Oral Hearings

Family Issues: Presentations.

Ms Doherty: Certainly, more than 4,000 complaints are received. Most complaints are made by parents and tend to be very complex queries about the operation of the law within itself. The Senator asked what was the practical difference for children whose parents were not married to each other. They do not have a right to a relationship or interaction with their fathers. There is a great deal of misinformation in circulation and unmarried fathers assume that because their names are on birth certificates they have the same rights as married ones, which is not the case. We would like to see this inequity addressed to ensure that children are treated equally by providing unmarried fathers with guardianship rights. All fathers should have the same access to rights.

Chairman: Another practical difficulty arises under section 111 of the Succession Act which provides for the moral right of inheritance of a child. If a child cannot get access to his or her natural father, he or she will be deprived.

Deputy O’Sullivan: I am interested in pursuing issues similar to those raised by Senator Daly on the practical results of the inclusion in the Constitution of the right of a child to a relationship with both parents. In the course of their work, public representatives encounter cases in which parents of children live in separate accommodation and the father seeks local authority housing on the grounds that he cares for his children at weekends. Such fathers are only allocated one-bedroom accommodation by local authorities which do not allow for the fact that he needs a room for the child or children who come to stay with him. Does TREOIR see that such issues would be affected by a constitutional change?

I am interested in the social welfare code and the circumstances of lone parents. If social welfare officials find that a father has stayed overnight or see male shaving gear in the house of a mother, she will lose her lone-parent status. These are the practical issues which affect a child’s right to be parented by both parents.

Ms Doherty: Absolutely. We must promote the involvement of both parents in their children’s lives in whatever way possible. If the requirement is the provision of two more substantial houses, we must accept it. Hopefully, the longitudinal research study of children being initiated by the National Children’s Office will reveal how long or short term tend to be the periods in which children are in families in which there is one resident and one non-resident parent. It may be the case that such circumstances are transitional. As people change and move on, we do not know how long such periods last.

Senator Ormonde: I welcome this discussion which is providing us with much information on which we can reflect. The statistics on changing family structures in Ireland are very useful. As someone with a background in education, I notice a slight swing in the pendulum of younger thinking towards a style of life lived in the past. Should there be changes in the Constitution, or should we consider legislative provisions to protect the rights and welfare of children? While we must do everything we can for cohabiting as well as married couples and their children, I ask if that can be done through legislation rather than by amending the Constitution given that, as I maintain, attitudes will change again over the next 20 years. We may end up back here in 20 years to review the Constitution again. I am not sure, and in this regard I play the Devil’s advocate. I would like to hear the delegates’ comments.

Chairman: Senator Ormonde has raised a number of times the issues of interfering with or diluting the Constitution too much. The difficulty, which was raised yesterday and does not only relate to children, is that the courts have in the last decade in landmark decisions stated that as cohabiting couples are unmarried, they do not have rights under the Constitution. If the Government attempts to legislate, it will be challenged and, in the current climate, a court may deem the Constitution to prohibit it from acknowledging or allowing the legislation. It is a catch-22 situation and I would like to hear the views of the delegates on it.

Ms McDonnell: The Chairman is referring to Ennis v. Butterly.

Chairman: Yes.

Ms McDonnell: There is definitely confusion about how the courts would or would not interpret legislation. We feel, therefore, that the best way to address the confusion is to provide constitutional protection to all family forms as we suggested based on the “family tie” approach. Such protection would mean that our social and other policy aims would be permissible under the Constitution at the very least. While it would remain the prerogative of the courts to decide the parameters of how to interpret the change, there would at least be no constitutional barrier to addressing those social policy aims.

Senator Ormonde asked if it was necessary to change the Constitution at all, but there is a lack of clarity on the issue. Some people believe it can be interpreted that the article in question does not refer to the family as based on marriage. The problem is that it is quite clear that the Constitution defines the family on the basis of marriage. We suggest the same level of respect and protection should be provided to all families rather than to marital families only. The process is not about taking rights away from marital families but about giving the possibility to enjoy rights to other families. The rights of cohabitees should also be addressed in this context. If one is to change the Constitution to provide rights to families, why not ensure that barriers no longer exist?

Deputy Morgan: One assumes that the TREOIR view is that it cannot be done without changing the Constitution. Deputy O’Sullivan asked about socio-economic issues. I was not quite clear from the answer if TREOIR is strongly of the view that socio-economic rights should be enshrined also.

Ms McDonnell: We have seen other submissions which address socio-economic rights in a way which we have not. It is something we support, but we did not look into the matter in great detail. Deputy O’Sullivan asked about the social welfare code and housing. It is unclear that if one enumerates children’s rights of access to their parents in the way we suggest, socio-economic rights will accrue. Other people with an interest in law might take a different view. While it is not clear that local authorities would have to pay more attention to fathers and their living arrangements from the change we suggest, if provisions were copper-fastened with a further constitutional article on socio-economic rights for children, the courts could interpret the Constitution in that light.

We see in the information centre every day problems with the social welfare code as it relates to cohabitees. Questions arise if certain shoes are under a bed or a shirt is in a house, which is an unacceptable way to approach family policy. We have maintained in our social policy submissions for a long time the need to establish a minimum income for all families and consider the working poor in the context of legal issues. I am not sure how rights could be made to accrue through the Constitution. Is that a little clearer?

Senator Daly: Yesterday, we received an indication from the ISPCC that the poverty gap for children was broadening and their circumstances deteriorating. In light of TREOIR’s information on child poverty, homelessness, begging and crime, how does it consider these issues can be addressed on the ground? Can they be addressed?

Ms McDonnell: How long is a piece of string? I imagine they can. Due to the difference between the rights of the health service and parental rights, which are focused on in the Constitution, child care cases arise in courts in which children’s rights, including socio-economic rights are not honoured in the way they should be. Again, it is difficult in practical terms because, as we stated, the Constitution is the broad framework within which we legislate and work. If, however, it gives children rights which are paramount and independent of those of their parents, this will filter down and have a major effect on social work practices and traditions as well as on the way in which the courts can give effect to children’s rights. How many times have we heard a judge, specifically Mrs. Justice McGuinness, state he or she would like to give children’s interests priority but that his or her hands are tied by the Constitution?

Deputy McCormack: Treoir’s statement that marriage is no longer the primary or dominant gateway to family formation does not stand up. If 31% of children are born outside marriage, the other 69% must be born inside marriage or am I missing something?

Ms McDonnell: No, the Deputy is correct. The key, however, is that marriage is not the dominant gateway to family formation. We point to the fact that marriage is not automatically the way to enter the family unit.

Deputy McCormack: When these statistics are thrown around, they are often repeated in the media and elsewhere. We should not lose sight of the fact that marriage is still the primary means of family formation, irrespective of the changes that have taken place in recent years. While I accept there are all types of families, it is clear married couples still constitute the dominant family type.

Chairman: While the Deputy point is factually correct, in fairness to the representatives of Treoir, they have pointed out that their remit is primarily to represent families which are not marriage based. Obviously, therefore, the delegation will argue a case on behalf of those it represents to the best of its ability.

Ms Craig: Ms McDonnell has repeatedly made the point that we are not arguing for rights for unmarried parents over and above those of married parents but seeking equal rights.

Deputy McCormack: I question the inclusion in the submission of technically incorrect statements given that they will be repeated elsewhere.

Chairman: I thank the delegation for its interesting and well argued submission. It made its case cogently and fairly. I apologise for allowing the meeting to run a little late but I wanted to give the delegation sufficient time.

The joint committee adjourned at 1.05 p.m. until 10.30 a.m. on Thursday, 21 April 2005.

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