As the Irish Constitution turns 80 it is an opportune time to consider the successes of the Constitution since its inception along with the challenges it may face in years to come. Articles 41 and 42 of the Constitution of Ireland protect the family and have been the subject of judicial scrutiny, public debate and legislative change throughout their existence to date. Article 41 of the Constitution identifies the family as ‘the natural primary and fundamental unit group of Society.’ Several academics feel that the family unit is ‘placed on a constitutional pedestal.’ Crowley states that ‘elevated positioning of the family’ within the Constitution is ‘effectively above State intervention.’ This stance was reiterated by Keane CJ in North Western Health Board v H.W. and C.W. when he said that the family referred to within Articles 41 and 42 ‘is endowed with an authority which the Constitution recognises as being superior even to the authority of the State itself.’ Article 42 of the Constitution also protects the family acknowledging them as ‘the primary and natural educator of the child.’
For one to understand and examine the protections afforded by the Constitution in relation to the family unit, a definition of what comprises a family is needed. Family is defined by the Cambridge Dictionary as a ‘a group of people who are related to each other, such as a mother, a father, and their children.’ Unfortunately, there is no definition for the family within the text of the Constitution itself and as such it has been left up to the judiciary to define the term. The courts have held that the family referred to in the Constitution is based upon marriage regardless of whether or not they have children. Whilst Article 41 does not explicitly refer to a requirement of marriage, such a requirement would appear to be imbedded within it. In the seminal case of State (Nicolaou) v An Bord Uchtála Walsh J held that the family concerned within the Article 41 of the Constitution is ‘founded on the institution of marriage.’ The nuclear family possesses ‘inalienable and imprescriptible rights.’ This was affirmed in G v An Bord Uchtála and Sinnott v The Minister for Education where Denham J referred to Article 41 as ‘an article of our times.’ However he went on to note that whilst the family units are constantly progressing, ‘as a constitutional unit the family remains grounded on marriage.’
Perhaps, the vagueness of Article’s 41 and 42 of the Constitution are the reason which has enabled them to progress so well with time. When the Constitution was drafted in 1937, divorce was explicitly prohibited under Article 41 which stated that ‘no law shall be enacted providing for the grant of a dissolution of marriage.’ This article was removed as decided by the people of Ireland in the referendum held in November 1995 and as such divorce was legalised by means of the 10th Amendment and the Divorce Act 1996 was introduced. The 31st Amendment of the Constitution occurred in November 2012 when the Children’s Referendum took place. This involved changing Article 42 of the Constitution, something which will be discussed in more detail in the latter stages of this essay. The 34th Amendment to be passed by the people of Ireland lifted the prohibition on people of the same sex marrying one another previously imposed within the Constitution of Ireland. This saw the introduction of the Marriage Act 2015.
Whilst rights in relation to the family are guaranteed within the Constitution, they are not explicitly enumerated for and thus it has been left up to the judiciary once again to decide exactly what these rights should be. The rights protected in relation to the family under Article 41 must be pleaded for the family as a whole, not individually.
In McGee v Attorney General it was held that there is a right to marital privacy where the Supreme Court found that the prohibition on the importation of contraception was unconstitutional and as such was lifted in relation to married couples. Walsh J also held that the State cannot interfere with the privacy of a married couple ‘unless its intrusion can be justified by the exigencies of the common good.’
The holding in Murray v Attorney General brought about the introduction of the right of a married couple to procreate into the Constitution. This case is important as the High Court also found that constitutional rights can be suspended and are therefore not absolute. Just as there is a right to procreate, there is an equal right to refuse to procreate.
The case of Murphy v Attorney General posed the question as to whether married couples should be treated less favourably than cohabitating couples in relation to income tax. The Supreme Court held that the Income Tax Act 1967 discriminated against married couples and the court held that this could be deemed to be ‘a breach of the pledge by the State to guard with special care the institution of marriage and to protect it against attack.’
Consortium was defined by Kingsmill Moore J in O’Haran v Devine as:
“the sum total of the benefits which a husband and wife may be expected to confer on each other, such as, help, comfort, companionship, services and all the amenities of family and marriage.”
And as such, the Court found that there was a Constitutional right to consortium in relation to married couples. In McKinley v Minister for Defence it was held that the right to consortium stems from the principle of equality found in Article 40 of the Constitution. This was affirmed in Coppinger v Waterford County Council.
Article 42.1 of the Constitution provides the family with a right to educate the children of their union acknowledging them as the ‘primary and natural educator of the child’ and noting that they must provide ‘for the religious and moral, intellectual, physical and social education of their children.’ This implies that parents have the right to educate their children in private schools, public schools or indeed their children may be home schooled if their parents so wish. Speaking on Article 42, Laffoy J said that it is ‘imbued with the concept of parental freedom and choice.’ However, it is necessary for the State to ensure that the child receives a ‘certain minimum education.’ If parents fail in their moral obligation to ensure their child receives a sufficient education the State is permitted to take the place of the parents and ensure this occurs.
As previously mentioned, in 2012 the Children’s Rights Referendum took place following years of canvassing for reform in the area of children’s rights from scholars, such as Aoife Nolan who felt that the ‘consideration of children’ within the 1937 Constitution is ‘limited’ to the All Party Oireachtas Committee in 2006 and indeed after the public outcry which took place following the decision of the Baby Ann case. The 31st Amendment to the Constitution of Ireland was signed into law in April 2015. It repealed Article 42.5 inserting Article 42A in its place which adopted a more child centred approach.
Since the introduction of the Constitution in 1937, Irish society has transformed massively, for example the legalisation of divorce and same-sex marriage. In modern Ireland, it is becoming more and more common for people to decide to live together and procreate but not marry one another. Families of this nature are known as ‘cohabitating families’ and they contain all the characteristics of normal family under Article 41 of the Constitution bar the institution of marriage. In the 2011 Census, there was over 145,500 cohabitating families in Ireland. This poses the question as to what protection is afforded to the cohabitating family under Article 41 of the Constitution? In the afore mentioned Nicolau, Walsh J stated that whilst cohabitating families may have ‘all the outward appearances of a family’, the protection afforded by Article 41 is ‘confined to families based upon marriage.’ This discrimination against cohabitation was affirmed in Ennis v Butterly where Kelly J held that ‘non-marital cohabitation does not and cannot have the same constitutional status as marriage.’ Cohabitating families are also known as the ‘de facto family.’ However, in McD v L and Anor Denham J declared that ‘there is no institution in Ireland of a de facto family.’ It is therefore quite clear that the cohabitating family is discriminated against under Article 41 of the Constitution. However, looking at this from the point of view of the Constitution, cohabitating couples have the right to marry, they have just chosen not do so and ‘should thus be taken not to have accepted legal recognition or regulation of their union.’ It should be noted that if a cohabitating couple with children marry, the children will be legitimised and protected under Articles 41 and 42.
It is quite clear from the holding in Nicolaou, that the father of an illegitimate child has no constitutional rights to ‘either custody or society’ of his child. This was affirmed in J.K. v V.W. Whilst the natural father has no rights to his child, the child has a natural right to look to his father for support, as per Walsh J in G v An Bord Uchtála. Despite this, the natural father is not without some rights. Under the Guardianship of Infants Act 1964 the natural father has the statutory right to apply to the Court for guardianship of his child. This position was adopted in the case of W.O’R. v E.H. The Children Act 1997 permits a natural father to become a guardian of his child if consented to by the child’s natural mother.
In G v An Bord Uchtála O’Higgins J held, on behalf of the Supreme Court, that if a mother seeks the return of her child, whom she had previously placed for adoption, she ‘is not the mother of a family, in the sense in which that term is used in the Constitution.’ He went onto acknowledge, however, that ‘she is a mother and, as such, she has rights which derive from the fact of motherhood and from nature itself.’ The rights referred to by the judiciary in this case were the personal rights under Article 40.3.1 of the Constitution. The Guardianship of Infants Act states that the mother of a non-marital child is its sole guardian and thus she has right to custody of the child. The constitutional right to privacy, as found in Kennedy v Ireland extends to the non-marital mother. However, this right may be limited in certain circumstances.
Whilst the illegitimate child is not recognised as a member of the family unit within Article 41 of the Constitution, it is not completely without protection. Article 40 of the Constitution provides the non-marital child with a right to support from his or her mother. Of course, illegitimate children are also afforded personal rights, both enumerated and un-enumerated such as the right to life, education etc. As previously mentioned, in Nicolaou it was held that the non-marital father has no right to ‘either custody or society of his child.’ However, Walsh J held that an illegitimate child has ‘a natural right to look to his father for support.’ The principle that all children, whether legitimate or illegitimate, are entitled to equal rights was established by the Status of Children Act 1987. This position was quite clearly adopted in the afore mentioned case of G v An Bord Uchtála where Walsh J stated in his judgement that the non-marital child had ‘the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock.’ An illegitimate child also has ‘the same natural and imprescriptible’ right to education ‘as a child born in wedlock.’ In I.O’T v B the Supreme Court found that a person has a Constitutional right to be made aware of the identity of their birth mother, this is afforded by Article 40.3.1 of the Constitution. However, this right may be restricted in such cases as where ‘children have been adopted lawfully under adoption legislation.’
It would therefore seem that rights are not absolute and in specific circumstances they can be limited or indeed taken away. The Constitution, in its failure to recognise de facto families, is not only discriminating against them, but leaving them vulnerable in the face of the law. Speaking on the matter, O’Mahony stated that with the ever increasing number of non-marital families within the State, there is a huge ‘urgency for reform’ and when this treatment is ‘contrasted with the generous treatment afforded by the courts to non-citizens, it becomes clear just how absurd and illogical the current situation is.’ The All-Party Oireachtas Committee opposed this view however. They stated that ‘an amendment to extent the definition of the family would cause deep and long-lasting division in our society and would not necessarily be passed.’ The idea that there is a considerable proportion of the population living under the same roof and adopting the same principles of married couples, but not being afforded the same rights as them in clear discrimination. O’Sullivan feels that it should be put before the people of the State to decide whether or not the Constitutional definition of family should be extended and ‘not left up to a committee who believe it would not necessarily pass.’
Eardly stated that:
“In a society where the cohabitation rate is increasing and the marriage rate is falling, one must wonder at how the practice of this State guards with special care the institution of marriage when it denies to loving and committed couples the entitlement to enter into civil marriage or have that marriage recognised.”
The legalisation of divorce and same-sex marriage was undoubtedly a step in the right direction but it is overdue that it be put to the people of the State as to whether or not the definition of family be amended. Shatter states that the definition should be amended to guarantee ‘to all individuals a right to respect for their family life.’ Doing so would finally put the State’s laws in line with Article 8.1 of the European Convention on Human Rights, something which Ireland has ratified. Article 8.1 states that ‘everyone has the right to respect for his private and family life, home and his correspondence.’ This would imply that marriage is irrelevant in relation family rights.
The Constitution most certainly is not perfect. However, it is an invaluable tool affording great protection to the citizens of Ireland. It is quite clear that reform is needed if the Constitution is to continue to evolve with time and adapt to the modern Ireland of 2017. One can therefore conclude that Ireland’s modern families are not protected to an acceptable level, a level which the Constitution sets out itself in the maxim of Article 41 and 42.