citizens of this country; adults and society should have a positive view of children and childhood; society should understand the developmental capabilities of children and integrate this understanding into social policy; and the child should be able to access services, either directly or in conjunction with an adult, be he or she a parent or a professional. Mr. Gilligan will speak more specifically about the issues of concern to the ISPCC.

Mr. Paul Gilligan: The ISPCC, as Ms Kelly stated, does not have legal expertise. We have a working knowledge of legislation. Our submission today is based primarily on our experience of working with children and families in the communities across Ireland in which we provide services.

Having examined the Constitution as it currently stands and how it impacts directly on our work, we have identified four key problems that arise. We accept that these may arise from an interpretation of the Constitution as opposed to the Constitution itself. However, we still believe it is valid to raise these issues.

The first difficulty which arises is that young people are unable to access helping services directly. In practical terms, a 12 or 13 year old cannot knock on the door of a health board and ask for help. As the Constitution is currently interpreted by the health boards and all related services, such bodies will not see young people without parental consent. That presents a major difficulty for agencies involved in the child protection field because young people often need to access helping services directly, particularly if the occurrence chid abuse is to be prevented.

The second difficulty that arises from the Constitution is that it presents barriers to introducing comprehensive vetting systems for those wishing to work with children. The ISPCC accepts that this is, perhaps, an interpretation of the Constitution. Nonetheless, it currently prevents the introduction of a screening system for soft information, that is, information pertaining to the fact that a person is a risk and has been identified as a risk but where there has not been a criminal conviction. We understand that this difficulty arises from the Constitution.

The Constitution also presents barriers to introducing legislation to ban the physical punishment of children. While this remains a contentious issue, given the UN Convention of the Rights of the Child and best practice in parenting, ultimately physical punishment in all its forms must be banned. However, given the way in which the Constitution is structured, this will not be possible.

Defining “family” within the context of marriage is problematic in the work in which we engage, particularly its implications for custody, access and guardianship. We make our suggestions to the review group in the context of our work with children. We have no specific specialisation in legislation. Articles 41 and 42 could be amended to include the rights of children. It would address the issue if articles of the UN Convention on the Rights of the Child were integrated with the Constitution.

Together with integrating children’s rights, it is important that the paramountcy of the family is addressed specifically. While the rights of children are articulated a number of times in the Constitution, the paramountcy principle overrides them. The definition of “family” needs to be developed in line with the current social reality and thinking. The emphasis on marital status should be amended.

In the work it has done in examining the terms of reference of this group the ISPCC believes the three suggested amendments and the issues raised fall within the broad parameters of the terms of reference, specifically developments in human rights, social and economic changes and some outmoded provisions of the Constitution.

Chairman: Mr. Gilligan should not feel he should make excuses for not possessing legal knowledge. As Chairman of the joint committee, I recognise the tremendous work his society has been doing for decades. His presentation will be taken into account because he made some significant points. As I accept members of the delegation are not lawyers, I do not expect them to have all the legal answers. Mr. Gilligan referred to a number of topical issues, including the vetting system for those who work with children. Is he concerned that it is either totally inadequate or badly flawed?

Mr. Gilligan: The vetting system is totally inadequate. We acknowledge that the Minister of State with responsibility for children has made substantial progress by giving a commitment to have a vetting system for everyone who wishes to work with children. However, the system will apply specifically to those with a criminal conviction. While it is a significant step forward and the work the Minister of State has done in this regard should be acknowledged, it still leaves us with a massive gap in screening and vetting those who do not have criminal convictions but have demonstrated they pose a risk to children. A youth worker or teacher might be dismissed from employment for behaviour found to be abusive and the family of the victim might decide not to progress the matter to court. In Great Britain and Northern Ireland it is acknowledged that this screening is extremely important if one is to recognise those who pose a danger to children, as seen in the tragic case which resulted in an inquiry following the death of two little girls. The Constitution presents a difficulty in screening someone who does not have a criminal conviction but where a serious risk is identified. It is important that this aspect is addressed.

Article 40.3.2° of the Constitution reads:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

The “good name” reference in the article prevents us putting screening systems in place for what we would term “soft information” in the context of child protection.

Chairman: Mr. Gilligan referred to the concept of the family within the context of marriage with children which has a certain status and enjoys a special role in the Constitution. Does he think this should be broadened to include single parents or cohabiting couples with children? The Law Society made the point that groups which dealt with the day-to-day problems of children, including helplines, believed children who came from a relationship other than a marriage were being treated as second-class citizens. Is that correct?

Mr. Gilligan: That is correct. The social and economic reality in Ireland is that there are different structures for families, ranging from single parents to a couple who have not formally married. There are different arrangements. The ISPCC strongly supports the need for a healthy family relationship for children. If children are to develop in a healthy way, it is crucial that they experience a positive, healthy and nurturing family. It is the definition of “family” which needs to be examined. It is clearly defined in the Constitution as being based on formal marriage. This is a disadvantage to many children, including those who do not have day-to-day contact with their natural parents. It also means certain family structures are discriminated against economically and socially in schooling and so on.

Senator Finucane: I would like the delegation to discuss the role of fathers, given that the social profile has changed dramatically and there are cohabiting couples with children. When Mr. Gilligan said children should have an automatic right of access to both parents, is he considering the matter in its totality? In many cases the father might have walked out and is playing no parental role other than making occasional visits which might often have a disruptive influence on the child. Is Mr. Gilligan making a global statement, or is he saying it may be discretionary, depending on the circumstances?

Mr. Gilligan: The Senator is correct. It should be a global right that children have contact with and access to both parents, although this may not be appropriate in many situations. Under the Constitution, unless the parents are married, the father has fewer rights in terms of guardianship. This often impacts on access and custody arrangements. We are trying to make the point that the role of fathers needs to be re-examined to give children an opportunity to have contact and a relationship with their father. Whether a child will have that opportunity depends on the individual circumstances. In some cases access for fathers will have to be limited. The Constitution is strong on the issue of children not being cared for appropriately.

Senator Finucane: There is the partnership arrangement between cohabiting couples. However, there are also a la carte fathers who appear when it suits them. In regard to a child’s right to have global access to both parents, does Mr. Gilligan mean a discretionary provision in terms of what is good for the child?

Mr. Gilligan: Yes. The wishes of the child are also taken into account, depending on his or her age and developmental capabilities. One of the important components is the child’s wishes and how he or she wants to characterise the relationship. I agree with this.

Chairman: Members should ask brief questions because, as the delegates have explained, they are not legal experts. We will try to accommodate them as far as possible.

Senator Dardis: Some of us on this side of the table are not legal experts either.

Senator Daly: We would not want to be.

Senator Dardis: Correct. I thank the Senator for his comment.

My point is very similar to that of Senator Finucane. The ISPCC is talking about giving equal status and rights to the natural parents. We all agree that children whose families are not based on a marital union should be protected and that they should be afforded the same rights as those whose parents are married. However, the difficulties arise when the first union breaks down and a second comes into being. The parties to the second union may or may not be in a stable relationship and there may be a problem in respect of one or other of the parents outside the second union. If one contends that one must institute the right in question for the natural parent, there is potential for a legal or constitutional conflict between this right and the right afforded to the child. How can this issue be dealt with? Perhaps it could be dealt with by having the rights of the natural parents defined in law and the rights of the child defined under the Constitution, as the ISPCC and Law Society are recommending. Will the delegates comment on this?

Deputy P. Power: I was interested in the organisation’s comments on the keeping of a soft register. A lot of work has been done in this area. The organisation has stated there is a constitutional impediment to so doing. This comment is of great assistance to us in our work. Although the delegates are not legal experts, will they state the basis on which they make this assumption? Have they received a legal opinion to that effect?

In what way does the organisation interact with the Health Service Executive in terms of child custody orders, for example? Does it find there is a legal or constitutional impediment to its passing on information or acting in concert with statutory bodies, given that it is a non-statutory agency? Has it encountered legal difficulties in this area?

Senator Daly: I compliment the society on the work it has done in this area for many years. Will its representatives indicate the position on child poverty and children sleeping rough in towns and cities? Are many children begging on the street and generally seeking assistance? Is the situation deteriorating or stable compared to five years ago?

Senator Ormonde: I thank the society for its contribution. We are talking very much about the protection of the rights of the child. The words “responsibility” and “duty” also enter my thinking. Although I may be digressing, it needs to be said we may dilute the Constitution so much that we will place all responsibility on the State, leaving nothing to the core of society, including the family and parents. What are the society’s views on this? It is doing great work and should have a lot to say because it is a child-centred organisation. I am concerned that we might destroy the Constitution and thus create a useless, leaderless society.

Mr. Gilligan: We agree absolutely on the point on the balance to be struck between the legislation and constitutional change regarding natural parents’ rights. If the Constitution was strong enough on the issue of children’s rights, it would give scope to legislation to deal with what is a complex issue in terms of the rights of natural parents compared to those of adoptive or foster parents. Trying to do this within the Constitution may result in failure. The difficulty lies in the reference in the Constitution to the rights in respect of marriage. This will need to be amended.

The difficulties that arise in our operating with the HSE stem primarily from the fact that it is clearly influenced by the constitutional restriction, as it sees it, in working with and accessing children directly. This represents the major difference in the way it operates in comparison with the ISPCC and other voluntary organisations. We have difficulties in receiving information from what were formerly the health boards and health services based on the concern associated with sharing information. There are feedback systems associated with the administration of various cases but in giving detailed information there are difficulties. I am not sure if this is determined by the Constitution. Perhaps it is but it certainly presents a difficulty in how voluntary and statutory organisations work together in dealing with a particular child or family.

Ms Kelly: In response to Senator Daly’s question on child poverty, obviously we work with extremely needy, vulnerable children and families. In their day-to-day work our workers certainly encounter many families who are living in extreme economic poverty and also many children in considerable emotional poverty.

On children begging on the street, our experience is that the picture is getting better. There appears to be a dramatic drop in the number of children begging, certainly in Dublin. We must compliment the Garda in this regard. Our project, the Leanbh service, works closely with it. It has been incredibly supportive and works closely with us in trying to tackle the issue.

All the families affected live in extreme poverty. Some of the children in question live on halting sites and sometimes it is much more attractive for them to be in town begging than to stay on the halting site where they have no place to play. It can be as simple as that but economic poverty is also responsible for bringing children onto the street. We encounter many children who are completely isolated socially, dropping out of the school system and have no play facilities. With regard to a broad definition of “poverty”, the gap is definitely widening.

Senator Daly: What impact would any of the proposed changes to the Constitution or law have on child poverty?

Mr. Gilligan: That relates to the last question asked by Senator Ormonde. If we have a structure based on a welfare system for children, we will continually fail to address the key issues. Our welfare system must be rights-based. Organisations such as the ISPCC are sometimes misunderstood in that we campaign and lobby for children’s rights because we believe they will support parents’ and parenting rights. An infringement of, or failure to advocate, children’s rights inevitably penalises parents.

If there is a rights-based approach, the structures and social systems will begin to address the issues of children in need. A welfare model will operate only on the basis of what can be afforded or in terms of doing the best it can, as opposed to acknowledging that children have rights to be protected and nurtured.

Responsibility is the key to children’s rights. Children should have rights appropriate to their age and developmental capabilities. Our Constitution does not acknowledge that. I accept, however, the point that we must get the balance right. While we advocate children’s rights and state them strongly within the Constitution, we must also support families and parents to help them meet children’s needs.

Chairman: I thank the ISPCC for its submission, which was interesting and engaging. We will take it on board when we conclude our deliberations and draw conclusions. The society is doing good work for which we thank it.

Sitting suspended at 12.02 p.m. and resumed at 12.07 p.m.

Chairman: I welcome the Family Support Agency. It is represented by its chairperson, Mr. Michael O’Kennedy, SC, a man who is no stranger to the Oireachtas, Ms Muriel Walls and Mr. Pat Bennet, chief executive officer. I remind our visitors that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee.

I invite the visitors to make their submission and ask that they taken only eight or ten minutes to do so. We have the Family Support Agency’s well thought out written submission and there is no point in repeating that. Perhaps the visitors could synopsise or give a resumé of the submission, highlighting the important features from the committee’s point of view. We will follow that with a question and answer session.

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