Oral Hearings

Family Issues: Presentations.

Friday, 22 April 2005

The Joint Committee met at 10.30 a.m.

MEMBERS PRESENT:
Deputy B. Andrews,
Deputy J. O’Sullivan,
Deputy J. Devins
Senator J. Dardis,
Deputy C. Murphy,*
Senator G. Feeney,+
Deputy N. O’Keeffe,*
Senator T. Leyden,*
Senator A. Ormonde.

*In the absence of Deputies J. Breen and P. Power and Senator B. Daly, respectively.

+In the absence of Senator T. Leyden for part of meeting.

DEPUTY D. O’DONOVAN IN THE CHAIR.

The joint committee met in private session until 10.40 a.m.

Family Issues: Presentations.

Chairman: 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 or in such a way as to make him or her identifiable.

The committee has already received the group’s presentation. We ask that in a period of perhaps six or eight minutes you give a synopsis of the submission highlighting the group’s main purpose and observations on this constitutional matter, and then a question and answer session will follow.

Ms Maura Murray: I thank the committee for affording us this hearing. AIM has adopted the UN definition of the family, of which I am sure the committee will be aware, because the diversity of family forms and relationships should be recognised. As presently interpreted, the rights protected against external forces by the Constitution are those of the family unit, not of the individual members within that unit. This can leave individuals unprotected in certain circumstances, where their detriment comes from within the unit. We believe that the rights of individuals within the family should be recognised. By adopting the United Nations definition of the family, we feel that all families will acquire constitutional protection and that this would have important practical implications in the area of property, for example, maintenance, violence between cohabitees, etc.

The question of gay marriage, which forms part of the submission, is not within our particular area of expertise. However, it is time for a public debate on the issue and for Irish gay people to be consulted on what they want. From our knowledge of the matter, we would be in favour of a system of registration of domestic partnerships, which would confer the rights presently unavailable to same sex and heterosexual cohabiting couples and which could be devised in some way.

Turning to the Constitution’s reference to women’s life within the home, we would contend that this definition of a woman’s role is patriarchal, sexist, outdated and of the time the Constitution was written. It is also at odds with legislation on equality. We feel it is important to give some practical recognition to the caring role in the family, whether it is the male or female parent.

AIM believes the natural father should have automatic rights to guardianship. The Keegan case is a precedent for this as well as various Acts. The right to guardianship should be rescinded where a father fails to live up to his duty to contribute to the material and other welfare of the child, or where the child has been the victim of rape by the father. The latter is a very difficult issue to legislate for but automatic guardianship in this circumstance would seem problematic. As a child has the right to the society of its parents, we believe the issue of custody is separate and could be determined by the circumstances of the case for what is in the child’s best interest.

There is already a precedent for the alienation of parental rights of unmarried mothers, enumerated by Chief Justice O’Higgins and quoted in the submission. The granting of rights which can subsequently be taken away in certain circumstances would appear to be already a possibility. Whether the rights of the natural mother should have express constitutional protection, it is already contained in the O’Higgins judgment, inferred from Article 40.3.1°, providing that the mother’s natural right for the custody of her child is protected. We also feel it could be made specific and subject to the same set of conditions as would apply for unmarried fathers. It might be appropriate in certain circumstances to withdraw that right, but always with the child’s best interests as paramount.

Serious issues need to be addressed with regard to the UN Convention on the Rights of the Child. These include the right of the child to representation and to be heard in legal proceedings affecting the child, particularly in matrimonial disputes between parents. Another issue involves the words “inalienable” and “imprescriptible” which endorse the primacy of the unit, sometimes to the detriment of the individuals in the family. In its observations of Ireland’s implementation of the UN Convention on the Rights of the Child, the UN committee on children recommended the child should be considered to be a full subject of rights. The committee on the Kilkenny incest case made the similar recommendation that a statement of the constitutional rights of children should be introduced, stating children will be fully protected and enumerated within the Constitution. AIM family services endorses these views. We propose these to the committee for inclusion in its considerations.

Chairman: I have some questions on this succinct submission. WITH, Women Within the Home, attended the committee yesterday and stated it represented over 500,000 women working in the home as carers, parents and so on. While fewer men are involved in the home full time, the group was of the view that the constitutional protection of the woman within the home must be retained. If it were to be changed, it should be skewed slightly to include men. What is AIM’s view on this?

AIM believes that the inalienable and imprescriptible rights of the family under Article 41.1 should be amended. The Adoption Board suggested a similar amendment because there are approximately 2,000 children in foster care, many for five to ten years. Due to this constitutional provision, these children cannot be legally adopted which causes great problems.

AIM is putting great emphasis on the rights of the child. Some groups have suggested in their submissions that the Constitution should be framed in such a way to put the child as the central figure in whatever unit of family, be it a conventional one based on marriage, a one-parent family, a co-habiting couple or whatever other formation. All rights would revolve around the rights of the child as the central axis. What are AIM’s views on this?

Ms Murray: Other people will have views on these matters. Our objection to the issue of women in the home is that a woman’s role is solely defined as being in the home. It has not conferred any great economic rights on women and in the past they have suffered as a result, namely through marriage bans. We feel the caring role must be emphasised for whoever is caring, as increasingly men are carers in the home. The provision has had no practical application in the lives of women in all the time it has been in the Constitution. It might have been a provision that could have been challenged where women, who it states should not be forced by economic circumstances to work, had to enter the workforce. However, they have been forced to go out to work and no one has done anything about it.

Chairman: More so in the past 30 years.

Ms Murray: Absolutely.

Chairman: The interesting point made in that regard is that by right, if the Exchequer or the Minister for Finance of the day were more flaithiúl, there would be more support for it. One group made the point that it is eight times more costly to the State to care for an elderly person in a nursing home on a permanent basis than the equivalent amount being given to allow an individual to be cared for at home. The system does not make financial sense.

Ms Murray: The Chairman makes a good point.

On the other hand, the provision defines women as carers. Is there any reason, if the financial incentives were in place, men cannot fulfil that role? In many cases, men do care for their elderly parents although I accept they are not in the majority. However, will the poor man who is caring not receive anything while a woman, by virtue of being a woman, will? What if a couple’s children have grown up, and a woman is at home minding her husband? Is that the same as if she is looking after children? Will a woman’s role be defined as the minder or carer of another person who does not require care?

This is applied to all women because of its wording. Some modification of this wording is required to recognise that men are capable of caring. Women’s sole role in the world is not as carers, which idea seems to emanate from the Constitution.

Ms Deirdre McDevitt: I want to emphasise that the woman’s role is not confined to the home. With the increases in the cost of housing, women have no choice but to enter the workforce.

Deputy Andrews: I apologise for having missed the beginning of the presentation. AIM claims that the natural father should, in equity, have automatic rights to guardianship of his child, which is fine. What is AIM’s experience of restrictions of fathers’ rights to access?

That is one of the most important issues. Custody is a bigger mountain to climb but access is an easier issue to solve. Is there something in the Constitution which prevents the District Court judge from granting an access order to a father? My impression is that District Court judges simply are not disposed to do it, but they have the power. Perhaps it is something in our culture.

Ms McDevitt: I think it has changed slightly in that I understand the courts are giving greater access. Our experience in AIM would be that if a young man of 16 or 17 is the father, very often it is his mother who takes the child. More men are going to the courts seeking access, from the age of 16 upwards.

Deputy Andrews: Is there anything in the Constitution?

Ms McDevitt: There is not anything in the Constitution. It is based on whatever is presented to the judge. That is why we have slight reservations about giving automatic rights in that area to the father. Just as mothers are unable to look after children, fathers also are unable to do so. It should be decided totally in the best interests of the child.

Deputy Andrews: Are you happy with the status quo in relation to access and the rights of fathers? Would you think that District Court judges need to be more fully briefed?

Ms McDevitt: There should be more parenting programmes. Young fathers - not married fathers who separate - should be made more aware of their responsibilities in caring for a child.

The original question was about automatic guardianship. Guardianship is quite a different concept and a much more difficult one. Married parents are automatically guardians of their children. In fairness and equity, why does an unmarried father of whatever age not have an automatic right? I fully appreciate all the difficulties of conferring that right automatically because it has certain knock-on effects on his partner, who may no longer be his partner and want to leave the country or do various things. She would have to go to court to get permission to do that, should the father object. That is a separate issue from custody.

In my experience as a family mediator and having come across unmarried parents who come to mediation to try to sort out access but very often have another agenda as well, the fact that the father does not have automatic guardianship and will not perhaps at this point have applied for it creates a huge imbalance in bargaining power. I have personal experience of that. Families combine behind the parents of the child. We can all understand the situation where a daughter has a baby and her family do not want anything to do with the father of the child. They are perfectly willing to look after the child and so on.

I have experience of some very sad situations involving young men who could not see their children. These were people who would have had relationships with their children to a point. You cannot make law on the basis of one case, but one particularly tragic case involved a young man whose child was two years old. He had supported the child and so on. One day he came home and found that his partner had left the house and given the child up for adoption. She had put the child into care and he had not been consulted. He could not get any information. This happened perhaps ten years ago but it is an extreme example of what could happen. My experience would be relatively small and I do not know how often this would be repeated in society. The fact is that it can happen. The social services were not obliged to consult the father and accepted the girl’s word that it was OK to do this.

We have to be careful in finding a balance and prevent people mischievously exercising the rights of guardianship because they want to get at somebody. A child in any circumstances has the right to know its parents unless there is some over-riding reason that it should not. If we centre it on the child rather than the parent, which is what the law currently purports to do, then the best interests of the child will determine how it should go.

Because of the in camera rule it is difficult to know what happens in the family courts. Everyone speaks from their own particular experience, which may not reflect the wider situation.

Senator Dardis: I thank AIM for attending and making a presentation. It has been a fairly regular feature of most of the groups coming before the committee that they want to put the child centrally into the Constitution. The Chairman has referred to that. There are two ways of doing it. One is to enunciate a general principle as to the rights of the child; the other is to enumerate the rights. I would be interested to know whether you would favour enumerating them. The issue here is the extent to which we put things in legislation, keeping the Constitution very simple. The alternative is to expand the Constitution. We have some unhappy experience of trying to legislate through the Constitution.

A recurring theme is extending the definition of the family, the question of single parent families and homosexual-lesbian relationships. There has been some difference between the groups that would represent those interests in terms of one group wanting marriage and the other group wanting civil partnership. I would be interested to know from your experience which you think would be the preferred route. You referred to Spain and the major decision yesterday. That can be done by legislation, provided the Constitution allows it to happen.

Ms McDevitt: We are not experts in what the gay community want and therefore we feel that they should be consulted about that. Some gay people whom I know - one cannot change the Constitution on the basis of that sort of sample - would be more interested in civil partnership, from which the rights they want to acquire would flow, rather than a marriage ceremony in the register office.

Senator Dardis: Are there powers to extend the right to adoption to single sex partnerships?

Ms McDevitt: If the rights of the child are at the centre, my personal view, which probably does not count, is that given the right circumstances I would not see an objection, but I would not be speaking for the AIM group on that score. It is a matter we really have not debated. Broadly speaking, we do not see why people should be discriminated against on the grounds of sexual orientation. They are not discriminated against in other areas of life where there is specific legislation protecting their rights to equality of treatment and so on. If you extend that, you have to have some kind of arrangement whereby a committed relationship would have to be registered in some way as a public act, from which rights and responsibilities would flow.

Senator Dardis: I asked a question on the enumeration of children’s rights.

Ms McDevitt: I would concur that the less enumeration the better, but the child should in some way be guaranteed as an individual and would have rights under the Constitution. It would be for people with greater expertise than ours to draw out from that what exactly those rights might be. The wording would require expertise.

Deputy O’Sullivan: I welcome the group. Some of the issues I wished to raise have already been discussed. I refer to the matter raised by Deputy Barry Andrews on the interaction of the rights of fathers and the rights of the child. Yesterday, I put a question to the Irish Council for Civil Liberties regarding the rights of the biological father to some form of social involvement with the child and how these should be guaranteed. The ICCL’s view was that one could protect the child by giving rights to the father provided one balanced these by giving rights to the child. In other words, one could protect children from mischief or other negative involvement by the natural father by concentrating on incorporating the UN convention on the child and giving general rights to children.

I am interested in pursuing this matter because it is one of the difficult issues the joint committee must address. We must try to find an appropriate form of words. Many genuine fathers who want to be involved with their children experience difficulty. At the same time, a small number of fathers would abuse their position because of difficulties they have with the mother of the child. Will AIM expand on how the joint committee could address this difficult balancing act?

Ms Murray: This could be done if the father showed a willingness to take responsibility for the child for more than just a day or a week. He must contribute significantly to the financial cost of rearing a child. In our experience - literature is available to support this contention - fathers either fail to do this, provide a minimum amount or are only willing to contribute a sum equivalent to what is given in the single parent’s allowance for the support of a child. This is one way in which a father could show he is serious about parenting.

I am not sure abuse of children in such circumstances is a significant problem. It is probably more a problem for the mother than it is for the child. This is perhaps where the difficulty lies because it is difficult to have a life with another person, for example, if one marries another partner, if an outside person is coming in and out of the relationship. If the father has guardianship, a restriction is imposed on the right to remove the child from the society of the father, with a possibility of court proceedings. While there is no doubt this is a fraught area, ultimately, a child has a right to know its parents. It is probably for the legislators to devise——

Deputy O’Sullivan: Rather than inserting a detailed provision in the Constitution, would it be preferable to issue a general statement on rights?

Ms Murray: I do not know how one would legislate for a child’s right to see each of its parents.

Ms McDevitt: I concur with the position taken in the UN Convention on the Rights of the Child which does not make a distinction between the family life of a marital and non-marital family.

Deputy Devins: I welcome the delegation. Before I address the thrust of its presentation, I ask AIM to explain the statement in its written submission: “As a child has the right to sobriety of both its parents, removal of guardianship rights should not preclude rights to access being granted by the courts where such a course is in the child’s best interest.”

Ms Murray: The word should be “society” rather than “sobriety.”

Deputy Devins: AIM cited a sad case of a natural father who arrived home to find that a child had been given up for adoption. In my experience, this would not happen because most family courts would insist on consultation with a natural father, where available, before taking any such action.

Ms Murray: In the case in question, the mother of the child stated there was no natural father and the issue was not followed up.

Deputy Devins: From my recent experience, I am certain this would not happen. The social workers involved would be prepared to make a case on the father’s behalf.

To come to the nub of the question, when asked whether the rights of the child should be given an expanded constitutional protection, the delegation quickly answered “Yes”. Does AIM want a constitutional amendment to protect the rights of children or can this be done through legislation?

Ms Murray: The rights of the child need constitutional protection which would entail inserting a statement of some kind in the Constitution to give the child the right, as an individual, to the protection of the State and so forth. In terms of its legal interpretation, there must be recourse to the Supreme Court on constitutional grounds if the child is denied some right.

Deputy Devins: AIM is firmly indicating that we need a constitutional amendment rather than pursuing the matter through legislation.

Ms Murray: Yes, that is a fair description of our position.

Deputy C. Murphy: I welcome the delegation. This is the first time I have attended a meeting of an Oireachtas committee as an elected Deputy. As such, AIM is the first group I have an opportunity to question. I have some knowledge of the organisation, having been party to the Commission on the Family on which AIM was represented. The commission opted to take a strong position on the caring role in terms of the definition of the family as opposed to adopting the strict definition which featured in the Constitution until then. If the UN definition, for example, was to be included in the Constitution, what effect would it have in practical terms? What kind of change would it make? I am aware this is a broad question. Would AIM expect things to be done differently as a consequence of such a change?

I agree with views expressed in the section of the presentation concerning women. The current position is inappropriate and does not afford any protection. We need only consider the economic reality women, particularly those parenting at home, must face in terms of significant levels of poverty and so forth. Is it possible that a UN definition of the family would provide greater protection? Does AIM have expectations in this regard?

Ms Murray: To compare the position of a cohabiting couple and a married couple, we recognise only one family type, namely, the married couple and do not afford the same protections to cohabiting couples. This has serious implications in the area of poverty, for example, because a person who has contributed to the purchase of a house or other item remains the owner in the case of a cohabiting couple.

In the case of a married couple, however, a presumption of trust prevails. I am sure there are lawyers present who can correct me on the terminology I use but there is a notion of resulting trust, which means, for instance, that if a husband pays for something, it is assumed he is making a gift of it to his wife and, as a result, it belongs to her. On the other hand, no presumption of ownership applies when a person who is not a husband gives a gift. For this reason, special measures are required to protect interest in property.

We have had cases of women who cohabited in a relationship which produced children for a number of years and found that once the relationship ended they have no rights to anything. On a given day, a judge in court may award the person some compensation but they do not have a legal right to it. This is one of the differences between a family in which the parents are married and one in which they are unmarried. The United Nations definition would encompass all families and everyone would have equal rights. Situations also arise if there is violence in a relationship. The person who owns the house cannot have a barring order granted against them by the person who is the victim of the violence because they are not a married couple.

There are various pieces of legislation and then there is the whole tax question, social welfare and so forth. A woman who cohabits with a man is deemed ineligible for any kind of social welfare, yet a man who is supporting a woman who is not his wife cannot claim a tax allowance for that person, so they are penalised in various ways. By broadening the definition of family the entitlements would be there. I am sure there are lots of other cases as well, if we had time to discuss them.

Chairman: We are running out of time. I thank you very much for your submission which we will obviously take into consideration when making our deliberations and preparing our report. I will now suspend the sitting to allow the next group to come in.

Sitting suspended at 11.10 a.m. and resumed at 11.20 a.m.

Chairman: We will now hear from Parental Equality which represents families and fathers. The delegation comprises Mr. Paul Coleman, Mr. Liam Ó Gógáin, Mr. Jason Soracháin and Mr. Dominic McKevitt. Because of the fact that there are overlapping groups, we have agreed amicably with them that they will outline their aims in five or six minutes and that we will invite them back. If we cannot fit them in next week we will give them a slot in the second week of May. Instead of having seven groups today, which was on my schedule, eight turned up. I will give the group a few minutes to outline its case and we will certainly let its members attend again on a later occasion. The delegation has also provided tapes for members which will be circulated.

Mr. Liam Ó Gógáin: I am the chairperson of Parental Equality and would like to read the group’s mission statement, originally written in 1996. It states:

Our mission is to seek, both through our own activities and our involvement with the education of our future generation of parents, to play a proactive role in creating a culture of shared family responsibilities, enabling women and men equally to realise their optimum potential in their family lives and careers. In recognition of the UN Convention on the Rights of the Child, Parental Equality aims to achieve parity of esteem for all members of the family. In furtherance of this goal, Parental Equality undertakes to support, promote and encourage, with due respect for the freedom of the individual, increased participation for men as carers in the family system, and opportunities for women to open up their traditional domain as child carers.

It is with that mission in mind that we responded to the public call for submissions by the All-Party Oireachtas Committee on the Constitution. We felt that the document which sought submissions and set out the general terms was quite limiting in a sense, and certain aspects of it did not attract our attention. We set aside time to prepare a submission which would effectively sell our outlook, which aligns with our mission statement. In doing so, mindful of the Celtic tiger era in which we live and the repeated statements by Ministers and Departments of an expressed intention to move towards e-government, we prepared our submission in an audio format which was e-mailed to the committee as a streaming audio download from the Internet.

My understanding is that committee members have not had the opportunity to consider the audio contents of our submission through the Internet. We have therefore provided a personalised audio CD for each committee member and we request members to listen to the information on any device which plays audio CDs, in-car or otherwise. We ask members to reflect on our submission. We could then, perhaps, meet again and have a more effective communication.

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