Green Party Submission On The Family To The All-Party Oireachtas Committee On The Constitution January 2005

The following are suggested amendments from the Green Party/Comhaontas Glas to sections of Articles 40.3, 41, and 42 of the Constitution pertaining to the family. These amendments are directed toward expanding the definition of the family, enhancing individual rights within the family unit, and, in particular, guaranteeing fundamental rights to the child and enhancing the protection of children.

We have also suggested amendments to Article 40.1 although this particular subsection is not part of the Oireachtas Committee's original remit. We see these proposed changes to 40.1 as being complementary to the other proposals on the family we have put forward in this submission.

Article 40 Personal Rights

The Green Party agrees with proposals from the 1996 Constitution Review Group (CRG) that the wording in this Article must be amended to afford more protection to personal rights and to ensure against discriminatory practices. In particular, discrimination by the courts against unmarried persons has been justified by the second paragraph in Article 40.1. The first paragraph guarantees all citizens equality before the law but the second allows the State to make enactments, which have "due regard to differences of capacity, physical and moral, and of social function". We would support the replacement of this second paragraph with: "This shall not be taken to mean that the State may not have due regard to relevant differences" and also support the CRG's proposal for a new paragraph within Article 40.1, drawing on the European Convention on Human Rights, stating: "No person shall be unfairly discriminated against, directly or indirectly, on any ground such as sex, race, age, disability, sexual orientation, colour, language, culture, religion, political or other opinion, national, social or ethnic origin, membership of the travelling community, property, birth or other status."

We would also support the CRG's arguments for a comprehensive list of fundamental rights to be enumerated in Article 40.3.1°, drawing in part on international human rights conventions and personal rights already identified by the Irish courts. The CRG has deemed the present Article 40.3.1° to be flawed because of its broad wording and its failure to thereby give sufficient guidance to the courts in the identification of personal rights; e.g. the refusal of the courts to recognise fundamental personal rights of unmarried fathers [The State (Nicolaou) v An Bord Uchtála]. We would be concerned however that such a listing of rights would not remove the scope of the Courts to interpret new rights in novel situations: the listing should be indicative and not definitive.

It is also vital that the guarantees of equality in Article 40 are explicitly extended to non-citizens as a fundamental human right and that references to "citizen" within the Article be amended to "person" where appropriate (e.g. Articles 40.3.1, 40.4, 40.5, 40.6).

The Constitution Review Group Report, when arguing for a comprehensive listing of rights, also suggested that specific rights concerning The Family would be best placed within Article 41. This is the course the Green Party is following in this submission.

Article 41 The Family

The Green Party is concerned that the paramount rights of children are not adequately provided for in the current Constitution. The UN Convention on the Rights of the Child is the most widely ratified human rights treaty (Ireland ratified in 1992) and could therefore be regarded as setting out the international community's norms on the rights of the child. The Convention, similar to the Irish Constitution, recognises the family as "the fundamental group of society" while, unlike the Irish Constitution, more fully recognises the rights (and duties) of individuals within the family unit. We are particularly guided by the Preamble to the Convention: "Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…". The fact that Ireland has been cited in the European Commission's 2004 Report on Social Inclusion as having the highest rate of poverty for women and second highest for children in the EU markedly shows why reform is urgently required in this area. CSO statistics show that lone parents are overwhelmingly women and that lone parent families live disproportionately in poverty.

The Green Party also believes that Article 41 should be amended so as to cater for a broader concept of The Family and to give greater rights to other forms of family units. The Constitution now focuses on protection of families based on marriage. This needs to be expanded to cover other caring relationships, for example, other forms of cohabiting couples (regardless of sexual orientation), grandparents and grandchildren, foster parents and lone parents. (The 2002 Census data showed that cohabiting couples comprised 8.4% of families and that nearly 30,000 of these families had children.)

We suggest the following amendments to Article 41 as a means of addressing some of the rights issues referred to above, to broaden the concept of Family beyond the nuclear family, and to in particular give broader protection to the child, incorporating the 'welfare principle' regarding children's rights, while at the same time recognizing the vital role that families play in our society. While maintaining the recognition of marriage, these changes would also permit the Oireachtas to legislate as to the prerequisites of marriage, and also permit the Oireachtas to allow for the recognition of institutions or agreements with some of the characteristics of marriage without this being regarded as an attack on marriage as per the current Article 41.3.1.

1.1° The State recognises the Family as the primary and fundamental unit group of Society.

2º The State, therefore, guarantees to protect the Family in it constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2.1º The State recognises that parents and children have the right to knowledge and company of each other, with the welfare of the child being the paramount consideration informing this right.

2º The State recognises that parents are the primary guardians of their children's welfare, with the welfare of the child being the paramount consideration informing this right.

3.1º The State recognises that home and family life give society a support without which the common good cannot be achieved.

2º The State shall, therefore, endeavour to support persons caring for others within the home and ensure that such persons are not obliged by economic necessity to engage in labour to the detriment of their caring role in the home.

4.1º The State pledges itself to guard with special care the institution of Marriage and to protect it against attack.

2º The right to marry will be governed by laws surrounding the exercise of this right.

3º The Oireachtas may provide, by law, for institutions or agreements containing some of the benefits and responsibilities of marriage.

[Since Article 41.3 became 41.4 with our amendments, the present Article 41.3.2º becomes Article 41.4.3º and the rest of the Article, pertaining to the dissolution of marriage, follows on as 41.4.3º i, ii, iii, and iv, and 4º]

The Green Party would also be anxious to ensure that Constitutional recognition of the family, as the primary and fundamental unit of society would be reflected in State policy towards families of immigrants. We would support Sister Stanislaus Kennedy of the Immigrant Council of Ireland when she calls for more State protection of immigrant families and for greater legal entitlements to family reunification.

Article 42 Education

The Green Party believes that terms such as 'inalienable or imprescriptible" applied to family rights in Articles 41 and 42 should be removed from the Constitution. It is important that rights of the individuals within the family unit be given greater recognition and legal support and that the State is allowed to intervene to protect those individuals, particularly the child. We have already deleted such wording in our amendments to Article 41.1.1º and would do likewise in Article 42.1.

Article 42.1 should also be amended to ensure that the rights and duties of parents towards their children's education are not narrowly confined to married parents and their children, as currently interpreted by the courts. Such responsibilities and rights should be broadened out to apply to non-marital parents provided – in the words of the CRG – "they have appropriate family ties and connections with the child in question".

The Green Party also believes that issues raised in the Sinnott Case should be addressed. The Supreme Court held that children as mentioned in Article 42 were persons under the age of 18. This means that the 'duty' of parents to provide for their children as outlined under Article 42.1 only applies to children under 18. Thus, after 18, in theory, a parent no longer has an educational duty to its physically/mentally disabled child.

The Green Party would also support amending Article 42.4 to ensure as a right to the child both free primary and secondary education. The 1922 Constitution of the Irish Free State stated (Article 10) that: "All citizens of the Irish Free State (Saorstát Éireann) have the right to free elementary education". That "right" was deleted in the 1937 Constitution which only guarantees that the State "shall provide" for free primary education. Article 42.4 should explicitly state this right to the child and extend it into secondary education.

Page last updated 22 February 2005