Oral Hearings

Family Issues: Presentations.

Tuesday, 19 April 2005

The Joint Committee met at 10.30 a.m.

MEMBERS PRESENT:
Deputy B. Andrews,
Senator B. Daly,
Deputy J. Breen,
Senator J. Dardis,
Deputy C. Cuffe,
Senator M. Finucane,
Deputy J. Devins,
Senator A. Ormonde,
Deputy P. McCormack,
Senator J. Tuffy.
Deputy A. Morgan,
Deputy P. Power,

DEPUTY D. O’DONOVAN IN THE CHAIR.

Family Issues: Presentations.

Chairman: Is the schedule for today’s proceedings as circulated to members agreed? Agreed.

The first group to make a presentation to the all-party committee hearings on matters relating to the family under Articles 40 and 41 is the Law Society of Ireland. I welcome Mr. Geoffrey Shannon, Ms Joan O’Mahony, Ms Rosemary Horgan and Ms Colleen Farrell. 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. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

I invite the Law Society to make a six to eight minute presentation. As the Law Society, of which I am a member, has made an extremely important and well-thought out submission to the committee, it may be better, rather than going through that submission, for the representatives to synopsise it and highlight the important features. Members will then engage in a question and answer session with the delegation.

Mr. Geoffrey Shannon: I wish to highlight a number of key issues in the Law Society’s submission. The first relates to Article 41 of the Constitution, which recognises the family as the primary and fundamental unit group of society. However, the family which the Constitution contemplates as deserving of such protection is based on marriage. The institution of marriage, therefore, enjoys a privileged position in the Irish constitutional order.

The rights that the Constitution guarantees do not belong to individual family members but to the family unit as a whole. The courts have remained steadfast in asserting the exclusivity of the constitutional family and have not been inconsistent in that regard. The Constitution fails to recognise the child as a legal person with individual rights to which separate representation must be given and, in fact, lacks child focus. The focus in the Constitution is not on actively promoting the welfare-interests of the child but merely on ensuring that they are not seriously impaired.

The constitutional position in Ireland embodies a “seen but not heard” approach to children and society is of the view that this has led to some difficulties. The United Nations Committee on the Rights of the Child addressed this issue in its concluding observations on Ireland’s implementation of the UN Convention on the Rights of the Child. Given that the Convention on the Rights of the Child has been ratified, and 191 countries are bound by it, we see how important it is as an international instrument. The convention committee to which I referred recommended the acceleration of the implementation of the recommendations of the report of the 1996 Constitution review group. As the committee may recall, that group recommended an express statement of identified rights of children be incorporated into the Constitution. This is the principal recommendation of the society, namely, that we should, as a matter of urgency, insert express rights for children into the Constitution. A similar recommendation was made in the Kilkenny incest investigation report.

More recently, it appears that the Supreme Court has veered away from enumerating express rights for children by holding that it is the responsibility of the Government to articulate those rights. This approach may be gleaned from four landmark judgments of the Supreme Court. The cases to which we referred in our submission - North Western Health Board v. H.W. and C.W., T.D. v. Minister for Education and others, Sinnott v. Minister for Education and others, and Lobe and Osayande v. Minister for Justice, Equality and Law Reform - concern the children in society who are most in need and who are dependent on the State for their education, health, welfare and citizenship. Such children now inhabit a legal limbo.

We would advance the argument that if the State fails to protect the rights of individual children and the Supreme Court refuses, save in exceptional circumstances, to intervene as guardian of the Constitution to uphold such rights, on whom does its duty now fall? In light of these recent developments, we believe the Constitution should be amended to insert express rights for children. The current constitutional position does not reflect this situation and we feel some change is now required in this area to ensure express rights for children.

Of the international instruments in this area - in particular, the Council of Europe instruments - Council of Europe Recommendation 1286 of 1996 addresses welfare issues for children. I highlight point 8.i, which guarantees that children’s rights should be explicitly incorporated into constitutional texts. There is an international footing here. I also refer the committee to Principle 21 of the White Paper published by the Council of Europe in January 2002.

We can also consider the position internationally, not only within but also outside the European Union. Within the European Union, we perhaps can look to Germany. Several decisions of the German federal constitutional courts have emphasised and recognised the right of children to have an independent representation of their interests. We would also refer the committee to Article 28 of the South African constitution, which enshrines, in its fundamental law, express rights for children.

The committee sees the family as the primary unit of society and it sees the family, I suppose, as a standard setter which signifies a deep and personal commitment. Consequently, the committee believes that Article 41.3 of the Constitution should continue clearly to recognise the primacy of the family. That said, the committee also recommends that we should move, as a matter of urgency, to change the statutory law to reflect changes highlighted in the 2002 census and, in fact, recent Government policy on the family. The existing legislative framework does not reflect changes in family structures. There have been a number of decisions of both the High Court and Supreme Court on this issue. In one case, the High Court stated that unmarried persons were free agents who owed no duty to each other. Our view is that the legislative framework should be changed as a matter of urgency and there is no constitutional impediment for such legislative reform.

The diversity of families brings with it both threats and opportunities for children. It is doubtful whether the shape of families and households matters in terms of children’s welfare. Far more important is the nature of the relationship within them and the extent to which they remain stable. The society would remind the committee that Ireland has ratified and incorporated the European Convention on Human Rights as part of its domestic law. It was signed on 30 June 2003 and became effective on 31 December 2003. That requires all courts to take into account provisions of the European Convention on Human Rights.

Compliance with the convention has proven to be difficult as a result of legislative inactivity in this area. The law in Ireland leans strongly against the non-marital family. Families are effectively outside the ambit of legal protection in Ireland. One could argue that current Irish law breaches core provisions of the convention, particularly under Articles 8, 12 and 14. Article 8 of the European Convention on Human Rights guarantees, as a basic right, the right to respect for private and family life, home and correspondence. It is concerned more with the substance than with the form of the relationship. The convention, unlike Irish law, does not distinguish between the rights of a marital and non-marital family. From early on, the European Court of Human Rights indicated that the protection afforded by Article 8 does not depend on the existence of formal legal ties between the parties involved.

The wider definition given to the term “family” by the European Convention on Human Rights can be gleaned from the jurisprudence of the European Court of Human Rights. There are several cases on this point I refer, for example, to the case of Berrehab v. the Netherlands, where the court held that the traditional family relationship between a divorced man and his marital child did not cease to exist on the separation or divorce of the parents. In Kroom v. the Netherlands, a case cited in our submission, the court again stated that the relationship between a man and a child conceived during an extramarital affair, which amounted to a long-term relationship wherein the parties had four children by the time of the application, constituted a family within the meaning of Article 8 of the European Convention of Human Rights. In Boyle v. the UK in 1995, family life was held to exist between an uncle and a nephew and in Boghenami v. France in 1996, family was held to exist where the father could show a close relationship to the child.

Keegan v. Ireland brings into sharp relief the inadequacies of Irish law in dealing with the rights of the non-marital family. Mr. Keegan was involved in a stable relationship for two years but shortly after birth his child was placed for adoption. He had no rights under Irish law to challenge the decision to place his child for adoption, either before the Adoption Board or before the courts. His only rights accrued when the scales concerning the child’s welfare tilted inevitably in favour of the prospective adopters.

If we look at the approach of the convention, family life under the convention constitutes not only relations between parents and their children but also extends to grandparents and grandchildren. For other relationships, it is a question of fact and degree. Under the convention, for example, family life has been held to exist between a foster parent and foster child, although the court has noted that the content of family life may depend on the nature of the fostering arrangement.

The wider definition given to the term “family” by the European Convention of Human Rights is in stark contrast to the narrow definition given within our own statutory framework. We believe the time is ripe to place the child at the centre of the Constitution and not, as such, to change our domestic law. Without a fundamental overhaul of the constitutional position, however, the rights of children in this country will never be truly recognised, nor will Ireland be in a position to honour standards under international instruments.

We need to depart from the current system of family law which is based on substance. We want to move to a new position. At present, family law is based on the form of the relationship. Let us hope that the review by the committee will provide the impetus for the new approach to family law to which I refer.

The committee would also like to underline the importance of family support. A more tangible link between the courts system and support services should also be developed. As this occurs in New Zealand, there is a comprehensive model. There are also difficulties in the system. The problem of structural marginality in the system is currently manifested by a divided family law system accountable to different Ministers. On the issues relating to Article 41.2, the society is of the view that there is no justification for discriminating between life within the home and outside the home. The society’s preference would be that the section concerned should be deleted.

The society has a number of concerns about the operation of family law within this jurisdiction and feels perhaps that this is an opportunity to highlight those, particularly in the context of nullity of marriage which is becoming an increasingly fraught problem. Divorce dissolves an existing and valid marriage. When a court declares a marriage null and void, it is declaring the parties were never legally married and are free to remarry. While a divorce leaves the couple free to remarry, the previous marriage is not legally erased. There are continuing financial and other obligations. No such obligations arise in the context of nullity.

If we examine what has happened since the introduction of divorce in Ireland, nullity figures have not decreased. The reasons are worrying. The society has made a substantive recommendation on the law of nullity of marriage. Nullity figures increased from 53 to 70 during 1997-98 when divorce was introduced in this jurisdiction. We believe the reasons for this are the continuing financial and other obligations that emanate from divorce. Limited financial and other forms of relief should also be available in the context of nullity applications.

There are two grounds for nullity, void and voidable. In the context of the void grounds, there are three sub-grounds: lack of capacity; lack of consent and failure to comply with formalities. The society believes these are adequate to deal with the situations that arise. Its recommendation is to remove the voidable grounds which are a relic of our medieval past. The first of these is impotence where the party is unable at the time of the marriage bond to consummate the marriage due to physical or psychological impotence. This is not concerned with the capacity to procreate. It is a relic of our medieval past where the first act of sexual intercourse marked the wife as the property of her husband. We believe this has no place in modern family law.

A second more worrying ground is the inability to enter and sustain a normal marital relationship. This is a recent innovation and largely homespun, with nebulous origins. It was unheard of when the ecclesiastical courts transferred all jurisdiction to the High Court in 1870. At first it was very narrow in that it was confined to a recognised psychiatric disease or disability. Since the late 1980s, the Supreme Court has stated strict proof of mental illness is not required. This has led to an increase in applications in what is probably a substantive marriage breakdown ground. This may be unconstitutional and usurp the legislative function of the Oireachtas.

The society is calling for the introduction of a type of clean break divorce which might address this issue. It would also like to highlight difficulties in the area of foreign divorce. The recognition of foreign divorce decrees in this jurisdiction is in a state of disarray and confusion. The society would like to highlight the difficulties encountered by several individuals. There are now three regimes within this jurisdiction which are incoherent. Therefore, the society urges movement in this area.

On recent developments, particularly in the area of adoption, the society urges as a matter of urgency the ratification of the 1993 Hague Convention. In the light of recent events, it illustrates the importance of its ratification. I am conscious of the fact that legislation may be introduced later. The society urges considerable speed in ratification of this instrument.

Children are caught in the crossfire of a relationship breakdown. One Supreme Court judge referred to children in this predicament as being the children of Armageddon. There is one key statutory provision. Section 28 of the Guardianship of Infants Act 1964 provides for the appointment of a guardian ad litem in high conflict judicial separation and divorce cases but this is one of two sections of the Children Act 1997 which are not yet in force. This provision should be introduced without delay.

Deputy P. Power: I welcome the representatives of the Law Society and thank them for their submission. I have a couple of questions which arise from it.

The thrust of the submission is that there is a proposal, as yet unspecified, to place the child at the centre of the Constitution. While it would be difficult to argue against this, the need for it has not been backed up definitively. Article 40 provides for equality for all citizens, whether they are elderly, married, unmarried or children. Other articles of the Constitution provide protection for unborn children. Given the strong equality provisions in the Constitution and the fact that the Supreme Court has consistently backed them up for many decades, why do we need an express provision in regard to children?

If one argues that we must provide specifically for children, many groups advocate special protection for other citizens such as fathers. If such provisions were introduced, would it alter the internal dynamics of families and the rights of individual constituent parts of families, namely, fathers and mothers? In modern Ireland grandparents are an integral part in bringing up children and also have rights. The Constitution provides for equality in this regard. Would Mr. Shannon’s proposals not alter the internal dynamics in favour of the child when a guarantee is already included in the Constitution?

Page 3, paragraph 12, of the submission reads as follows: “There is little doubt that the Irish family law system now requires nothing less than a major overhaul”. It is the first time I have heard this suggestion. In recent weeks I spoke to a number of day-to-day practitioners in the area and they have not suggested that the entire law system requires a major overhaul. What evidence is there to back up the assertion made in the submission?

There is a nebulous proposal that we should put the child at the centre of the Constitution. As the father of two children, I am not anti-children but these words are used a number of times. There is not a specific proposal as to what wording should be included in the Constitution.

Chairman: Perhaps the group will bank the questions asked. This is a constitutional rather than a legislative committee. Therefore, we must ensure we stick to our role. Is there a suggestion that it is inevitable we should hold a constitutional referendum to enhance the role and rights of children in the family? Mr. Shannon referred to the European Convention on Human Rights and the fact that case law to date, particularly that pertaining to the High Court and Supreme Court, has failed to elevate that status. He stated that the Legislature is neglecting the importance of the role of the child.

I gleaned from Mr. Shannon’s submission - he may correct me if I am wrong - that the primacy of the family as we know it, that is, a married couple with children, should be retained in the Constitution and that other relationships, whether they involve a cohabiting couple or possibly a gay or lesbian union, should be recognised but not accorded the same status and thereby be placed on a lower tier.

What precisely did Mr. Shannon mean by suggesting there is no justification for discriminating between life within the home and that outside it? I am not too clear on what he was implying. It is important for the committee to determine whether there should be a referendum on certain issues. It is important that we get our case right because I am of the view that some of the areas which have been alluded to or to which the delegates may allude could be dealt with through legislative change by the Oireachtas.

Senator Dardis: I echo some of the points made. On the European Convention on Human Rights, Mr. Shannon implied that children’s rights remain subordinate to those of parents. If we adopt the constitutional treaty on Europe and incorporate the convention, will that go a long way towards dealing with the issue?

Chairman: Deputy Andrews and Senator Ormonde are waiting to contribute. We will load the delegates heavily with questions. I ask them to respond to the questions that have already been asked and to be as brief as possible in doing so. If other members of the delegation wish to contribute, they are free to do so.

Ms Rosemary Horgan: I practise family law in Cork. I will happily deal with the practitioner question raised by my colleague and will defer to Mr. Shannon on the constitutional question. On the question of constitutional rights, I will simply say that, at present, when one examines the rights of children, one must first ascertain whether the children in question are the children of married or unmarried parents. This is because their rights will depend upon the group into which they fit. There are certain assumptions that flow if they are the children of a married family. There is an assumption that their best interest is to be found within the family. Where there is a dispute between the mother and father and, for example, the State or the Health Service Executive, it is assumed that the welfare of the child is best served in the family context. One notes this frequently in adoption cases.

Where the children are not those of a married family, their rights are different. Given that the position of the mother is acknowledged within the Constitution, an imbalance arises. There are family rights based on the marriage of the mother and father, whose children are within that group, and then there are rights of the mother. I agree that there are also general rights. However, it knocks things off kilter in terms of practice.

Chairman: Is Ms Horgan saying that the imbalance is constitutional, legislative or a mixture of both? It is very strong to state that if one is handling the case of a child in court, one must, under family law, apply different criteria to that child if he or she comes from a relationship other than that of a married couple.

Ms Horgan: Unfortunately, that is the way it is. The best interests of the child are assumed to be found within a married family. One starts off with that assumption in respect of the child of married parents. However, if he or she is not the child of a married family, the best interests of the child are the first matter to be considered. They are the first port of call whereas they are not necessarily the first port of call in the case of a family based on marriage. They are just another aspect to be considered. My colleagues will expand on that.

There is a need for an overhaul in terms of the practise of family law. We do not have family courts. For example, in Dublin, Cork, Limerick and Galway, family law cases are conducted in the District Court on special days such that it almost looks like a family court. Throughout the country, family law cases are still held on part of the day of ordinary hearings and there is certainly a need to overhaul the way such cases are heard. One does not hear a great deal about this because family law cases are held in camera.

There has been a change in this regard recently but there are considerable delays in the system. In a separation or divorce case, for example, or even a custody case between parents in the District Court, it is extremely difficult to obtain a welfare report because of the sections that are not in place. It is difficult to access support services and, therefore, the judges hearing cases do not possess the information which should be before them. Unfortunately, there is a need for an overhaul on a practical level.

Deputy P. Power: In practice, there are obviously different arrangements in courts. Is Ms Horgan referring to a major legislative or constitutional overhaul of the family law system? A raft of legislation was introduced in recent years in respect of children, the family, divorce, etc. Does it need to be overhauled or consolidated in some way?

Ms Horgan: It certainly needs a significant amount of tweaking. There is no question about that. Some aspects of the overhaul would be in respect of the Constitution. I will defer to Mr. Shannon on the constitutional question in respect of the difference between families based on marriage and those not based on marriage.

Mr. Shannon: I made reference to four recent Supreme Court cases. Whatever interpretation one affords to the recent Supreme Court approach regarding children’s rights, one will note that there is a lacuna in regard to the constitutional framework associated with those rights. I can cite one practical example in which I was recently involved.

I was retained as the independent legal adviser to the Department of Health and Children on the adoption consultation process. This issue comes into sharp relief when one considers the issue of adoption. Children in long-term foster care are ineligible for adoption because of the rigours of Article 41 of the Constitution. The article invests inalienable and imprescriptible rights in marital parents and, therefore, even if those parents want to surrender their rights, they are not in a position to do so. Given this constitutional, rather than legal or statutory, impediment, these children are deprived of the opportunity of enjoying the security of a second family. At the time of the divorce referendum, we discussed giving parents a second chance. This is a matter of giving children a second chance to enjoy the security of a stable and loving family. The foregoing is a practical illustration of how children are not protected or how their welfare cannot be secured in the current constitutional framework. Whatever legislative reform we bring about, the ultimate difficulty derives back to the Constitution.

This issue was addressed in the Kilkenny incest investigation report, which is a powerful statement in the context of the need for constitutional change. In this regard, one must also bear in mind the Constitution Review Group’s report of 1996 and, in the context of recent developments, our obligations under international instruments. Collectively, these signpost the clear imperative for constitutional reform, particularly in respect of the rights of the child, in this area.

Our submission is rather modest. We are of the view that the family based on marriage is still the standard setter but we want to make sure everybody within that unit enjoys equal types of protection. If one considers the rights accruing under Articles 40 and 41 of the Constitution, one will note there is a hierarchy of rights. The rights under Article 41 rank higher in that hierarchy and this makes it impossible, in certain cases, for children to enjoy the security of a stable and loving family.

Deputy Andrews: The Law Society presentation seems to concentrate on the recommendation that express rights be granted to children. I would welcome any constitutional change that would guarantee that marital and non-marital children would be treated in the same way for all purposes. The Law Society states this is not possible under the current constitutional framework. It lists cases in which the Supreme Court has stated there are unenumerated rights within the Constitution but that it will not enumerate them because that is the job of the legislators. Since the 1960s, however, it has enumerated rights in other articles of the Constitution, yet it shrinks from doing so in regard to children.

The Law Society recommends that we identify express rights for children. Does it propose that we list all rights that must be expressed for children or are we to say the Constitution acknowledges the rights of children that may be inalienable and imprescriptible etc? What are those rights?

Senator Ormonde: I am delighted to be here to listen to the submissions. The Law Society recommends that more emphasis be placed on family support in the family law system. This is an issue of legislation versus the Constitution. Perhaps we should tidy up the legislation first and see how it works.

The most vulnerable and voiceless group to consider are children. We need to establish whether the Constitution is strong enough to protect their rights. They are voiceless in the broader definition and analysis of the family. This is a question of the machinery that should be introduced to create the necessary links.

Ms Horgan spoke about the family courts. I agree with her that they need to be upgraded and introduced in all areas of the country. Is it premature to talk about amending the Constitution when we should be considering how to use the legislation in place to protect children?

Chairman: Does the Law Society mean legislative reform is fettered unless there is a constitutional amendment, particularly on the issue of children?

Deputy J. Breen: Is the Law Society stating that if divorced persons have not looked after the children of their first marriage, under the Constitution they should not be allowed to enter into a second relationship?

Ms Joan O’Mahony: It is clear from the constitutional amendment on divorce and the ensuing Family Law (Divorce) Act that the Judiciary is obliged to ensure proper financial provision has been made for all dependants of the first marriage before any second marriage can be entered into. No divorce should be granted until proper financial provision has been made.

Deputy J. Breen: Does that happen?

Ms O’Mahony: Yes, it does. Within the parameters of the information available to the court which should include full financial information on the family of origin, the judges decide on the allocation of family assets. This is a difficult issue for the Judiciary because it depends on whether the information provided is correct.

Mr. Shannon: In response to Deputy Andrews, we deliberately decided not to bring forward an amendment to the Constitution covering children’s rights. If he seeks a framework and guidance——

Chairman: It might be dangerous to do so.

Mr. Shannon: Yes. In the context of——

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