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

Introduction

The family, during the drafting of the Constitution, could be
contextualised by traditional Roman Catholic value, situated in stringent
social perimeters. This initial adherence to religious purposes is primarily
evident in the Preamble, which references ‘the Most Holy Trinity’, classifying
it as ‘our final end.’ As noted by the Constitution Review Group, this Catholic
ethos has been weakened by several influences, namely social trends and
behaviours.[1]
This strict Constitutional grounding can no longer be said to adequately enable
or foster the development of modern society. Through the legislative
endorsement 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 I
will discuss, the position of the de facto family in Irish law and the
protection enjoyed by the marital family. This will be followed by an analysis
of the natural father’s place in law and the relevant developments which relate
to his position in recent years.

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The Changing Face of Family
Law in Ireland

The significance of this union, although still prevalent in society,
does not hold the same meaning as it did in 1937. Both pre-marital relations
and pre-marital conception are no longer stigmatised in the manner they once
were. The family today can be found to exist in a multitude of ways, some of
which is detailed in the Review Group report, including ‘a cohabiting
heterosexual couple either of whom is already
married.’[2]  The meaning of family cannot evidently be
interpreted as synonymous with marriage, that withstanding, this is the only
form of family the Constitution considers. ‘[Article 41 and 42]
were clearly drafted with only
one family in mind, namely, the family based
on marriage.’[3]

The De Facto Family’s
Position in Irish Law

A consideration raised by Frank Martin in respect of the family, is
whether the courts, in a discretionary sense, may be required to validate other
family 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 Court
emphatically rejected the contention that the ‘de facto family’ enjoys any
protection under Irish law. Similarly in Nicolaou, Walsh J quite clearly states
that the family in a Constitutional context is indeed the marital family. ‘[T]he
family referred to, is the family which is founded on the institution of
marriage and, in the context of the Article, marriage means valid marriage
under the law for the time being in force in the State.’[6]

The States pledge to guard with special care the institution of marriage
contained in Article 41.1.3, leads to a marked difference in the protection of
marital and non-marital families respectively. One such instance of this partiality
can be seen in the case of O’B v S[7].
A daughter of a non-marital union was in this instance legislatively unentitled
by the Succession Act 1965 to inherit her father’s estate. The judiciary found
no fault with the resulting discrimination: ‘It can scarcely be doubted that
the Act of 1965 was designed to strengthen the protection of the family as
required by the Constitution and, for that purpose, to place members of a
family based upon marriage in a more favourable position than other persons in
relation to succession to property, whether by testamentary disposition or intestate
succession. In doing so, the Act of 1965 provided that, in the event of
intestate succession, children of the deceased born outside marriage would not
stand in the line of succession, although they could succeed to property by
bequest—subject to the particular provisions for the benefit of a spouse of the
deceased or his children born within marriage. Having regard to the
constitutional guarantees relating to the family, the Court cannot find that
the differences created by the Act of 1965 are necessarily unreasonable, unjust
or 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 the
Marital Family

The Court can unwaveringly be seen to reference the obligatory nature of
their role in protecting the marital family, albeit to the detriment of any
other familial institution. ‘The
provisions of Article 41 create not merely a State interest but a State obligation
to protect the family.’[9]
The Court can also invariably be said to regard the pledge contained in Article
41.3.1 and its consequent protection as requiring a notable variance in
treatment between marital and non-marital domesticities. ‘For the State to
award equal constitutional protection to the family founded on marriage and the
‘family’ founded on an extra-marital union would in effect be a disregard of
the pledge which the State gives in Article 41.3.1, to guard with special care
the institution of marriage.’[10]

Definition of ‘The Family’
Today

‘[T]he perceived role, form and functions of ‘the family’ have varied
considerably through history and may differ from State to State, and even from
region 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 multiple
interpretations reflecting political or ideological sets of values.[12]
Therefore I do not consider a blanket definition sufficient. A Constitution by
its very nature is a dynamic instrument, capable of adaptation in line with the
evolution of society.

The Review Group in their report on the family identified 11 issues
which needed to be addressed, the first of which being: the constitutional
definition of the ‘family.’[13]
It considers
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. While the
Review Group favours an express pledge by the
State to protect the family based on marriage,
it  does not favour the retention of
the words ‘upon which the family is founded’ in Article 41.3.1°.  These words have
led to an exclusively marriage ­based definition of the
family which no longer accords with the social structure in Ireland.[14]

 

 

The Natural Father’s
Position in Law

The State (Nicolaou) v An Bórd Uchtála[15]
is a pivotal case regarding the establishment of the natural father’s position
in law. In this case a Mr Nicolaou sought to gain custody of his child who was
placed for adoption pursuant to the Adoption Act 1952 without his consent. He
argued 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 guaranteed
to parents by Article 42.1 arise only in cases where the parents and the child
are members of the same family; and the only family recognised by the Constitution
is the family which Article 41.3.1 recognises as being founded on marriage. In
my opinion the [applicant] is given no rights over his illegitimate child by
Article 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 who
had been placed for adoption by her mother, subsequent to the couples’
separation.  Finlay CJ of the Supreme
Court did not agree with the High Court’s reasoning in the case, believing
Barron J to have been mistaken by the assertion that the father in this
instance had a ‘natural right identified by the Constitution’ to the
guardianship of his child. ‘I am satisfied that this submission is not correct
and that although there may be rights of interest or concern arising from the
blood link between the father and the child, no constitutional right to
guardianship in the father of the child exists.’ [18]

Another instance in which Finlay CJ concluded a natural father to be
without automatic guardianship rights was the case of JK v VW[19].
‘The blood link between the infant and the father and the possibility for the
infant to have the benefit of the guardianship by and the society of its father
is one of the many factors which may be viewed by the Court as relevant to its
welfare.’ In O’R v EH[20]
the Supreme Court re-enforced the contention that natural fathers had no rights
in respect of custody or guardianship under the Constitution, and the blood
link was merely a factor of consideration. Framing a father judicially as a
factor for review; hugely undermines his role both within family life and for
the purposes of his contribution to society. This downplay of paternalistic
function is stark, heightening the difficulty of an already up-hill battle for
most natural fathers. The natural Mother has been found to have personal rights
in respect of her children, implicitly provided by the Constitution, however no
such rights have been recognised in relation to the Father. Is society, or more
accurately the judiciary too matriarchal in its approach?

‘‘I think it is no exaggeration to say that single fathers are an
extremely excluded and ostracised group in Ireland today. They are certainly among the least visible and the most voiceless
and they are often seen as dangerous, useless, self-destructive and
irresponsible.’[21]The
natural father should be supported in his endeavour to establish a relationship
with 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 afford
the natural father any rights in a constitutional context. However
paradoxically, if the natural parents marry, the father receives automatic
guardianship of his child in this instance, notwithstanding that his
suitability, or resources, which in an application for guardianship would have
previously been a factor for consideration; now remains unchallenged. I cannot
contend with the idea that marriage bestows any kind of transformative purpose
on the couple in question. The judgment offered by Barrington J in this case
however serves as a symbolic light in an otherwise dark fate for natural
fathers. He inspiringly advocates for fair treatment of natural fathers in an
eye opening comparison provided by the consideration of the natural father’s rights
in relation to the protection afforded to the non-marital child, and the
natural mother.

Development in Relation to the
Position of Natural Fathers

Barrington J identifies the logical flaws to be found within Nicolaou:
‘Once the Supreme Court had accepted that the prosecutor was a concerned and
caring 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 natural
fathers who had no interest in the welfare of their children.’ ‘To say that the
child has rights protected by Article 40, s 3 and that the mother, who has
stood by the child, has rights under Article 40, s 3 but that the father, who
has 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 a
cruel 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’s
rights.

The ECHR has notably contributed to the rights enjoyed by the natural
father. In the case of Keegan v Ireland[23]
it was held that the Irish Court, in allowing a child to be placed for adoption
without the natural father’s knowledge or consent constituted a violation of
Article 8, guaranteeing respect for family life. As a consequence of this
ruling, the Adoption Act 1998 was introduced, requiring the notification of the
natural 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 no
one-parent families.’[24] I
think if we are to most accurately adapt our attitudes and shed our
exclusionary mentality in respect of natural fathers, we must ensure our
language is that of an inclusive form.

 The Review Group considers that the solution appears
to lie in following the approach of
Article 8 of the 
ECHR in guaranteeing to every person respect for ‘family
life’ which has been interpreted to include non­
marital family life but yet requiring the existence of family ties between the mother and the
father.  This may be a way of granting
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, while
excluding persons from having such rights who are
only biological fathers without any such relationship. [25]I
cannot say I expressly agree with this approach as without affording the
natural father the chance to establish a relationship with their child,
irrespective of the mother, this will preclude a countless number of potential
fathers from realising an imperative role. Treating parenting as synonymous
with mothering is one of the greatest ways to weaken the fabric of family life.[26]

Conclusion

The Constitution by its very nature is an instrument capable of
reflecting the change happening in the modern age. Perhaps the time has arrived
for Irish society to realise that, if the legislators continue to legislate
within a constitutional framework incompatible with the changing family
relationships of the 21st century, respect for the rule of law will diminish.[27]

[1] Constitution Review Group
Report, The Family (CRG 1996) 1

[2] Ibid at 3

[3] Ibid at 1

[4] Frank Martin, ‘THE CHANGING FACE OF
FAMILY 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 International
Recognition and Protection of the Family,” (1994) Australian Journal of Family
Law, vol. 8 at p. 22

[12] Frank Martin, ‘THE CHANGING
FACE OF FAMILY LAW IN IRELAND’ (2005) 5(1) Judicial Studies Institute Journal 1

[13] Constitution Review Group
Report, 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] Ibid
at 447

[19] [1990]
2 IR 437

[20] [1996]
2 IR 248

[21] Kieran McKeown, ‘Families and
Single 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 Group
Report, 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 CHANGING
FACE OF FAMILY LAW IN IRELAND’ (2005) 5(1) Judicial Studies Institute Journal 26

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