Oral Hearings

Family Issues: Presentations.

[Ms Sinnott, MEP ]

To meet this need successfully, society must protect maternity. This is truer now than ever before as pressures, especially financial pressures, mount and as more women find themselves by choice or necessity in the workplace. This article is not about mothers being locked into domestic duty. The language of the article - "mother", "home" - expresses the concept of presence and foundational identity and acceptance and refers to the reality that most of this happens to the child within the family at home.

I have a friend who is a dedicated teacher in a disadvantaged area. During her years of teaching there have been a few children who wanted her to be mother. Invariably they had absent mothers through drug addiction. Although their need was great, she, being a very wise person, kept the relationship to a very warm teacher relationship. At the same time she went to great trouble to source them a mother from among their extended family. She knew that for her to mother, to create that relationship and then disappear in June, would be cruel. A mother needs to be somebody for the long haul, somebody attached to home. In a very real sense, the mother is home.

Of course, this article focused on the right of the child does involve and seek to protect the mother or the person doing the mothering. As such it guarantees that the motherer will be supported in the work of mothering the child and will be free from financial inhibition in responding to the child’s needs, and in particular that the child’s family can afford to respond and still pay for the necessities - rent, mortgage, food, heating. This article has implications for maternity leave, tax, children’s, lone parent’s and mothers’ allowances, rates of social welfare benefits, etc., especially in the area of special needs where immediate mothering can be much more extended. It has implications for creating swinging doors on careers that make it easy for mothers to leave the workplace but easy to return. It is about having the freedom to take time from work when the child needs. It is about housing, etc.

What about the child’s need for a father, to be fathered? This need is very real and very important. If it needs protection - I think it does - it needs to be added to this article or, better still, to be given an article of its own. Maybe we should have Article 42.2.3 protecting the right of the child to receive fathering. However, the emphasis in the article would be very different. Whereas for the child maternity is about presence and we talk about home because of that - not that we are trying to tie women to home - research consistently shows that the child’s need for paternity is much more the developmentally important work of confirmation, connectedness, challenge, social identity. There is a different emphasis in fathering. In a sense the fatherer invites the child to take on the world, whereas the mother helps the child to be at home in it. An article guaranteeing the father’s right to paternity, well worded, would have implications for access to children, social welfare, tax, work leave, house ownership, employment schedules, share of domestic work, opportunity, participation, decision-making, etc. and as such would have my welcome and support. Let us watch and listen to the children and their fathers, study the research and accumulated wisdom on paternity and see what we can put in place to support the child’s need to be fathered.

I now turn to the other article dealing with women in the home and the common good. In the High Court I had a case in conjunction with Jamie’s. I relied on this article not as a woman but as a carer. Mr. Justice Barr found that my constitutional right under this and other articles of the Constitution had not been vindicated. The State appealed this decision to the Supreme Court. Disappointingly, the six male judges did not really even examine the issues in the case and just dismissed them. The only judge who actually considered my case, reviewing the constitutional provisions invoked, was Mrs. Justice Susan Denham. In her judgment she clearly showed that the concept “woman within the home ... gives the State the support without which the common good could not be achieved” in the context of the article clearly describes and values the person who cares for dependent persons, elderly, sick, disabled and children, within the home. She clearly implies that it is not gender specific, that this can equally apply to the carer who is a man. This has been further confirmed by the Chief Justice, Mr. Justice Murray, who has made it clear that the carer, though termed in the article a woman, can be a male carer. He stated, “It seems to me that the Constitution implicitly recognises similarly the value of a man’s contribution in the home as a parent.” This is already gender inclusive. Considering the incredibly unacceptable treatment of carers in our country, I would not recommend tampering with this clear, if ignored, affirmation of carers. I would not risk losing or weakening a constitutional acknowledgment of the fact that the common good cannot be achieved without the men and women who care for the weakest and most vulnerable in our society.

It should be noted that the Irish Constitution identifies the common good, i.e. the ensuring of the welfare and dignity of the person, establishment of true social order and peace between nations as the reason for its existence. The question we must ask is whether Article 42.2.1° is accurate. Is caring, particularly caring within the home, conducive to the welfare and dignity of the person? For me this is obvious. To have a home is a basic human need and to be able to choose to remain in it and receive focused personal care, specifically in our vulnerability, promotes the person. Caring is also conducive to the dignity of the person who is doing the caring. Supporting the carer and the recipient of care is conducive to the development of all of us as persons. Being a caring community is not just desirable, it is essential also to true social order. To be a caring community we must actively care, not just in words. Not everyone has the opportunity to care for someone in need of care but we can learn and be inspired by carers to bring caring into every sphere of our life - social, economic and personal.

Economically carers provide a service that is also immensely valuable. For the State to provide institutionalised care for all those who need care would be prohibitively expensive. The home carer provides good quality care at a fraction of the cost of State-funded institutional care services. Carers save the State enormous costs. In justice we need to recognise carers as the essential and valuable workforce they are. We urgently need to remunerate carers for our economic and social survival.

The European Commission has just released the Green Paper on the demography of Europe. Read it and then think about how we support and encourage the carers of our nation’s children. In Europe we have a demographic pattern that is unique in the history of the world. This report states that we are in a downward demographic spiral that is already causing major social displacement and economic stagnation. It carries a clear warning: “Never in history has there been economic growth without population growth.” We in Ireland are as yet buffered from this because of our larger families of the past and our protection of the unborn. We uniquely in western Europe have a dynamic, young and relatively large workforce for our size.

An older official in the Department of Finance commented to me recently that in the 1960s, 1970s and 1980s they wondered how they were possibly going to feed, clothe and educate all those children. Little did they know, he said, that they would become the engine of Ireland’s economic success. However, we must not be complacent. Our birth rate has steadily dropped. Though this drop is delayed, it is following the European trend in that it is now below replacement. It is quite simple. Many women will not have children or not have more than one or two just to drop them off from 7 a.m. and 7 p.m. in daycare. We need to make work family friendly so that parents can harmonise work and family life. We need to support those who choose to stay at home or to take a few years off to establish a family. If we become a society where people exist to serve employment rather than employment to serve people, then we are not going to have children to continue being employees. As this report warns, if we do not have children, we do not have a future. We do have the motivation even to work hard and sacrifice.

Article 42.2.1° demands that we also treasure not just the carers of children but also of other vulnerable groups. The Green Paper shows that we now have more elderly people to be cared for than ever before, with fewer people to do the caring. Add this to the fact that the number of people with a disability is increasing. Wisdom is that about 10% of the members of society will have a disability. We are at 17% in Europe and rising. There are increases in many debilitating chronic diseases like multiple sclerosis and disabling conditions like autism, schizophrenia and Alzheimer’s disease. More to be cared for, fewer to care - this does not work.

Recently I spoke about carers to a senior member of the European Commission at the Employment and Social Committee. I said that in Ireland carers are an endangered species. He said we should do what we can to care for carers, that in some European countries like Germany they are now extinct and this has led to enormous problems. I do not think the loss of carers stems from a lack of caring people but rather a lack of people who are available to care and who can afford to care. How do we deal with the crisis of care? As in the 12 Alcoholics Anonymous steps, we have first to admit that there is a problem.

Let us think of the cost of nursing home care. I know you are all very conscious of it at present because it is a topical issue. Multiply that by the number of carers we are losing every year and the number who are still soldiering on and we will get some idea of the potential cost of extinguishing home care by neglect. Before I became a member of the European Parliament I was a full-time carer of Jamie, who is profoundly disabled, and five other of the children who are still at home. Now that I am working it takes me more than my pay cheque to replace myself in terms of substitutes for the bare essentials of caring. What do we see in countries where family carers have dwindled or disappeared? We see institutionalisation of euthanasia, legal or not. I am not willing to stand by and watch this happen.

In the European Employment and Social Committee we give great care and attention to issues of health and safety in the workplace, length of working week, proper training, fair pay and so on. I consider it my responsibility to remind them and the visiting Commission and Council - I repeat it like a mantra - that no one knows or cares if the carer is lifting twice his weight or working 24 hours a day, seven days a week until they drop, or cares that they have to carry out complicated nursing procedures or deal with dangerous and challenging behaviours without training or support. For all this they are paid nothing. This is what that article is about.

I wish to comment on Article 41.1.1° in relation to the family. The family is the natural habitat of the person. If we want to save the panda or the orang-utan and help them to flourish, we need to protect and preserve their natural habitat. If we want to help the human person to flourish, we must protect and prioritise the family.

Chairman: I understand you are saying that the status given to the family under our Constitution should be retained and protected.

Ms Sinnott, MEP: Yes. I am coming from Europe to tell you that. I was in Ireland for years when it was becoming less and less politically correct to mention the family. I am now going to Europe where the Commission is saying that we must start protecting the family, that having forgotten about the family we are in serious trouble. I am a vice president of the European group on families and child protection. The last two groups each spent their five-year terms arguing about the definition of a family. This group said that we have serious issues around family, Europe is in trouble, let us forget about definitions and start with solutions.

It comes down to economics. We are not competitive, our economies are not growing and it is because we have stifled the family. The Commission is beginning to make clear connections between the stifling and lack of support for family and economic stagnation. We in Ireland have a time lag because we supported the family longer, but we are also in a PC time lag where we still think we have to denigrate the family. We do not realise while we go through this process that countries which have already done so are desperately trying to row back. I would like the committee to look at the Green Paper because the chart is amazing. We are diving to the same position as other countries but we are 20 years later.

Chairman: It seems that the 1937 Constitution envisaged the narrow definition of family as being within marriage. Various other arrangements have evolved in society. Some groups are saying that the definition of family should be broadened to encompass other relationships where there are children.

Ms Sinnott, MEP: It is an interesting question. I came here to talk about those two articles of the Constitution which mention the mother and the woman, but I will respond on that issue because it is important. I have never read the protection of the family as carrying a definition. Let me explain. I am a new member of the group on the family, but the longer-serving members began the first meeting by stating that the group should not waste time by trying to define the family, which is rapidly changing. I do not have a typical family. I am married but I raised my children by myself. We are a family dealing with disability and so on. However, I could always look to the word "family" and consider that it should be protecting me, which it was not.

The family is mentioned in Article 41.1 of the Constitution. Marriage is dealt with in Article 41.3. People like to say that the Constitution defines family as the married family. It does not; it simply refers to family. As Mrs. Justice Susan Denham would say, the Constitution is a living instrument and we have to read it in that context. I do not think we need to get embroiled in what is family because the family is dealt with in a separate article from marriage. The Constitution is saying that we must protect the family, which is the basic unit. Article 41.3 deals with the protection of carers, children, the elderly, the sick, the disabled and whomever else and the entitlement of the child to maternal protection. I have suggested that we need to deal with the protection of paternity. The reference to marriage does not define family in a different article. I hear people say that the Constitution protects only the married families. Such people either have not read the Constitution or they have an agenda. The Constitution protects all families. It provides that marriage has a special place. What is marriage? Marriage is a commitment made publicly. What is a contract? Would you invest your money in anything that was not covered by contract? I have lent money to somebody who might have needed to pay an electricity bill and when I lend money I feel that I might see it again or might not. That is the nature of the risk. When I do not want to take a risk or feel there is a need for more protection, I make sure there is something in writing. What this is asking the State to do is support people in making a commitment. That commitment does not have to be part of a religious ceremony. There is such a thing as a common law marriage, which is more than cohabitation and involves commitment. The State holds out and supports commitment but it has nothing to do with supports and guarantees around the family. I see them as completely separate.

Chairman: : Perhaps I should explain. A decision was made in 1996 by Judge Peter Kelly in regard to a cohabiting couple who had a child. A dispute arose and despite the fact that they had a contractual arrangement, the High Court decided that if it accepted that arrangement it would elevate the parties involved to the same status as a married couple under the Constitution. It declined to do so. That is a recent decision. It has been decided in a number of cases that the family as defined in the Constitution is a family within marriage and it does not recognise any other sort of relationship. That is of concern to many people.

Ms Sinnott, MEP: I recognise that and I would not support that. However, it works the other way. I spent six years living in Cork city in dire poverty and I was not allowed social welfare benefits because I was married. If I had not been married I could have received benefits. Instead, the most they could give me in six years was £40 on five occasions - once I was asked to return it - and £15 rent for a grotty little flat. This was during the 1980s when £40 was not a lot for three children, one of them disabled. The most I was given was a home supplement. Because I was married I was not entitled to social welfare benefits until they could get my husband into court, etc. Suddenly in 1998 or 1999 the contributions from my husband ceased for five months. At this stage I had seven children at home and I was not allowed social welfare benefits until they could find my husband and make him pay. I cannot remember how many thousands I had borrowed from the credit union, hoping they would not get wind of the fact that I actually had no way of paying this money back. Then the payments began to kick in again. I only recently finished paying off that loan.

Much of this has to do with legislation more than anything else. The protection around the family is critical. If there is an article which encourages people to make a commitment because commitments are good for children, I have not a major problem with that. If I were not married, I would still feel that Article 41.4 should be there for me. It was not there for me as a married person and it is not there for unmarried people, but it should be.

Deputy P. Power: : The document utilises the provisions of Article 40 in support of the case on behalf of your son, Jamie.

Ms Sinnott, MEP: No. I did not use Article 40. Article 42 was used for Jamie. There were two cases, one for myself as his carer and I used Articles 40, 41 and 42 for that.

Deputy P. Power: : Do you think the provisions of Article 40 are sufficiently broad to encompass civil relationships, maybe same sex unions, and to respect them in the same way that Article 43 respects the family? Do you think that Article 40 is capable of doing that?

Ms Sinnott, MEP: Article 41 protects the family.

Deputy P. Power: : I know, but do you think that the equality provisions of Article 40——

Ms Sinnott, MEP: Article 40 protects the person and guarantees equality. A little secret is that we are going back to court and one of the things we will be invoking under Article 40 is Jamie’s unemunerated rights. Since he is over 18 we cannot invoke Article 42 and the State is messing his education around all the time. Article 40 promises that everyone will be treated equally as a person. Anyone who can show that a basic human right is being denied can invoke Article 40.

Deputy P. Power: : Do you think the qualifying provisions in Article 40 such as the social function references are wide enough to accommodate the same sex unions which the Chairman asked you about?

Ms Sinnott, MEP: I really cannot answer that. It will depend on the case made and the judge on the day. I will be making arguments under Article 40 that are not spelt out in that article. I have worked very hard on that case, yet I cannot answer the case for myself. I cannot say whether those arguments will be taken on the day and that Article 40 will be seen to encompass provisions for my son.

Deputy P. Power: : I am not talking about your case. I am talking about civil union.

Ms Sinnott, MEP: The Deputy is asking me to have a crystal ball. He is asking if Article 40 can cover that.

Deputy P. Power: I am asking for an opinion, that is all.

Ms Sinnott, MEP: : I do not know. I do not know if it will cover my son’s rights, on which I have worked very hard. I would love to know but I have not a crystal ball. I do know it is about equality and if we can make a good case that it is an issue of equality, then Article 40 will cover it.

Chairman: We have run out of time.

Ms Sinnott, MEP: : Will no one ask me about the article I really want to talk about?

Chairman: : You actually spoke for 30 minutes, although you were supposed to get six. You are fortunate in that you got a lot of leeway.

Ms Sinnott, MEP: : You were very good to me.

Chairman: I thank you for your interest and your submission. We will take the points on board. As a sort of neighbour - you are from west Cork - I appreciate the interest in Jamie’s case, which I followed. I know that in Europe you have a particular interest in such matters and I admire you for that. I wish you luck.

Ms Sinnott, MEP: On a technical point, one of the reporters had my initial letter rather than my submission. I would like to be sure that the submission has been received.

Chairman: We have brought in all the information received up to yesterday.

The joint committee adjourned at 4.50 p.m until 10.30 a.m. on Wednesday, 20 April 2005.

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