Oral Hearings

Family Issues: Presentations.

Mr. Michael O’Kennedy, SC: We appreciate the opportunity to be here and contribute to the important work of the committee. On a personal note, I am happy to be back not only because I recently left the Oireachtas but also due to the fact that the history of this committee refers to the first all-party committee on the Constitution in 1966, on which I was privileged to serve. I am glad to see the major developments that have taken place since then.

If the committee wishes to ask about the nature of the work of the agency and its various activities and the support it gives to a range of organisations, it should refer its questions to Mr. Bennet. Ms Walls is uniquely qualified to deal with queries on the legal aspect of our work. I may be able to throw in my tuppence worth on matters of general import.

Chairman: This is a constitutional committee considering the impact of Articles 40 and 41. Obviously you feel there are areas which can be dealt with by legislative change. Are there particular areas where your group feels the Constitution is inadequate and needs to be amended, thereby precipitating a referendum, or could these matters be dealt with by legislative reform?

Mr. O’Kennedy, SC: We recognise that since the Constitution was adopted in 1937 there have been major changes. We focus on the diversity of family in that we set out the 21 different types of family units in society which I do not think were within the contemplation of the framers of the Constitution, much less the people of Ireland, when they adopted and enacted the Constitution in 1937.

Allowing that we have that variety of family units, children should not be in any way disadvantaged or discriminated against because they happen to derive from a different family unit. At the time the Constitution was enacted there would have been an understanding of family as the nuclear family which was part of the conventional inheritance with which we all grew up, but it is clear now that the definition of family has changed utterly. It is equally clear that children must be given special recognition. We make the point that while the Constitution is clearly concerned in its existing form with the rights of children, it does not specify them in any way or indicate clearly what those rights should be. There should be greater focus on underlining the rights of children. It is not for us to say whether such changes as would be required should be achieved either by legislation or by constitutional change brought about by referendum. That is not our role; it is a role for the elected representatives and the consultants they have available to them. I take it the committee has read our submission.

Chairman: Yes. Earlier the Law Society made an excellent presentation. It stated that the Supreme Court in recent cases concerning the child or children took a rigid interpretation of the Constitution and in one or more instances said it was the responsibility of the Oireachtas to legislate or to indicate, through this committee, that the rights of the child should be enhanced and developed in the Constitution. There have been other submissions to the effect that children born outside marriage are being treated as second-class citizens in the current system and that the position should be redefined to give them equal status, rights and support.

Mr. O’Kennedy, SC: I do not think we are necessarily saying they are being treated as second-class citizens but we are saying they do not get the focus and attention in the Constitution which in our view they should. I will ask Ms Muriel Walls to take up this point as this is her area of expertise.

Ms Muriel Walls: The classic response is that if we were trying to go to some place, we would not start here. We are stuck with the Constitution which gives marriage and the family which comes from marriage a special position. That is our starting point and that is why we have arrived at this situation. While that might have been perfectly acceptable in 1937, it does not reflect the scope of family life now. It is the interpretation of that by the courts that has also fixed that rigid and inflexible definition. Families which are not based on marriage, even to the extent that we are talking about a natural father and his child, do not get the same consideration or constitutional protection. This is a development of that Constitution by the Judiciary and they feel constrained to interpret it in the way they are doing because the Constitution is quite clear.

As a group we have had many discussions at board level between our 12 members, all of whom represent different agencies and different aspects of family life. The one thing we were clear about was that the family that emanates from marriage is an ideal to be fostered and encouraged, for all sorts of reasons. It is the majority framework for our society and we benefit as a society from the stability of family life within marriage. If there is a difficulty in a family, all sorts of other people come into play - extended family, relations, support services, friends. There is a whole social network that will support the married family. It is like the cement that keeps everybody together. We would be unrealistic if we did not accept and acknowledge that that is the ideal and it has huge benefits to the Government in terms of financial supports and everything else. On the other hand, we must acknowledge that nowadays a very large percentage of children are not born into that family unit. The analysis of different forms of family does not indicate extremes. Any of us will have someone in the family who is separated or divorced, or who has had a child outside marriage and is living with another partner. These are not bizarre or unusual arrangements. Some of them may be less usual than others but they exist among people in our workplaces or our families.

The children of such families must be given equal treatment. If we were to give constitutional protection to the married family, to the unmarried mother and her child, to the natural father and his child, to other people who stand in loco parentis, we would have to do a huge balancing act. If, on the other hand, we focus on the rights of the child, that balancing act is not quite so difficult. Legislatively it is a paramount consideration, but on the ground the rights of the child have not much practical application. We pay lip service to those rights.

Chairman: Do I understand from your submission that the special status of the family as we know it in marriage, which has an elevated position in our Constitution, should be retained but that there should be a lower or secondary tier recognising other relationships and that this could possibly be done without constitutional change but by legislation?

Mr. O’Kennedy, SC: Not quite in those terms. We say the family within marriage is an ideal to be fostered, that it has had a demonstrably very positive effect on our society, but a whole range of other units have emerged in recent times and they too must be protected and supported. That is a very important element of our responsibility.

Chairman: You are saying that possibly can be done by enhancing the rights of the child regardless of the relationship of the parents.

Ms Walls: Yes. Part of the difficulty is due to the constitutional protection for the married family and that anything other than that is somehow in a lesser position. It is, I suppose, the responsibility of the committee to decide whether removing that, while simultaneously fostering and encouraging the stability married families give to society, might balance matters out.

Mr. O’Kennedy, SC: One important point, which Mr. Bennett has just drawn to my attention, is contained in our submission. We state that consideration could be given by the committee to using the term “family life”. The European Convention on Human Rights protects family life, as such. That is not an exclusive concept; it is an embracive concept. That family life element could be introduced into the committee’s considerations.

Chairman: Does Mr. O’Kennedy mean family life rather than marriage?

Mr. O’Kennedy, SC: Yes. There is one further point, although I am not sure whether it is in our submission or whether the committee has considered it. Members will be aware that the Constitution does not make any provision for local or community administration. By and large, local government is not referred to. We feel that family is an integral part of community and can develop only in a community context. While this may stray beyond the committee’s immediate remit, as far as I know there is no reference in the Constitution to local government, etc., and the committee may wish to look at that.

A Member: Such a reference is now included.

Mr. O’Kennedy, SC: Is that correct?

Deputy J. Breen: On family rights, children suffer enormously during judicial separation where the father or mother tries to hijack the hearing by having it postponed or crying off through illness, with one parent having to pay the cost and not being able to afford it. Since such children suffer enormously, surely we should look at the family law system and the courts. In my county, there are cases where people apply for judicial separation and the rights of the child arise in terms of who will obtain custody. The children are the unfortunate victims of such disputes. Surely there should be some mechanism in place providing that family courts should hear the cases more quickly and ensuring that no one member of the family frustrates the hearing.

Mr. O’Kennedy, SC: I will make one observation before asking Ms Walls deal with that in detail. There is an interesting trend in the development over the years in the law on breakdown or divorce. In the first instance, long ago the primary right was seen as being that of the father and the paternal right determined custody. He had first right. The woman’s place was second.

Chairman: Was that pre-Constitution?

Mr. O’Kennedy, SC: Yes. Since the adoption of the Constitution, and following the adoption of the Married Women’s Status Act 1957, both parents have been given equal rights in the issue of custody of children. However, in more recent developments, and in court decisions in particular, the focus has been not on the rights of either the father or the mother but on the rights and interests of the children. That has been an interesting development. Ms Walls will be able to deal in more detail with this.

Ms Walls: I will answer that question in the context of my 27 years of experience as a specialist family lawyer. I am well aware of the type of cases arising in the courts to which the Deputy referred. The Family Support Agency has a number of services which try to provide other options to separating couples. First, there is the support service of reconciliation counselling. Even if the two members of a couple ultimately decide after counselling that they will go their separate ways, it has been my personal experience that they have a greater understanding of the breakdown of their marriage. This might ease the trauma of the separation and their necessary dialogue, either directly or through their solicitors, about the practicalities of that and, in particular, the children.

The next service the Family Support Agency makes available in these situations is the mediation service, which is specifically designed to help the couple come to an arrangement about the terms of their separation. The mediation service focuses on the needs of the children in those situations and works with the parents to try to draw up a parenting plan. The information from the reports of the mediation service provides an excellent forum because both parents sit with the mediator and discuss what is best for them as a family, what is best for their children and how both will parent the children now that the marriage has broken down. If that does not work, solicitors who deal with family law cases have a statutory obligation, under the separation and divorce Acts, to recommend these services to the clients. While they are not compulsory, we also have an obligation to encourage our clients to reach agreement, to warn them and to outline all of the benefits of reaching an agreement before an application is made to the court. However, there will undoubtedly be those small number of cases where the fight is brought out into the court and the children are the focus of that fight. It would certainly assist practitioners, and indeed the Judiciary, if there were some support services available within the court structure to deal with those cases at an early stage of the court process to see if they could be the subject of discussion or if there could be an assessment by an independent child-focused professional, rather than their being tackled at the later stage when the judge must try to decide between warring parents.

Deputy J. Breen: My question related to cases where one parent will deliberately not turn up in court and use some lame excuse and where either the father or mother is paying the cost of their barrister and counsellor. What form of redress is available in such cases, where one parent deliberately frustrates the hearing by not turning up for some lame excuse for which his solicitor or barrister will put forward a case? The case is then adjourned and might be adjourned four or five times in one year. It is the family that suffers in such cases.

Ms Walls: I do not have the answer to that. Having greater flexibility with court lists and perhaps more court time might help. The judges have certain powers to move their cases forward but it is very difficult for them, in particular, without support services.

Chairman: That is an interesting area. I have done a little of it in my time. Should there be specific family law courts or sittings separate from those which deal with the ordinary work of the District Courts and which cover all sorts of matters from road traffic offences, etc.? The group representing the Law Society of Ireland felt that it is a logistical difficulty that the family law courts are being administered in District Courts and that children and vulnerable people in contested separations are being brought into an inappropriate arena.

Senator Ormonde: I also thank the Family Support Agency for its detailed presentation. We are here to discuss whether we should broaden the Constitution in the area of protection of the father, the mother and the rights of children. That is one aspect of it. Another is whether we can protect the rights of the children through legislation.

We are really discussing the rights of the child and the fact that a child should not be disadvantaged at any time. Should the State take over the case of a child who is caught in the crossfire at the age of two? I am confused about cases involving children up to the ages of six or seven, when they become aware of what is going on. Has the Family Support Agency examined that matter? Do the family supports take over the rights and responsibilities of the parents, irrespective of the definition of the parents in the family life? I have a difficulty with the rights of children and responsibilities. I am afraid of diluting the Constitution too much. Should legislation be the key to what we are discussing? Should we be discussing education in terms of redefining society rather than amending and diluting the Constitution?

Chairman: We will bank the questions posed.

Deputy P. Power: I welcome the delegation from the Family Support Agency whose submission is excellent.

Mr. O’Kennedy said it was not the role of his group to decide how the issues raised ought to be addressed, namely, the constitutional, legislative or administrative route. Having said that and recognising the experience of Ms Muriel Walls, one of the top, if not the top, practitioner in the country, may we ask for guidance in this regard as we must make a decision? In that context, I refer Ms Walls to Article 40 of the Constitution on fundamental rights. These are the equality provisions in which all citizens are held to be equal before the law. However, it qualifies them to some extent when it states: “This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”.

I would like to address the issue of social function. Will that provision in the Constitution give the Judiciary, specifically the Supreme Court, the flexibility to make these fine judgments and distinctions between the different social groups, whether formed on the basis of traditional marriage, or gay and lesbian relationships, either recognised or unrecognised, the partners to which are now in loco parentis to children? Is it tackling a nut with a sledgehammer? If we were to introduce new provisions, would it alter the fine balance in the Constitution, recognising that the courts have jealously guarded these equality provisions for all citizens, irrespective of who they are? Would it be going too far to import new provisions which would give added protection to other groups when the Constitution may offer the flexibility to do so? Should other groups which have come before this and other committees, for example, those who advocate the protection of father’s rights, rights of others in loco parentis and the rights of grandparents, an integral part of families, be given similar protection as part of the family group? I am interested in receiving guidance because we will ultimately have to make a decision in this regard.

Deputy Andrews: The submission from the Family Support Agency states that whether the special place of the married family should be maintained is a matter for the joint committee. I suppose it is but we want to hear the delegation’s views. Do it believe a child who belongs to a family based on marriage should be treated differently from a child from a family not based on marriage, or the other forms identified in the paper? There should be no difference. What is the point in having a special position provided for marriage in the Constitution if it has no practical effect on the protection of children? It is the recognition of an ideal, as Mr. O’Kennedy said, but has no effect in practice. One cannot implement it or force it on families if one subscribes to the principle of equal treatment for all children, regardless of the type of family to which they belong.

Mr. O’Kennedy, SC: We do not believe a distinction should be drawn in the treatment of children, irrespective of the family unit from which they come. Perhaps the joint committee will consider making it very clear that the people will want to ensure the Constitution recognises the rights of children in a manner which does not discriminate between one and the other, irrespective of the family unit from which they come. One could reasonably argue that the rights of children who come from what might be normally seen as a dysfunctional family, as distinct from the conventional nuclear family, must be protected and enhanced.

Chairman: This is an important point. The 1937 Constitution either ignored or did not envisage that there would be children from relationships other than the nuclear family.

Mr. O’Kennedy, SC: That is correct.

Chairman: Is Mr. O’Kennedy saying the Constitution, as it stands, does not cater for children of other relationships?

Mr. O’Kennedy, SC: I had hoped it would be reasonably clear from our presentation that, in the context of the current reality in Ireland, it did not cater adequately for such children.

My second point is a general one. We were asked whether the difference in social function should be reflected by way of an amendment to the Constitution or by legislation. While we tend to say it is a matter for members of the joint committee, I will give my personal opinion. Anything relating to the detail of social function, or the protection or enhancement of social function, should be dealt with by way of legislation, not in the Constitution. This is one man’s view which is not necessarily reflected by members of the committee generally.

A constitution is the framework from which law is derived. Members may recall that I held this view very strongly when we included in the Constitution the ill-fated amendment on the right to life. We tried to include specifics at the suggestion of enthusiasts in the pro-life campaign. It will be recalled that I argued passionately against it saying it was not appropriate to a constitution. A constitution should be a broad framework. Because we introduced detail into the Constitution, the consequences are clear for all to see. It was disastrous. A constitution creates the framework for detailed reference and a specific amendment. Therefore, this issue should be dealt with by way of legislation. Our chief executive will add to what I have said.

Mr. Pat Bennett: I want to respond to Senator Ormonde’s comments. The Family Support Agency and the State should support parents, not take over their role which, obviously, must happen in extreme circumstances. We are anxious that support is provided at an early stage for those encountering difficulties within family relationships.

On the rights of children, we must be careful not to place too much responsibility on children. It is important to focus on the best interests and voice of the child. Emphasis has been placed on the responsibility of children but the point that has been made is relevant because the emphasis should be placed on listening to children’s needs and deciding on the appropriate action to take in the best interests of children.

Chairman: I will take questions from the two remaining speakers, namely, Senators Daly and Dardis, and we might then conclude this part of the meeting.

Senator Daly: I compliment the agency on its achievements in the short period since its establishment. The report indicates the success it has had.

Regarding the point on legislation made very capably by the Chairman, does the agency recognise any shortcomings in the legislation or does it have amendments that could be made thereto? The ISPCC confirmed that the poverty gap in respect of children appears to be widening. Circumstances are worsening rather than improving. Child poverty, in terms of children being forced into crime, begging or sleeping rough, seems to be worsening in spite of the changes that have been made. Has the Family Support Agency specific legislative proposals to deal with this?

Senator Dardis: I join in the general welcome for the agency. It is nice to see a former colleague and distinguished parliamentarian, namely, Michael O’Kennedy, in attendance.

I wish to return to Mr. O’Kennedy’s point and distil it to its fundamentals. I agree that the document should just be a basic enunciation of rights in general. It is up to legislators to define those rights. We got into serious trouble because of the right to life issue. It was an unintended side-effect.

One of the earlier submissions called for express rights for children. This again indicates a need to include more than what we would wish to see. The multiplicity of types of families and unions that were mentioned - I believe 21 were listed - underlines the complexity of the issue and the need to distil it to a fundamental principle. Could we go so far as defining only the rights of the child and the parents and almost forget about the family? In other words, we would not include the role of the family in the Constitution. This is pushing the argument to its extreme. What are the agency’s views on this?

Ms Walls: On Deputy Peter Power’s question, the Constitution does not have the flexibility to which he referred. This is demonstrated by the judicial interpretation of the Constitution in respect of its affording special protection to married parents and their families. The social function element of the Constitution has not been used to broaden it out. The committee should take one of two approaches. It could retain the special status of the family based on marriage and also include the rights of natural fathers, single parent families, etc. It should balance these rights in some way but I do not know how this could be done. Alternatively, it could retain the special status of marriage and have everyone who does not fall into this category feel - as is now the case - constitutionally disadvantaged but support this position with a legislative framework which would suffer from the possible disadvantage of being regarded as a second-class arrangement.

We have tried to throw the committee a lifeline by encouraging it to consider family life. Article 8 of the European Convention on Human Rights concerns family life. It affords much greater flexibility than the Constitution and considers the reality on the ground. Which of the following relationships provides a better example of family life - an unmarried mother and a concerned and supportive partner who is parenting a child that is not his own, all of whom do everything together in the context of a family, or a dysfunctional family with married parents, the father or mother of which has disappeared? In the European context, the convention considers family life in terms of the reality on the ground rather than in terms of the legal technicalities. Perhaps we could provide protections in this manner if we focused on family life.

It is essential that we consider the rights of the child in terms of the voice of the child, as mentioned by Pat Bennett. There is no system in our courts to hear the voice of the child. While parents will profess that whatever they are doing is in the best interests of the child and while they may be genuinely driven in that regard, nobody is actually hearing the voice of the child. Hearing a two-year-old is entirely different to hearing a 14-year-old. This presents a difficulty but there are skilled people who can assess family circumstances and try to give the parents or courts some guidance on what is in the best interests of the child without putting the child in the terrible position of having to make choices.

Deputy P. Power: I fully understand what Ms Walls said. However, the courts still have the overriding responsibility to treat all citizens, be they two, 22 or 102 years of age, equally. The manner in which they are represented is a separate issue. Is Ms Walls suggesting that we insert a clause giving the child some kind of enhanced constitutional status in comparison with the status of other citizens, bearing in mind that all citizens must be treated equally by the courts?

Ms Walls: No, not necessarily. Children do not have any rights under the Constitution as it stands.

Deputy P. Power: As citizens, they do.

Ms Walls: Perhaps one can blame the Judiciary but it has not developed the equality we desire. From its judgments, it seems constrained in dealing with this matter by way of precedent. As the Chairman stated, a number of judgments in the Supreme Court have been such that the baton was passed on to the Legislature to try to address this matter.

Mr. O’Kennedy, SC: In that context, there should not be a particular problem with special recognition of the rights of children. The committee will have to take the advice of its consultants. One would not just be discriminating in favour of children. The Constitution, as it stands, discriminates - I am not saying it does so maliciously or intentionally - in favour of adult citizens. I refer to their right to vote and other rights which younger citizens do not possess. This demonstrates that a Constitution can distinguish, if not discriminate, between various rights and set qualification standards for the exercise of rights.

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