Oral Hearings

Family Issues: Presentations.

[Mr. O’Halloran]

While they may not always involve cohabitation, both traditional and new forms of family involve two parents. It is often the case that the child does not have access to both parents and vice versa. This matter should also be addressed. While a child may receive a good upbringing from one parent, access to both parents presents him or her a better opportunity to develop as a complete person.

On the individual rights of parents, as opposed to the rights of the family as a unit, we believe it important to give protection to the rights of father, mother and child. This should be defined in law, although not necessarily through the Constitution. Mr. John Kelly referred in his book, The Irish Constitution, to the case of Ryan v. the Attorney General, which I attended as a young man. As a baker, I worked at night and this allowed me to listen to cases in the courts. In that case, Judge Kenny remarked critically that not one of the counsel could specifically identify the rights of the family. Rights should be spelt out. There appears to be an omission in the Constitution on this matter. The Constitution should be amended to allow the introduction into law of the United Nations Convention on the Rights of the Child. While this convention was ratified in September 1992, it has not yet been transposed into the Constitution. Until that is done, it cannot become part of domestic legislation.

I wish the committee luck in its work, the outcome of which is important for the development of our society and for families, whether traditional or one parent. We hope that the work of this committee will contribute to the development of the rights of these families.

Ms Sylvia Meehan: I will make some general comments. The relationship between grandparents and children can be extraordinarily valuable to the lives of both parties. While in the normal course of events the involvement of grandparents is acceptable to everybody, problems can arise. Rows between parents may result in a desire to inflict punishment.

In terms of the Convention on the Rights of the Child, it would be useful if children were entitled to have access to their extended families, which include grandparents. When problems arise, people who seek legal redress may find it difficult that the United Nations Convention on the Rights of the Child is not part of domestic law. Marital problems can involve disputes over the allocation of money and funds and may have the consequence of denying a child the interest and love of his or her grandparents. We are all aware of situations where grandparents are distressed because the break-up of an offspring’s marriage threatens the loss of their access to grandchildren. It is a pathetic situation. I do not have the legal skills to advise whether grandparents have greater rights to look after a child than its parents. Without a legal basis for the relationship between grandparents and children, difficult cases will be impossible to solve. These situations should not arise but they do. We have no suggestions on wording but we wish the committee would attend to this matter.

Families different from the traditional version now exist. Children who are born outside of traditional marriages may have a connection to various members of the extended family, including great-aunts, great-uncles and grandfathers. People are not possessive of these labels but heartbreak can be caused. A child is entitled to the love and care of blood relatives. As problems only arise in difficult cases, it is impossible for me to envisage a situation which might fit neatly within a legal framework. I dare say that this committee has access to the legal experts capable of formulating the appropriate provisions. My opinion is not merely based on my feelings but also on knowledge common to many people in Ireland.

Deputy Andrews: I welcome the representatives of the Irish Senior Citizens Parliament. I am familiar with its work, including its submission on this year’s budget. I am particularly interested in the proposal that a guarantee of rights of access for grandparents should exist. If rights are to be guaranteed to grandparents, it could be argued that obligations should also exist. There should not be a one way street in this respect.

While fathers are currently trying desperately to assert their rights of access, they have obligations of maintenance or otherwise. If a father was not available and a grandparent asserted a right of access under the proposal, could a court not equally place a maintenance order on a grandparent? Does the parliament wish simply to ensure that judgments are made on the basis of the welfare of the child to allow the court to consider it preferable for a grandparent to have access?

In the third paragraph of the submission, an interesting idea is raised on crèche facilities. While I do not suppose the parliament has considered the matter very deeply, the committee wonders if provisions in this area should be included in the Constitution.

Mr. O’Halloran: No.

Deputy Andrews: That is fair enough.

Mr. O’Halloran: I will let Ms Meehan answer.

Ms Meehan: It seems reasonable to first consider the benefit to a child of access by grandparents. Denial of such access can be of harm to a child, particularly in light of the modern knowledge that while people may not seek their roots, they need to know what they are as they grow up. In concentrating on the rights of the child, we do not contend that there should be a requirement on grandparents to maintain a child.

Deputy Andrews posed a difficult question. My heart may say one thing but my head would not help to put it in a legal framework. Having reared their children to adulthood, people do not expect to have demands made on them in terms of continuing to provide for those children by way of maintenance. It could happen that it would be just to make such a provision in certain cases. It would be easier to achieve if the concentration were on the entitlement of a child. If a child has grandparents possessed of great property, wealth and means and has parents who have abandoned him or her or who do not have adequate means, it should be possible to make a demand for maintenance where those grandparents wished to be seen in loco parentis.

There is no legislation which says such provisions would be good, bad, indifferent or go far enough. It could be the case, but I cannot visualise. I can understand that such circumstances could arise. The duties of parents towards older parents are often contravened. Many parents who are old and in need of attention do not receive it from their children. Just as it does not seem possible to demand that grown up children should pay to maintain their parents, I cannot visualise a provision whereby grandparents would be made responsible for the maintenance of grandchildren unless they had accepted some form of legal guardianship. If grandparents seek legal guardianship, the question of maintenance should arise, particularly if the suit is being resisted by an absent or otherwise unsatisfactory parent. We will leave the matter to the wisdom of the committee.

Mr. O’Halloran: I acknowledge that Deputy Andrews has a legal as well as political background, which I do not hold against him.

Deputy Andrews: That is very kind of Mr. O’Halloran.

Chairman: Mr. O’Halloran should hold it against the Deputy.

Mr. O’Halloran: I wish to explain what we mean. I do not contend that grandparents should have an absolute right of access to their grandchildren but rather that such access must be considered in the context of what is best for children and grandparents in harmony. I am a grandparent and speak with some authority. I love my grandchild dearly and want access to her because I love her and she loves me, for the moment. We also have a very positive relationship in the Irish language as she attends an all-Irish school. I would lose a great deal if I did not continue to have access to my grandchild. While that might not be important to her, there may be aspects of the relationship which are important to her development. While I cannot make a definitive statement on that, I would like to have certain legal rights in circumstances in which I was denied access to her.

I would like to have the right to put a case to a family court, which is a legal court and which can take into account the human circumstances involved. I would like the court to be able to assess what is best for the grandparent and the grandchild. There should be some means to make a case and to have that case taken into account. While there are extreme circumstances in which access to their children for parents is not advisable, we must create circumstances in which grandparents are not denied the possibility of putting their cases.

Deputy Andrews: Is the parliament of the view that grandparents are denied this opportunity?

Mr. O’Halloran: We are denied it at present. There is a significant movement in England, which is not affiliated to us and which is focused on the rights of grandparents. In marital breakdown and even rows, grandparents can be ignored. We do not call for an absolute right of access in all circumstances but rather for access where it is deemed in the best interests of the grandparents and, most importantly, the child. We seek to have circumstances created in which that balance can be found.

Senator Tuffy: A proposal was put to the committee that instead of recognising the role of the woman in the home, the Constitution should recognise the roles of the carers of dependent relatives in the home. It would provide for grandparents, extended family and the carers of elderly relatives, rather than just for mothers. Does the parliament feel that the basis of the family, as defined by the Constitution, should be broader than just marriage? Should the Constitution contain a specific reference to the rights of grandparents?

Mr. O’Halloran: That is a good question. The Constitution is the fundamental law of the State. While it cannot include everything, we must avoid making constitutional provisions which prevent the creation of primary legislation. If the Oireachtas is of the view that there are provisions it would be worth introducing in order to advance human values in our society, we must have a Constitution which cannot strike down its proposals. If there was general agreement in the Oireachtas - elements of the Opposition, which have their own way of assessing what is good and bad, might demur - that a particular initiative might be worthwhile, it would be a great pity if an individual could mount a successful challenge to that initiative and have it struck down. In some instances, the Constitution will uphold individual rights even where we might think otherwise. One cannot write everything into the Constitution but one can have a general recognition that the good of the child may require certain measures that must then be defined in law. That is the way we see it.

Our view of marriage is that it is a good thing. That is what we believe. It may be undervalued in some ways. I read a negative comment on young people recently. It was absolutely terrible. It was written 2,000 years ago by Socrates, which shows that nothing changes.

Senator Dardis: We know what happened to him.

Mr. O’Halloran: He was poisoned.

Marriage is good. Whether it is a conventional marriage or a sacramental marriage, it is a lasting relationship between two people with a commitment to each other. Our view is that if it lasts, that is good. However, we know that this no longer happens for many people. We also know that some people live in single parent families. As far as I am concerned, they are families too and their needs and rights have to be considered, protected and advanced. That is our position.

The Constitution cannot deal with the position of carers and so on. That can only be dealt with through legislation. Bills can be introduced, either by the Government or the Opposition. There is a role for the Constitution and a role for primary law. Getting that balance right is the challenge for legislators.

Ms Meehan: I agree. One member asked a question about situations where grandparents are the carers in the home. Certain aspects of social welfare entitlements go to parents. If grandparents are caring for a child in the home they should be entitled to that social welfare benefit. These are dependent children. Does that go far enough or does Senator Tuffy want me to address anything else?

Senator Tuffy: No, Ms Meehan has answered the question.

Senator Dardis: Many of the groups that have come before us, particularly those representing the Christian churches, made the point that the Constitution should be a statement of general principles and that legislation should accord with those principles. I do not agree with the notion that the law should be above the Constitution or that something, just because we all agree it is good, should be accepted. The Constitution must be the supreme document and we must ensure that the law is in accordance with it.

I have just become a member of the grandparents’ club.

Mr. O’Halloran: I congratulate the Senator.

Senator Dardis: I am still trying to get over intimations of my own mortality before I deal with the deeper issues involved. Given the pressures of modern society, have we reached the point where the relationship between grandchildren and grandparents may be an even closer bond than that between children and parents?

My next point relates to the definition of the family and its position within the Constitution, which currently refers to a family based on marriage. There is general agreement among the people who have spoken to us that the definition should be broader than it is at present in order to reflect modern society and the existence of single parent families, etc.

How far would the Irish Senior Citizens Parliament go in defining the family? Should it include aunts and uncles or people beyond that or should it just include parents, children and grandparents? How wide should the net be cast?

Mr. O’Halloran: We must be careful. I did not say that primary law is superior to constitutional law. The opposite, namely, that constitutional law is superior to primary law, is the case. However, we must not have constitutional law that puts legislators in a straitjacket. I will not go through the history of the constitutional amendments that were introduced but that were not thought out. A decision was taken on what should be in the Constitution but then we found the courts did the opposite to what had been intended.

Senator Dardis: Particularly in one case.

Mr. O’Halloran: The X case is the one to which I refer. That was obviously badly advised. The definition of the family may have to be stated in a new way. It may have to be broader than it is now and must hinge on who in the family has rights. Obviously the mother, father and children will have rights. In order for children to have rights, it may be the case that rights must also be granted to others such as grandparents. As for uncles and aunts, that would depend on relationships. This is difficult to frame in constitutional law.

Where a mother is unable to look after her child due to ill health, that child may have to spend time in the custody of an aunt or uncle. The father may have to go to work and the only person who can look after the child is an aunt or uncle. The child will return to the family home when the mother’s health improves. I am not sure how one could deal with the issue in law if the parents denied the aunt or uncle access to the child. It would be quite cruel if that were to happen. Situations like that exist but, as the saying goes, hard cases make bad law.

One cannot include everything but one has to broaden it a bit more than is the case at present to take into account the way the world has developed, in some ways for the best. It is wrong the way people are condemned for certain things today. Young people and couples probably share more than I or the rest of my generation did because they can only survive if they share. Men are obliged to accept responsibilities - loading dishwashers and carrying out other domestic duties - now that would never have been heard of in the past. It must be recognised that this is the way society has developed.

Senator Dardis is correct in that children can be much closer to their grandparents today, for a certain period anyway, than they are to their parents because parents may be working and do not have as much time to spend with their children. Before I came before the committee, I had to collect my granddaughter from school. I love doing that for all kinds of reasons. I have a great deal of contact with her but so do her parents. Our society has changed and it is our humble view that the Oireachtas must reflect that as best it can in primary legislation and in the fundamental law of our Constitution. It is not an easy task. It is a challenge.

Senator Dardis: I hope we are up to the task. Does Ms Meehan wish to add to that?

Ms Meehan: I agree with what was said. In practical terms, one should start with the entitlements of the child rather than those of the grandparents. There is no doubt about that. On the other hand, however, we must consider the pain and grief for grandparents who, for one reason or another, are prevented from having contact with their grandchildren. I am not sure how that problem can be tackled. Grandparents are part of a primary family link. Perhaps it should be enshrined in law, if not the Constitution, that, unless there is grave reason or they are in some way damaging to the child’s interests, they should be allowed remain in touch with them. We frequently come across cases of family break-up where access is denied to grandparents as a result of animosity between parents. That is what happens. It is difficult to say how grandparents can assert their entitlement except by saying it is bad for the child.

Chairman: I thank the delegates. The issue of grandparents' rights is an interesting subject. I have often speculated as to how one can cater for them. They are not mentioned in the Constitution and I do not think any legislation provides for their rights. I understand their dilemma from the experience in my large family. I am the youngest of 11 children. The husband of my sister, who lives in America, was killed and her children stayed with my mother, their grandmother, every summer. She has a close relationship with them.

It is difficult to say how the committee can address these issues but we will give the delegation’s concerns due consideration. Perhaps Senator Tuffy might assist me in understanding the legal position. There is a legal rule that where someone dies intestate, without having surviving children or grandchildren, parents and then grandparents are considered next of kin before brothers and sisters. I once saw a situation where a young man who had inherited a farm died a bachelor without issue and his next of kin was traced back to his grandmother. Instead of tracing lineally to siblings, one goes upwards to parents.

Senator Dardis: The capital taxes exemption does not apply going upwards, only downwards.

Chairman: That is correct. The per stirpes rule was used in ancient common law where an unmarried person died without issue and intestate. This rule means that one searches down a person's bloodline first and if that does not yield results, the search is made back along the person's bloodline. Where a will was made this problem would not arise.

I am familiar with situations in my constituency where grandparents suffered enormous emotional strain when their sons’ or daughters’ relationships broke down in bitterness. In such sad circumstances, there are winners and losers. I recently met a grandmother whose daughter went to Australia or New Zealand for two years with her own daughter. The grandmother was approximately my age and she told me she was devastated and had not realised the attachment she had to her grandchild. If anyone present was in her position, they would also be upset.

I am not certain how we can deal with the links between grandparents and grandchildren through the Constitution or legislation. The Irish word for family in the Constitution is “teaghlach”, which means the extended family or household. The word “clann” has a more narrow meaning comprising mother, father and children. Until recently, it was typical in rural Ireland to have an unmarried brother or sister stay in the house. My aunt, who had Down’s syndrome, lived all her life with the 11 of us and my parents, which shows the interesting meaning that teaghlach has. Perhaps we should examine this issue closely.

A member of the delegation mentioned that where a mother must work, the bond between the grandparent and the child is often strong due to their close relationship. When one is young and married, as I was myself, one is so busy making a living and buying a house, that one does not have time for one’s children. As one gets older, however, one has time for one’s grandchildren. I have not yet reached that stage but I have four children so it might happen. I have often considered how to address this issue, either within the Constitution or by legislation.

Mr. O’Halloran: May I make a further point? I thank the Chairman for his interest. We asked for reflection on this point and he is doing that. Addressing an issue in law is not easy. Many years ago I acquired the Acts of the Oireachtas on CD-ROM.

Chairman: They say the law is an ass.

Mr. O’Halloran: That is another story. I often refer to the CD-ROM and am amazed at the way life has changed. I once came across local government statutory instruments being put through the Dáil. One of these from County Clare stated that a woman who had a second child out of marriage would not be allowed to get free milk from the local authority. I thought that was outrageous and at least we know we have made progress since then.

Chairman: She should get extra milk.

Mr. O’Halloran: That would be in my manifesto. We need to reflect on this issue as it is part of today’s society. How can we address it in law? I wish I could give the committee an answer to that question. I will say, however, that when a legal situation develops in the context of family break-up, there should be a way in which the court’s taking into account the needs of the children can include access to grandparents. It need not be set out definitively that they must have access but where it is deemed to be good for the child the court should have discretion to rule on it.

Chairman: Unfortunately, we have no more time to consider this submission. Mr. O’Halloran stated that he worked in a bakery. I imagine there was a law library in that bakery as he is extremely knowledgeable and must have had access to books. He also made an interesting submission to the previous committee on the Constitution. I am aware of his political background and I wish him luck and thank him for his interesting submission. I have considered this issue from early on in this process and a group of forgotten grandparents wrote to the committee to see if we could address it. We will take Mr. O’Halloran’s views on board. I am not sure everyone will be happy with our report as it is a complex area.

Mr. O’Halloran: We realise that.

Chairman: At least Mr. O’Halloran does not accuse us of having premeditated ideas. We are still wading in difficult waters and will do the best we can to come to a sensible conclusion.

Ms Meehan: I do not want to cap what the Chairman says as I appreciate it. The Chairman referred to the fact that the law can be wrong. We are aware that hard cases make bad law but where there is no law, life is particularly hard for those who want redress. In the case of grandparents seeking access which is denied to them, there is no law and it is frustrating. Perhaps the committee might find a pathway down this tangled route.

Sitting suspended at 3.57 p.m. and resumed at 4 p.m.

Chairman: The next item on the agenda is a presentation by the Reformed Presbyterian Church of Ireland, represented by the Reverend Mark Loughridge and the Reverend Raymond Blair. Before we begin, I remind visitors that members of this committee have absolute privilege but that the same privilege does not apply to witnesses appearing before the committee. The Reformed Presbyterian Church of Ireland has already made a submission, which the committee has examined. Rather than repeat the contents of the submission, I ask the representatives to provide us with a synopsis and then we will have a question and answer session.

Rev. Mark Loughridge: I thank the Chairman and the committee for giving us an opportunity to air our views. We are not here to be stuffy spoilsports or to bring a Taliban mentality to Ireland. We are not seeking to take Ireland back into the Dark Ages.

As a denomination, our aim is to see Irish society governed according to the best possible guidelines. We aim to see a stable society where children can grow up in the best possible environment and we believe that the Constitution, as it stands, is far in advance of the constitutions of many other nations. We would be happy to keep things as they stand. We wish to build a case for maintaining the status quo by examining the biblical view of marriage and the family.

One basic principle is that God has entrusted the Government with the authority to rule and govern this country, as the preamble to the Constitution indicates. God is kind and has given instructions on what to do so that the Government is not left fumbling about in the dark. It is important to examine those instructions and to allow them to shape the Constitution, rather than allowing society to dictate matters.

There are biblical principles underlying the family and God has kindly given us guidelines for marriage - a lifelong union between man and wife, male and female. The family is designed by God, comprised of a male and female who have entered into the lifelong covenant of marriage and incorporating their offspring. It is the basic unit of society and has been recognised as such through the centuries. On parenting, God has instituted the family for the good of the husband and wife and for the protection and balanced upbringing of children. In scripture, parents are expected and instructed to be primary carers for their children.

On homosexuality, God has directed that marriages are between male and female for good reasons. First, there are complementary strengths between males and females - we are built differently, we think and react differently and together we form a much stronger unit. Reproduction is another obvious reason. A third reason is to provide balance in child raising, with the strength and example of each sex coming through.

Anyone can give his or her opinion on these matters but the committee requires hard evidence that God’s guidelines work. If such guidelines are for the best, one would expect to see positive benefits in a society that follows them. Empirical evidence to that effect is available. I have a background in science and design and I like to see facts and evidence. The benefits of marriage to society are clear. If one considers history and examines different empires and civilisations, one can see that they started to crumble whenever they moved away from marriage as a basis of society and moved towards equating temporary cohabiting arrangements with marriage. This is particularly evident during the French and Russian revolutions, when revolutionaries tried to equate marriage with cohabiting arrangements but quickly changed direction and reintroduced a solemnisation and structure to the family. Many secular historians and sociologists have examined different societies and Unwin, for example, found that after studying 80 primitive and 16 advanced societies, cultural achievement and sexual license were incompatible for more than one generation. Societies flourished where absolute monogamy was practised.

Marriage is beneficial to society and to children. The latter are often the weakest members of society. I have an 18 month old daughter and I want to see her grow up in a stable environment. When I began researching this submission, I was surprised when I came upon the facts that are outlined in it regarding marriage and children. These facts do not emanate from religious writers but rather from a wide range of secular analysts.

Statistics show that the family unit, comprising a husband and wife, is a much more stable environment for a child to grow up in. Infant mortality is greater outside of marriage. The statistics also show that achievement at school is higher for children in marital families, as is their likelihood of obtaining employment. Children in stable, married families tend to behave better. These facts are not unsupported statements by clerics who have a bone to pick but are well-documented research findings, which is why we included footnotes in our submission.

One report shows that almost 75% of children who committed criminal offences had cohabiting parents, while only 25% had married parents. Professor A. H. Halsey from Oxford University has asserted that, on the evidence available, such children, namely, those of cohabiting parents “tend to die earlier, to have more illness, to do less well at school, to exist at a lower level of nutrition, comfort and conviviality, to suffer more unemployment, to be more prone to deviance and crime, and finally to repeat the cycle of unstable parenting from which they themselves have suffered”. I would not like the Constitution to be changed to encourage such a cycle. I would like the Constitution to remain as it is in order to encourage stability in Irish society.

The next section provides quotes which show the instability of cohabiting and homosexual marriage. Cohabiting couples are 6.5 times more likely to split up after the birth of a child. The section on homosexual lifestyle shows that there is not great stability, either, among homosexual partners. It was found that the percentage of homosexual relationships that last beyond five years is so small as to be almost negligible. It is less than 1%. This is backed up by surveys often carried out by researchers who are sympathetic to the homosexual community.

[Rev. Mark Loughridge]

That brings us to our conclusions. Marriage, as defined biblically, is the foundation for society. It is the best environment for the nurture and raising of children. We seek to encourage the committee to recommend that the Constitution remains that way. To encourage people to enter into marriage, rather than rewarding them for not entering into it, is a key principle.

The remainder of the points are self-explanatory. To deviate from God’s design is counter-productive. There is a comment there on the role of the mother. It is important that parents should be at home to have a key part in the upbringing of their children. A Government that wishes to build a strong community will take that seriously. We believe that the Constitution is right to give status to this role and to protect it.

Chairman: I thank the delegation for its submission. It has made its case clearly and succinctly. Senator Dardis wants to contribute but I should point out that the difficulty facing the committee is that within the Constitution and society at large, changes during the past 20 years are causing much concern for Government and politicians. Reverend Loughridge is examining scientific studies, etc., and I do not disagree with that. However, the 1996 census showed that there were approximately 40,000 cohabiting couples and when the next census was carried out in 2002 the figure had doubled to 80,000. One could, in a sense, describe that as alarming but it is a matter of fact. The 2002 census also revealed that the number of single parent families - 85% single mothers - was close to 160,000, which again was an enormous increase.

The Constitution has not changed since 1937 in that regard. I know we introduced divorce, ten or 12 years ago. Leaving divorce out of the equation, however, there is an issue that Government and politicians are charged with attempting to address. The issue put to the committee by some groups is that children born outside the normative marriage family unit are somehow being treated as lesser citizens than those born within marriage. The delegation can understand the task the committee faces. We have no preconceived notions. This is an ongoing review of the Constitution and we are just undertaking the study. However, the statistics presented to the committee are quite frightening.

Reverend Loughridge is looking at society and also at change. He referred to the French and Russian revolutions. One can go back to Greek history to look at Stoic and Sophos societies. Perhaps it is a case of the Irish economy performing so well that people are simply ready to embrace the Sophist philosophy of “eat, drink and be merry, for tomorrow you die”. The Stoics were a much tougher regime, as regards their line of thought. History and society change and to assert that the Constitution must stand still is a difficult view to take. I am not saying that the delegation is right or wrong but these are the issues confronting the committee. Perhaps Reverend Loughridge might reflect on that and reply in a moment. Senators Dardis and Tuffy, meanwhile, have indicated that they want to ask questions.

Senator Dardis: My view is similar to that which the Chairman expressed. I do not contest the empirical evidence the delegation has laid before the committee regarding the negative effects of not having families based on marriage. We accept the evidence. However, we are also confronted with the reality of the numbers in extra-marital relationships. The Church of Ireland, in its presentation, spoke to the committee about the optimum. It said that marriage is clearly seen as the optimal state for two people being together for specific purposes, human and theological. However, it believes that the confident assertion of the optimum does not preclude the espousal within the Church of Ireland of the cause of those for whom the optimum is not a lived reality. That summarises succinctly what the Church of Ireland and many others have said - accepting that there is a reality in place.

Should any accommodation be made with regard to accepting the reality within the Constitution and then affording certain constitutional rights in respect of that reality? The delegation’s conclusion in that regard is reasonably straightforward. I may be misrepresenting the delegation’s position in stating that it seems to be somewhat silent as regards the children. Quite a number of groups have indicated that if the Constitution needs reform, the one area that warrants this is either in enumerated protection for the child or a declaration of rights for the child. I am interested to hear the extent to which this delegation believes the child should be included within the scope of an amended Constitution.

Senator Tuffy: My question is along the lines of those posed by the Chairman and Senator Dardis. The fact that there has been no constitutional amendment has not stopped the growth in the number of cohabiting couples. Why does the delegation believe it is so important to leave the Constitution unchanged, despite this trend?

On the statistics submitted, one study showed that young men were 1.5 times more likely to be out of school and not working if the parents were not married. I would argue that this is not necessarily because the parents are not married. There may be, and probably are, other factors involved, such as, for example, the fact that non-married parents are not sufficiently supported. Should we not do more to support such families? Will the delegation comment on this?

It is obvious that, as one witness stated, marriage is good. Should society not, however, support families that are not based on marriage? If such families, particularly the children, are given support, it will make for a better society. If we do not recognise families other than those prescribed in the Constitution, are we not saying, in effect, that they are not as good as conventional family units? We are actually stigmatising people. The delegation is saying marriage is good but surely it is not asserting that members of families not based on marriage are less valued.

Rev. Raymond Blair: I will make a general response, if I may. The aim of the Constitution should be to promote the ideal. One recognises the growing reality of what is less than the ideal. God’s ideal is the family and the preamble to the Constitution recognises that ultimately our accountability, both as individuals and as a State, is to God. We should seek to promote the ideal and give it as much support as possible. Perhaps if more of that was done, and the Government and other authorities were to do more to promote a positive ideal of marriage, the trends might be reversed. The fact that other arrangements might not be recognised in the Constitution does not mean that where there is a real need of support for children, there cannot be appropriate legislation. There already has been much legislation to provide support for children. I do not see any need for modification in respect of the view of the family contained in the Constitution just because there is a need to support people who are having difficulties outside the ideal of the family.

Some would argue that due to the way the family is defined in the Constitution, and in the light of some court rulings, there is recognition of the needs of children. I am not certain about that because it is a complicated legal question. I would not be opposed to some additional insertion in the Constitution highlighting that children should be nurtured and cared for. The question of whether the Constitution already covers that in an implicit manner is complex.

Rev. Loughridge: I initially limited part of our response to three or four of the ten topics advertised. The more protection for children, the better. Many other groups will come at that from other angles and will provide specific legislation for children. That is fine but the foundation is the family.

Chairman: Is the delegation claiming that the foundation is the traditional family based on marriage, as opposed to families of a different mix?

Rev. Loughridge: Yes. We recognise that other situations arise and it is the Government’s responsibility to provide care and support for single parents and cohabiting parents. However, such support must be offered in ways that do not undermine the foundation of marriage.

Chairman: Would the delegation object if the Minister for Finance was to amend the tax legislation - particularly that relating to inheritance tax, income tax and stamp duty - which currently discriminates heavily against single parents and cohabiting couples? If a couple is cohabiting for 25 years and the breadwinner suddenly drops dead, the partner would be treated as a stranger from a tax point of view. Senator Norris, in his Bill on civil partnership, stopped short of seeking marriage rights for gays. However, he felt that there should certainly be a recognition of gay couples. There is a belief that if this issue was tested in the European Court of Human Rights, the Government might be compelled to act. From the delegation’s biblical perspective, does it feel that it is encouraging other relationships if it does not object to tax equity for cohabiting and same sex couples?

Rev. Loughridge: It is a fine line. There is an issue of fairness here. If people have lived together for 25 years, there is definitely an element of commitment that is not there for people who have married but walked away after five years. In a civil partnerships Bill in England, the British Government was so keen to provide for one group of people living together, namely, cohabiting and same sex couples, that it largely discriminated against much more common relationships, such as two sisters or a father and son living together. There is a real need to be careful that we do not discriminate against other groups. At the same time, we must not provide disincentives to marriage.

Chairman: It is a difficult area. Originally, that was not the case as there was a threshold between a husband and wife for inheritance tax and gift tax. That was amended some time ago and there is no threshold between a husband and wife. If a husband dies, the wife does not have to pay inheritance tax on his estate. A couple together for 20 years that has three children but that is not, for whatever reason, married does not have the same legal standing as the husband and wife. If one partner dies, the surviving partner is immediately hit with a €25,000 tax bill.

This is a matter of great concern to some of the groups that have appeared before the committee. The gay and lesbian community is rowing in behind the Bill proposed by Senator Norris. If we were to propose legalising gay and lesbian marriages, that would have to go to the people in a referendum. As a politician, Senator Norris may feel that this is a difficult road to travel. We also have 80,000 couples seeking some sort of tax equity.

Senator Dardis: It goes beyond that. Let us assume that there are children in a family where one or both of the parents are in a second union. Are the sins of the father visited on the child? The child is the innocent party to all of this. Is it correct that, under the succession rules, one group gets all of the property while the other is excluded? Anomalies can be there which are not the fault of the innocent victims.

Chairman: We have run out of time. I thank the delegation from the Reformed Presbyterian Church of Ireland for its submission. It was clear, with no equivocation. That is helpful to the committee and we will consider the submission. We will, I hope, get the balance right when we produce our report on this issue.

Rev. Loughridge: I thank the committee and we shall remember the members in our prayers.

Chairman: We could do with them because this is a challenging time.

The joint committee adjourned at 4.30 p.m. until 10.30 a.m. on Wednesday, 27 April 2005.

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