Submission to the All-Party Oireachtas Committee on the Constitution: The Family
February 2005
Introduction
This Comhairle Submission builds on feedback from Citizens Information Centres (CICs). Queries to CICs and the Citizens Information Phone Service (CIPS), are an important source of information which is used by Comhairle to advise Government on aspects of social policy and the development of social services. During 2004, CICs throughout the country dealt with over 600,000 queries. The most recent CIC survey, (Nua 2004), showed that 7 per cent of CIC queries related to specific family matters -- separation/divorce, joint parenting, custody/access/guardianship, maintenance, the family home and domestic violence. Also, many social welfare related queries refer directly or indirectly to family matters, e.g., welfare/work traps, Family Income Supplement and supports for one parent families.
Comhairle recognises the complexity of family-related issues and the difficulty in making adequate constitutional and legal provision for all eventualities. We, therefore, very much welcome the fact that the All-Party Oireachtas Committee on the Constitution is now focusing its attention on family-related provisions. We suggest that in considering the Constitutional matters relating to the family full cognisance needs to be taken of both recent trends in family formation and the evolution of family policy, nationally and internationally.
Underlying Principles
In considering family policy Comhairle is mindful that:
(i) The principles and objectives which underpin family policy should be enunciated with as much clarity as possible.
(ii) The basic and essential activities of care and belonging can take place in a variety of family forms and this diversity in family formation should be recognised.
(iii) Continuity and stability in family relationships have major importance for the well-being of children.
(iv) There is a need to give priority in legal and policy discourse to children's needs as distinct from parents' rights and to operate on the basis that children's needs and rights are paramount, particularly in the context of marriage and relationship breakdown when children may be particularly vulnerable.
(v) Joint parenting is centrally important for the well-being of children and should be an integral part of policy development.
(vi) The role of the State should be to support families and promote their general well-being and ensure access to appropriate services and supports.
(vii) State interference in family life should be permitted where necessary to safeguard vulnerable members such as children, the elderly and people with disabilities.
(viii) Family care should be promoted and supported with particular reference to vulnerable members within families – children, people with disabilities and dependent older persons.
(ix) Social services and supports for families and ongoing changes in family law should be planned and developed in tandem with constitutional reform.
Family Policy in Ireland
Legislation introduced during the 1980s and 1990s has endeavoured to provide increased protection for marital and non-marital families in Ireland. Legislation on judicial separation and divorce has widened the conditions under which couples may legally separate and has also set down additional provisions in respect of the family home, children and maintenance. The provision for the dissolution of marriage in certain specified circumstances included in the Fifteenth Amendment of the Constitution Act, 1995 marked a very significant departure from the provisions in the 1937 Constitution.
Social welfare legislation has broadly kept pace with the changing trends in family formation. Entitlements for deserted spouses, single mothers and lone parents were introduced in the1970s and 1980s. The numbers of families in receipt of these benefits has increased substantially in recent years. More recent integration between social welfare and training/education has enabled lone parents to avail of further education and training without any loss of entitlement.
It has also become widely accepted that public policies and public services should be more accommodating of the growing diversity of partnership arrangements and family types which now characterise Western societies while at the same time recognising the importance to children of having a stable and positive relationship with both parents, even where both parents do not live together. Many Governments within the EU, including Ireland, have chosen a family policy, which combines the twin approaches of accommodating family diversity while at the same time promoting key family relationships. In recent years, various legislative changes and social welfare provisions have been introduced in Ireland to reflect a broader understanding of family.
Diversification of Family Structures
The 2002 Census of Population shows that the fastest growing family types in Ireland are lone parents and cohabiting couples. However, the largest family type, 489,500 continues to be two first-time married parents with children.. There are also more families from different ethnic and cultural backgrounds and a growing number of mixed race families.
Between 1996 and 2002 the number of separated persons (including divorced) increased by over 50 per cent. Within the overall separated category the number of persons recorded as divorced more than trebled, from 9,800 to 35,100, between 1996 and 2002, reflecting to a large extent the legalisation of divorce in the State in 1997. An indication of the relative extent of marital breakdown is provided by expressing the number of separated and divorced persons as a percentage of the total number of ever-married persons. In 2002 this proportion stood at 7.5 per cent compared with 5.4 per cent six years earlier (Central Statistics Office 2003).
The role of marriage in family formation has also changed. A rapid increase in the share of fertility occurring outside marriage began in the 1980s and continued unabated during the 1990s. However, it has been noted (Fahey and Russell 2001) that it appears that large proportions of those who begin childbearing outside of marriage subsequently enter marriage, though the exact proportion has not been fully quantified. Also, relatively little is known about the patterns of exit from lone parenthood through the formation of new unions.
Between 1996 and 2002, households comprising childless couples (whether married or not) represented the fastest growing category - up 38.7 per cent in six years. The number of households consisting solely of couples (married and cohabiting) with children increased by 11.1 per cent in the same period. Households consisting of lone parents with children increased by 25,800 (24.5%) between 1996 and 2002.
The Concept of ‘Family'
The family is regarded by the Irish Constitution as "the natural, primary and fundamental group of society" (Art. 41.1.1) and the State guarantees to protect it in its constitution and authority (Art. 41.1.2). While 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" (Art. 41.3.1), it is now widely accepted that the concept of ‘family' encompasses various sets of relationships and living arrangements. In addition to the family based on marriage (with or without children), there are a number of other family types, e.g., lone mothers or fathers (widowed, separated or divorced) and children, co-habiting couples with children, single parents (usually a mother with one or more children), families brought up by grandparents and separated families who may live in two different households but who are still families. The United Nations (1990) referred to the family as a basic social group composed of a married or unmarried couple and children, including adopted ones. The International Year of the Family, 1994, used the term 'family' as an embracing, all-inclusive one, covering a wide range of structures and functions and had as one of its aims to recognise, support and empower diverse family forms. The European Court of Human Rights (1994) referred to ties and bonds "amounting to family life" such as those that exist between some couples who are neither married nor co-habiting. The Report of the Department of Social and Family Affairs Consultative Fora (Daly 2004) suggests that a definition of family should be capable of embracing diverse family forms, including grandparents and children, foster parents and children, lone parents, unmarried partners and children and same sex parents and children.
The Constitution Review Group (1996) favoured the retention in the Constitution of a pledge by the State to protect the family based on marriage but also to guarantee to all individuals a right to respect for their family life whether that family is, or is not, based on marriage.The Review Group also considered that a revised Article 41 should retain a pledge by the State to guard with special care the institution of marriage and to protect it against attack but that a further amendment should be made so as to make it clear that this pledge by the State should not prevent the Oireachtas from providing protection for the benefit of family units based on a relationship other than marriage. The Commission on the Family (1998) supported this view.
Comhairle recommends that the understanding of family, which underpins legislation, needs to be revised in the context of current family trends. In addition to the family based on marriage, there is a need to recognise and encompass other family ties and bonds which amount to family life.
Cohabiting Couples
The increasing prevalence of extra-marital cohabitation in Ireland has resulted in calls for its legal recognition and regulation.
In 2002 there were 77,600 family units consisting of cohabiting couples, up from 31,300 six years earlier. Almost two- thirds of these were childless couples. Of the remaining 29,700 family units, over half had just one child. Overall, cohabiting couples accounted for 8.4 per cent of all family units in 2002 compared with 3.9 per cent in 1996. The number of children living with cohabiting parents increased from 23,000 in 1996 to 51,700 in 2002.
People in co-habiting relationships have relatively little protection under Irish law at present. This comes into sharper focus in situations of relationship breakdown (where there is no legal right to financial support) and in situations where one partner dies (where there is no right to the estate). Unmarried partners cannot adopt children as a couple, even the child of one of the partners. Cohabitees are treated as single persons for taxation purposes and are not entitled to married persons' tax credits or bands, the One Parent Family Tax Credit or the Home Carer's Tax Credit.
The Law Reform Commission in its Consultation Paper 1 on the rights and duties of cohabitees (Law Reform Commission 2004), proposes a scheme, which would impose legal rights and duties on cohabitees who satisfy certain criteria. Such cohabitees are described as ‘qualified cohabitees', i.e., “persons who, although they are not married to one another, live together in a ‘marriage like' relationship for a continuous period of three years or two years where there is a child of the relationship” (p.4). The Commission acknowledges that ‘marriage like' relationships exist between same-sex couples as well as opposite-sex couples. In order to qualify, a cohabitee must not be a party to an existing marriage. The Commission points out that this latter exclusion is necessitated by Article 41.3.1 of the Constitution which states 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”. In determining whether the parties have been living together in a ‘marriage like' relationship, it is suggested that the court would consider a wide range of factors.
The Commission also proposes that in exceptional circumstances qualified cohabitees should be entitled to apply for property adjustment orders on the break up of the relationship. The Commission also examines succession rights and proposes that qualified cohabitees be given the right to apply for relief where they feel that proper provision has not been made for them in the will of the deceased or under the intestacy rules.
The Law Reform Commission (2004) proposal for a scheme, which would impose legal rights and duties on cohabitees who satisfy certain criteria, appears worthwhile and balanced and should be explored further.
Family Care
The role of the family as a caring unit has been the subject of much discussion and debate in recent years due mainly to changes in work patterns and in the role of women in society. Care in the home, whether for small children, dependent older people or people with disabilities of whatever age, is more and more becoming an issue of concern.
Increasingly, potential carers are, either by necessity or choice, working outside the home. Contributory factors are career choice, spiralling housing costs, and a social welfare and tax system that does not provide adequate incentives and supports to people to stay at home to care for children or other dependants. Increased women's participation in the labour market has resulted in greater attention being given to the phenomenon of caring in the home and its associated costs and the urgent need to reconsider how work and familial organisation can be harmonized.
The Constitution Review Group recognised the importance of the caring function of the family and stated that it was important that there is constitutional recognition for the significant contribution to society made by the large number of people who provide a caring function within their homes for children, elderly relatives and others. The group suggested a revised form of Article 41.2 to provide for a gender-neutral constitutional recognition of this which would read:
The state recognizes that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.
The Commission on the Family supported the Review Group's recommendation for constitutional recognition in a gender-neutral form of the caring function in the home as exercised by both men and women.
Comhairle supports the view that the Constitution should include a strong and gender neutral recognition of people providing care in the home for children, people with disabilities and dependent older people.
Rights and Obligations of Non-Marital Fathers
There has been ongoing criticism of the fact that the Constitution offers no protection for the rights of natural fathers. This issue takes on particular significance in the case of natural fathers who either live in a stable relationship with the natural mother, or have established a relationship with the child. It should be noted that the natural mother's rights are personal rights protected by Article 40.3 of the Constitution which states that “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”
A natural father is considered not to have any constitutionally-protected rights to his child. This arises from the decision of the Supreme Court in The State (Nicolaou) v An Bord Uchtála. In that case the child of a natural father had been adopted pursuant to the Adoption Act 1952 without his consent. He challenged the provisions of the Adoption Act, which permitted that to be done. The Supreme Court held:
i) a natural father is not a member of a family within Article 41
ii) a natural father is not a 'parent' within Article 42
iii) a natural father has no personal right in relation to his child which the State is bound to protect under Article 40.3/
The question of the rights of natural (non-marital) fathers was addressed by the Law Reform Commission Report on Illegitimacy (Law Reform Commission, 1982), which had among its recommendations that "both parents of a child should be the joint guardians, whether the child is born within or outside marriage". (Law Reform Commission 1982, p.178).
Family law changed considerably with the enactment of the Status of Children Act, 1987. This went a long way to establishing the rights of all children to legitimacy and protect their right to a share in the estate of their natural parents. However, the Act did not advance the rights of natural non-marital fathers to automatic guardianship of their children. The provision in the Act for non-marital fathers to go to the court to obtain access to their child(ren) may be less than satisfactory in that the onus is on the father to demonstrate a genuine and proper interest in the child. However, it should be noted that the issue of guardianship is a highly complex one, which requires careful and sensitive consideration. For example, the concept of automatic guardianship would raise major difficulties in situations where a father demanded guardianship rights after having been absent for a long period of time without any involvement with the child or in instances of children conceived through rape.
Child custody and guardianship and the rights of non-marital fathers are ongoing issues for many lone parents. Some fathers are clearly dissatisfied with custody arrangements. Some single mothers are concerned about registering a father's name on the child's birth certificate and, specifically, whether this would affect their entitlement to the One Parent Family Payment. Also, some are concerned that registering the father's name might give him access rights to the child.
The Constitutional Review Group took the view that there did not appear to be justification for giving constitutional rights to every natural father simply by reason of biological links. The solution proposed by the Review Group was to grant constitutional rights to those fathers who have, or had, a stable relationship with the mother prior to birth, or subsequent to birth, with the child. This would be achieved by guaranteeing to every person a respect for family life, including non-marital family life but requiring family ties between the father and mother.
Comhairle recommends that provision be made in the Constitution for the rights of non-marital fathers in accordance with the views of the Constitution Review Group.
Constitutional Change
The Constitution Review Group made a number of recommendations in regard to constitutional provisions for families: Recommendations refer to the family based on marriage and the family not based on marriage and specific recommendations refer to the rights of children.
Comhairle broadly supports these recommendations as a balanced and reasonable approach to addressing many of the problems arising from the diversification of family types and changing gender roles. The constitutional changes proposed would facilitate the development of a coherent family policy and legislative framework.
Summary of Recommendations
Comhairle recommends that the understanding of family, which underpins legislation needs to be revised in the context of current family trends. In addition to the concept of the family based on marriage, there is also a need to recognise and encompass other family ties and bonds.
The Law Reform Commission (2004) proposal for a scheme, which would impose legal rights and duties on cohabitees who satisfy certain criteria, appears worthwhile and balanced and should be explored further.
Comhairle supports the view that the Constitution should include a strong and gender neutral recognition of people providing care in the home for children, people with disabilities and dependent older people.
Comhairle recommends that the provision be made in the Constitution for the rights of non-marital fathers in accordance with the views of the Constitution Review Group.
Comhairle broadly supports the recommendations of the Constitution Review Group in regard to constitutional provisions for families as a balanced and reasonable approach to addressing many of the problems arising from the diversification of family types and changing gender roles.
Footnotes
1. This Consultation Paper is intended to form the basis for discussion and accordingly the recommendations, conclusions and suggestions are provisional. The Commission will make its final recommendations following further consideration of the issues and consultation.
