Oral Hearings

Family Issues: Presentations.

[Mr. Frank McGlynn]

Article 41.2 deals with the position of women in the home. We have a difficulty with this in that it is gender specific. It is time men’s contribution to the State, to the family and to family life is also recognised. This provision should either be removed or worded in gender-neutral terms. Since we delivered our submission to the committee, we have seen the submission by Treoir, another organisation which represents lone parents. Treoir has put forward a proposal with which we would go along. Basically, it contains gender-neutral wording which states that the State recognises that home and family life give society a support without which the common good cannot be achieved and that the State shall endeavour to support persons caring for others in the home. We would be inclined to support that amendment by Treoir.

Article 41.3 forms the most important part of the submission because it deals with the State supporting marriage. Having dealt with men since 1997, AMEN believes the marriage contract has been so corrupted by the family law system that, in effect, it is a lethal contract for any man to enter into. We believe that men are already opting not to get married because of what we describe as the unseen termination clause. The unseen termination clause effectively means that in the event of marriage breaking down, the man, regardless of who is at fault, will be obliged to leave the family home and continue fulfilling his contract with the female spouse. In other words, he will have to continue maintaining her although she will not have to continue to perform homemaking duties for him. He is also liable to lose his property - this is provided for in the Family Law Acts - and even where the marriage is legally terminated by divorce proceedings, he can still be put in a position where he must support his former spouse, not merely for a few years but for the remainder of his life.

Probably the most important part of this is that it marginalises men and results, in many instances, in the destruction of fatherhood. Most people can afford just one home in their lifetime. The result of this is that men are being forced to live in substandard one-bedroom accommodation to which they cannot bring their children. Even if they were granted joint custody, which many of them are denied, they would not be able to avail of it because of the circumstances in which they are living.

If more men were properly informed of the nature of the provisions to deal with marriage breakdown, I am certain they would not get married and there would be even fewer marriages than at present. We state in our submission that if the State has already taken a decision to discourage marriage and make it a no-go area for men, then it is achieving that objective through the family law system. Family law has been described as becoming a no-go area for men and that is not in the best interests of the State or the family. Marriage should be beneficial to all parties. It should not carry this devastating power to marginalise and push somebody into the circumstances in which many men are living. We indicate that the State’s response to marriage breakdown could be summed up in three words, namely, wipe men out. In saying so, we are reflecting the views and experience of the vast majority of men who approach us.

Rather than forcing people into the adversarial system that is currently used as a first resort, our proposals and recommendations would put greater responsibility on spouses to negotiate the terms of their separation or divorce. They would thereby take responsibility for their lives, rather than handing over this to members of the legal profession and the Judiciary. This would reduce the level of acrimony. Obviously, there is acrimony in the breakdown of a relationship, particularly a marriage. The current system to deal with separations increases the acrimony to a level that is almost impossible to overcome. This is damaging to children. There should be a more equal sharing of the pain and gain. The legislation and the Constitution should have inbuilt protection of the rights and responsibilities of both parents that should apply in a meaningful way.

We made reference to Article 42.1 and noted that we recognised a slight difference between the English and Irish versions of that provision. The English version refers to respecting the rights and duties of parents whereas the Irish version, if translated literally, uses the phrase, “The State shall not interfere with ...”. While we believe the Irish version has a slightly stronger emphasis than the English version, we are not legal experts or constitutional lawyers. The English version should be amended to provide a correct translation of the Irish wording. As far as we are aware, Irish is the first official language and English the second. Therefore, the wording in Irish should take precedence over the wording in English.

We have expressed our views on all nine specific questions. Of most concern to us is the position of unmarried fathers. We have stated simply that there should be a provision to ensure all parents are treated equally. The Constitution should provide that the rights of all parents have express constitutional protection, regardless of the sex or marital status of the parents. In this regard, we disagree with the Constitution review group which appears to be suggesting that the rights of natural fathers should be dependent on the relations between them and the mother of their children. The parent-child relationship should stand independent of relationships between the parents which can go through various phases. The father’s right to be a father to his children should not depend in any way on his relationship with his children’s mother.

Chairman: The representatives of AMEN made an interesting point on the discrepancy between the Irish and English versions of the provision in Article 42.1. We have come across one or two others. Where there is a dispute over two versions, the version as Gaeilge takes precedence over the English version.

What is AMEN’s position on the rights of children? Some of the groups which have addressed the joint committee have stated children should be accorded a central position under the Constitution.

The delegates alluded to wiping out men. I presume they were referring to extreme peripheral cases. Many marriages break up amicably and the parties involved go their own way and arrive at a sensible conclusion regarding the rights of their children. Fifty years ago, or perhaps less, prior to the Succession Act, the oldest male child inherited the farm, house or business. It is not long since women did not have rights in this area. I still come across cases in which the man owns the house or farm and the women has no leg in. Is AMEN suggesting family law has evolved such that it is now agitating against men?

Mr. McGlynn: That is what we are saying.

Chairman: The change would have occurred in the past 20 years because the law has evolved. It was changed for very good reasons, including to protect women. However, does AMEN believe the legislation has come full circle?

Mr. McGlynn: It has. The Family Home Protection Act, introduced in 1976, arose from the deliberations of the Commission on the Status of Women which issued its first report in 1972. The Act protected the right of the non-owning spouse, usually the woman, to live in the home. As the Chairman implied, most houses were in the name of the man. At the time he possessed all the ownership rights.

Chairman: Probably 80% of men were in that position. In many instances, a man mortgaged his house without telling his wife, perhaps due to a drinking or gambling problem. If the house was repossessed, the man who knew what was happening was put out on the street but so also were his wife and kids. The Family Home Protection Act 1976 was to protect against this. AMEN is arguing the legislation is now kicking back and agitating against men.

Mr. McGlynn: It is. Until 1989 the position was reasonably okay in that the rights of men and women to live in the home were well protected. Thereafter, it became very easy to put men out of their home. This is what is marginalising them. Under the 1989 and 1995 Acts, women can apply for exclusive residency, which effectively means the other parties lose the right to live in the home. If exclusive residency is obtained for life by the woman, the man receives absolutely no benefits from the home unless his wife dies before him. Effectively, the legislation has come full circle in that respect. Men can lose the right to live in their home but still be obliged, as many of them are, to pay the mortgage or rent. They do not receive any benefit from the home, thus placing them in very poor circumstances.

Senator Finucane: Mr. McGlynn has stated he totally rejects the view expressed by the Constitution review group, that is, that the rights of natural fathers should be dependent on the relations between them and the mother of their children. Surely the review group’s thinking has some validity. After all, if there are rows and naked hostility between the natural father and the mother, how beneficial can such an environment be to the growing child?

Mr. McGlynn: There could be naked hostility between a married father and mother who are separated, yet both are treated differently. I do not believe hostility between parents should be a ground for cutting either parent from their children’s lives. Both, if they are good parents, have a lot to offer their children. Children need both parents. Efforts should be made to resolve hostility rather than use it as an excuse for wiping out one party.

Senator Finucane: On AMEN’s total rejection of the view of the Constitution review group, surely there are circumstances in which the rights of the natural father should be dependent on his relationship with the mother of his children. For example, such circumstances might arise if the hostility between the mother and father has a disturbing effect on the children.

Mr. McGlynn: Why should the natural father be automatically excluded rather than the natural mother? He may be not be the one responsible for the hostility. If we go down the road the Senator is suggesting, we will be saying to women that, if they generate hostility, they can wipe the natural father from the picture. That power should not be given to anybody.

Senator Finucane: That is not my point. I am saying I recognise the validity of the Constitution review group’s position on the basis that if the hostile relationship between a mother and father has a disturbing effect on their children, it might be of much greater benefit to the children if their father and mother were apart.

Mr. McGlynn: The presumption should be that both parents should be involved, although it may be necessary to provide for exceptional circumstances only where it would not be in the child’s best interests.

Mr. Michael Scully: On the question of whether the role of the mother is dated, perhaps it is not necessary to remove from the Constitution the provision which enshrines the position of the mother; rather we should enshrine the position of both parents as having a place in the home. We should enshrine the value of both parents as the natural care givers of children. This may not be the time to remove the role of the mother as we would then be suggesting the role of parents was no longer valued in society.

The Constitution should be changed to take account of the role of the natural parents of a child. There would always be the option, if the father or mother was not playing his or her role or not paying proper attention to the care and upbringing of his or her children, of removing guardianship from him or her. As I understand it, although I may be wrong, the Constitution is a set of rights and responsibilities, whereas legislation creates legal allowances or outlawing provisions. Both parents should be given legal guardianship under the Constitution. Currently fathers must obtain legal permission in that regard. A father must apply to the court for permission to be guardian of his child. We could provide in the Constitution that both parents have legal guardianship and then provide in legislation that, should the need arise, guardianship may be removed from either or both parents for a period of time to allow for foster care and so on.

Senator Tuffy: Are changes to the Constitution necessary to allow AMEN to achieve its aims? Could the issues involved be dealt with by way of legislation or through other measures? Does the delegation agree that one method by which the rights of both parents could be addressed is focusing on the rights of children rather than on their rights? Is there a need for research in this regard?

While it may be true that men are discriminated against in the legal system, so too are women. Do we need more research to establish what exactly is happening? We could then make policy decisions based on the findings of that research.

Mr. McGlynn: I will deal with the last question first. We have asked the Courts Service to provide statistics which should be available within the system. Much of what I have to say may be anecdotal which I cannot support but we are relaying the experiences of men who have contacted us. We have requested statistics on how often men are granted the right to live in the family home, how often women are granted this right and how often the courts award joint custody. There is a need for more research in this regard.

It has been our experience - most family solicitors would agree - that when it comes to the main issues, by and large, men emerge as the losers. The three main issues in any family law dispute are children, property and finances. The nature of the process often means that whichever party is victorious in obtaining guardianship of the children is granted the home and, therefore, receives the bulk of the finances. Any research in this area would conclude that in virtually all cases men emerge as the losers.

On the rights of children, AMEN is aware of and pursuing the line that children, being much more vulnerable than adults, deserve special protection and that their rights should be paramount. We also make the point that in most cases the best way to protect children is to address parents’ needs.

The Chairman mentioned that children should be placed in a pivotal role. I would be careful about using the word “pivotal” in that I do not believe children should be placed in a pivotal role when dealing with family disputes. In so doing children will be placed in a position where they are likely to be influenced or manipulated into making decisions under pressure which they could regret for the remainder of their lives. One of the basic rights of any child is the right to a childhood. In placing them in a situation where they must make adult decisions one is not respecting that right.

Chairman: By way of clarification, I did not say what has been suggested. I am trying to be fair and not take any position on the matter. I said that some of the groups which had made presentations to the joint committee referred to the primacy of the child. One group stated the primacy of the child should be the axis on which all other relationships should centre, be it a family, a cohabiting couple, single mother or single father. I was not suggesting children should have a pivotal role in a court battle. They should be left out of such situations.

Mr. McGlynn: I agree.

Chairman: I was stating other groups such as the Law Society had made the cogent case that the health and welfare of a child should be paramount. In that context, the word “primacy” was used. It was not suggested children should have a pivotal role in a dispute.

Mr. McGlynn: There are groups pushing for children to become more deeply involved in disputes. We do not believe that would be healthy. Children should have rights but adults——

Chairman: I do not think that is what they were suggesting. They were making the case that a child, whatever his or her role under the law and the Constitution, should be protected, be it a child of a marriage, a separated family, a cohabiting couple or a single mother or father, and that all issues should revolve around the child. In other words, difficulties should be resolved through the interpretation of other relationships and so on.

Senator Tuffy: Mr. McGlynn did not answer the question about whether it was necessary to address the issue by way of constitutional amendment. Could it not be addressed by law?

Mr. McGlynn: Some of the issues raised in the submission could be addressed by way of legislation rather than a constitutional amendment. It was mentioned to us earlier prior to appearing before the joint committee that, although the committee was addressing constitutional issues, its membership was made up of legislators. Such rights as the right to live in the family home should be enshrined in the Constitution. We also need to reconsider the wording relating to the circumstances in which divorce or marriage breakdown come into play. We believe divorce is too readily available and that people are shoved into the legal arena far too quickly.

Deputy J. Breen: In a situation where a father is forced to leave the home and guaranteed visiting rights, takes the children away for a weekend and the mother makes an unsubstantiated claim that he is subjecting the children to abuse, a health board official has the right to rescind his visiting rights. Surely, such matters should be referred to the courts for decision.

Mr. McGlynn: No, a health board official should not have that right. It is the right of a father. If an unsubstantiated accusation, particularly one as serious as that, is made against any citizen, it should be subjected to all the rigours of the law and should be proven.

Deputy J. Breen: I am aware of such cases.

Mr. McGlynn: We come across such cases regularly. Much of this flows from the adversarial nature of the family law system.

Senator Ormonde: I thank Mr. McGlynn for his contribution. This discussion centres around whether we should amend the Constitution or enact legislation. Based on that and having listened to his contribution, the key areas where there would be a dispute centre on children, property and finance. Will Mr. McGlynn cite examples of where the reverse occurred where the man in the family has control of the children, property and finance? Has he statistics which would highlight instances of this happening? We know this to be the case. If it has happened, there is a precedent and it should be dealt with through legislation. What are Mr. McGlynn’s views on that?

Mr. McGlynn: Our view is that nobody - man or woman - should emerge as a winner. There are cases where men have been awarded custody of children and the family. Usually such cases - certainly the ones of which we are aware - arise, by an large, where the woman has scored a few own goals. All being equal, women usually get the children, the home and most of the finances. They emerge as victors in most cases. The other cases arise where there would be peculiar circumstances, perhaps relating to the woman having a problem of some kind such as alcoholism.

Senator Ormonde: That is why legislation, rather than amending the Constitution, would be more appropriate in the circumstances.

Chairman: I thank Mr. McGlynn for the submission. We will take it on board and conduct a serious analysis of it in coming to our conclusions. We appreciate the angle from which AMEN is coming.

Sitting suspended at 4.02 p.m. and resumed at 4.06 p.m.

Chairman: The next presentation is by Ms Kathy Sinnott, MEP. Being a constituent of mine, she is welcome. Ms Sinnott is secretary of the Hope Project. Before we begin, I remind visitors that members of the committee have absolute privilege but this same privilege does not apply to witnesses appearing before it. We have given groups six to eight to synopsise their presentations and then had questions and answers. Fortunately for Ms Sinnott, we have an extra ten minutes. We must vacate the room by 4.45 p.m. and we must complete this work this evening.

Ms Kathy Sinnott, MEP: I will have to talk quickly because I am counting on 45 minutes.

Chairman: Ms Sinnott should bear in mind that I do not wish her to read because we already received her submission. There are a number of members who might wish to ask questions.

Ms Sinnott, MEP: I understand that.

Chairman: Ms Sinnott can watch the clock. We must conclude our deliberations at 4.45 p.m.

Ms Sinnott, MEP: We also watch the clock in Europe.

Chairman: I will give Ms Sinnott 15 minutes clearance.

Ms Sinnott, MEP: I thank the committee for the opportunity to discuss some of my favourite articles - namely, Articles 41.2.1° and 41.2.2° - of my favourite Constitution. There was a time when I thought these articles involved an old-fashioned concept of women. However, in my need and in view of the needs of my son, Jamie, I found in them powerful protection of basic rights. I understand them better now and realise their importance. I only hope that I can explain and convince the committee, not only to retain them but also to use them to serve the common good, that is, the dignity of the person, social order and peace, which, as defined in the Constitution, is also the stated purpose of Government.

I will begin with Article 41.2.2°. The key to understanding this article is to see that it is not about mothers - or at least not primarily about them - but about children and their in-built developmental need for mothering.

The committee may recall a famous primate maternity study. The baby monkeys - males and females - were divided into three groups. Researchers observed them from birth through early adulthood. The first group were kept in bare cages and fed with a bottle of monkey milk. The second group had a bottle protruding from a round monkey-sized pillar surrounded with a soft fabric in the middle of the cage. The last group were raised with their mothers in the cage. Throughout the study, the difference between the mothered monkeys and the other two groups was striking. The two unmothered groups of monkeys were developmentally immature and dysfunctional, physically underdeveloped and sickly, though the presence of the fabric coloured structure, which the monkeys in the middle group used to hug and embrace and sleep snuggled up to, seemed to protect them from the worst of the damage. When these monkeys grew old enough and were bred, only the mothered monkeys parented appropriately. The others had severe parenting problems - some were even a danger to their young. Autopsies on the monkeys showed normal brain development in the mother-raised monkeys, a significant under-development in the middle group and brain damage in the monkeys in the bare cages.

Human studies can never be carried out in such a clear way. I do not even know if an animal study like that would be allowed today. However, it tells us something that is reflected in an enormous body of child development research literature. Maternity is necessary for the development of the child. What is a necessity of the human person is by definition an inalienable right. It is the protection of the child’s right to receive necessary maternal input that this article seeks to offer. I put down a few of the international instruments. One of them points out that you have to be very careful of gender discrimination but it is not discrimination to talk about maternity. Maternity is a fact of life - men do not have babies. I will skip over the international instruments, which apply to both articles, not just the one I am talking about.

The primary right protected in the article is the child’s, not the gender equality issue. To state the obvious, children come in two varieties - boys and girls. Both need mothers to develop. If we accept the child’s need to be mothered, then we need to answer two questions. What is mothering and who mothers? If I could tell you exactly what mothering is I would be doing better than poets, philosophers, psychologists, etc. for many thousands of years. What I can tell you is that mothering has everything to do with nurturing, the foundations of identity, acceptance and presence.

Before birth the child is totally dependent on the mother. From her the child gets warmth, nourishment, sound and movement, even the space he or she occupies. At birth the baby needs the mother’s colostrum to prime the immune system, her breasts to regulate antigens, her breathing rhythm to learn to remember to breath and the touch of her skin and her firm embrace to calm the baby’s raw neurological system. The baby needs the familiar sound of her voice and heart to know that he or she is safe and her love to know the world is a welcoming place. For the weeks after birth the baby needs close maternal contact. For most of the history of the world in most cultures, young babies have even been carried on the mother’s body and slept at her breast. In this early attachment stage they begin to study their mother from whom they have no concept of separate identity. The babies gradually begin to realise as they find a foot or hand which is not the mother’s that they have an identity of their own. This process is made understandable and even bearable by the safe, constant, familiar and accepting presence of the mother. They need to know what and who the mother is to begin to find themselves in the difference between them. Even after the baby leaves the constant and frequent physical contact with the mother, the quality of the child’s exploration is affected by the presence of his or her mother. In as far as the toddler feels he or she is in the mother’s sphere, the child will be free to explore.

It took me several children to learn to put this to good use. My older children were terrors in church. They would run up and down the aisles and even on to the altar. I like a fool used to watch them and follow. It took me longer than it should have to learn that by watching them I was making them feel safe to leave the pew. When I followed them, they could run even further. It was as if I was letting out the invisible line which ties the mother and child. I changed my tack and focused on the Mass and the child stayed by me, usually touching me or even up in my arms. On the rare occasions when they did venture into the aisle they would try to get my attention, even making noise to make me look. As long as I did not, they came quietly back. Maternity provides a zone in which the child thrives and can explore.

As the child gets older he or she becomes less dependent on the mother for nutrition. All going well, much of the critical acceptance and basic identity work is complete. The child is moved on to the stage of identity formation and confirmation provided by paternity, by father and by those around them. Despite this, maternal presence remains the critical requirement for the child. As the child develops, he or she detaches from the need for the total physical contact of the newborn and pre-born and branches out in stages to a reliance on touching the mother, then later on seeing and hearing her, then on knowing she is close by and finally that they are just in her domain. This extension of the sense of maternal presence allows the child to expand his or her exploration. They begin a process of internalising maternity. In so far as he or she does this successfully, the child can sustain longer and longer periods away from the mother, which enables the child to go to places like school.

Though a child’s requirement for what I call "on the spot" mothering typically diminishes, any child at any time can revert and need it again. How many of us have had children crawling into our beds at night? A six-year-old can suddenly look for his mother’s lap, to be wrapped and to be rocked. A teenager can be scared and need to run to her mother, not unlike a three-year-old. This article guarantees the child that if he or she needs mothering and if the mother can and wants to be there to give it, money will not stand in the way.

Normally the nurturing aspect of maternity is for a limited time. Laying the basis of identity and communicating acceptance and a sense of the child’s goodness are important maternal tasks which are done best when they are done early, but presence is lifelong. As the child grows the presence is less on the spot and more internalised, yet as a child there is no substitute for a mother just being there in whatever degree the child requires. Once in a while I am back from the parliament when my two youngest get home from school. They get a hug and they run off to play. They just disappear. I wind up sweeping floors and putting on a dinner and I wonder why I skipped lunch to get home early. Other days I arrive home at dinner time and they will ask, “How come you are so late?” even though when I am early they are just happy that I am there. Even when not actively speaking or interacting with them, the mother provides a presence, the maternity they must need after being in school all day. Anyone can give food. It is the child’s early need for identity and acceptance and ongoing need for presence which is maternity. That is more than anything else protected by this article.

The second question relates to mothers. Ideally for the child his or her own mother mothers. If the child is to be adopted, we should make every effort to get the adoptive mother and baby together as early as possible. Many unavoidable factors can delay adoption but let us not allow red tape or funding to contribute to the delay. I know grandmothers and in one case an aunt who are the mothers, while the biological mother has taken the role of a big sister. There are many homes in which necessity or choice find a parent providing for the child alone, presumably a father cum mother, though this has not been my personal experience. I have found being a lone parent myself that I have had to do many of the things my husband did for and with the children. Although I think I am being mother and father to them, they consistently relate to me as mother. Most important in maternity is that there is one person with whom the child identifies as mother and that this person is committed to the role and to the child. This does not mean that there cannot be additional motherly figures in the child’s life and mother substitutes - it is important for the child that there are - but the child needs for his or her development to live in the presence of someone who is mother for him or her.

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