Oral Hearings

Family Issues: Presentations.

Deputy O’Sullivan: I accept that Mr. Barrett’s definition of marriage is of the traditional variety. I also accept it as the proper definition for the purposes of this argument. Are there people in such marriages who have decided that the father is a better carer than the mother? Perhaps Mr. Barrett does not see it as his role within his marriage but other people have decided that it is how they see their roles. Does Mr. Barrett accept that as valid?

Mr. Barrett: It is perfectly valid. The question is whether we change the Constitution to provide for it. Constitutional change should not be effected lightly in any circumstance because it is not a good idea. Constitutional stability is positive, even in cases where the wording of a particular provision might be better rephrased. It is not good for a nation, its corpus of law or respect for the law for its constitution to be constantly amended. It is known in legalistic terms as constitutional revolution.

The provision, and problems with it, to which Deputy O’Sullivan refers does not constitute what we call “imperative necessity” in our submission. Since, on the whole, it is a good idea not to change the Constitution, this area is not worth visiting. It is not important enough to go to the people with a constitutional amendment.

Deputy Devins: Mr. Barrett said in his presentation that the only family unit was "a man, a woman and his children".

Mr. Barrett: Yes.

Deputy Devins: I presume he meant a married man and woman.

Mr. Barrett: Yes.

Deputy Devins: I put it to Mr. Barrett that he is doing a disservice to those men and women who are married but who have not been blessed with children.

Mr. Barrett: No, that is not what I am doing. The question before the committee relates to the definition of the family. It is no insult to anybody to say that they are not a family. There is no insult to single people.

Deputy Devins: I am not discussing single people. I am discussing a man and a woman who are married but who have not been blessed with children. Do they constitute a family?

Mr. Barrett: : No. Under Irish constitutional law they do not constitute a family, they have a marriage. The arrival of children gives them the definition of family in law. That does not take away from them as a married couple. I do not see why they feel at a loss because the law does not call them a family.

Chairman: I presume that if a couple who could not have children adopted it would create a family.

Mr. Barrett: It would constitute a family.

Deputy Devins: Mr. Barrett stated that homosexual men comprise less than 1% of the male population. Is that correct?

Mr. Barrett: Yes.

Deputy Devins: He also indicated that all studies support this view.

Mr. Barrett: With the exception of the so-called ground-breaking study by Doctor Alfred Kinsey, which is probably the one——

Deputy Devins: To what studies is Mr. Barrett referring?

Mr. Barrett: I refer to a number of them.

Deputy Devins: Can Mr. Barrett supply the committee with the names of the studies later?

Mr. Barrett: Yes.

Deputy Cuffe: What is the delegation’s view on cohabiting couples with children? Do they constitute a family?

Mr. Barrett: No, they do not constitute a family because there are two elements to a family, namely, marriage and the presence of children. The failure of the cohabiting couple to make a permanent commitment is the issue. The question is what is best for children and society and what should the State, by its laws, try to promote. It is no insult to anybody to say that the superior form of the family is the traditionally understood form. Various provisions can be made for people who order their lives differently but the State and society have a special interest in promoting the traditional family above all else.

Mr. Denis O’Connor: I cannot understand why common sense cannot prevail. If an individual is offered a job, he or she is asked to sign a contract to signify commitment. Without that contract, a person could walk in and out of a job on a whim and cause all sorts of problems.

The child is the most important individual in this State and he or she needs protection. The best way to protect the child is to ensure that he or she has a father and a mother who are married and living together. That is not always possible but as a civilised society we must ensure that it can happen as much as possible. We must ensure that we have ground rules in place and our Constitution does that.

If the Constitution states that something must be done, then it is the duty of the people that we elect to ensure this happens. Under the Constitution, each citizen has as much power to legislate as those who are elected to the Dáil. The Constitution was given to the citizens and it gives them rights. Éamon de Valera said that the Constitution was given to the citizens to protect them from the institutions of the State. That is why the Constitution is such an important document and it cannot be changed unless it contains a serious impediment.

Mr. Barrett referred to a debate on radio where a lawyer stated that children should be given rights to protect them from their parents. That is the same as giving a child a loaded gun because children are supposed to be protected; they should not have to protect themselves. The idea that children would have to protect themselves from their parents and that adults would ask them to do so is appalling and disturbing for children.

Chairman: Unfortunately, if one takes the example of Kilkenny incest case, two young girls were severely abused, physically, emotionally and sexually, by their father for many years. That may be an extreme example but there are instances where children may need protection from their parents. Thankfully, such cases are not common but they do exist.

Mr. O’Connor: I agree. However, to legislate on the lines of a hard case is a bad rule. The Constitution already contains a provision whereby the State can intervene in a family if a child is being neglected. The Constitution covers everything but people do not seem to have read it and our elected representatives have failed to ensure that the relevant Ministers implement those sections that deal with the family. We do not want the Constitution changed and we want the document, as it stands, to be implemented. It is a wonderful document and if we are serious about protecting children, we should not be seeking to change it. When a problem arises, our first instinct seems to be to create a new law. If I, for example, had an assembly line making hoovers and discovered one day that all of the hoovers coming off the assembly line had a loose connection, what should I do? The modern solution would be to employ someone to sit in a separate room and repair all of the defective hoovers. The alternative constitutional solution is to employ someone to go back up the assembly line and tighten a nut or a bolt to solve the problem.

Deputy Andrews: Mr. O’Connor has stated that the Constitution is a great document. The people who are the repositories of common sense voted for divorce some years ago and that is now in the Constitution. I presume that Mr. O’Connor is excluding such sections of the document when he refers to the Government implementing the Constitution and when he asserts the brilliance of the document. I suggest to Mr. O’Connor that he is taking an à la carte approach to the Constitution.

Chairman: I ask Mr. O’Connor to be as brief as possible because the meeting is now running over time.

Mr. O’Connor: If the Deputy reads our submission, we state that the introduction of divorce was a detrimental move.

Deputy Andrews: It is, however, in the Constitution.

Mr. O’Connor: Yes, it is in the Constitution. We have also said that there should be as little interference as possible in the Constitution. We do not have time to revisit the debates that took place at the time of the divorce referendum but it weakened the Constitution. The Constitution would be strengthened if——

Mr. Barrett: Our position is that the Constitution, as a man-made document, is not perfect. We are not suggesting it is perfect but that its very existence is of great benefit to the Irish people. In general, the provisions in the Constitution relating to the family would have very positive benefits if they were enacted in people’s daily lives. No document is perfect and the Irish Constitution is no exception. We do not claim that it is perfect.

We believe that the prohibition on divorce will have to be reintroduced in the long term because the effects of the divorce culture are only beginning to be felt here. There are already more than 3,000 divorces per annum. The consequences of that, in terms of broken families and the impact on children, will become more obvious as time passes. We are not arguing that the Constitution should never be changed because this is one change that is absolutely necessary. In addition, of course, we need a right to life amendment.

One can discuss the rights of the child but we also need a right to life amendment for the unborn child. The X case decision, although it is impossible to legislate for, still stands before the world as an eyesore. Simply because the situation is the same in other countries does not make it acceptable. It is an eyesore before the world and a source of shame for the Irish people that the Constitution does not completely protect the unborn child from the moment of conception.

Chairman: I thank the delegation for coming before the committee. Its case has been made very clearly and we will take the viewpoints into account when we undertake our deliberations and produce our final report. We would need the wisdom of Solomon to get everything right. However, we are simply preparing a report. It is up to the Government to act on that. We have been informed that the Constitution review group made recommendations to Government ten or 12 years ago and that nothing was done. The committee is in a no-win situation.

The joint committee adjourned at 4.49 p.m. until 10.30 a.m.on Thursday, 28 April 2005.

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