Oral Hearings

Family Issues: Presentations.

[Dr. Ryan]

Another practical example of the impact described by Ms Kiernan in her presentation is that under the Adoption Acts 1952 to 1998, it is difficult to adopt children born within the marital framework. There is real discrimination between children born within marriage and in non-marital families. It is only in exceptional cases that children born within marriage can be the subject of adoption. Again, this is a product of the Constitution. The case of the North Western Health Board v. H.W., as referred to by Deputy Andrews, is another example in that regard.

Many important and practical issues arise in the context of access to non-resident parents and the rights of the non-marital father. The rights and duties of non-marital fathers are not recognised in the Constitution. The courts have consistently stated such a father is not recognised and does not have any rights under the Constitution. I am hypothesising but it appears that if a non-marital father is not recognised for the purpose of rights, neither would he be recognised for the purpose of duties.

At the end of the day the Constitution is a set of guidelines and it is up to the Legislature to fill in the detail of those guidelines in legislation. The Constitution creates a restrictive framework within which to draft such legislation.

Chairman: The nub of the submission is that the interests of children should be paramount in the Constitution and that other issues such as marriage, cohabiting couples, single fathers and lone parents should rotate around the axis of the child.

Ms Bowen: Yes. The crux of the submission is that if we provide explicit and express rights for children, rights will flow to the parents or the persons acting in loco parentis. This is evident from the UN Convention on the Rights of the Child and the European Convention on Human Rights.

We are saying - this is in response to Deputy Power’s question - that although the Constitution is a legal framework, it sets out the ethos of the State in relation to families and children. As currently drafted, the Constitution provides for one type of family only. As a policy analyst, I am in a position to say our approach to the development of policy and services seeks to fix other types of family. It is no coincidence that one is three and a half times more likely to live in poverty and encounter difficulty in accessing services if one lives in a one parent family because constitutionally we are not prepared for one parent families.

Chairman: It is a reality not recognised by society in 1937, although there have been many changes since.

Deputy P. Power: For the first time we have concrete examples of how the current constitutional position might prejudice people. Perhaps Dr. Ryan will indicate cases where inequality is caused by the constitutional position. This would be helpful to the joint committee.

Chairman: That could be done by way of submission to the joint committee.

Dr. Ryan: I would be happy to do so.

Chairman: I thank One Family for its submission and acknowledge the tremendous work being done by the organisation. I also thank it for drafting the amendment which sets a good precedent for the joint committee. We will take on board the points made when drafting our report.

Sitting suspended at 2.49 p.m. and resumed at 2.51 p.m.

Chairman: Barnardos will now make a presentation. I welcome Mr. Owen Keenan, its chief executive officer, Ms Norah Gibbons, director of advocacy, Mr. Geoffrey Shannon, solicitor and Ms Anne Conroy, head of the national research centre.

Before we commence, I remind visitors that members of the committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee.

The committee has received a well prepared, balanced report from Barnardos and due to time constraints would ask the delegates to use the available time to highlight the aspects of it they wish to convey to the committee.

Mr. Owen Keenan: Let me express the gratitude of all in Barnardos for the opportunity to appear before the joint committee. Our focus will be on the protection of the rights of children. I know the terms of reference of the joint committee are much wider, but what we seek is a specific reference to and protection for the rights of children in the Constitution.

Barnardos is a leading children’s organisation and we hope our credentials are sufficiently well established to give reassurance that in seeking constitutional protection for the rights of children, we are neither being irresponsible nor anti-family. We base our recommendation firmly on our experience as a major provider of services to vulnerable children and young people throughout the country. My colleagues will expand further on this in the course of our oral submission, however by way of introduction I will deal directly with the issue and the possible concern that to acknowledge children’s rights is to undermine the position of parents and families.

Barnardos is strongly pro-family and particularly pro-vulnerable families. Most of our investment is in family support services, providing a diverse range of services for vulnerable families throughout the country. Our conviction is that the best place for children to grow and develop is within their own families. The main thrust of our work is supporting troubled families to stay together. We are strong supporters and advocates of the United Nations Convention on the Rights of the Child. Although its purpose is to articulate children’s rights, it unambiguously asserts that children’s rights are best protected by living in a stable family. That is why it is essential that families be supported in providing a healthy and stable family experience for their children. It must be recognised, however, that in a small minority of cases and in spite of extensive supports, some families cannot provide what their children need and may present a serious threat to their well-being. In this current week, we have seen examples both at home and abroad of children’s right to protection being compromised by those who may love and care for them, but who for other reasons cannot provide that protection. This is why Barnardos believes it is essential to give constitutional protection to the rights of children. I will hand over to my colleague, Ms Norah Gibbons, director of advocacy with Barnardos, who will expand further on the reasons for this.

Ms Norah Gibbons: Chairperson and members, I wish to highlight areas where Barnardos sees, as a result of many years of experience in supporting children, that the way things are now does not adequately protect them.

First, I will deal with adoption. Barnardos has offered an adoption advice service for the past 28 years and has taken many thousands of calls from people involved in adoption. One significant group is the long-term foster carers, that is people who will have had children from a marital family living with them for a very long period and in every sense, except the legal sense, the foster family are the parents of that child and love and care for him or her. He or she is attached to the foster parents and they are attached to him or her. For that child to be made legally secure in that foster family, the foster family must apply to the High Court to have the child’s original family declared to have totally and completely and utterly failed in their duty toward their child. That is a major burden for foster families who want to adopt the child or children they love. We are all aware of the importance of linking children’s past into their present in order that they can have a good future as adults. Foster parents tell us they do not want to have to look Johnny in the face in five years’ time and tell him they had to fight his first family to secure his place in their family. As children grow up and go through the teenage years, they can query whether parents, or any parents have acted in their best interests. If the child had a right in the Constitution, the health board, now the Health Service Executive, could apply for that child to be freed for adoption or his original family could say they could not meet his needs and wanted to lay down their rights, something they are not allowed to do currently.

We provide a guardian service under the provisions of the Child Care Act 1991. The court may ask for a guardian to be appointed, usually in a very complicated case where there is a significant discrepancy between what the parents and the Health Service Executive may want for the child. We have now dealt with approximately 300 cases. The guardian has two roles, to tell the court the views of the child as if he or she were able to speak about it to the court and most importantly to advise the court what the guardian thinks is in the child’s best interests. We were contacted by a foster family who did not understand how this system works and told the story of the girl whom they cared for since she was six months old on a care order. The Health Service Executive is under court order to allow this child to see her mother, who has serious mental health problems. The child is brought to an office to see her mother who then tells her she loves her and wants her back as she will be able to care for her. Every single time this happens the girl is confused and the question of her security comes up. If the child had rights, a guardian could be appointed on her behalf who could discuss what would be in her best interests because at present every single time they consider sending her home, they know it will not be safe for her to go.

I will hand over to my colleague, Mr. Geoffrey Shannon who will speak about the legal issues.

Mr. Shannon: I appeared before the joint committee this morning in a different capacity, but this afternoon I will focus exclusively on the need for the emphasis to be put on the protection of children in the Constitution. The current weak constitutional protection for children denies them the basic rights to which they are entitled under international instruments. It often has been said that the measure of a democracy is the manner in which the needs of the most vulnerable are considered and met, yet our family law system is adult rather than child centred. The perspective of the child is virtually absent. The striking feature of the Irish legal system is the relative invisibility of children, which is a theme we touched on this morning. Marriage breakdown comes as a shock for most children and usually provokes an emotional crises akin to a bereavement. Children are often left feeling their perspective has been excluded from the decision making process.

There is a paradox. While the law aims to make the welfare of the child paramount, how can we focus on this if we do not listen to what children have to say, if we do not help them to understand what is happening in their lives and if we do not meet their support needs at a time of intense emotional family upheaval?

One of the areas mandated is adoption, in which area my credentials are well established. I have acted as the independent legal expert to the Department of Health and Children on the adoption consultation process and have also advised the Adoption Board. I have seen at a practical level the impact of the inadequacies of constitutional protection. Articles 41 and 42 of the Constitution insist on preserving rights of married parents in circumstances where they have been constantly abused or, even more absurdly, where the parents have no interest in the exercise of those rights. We have seen an example in that for a significant number of children in long-term foster care, rehabilitation with their biological marital family unit is an unattainable goal. Although they no longer have active access arrangements with their biological marital parents, the children concerned legally belong to them and are not free for adoption. They can only be freed for adoption if it can be proven that their marital parents have so comprehensively abandoned their parental duties in such a manner as to indicate that they are unlikely ever to receive even minimal care from them. Of necessity, due to the Constitution, they live in a twilight world between a family which does not want them and a family which cannot have them fully. This issue has been addressed in a number of reports dating back to the Kilkenny incest investigation report and the report of the Constitution review group. The Constitution should be amended to ensure the right of children to have their welfare protected is given the paramountcy it deserves.

My colleague also touched on the issue of representation for children. There is no infrastructure for such representation in child care cases in Ireland, notwithstanding international obligations in this regard. Articles 6 and 8 of the European Convention on Human Rights provide for a child’s right to participate in legal proceedings, a right highlighted in Article 12 of the UN Convention on the Rights of the Child.

The operation of the provisions in respect of the representative of the child, or guardian ad litem, has been far from satisfactory. There is no detail provided in the Child Care Act 1991 as to the role and functions of the guardian ad litem or the manner in which he or she is to perform his or her duties. The uncertainty continues when considering who should be appointed as guardian ad litem. In effect, the courts have broad discretion to appoint someone with a peculiar name to do something in children’s cases. At best, the child’s right to representation in child care applications affecting him or her is discretionary. The net result of such discretion is a chaotic system of representation for children with significant variations throughout the country.

The provisions for the protection of children are primarily for children themselves and the entitlement accrues to them as of right, not as a dispensation. It also accrues to them under international law. Of the key Council of Europe recommendations on protection, point 8.i of Recommendation 1286 of 1996 on a European strategy for children calls on states to guarantee children’s rights through explicit recognition in constitutional texts. Point 8.v states one of these fundamental rights is the right to protection from all forms of abuse.

Another Council of Europe recommendation, Recommendation 1371 of 1998, is equally instructive. It speaks of developing a genuine culture of children’s rights. Children need specific protection because of their vulnerability and less developed capacity to judge various risks which adults are able to assess such as child sexual abuse, rape, prostitution, pornography, incest or ill-treatment. There is also Principle 21, in the context of the White Paper published on 15 January 2002. There are other models about which the joint committee has heard in other submissions this morning, include express provisions in the German constitution. Article 28 of the South African constitution also grants express rights to children.

Ireland is a country that sees itself as child-loving, yet it has failed to protect children from exploitation, neglect and abuse throughout history. It has also failed to address the rights of children adequately in the Constitution. Childhood does not stand still pending detailed consideration of whether the Constitution should be amended. Should children be forced to accept the crumbs from the constitutional table when the future of the country rests with them? The Constitution should be amended to include a specific declaration on the rights of children. Without a fundamental overhaul of the current constitutional position, the rights of children in Ireland will never be truly recognised, nor will Ireland live up to the standards set by international laws by which we have agreed to abide. The time is ripe to place the child at the centre of the Constitution. Only then will we be in a position to show that this is a country that really does cherish all the children of the nation equally.

Chairman: I thank Mr. Shannon who made the same points coherently this morning when he represented the Law Society of Ireland. The group advocates that the Constitution should be changed but has it, particularly Mr. Shannon given his legal experience, ever considered drafting an appropriate amendment? The group which appeared before the joint committee before it drafted a proposal on how the Constitution should be changed to protect the child, by introducing an Article 42A. Mr. Shannon may not have seen it or may not have been listening to it.

Mr. Shannon: I heard the previous submission and would be happy to work on something. I thought it would be rather dangerous and presumptuous to bring forward a recommendation. There are a number of well developed international models.

Chairman: We have heard much criticism about access of children to the courts, guardians ad litem and the court system. My impression was that the family law courts had evolved and developed substantially in the past 15 or 20 years. Is it still the view that they - particularly the District Courts - are not adequate to deal with family law cases, particularly issues concerning custody and access? Are District Court judges trained sufficiently? Family law was not on the agenda when I studied law and I am not that old. Should there be more specific family law courts, staffed by persons who have an in-depth knowledge of the workings of the family law system? Road traffic accident cases are different from criminal cases, etc. Is the family law court system adequate to cope with the growing number of family law cases, particularly those involving children?

Mr. Shannon: That is an interesting question. Mrs. Justice Denham, in the report commissioned by the Courts Service and headed by her, recommended that there be a specialised family law division. The time is ripe to look at that issue.

The Chairman raised the important issue of the District Court and District Court judges. While training is important, my personal view is that District Court judges do as much as they can under the current framework. There will be a substandard family law system until such time as there is a designated family law division at all levels of the courts. If one looks at it from the perspective that most custody and access cases are dealt with at District Court level rather than at High Court and Supreme Court level, it is imperative that we address this issue. Clearly, it is one that has been addressed in the past. It has been in the public domain since the report was published in 1996.

Chairman: It was mentioned that the Constitution had failed many children, particularly those in foster care. It is an interesting point, of which many politicians would not be aware. I understand the examples given. It is an interesting turn of events that marriage, instead of being the strong pillar of protection, has failed children in such instances.

Ms Gibbons: The point I was making was that while Mr. Keenan had stated our view was that children were better off with their families, wherever possible, and that we would work to support this at all times, there were situations where that was not possible because the parents, due to their own inadequacies or problems, could not provide care for their child. The child is placed in foster care and, if he or she is lucky, will find a foster family with which he or she can remain. Another secure family offers the very best possibility for a child. However, if he or she happens to come from a marital family, the Chairman is correct in stating he or she is no longer protected because of his or her legal position with one family, although he or she is present in and attached to another. Due to the constitutional position, it is not possible for the first set of parents who may be well able to acknowledge that they are unable to provide care for their child to lay aside their parental rights and responsibilities.

Chairman: There is a danger in that. I was in Romania after the overthrow of Ceausescu and visited many of the orphanages. I had a family experience in this regard. It was too easy for parents to abandon their families and stick them into orphanages, thereby resulting in hundreds of orphanages with abandoned children. One must be careful not to draw a line in the sand to ensure that this will not happen in this country in, for example, a time of economic decline.

Mr. Shannon: I was associated with the Irish Foster Care Association for a period of ten years. I understand the committee will be meeting that association, thus providing an opportunity to verify what I am saying. A significant number of children are in long-term foster care and cannot be considered for adoption because of the rigours of the Constitution.

I mentioned giving parents a second chance in the context of divorce. This is a matter of giving children a second chance to enjoy the stability and security of a caring and loving family. This is a basic right that we must honour as a result of our international obligations, particularly those arising from the UN Convention on the Rights of the Child.

Deputy Andrews: The members of One Family, particularly Dr. Fergus Ryan, alluded to the H.W. case, the heel prick case involving the North Western Health Board. In that case, the child was a marital child. Might that case have resulted in a different ruling had the child been a non-marital child? The view that constitutional protections only extend to families based on marriage contrasts with what is stated in Article 41.1.1° of the Constitution, namely, “The State recognises the Family as the natural primary and fundamental unit ... ”. It does not state “the Family based on marriage”.

We also spoke about the Ennis v. Butterly case, which concerned a cohabiting couple with a maintenance contract. It was decided that the contract did not have any basis in Irish law. This leads one to conclude that there are, legally speaking, two types of children under Irish law. This only happens on the periphery of the law when it is pushed and extended in seriously fought court cases.

Cases concerning foster children were mentioned in the delegates’ submission. Referring to the second listed case, Ms Gibbons described a child who had been in foster care for four years and who must frequently endure the trauma associated with her case being brought to court. Is this child’s mother unmarried? If a child’s mother is unmarried, does Barnardos approach the case differently? Does it recognise the constitutional difference between children born to married parents and those born to unmarried parents?

Chairman: Deputy Devins wanted to ask a question. We are exceeding the time allowed but I do not want to rush anyone.

Deputy Devins: I welcome the deputation. I admire the strength with which it makes the case for an article to protect the rights of children. I will act as a devil’s advocate in this regard. If such an article were included in the Constitution, would there be much conflict between it and the articles that currently protect the rights of the family vis-à-vis the rights of the child? Where would the balance lie in the phenylketonuria case, to which Deputy Andrews referred?

Mr. Shannon neatly sidestepped the request of the Chairman to create a formula of words for the proposed amendment. I appeal to him to take the Chairman up on his request. It would be of great help to the committee. Mr. Shannon reminded me of a politician who was handed a ball and refused to drop it.

Chairman: I thank the Deputy for being of assistance to the Chair. Mr. Shannon may answer those questions and then we will suspend.

Mr. Shannon: I will take Deputy Devins’s comments as a compliment. Deputy Andrews raised an interesting question on the case of the North Western Health Board v. H.W. and C.W., which has been written about extensively. This case is one of four that have recently come before the Supreme Court. One was the case of Ms Sinnott, whom I understand the committee will be meeting later this afternoon. Also included are the T.D. case and the Lobe and Osayande case. They are all part of the same package and illustrate a general theme, namely, an expression by the Supreme Court of its reluctance to articulate rights for children.

Deputy Peter Power made reference this morning to unenumerative rights under Article 40 of the Constitution. The Supreme Court has indicated a desire not to articulate those rights and has expressed the desire that if they are to be articulated, this should be done by the Legislature. The Status of Children Act refers to removing discrimination between the marital and non-marital child. However, the irony is that this particular discrimination continues to endure and will do so until such time as we have express rights for children in the Constitution.

There has been a sequel to the Ennis v. Butterly case, the E.H. v. J.M. case, in which the approach adopted by Mr. Justice Kelly in the High Court was followed by Mr. Justice Kinlen. This is part of a series of cases. It is not just a blip but rather a theme in this particular area. Those two decisions should be to the fore in any thinking on this matter. These are important and significant issues which we need to consider. I would certainly be happy to draw up a formula of words for the proposed amendment and commit to forwarding it to the committee in due course.

Chairman: I thank the delegation for attending and for making an excellent submission. On behalf of the committee, I compliment the representatives on the excellent work of their organisation in respect of children. It is well recognised and we would like this recognition to be recorded by the committee. We will take the delegates’ submission on board and tease it out during the coming months. We will try to ensure that, when it is produced, our report will be balanced. It is interesting that most groups have put considerable emphasis on the status and role of the child in the Constitution.

Sitting suspended at 3.17 p.m. and resumed at 3.20 p.m.

Chairman: The next presentation is by AMEN which is represented by Ms Mary Cleary, co-ordinator; Mr. Frank McGlynn, secretary; Mr. Clem Roberts and Mr. Michael Scully. I welcome the delegation. Before we begin, I must remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee.

The joint committee has received the submission from AMEN. I now invite the delegation to make a six to eight minute presentation, following which we will have a question and answer session.

Ms Mary Cleary: I thank the joint committee for the invitation to make an oral submission. AMEN was established in 1997 and has since been contacted by thousands of men and members of their families. It has developed a deep and unique insight into the many issues facing men in family crisis. Many men and their families believe they have constitutional protection and rights and a responsibility to be part of their family and protect their children. However, they are often shocked to find these rights are removed by the State in the family law courts.

The failure of policymakers to engage with men has resulted in a democratic deficit. It is often suggested that as it is mostly men who are in positions of power, they address issues related to men. These assumptions are untrue. Men in such positions tend to address the needs of women rather than men. It is often the case that men’s needs and voices are not heard. While many men’s groups are emerging, they are under-resourced.

Mr. Frank McGlynn: I draw the joint committee’s attention to a minor typographical error in the submission. The first few words should read “under Article 40.3” rather than “under Article 43.3”.

In our submission we have tried to confine ourselves to comments identified by the joint committee as pertaining to the family. We have also tried to address the nine specific questions posed by it. As members will understand, there are certain issues and recommendations which we regard as of the utmost importance. I will outline briefly what AMEN regards as priority issues.

Article 40.3 which deals with personal rights of citizens includes the right to a good name and the property rights of every citizen. We believe that to some extent the State has reneged on its obligations in respect of a citizen’s right to a good name. Our recommendation is that all forms of character assassination should be criminalised. If a citizen’s good name is taken or he or she is the victim of slander, libel or a false accusation, it is his or her responsibility to take action. It should be the responsibility of the State to take a criminal action. I understand that at one time these issues were deemed criminal acts but the position changed somewhere along the way. In our view, all forms of character assassination should be criminalised.

While property rights are protected to some extent in the Constitution, we feel that the citizen’s right to live in his or her family home should be expressly protected. When they enter into the arena of family law, men find that their right to live in their own home simply disappears. They do not have a right to live in the home. They may have an obligation to continue paying for the home, or they may have already paid for it, but their right to live there can be simply eroded. Men approach solicitors and are informed that they can serve papers for judicial separation. However, the first matter the solicitor will bring to a man’s attention is that he will lose his right to live in the family home. That is totally wrong. The right to live in a family should be a fundamental right of every citizen.

In 1976, the Legislature enacted legislation entitled the Family Home Protection Act which had the effect of preventing one spouse from disposing of a family home without the agreement of the other spouse. This right to live in the family home, underpinned by the legislation in question, has since been eroded, particularly by the Judicial Separation and Family Law Reform Act 1989, the Domestic Violence Act 1996 and the Family Law Act 1995, as well as by the Family Law (Divorce) Act 1996.

The ease with which men can be removed from the family home is one of the main factors marginalising fathers from their children. Most men we meet are shocked when we tell them, or when they discover from a solicitor, that there is no constitutional protection for their right to live in their own home. Such a man’s right to live there depends on a judge or in many cases on the man’s spouse, who has the right to apply to have him removed for no particular reason.

Such a right, like any other, should be qualified. A citizen’s right should be expressly protected, except in extreme circumstances. The obvious extreme circumstance would be where a citizen refuses to pay his rent or mortgage. In that context, the person renting the house to the citizen would have the right to remove him or whoever is providing the mortgage would have the right to repossess the house. The other extreme circumstance would involve criminal conduct. I refer here to an instance where a person is behaving in such a way that he or she is endangering other members of the family. If a citizen is being removed on either of those grounds, the onus of proof should be on the person who seeks to have the citizen removed. Under section 10 of the Family Law Act 1995, men - it is usually men, although in theory it applies to women - are being removed from their homes simply on the basis of an application where their spouses go through a particular procedure. This is an infringement of a fundamental human right and it is causing tremendous hardship for men and devastating their lives.

We also deal with the State recognising the family and the importance thereof. The family law system encroaches too easily on family life. The nature and extent of State intervention in family life, particularly through the family law system, does not protect the family. In fact, it is doing a great deal of damage to the family. We refer here, in particular, to the adversarial nature of the family law system. Essentially, the family law system survives and thrives on hostility between parents. There is an alternative to the current adversarial family law system. The Constitution should set clear limits on the extent to which the State can interfere in family life, the circumstances in which it can evict spouses from their homes and the circumstances in which it can usurp parental rights and obligations.

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