Oral Hearings

Family Issues: Presentations.

Thursday, 21 April 2005

The Joint Committee met at 10.30 a.m.

MEMBERS PRESENT:
Deputy B. Andrews,
Deputy P. Power,
Deputy J. Devins,
Senator B. Daly,
Deputy P. McCormack,
Senator J. Dardis,
Deputy P. McHugh,*
Senator M. Finucane,
Deputy A. Ó Snodaigh,*
Senator A. Ormonde,
Deputy J. O’Sullivan,
Senator J. Tuffy.

*In the absence of Deputies J. Breen and A. Morgan, respectively.

DEPUTY D. O’DONOVAN IN THE CHAIR.

Family Issues: Presentations.

Chairman: A schedule for the day’s proceedings has been circulated to members. Is it agreed? Agreed.

Our first group is the Irish Episcopal Conference and Office of Public Affairs for the Archdiocese of Dublin. It is represented by Mrs. Mary Quinn, director of marriage education, ACCORD; Mr. John Farrelly, director of counselling, ACCORD; Fr. Paul Tighe, Office of Public Affairs, Archdiocese of Dublin and Fr. Timothy Bartlett, Office of Public Affairs, Irish Bishops Conference. Before we begin, I must remind visitors that members of this 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 members should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

I now invite our visiting group to make its presentation. The committee has received the group’s submission so rather than rehash that, I suggest the group make a shortened submission of between six and ten minutes. Committee members will then have the opportunity to ask questions.

Mrs. Mary Quinn: Fr. Tighe and Fr. Bartlett were responsible with others, including ACCORD, for researching and co-ordinating our joint submission. Our delegation has been formed around individuals with particular experience in or responsibility for the areas touched on by the review of the constitutional provisions relating to the family and for the formulation of the submission itself. The delegation welcomes this opportunity to discuss and clarify that submission with committee members.

As committee members will have noted, our submission focuses closely on the terms of reference for the constitutional review and does not elaborate on broader issues of social policy relating to marriage and the family. A number of general principles underline the specific points made in the submission. The most notable principle is that it is not the Constitution that creates or defines the family. Rather, in referring to the family based on marriage, the Constitution recognises an institution that is antecedent and superior to all positive law. Similarly, in recognising the family as the natural and fundamental unit of society, the Constitution expresses and affirms what the emerging consensus of research into this area confirms. There is much at stake in the discussion of the relationship between marriage, the family and society.

Stable marriages and families are primary sources of stability, life and love, which constitute a primary vital cell from which the rest of society derives so much of its cohesion and potential success. This principle is recognised in a wide range of national and international instruments. In this context, it is also important to consider the formative and aspirational nature of a constitution. Is is not appropriate for a constitution to seek to shape civil society rather than to follow sociological trends? These trends are sometimes transient and often complex. While they may require adjustment to other forms of legislation and Government policy, they are rarely so comprehensive or sufficiently definable to justify a change to the fundamental values expressed in a constitution. This problem is borne out by the comments of the Constitution Review Group when, having reviewed the provisions relating to family and marriage in many European constitutions, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, it concluded that none of them attempted to produce a definition of family in terms other than one based on marriage.

While we acknowledge that a diversity of forms of relationships now exist, which provide the fundamental human needs of care, intimacy and belongingness to varying degrees, it is also important not to lose sight of the fact that the family based on marriage is still a deeply valued institution in Irish life and, as our experience in ACCORD suggests, an institution increasingly aspired to and sought after. Those aspiring to marriage have a right, amid the many modern pressures on marriage and family life, to support for and protection of this fundamental institution of society. Therefore, we submit that it remains appropriate, necessary and in the objective interests of the common good for the Constitution to continue to guard the institution of the family based on marriage with special care. Such a commitment should not and does not prevent the State from seeking to offer appropriate support to individuals in other forms of family units. Rather, it acknowledges the established and antecedent nature of the particular institution of the family based on marriage.

Chairman: The delegation’s point and case was made very succinctly and clearly. I have a few queries. We know from the last census that there are approximately 80,000 cohabiting couples in Ireland and approximately 150,000 single parent families, 85% of whom are headed by single mothers. There are a growing number of same sex unions. It has been suggested to us in some of the submissions and some of our hearings, that if the constitutional provision relating to the family based on marriage is retained, other types of relationships outside the family based on marriage will be considered to be second-class relationships and those in them will be denied equal rights and fair play. Some groups focused on the rights of the child and stated that a child in any union other than marriage does not have the same status under the Constitution. I would like to refer to the case of Ennis v. Butterly in 1997, where a dispute arose between a cohabiting couple with a child. In that case, Mr. Justice Peter Kelly made a remark to the effect that if he were to recognise their agreement, which was in writing, he would be elevating it to the status of marriage and that he could not do so. Are not relationships outside marriage treated unequally? How should we deal with this? Should we preserve the constitutional protection of the family based on marriage but amend it to allow for other relationships that now exist because irrespective of whether we like it, society has evolved in the past 70 years? In 1937, statistics show that 3% of births were outside marriage, whereas today, the figure is 31.5%. Some people argue that legislation is not sufficient to deal with this social change. Most of the groups that have presented submissions to the committee have produced a range of reasons for changing the Constitution. Among the reasons cited were that children of non-marital relationships are being treated unequally or that other relationships are at a different level from marriage. How can we accommodate other relationships outside marriage, whether they are the result of marital breakdown, or are examples of cohabitation or single mothers?

Fr. Paul Tighe: If one looks at the equality argument, the fact that the Constitution may treat different forms of family units differently is not itself an argument against the constitutional protection afforded to marriage because it was asked whether there are differences that were worth preserving. Our submission works on the basis there is something very particular about the family based on marriage, that it offers particular advantages to the common good and society and that it is worthwhile for a Constitution to celebrate and protect that very distinctive and particular form of family unit. Difficulties will arise if the definition of the family is changed from that based on marriage. We addressed the previous work of the All-Party Constitutional Review Group, which attended to the family. It had——

Chairman: The All-Party Constitutional Review Group is a different body and did excellent work but this is the first time this committee is addressing the issue.

Fr. Tighe: Okay.

Chairman: The review group works independently of the Oireachtas while we are an Oireachtas sub-committee dealing with issues of family and so on for the first time.

Fr. Tighe: The group raised more substantive issues and recognised there would be difficulties in attempting to move away from a definition of the family other than one based on marriage. The group tried to recognise from statistics that there is a changing reality in Irish society and that different forms of family units are continually emerging. The group is attending to a difficult balancing act to which we should also attend.

One wishes to say there is something worthwhile in aspiring to protect the notion of family based on marriage while trying not to make life more difficult for people in other forms of family units. However, changing the constitutional definition runs the risk of removing the special position of the marriage-based family. We are examining the various arguments. I am not aware of the Ennis v. Butterly case or Mr. Justice Peter Kelly’s comments but legislative and judicial provision can support the rights of people in other forms of family units without changing the fundamental aspiration for a marriage-based family as presented in the Constitution.

Chairman: Deputy Peter Kelly will now put some questions to members of the delegation.

Deputy P. Power: Mr. Justice Peter Kelly has been on the Chairman’s mind.

Chairman: I was thinking of the Joint Committee on Communications, Marine and Natural Resources on which my colleague Deputy Peter Kelly sits.

Deputy P. Power: The Chairman is spending too much time at the Four Courts.

Chairman: It is early in the day.

Deputy P. Power: I thank Mrs. Quinn and her group for this clear and concise presentation. On the last page of the submission it is made clear that the State should “guard with special care the institution of the family, based on marriage”. The submission goes on to read: “Such a commitment ought not, nor does it, prevent the State from seeking to offer appropriate support to individuals in other forms of family units.” The Chairman has made reference to these forms. Would our visitors have a difficulty if this support were enshrined in the Constitution or would they only be happy if it were enshrined elsewhere? They have said they do not have a difficulty with this support but do they have a difficulty with inserting it in the Constitution?

Fr. Timothy Bartlett: We have a difficulty getting an agreed definition if one wishes this to be located within the Constitution. There is another difficulty in the nature of a constitution in terms of what it reflects or tries to capture. The Constitution is a working legal document. We suggest that these other forms of relationships and their needs might be addressed more effectively in other forms of policy and legislation rather than in the Constitution since there is the difficulty indicated by the review group about how to define the array of other possible relationships in a way that is appropriate for a constitutional document.

Deputy P. Power: Assuming that a form of words to accommodate this can be produced, do our visitors have a fundamental or practical objection to the recognition of other types of family units in the Constitution?

Fr. Bartlett: A question arises about how to do so, given the particular character of a constitution, without undermining the value captured in the present provisions based on its implications for society, its connection to the common good and so on that have been established by research across the world. Perhaps some of the others wish to speak on this.

Chairman: Following on from this, how does Fr. Bartlett equate or balance the truth that the public narrowly voted in a referendum in favour of divorce approximately ten years ago? Does this constitutional amendment not shatter the pillar of marriage and the notion that marriage is a permanent bed of roses? There is substantial marriage breakdown and the number of divorces has increased significantly between the previous two census years of 1996 and 2002. Has this pivotal position already been rocked to its foundations by the existence of divorce?

Fr. Bartlett: Put simply, no. The people who entered marriages that ended in divorce did so with a sincere desire to have the benefits of marriage, stability and so forth. Those going through marriage difficulties actually benefit from the support expressed in the Constitution for the value of their commitment to this institution. I argue that the opposite is the case. Mr. John Farrelly of ACCORD may wish to speak about this and ACCORD’s experiences in practical terms.

Chairman: I do not wish to hog the meeting and every member wishes to speak but our task is a balancing act. We have been charged with this review of how to accommodate the other families that are not based on marriages. It is an important issue.

Deputy McCormack: The family based on marriage has been the norm for generations in Ireland. An interesting point is made in a suggestion on page 2 of the submission that it is not the Constitution which creates the family or defines it, rather referring to the family based on marriage. Obviously, families based on marriage were the norm when the 1937 Constitution was written. This point has not been raised before.

One must recognise that there have been fundamental changes in the structure of families over the past 20 to 25 years and that other family units have been established. Is the bones of this submission a contention or belief that the needs and rights of other family units or formations can be catered for in legislation rather than a change in the Constitution?

Fr. Tighe: This is our fundamental point. We can cater for other family units through legislation and judicial activism without changing the basic and aspirational understanding of the marriage-based family.

Fr. Bartlett: Beyond this, we argue that legislation may have the flexibility and breadth to adjust over time to the particular forms of relationship and to be more comprehensive given that the agreed difficulty in finding a definition captures the reality as it exists at present.

Deputy McCormack: When the Constitution was written, people were looking back into the past by the space of a generation or as much as 1,000 thousand years when marriage was the norm. However, there has been a greater change in the past 25 years than in the previous 500 in terms of the accepted norms of family formations. Does ACCORD think this necessitates examining the Constitution to address life as it is now, rather than as we would like life to be, or as family formation has been in the last 300 or 400 years?

Fr. Tighe: : One issue that emerges is an understanding of what is the Constitution. Our submission makes the presumption that the Constitution is not just there to regulate what happens. It also holds certain values that we aspire to as a society. The notion of the family based on marriage is something this society should aspire to, and if we encourage people to reach towards that there are benefits for society. This does not downplay all other significant contributions towards caring for children made by people in different units. There are certain supports that are available in the married family that are good for society and for children. The Constitution can aspire towards these.

Mrs. Quinn: The majority of couples still aspire to marriage, and the majority of people get married. From our work in ACCORD that is obvious. Marriage is on the increase. Couples aspiring to marriage look to the Constitution for support in their relationship.

Deputy McCormack: Perhaps if we postponed the review for five to ten years the problem might be solved.

Mr. John Farrelly: We must be careful about portraying people as normal or abnormal. The Irish nation is good-hearted and respectful of everyone’s situation. We must realise that marriage is part of our society. Although there have been changes in 500 years the same unit that held my grandparents and parents holds me and my family. For example, 30,000 people came to ACCORD in the last two years for marriage preparation. ACCORD provided 55,000 hours of counselling in the same period. People may view that as evidence that the institution of marriage is crumbling. I suggest that other factors have an influence, including the balance between work and life.

We did a study of 3,000 of our clients. Half of male respondents worked 46 hours per week and one fifth worked 56 hours. Under the working time legislation the figure should be 48 hours. These people are under pressure. A relatively small proportion of ACCORD clients own their own homes. Clients are under financial duress. Other factors put people under pressure. I am one of those people even though, with the help of the Government and the Family Support Agency, I have set up a service to deal with this. The position of married people has to be recognised and the Constitution supports this. It gives us the energy to have an input in society and to care for our children. I recognise the position of other family units but the position of the married family unit must be recognised in the committee’s deliberations.

Chairman: One of the concerns put to us was that because the Constitution is firmly focused on the family based on marriage other forms of family units are discriminated against. This has been reflected in High Court and Supreme Court judgments, including the Kilkenny incest case.

Deputy Andrews: For the past few days I have thought about whether the Constitution is an aspirational document or an expression of existing values. There are many practical aspects to it dealing with the Comptroller and Auditor General and the colour of the flag. It is very detailed and much longer than most other constitutions. I do not accept that it is an aspirational document.

All children should be treated equally, but courts are treating children from married families and children from non-married families differently. Over the last two days the committee has heard many examples of how this affects children in foster care or children whose parents do not want them to have inoculations. As long as the welfare of the child is of paramount concern the Constitution must treat all children equally whether they are from marital or non-marital families. Does ACCORD think this should be reflected in the Constitution? If so, does this not undermine the special position of marriage? On page five ACCORD makes the point that if all families are treated equally, as suggested by the submission of the review group, there is no point in protecting marriage. If all children are to be treated equally I do not see why it would be necessary to protect marriage.

Fr. Tighe: I shall respond to the Deputy’s point on aspirations. An aspirational document sets our foundation values and parameters on which the legislature works to implement. The courts have worked on that basis.

Deputy Andrews: The joint submission by the Committee on the Family of the Irish Episcopal Conference and the Office of Public Affairs of the Archdiocese of Dublin quoted the view of Justice Murray that the constitution is a contemporary document. In 1937, the document was contemporary and reflected marriages of the day. At that time many marriages were arranged by matchmakers rather than based on love.

Fr. Tighe: The Constitution is making a statement about a notion of the family based on marriage. This is not a statement on the reality in 1937. It is about an institution across many societies and religions from an early time in history. People find great sustenance and support in the institution of marriage. It offers great support to children and to individuals. In underlining the value of the family the Constitution sends an important signal to policymakers, legislators and the Judiciary in interpreting the detailed provisions that follow from it.

Fr. Bartlett: Our submission states that it is deeply desirable that the Constitution afford legal protection to the rights of children. We must balance the autonomy of the family unit and the rights of the child. Is that best achieved by constitutional amendment, by judicial assessment of legislation, or other forms of legislation? A definitive legal opinion would be interesting. In our submission we quote the judgment of Mr. Justice Finlay Geoghegan in F.N v. C.O., a case from March 2004 which followed from a judgment by Mr. Justice Ellis, which suggests that the primacy of the rights of the child can be afforded by the courts based on their current understanding of the constitutional provision. The children’s ombudsman adopts a firmer position but also acknowledges that the courts should be able to apply the determination of the primacy of the rights of the child from existing legislation and the Constitution. While we are open on this, many nuances surround the possibility of including it in the Constitution.

Deputy O’Sullivan: I welcome the delegation. Deputy Andrews identified the issue for us as being whether we view the Constitution as a set of values to which we aspire or as an overarching protective human rights document for all people when we make decisions. Fr. Bartlett stated that we need to keep the protection of marriage as it is in the Constitution but all of the changes outlined by the Chairman have happened despite the fact that the Constitution is as it is. Is the Constitution doing what the delegation wants it to do and, if not, does this suggest it is an aspirational document that gives succour to marriage?

Many groups have come before this committee and put it to us that we should propose to change the Constitution to protect the different types of relationships we now have in society. Tomorrow we will hear from a group of gay Catholics. Although we have not heard the group yet I wish to put one or two questions that would be of concern to people who are Catholic and also gay. Is there any evidence to suggest that gay unions undermine marriage? What level of dialogue is there within the Catholic church with people who proclaim themselves to be both Catholic and homosexual? I know this is an area we have not touched on to date nor was it in the delegation’s presentation but it is an area that other groups have raised and I would be interested in the delegation’s response.

Senator Ormonde: I thank the delegation for its thoughtful submission; perhaps the delegation should return when we have time to think more deeply on these papers. Listening to the debate phrases such as “marriage is an institution” and “a family based on marriage is the one to which we should aspire” come to mind. How do we achieve the common good to reflect new diverse units in society today? That is the position we are now in. Throughout the week I have been concerned that we would dilute the Constitution, but can we protect the welfare of the child without amending it? That is the dilemma. Knowing the Constitution has served us well in protecting society, if I thought we could do so through legislation, without affecting the fabric of society, I would promote the use of legislation in this case. I doubt that is possible in light of the existence of diverse units. I wish to hear Fr. Bartlett’s comments on how we could reflect this in present day terms.

Fr. Bartlett: I am anxious to point out that we are not merely stating that marriage is an institution per se. We also state that objective research throughout the world shows that a family based on marriage between biological parents provides certain benefits for society. We also make the point that it is not just an aspirational institution for a certain value system, but has verifiable benefits for society. That is our concern in promoting and defending its protection and privilege in the Constitution.

The difficulty is how to define the family in any other comprehensive way to take account of the complexity and fluidity of social circumstances. It is important to note that we are also anxious that others outside that framework would receive rights, protections, care and support in an appropriate manner. The fundamental issue is whether the Constitution is the most effective or most appropriate place to do that.

Chairman: Would the delegates also respond to Deputy O’Sullivan’s questions?

Fr. Tighe: Deputy O’Sullivan raised a number of issues, including the notion that the Constitution is an overarching protective framework for human rights. We argue that strong families based on marriage safeguard human rights in particular ways and so are worth protecting.

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