‘The provisions of the Constitution concerning the family require radical reform”

IntroductionThe family, during the drafting of the Constitution, could becontextualised by traditional Roman Catholic value, situated in stringentsocial perimeters.

This initial adherence to religious purposes is primarilyevident in the Preamble, which references ‘the Most Holy Trinity’, classifyingit as ‘our final end.’ As noted by the Constitution Review Group, this Catholicethos has been weakened by several influences, namely social trends andbehaviours.[1]This strict Constitutional grounding can no longer be said to adequately enableor foster the development of modern society. Through the legislativeendorsement of marriage as an ideal, the State serves to neglect practicality,inhibiting the development of family life in all of its forms. In this essay Iwill discuss, the position of the de facto family in Irish law and theprotection enjoyed by the marital family. This will be followed by an analysisof the natural father’s place in law and the relevant developments which relateto his position in recent years.The Changing Face of FamilyLaw in IrelandThe significance of this union, although still prevalent in society,does not hold the same meaning as it did in 1937.

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Both pre-marital relationsand pre-marital conception are no longer stigmatised in the manner they oncewere. The family today can be found to exist in a multitude of ways, some ofwhich is detailed in the Review Group report, including ‘a cohabitingheterosexual couple either of whom is alreadymarried.’[2]  The meaning of family cannot evidently beinterpreted as synonymous with marriage, that withstanding, this is the onlyform of family the Constitution considers. ‘[Article 41 and 42]were clearly drafted with onlyone family in mind, namely, the family basedon marriage.’[3]The De Facto Family’sPosition in Irish LawA consideration raised by Frank Martin in respect of the family, iswhether the courts, in a discretionary sense, may be required to validate otherfamily models, as distinct from the Oireachtas.[4]Given the courts traditionally rigorous compliance with the relevant provisions,I find this hope for change unduly problematic.

 In a case as recent as McD. v L. & Anor[5]concerning a sperm donor’s application for guardianship, the Supreme Courtemphatically rejected the contention that the ‘de facto family’ enjoys anyprotection under Irish law.

Similarly in Nicolaou, Walsh J quite clearly statesthat the family in a Constitutional context is indeed the marital family. ‘[T]hefamily referred to, is the family which is founded on the institution ofmarriage and, in the context of the Article, marriage means valid marriageunder the law for the time being in force in the State.’[6]The States pledge to guard with special care the institution of marriagecontained in Article 41.1.3, leads to a marked difference in the protection ofmarital and non-marital families respectively.

One such instance of this partialitycan be seen in the case of O’B v S[7].A daughter of a non-marital union was in this instance legislatively unentitledby the Succession Act 1965 to inherit her father’s estate. The judiciary foundno fault with the resulting discrimination: ‘It can scarcely be doubted thatthe Act of 1965 was designed to strengthen the protection of the family asrequired by the Constitution and, for that purpose, to place members of afamily based upon marriage in a more favourable position than other persons inrelation to succession to property, whether by testamentary disposition or intestatesuccession. In doing so, the Act of 1965 provided that, in the event ofintestate succession, children of the deceased born outside marriage would notstand in the line of succession, although they could succeed to property bybequest—subject to the particular provisions for the benefit of a spouse of thedeceased or his children born within marriage.

Having regard to theconstitutional guarantees relating to the family, the Court cannot find thatthe differences created by the Act of 1965 are necessarily unreasonable, unjustor arbitrary.’[8]Amazingly, the child in this instance, a product of a non-marital relationship,did not enjoy the same intestacy rights as her marital counterpart.  Protection Afforded to theMarital FamilyThe Court can unwaveringly be seen to reference the obligatory nature oftheir role in protecting the marital family, albeit to the detriment of anyother familial institution. ‘Theprovisions of Article 41 create not merely a State interest but a State obligationto protect the family.

’[9]The Court can also invariably be said to regard the pledge contained in Article41.3.1 and its consequent protection as requiring a notable variance intreatment between marital and non-marital domesticities. ‘For the State toaward equal constitutional protection to the family founded on marriage and the‘family’ founded on an extra-marital union would in effect be a disregard ofthe pledge which the State gives in Article 41.3.1, to guard with special carethe institution of marriage.’[10]Definition of ‘The Family’Today‘[T]he perceived role, form and functions of ‘the family’ have variedconsiderably through history and may differ from State to State, and even fromregion to region within a State, owing to varying cultural, religious,sociological and legal perspectives and individual preferences.’[11]As noted by Frank Martin ‘[T]he ‘family’ is a concept open to multipleinterpretations reflecting political or ideological sets of values.

[12]Therefore I do not consider a blanket definition sufficient. A Constitution byits very nature is a dynamic instrument, capable of adaptation in line with theevolution of society. The Review Group in their report on the family identified 11 issueswhich needed to be addressed, the first of which being: the constitutionaldefinition of the ‘family.’[13]It considersthat a revised Article 41 should retain a pledge by the State to guardwith special care theinstitution of marriage and to protect it againstattack but that a further amendment should be madeso as to make it clear that this pledge by theState should not prevent the Oireachtas from providingprotection for the benefit of family units basedon a relationship other than marriage. While theReview Group favours an express pledge by theState to protect the family based on marriage,it  does not favour the retention ofthe words ‘upon which the family is founded’ in Article 41.3.

1°.  These words haveled to an exclusively marriage ­based definition of thefamily which no longer accords with the social structure in Ireland.[14]  The Natural Father’sPosition in LawThe State (Nicolaou) v An Bórd Uchtála[15]is a pivotal case regarding the establishment of the natural father’s positionin law. In this case a Mr Nicolaou sought to gain custody of his child who wasplaced for adoption pursuant to the Adoption Act 1952 without his consent. Heargued that the adoption was made contrary to his natural right as a parent;however this argument was rejected by the High Court. Henchy J opined that ‘: ‘It is clear that the rights guaranteedto parents by Article 42.1 arise only in cases where the parents and the childare members of the same family; and the only family recognised by the Constitutionis the family which Article 41.

3.1 recognises as being founded on marriage. Inmy opinion the [applicant] is given no rights over his illegitimate child byArticle 42.1.’[16]The case of Re SW an infant, K v W[17]concerned a natural father seeking custody and guardianship of his child whohad been placed for adoption by her mother, subsequent to the couples’separation.  Finlay CJ of the SupremeCourt did not agree with the High Court’s reasoning in the case, believingBarron J to have been mistaken by the assertion that the father in thisinstance had a ‘natural right identified by the Constitution’ to theguardianship of his child. ‘I am satisfied that this submission is not correctand that although there may be rights of interest or concern arising from theblood link between the father and the child, no constitutional right toguardianship in the father of the child exists.’ [18] Another instance in which Finlay CJ concluded a natural father to bewithout automatic guardianship rights was the case of JK v VW[19].

‘The blood link between the infant and the father and the possibility for theinfant to have the benefit of the guardianship by and the society of its fatheris one of the many factors which may be viewed by the Court as relevant to itswelfare.’ In O’R v EH[20]the Supreme Court re-enforced the contention that natural fathers had no rightsin respect of custody or guardianship under the Constitution, and the bloodlink was merely a factor of consideration. Framing a father judicially as afactor for review; hugely undermines his role both within family life and forthe purposes of his contribution to society. This downplay of paternalisticfunction is stark, heightening the difficulty of an already up-hill battle formost natural fathers. The natural Mother has been found to have personal rightsin respect of her children, implicitly provided by the Constitution, however nosuch rights have been recognised in relation to the Father. Is society, or moreaccurately the judiciary too matriarchal in its approach? ‘‘I think it is no exaggeration to say that single fathers are anextremely excluded and ostracised group in Ireland today. They are certainly among the least visible and the most voicelessand they are often seen as dangerous, useless, self-destructive andirresponsible.

’[21]Thenatural father should be supported in his endeavour to establish a relationshipwith his child, however invariably it seems all that greats him is adversity.It would seem members of the judiciary at almost every turn refuse to affordthe natural father any rights in a constitutional context. Howeverparadoxically, if the natural parents marry, the father receives automaticguardianship of his child in this instance, notwithstanding that hissuitability, or resources, which in an application for guardianship would havepreviously been a factor for consideration; now remains unchallenged. I cannotcontend with the idea that marriage bestows any kind of transformative purposeon the couple in question. The judgment offered by Barrington J in this casehowever serves as a symbolic light in an otherwise dark fate for naturalfathers. He inspiringly advocates for fair treatment of natural fathers in aneye opening comparison provided by the consideration of the natural father’s rightsin relation to the protection afforded to the non-marital child, and thenatural mother. Development in Relation to thePosition of Natural FathersBarrington J identifies the logical flaws to be found within Nicolaou:‘Once the Supreme Court had accepted that the prosecutor was a concerned andcaring parent it was not logical to justify his exclusion [from the category of‘parent’ for the purposes of the Adoption Act 1952] by a reference to naturalfathers who had no interest in the welfare of their children.

’ ‘To say that thechild has rights protected by Article 40, s 3 and that the mother, who hasstood by the child, has rights under Article 40, s 3 but that the father, whohas stood by the child, has no rights under Article 40, s 3 is illogical,denies the relationship of parent and child and may, upon occasion, work acruel injustice.’[22]This passage, although obiter, for me constitutes a judicial sigh of relief,that perhaps, with this line of thought occurring amongst even several judges,there may in fact be hope for significant recognition of the natural father’srights. The ECHR has notably contributed to the rights enjoyed by the naturalfather. In the case of Keegan v Ireland[23]it was held that the Irish Court, in allowing a child to be placed for adoptionwithout the natural father’s knowledge or consent constituted a violation ofArticle 8, guaranteeing respect for family life. As a consequence of thisruling, the Adoption Act 1998 was introduced, requiring the notification of thenatural father if his child was being placed for adoption. ‘Every child has two parents irrespective of whether they are married,separated, single, cohabiting or living apart; in this sense, there are noone-parent families.’[24] Ithink if we are to most accurately adapt our attitudes and shed ourexclusionary mentality in respect of natural fathers, we must ensure ourlanguage is that of an inclusive form. The Review Group considers that the solution appearsto lie in following the approach ofArticle 8 of the ECHR in guaranteeing to every person respect for ‘familylife’ which has been interpreted to include non­marital family life but yet requiring the existence of family ties between the mother and thefather.

  This may be a way of grantingconstitutional rights to those fatherswho have, or had, a stable relationship with the mother prior tobirth, or subsequent to birth with the child, whileexcluding persons from having such rights who areonly biological fathers without any such relationship. [25]Icannot say I expressly agree with this approach as without affording thenatural father the chance to establish a relationship with their child,irrespective of the mother, this will preclude a countless number of potentialfathers from realising an imperative role. Treating parenting as synonymouswith mothering is one of the greatest ways to weaken the fabric of family life.[26]ConclusionThe Constitution by its very nature is an instrument capable ofreflecting the change happening in the modern age. Perhaps the time has arrivedfor Irish society to realise that, if the legislators continue to legislatewithin a constitutional framework incompatible with the changing familyrelationships of the 21st century, respect for the rule of law will diminish.

[27][1] Constitution Review GroupReport, The Family (CRG 1996) 1[2] Ibid at 3[3] Ibid at 1[4] Frank Martin, ‘THE CHANGING FACE OFFAMILY LAW IN IRELAND’ (2005) 5(1)Judicial Studies Institute Journal 1[5] [2009] IESC 81[6] [1966] IR 567 at 643[7] [1984] IR 316[8] [1984] IR 316 at 335[9] [1984] IR 316 at 336[10] [1966] IR 567 at 622[11] 4 Hodgson, D., “The InternationalRecognition and Protection of the Family,” (1994) Australian Journal of FamilyLaw, vol. 8 at p. 22[12] Frank Martin, ‘THE CHANGINGFACE OF FAMILY LAW IN IRELAND’ (2005) 5(1) Judicial Studies Institute Journal 1[13] Constitution Review GroupReport, The Family (CRG 1996) 2[14] Ibid at 11[15] [1966] IR 567[16] [1966] IR 567 at 623[17] [1990]2 IR 437[18] Ibidat 447[19] [1990]2 IR 437[20] [1996]2 IR 248[21] Kieran McKeown, ‘Families andSingle Fathers in Ireland’, Administration, vol.

49, no. 1 (Spring 2001) 3[22] [1996] 2 IR 248 at 283–284[23] [1994] 18 EHRR 342[24] Kieran McKeown, ‘Families and Single Fathers in Ireland’, Administration,vol. 49, no. 1 (Spring 2001) 4[25] Constitution Review GroupReport, The Family (CRG 1996) 6[26] Kieran McKeown, ‘Families and Single Fathers in Ireland’, Administration,vol.

49, no. 1 (Spring 2001) 19[27] Frank Martin, ‘THE CHANGINGFACE OF FAMILY LAW IN IRELAND’ (2005) 5(1) Judicial Studies Institute Journal 26


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