Oral Hearings

Family Issues: Presentations.

[Mrs. Asgough]

While I am not familiar with the PKU case referred to by the Chairman, I know what a PKU test is. Most parents would agree to such a test being carried out on their children in hospital. However, certain parents believe the test is an infringement of their rights as parents and because the child is under their care, it should be their decision. While I do not agree with that view, we must respect such parents who may have good reasons for refusing the test.

Deputy Devins: That is precisely the point. The stance taken by the courts in the case in question was that the parents had such a right but a very strong case could be made that, in fact, the rights of the child were violated in the case. The PKU test is just a screening test. The consequences could have been disastrous if, God forbid, the child had PKU.

Listening to many groups my impression is that they are fearful the constitutional protection of the family would be in some way diluted in changing the Constitution. It may well be those articles do not need to be changed, that instead something could be added to protect the rights of children. What is the delegation’s opinion?

Mrs. Asgough: This is speculation. The rights of the family are protected in the Constitution. A case involving a PKU test, for example, would be better handled in legislation——

Deputy Devins: Would that not fail the child?

Chairman: Deputy Devins is a medical doctor and speaking from experience. It could have severe implications for the health of the child. The Kilkenny incest case may be an extreme example but it highlighted serious issues. Court decisions in the past ten to 15 years seem to imply the rights of the child are playing second fiddle to the rights of parents. I accept, however, that in most instances parents make the best decisions for their children.

The joint committee is examining how the Constitution may be improved. Many groups, including the Ombudsman for Children and some of the churches, stated very clearly that the rights of the child should be properly enumerated. The United Nations Convention on Human Rights has an enumerated code of rights for children. The committee is teasing out the subject. Does the delegation think there should be no change in that regard? Many groups have submitted that the family unit solely based on marriage actually denigrates children in other relationships, including children in foster care. Many disagree with the view that the rights of the child within the family are fully protected.

Mr. W. Ivo O’Sullivan: I take the Chairman’s suggestion that something could be added to the Constitution to take care of exceptional cases without changing the substance of the Constitution. We have not considered such cases. It may be a possibility.

Mrs. Asgough: The State has a duty to protect children. We also have to be very cautious in that we do not want to flip the balance and give children more rights than their parents. The parents are the carers of children. In an ideal world they would have the best interests of their children in mind but as we do not live in such a world, the State will definitely need to take some responsibility and step in where there is that deficiency.

Chairman: Unfortunately, from our experiences in the Kilkenny incest case and other sad cases, the State is often slow to act and when it does step in, a lot of damage is done.

Senator Tuffy: The Constitution was amended to include rights for unborn children. It was decided not to leave it to the parents to make a decision in certain cases. If we can protect unborn children in the Constitution, surely we should also protect the rights of children?

Chairman: It may be that the courts have adopted a restrictive view of the interpretation of the Constitution with regard to the family. The joint committee has heard some strong submissions on the rights of the child in which it is submitted they should not supersede those of the parents. If the rights of the child were paramount, in an extreme case a judge could decide that the best interests of the child were not being protected. I refer to the PKU case in which the judge decided, according to the Constitution and legislation, that the rights of the child were secondary to those of the parents. Most commentators regarded this as a bad decision.

Mr. O’Sullivan: The United Nations Convention on the Rights of the Child is loosely written and there are some matters of concern. We had a quick look at it and found that it covered many areas. Children would have rights independently of their parents. We are not talking about the previous case. We wondered whether that was constitutional since when the State signed the convention, it would have meant the Constitution was changed. We have not yet consulted a legal expert but it appears the State should not have done so since it would first require a change to the Constitution. That is another worry. The convention is loosely written and covers many areas, making it problematic. It gives rights to a child to have an abortion.

Chairman: A number of groups, including the last one, have advocated our examining the issue of same sex unions. Senator Norris’s Bill seeks recognition for civil registration rather than marriage per se. Other groups have simply stated that, if gays or lesbians are living together, they have a right to a stable relationship and the same dispensations in inheritance tax, stamp duty and income tax. May I take it from the Family and Media Association’s submission that it would not condone such relationships or marriages?

Mrs. Ó Grádaigh: We believe it is not appropriate to have it in the Constitution, that it would be more fitting to have legislation to protect same sex unions, cohabitees or those dependent on each other in order to offer them some protection.

Chairman: In principle, that is what Senator Norris’s Bill is trying to achieve. When he published it, some groups stated he had not gone far enough, that he should have sought marriage rights for gay and lesbian couples. Does the association believe legislative changes to incorporate the thinking of some of the gay and lesbian groups to give them recognition would be acceptable? Regardless of whether we like it, in the last census there were approximately 1,500 gay or lesbian couples living together. Some believe this figure is conservative since some people may understandably not wish to declare this fact. Would the association have any difficulty with legislation stopping short of changes to the Constitution to cater for minority groups such as gays and lesbians and perhaps also cohabiting heterosexual couples?

Mr. O’Sullivan: They can go to the courts. They are also free to make legal contracts between themselves. If one is going to grant tax breaks and so on, it should not discriminate against others who are dependents such as two sisters or brothers living together.

Chairman: Somebody else made the point that it should be broadened. There was a court case which I cannot now recall but believe it was heard by Mr. Justice Peter Kelly in 1997. A contract between a cohabiting couple who had had a child was tested. The upshot was that Mr. Justice Kelly held that it was unenforceable. Consequently, it appears that, even if there is a contract between cohabiting couples, it might not benefit them.

There was a situation in west Cork to which Senator Norris referred. Two men lived together for nearly 40 years. I knew them and they were good and kind to each other. One of them developed Alzheimer’s disease and the other retired from their pub to care for him in his difficulty. Regrettably, the partner in better health dropped dead and the families came in. They did not recognise their relationship and the tax man had a big take. If this had been a “normal” husband and wife couple and the husband had dropped dead, the wife would not have had to pay inheritance tax. There is a difficulty. There is also a view that, if this were tested in the European Court of Human Rights, the Government might well be compelled to make changes. There is a diversity of opinion. I understand Mr. O’Sullivan does not want the Constitution changed. However, would he accommodate enhanced rights for other groups in society through legislation?

Mr. O’Sullivan: Regarding inheritance rights, surely the couple could make contracts stating that, if one died, he would leave his estate to his partner.

Chairman: Unfortunately, in my previous life I was a solicitor for 25 years. I am not trying to be clever but in that situation of a relationship between two men, women, sisters or brothers, the tax threshold for strangers in blood is approximately €25,000, after which one is hit with the full tax bill. If I drop dead in the morning and have not made a will, my wife will be entitled to the family home and my assets without being hit with a massive inheritance tax bill. The same applies to stamp duty and, in some instances, income tax. Therefore, there are problems. I wonder whether the association would be willing for the Oireachtas, by way of legislation, to secure parity for them - not special rights but the same as others enjoy. I am playing Devil’s advocate here.

Mrs. Ó Grádaigh: As long as the privilege would not be granted only to homosexual couples and any two people could benefit.

Chairman: Yes. Some other groups mentioned two sisters or two bachelor brothers living together in a remote area of west Cork for 40 years. Does one broaden matters to bring that in? I am sure the Minister for Finance, Deputy Cowen, might also have ideas on the matter and that he might not want to loosen the purse strings. The previous group, johnny which represents gay men, felt strongly about several issues. Apparently, there is discrimination against them on such issues.

Mrs. Asgough: We are aware that there are strong political pressures to decide on such issues. However, our bottom line is that no one family type is regarded as better than another. A heterosexual family——

Chairman: They are saying they are at a different level. One could imagine a gay couple with a house in Dublin worth €1 million, which is no longer a big deal, and the survivor being hit with a tax bill of €300,000, whereas with a heterosexual couple there would be no tax bill. That is the problem which could also apply to a cohabiting couple. I knew of a couple who, for whatever reason, lived very happily together for 24 or 25 years. They had three children. The “wife” died suddenly and there were complications that they had never envisaged. She was in her early 50s. The “husband” suffered a substantial financial penalty because they were not formally married.

Mrs. Asgough: Is the Chairman talking about inheritance taxes?

Chairman: I have raised other issues too. In the case of a lesbian couple who got married in Canada and are living here, the State is going to the courts. The High Court or the Supreme Court may give us some indication of how it might interpret the matter.

Mrs. Ó Grádaigh: What about common law? Does it kick in for a heterosexual couple who are cohabiting such as the couple whom the Chairman mentioned? Would they not become man and wife by common law?

Chairman: I do not think so. The problem is that under the tax code there are different thresholds. Regarding a husband and wife, there is no inheritance or gift tax. Originally there was but now, even if one is worth €20 billion, there is none. There is another category between a father and child; I believe the limit one may give to one’s child without having to pay tax stands at €170,000. The last category is the one about which I am talking. If there are two gay men or a cohabiting couple, they are seen by the Revenue Commissioners as strangers in blood with no entitlements except at the very bottom rung of the ladder. This seems inequitable to some. Would the association have a problem if the legislation was changed to put such people on level terms, not to give them better rights?

Mrs. Ó Grádaigh: I would prefer if any such changes were applicable only to heterosexual couples. The Chairman used the word “normal”——

Chairman: As Chairman, it is not desirable that I should seem to be prescribing any categories. I have a difficult job to do and wish to listen to the views of all groups who appear before the committee. We have heard an immense amount of information and the committee must endeavour to deal with it in a fair and balanced way. I apologise if it appeared I was categorising any group or activity as “normal” or “abnormal”. This was not my intention.

I have a simple question for the delegation. Apart from the issue of homosexual couples, would the association support legislation to remove taxation discrepancies such as those I outlined?

Mrs. Ó Grádaigh: We would support legislation if it were fair and applied not only to homosexual couples but to other partnerships such as those between two siblings, for instances. Non-sexual relationships should be afforded equal protection.

Mr. O’Sullivan: It would be necessary to examine any such legislation before stating our position. We are dealing with complex issues.

Chairman: I doubt such legislation will be introduced during the remaining two years of the Government’s term. However, the Taoiseach recently articulated his desire to see more equitable legislation in this area.

Senator Lydon: I understand from the delegation’s presentation that the Family and Media Association is principally concerned with the effect of the media-driven agenda.

Mr. O’Sullivan: Yes.

Senator Lydon: The delegation made reference to “9 Songs”, a film I have not seen but about which I have spoken with the censor, Mr. John Kelleher. He considers his role as one no longer concerned with censorship but with classification. The only content he is likely to censor is gratuitous violence. This film goes beyond the boundaries of good tastes in its depictions of full penetration, fellatio, cunnilingus and ejaculation. I am not sure if this could be considered art which those over 18 years of age should be permitted to view. That is another question.

The principal point of the delegation’s submission is that this film will be available for video or DVD rental and thus accessible to children.

Mr. O’Sullivan: Yes.

Senator Lydon: Moreover, the delegation has suggested the censor has broken the law in this regard.

Mr. O’Sullivan: That is correct.

Senator Lydon: The association may have a good case.

Mr. O’Sullivan: The censor claims the film is a form of art, a claim we strongly dispute. A psychologist made the point on radio——

Senator Lydon: I heard that interview.

Chairman: I am not sure I understand the point Senator Lydon has raised. This issue may be beyond the remit of the committee.

Mr. O’Sullivan: We are concerned with monitoring the effect on the family of the values promoted in society and the media.

Senator Lydon: I was pointing out the need for a change in legislation in this area.

Chairman: I understand the delegates’ point. They have contended that the media, including newspapers, television and radio, are skewing towards a liberal agenda and, in some cases, effectively driving that agenda.

Mrs. Ó Grádaigh: Those most affected by this agenda are those without the support of a solid family, including both a strong male and strong female role model who are in a committed relationship. It has been proven that such young people are most likely to get into trouble and begin acting out the behaviours they observe in these types of films. In this context, the constitutional provisions on marriage should not be amended.

Mr. O’Sullivan: The FMA and parents are worried that our lovely innocent children are being raised in a society in which there is much to corrupt them as they grow. Unless they have strong spiritual values, they will require courage to resist peer group pressure. Social values are deteriorating and children must be very strong to resist this corruptive influence.

Chairman: I thank the delegates for their contribution.

The joint committee adjourned at 4.25 p.m. sine die.

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