Oral Hearings

Family Issues: Presentations.

[Mr. O’Kennedy, SC ]

My view will probably be reflected in the thinking in the constitutional determinations in various countries because children are vulnerable by virtue of their age. I do not believe one will encounter any great difficulty in trying to supply a plank or support in the constitutional framework that will minimise this vulnerability.

Chairman: I wish to return to what one might call the weasel question I asked initially. I am familiar with the wonderful work of the agency and, from my legal experience, I know the mediation service is excellent. As it stands, the definition of the family in the 1937 Constitution, which makes reference to the institution of marriage, does not cater for the multiplicity of issues that arise today in this regard. The Constitution was formulated in an era that was totally different to that of today, both economically and socially. There are now almost 80,000 couples cohabiting, as evidenced in the results of the most recent census. There are approximately 160,000 lone parents, over 80%, if not 85%, of whom are single mothers. Other family units involve single fathers. The structure of the family, as perceived by us and as interpreted by the courts, is changing. There have been some recent landmark decisions by the courts in respect of the constitutional position on the family.

We are in a rut because the 1937 Constitution does not recognise that thousands of children are born outside marriage or live with parents whose relationship has broken down. Leaving aside the important point about including the rights of children, does the agency agree that the definition of the family in the Constitution is somewhat curtailed and fetters the process?

Mr. O’Kennedy, SC: Yes. Perhaps Mr. Bennett would like to add to that.

Mr. Bennett: We are anxious to achieve an inclusive definition. The problem of trying to restrict something is that it can exclude groups. The Chairman mentioned the reality of relationships and different family types. We return to the concept of family life as a more inclusive approach to a definition of the family. One does not want to alienate groups by having a tight, exclusive definition. The reference to family life is more inclusive.

Mr. O’Kennedy, SC: There is a growing awareness among separated men of exclusion from their former family units which must be taken into account. A major issue is the sense of alienation from their children that non-marital fathers feel. We encounter that regularly.

These men are vigorous and consistent in the presentations they make to us at every opportunity. We have commissioned a range of research programmes from experts in the area which can be made available to the committee. Fathers occasionally ask that their rights be recognised in a way that does not happen.

Senator Dardis: Could that be done by referring to natural parents?

Mr. O’Kennedy, SC: That would be one way of dealing with it.

Chairman: The 2002 census suggested that there are approximately 80,000 cohabiting couples, double the number identified in the 1996 census. In a landmark case in 1996 on an issue of the rights of cohabiting couples, Mr. Justice Peter Kelly said that to give such couples rights would diminish the family within the 1937 Constitution. Mr. O’Kennedy might have represented one of the parties.

Mr. O’Kennedy, SC: I did not.

Chairman: I do not wish to criticise the Judiciary but the superior courts have taken a particular view in cases regarding children. In his judgment, Mr. Justice Kelly said he could not interfere with or help the cohabiting couple because to do so would elevate them to the position of the family within the Constitution, which was never envisaged. In that regard, he suggested that the Legislature should introduce legislation or the family should be redefined. Does the agency have any comments on that?

Ms Walls: That was the case of Ennis v. Butterly which concerned the property of a cohabiting couple. Mr. Justice Kelly took the view that couples could not agree between themselves to give that relationship the status of a marriage and it was decided as a preliminary issue.

Four or five months ago, the Law Reform Commission published a green discussion paper on the matter of cohabitation. Cohabiting relationships can fail and the fall-out, particularly in regard to children, can be just as emotionally devastating for the parties involved as it is for those involved in marriage break-ups. However, there is no framework for the protection of people in such relationships. There is some degree of protection for the children but there is no degree of protection for the women involved. A woman could have lived with a man for 20 years and had five children by him but could still have no rights.

Chairman: Could the converse apply if, for example, the woman was the owner of the property?

Ms Walls: Absolutely.

Chairman: As a corollary to that, Mr. Justice Kelly said that even if a cohabiting couple entered into a contractual agreement, this would not stand because to allow it do so would be to equate the relationship with a marriage or a family. It was a decision that put cohabiting couples at a disadvantage.

Ms Walls: There are many cohabiting couples, as the census demonstrates, and there is a crying need to give them legislative protection.

Chairman: I thank the agency for its presentation.

Mr. O’Kennedy, SC: I wish to make a final observation. Our view generally is that in so far as the committee is seeking a framework, this would require a constitutional amendment. Detail is a matter for legislation. In my view, the less detail we try to import into the Constitution, which is a framework, the better. Even allowing for the lack of reference in the Constitution to children’s rights, it is much admired. It has served us well and is often seen as a model in the area of fundamental rights. I would be reluctant to introduce too much detail into a constitutional amendment.

Chairman: I thank the representatives of the agency for coming before the committee. We have acknowledged the great work it is doing and will take on board the points made. We will meet 50 groups during our oral hearings but we will have several meetings to thrash out all these issues. We hope our report will be of benefit to society.

Mr. O’Kennedy, SC: We thank the committee. It was a privilege to be here.

Sitting suspended at 12.58 p.m. and resumed at 2.15 p.m.

Chairman: We will now hear a presentation by One Family which is represented by Dr. Fergus Ryan, vice-chairperson; Ms Karen Kiernan, director, and Ms Ann Bowen, social policy and communications officer. They are all very welcome. Before we commence, I remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Due to time constraints and the fact there are three other groups to follow this afternoon, there is no point in rehashing the detailed submission received from One Family. Following its synopsis of the important aspects of the submission in six or eight minutes, there will be questions from members of the committee.

Ms Karen Kiernan: One Family thanks the joint committee for giving it the opportunity to address it today. This presents an opportunity for the committee to consider the extent to which family diversity and an appreciation of the changing forms of family life in Ireland will be considered in any proposed reforms.

One Family provides a voice and support for all members of one parent families in Ireland. As such, we work for and on behalf of a constituency of almost 154,000 families headed by a sole parent. These include married and unmarried persons parenting alone, widows and widowers with children, separated and divorced parents as well as non-resident parents.

From our foundation in 1972 as Cherish, we have provided a voice for some of the most marginalised in society. Our central message has always been that families come in all shapes and sizes and deserve civil support and recognition, whether they meet the State’s prescribed ideal. Our submission to the joint committee took the form of two position papers: one on the Constitution, noting proposals for specific changes, and the other on family diversity, recognising the need for adoption of an equality framework in the review of law, policy and service provision for one parent families.

It is pertinent to note that One Family took its original name from an extract in the 1916 declaration in which the signatories pledged that the Republic “guarantees equal rights and opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and all of its parts, cherishing all the children of the nation equally”. It is obvious we have honoured this pledge more in the breach than otherwise. Between 1922 and 1987, when the Status of Children Act was passed, children were not legally regarded as equals, there being significant differences in legal entitlements based on whether one’s parents happened to be married to each other. A child born outside marriage was at common law, fillius nullus, the child of no one. Legal reform notwithstanding, it is not entirely clear that native social and cultural attitudes have changed in this regard, as some recent media discussions have underlined.

Articles 41 and 42 of the Constitution recognise in the family as a unit certain rights and obligations that are “antecedent and superior to positive law”, in other words, rights and obligations that are largely impervious to State intervention. It is immediately evident, however, that this scheme is confined to certain families only, namely, those based on a subsisting marriage recognised by law. The Constitution simply does not countenance that there may be families situated outside the confines of the nuptial state. The Supreme Court has consistently reiterated that the family provisions of the Constitution apply only to families where the original adult members are married to each other, not otherwise. Thus non-marital families, including one parent families, are essentially excluded from the remit of the constitutional family.

We firmly believe it is generally in the best interests of the children to maintain a relationship with both parents. As such, the current inequalities in the application of constitutional law to parents based on marital status undermines children’s access to relationships with their parents if they are unmarried.

The constitutional protection afforded exclusively to marital parents has given rise to another source of discrimination that arguably works to displace children’s rights under the Constitution. Adoption involves the irrevocable termination of parental rights and duties in respect of a child, yet Articles 41 and 42 denote that the rights and duties of marital parents are “inalienable and imprescriptable”, in other words, they cannot be given away, lost or taken by the State. This effectively means that, unlike non-marital parents, marital parents cannot voluntarily place their child for adoption, even if this course of action might be in the best interests of the child. Although the Adoption Act 1988 affords the State a right to arrange adoptions where the parents have comprehensively failed in their duty, in practice these requirements are exacting and place parental rights over the child’s best interests.

It is clear that the role of the State in the constitutional scheme is envisaged as strictly secondary to that of parents. What strikes one is the largely parent-centred focus of the constitutional scheme. In the text of Articles 41 and 42 the term “child” is barely used, the emphasis being very much on the entitlements of adults vis-à-vis the State rather than on the best interests of the child. Children may be regarded, therefore, as an adjunct of the family, the object of ideological struggle between the family, on the one hand, and the State, on the other. The courts have interpreted the family provisions as protecting the rights of the family unit only, that is, the family as a collective, not the individual rights of family members.

This parent-focused perspective jars heavily with international jurisprudence on the rights of the child. It is almost universally recognised and copperfastened in the United Nations Convention on the Rights of the Child 1989 that in any legal matter concerning children it is the children’s best interests that are paramount. By contrast, the Constitution privileges families and parents over the interests of children. The constitutional imperative that parental rights should be respected has in one prominent case prompted the courts to posit that a child’s best interests lie generally in the child being cared for by his or her marital constitutional family, a proposition that arguably disguises parents’ rights as those of the child.

The assumption underlying this philosophy is that the unique interests of children and the distinct interests of their parents will always coincide, such that the only policy required in this arena is one that discourages State intervention. In most cases parents do promote the best interests of their children. Certainly, there is no doubting the extraordinary sacrifices and devotion of most parents, marital as well as non-marital, in respect of their children. Nonetheless, the absence of an express provision in the Constitution privileging children’s rights over those of other interested parties leaves a gaping hole in the constitutional protection that should be afforded to these most vulnerable of subjects.

One Family believes the Constitution should place children first; that in all cases concerning children their best interests should be paramount. Parental rights are too often placed to the fore at the expense of a perspective that privileges what are genuinely the best interests of the child. Therefore, we suggest that root and branch constitutional reform is required to place the child and his or her interests at the heart of the Constitution; to displace the privileged position of the marital family by the recognition in the Constitution of all family forms; and to bring Irish law into line with the European Convention on Human Rights by placing an obligation on the State to respect and support family life in all its manifestations.

To this end we propose the following addendum to the Constitution which we call Article 42A:

1. Notwithstanding any other provision of this Constitution, the State guarantees to respect and shall endeavour to support all families in this State, regardless of the form that such families may take, and to protect and defend the rights of all individuals who are members of those families.

2. Notwithstanding any other provision of this Constitution, the State guarantees in particular, and as far as practicable, to assist and support all parents and guardians in promoting the best interests of the child. In so doing, the State shall promote the welfare of the child as the paramount consideration in all proceedings concerning the child’s best interests.

3. The State shall in particular, endeavour to assist and support parents and guardians, as far as practicable, in securing for all children a basic quality of life and in particular, food, clothing, education and accommodation sufficient to his or her needs.

One Family believes firmly all families deserve equal protection under our laws. With adequate resources, social support and recognition, enhanced child care and work-life balance supports, one parent families can and will prosper and thrive. Constitutional change on its own cannot achieve these ends but it can supply the foundations for legal and social policies based firmly on the richness of family diversity and the inherent rights of all families in Ireland today, whatever their basis or origins. We look forward to the results of the joint committee’s consultation process and consideration of these matters and remain available to it should it require any further information from our organisation.

Chairman: One Family is the first group so far to clearly set out a proposed amendment to the Constitution which it calls Article 42A and is very interesting. It is a brave move because history has taught us that people shy away from providing the wording of constitutional amendments on issues that may be divisive.

One Family’s submission is succinct and clear. It is stating clearly that the Constitution does not recognise family life outside marriage. Would that be a fair assessment; in other words, that the Constitution gives the martial family a higher position and that other family forms are not recognised outside that interpretation of the Constitution?

Dr. Fergus Ryan: Essentially, in Article 41.3 the Constitution states, “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. This has been interpreted consistently by the courts as confining the constitutional family to the family based on marriage. I refer to the State (Nicolaou) v. An Bord Úchtála, 1996; K v. W, 1990, and W. O’R. v. E. H, 1991. There are several cases where the Supreme Court has stated the family, for constitutional purposes, is the family based on marriage.

There is no constitutional recognition for any family not based on marriage and one parent families not based on marriage about which we are particularly concerned. This poses significant problems, both practical and ideological, in that one parent families not based on marriage see themselves as not being included and recognised as a family in the Constitution. This feeds into legislation which also largely fails to protect families not based on the institution of marriage. It is not possible to interpret the Constitution, as currently phrased, in a manner that would recognise other family forms.

Chairman: This is an issue that arose earlier. Dr. Ryan mentioned decisions taken in the past decade or so. Does it appear to One Family that in headline cases the courts have shied away from a more liberal interpretation of the Constitution, if that is possible, although I am not condemning them for their decisions, and that purely dealing with some of these issues by way of legislation alone would not be adequate? In other words, is One Family’s clear message to the joint committee that the Constitution needs to be amended?

Dr. Ryan: The Constitution provides a restrictive framework for the recognition of families. The case of Ennis v. Butterly serves as another example in this regard. It would be very difficult to create legislation that would recognise the diversity of all family forms, including one parent families and non-marital couples living together outside marriage, in the context of the Constitution that privileges marriage to such an extent. We are not arguing the institution of marriage should not be respected but that there is a diversity of family forms in Ireland today, all of which deserve equal recognition under the Constitution. We are arguing, in particular, that the Constitution should be changed and Article 42 qualified to acknowledge that the State will endeavour to support, both ideologically and practically, all families in the State, regardless of the form they may take. Our proposed amendment focuses very much on practical issues.

Our core concern is to place the child at the centre in terms of constitutional protection. As the Constitution stands, it does not acknowledge children’s rights. It barely acknowledges them beyond the framework of the family. The child is very much sidelined and parental rights are essentially placed in the foreground at the expense of the child’s best interests. We are arguing most strongly for recognition of the child as the centrepiece of family law but as the Constitution stands, it would be very difficult to achieve this. The Oireachtas will be restricted in the legislation it can create to deal with the diversity of family life if we are stuck with the existing constitutional provisions.

Deputy J. Breen: I thank One Family for its presentation. Consider the case of one parent families that arise from marital breakdown, the children of which had a good relationship with their father and mother before the break-up. What is the position when a battle for visitation rights occurs in court and the father or mother does not honour the court’s decision such that the children who are suffering as a result of the break-up cannot see their father, for example, at the weekend? Is the law strong enough under the Constitution to ensure the court’s decision will be honoured in such a case?

Dr. Ryan: It is largely a legislative matter. The issues of custody and access are dealt with under the Guardianship of Infants Act. It is a very difficult issue to address because each case depends on its individual circumstances. Ideally, both parents would have a chance to be present before the courts. There is a strong preference in law in favour of granting access in respect of the children’s parents. It is important to note that access and visitation rights are rights of the child. We believe the child has a right, regardless of the custody decision, to share the company of both parents, irrespective of whether they reside with him or her. We argue strongly for enhancing access rights.

It must be acknowledged that there are difficulties associated with enforcing access rights. Non-resident parents - parents who do not have children in their custody - have said to us they find it very difficult to enforce their access rights, even when granted by the courts. However, that is a matter for legislation and may need to be firmed up. We are stating strongly that, ordinarily, a child has a right of access to both parents, or to share their company on an adequate basis.

Senator Ormonde: I thank the delegates for their submission which refers to the need to replace the current definition of the family implied in Article 41.3. However, it also states that in replacing the definition one would run the risk of allowing the future exclusion of alternative family forms not currently evident in Irish society. I am very concerned about this. If one was to start diluting the Constitution to incorporate a global definition to take into account the diversity of modern family life, where would one stop? I do not know whether we should be concentrating on legislation to put support systems in place and how we could do this rather than on amending the Constitution, or whether we should be thinking in terms of duties and responsibilities when considering parenting in the global context. I would like to hear the delegates’ views on this.

Deputy Andrews: Last October Mr. Gerard Hogan addressed the joint committee. He spoke about the case of the North Western Health Board v. H.W. and C.W., which case concerned the heel prick test. The Supreme Court stated it could not interfere where there was no immediate risk to the child. Would there have been a different ruling had the child’s parents not been married? Would the Supreme Court have stated the constitutional framework was on the side of the family? Ironically, the child of non-married parents is better protected because there is no constitutional protection for a non-marital family.

Ms Ann Bowen: I will answer Senator Ormonde’s question. She made a very good point about the definition of the family and where we would stop if we were to amend it. Our submission argues that the Constitution was drafted in 1937 and is, therefore, out of step and out of date. We proffer the definition offered by the United Nations which is broad and I hope includes everybody. We do not want to restrict the inclusion of further family forms in the future. We hope to offer a movement away from particular family forms and structures and the individuals who comprise them and instead offer a constitutional framework with children at the centre. One would ascribe rights to them, which rights would flow to their parents or those acting in loco parentis. We would also represent families with grandparents or non-relatives acting in loco parentis.

On Deputy Breen’s point, Ireland is a signatory to the UN Convention on the Rights of the Child which we regard as central to this issue. However, if we were to ratify the UN convention at a sub-constitutional level, it could be deemed to be unconstitutional, yet as a State and nation, we said we supported the general principles. We either subscribe to it or we do not. Article 9.3 of the convention states, “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”. This is a way for us to address the difficulties associated with the breakdown of people’s relationships and place children at the centre. Although we run the risk that a new definition of the family will be outdated in 50 years, it would be better than having the original definition out of date 100 years after its formulation.

Dr. Ryan: On Deputy Andrews’ point, there is an issue associated with the European Convention on Human Rights, Article 8 of which requires all contracting states to protect and respect family life in all its manifestations. The European Court of Human Rights has acknowledged that the phrase “family life” which is not in any way restricted to marriage can be extended to include a number of categories of individuals, including non-marital parents and their children. In 1979, for instance, reference was made to a non-marital mother and her child, as well as other individuals. There is a certainly flexibility in the convention regarding the definition of family life. Notwithstanding this, the court has found itself able to define what family life involves. This definition has evolved during the years in line with changing practices within Council of Europe states.

Deputy Andrews made an important point regarding the case of the North Western Health Board v. H.W. in which the Supreme Court stated parental autonomy ruled and that in those circumstances it was not possible for the State to order the parents to have a surgical procedure carried out on the child. However, the argument regarding parental autonomy would not be as strong in cases involving children of non-marital parents. The test in favour of the parents would not apply to parents of children in non-marital families. Many interesting points arise in that regard.

One could argue parental autonomy is important. Most parents know best and do what is best for their children. We acknowledge that parents are doing a great job and that one parent families, in particular, do a great job in very difficult circumstances. However, there may be issues involved which the State believes are important. In such circumstances it is important ideology does not stand in the way. The case of the North Western Health Board v. H.W. illustrates the manner in which the principle of parental autonomy and the centrality of parent’s rights under the Constitution can interfere with what might be in the best interests of the child. We are suggesting the best interests of children should be paramount in such cases.

Deputy P. Power: I thank the members of the delegation for attending and compliment them on their presentation. They are to be complimented on being so bold as to put forward a suggested wording of an amendment. Although we may not agree with what it states, it provides us with an issue for discussion.

Dr. Ryan made an important distinction between the ideological and practical positions. While one could argue on an ideological basis that there ought to be change, what is the compelling argument in practice? Perhaps Dr. Ryan will give the joint committee practical examples to show how an amendment in the form suggested would be of practical benefit to individuals. He might also give us practical examples of how individuals are prejudiced by the way the Constitution is currently framed, taking into account the fact that notwithstanding Articles 41 and 42, it is clear from Article 40 that all citizens must be treated equally before the law. How does he marry both arguments?

Dr. Ryan: From a practical perspective, the key problem relates to the restrictive nature of the Constitution, as currently drafted. In particular, the privileged position accorded to marriage makes it difficult for non-marital families to gain recognition. One practical example is N.S. v. Butterly, a case dating back to 1996 wherein a maintenance agreement between two people who were not married to each other could not be enforced because the court stated it would undermine the institution of and special status of marriage. That case highlighted a real problem. There was agreement between two consenting adults——

Deputy Andrews: Was there a child from the relationship?

Dr. Ryan: I do not believe there was, although I am not entirely sure.

Chairman: The decision was made by Mr. Justice Kelly.

Dr. Ryan: Yes. I am told there was a child from the relationship. A maintenance agreement between the two parties could not be enforced because of the provisions of Article 41.3. Despite the fact that this was a useful framework which allowed parties to enter into a contract as regards what would happen if their relationship broke up, the court refused to enforce it.

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