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Constitution committee split on family, McManus tells conference

Issued : Saturday 12 November, 2005

At this conference there are speakers on the position in law of single parent families, gays and lesbians, grandparents and fathers. It is clear that the days are long since gone when the only issues faced by family lawyers and legislators were disputes between husband and wife.

In this regard you will all be aware that the Oireachtas All Party Committee on the Constitution is at present finalising its deliberations on the Articles of the Constitution that deal with the Family.

These include Article 40 on personal rights as well as Article 41 of the Family since, as matters now stand, families not based on marriage do not enjoy family rights and must rely on Article 40 instead. Article 42 on Education also falls to be considered.

You will know that Article 41 at present recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

Incidentally, some of this is language not so far removed from the Universal Declaration of Human Rights, which refers to the family as “the natural and fundamental group unit of society”. I wonder whether the Irish “fundamental unit group” and the UN’s “fundamental group unit” do not both derive from a Latin text drawn up on the banks of the Tiber.

Our Constitution goes on to guarantee to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

No doubt you are familiar with the objectionable references that follow to woman’s life within the home.

The Article then provides that the State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The Labour Party made a submission to the All-Party Committee arguing for a recast version of Article 41, along the lines proposed by the Constitution Review Group in its 1996 report.

Specifically, we tabled proposals in relation to women in the home; recognition of marital and non-marital families; and on the rights of the child.

In our draft we did not seek to displace the family as currently recognised or to undermine the current status of the institution of marriage. Some participants at this meeting might criticise us as being too cautious in our approach.

Our proposed text on the family and on marriage would read as follows.

The State recognizes the family as the natural primary and fundamental unit group of society and that home and family life give to society a support without which the common good cannot be achieved. The State shall accordingly endeavour to support persons maintaining or caring for others within the family home.

The State pledges itself to guard with special care the institution of marriage and to protect it against attack and to protect the family based on marriage in its constitution and authority. All persons have the right to marry, in accordance with the requirements of law, and to found a family.

The State also recognises and respects family life not based on marriage. The Oireachtas is entitled to legislate for the benefit of such families and of their individual members.

And, on the rights of the child, we proposed the following text.

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the rights of the child, which rights include: –

•the right to have his or her best interests regarded as the first and paramount consideration in any decision concerning the child;

•the right to know the identity of his or her parents and as far as practicable to be reared by his or her parents and each of them, subject to such limitations as may be prescribed by law in the interests of the child;

•the right to have due regard given to his or her views in any decision concerning the child; and

•the right to education, health care and other means necessary to the achievement of human potential, including the right to special assistance from the State for the protection and advancement of children disadvantaged by discrimination, economic or social exclusion or physical or mental disability in order to enable, as far as practicable, their full participation to the best of their abilities in the life of the nation.

In exceptional cases, where parents fail in their duty towards their children or where the interests of a child require intervention, the State as guardian of the common good, by appropriate means must endeavour to supply the place of the parents but always with due regard for the rights of the child.

You will probably have seen newspaper reports on the likely recommendations that will come from the All-Party Committee. It now seems most unlikely that the committee will recommend changes to the definition of the family as being solely based on marriage.

I have been briefed by our representative on the committee, Jan O’Sullivan and it appears that neither of the larger parties is willing to countenance any change in this area. Apparently, they fear that changes to the traditional definition of the family could open the door to recognition of gay marriage.

How our proposal to “recognise and respect the family not based on marriage” could open the door to gay marriage I do not understand. It seems to me that the majority on the committee were reacting to the proposal more by way of knee jerk and instinct rather than on any reasonable analysis.

I do appreciate by the way that there are sections in the gay and lesbian community who may wish to go further than Senator David Norris does in his Civil Partnership Bill and would wish for full equivalence, both as regards rights and obligations and as regards terminology, between marriages as presently understood and gay unions.

That does not seem to me, however, to be a feasible proposition and it is not one that the Labour party advocates. We do fully support the civil partnership proposal.

In any event it seems that a majority of the All-Party Committee has decided that a referendum on a redefinition of the family, or on expanded recognition for non-marital families, would be “misinterpreted and divisive”.

I regret that a majority of members of the Committee have gone down this road. It now seems likely that the committee will split on the issue and that the members from Labour, the Greens and Sinn Féin will produce a minority report.

The report will, however, only represent the views of a majority of a 14-person committee. It will be read and debated by the wider membership of the Houses of the Oireachtas and by many interest groups and members of the public.

On a more positive note, the committee was able to agree that there should be a constitutional amendment to underpin the individual rights of children. Publication of the Ferns Inquiry Report must give added impetus to movement in this area.

And the committee also agreed a constitutional amendment to make the provision relating to women in the home gender-neutral.

So far as my own party is concerned, my colleague, Kathleen Lynch TD, hopes to shortly publish proposals for a Bill to introduce a degree of equal treatment as between parents in the family courts.

I recognise of course that there is no universal template into which all relationships must be squeezed. But the starting point should be a presumption that shared parental commitment to the maintenance and upbringing of a child is in that child’s best interests.

We will propose that the father and mother of a child, whether married to each other or not, should be guardians of the child jointly. This would be subject to cases where one parent –

•has formally renounced all claims and responsibilities in respect of the child;

•has no intention of assuming any guardianship responsibilities;

•has wholly failed to exercise guardianship responsibilities in respect of the child and there is no reasonable prospect that he or she will in future exercise such responsibilities; or

•has become the father of the child as a result of non-consensual intercourse.

The Bill will also provide that in any proceedings relating to the guardianship or custody of, or access to, a child or for the delivery or return of a child, it shall be presumed, until the contrary is proven, that it is in the best interests of a child –

•that both such parents should have custody of the child jointly, save in exceptional circumstances,

•if exceptional circumstances do exist, that the other parent should have access to the child approximating as far as practicable to the time spent by the child with the custodial parent, and

•that both parents should take all reasonable steps to consult and co-operate with each other in relation to decisions, events and other matters of importance directly concerning the child and should continue to have contact and be involved in a constructive relationship with the child and contribute to the child’s upbringing, development and education.

I look forward to discussing these proposals further with many of you when they are finalised and published.