JOINT COMMITTEE ON THE CONSTITUTION debate

Family Issues: Presentations.

Chairman

Is the schedule for today's proceedings as circulated to members agreed? Agreed.

The first group to make a presentation to the all-party committee hearings on matters relating to the family under Articles 40 and 41 is the Law Society of Ireland. I welcome Mr. Geoffrey Shannon, Ms Joan O'Mahony, Ms Rosemary Horgan and Ms Colleen Farrell. Before we commence, I remind visitors that members of the committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

I invite the Law Society to make a six to eight minute presentation. As the Law Society, of which I am a member, has made an extremely important and well-thought out submission to the committee, it may be better, rather than going through that submission, for the representatives to synopsise it and highlight the important features. Members will then engage in a question and answer session with the delegation.

Mr. Geoffrey Shannon

I wish to highlight a number of key issues in the Law Society's submission. The first relates to Article 41 of the Constitution, which recognises the family as the primary and fundamental unit group of society. However, the family which the Constitution contemplates as deserving of such protection is based on marriage. The institution of marriage, therefore, enjoys a privileged position in the Irish constitutional order.

The rights that the Constitution guarantees do not belong to individual family members but to the family unit as a whole. The courts have remained steadfast in asserting the exclusivity of the constitutional family and have not been inconsistent in that regard. The Constitution fails to recognise the child as a legal person with individual rights to which separate representation must be given and, in fact, lacks child focus. The focus in the Constitution is not on actively promoting the welfare-interests of the child but merely on ensuring that they are not seriously impaired.

The constitutional position in Ireland embodies a "seen but not heard" approach to children and society is of the view that this has led to some difficulties. The United Nations Committee on the Rights of the Child addressed this issue in its concluding observations on Ireland's implementation of the UN Convention on the Rights of the Child. Given that the Convention on the Rights of the Child has been ratified, and 191 countries are bound by it, we see how important it is as an international instrument. The convention committee to which I referred recommended the acceleration of the implementation of the recommendations of the report of the 1996 Constitution review group. As the committee may recall, that group recommended an express statement of identified rights of children be incorporated into the Constitution. This is the principal recommendation of the society, namely, that we should, as a matter of urgency, insert express rights for children into the Constitution. A similar recommendation was made in the Kilkenny incest investigation report.

More recently, it appears that the Supreme Court has veered away from enumerating express rights for children by holding that it is the responsibility of the Government to articulate those rights. This approach may be gleaned from four landmark judgments of the Supreme Court. The cases to which we referred in our submission — North Western Health Board v. H.W. and C.W., T.D. v. Minister for Education and others, Sinnott v. Minister for Education and others, and Lobe and Osayande v. Minister for Justice, Equality and Law Reform — concern the children in society who are most in need and who are dependent on the State for their education, health, welfare and citizenship. Such children now inhabit a legal limbo.

We would advance the argument that if the State fails to protect the rights of individual children and the Supreme Court refuses, save in exceptional circumstances, to intervene as guardian of the Constitution to uphold such rights, on whom does its duty now fall? In light of these recent developments, we believe the Constitution should be amended to insert express rights for children. The current constitutional position does not reflect this situation and we feel some change is now required in this area to ensure express rights for children.

Of the international instruments in this area — in particular, the Council of Europe instruments — Council of Europe Recommendation 1286 of 1996 addresses welfare issues for children. I highlight point 8.i, which guarantees that children's rights should be explicitly incorporated into constitutional texts. There is an international footing here. I also refer the committee to Principle 21 of the White Paper published by the Council of Europe in January 2002.

We can also consider the position internationally, not only within but also outside the European Union. Within the European Union, we perhaps can look to Germany. Several decisions of the German federal constitutional courts have emphasised and recognised the right of children to have an independent representation of their interests. We would also refer the committee to Article 28 of the South African constitution, which enshrines, in its fundamental law, express rights for children.

The committee sees the family as the primary unit of society and it sees the family, I suppose, as a standard setter which signifies a deep and personal commitment. Consequently, the committee believes that Article 41.3 of the Constitution should continue clearly to recognise the primacy of the family. That said, the committee also recommends that we should move, as a matter of urgency, to change the statutory law to reflect changes highlighted in the 2002 census and, in fact, recent Government policy on the family. The existing legislative framework does not reflect changes in family structures. There have been a number of decisions of both the High Court and Supreme Court on this issue. In one case, the High Court stated that unmarried persons were free agents who owed no duty to each other. Our view is that the legislative framework should be changed as a matter of urgency and there is no constitutional impediment for such legislative reform.

The diversity of families brings with it both threats and opportunities for children. It is doubtful whether the shape of families and households matters in terms of children's welfare. Far more important is the nature of the relationship within them and the extent to which they remain stable. The society would remind the committee that Ireland has ratified and incorporated the European Convention on Human Rights as part of its domestic law. It was signed on 30 June 2003 and became effective on 31 December 2003. That requires all courts to take into account provisions of the European Convention on Human Rights.

Compliance with the convention has proven to be difficult as a result of legislative inactivity in this area. The law in Ireland leans strongly against the non-marital family. Families are effectively outside the ambit of legal protection in Ireland. One could argue that current Irish law breaches core provisions of the convention, particularly under Articles 8, 12 and 14. Article 8 of the European Convention on Human Rights guarantees, as a basic right, the right to respect for private and family life, home and correspondence. It is concerned more with the substance than with the form of the relationship. The convention, unlike Irish law, does not distinguish between the rights of a marital and non-marital family. From early on, the European Court of Human Rights indicated that the protection afforded by Article 8 does not depend on the existence of formal legal ties between the parties involved.

The wider definition given to the term "family" by the European Convention on Human Rights can be gleaned from the jurisprudence of the European Court of Human Rights. There are several cases on this point I refer, for example, to the case of Berrehab v. the Netherlands, where the court held that the traditional family relationship between a divorced man and his marital child did not cease to exist on the separation or divorce of the parents. In Kroom v. the Netherlands, a case cited in our submission, the court again stated that the relationship between a man and a child conceived during an extramarital affair, which amounted to a long-term relationship wherein the parties had four children by the time of the application, constituted a family within the meaning of Article 8 of the European Convention of Human Rights. In Boyle v. the UK in 1995, family life was held to exist between an uncle and a nephew and in Boghenami v. France in 1996, family was held to exist where the father could show a close relationship to the child.

Keegan v. Ireland brings into sharp relief the inadequacies of Irish law in dealing with the rights of the non-marital family. Mr. Keegan was involved in a stable relationship for two years but shortly after birth his child was placed for adoption. He had no rights under Irish law to challenge the decision to place his child for adoption, either before the Adoption Board or before the courts. His only rights accrued when the scales concerning the child’s welfare tilted inevitably in favour of the prospective adopters.

If we look at the approach of the convention, family life under the convention constitutes not only relations between parents and their children but also extends to grandparents and grandchildren. For other relationships, it is a question of fact and degree. Under the convention, for example, family life has been held to exist between a foster parent and foster child, although the court has noted that the content of family life may depend on the nature of the fostering arrangement.

The wider definition given to the term "family" by the European Convention of Human Rights is in stark contrast to the narrow definition given within our own statutory framework. We believe the time is ripe to place the child at the centre of the Constitution and not, as such, to change our domestic law. Without a fundamental overhaul of the constitutional position, however, the rights of children in this country will never be truly recognised, nor will Ireland be in a position to honour standards under international instruments.

We need to depart from the current system of family law which is based on substance. We want to move to a new position. At present, family law is based on the form of the relationship. Let us hope that the review by the committee will provide the impetus for the new approach to family law to which I refer.

The committee would also like to underline the importance of family support. A more tangible link between the courts system and support services should also be developed. As this occurs in New Zealand, there is a comprehensive model. There are also difficulties in the system. The problem of structural marginality in the system is currently manifested by a divided family law system accountable to different Ministers. On the issues relating to Article 41.2, the society is of the view that there is no justification for discriminating between life within the home and outside the home. The society's preference would be that the section concerned should be deleted.

The society has a number of concerns about the operation of family law within this jurisdiction and feels perhaps that this is an opportunity to highlight those, particularly in the context of nullity of marriage which is becoming an increasingly fraught problem. Divorce dissolves an existing and valid marriage. When a court declares a marriage null and void, it is declaring the parties were never legally married and are free to remarry. While a divorce leaves the couple free to remarry, the previous marriage is not legally erased. There are continuing financial and other obligations. No such obligations arise in the context of nullity.

If we examine what has happened since the introduction of divorce in Ireland, nullity figures have not decreased. The reasons are worrying. The society has made a substantive recommendation on the law of nullity of marriage. Nullity figures increased from 53 to 70 during 1997-98 when divorce was introduced in this jurisdiction. We believe the reasons for this are the continuing financial and other obligations that emanate from divorce. Limited financial and other forms of relief should also be available in the context of nullity applications.

There are two grounds for nullity, void and voidable. In the context of the void grounds, there are three sub-grounds: lack of capacity; lack of consent and failure to comply with formalities. The society believes these are adequate to deal with the situations that arise. Its recommendation is to remove the voidable grounds which are a relic of our medieval past. The first of these is impotence where the party is unable at the time of the marriage bond to consummate the marriage due to physical or psychological impotence. This is not concerned with the capacity to procreate. It is a relic of our medieval past where the first act of sexual intercourse marked the wife as the property of her husband. We believe this has no place in modern family law.

A second more worrying ground is the inability to enter and sustain a normal marital relationship. This is a recent innovation and largely homespun, with nebulous origins. It was unheard of when the ecclesiastical courts transferred all jurisdiction to the High Court in 1870. At first it was very narrow in that it was confined to a recognised psychiatric disease or disability. Since the late 1980s, the Supreme Court has stated strict proof of mental illness is not required. This has led to an increase in applications in what is probably a substantive marriage breakdown ground. This may be unconstitutional and usurp the legislative function of the Oireachtas.

The society is calling for the introduction of a type of clean break divorce which might address this issue. It would also like to highlight difficulties in the area of foreign divorce. The recognition of foreign divorce decrees in this jurisdiction is in a state of disarray and confusion. The society would like to highlight the difficulties encountered by several individuals. There are now three regimes within this jurisdiction which are incoherent. Therefore, the society urges movement in this area.

On recent developments, particularly in the area of adoption, the society urges as a matter of urgency the ratification of the 1993 Hague Convention. In the light of recent events, it illustrates the importance of its ratification. I am conscious of the fact that legislation may be introduced later. The society urges considerable speed in ratification of this instrument.

Children are caught in the crossfire of a relationship breakdown. One Supreme Court judge referred to children in this predicament as being the children of Armageddon. There is one key statutory provision. Section 28 of the Guardianship of Infants Act 1964 provides for the appointment of a guardian ad litem in high conflict judicial separation and divorce cases but this is one of two sections of the Children Act 1997 which are not yet in force. This provision should be introduced without delay.

Deputy P. Power

I welcome the representatives of the Law Society and thank them for their submission. I have a couple of questions which arise from it.

The thrust of the submission is that there is a proposal, as yet unspecified, to place the child at the centre of the Constitution. While it would be difficult to argue against this, the need for it has not been backed up definitively. Article 40 provides for equality for all citizens, whether they are elderly, married, unmarried or children. Other articles of the Constitution provide protection for unborn children. Given the strong equality provisions in the Constitution and the fact that the Supreme Court has consistently backed them up for many decades, why do we need an express provision in regard to children?

If one argues that we must provide specifically for children, many groups advocate special protection for other citizens such as fathers. If such provisions were introduced, would it alter the internal dynamics of families and the rights of individual constituent parts of families, namely, fathers and mothers? In modern Ireland grandparents are an integral part in bringing up children and also have rights. The Constitution provides for equality in this regard. Would Mr. Shannon's proposals not alter the internal dynamics in favour of the child when a guarantee is already included in the Constitution?

Page 3, paragraph 12, of the submission reads as follows: "There is little doubt that the Irish family law system now requires nothing less than a major overhaul". It is the first time I have heard this suggestion. In recent weeks I spoke to a number of day-to-day practitioners in the area and they have not suggested that the entire law system requires a major overhaul. What evidence is there to back up the assertion made in the submission?

There is a nebulous proposal that we should put the child at the centre of the Constitution. As the father of two children, I am not anti-children but these words are used a number of times. There is not a specific proposal as to what wording should be included in the Constitution.

Chairman

Perhaps the group will bank the questions asked. This is a constitutional rather than a legislative committee. Therefore, we must ensure we stick to our role. Is there a suggestion that it is inevitable we should hold a constitutional referendum to enhance the role and rights of children in the family? Mr. Shannon referred to the European Convention on Human Rights and the fact that case law to date, particularly that pertaining to the High Court and Supreme Court, has failed to elevate that status. He stated that the Legislature is neglecting the importance of the role of the child.

I gleaned from Mr. Shannon's submission — he may correct me if I am wrong — that the primacy of the family as we know it, that is, a married couple with children, should be retained in the Constitution and that other relationships, whether they involve a cohabiting couple or possibly a gay or lesbian union, should be recognised but not accorded the same status and thereby be placed on a lower tier.

What precisely did Mr. Shannon mean by suggesting there is no justification for discriminating between life within the home and that outside it? I am not too clear on what he was implying. It is important for the committee to determine whether there should be a referendum on certain issues. It is important that we get our case right because I am of the view that some of the areas which have been alluded to or to which the delegates may allude could be dealt with through legislative change by the Oireachtas.

Senator Dardis

I echo some of the points made. On the European Convention on Human Rights, Mr. Shannon implied that children's rights remain subordinate to those of parents. If we adopt the constitutional treaty on Europe and incorporate the convention, will that go a long way towards dealing with the issue?

Chairman

Deputy Andrews and Senator Ormonde are waiting to contribute. We will load the delegates heavily with questions. I ask them to respond to the questions that have already been asked and to be as brief as possible in doing so. If other members of the delegation wish to contribute, they are free to do so.

Ms Rosemary Horgan

I practise family law in Cork. I will happily deal with the practitioner question raised by my colleague and will defer to Mr. Shannon on the constitutional question. On the question of constitutional rights, I will simply say that, at present, when one examines the rights of children, one must first ascertain whether the children in question are the children of married or unmarried parents. This is because their rights will depend upon the group into which they fit. There are certain assumptions that flow if they are the children of a married family. There is an assumption that their best interest is to be found within the family. Where there is a dispute between the mother and father and, for example, the State or the Health Service Executive, it is assumed that the welfare of the child is best served in the family context. One notes this frequently in adoption cases.

Where the children are not those of a married family, their rights are different. Given that the position of the mother is acknowledged within the Constitution, an imbalance arises. There are family rights based on the marriage of the mother and father, whose children are within that group, and then there are rights of the mother. I agree that there are also general rights. However, it knocks things off kilter in terms of practice.

Chairman

Is Ms Horgan saying that the imbalance is constitutional, legislative or a mixture of both? It is very strong to state that if one is handling the case of a child in court, one must, under family law, apply different criteria to that child if he or she comes from a relationship other than that of a married couple.

Ms Horgan

Unfortunately, that is the way it is. The best interests of the child are assumed to be found within a married family. One starts off with that assumption in respect of the child of married parents. However, if he or she is not the child of a married family, the best interests of the child are the first matter to be considered. They are the first port of call whereas they are not necessarily the first port of call in the case of a family based on marriage. They are just another aspect to be considered. My colleagues will expand on that.

There is a need for an overhaul in terms of the practise of family law. We do not have family courts. For example, in Dublin, Cork, Limerick and Galway, family law cases are conducted in the District Court on special days such that it almost looks like a family court. Throughout the country, family law cases are still held on part of the day of ordinary hearings and there is certainly a need to overhaul the way such cases are heard. One does not hear a great deal about this because family law cases are held in camera.

There has been a change in this regard recently but there are considerable delays in the system. In a separation or divorce case, for example, or even a custody case between parents in the District Court, it is extremely difficult to obtain a welfare report because of the sections that are not in place. It is difficult to access support services and, therefore, the judges hearing cases do not possess the information which should be before them. Unfortunately, there is a need for an overhaul on a practical level.

Deputy P. Power

In practice, there are obviously different arrangements in courts. Is Ms Horgan referring to a major legislative or constitutional overhaul of the family law system? A raft of legislation was introduced in recent years in respect of children, the family, divorce, etc. Does it need to be overhauled or consolidated in some way?

Ms Horgan

It certainly needs a significant amount of tweaking. There is no question about that. Some aspects of the overhaul would be in respect of the Constitution. I will defer to Mr. Shannon on the constitutional question in respect of the difference between families based on marriage and those not based on marriage.

Mr. Shannon

I made reference to four recent Supreme Court cases. Whatever interpretation one affords to the recent Supreme Court approach regarding children's rights, one will note that there is a lacuna in regard to the constitutional framework associated with those rights. I can cite one practical example in which I was recently involved.

I was retained as the independent legal adviser to the Department of Health and Children on the adoption consultation process. This issue comes into sharp relief when one considers the issue of adoption. Children in long-term foster care are ineligible for adoption because of the rigours of Article 41 of the Constitution. The article invests inalienable and imprescriptible rights in marital parents and, therefore, even if those parents want to surrender their rights, they are not in a position to do so. Given this constitutional, rather than legal or statutory, impediment, these children are deprived of the opportunity of enjoying the security of a second family. At the time of the divorce referendum, we discussed giving parents a second chance. This is a matter of giving children a second chance to enjoy the security of a stable and loving family. The foregoing is a practical illustration of how children are not protected or how their welfare cannot be secured in the current constitutional framework. Whatever legislative reform we bring about, the ultimate difficulty derives back to the Constitution.

This issue was addressed in the Kilkenny incest investigation report, which is a powerful statement in the context of the need for constitutional change. In this regard, one must also bear in mind the Constitution Review Group's report of 1996 and, in the context of recent developments, our obligations under international instruments. Collectively, these signpost the clear imperative for constitutional reform, particularly in respect of the rights of the child, in this area.

Our submission is rather modest. We are of the view that the family based on marriage is still the standard setter but we want to make sure everybody within that unit enjoys equal types of protection. If one considers the rights accruing under Articles 40 and 41 of the Constitution, one will note there is a hierarchy of rights. The rights under Article 41 rank higher in that hierarchy and this makes it impossible, in certain cases, for children to enjoy the security of a stable and loving family.

Deputy Andrews

The Law Society presentation seems to concentrate on the recommendation that express rights be granted to children. I would welcome any constitutional change that would guarantee that marital and non-marital children would be treated in the same way for all purposes. The Law Society states this is not possible under the current constitutional framework. It lists cases in which the Supreme Court has stated there are unenumerated rights within the Constitution but that it will not enumerate them because that is the job of the legislators. Since the 1960s, however, it has enumerated rights in other articles of the Constitution, yet it shrinks from doing so in regard to children.

The Law Society recommends that we identify express rights for children. Does it propose that we list all rights that must be expressed for children or are we to say the Constitution acknowledges the rights of children that may be inalienable and imprescriptible etc? What are those rights?

Senator Ormonde

I am delighted to be here to listen to the submissions. The Law Society recommends that more emphasis be placed on family support in the family law system. This is an issue of legislation versus the Constitution. Perhaps we should tidy up the legislation first and see how it works.

The most vulnerable and voiceless group to consider are children. We need to establish whether the Constitution is strong enough to protect their rights. They are voiceless in the broader definition and analysis of the family. This is a question of the machinery that should be introduced to create the necessary links.

Ms Horgan spoke about the family courts. I agree with her that they need to be upgraded and introduced in all areas of the country. Is it premature to talk about amending the Constitution when we should be considering how to use the legislation in place to protect children?

Chairman

Does the Law Society mean legislative reform is fettered unless there is a constitutional amendment, particularly on the issue of children?

There is an interesting provision in the South African constitution, in which legal framework there are some common law origins. Article 28 would be a useful model to adopt.

The German constitution is also a useful example. My colleague and I spoke last year at the Anglo-German judicial conference and I was struck by the German judiciary's approach which can maintain the supremacy of the marital family. As the children are not invisible, it is possible to safeguard their welfare.

It is not a trade-off between family values and the rights of the child. They are not mutually exclusive; it is possible to have both. The model I recommend is Article 28 of the South African constitution. The German constitution provides a good model of a civil law jurisdiction where the provision operates effectively.

Senator Ormonde's suggestion is interesting because it makes sense. The bottom line is to ensure all the appropriate legislative provisions are implemented. There are several provisions on the Statute Book which have yet to be introduced. One of the central messages we wish to communicate this morning is that there is a need to introduce these provisions immediately to put our house in legislative order. However, this message is balanced by the Chairman's comments about certain areas in which it is difficult to provide for comprehensive law reform without amending the Constitution. Unfortunately, adoption is one of those areas. This came into sharp relief in the past week or so in a case which shows the difficulties arising from abandonment. It will be interesting to see how that case evolves in the coming weeks.

Deputy Morgan

I thank the Law Society for its presentation. Does it agree that, taken together, Articles 40 to 44 afford significantly less protection than more recently drafted constitutions overseas such as the Canadian charter of rights and freedoms and the South African constitution? Do they need overhaul or to be deleted and replaced? I am not asking for a suggested wording.

I am not surprised that, despite all the work done by Ms Justice McGuinness in her inquiry into the Kilkenny case, we have not proceeded much farther in 2005. In our public role we deal with some of the issues arising from the injustices to children of parents who are not married. I frequently deal with these issues and it is an indictment of the State that it permits this injustice to happen.

Ms Horgan

The Constitution was drafted a long time ago. It was modern for its day and is a good document. At the time it was drafted children were seen and not heard. The concept of children having rights independent of adults is a modern one. This concept is further developed in the UN Convention on the Rights of the Child. The interpretation in European Convention on Human Rights is a more fluid but that in the Constitution is cemented into the concept of the primacy of the married family. The Judiciary has not had the ability to change its tune and update the situation.

Chairman

I thank the Law Society for its enlightening submission and for coming before the committee. The committee will take into account the written and oral submissions from the Law Society in producing its report.

Sitting suspended at 11.27 a.m. and resumed at 11.33 a.m.

Chairman

The next item is the presentation by the ISPCC, represented by Mr. Paul Gilligan, chief executive officer, and Ms Grace Kelly, director of services. They are welcome. Before we commence, I remind visitors that members of the committee have absolute privilege but that this same privilege does not apply to witnesses appearing before the committee. I invite them to make a presentation of approximately six to eight minutes which will be followed by questions and answers. The ISPCC has already made an excellent submission to the committee, which we do not want to rehash. If our guests could highlight the issues the ISPCC wishes to bring before the committee, members will engage them in discussion and pose questions.

Ms Grace Kelly

I thank the committee for inviting us to appear before it. I will briefly outline a sense of what the ISPCC does and then hand over to Mr. Gilligan who will speak more specifically about the particular issues on children.

Most people know that ISPCC stands for the Irish Society for the Prevention of Cruelty to Children. We are Ireland's oldest children's charity. We have a strategy called Stopping the Hurt, within which are five action pillars we have identified, namely: the child as citizen; protecting the child; the child in the family; the child in the school and community; and giving children a voice. We see these as being incredibly important.

The society has four main activities. We obviously provide services for children and parents. We are probably best known for providing the Childline service but there are other services which we provide nationally. Our Leanbh service, which works directly with children and parents who are begging on the streets, is only available in Dublin. Our childhood support worker service provides therapeutic interventions to children and families in their own homes. Our training and awareness officer service — STEPS — provides a service for children who are at risk of dropping out of school through the misuse of drugs and alcohol. We try to achieve the five action pillars through service delivery. The organisation also has a public and professional educational component, a strong campaigning and lobbying component and a considerable commitment and belief in the area of children's consultation and children's participation.

The ISPCC has a vision of a society in which children are loved, valued and able to fulfil their potential. It believes that this vision can be achieved through a child-centred approach to parenting, social policy and service delivery. We certainly do not see ourselves as experts in the legal field but we bring to the table our experience of working with children and a belief in the area of child-centred practice.

We define child-centredness as follows: that the child's welfare and development is paramount; that the child is the primary focus of services, provision, legislation and social policy; that the child's wishes and views should be considered in systems and decisions affecting his or her life; and that the child be facilitated in expressing his or her views, beliefs and feelings. It is our strong belief that: the child should have equal rights as citizens of this country; adults and society should have a positive view of children and childhood; society should understand the developmental capabilities of children and integrate this understanding into social policy; and the child should be able to access services, either directly or in conjunction with an adult, be he or she a parent or a professional. Mr. Gilligan will speak more specifically about the issues of concern to the ISPCC.

Mr. Paul Gilligan

The ISPCC, as Ms Kelly stated, does not have legal expertise. We have a working knowledge of legislation. Our submission today is based primarily on our experience of working with children and families in the communities across Ireland in which we provide services.

Having examined the Constitution as it currently stands and how it impacts directly on our work, we have identified four key problems that arise. We accept that these may arise from an interpretation of the Constitution as opposed to the Constitution itself. However, we still believe it is valid to raise these issues.

The first difficulty which arises is that young people are unable to access helping services directly. In practical terms, a 12 or 13 year old cannot knock on the door of a health board and ask for help. As the Constitution is currently interpreted by the health boards and all related services, such bodies will not see young people without parental consent. That presents a major difficulty for agencies involved in the child protection field because young people often need to access helping services directly, particularly if the occurrence chid abuse is to be prevented.

The second difficulty that arises from the Constitution is that it presents barriers to introducing comprehensive vetting systems for those wishing to work with children. The ISPCC accepts that this is, perhaps, an interpretation of the Constitution. Nonetheless, it currently prevents the introduction of a screening system for soft information, that is, information pertaining to the fact that a person is a risk and has been identified as a risk but where there has not been a criminal conviction. We understand that this difficulty arises from the Constitution.

The Constitution also presents barriers to introducing legislation to ban the physical punishment of children. While this remains a contentious issue, given the UN Convention of the Rights of the Child and best practice in parenting, ultimately physical punishment in all its forms must be banned. However, given the way in which the Constitution is structured, this will not be possible.

Defining "family" within the context of marriage is problematic in the work in which we engage, particularly its implications for custody, access and guardianship. We make our suggestions to the review group in the context of our work with children. We have no specific specialisation in legislation. Articles 41 and 42 could be amended to include the rights of children. It would address the issue if articles of the UN Convention on the Rights of the Child were integrated with the Constitution.

Together with integrating children's rights, it is important that the paramountcy of the family is addressed specifically. While the rights of children are articulated a number of times in the Constitution, the paramountcy principle overrides them. The definition of "family" needs to be developed in line with the current social reality and thinking. The emphasis on marital status should be amended.

In the work it has done in examining the terms of reference of this group the ISPCC believes the three suggested amendments and the issues raised fall within the broad parameters of the terms of reference, specifically developments in human rights, social and economic changes and some outmoded provisions of the Constitution.

Chairman

Mr. Gilligan should not feel he should make excuses for not possessing legal knowledge. As Chairman of the joint committee, I recognise the tremendous work his society has been doing for decades. His presentation will be taken into account because he made some significant points. As I accept members of the delegation are not lawyers, I do not expect them to have all the legal answers. Mr. Gilligan referred to a number of topical issues, including the vetting system for those who work with children. Is he concerned that it is either totally inadequate or badly flawed?

Mr. Gilligan

The vetting system is totally inadequate. We acknowledge that the Minister of State with responsibility for children has made substantial progress by giving a commitment to have a vetting system for everyone who wishes to work with children. However, the system will apply specifically to those with a criminal conviction. While it is a significant step forward and the work the Minister of State has done in this regard should be acknowledged, it still leaves us with a massive gap in screening and vetting those who do not have criminal convictions but have demonstrated they pose a risk to children. A youth worker or teacher might be dismissed from employment for behaviour found to be abusive and the family of the victim might decide not to progress the matter to court. In Great Britain and Northern Ireland it is acknowledged that this screening is extremely important if one is to recognise those who pose a danger to children, as seen in the tragic case which resulted in an inquiry following the death of two little girls. The Constitution presents a difficulty in screening someone who does not have a criminal conviction but where a serious risk is identified. It is important that this aspect is addressed.

Article 40.3.2° of the Constitution reads:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

The "good name" reference in the article prevents us putting screening systems in place for what we would term "soft information" in the context of child protection.

Chairman

Mr. Gilligan referred to the concept of the family within the context of marriage with children which has a certain status and enjoys a special role in the Constitution. Does he think this should be broadened to include single parents or cohabiting couples with children? The Law Society made the point that groups which dealt with the day-to-day problems of children, including helplines, believed children who came from a relationship other than a marriage were being treated as second-class citizens. Is that correct?

Mr. Gilligan

That is correct. The social and economic reality in Ireland is that there are different structures for families, ranging from single parents to a couple who have not formally married. There are different arrangements. The ISPCC strongly supports the need for a healthy family relationship for children. If children are to develop in a healthy way, it is crucial that they experience a positive, healthy and nurturing family. It is the definition of "family" which needs to be examined. It is clearly defined in the Constitution as being based on formal marriage. This is a disadvantage to many children, including those who do not have day-to-day contact with their natural parents. It also means certain family structures are discriminated against economically and socially in schooling and so on.

Senator Finucane

I would like the delegation to discuss the role of fathers, given that the social profile has changed dramatically and there are cohabiting couples with children. When Mr. Gilligan said children should have an automatic right of access to both parents, is he considering the matter in its totality? In many cases the father might have walked out and is playing no parental role other than making occasional visits which might often have a disruptive influence on the child. Is Mr. Gilligan making a global statement, or is he saying it may be discretionary, depending on the circumstances?

Mr. Gilligan

The Senator is correct. It should be a global right that children have contact with and access to both parents, although this may not be appropriate in many situations. Under the Constitution, unless the parents are married, the father has fewer rights in terms of guardianship. This often impacts on access and custody arrangements. We are trying to make the point that the role of fathers needs to be re-examined to give children an opportunity to have contact and a relationship with their father. Whether a child will have that opportunity depends on the individual circumstances. In some cases access for fathers will have to be limited. The Constitution is strong on the issue of children not being cared for appropriately.

Senator Finucane

There is the partnership arrangement between cohabiting couples. However, there are also a la carte fathers who appear when it suits them. In regard to a child’s right to have global access to both parents, does Mr. Gilligan mean a discretionary provision in terms of what is good for the child?

Mr. Gilligan

Yes. The wishes of the child are also taken into account, depending on his or her age and developmental capabilities. One of the important components is the child's wishes and how he or she wants to characterise the relationship. I agree with this.

Chairman

Members should ask brief questions because, as the delegates have explained, they are not legal experts. We will try to accommodate them as far as possible.

Senator Dardis

Some of us on this side of the table are not legal experts either.

Senator Daly

We would not want to be.

Senator Dardis

Correct. I thank the Senator for his comment.

My point is very similar to that of Senator Finucane. The ISPCC is talking about giving equal status and rights to the natural parents. We all agree that children whose families are not based on a marital union should be protected and that they should be afforded the same rights as those whose parents are married. However, the difficulties arise when the first union breaks down and a second comes into being. The parties to the second union may or may not be in a stable relationship and there may be a problem in respect of one or other of the parents outside the second union. If one contends that one must institute the right in question for the natural parent, there is potential for a legal or constitutional conflict between this right and the right afforded to the child. How can this issue be dealt with? Perhaps it could be dealt with by having the rights of the natural parents defined in law and the rights of the child defined under the Constitution, as the ISPCC and Law Society are recommending. Will the delegates comment on this?

Deputy P. Power

I was interested in the organisation's comments on the keeping of a soft register. A lot of work has been done in this area. The organisation has stated there is a constitutional impediment to so doing. This comment is of great assistance to us in our work. Although the delegates are not legal experts, will they state the basis on which they make this assumption? Have they received a legal opinion to that effect?

In what way does the organisation interact with the Health Service Executive in terms of child custody orders, for example? Does it find there is a legal or constitutional impediment to its passing on information or acting in concert with statutory bodies, given that it is a non-statutory agency? Has it encountered legal difficulties in this area?

Senator Daly

I compliment the society on the work it has done in this area for many years. Will its representatives indicate the position on child poverty and children sleeping rough in towns and cities? Are many children begging on the street and generally seeking assistance? Is the situation deteriorating or stable compared to five years ago?

Senator Ormonde

I thank the society for its contribution. We are talking very much about the protection of the rights of the child. The words "responsibility" and "duty" also enter my thinking. Although I may be digressing, it needs to be said we may dilute the Constitution so much that we will place all responsibility on the State, leaving nothing to the core of society, including the family and parents. What are the society's views on this? It is doing great work and should have a lot to say because it is a child-centred organisation. I am concerned that we might destroy the Constitution and thus create a useless, leaderless society.

Mr. Gilligan

We agree absolutely on the point on the balance to be struck between the legislation and constitutional change regarding natural parents' rights. If the Constitution was strong enough on the issue of children's rights, it would give scope to legislation to deal with what is a complex issue in terms of the rights of natural parents compared to those of adoptive or foster parents. Trying to do this within the Constitution may result in failure. The difficulty lies in the reference in the Constitution to the rights in respect of marriage. This will need to be amended.

The difficulties that arise in our operating with the HSE stem primarily from the fact that it is clearly influenced by the constitutional restriction, as it sees it, in working with and accessing children directly. This represents the major difference in the way it operates in comparison with the ISPCC and other voluntary organisations. We have difficulties in receiving information from what were formerly the health boards and health services based on the concern associated with sharing information. There are feedback systems associated with the administration of various cases but in giving detailed information there are difficulties. I am not sure if this is determined by the Constitution. Perhaps it is but it certainly presents a difficulty in how voluntary and statutory organisations work together in dealing with a particular child or family.

Ms Kelly

In response to Senator Daly's question on child poverty, obviously we work with extremely needy, vulnerable children and families. In their day-to-day work our workers certainly encounter many families who are living in extreme economic poverty and also many children in considerable emotional poverty.

On children begging on the street, our experience is that the picture is getting better. There appears to be a dramatic drop in the number of children begging, certainly in Dublin. We must compliment the Garda in this regard. Our project, the Leanbh service, works closely with it. It has been incredibly supportive and works closely with us in trying to tackle the issue.

All the families affected live in extreme poverty. Some of the children in question live on halting sites and sometimes it is much more attractive for them to be in town begging than to stay on the halting site where they have no place to play. It can be as simple as that but economic poverty is also responsible for bringing children onto the street. We encounter many children who are completely isolated socially, dropping out of the school system and have no play facilities. With regard to a broad definition of "poverty", the gap is definitely widening.

Senator Daly

What impact would any of the proposed changes to the Constitution or law have on child poverty?

Mr. Gilligan

That relates to the last question asked by Senator Ormonde. If we have a structure based on a welfare system for children, we will continually fail to address the key issues. Our welfare system must be rights-based. Organisations such as the ISPCC are sometimes misunderstood in that we campaign and lobby for children's rights because we believe they will support parents' and parenting rights. An infringement of, or failure to advocate, children's rights inevitably penalises parents.

If there is a rights-based approach, the structures and social systems will begin to address the issues of children in need. A welfare model will operate only on the basis of what can be afforded or in terms of doing the best it can, as opposed to acknowledging that children have rights to be protected and nurtured.

Responsibility is the key to children's rights. Children should have rights appropriate to their age and developmental capabilities. Our Constitution does not acknowledge that. I accept, however, the point that we must get the balance right. While we advocate children's rights and state them strongly within the Constitution, we must also support families and parents to help them meet children's needs.

Chairman

I thank the ISPCC for its submission, which was interesting and engaging. We will take it on board when we conclude our deliberations and draw conclusions. The society is doing good work for which we thank it.

Sitting suspended at 12.02 p.m. and resumed at 12.07 p.m.

Chairman

I welcome the Family Support Agency. It is represented by its chairperson, Mr. Michael O'Kennedy, SC, a man who is no stranger to the Oireachtas, Ms Muriel Walls and Mr. Pat Bennet, chief executive officer. I remind our visitors that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee.

I invite the visitors to make their submission and ask that they taken only eight or ten minutes to do so. We have the Family Support Agency's well thought out written submission and there is no point in repeating that. Perhaps the visitors could synopsise or give a resumé of the submission, highlighting the important features from the committee's point of view. We will follow that with a question and answer session.

Mr. Michael O’Kennedy, SC

We appreciate the opportunity to be here and contribute to the important work of the committee. On a personal note, I am happy to be back not only because I recently left the Oireachtas but also due to the fact that the history of this committee refers to the first all-party committee on the Constitution in 1966, on which I was privileged to serve. I am glad to see the major developments that have taken place since then.

If the committee wishes to ask about the nature of the work of the agency and its various activities and the support it gives to a range of organisations, it should refer its questions to Mr. Bennet. Ms Walls is uniquely qualified to deal with queries on the legal aspect of our work. I may be able to throw in my tuppence worth on matters of general import.

Chairman

This is a constitutional committee considering the impact of Articles 40 and 41. Obviously you feel there are areas which can be dealt with by legislative change. Are there particular areas where your group feels the Constitution is inadequate and needs to be amended, thereby precipitating a referendum, or could these matters be dealt with by legislative reform?

Mr. O’Kennedy, SC

We recognise that since the Constitution was adopted in 1937 there have been major changes. We focus on the diversity of family in that we set out the 21 different types of family units in society which I do not think were within the contemplation of the framers of the Constitution, much less the people of Ireland, when they adopted and enacted the Constitution in 1937.

I will answer that question in the context of my 27 years of experience as a specialist family lawyer. I am well aware of the type of cases arising in the courts to which the Deputy referred. The Family Support Agency has a number of services which try to provide other options to separating couples. First, there is the support service of reconciliation counselling. Even if the two members of a couple ultimately decide after counselling that they will go their separate ways, it has been my personal experience that they have a greater understanding of the breakdown of their marriage. This might ease the trauma of the separation and their necessary dialogue, either directly or through their solicitors, about the practicalities of that and, in particular, the children.

The next service the Family Support Agency makes available in these situations is the mediation service, which is specifically designed to help the couple come to an arrangement about the terms of their separation. The mediation service focuses on the needs of the children in those situations and works with the parents to try to draw up a parenting plan. The information from the reports of the mediation service provides an excellent forum because both parents sit with the mediator and discuss what is best for them as a family, what is best for their children and how both will parent the children now that the marriage has broken down. If that does not work, solicitors who deal with family law cases have a statutory obligation, under the separation and divorce Acts, to recommend these services to the clients. While they are not compulsory, we also have an obligation to encourage our clients to reach agreement, to warn them and to outline all of the benefits of reaching an agreement before an application is made to the court. However, there will undoubtedly be those small number of cases where the fight is brought out into the court and the children are the focus of that fight. It would certainly assist practitioners, and indeed the Judiciary, if there were some support services available within the court structure to deal with those cases at an early stage of the court process to see if they could be the subject of discussion or if there could be an assessment by an independent child-focused professional, rather than their being tackled at the later stage when the judge must try to decide between warring parents.

Deputy J. Breen

My question related to cases where one parent will deliberately not turn up in court and use some lame excuse and where either the father or mother is paying the cost of their barrister and counsellor. What form of redress is available in such cases, where one parent deliberately frustrates the hearing by not turning up for some lame excuse for which his solicitor or barrister will put forward a case? The case is then adjourned and might be adjourned four or five times in one year. It is the family that suffers in such cases.

Ms Walls

I do not have the answer to that. Having greater flexibility with court lists and perhaps more court time might help. The judges have certain powers to move their cases forward but it is very difficult for them, in particular, without support services.

Chairman

That is an interesting area. I have done a little of it in my time. Should there be specific family law courts or sittings separate from those which deal with the ordinary work of the District Courts and which cover all sorts of matters from road traffic offences, etc.? The group representing the Law Society of Ireland felt that it is a logistical difficulty that the family law courts are being administered in District Courts and that children and vulnerable people in contested separations are being brought into an inappropriate arena.

Senator Ormonde

Mr. O’Kennedy, SC

I had hoped it would be reasonably clear from our presentation that, in the context of the current reality in Ireland, it did not cater adequately for such children.

My second point is a general one. We were asked whether the difference in social function should be reflected by way of an amendment to the Constitution or by legislation. While we tend to say it is a matter for members of the joint committee, I will give my personal opinion. Anything relating to the detail of social function, or the protection or enhancement of social function, should be dealt with by way of legislation, not in the Constitution. This is one man's view which is not necessarily reflected by members of the committee generally.

A constitution is the framework from which law is derived. Members may recall that I held this view very strongly when we included in the Constitution the ill-fated amendment on the right to life. We tried to include specifics at the suggestion of enthusiasts in the pro-life campaign. It will be recalled that I argued passionately against it saying it was not appropriate to a constitution. A constitution should be a broad framework. Because we introduced detail into the Constitution, the consequences are clear for all to see. It was disastrous. A constitution creates the framework for detailed reference and a specific amendment. Therefore, this issue should be dealt with by way of legislation. Our chief executive will add to what I have said.

Mr. Pat Bennett

I want to respond to Senator Ormonde's comments. The Family Support Agency and the State should support parents, not take over their role which, obviously, must happen in extreme circumstances. We are anxious that support is provided at an early stage for those encountering difficulties within family relationships.

On the rights of children, we must be careful not to place too much responsibility on children. It is important to focus on the best interests and voice of the child. Emphasis has been placed on the responsibility of children but the point that has been made is relevant because the emphasis should be placed on listening to children's needs and deciding on the appropriate action to take in the best interests of children.

Chairman

I will take questions from the two remaining speakers, namely, Senators Daly and Dardis, and we might then conclude this part of the meeting.

Senator Daly

I compliment the agency on its achievements in the short period since its establishment. The report indicates the success it has had.

Regarding the point on legislation made very capably by the Chairman, does the agency recognise any shortcomings in the legislation or does it have amendments that could be made thereto? The ISPCC confirmed that the poverty gap in respect of children appears to be widening. Circumstances are worsening rather than improving. Child poverty, in terms of children being forced into crime, begging or sleeping rough, seems to be worsening in spite of the changes that have been made. Has the Family Support Agency specific legislative proposals to deal with this?

Senator Dardis

I join in the general welcome for the agency. It is nice to see a former colleague and distinguished parliamentarian, namely, Michael O'Kennedy, in attendance.

I wish to return to Mr. O'Kennedy's point and distil it to its fundamentals. I agree that the document should just be a basic enunciation of rights in general. It is up to legislators to define those rights. We got into serious trouble because of the right to life issue. It was an unintended side-effect.

One of the earlier submissions called for express rights for children. This again indicates a need to include more than what we would wish to see. The multiplicity of types of families and unions that were mentioned — I believe 21 were listed — underlines the complexity of the issue and the need to distil it to a fundamental principle. Could we go so far as defining only the rights of the child and the parents and almost forget about the family? In other words, we would not include the role of the family in the Constitution. This is pushing the argument to its extreme. What are the agency's views on this?

Ms Walls

On Deputy Peter Power's question, the Constitution does not have the flexibility to which he referred. This is demonstrated by the judicial interpretation of the Constitution in respect of its affording special protection to married parents and their families. The social function element of the Constitution has not been used to broaden it out. The committee should take one of two approaches. It could retain the special status of the family based on marriage and also include the rights of natural fathers, single parent families, etc. It should balance these rights in some way but I do not know how this could be done. Alternatively, it could retain the special status of marriage and have everyone who does not fall into this category feel — as is now the case — constitutionally disadvantaged but support this position with a legislative framework which would suffer from the possible disadvantage of being regarded as a second-class arrangement.

We have tried to throw the committee a lifeline by encouraging it to consider family life. Article 8 of the European Convention on Human Rights concerns family life. It affords much greater flexibility than the Constitution and considers the reality on the ground. Which of the following relationships provides a better example of family life — an unmarried mother and a concerned and supportive partner who is parenting a child that is not his own, all of whom do everything together in the context of a family, or a dysfunctional family with married parents, the father or mother of which has disappeared? In the European context, the convention considers family life in terms of the reality on the ground rather than in terms of the legal technicalities. Perhaps we could provide protections in this manner if we focused on family life.

It is essential that we consider the rights of the child in terms of the voice of the child, as mentioned by Pat Bennett. There is no system in our courts to hear the voice of the child. While parents will profess that whatever they are doing is in the best interests of the child and while they may be genuinely driven in that regard, nobody is actually hearing the voice of the child. Hearing a two-year-old is entirely different to hearing a 14-year-old. This presents a difficulty but there are skilled people who can assess family circumstances and try to give the parents or courts some guidance on what is in the best interests of the child without putting the child in the terrible position of having to make choices.

Deputy P. Power

I fully understand what Ms Walls said. However, the courts still have the overriding responsibility to treat all citizens, be they two, 22 or 102 years of age, equally. The manner in which they are represented is a separate issue. Is Ms Walls suggesting that we insert a clause giving the child some kind of enhanced constitutional status in comparison with the status of other citizens, bearing in mind that all citizens must be treated equally by the courts?

Ms Walls

No, not necessarily. Children do not have any rights under the Constitution as it stands.

Deputy P. Power

As citizens, they do.

Ms Walls

Perhaps one can blame the Judiciary but it has not developed the equality we desire. From its judgments, it seems constrained in dealing with this matter by way of precedent. As the Chairman stated, a number of judgments in the Supreme Court have been such that the baton was passed on to the Legislature to try to address this matter.

Mr. O’Kennedy, SC

In that context, there should not be a particular problem with special recognition of the rights of children. The committee will have to take the advice of its consultants. One would not just be discriminating in favour of children. The Constitution, as it stands, discriminates — I am not saying it does so maliciously or intentionally — in favour of adult citizens. I refer to their right to vote and other rights which younger citizens do not possess. This demonstrates that a Constitution can distinguish, if not discriminate, between various rights and set qualification standards for the exercise of rights.

My view will probably be reflected in the thinking in the constitutional determinations in various countries because children are vulnerable by virtue of their age. I do not believe one will encounter any great difficulty in trying to supply a plank or support in the constitutional framework that will minimise this vulnerability.

Chairman

I wish to return to what one might call the weasel question I asked initially. I am familiar with the wonderful work of the agency and, from my legal experience, I know the mediation service is excellent. As it stands, the definition of the family in the 1937 Constitution, which makes reference to the institution of marriage, does not cater for the multiplicity of issues that arise today in this regard. The Constitution was formulated in an era that was totally different to that of today, both economically and socially. There are now almost 80,000 couples cohabiting, as evidenced in the results of the most recent census. There are approximately 160,000 lone parents, over 80%, if not 85%, of whom are single mothers. Other family units involve single fathers. The structure of the family, as perceived by us and as interpreted by the courts, is changing. There have been some recent landmark decisions by the courts in respect of the constitutional position on the family.

We are in a rut because the 1937 Constitution does not recognise that thousands of children are born outside marriage or live with parents whose relationship has broken down. Leaving aside the important point about including the rights of children, does the agency agree that the definition of the family in the Constitution is somewhat curtailed and fetters the process?

Mr. O’Kennedy, SC

Yes. Perhaps Mr. Bennett would like to add to that.

Mr. Bennett

We are anxious to achieve an inclusive definition. The problem of trying to restrict something is that it can exclude groups. The Chairman mentioned the reality of relationships and different family types. We return to the concept of family life as a more inclusive approach to a definition of the family. One does not want to alienate groups by having a tight, exclusive definition. The reference to family life is more inclusive.

Mr. O’Kennedy, SC

There is a growing awareness among separated men of exclusion from their former family units which must be taken into account. A major issue is the sense of alienation from their children that non-marital fathers feel. We encounter that regularly.

These men are vigorous and consistent in the presentations they make to us at every opportunity. We have commissioned a range of research programmes from experts in the area which can be made available to the committee. Fathers occasionally ask that their rights be recognised in a way that does not happen.

Senator Dardis

Could that be done by referring to natural parents?

Mr. O’Kennedy, SC

That would be one way of dealing with it.

Chairman

The 2002 census suggested that there are approximately 80,000 cohabiting couples, double the number identified in the 1996 census. In a landmark case in 1996 on an issue of the rights of cohabiting couples, Mr. Justice Peter Kelly said that to give such couples rights would diminish the family within the 1937 Constitution. Mr. O'Kennedy might have represented one of the parties.

Mr. O’Kennedy, SC

I did not.

Chairman

I do not wish to criticise the Judiciary but the superior courts have taken a particular view in cases regarding children. In his judgment, Mr. Justice Kelly said he could not interfere with or help the cohabiting couple because to do so would elevate them to the position of the family within the Constitution, which was never envisaged. In that regard, he suggested that the Legislature should introduce legislation or the family should be redefined. Does the agency have any comments on that?

Ms Walls

That was the case of Ennis v. Butterly which concerned the property of a cohabiting couple. Mr. Justice Kelly took the view that couples could not agree between themselves to give that relationship the status of a marriage and it was decided as a preliminary issue.

We thank the committee. It was a privilege to be here.

Sitting suspended at 12.58 p.m. and resumed at 2.15 p.m.

Chairman

We will now hear a presentation by One Family which is represented by Dr. Fergus Ryan, vice-chairperson; Ms Karen Kiernan, director, and Ms Ann Bowen, social policy and communications officer. They are all very welcome. Before we commence, I remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Due to time constraints and the fact there are three other groups to follow this afternoon, there is no point in rehashing the detailed submission received from One Family. Following its synopsis of the important aspects of the submission in six or eight minutes, there will be questions from members of the committee.

Ms Karen Kiernan

One Family thanks the joint committee for giving it the opportunity to address it today. This presents an opportunity for the committee to consider the extent to which family diversity and an appreciation of the changing forms of family life in Ireland will be considered in any proposed reforms.

One Family provides a voice and support for all members of one parent families in Ireland. As such, we work for and on behalf of a constituency of almost 154,000 families headed by a sole parent. These include married and unmarried persons parenting alone, widows and widowers with children, separated and divorced parents as well as non-resident parents.

From our foundation in 1972 as Cherish, we have provided a voice for some of the most marginalised in society. Our central message has always been that families come in all shapes and sizes and deserve civil support and recognition, whether they meet the State's prescribed ideal. Our submission to the joint committee took the form of two position papers: one on the Constitution, noting proposals for specific changes, and the other on family diversity, recognising the need for adoption of an equality framework in the review of law, policy and service provision for one parent families.

It is pertinent to note that One Family took its original name from an extract in the 1916 declaration in which the signatories pledged that the Republic "guarantees equal rights and opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and all of its parts, cherishing all the children of the nation equally". It is obvious we have honoured this pledge more in the breach than otherwise. Between 1922 and 1987, when the Status of Children Act was passed, children were not legally regarded as equals, there being significant differences in legal entitlements based on whether one's parents happened to be married to each other. A child born outside marriage was at common law, fillius nullus, the child of no one. Legal reform notwithstanding, it is not entirely clear that native social and cultural attitudes have changed in this regard, as some recent media discussions have underlined.

Articles 41 and 42 of the Constitution recognise in the family as a unit certain rights and obligations that are "antecedent and superior to positive law", in other words, rights and obligations that are largely impervious to State intervention. It is immediately evident, however, that this scheme is confined to certain families only, namely, those based on a subsisting marriage recognised by law. The Constitution simply does not countenance that there may be families situated outside the confines of the nuptial state. The Supreme Court has consistently reiterated that the family provisions of the Constitution apply only to families where the original adult members are married to each other, not otherwise. Thus non-marital families, including one parent families, are essentially excluded from the remit of the constitutional family.

We firmly believe it is generally in the best interests of the children to maintain a relationship with both parents. As such, the current inequalities in the application of constitutional law to parents based on marital status undermines children's access to relationships with their parents if they are unmarried.

The constitutional protection afforded exclusively to marital parents has given rise to another source of discrimination that arguably works to displace children's rights under the Constitution. Adoption involves the irrevocable termination of parental rights and duties in respect of a child, yet Articles 41 and 42 denote that the rights and duties of marital parents are "inalienable and imprescriptable", in other words, they cannot be given away, lost or taken by the State. This effectively means that, unlike non-marital parents, marital parents cannot voluntarily place their child for adoption, even if this course of action might be in the best interests of the child. Although the Adoption Act 1988 affords the State a right to arrange adoptions where the parents have comprehensively failed in their duty, in practice these requirements are exacting and place parental rights over the child's best interests.

It is clear that the role of the State in the constitutional scheme is envisaged as strictly secondary to that of parents. What strikes one is the largely parent-centred focus of the constitutional scheme. In the text of Articles 41 and 42 the term "child" is barely used, the emphasis being very much on the entitlements of adults vis-à-vis the State rather than on the best interests of the child. Children may be regarded, therefore, as an adjunct of the family, the object of ideological struggle between the family, on the one hand, and the State, on the other. The courts have interpreted the family provisions as protecting the rights of the family unit only, that is, the family as a collective, not the individual rights of family members.

This parent-focused perspective jars heavily with international jurisprudence on the rights of the child. It is almost universally recognised and copperfastened in the United Nations Convention on the Rights of the Child 1989 that in any legal matter concerning children it is the children's best interests that are paramount. By contrast, the Constitution privileges families and parents over the interests of children. The constitutional imperative that parental rights should be respected has in one prominent case prompted the courts to posit that a child's best interests lie generally in the child being cared for by his or her marital constitutional family, a proposition that arguably disguises parents' rights as those of the child.

The assumption underlying this philosophy is that the unique interests of children and the distinct interests of their parents will always coincide, such that the only policy required in this arena is one that discourages State intervention. In most cases parents do promote the best interests of their children. Certainly, there is no doubting the extraordinary sacrifices and devotion of most parents, marital as well as non-marital, in respect of their children. Nonetheless, the absence of an express provision in the Constitution privileging children's rights over those of other interested parties leaves a gaping hole in the constitutional protection that should be afforded to these most vulnerable of subjects.

One Family believes the Constitution should place children first; that in all cases concerning children their best interests should be paramount. Parental rights are too often placed to the fore at the expense of a perspective that privileges what are genuinely the best interests of the child. Therefore, we suggest that root and branch constitutional reform is required to place the child and his or her interests at the heart of the Constitution; to displace the privileged position of the marital family by the recognition in the Constitution of all family forms; and to bring Irish law into line with the European Convention on Human Rights by placing an obligation on the State to respect and support family life in all its manifestations.

To this end we propose the following addendum to the Constitution which we call Article 42A:

1. Notwithstanding any other provision of this Constitution, the State guarantees to respect and shall endeavour to support all families in this State, regardless of the form that such families may take, and to protect and defend the rights of all individuals who are members of those families.

2. Notwithstanding any other provision of this Constitution, the State guarantees in particular, and as far as practicable, to assist and support all parents and guardians in promoting the best interests of the child. In so doing, the State shall promote the welfare of the child as the paramount consideration in all proceedings concerning the child's best interests.

3. The State shall in particular, endeavour to assist and support parents and guardians, as far as practicable, in securing for all children a basic quality of life and in particular, food, clothing, education and accommodation sufficient to his or her needs.

One Family believes firmly all families deserve equal protection under our laws. With adequate resources, social support and recognition, enhanced child care and work-life balance supports, one parent families can and will prosper and thrive. Constitutional change on its own cannot achieve these ends but it can supply the foundations for legal and social policies based firmly on the richness of family diversity and the inherent rights of all families in Ireland today, whatever their basis or origins. We look forward to the results of the joint committee's consultation process and consideration of these matters and remain available to it should it require any further information from our organisation.

Chairman

One Family is the first group so far to clearly set out a proposed amendment to the Constitution which it calls Article 42A and is very interesting. It is a brave move because history has taught us that people shy away from providing the wording of constitutional amendments on issues that may be divisive.

One Family's submission is succinct and clear. It is stating clearly that the Constitution does not recognise family life outside marriage. Would that be a fair assessment; in other words, that the Constitution gives the martial family a higher position and that other family forms are not recognised outside that interpretation of the Constitution?

Dr. Fergus Ryan

Essentially, in Article 41.3 the Constitution states, "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". This has been interpreted consistently by the courts as confining the constitutional family to the family based on marriage. I refer to the State (Nicolaou) v. An Bord Úchtála, 1996; K v. W, 1990, and W. O’R. v. E. H, 1991. There are several cases where the Supreme Court has stated the family, for constitutional purposes, is the family based on marriage.

There is no constitutional recognition for any family not based on marriage and one parent families not based on marriage about which we are particularly concerned. This poses significant problems, both practical and ideological, in that one parent families not based on marriage see themselves as not being included and recognised as a family in the Constitution. This feeds into legislation which also largely fails to protect families not based on the institution of marriage. It is not possible to interpret the Constitution, as currently phrased, in a manner that would recognise other family forms.

Chairman

This is an issue that arose earlier. Dr. Ryan mentioned decisions taken in the past decade or so. Does it appear to One Family that in headline cases the courts have shied away from a more liberal interpretation of the Constitution, if that is possible, although I am not condemning them for their decisions, and that purely dealing with some of these issues by way of legislation alone would not be adequate? In other words, is One Family's clear message to the joint committee that the Constitution needs to be amended?

Dr. Ryan

The Constitution provides a restrictive framework for the recognition of families. The case of Ennis v. Butterly serves as another example in this regard. It would be very difficult to create legislation that would recognise the diversity of all family forms, including one parent families and non-marital couples living together outside marriage, in the context of the Constitution that privileges marriage to such an extent. We are not arguing the institution of marriage should not be respected but that there is a diversity of family forms in Ireland today, all of which deserve equal recognition under the Constitution. We are arguing, in particular, that the Constitution should be changed and Article 42 qualified to acknowledge that the State will endeavour to support, both ideologically and practically, all families in the State, regardless of the form they may take. Our proposed amendment focuses very much on practical issues.

Many important and practical issues arise in the context of access to non-resident parents and the rights of the non-marital father. The rights and duties of non-marital fathers are not recognised in the Constitution. The courts have consistently stated such a father is not recognised and does not have any rights under the Constitution. I am hypothesising but it appears that if a non-marital father is not recognised for the purpose of rights, neither would he be recognised for the purpose of duties.

At the end of the day the Constitution is a set of guidelines and it is up to the Legislature to fill in the detail of those guidelines in legislation. The Constitution creates a restrictive framework within which to draft such legislation.

Chairman

The nub of the submission is that the interests of children should be paramount in the Constitution and that other issues such as marriage, cohabiting couples, single fathers and lone parents should rotate around the axis of the child.

Ms Bowen

Yes. The crux of the submission is that if we provide explicit and express rights for children, rights will flow to the parents or the persons acting in loco parentis. This is evident from the UN Convention on the Rights of the Child and the European Convention on Human Rights.

Chairman

Barnardos will now make a presentation. I welcome Mr. Owen Keenan, its chief executive officer, Ms Norah Gibbons, director of advocacy, Mr. Geoffrey Shannon, solicitor and Ms Anne Conroy, head of the national research centre.

Before we commence, I remind visitors that members of the committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee.

The committee has received a well prepared, balanced report from Barnardos and due to time constraints would ask the delegates to use the available time to highlight the aspects of it they wish to convey to the committee.

Mr. Owen Keenan

Let me express the gratitude of all in Barnardos for the opportunity to appear before the joint committee. Our focus will be on the protection of the rights of children. I know the terms of reference of the joint committee are much wider, but what we seek is a specific reference to and protection for the rights of children in the Constitution.

Barnardos is a leading children's organisation and we hope our credentials are sufficiently well established to give reassurance that in seeking constitutional protection for the rights of children, we are neither being irresponsible nor anti-family. We base our recommendation firmly on our experience as a major provider of services to vulnerable children and young people throughout the country. My colleagues will expand further on this in the course of our oral submission, however by way of introduction I will deal directly with the issue and the possible concern that to acknowledge children's rights is to undermine the position of parents and families.

Barnardos is strongly pro-family and particularly pro-vulnerable families. Most of our investment is in family support services, providing a diverse range of services for vulnerable families throughout the country. Our conviction is that the best place for children to grow and develop is within their own families. The main thrust of our work is supporting troubled families to stay together. We are strong supporters and advocates of the United Nations Convention on the Rights of the Child. Although its purpose is to articulate children's rights, it unambiguously asserts that children's rights are best protected by living in a stable family. That is why it is essential that families be supported in providing a healthy and stable family experience for their children. It must be recognised, however, that in a small minority of cases and in spite of extensive supports, some families cannot provide what their children need and may present a serious threat to their well-being. In this current week, we have seen examples both at home and abroad of children's right to protection being compromised by those who may love and care for them, but who for other reasons cannot provide that protection. This is why Barnardos believes it is essential to give constitutional protection to the rights of children. I will hand over to my colleague, Ms Norah Gibbons, director of advocacy with Barnardos, who will expand further on the reasons for this.

Ms Norah Gibbons

Chairperson and members, I wish to highlight areas where Barnardos sees, as a result of many years of experience in supporting children, that the way things are now does not adequately protect them.

First, I will deal with adoption. Barnardos has offered an adoption advice service for the past 28 years and has taken many thousands of calls from people involved in adoption. One significant group is the long-term foster carers, that is people who will have had children from a marital family living with them for a very long period and in every sense, except the legal sense, the foster family are the parents of that child and love and care for him or her. He or she is attached to the foster parents and they are attached to him or her. For that child to be made legally secure in that foster family, the foster family must apply to the High Court to have the child's original family declared to have totally and completely and utterly failed in their duty toward their child. That is a major burden for foster families who want to adopt the child or children they love. We are all aware of the importance of linking children's past into their present in order that they can have a good future as adults. Foster parents tell us they do not want to have to look Johnny in the face in five years' time and tell him they had to fight his first family to secure his place in their family. As children grow up and go through the teenage years, they can query whether parents, or any parents have acted in their best interests. If the child had a right in the Constitution, the health board, now the Health Service Executive, could apply for that child to be freed for adoption or his original family could say they could not meet his needs and wanted to lay down their rights, something they are not allowed to do currently.

We provide a guardian service under the provisions of the Child Care Act 1991. The court may ask for a guardian to be appointed, usually in a very complicated case where there is a significant discrepancy between what the parents and the Health Service Executive may want for the child. We have now dealt with approximately 300 cases. The guardian has two roles, to tell the court the views of the child as if he or she were able to speak about it to the court and most importantly to advise the court what the guardian thinks is in the child's best interests. We were contacted by a foster family who did not understand how this system works and told the story of the girl whom they cared for since she was six months old on a care order. The Health Service Executive is under court order to allow this child to see her mother, who has serious mental health problems. The child is brought to an office to see her mother who then tells her she loves her and wants her back as she will be able to care for her. Every single time this happens the girl is confused and the question of her security comes up. If the child had rights, a guardian could be appointed on her behalf who could discuss what would be in her best interests because at present every single time they consider sending her home, they know it will not be safe for her to go.

I will hand over to my colleague, Mr. Geoffrey Shannon who will speak about the legal issues.

Mr. Shannon

I appeared before the joint committee this morning in a different capacity, but this afternoon I will focus exclusively on the need for the emphasis to be put on the protection of children in the Constitution. The current weak constitutional protection for children denies them the basic rights to which they are entitled under international instruments. It often has been said that the measure of a democracy is the manner in which the needs of the most vulnerable are considered and met, yet our family law system is adult rather than child centred. The perspective of the child is virtually absent. The striking feature of the Irish legal system is the relative invisibility of children, which is a theme we touched on this morning. Marriage breakdown comes as a shock for most children and usually provokes an emotional crises akin to a bereavement. Children are often left feeling their perspective has been excluded from the decision making process.

There is a paradox. While the law aims to make the welfare of the child paramount, how can we focus on this if we do not listen to what children have to say, if we do not help them to understand what is happening in their lives and if we do not meet their support needs at a time of intense emotional family upheaval?

One of the areas mandated is adoption, in which area my credentials are well established. I have acted as the independent legal expert to the Department of Health and Children on the adoption consultation process and have also advised the Adoption Board. I have seen at a practical level the impact of the inadequacies of constitutional protection. Articles 41 and 42 of the Constitution insist on preserving rights of married parents in circumstances where they have been constantly abused or, even more absurdly, where the parents have no interest in the exercise of those rights. We have seen an example in that for a significant number of children in long-term foster care, rehabilitation with their biological marital family unit is an unattainable goal. Although they no longer have active access arrangements with their biological marital parents, the children concerned legally belong to them and are not free for adoption. They can only be freed for adoption if it can be proven that their marital parents have so comprehensively abandoned their parental duties in such a manner as to indicate that they are unlikely ever to receive even minimal care from them. Of necessity, due to the Constitution, they live in a twilight world between a family which does not want them and a family which cannot have them fully. This issue has been addressed in a number of reports dating back to the Kilkenny incest investigation report and the report of the Constitution review group. The Constitution should be amended to ensure the right of children to have their welfare protected is given the paramountcy it deserves.

My colleague also touched on the issue of representation for children. There is no infrastructure for such representation in child care cases in Ireland, notwithstanding international obligations in this regard. Articles 6 and 8 of the European Convention on Human Rights provide for a child's right to participate in legal proceedings, a right highlighted in Article 12 of the UN Convention on the Rights of the Child.

The operation of the provisions in respect of the representative of the child, or guardian ad litem, has been far from satisfactory. There is no detail provided in the Child Care Act 1991 as to the role and functions of the guardian ad litem or the manner in which he or she is to perform his or her duties. The uncertainty continues when considering who should be appointed as guardian ad litem. In effect, the courts have broad discretion to appoint someone with a peculiar name to do something in children’s cases. At best, the child’s right to representation in child care applications affecting him or her is discretionary. The net result of such discretion is a chaotic system of representation for children with significant variations throughout the country.

The provisions for the protection of children are primarily for children themselves and the entitlement accrues to them as of right, not as a dispensation. It also accrues to them under international law. Of the key Council of Europe recommendations on protection, point 8.i of Recommendation 1286 of 1996 on a European strategy for children calls on states to guarantee children's rights through explicit recognition in constitutional texts. Point 8.v states one of these fundamental rights is the right to protection from all forms of abuse.

Another Council of Europe recommendation, Recommendation 1371 of 1998, is equally instructive. It speaks of developing a genuine culture of children's rights. Children need specific protection because of their vulnerability and less developed capacity to judge various risks which adults are able to assess such as child sexual abuse, rape, prostitution, pornography, incest or ill-treatment. There is also Principle 21, in the context of the White Paper published on 15 January 2002. There are other models about which the joint committee has heard in other submissions this morning, include express provisions in the German constitution. Article 28 of the South African constitution also grants express rights to children.

Ireland is a country that sees itself as child-loving, yet it has failed to protect children from exploitation, neglect and abuse throughout history. It has also failed to address the rights of children adequately in the Constitution. Childhood does not stand still pending detailed consideration of whether the Constitution should be amended. Should children be forced to accept the crumbs from the constitutional table when the future of the country rests with them? The Constitution should be amended to include a specific declaration on the rights of children. Without a fundamental overhaul of the current constitutional position, the rights of children in Ireland will never be truly recognised, nor will Ireland live up to the standards set by international laws by which we have agreed to abide. The time is ripe to place the child at the centre of the Constitution. Only then will we be in a position to show that this is a country that really does cherish all the children of the nation equally.

Chairman

I thank Mr. Shannon who made the same points coherently this morning when he represented the Law Society of Ireland. The group advocates that the Constitution should be changed but has it, particularly Mr. Shannon given his legal experience, ever considered drafting an appropriate amendment? The group which appeared before the joint committee before it drafted a proposal on how the Constitution should be changed to protect the child, by introducing an Article 42A. Mr. Shannon may not have seen it or may not have been listening to it.

Mr. Shannon

I heard the previous submission and would be happy to work on something. I thought it would be rather dangerous and presumptuous to bring forward a recommendation. There are a number of well developed international models.

Chairman

We have heard much criticism about access of children to the courts, guardians ad litem and the court system. My impression was that the family law courts had evolved and developed substantially in the past 15 or 20 years. Is it still the view that they — particularly the District Courts — are not adequate to deal with family law cases, particularly issues concerning custody and access? Are District Court judges trained sufficiently? Family law was not on the agenda when I studied law and I am not that old. Should there be more specific family law courts, staffed by persons who have an in-depth knowledge of the workings of the family law system? Road traffic accident cases are different from criminal cases, etc. Is the family law court system adequate to cope with the growing number of family law cases, particularly those involving children?

Mr. Shannon

That is an interesting question. Mrs. Justice Denham, in the report commissioned by the Courts Service and headed by her, recommended that there be a specialised family law division. The time is ripe to look at that issue.

The Chairman raised the important issue of the District Court and District Court judges. While training is important, my personal view is that District Court judges do as much as they can under the current framework. There will be a substandard family law system until such time as there is a designated family law division at all levels of the courts. If one looks at it from the perspective that most custody and access cases are dealt with at District Court level rather than at High Court and Supreme Court level, it is imperative that we address this issue. Clearly, it is one that has been addressed in the past. It has been in the public domain since the report was published in 1996.

Chairman

It was mentioned that the Constitution had failed many children, particularly those in foster care. It is an interesting point, of which many politicians would not be aware. I understand the examples given. It is an interesting turn of events that marriage, instead of being the strong pillar of protection, has failed children in such instances.

Ms Gibbons

The point I was making was that while Mr. Keenan had stated our view was that children were better off with their families, wherever possible, and that we would work to support this at all times, there were situations where that was not possible because the parents, due to their own inadequacies or problems, could not provide care for their child. The child is placed in foster care and, if he or she is lucky, will find a foster family with which he or she can remain. Another secure family offers the very best possibility for a child. However, if he or she happens to come from a marital family, the Chairman is correct in stating he or she is no longer protected because of his or her legal position with one family, although he or she is present in and attached to another. Due to the constitutional position, it is not possible for the first set of parents who may be well able to acknowledge that they are unable to provide care for their child to lay aside their parental rights and responsibilities.

Chairman

There is a danger in that. I was in Romania after the overthrow of Ceausescu and visited many of the orphanages. I had a family experience in this regard. It was too easy for parents to abandon their families and stick them into orphanages, thereby resulting in hundreds of orphanages with abandoned children. One must be careful not to draw a line in the sand to ensure that this will not happen in this country in, for example, a time of economic decline.

Mr. Shannon

I was associated with the Irish Foster Care Association for a period of ten years. I understand the committee will be meeting that association, thus providing an opportunity to verify what I am saying. A significant number of children are in long-term foster care and cannot be considered for adoption because of the rigours of the Constitution.

I mentioned giving parents a second chance in the context of divorce. This is a matter of giving children a second chance to enjoy the stability and security of a caring and loving family. This is a basic right that we must honour as a result of our international obligations, particularly those arising from the UN Convention on the Rights of the Child.

Deputy Andrews

The members of One Family, particularly Dr. Fergus Ryan, alluded to the H.W. case, the heel prick case involving the North Western Health Board. In that case, the child was a marital child. Might that case have resulted in a different ruling had the child been a non-marital child? The view that constitutional protections only extend to families based on marriage contrasts with what is stated in Article 41.1.1° of the Constitution, namely, "The State recognises the Family as the natural primary and fundamental unit . . . ". It does not state "the Family based on marriage".

We also spoke about the Ennis v. Butterly case, which concerned a cohabiting couple with a maintenance contract. It was decided that the contract did not have any basis in Irish law. This leads one to conclude that there are, legally speaking, two types of children under Irish law. This only happens on the periphery of the law when it is pushed and extended in seriously fought court cases.

Cases concerning foster children were mentioned in the delegates' submission. Referring to the second listed case, Ms Gibbons described a child who had been in foster care for four years and who must frequently endure the trauma associated with her case being brought to court. Is this child's mother unmarried? If a child's mother is unmarried, does Barnardos approach the case differently? Does it recognise the constitutional difference between children born to married parents and those born to unmarried parents?

Chairman

Deputy Devins wanted to ask a question. We are exceeding the time allowed but I do not want to rush anyone.

Deputy Devins

I welcome the deputation. I admire the strength with which it makes the case for an article to protect the rights of children. I will act as a devil's advocate in this regard. If such an article were included in the Constitution, would there be much conflict between it and the articles that currently protect the rights of the family vis-à-vis the rights of the child? Where would the balance lie in the phenylketonuria case, to which Deputy Andrews referred?

Mr. Shannon neatly sidestepped the request of the Chairman to create a formula of words for the proposed amendment. I appeal to him to take the Chairman up on his request. It would be of great help to the committee. Mr. Shannon reminded me of a politician who was handed a ball and refused to drop it.

Chairman

I thank the Deputy for being of assistance to the Chair. Mr. Shannon may answer those questions and then we will suspend.

Mr. Shannon

I will take Deputy Devins's comments as a compliment. Deputy Andrews raised an interesting question on the case of the North Western Health Board v. H.W. and C.W., which has been written about extensively. This case is one of four that have recently come before the Supreme Court. One was the case of Ms Sinnott, whom I understand the committee will be meeting later this afternoon. Also included are the T.D. case and the Lobe and Osayande case. They are all part of the same package and illustrate a general theme, namely, an expression by the Supreme Court of its reluctance to articulate rights for children.

Deputy Peter Power made reference this morning to unenumerative rights under Article 40 of the Constitution. The Supreme Court has indicated a desire not to articulate those rights and has expressed the desire that if they are to be articulated, this should be done by the Legislature. The Status of Children Act refers to removing discrimination between the marital and non-marital child. However, the irony is that this particular discrimination continues to endure and will do so until such time as we have express rights for children in the Constitution.

There has been a sequel to the Ennis v. Butterly case, the E.H. v. J.M. case, in which the approach adopted by Mr. Justice Kelly in the High Court was followed by Mr. Justice Kinlen. This is part of a series of cases. It is not just a blip but rather a theme in this particular area. Those two decisions should be to the fore in any thinking on this matter. These are important and significant issues which we need to consider. I would certainly be happy to draw up a formula of words for the proposed amendment and commit to forwarding it to the committee in due course.

Chairman

I thank the delegation for attending and for making an excellent submission. On behalf of the committee, I compliment the representatives on the excellent work of their organisation in respect of children. It is well recognised and we would like this recognition to be recorded by the committee. We will take the delegates' submission on board and tease it out during the coming months. We will try to ensure that, when it is produced, our report will be balanced. It is interesting that most groups have put considerable emphasis on the status and role of the child in the Constitution.

Sitting suspended at 3.17 p.m. and resumed at 3.20 p.m.

Chairman

The next presentation is by AMEN which is represented by Ms Mary Cleary, co-ordinator; Mr. Frank McGlynn, secretary; Mr. Clem Roberts and Mr. Michael Scully. I welcome the delegation. Before we begin, I must remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee.

The joint committee has received the submission from AMEN. I now invite the delegation to make a six to eight minute presentation, following which we will have a question and answer session.

Ms Mary Cleary

I thank the joint committee for the invitation to make an oral submission. AMEN was established in 1997 and has since been contacted by thousands of men and members of their families. It has developed a deep and unique insight into the many issues facing men in family crisis. Many men and their families believe they have constitutional protection and rights and a responsibility to be part of their family and protect their children. However, they are often shocked to find these rights are removed by the State in the family law courts.

The failure of policymakers to engage with men has resulted in a democratic deficit. It is often suggested that as it is mostly men who are in positions of power, they address issues related to men. These assumptions are untrue. Men in such positions tend to address the needs of women rather than men. It is often the case that men's needs and voices are not heard. While many men's groups are emerging, they are under-resourced.

Mr. Frank McGlynn

I draw the joint committee's attention to a minor typographical error in the submission. The first few words should read "under Article 40.3" rather than "under Article 43.3".

In our submission we have tried to confine ourselves to comments identified by the joint committee as pertaining to the family. We have also tried to address the nine specific questions posed by it. As members will understand, there are certain issues and recommendations which we regard as of the utmost importance. I will outline briefly what AMEN regards as priority issues.

Article 40.3 which deals with personal rights of citizens includes the right to a good name and the property rights of every citizen. We believe that to some extent the State has reneged on its obligations in respect of a citizen's right to a good name. Our recommendation is that all forms of character assassination should be criminalised. If a citizen's good name is taken or he or she is the victim of slander, libel or a false accusation, it is his or her responsibility to take action. It should be the responsibility of the State to take a criminal action. I understand that at one time these issues were deemed criminal acts but the position changed somewhere along the way. In our view, all forms of character assassination should be criminalised.

While property rights are protected to some extent in the Constitution, we feel that the citizen's right to live in his or her family home should be expressly protected. When they enter into the arena of family law, men find that their right to live in their own home simply disappears. They do not have a right to live in the home. They may have an obligation to continue paying for the home, or they may have already paid for it, but their right to live there can be simply eroded. Men approach solicitors and are informed that they can serve papers for judicial separation. However, the first matter the solicitor will bring to a man's attention is that he will lose his right to live in the family home. That is totally wrong. The right to live in a family should be a fundamental right of every citizen.

In 1976, the Legislature enacted legislation entitled the Family Home Protection Act which had the effect of preventing one spouse from disposing of a family home without the agreement of the other spouse. This right to live in the family home, underpinned by the legislation in question, has since been eroded, particularly by the Judicial Separation and Family Law Reform Act 1989, the Domestic Violence Act 1996 and the Family Law Act 1995, as well as by the Family Law (Divorce) Act 1996.

The ease with which men can be removed from the family home is one of the main factors marginalising fathers from their children. Most men we meet are shocked when we tell them, or when they discover from a solicitor, that there is no constitutional protection for their right to live in their own home. Such a man's right to live there depends on a judge or in many cases on the man's spouse, who has the right to apply to have him removed for no particular reason.

Such a right, like any other, should be qualified. A citizen's right should be expressly protected, except in extreme circumstances. The obvious extreme circumstance would be where a citizen refuses to pay his rent or mortgage. In that context, the person renting the house to the citizen would have the right to remove him or whoever is providing the mortgage would have the right to repossess the house. The other extreme circumstance would involve criminal conduct. I refer here to an instance where a person is behaving in such a way that he or she is endangering other members of the family. If a citizen is being removed on either of those grounds, the onus of proof should be on the person who seeks to have the citizen removed. Under section 10 of the Family Law Act 1995, men — it is usually men, although in theory it applies to women — are being removed from their homes simply on the basis of an application where their spouses go through a particular procedure. This is an infringement of a fundamental human right and it is causing tremendous hardship for men and devastating their lives.

We also deal with the State recognising the family and the importance thereof. The family law system encroaches too easily on family life. The nature and extent of State intervention in family life, particularly through the family law system, does not protect the family. In fact, it is doing a great deal of damage to the family. We refer here, in particular, to the adversarial nature of the family law system. Essentially, the family law system survives and thrives on hostility between parents. There is an alternative to the current adversarial family law system. The Constitution should set clear limits on the extent to which the State can interfere in family life, the circumstances in which it can evict spouses from their homes and the circumstances in which it can usurp parental rights and obligations.

Article 41.2 deals with the position of women in the home. We have a difficulty with this in that it is gender specific. It is time men's contribution to the State, to the family and to family life is also recognised. This provision should either be removed or worded in gender-neutral terms. Since we delivered our submission to the committee, we have seen the submission by Treoir, another organisation which represents lone parents. Treoir has put forward a proposal with which we would go along. Basically, it contains gender-neutral wording which states that the State recognises that home and family life give society a support without which the common good cannot be achieved and that the State shall endeavour to support persons caring for others in the home. We would be inclined to support that amendment by Treoir.

Article 41.3 forms the most important part of the submission because it deals with the State supporting marriage. Having dealt with men since 1997, AMEN believes the marriage contract has been so corrupted by the family law system that, in effect, it is a lethal contract for any man to enter into. We believe that men are already opting not to get married because of what we describe as the unseen termination clause. The unseen termination clause effectively means that in the event of marriage breaking down, the man, regardless of who is at fault, will be obliged to leave the family home and continue fulfilling his contract with the female spouse. In other words, he will have to continue maintaining her although she will not have to continue to perform homemaking duties for him. He is also liable to lose his property — this is provided for in the Family Law Acts — and even where the marriage is legally terminated by divorce proceedings, he can still be put in a position where he must support his former spouse, not merely for a few years but for the remainder of his life.

Probably the most important part of this is that it marginalises men and results, in many instances, in the destruction of fatherhood. Most people can afford just one home in their lifetime. The result of this is that men are being forced to live in substandard one-bedroom accommodation to which they cannot bring their children. Even if they were granted joint custody, which many of them are denied, they would not be able to avail of it because of the circumstances in which they are living.

If more men were properly informed of the nature of the provisions to deal with marriage breakdown, I am certain they would not get married and there would be even fewer marriages than at present. We state in our submission that if the State has already taken a decision to discourage marriage and make it a no-go area for men, then it is achieving that objective through the family law system. Family law has been described as becoming a no-go area for men and that is not in the best interests of the State or the family. Marriage should be beneficial to all parties. It should not carry this devastating power to marginalise and push somebody into the circumstances in which many men are living. We indicate that the State's response to marriage breakdown could be summed up in three words, namely, wipe men out. In saying so, we are reflecting the views and experience of the vast majority of men who approach us.

Rather than forcing people into the adversarial system that is currently used as a first resort, our proposals and recommendations would put greater responsibility on spouses to negotiate the terms of their separation or divorce. They would thereby take responsibility for their lives, rather than handing over this to members of the legal profession and the Judiciary. This would reduce the level of acrimony. Obviously, there is acrimony in the breakdown of a relationship, particularly a marriage. The current system to deal with separations increases the acrimony to a level that is almost impossible to overcome. This is damaging to children. There should be a more equal sharing of the pain and gain. The legislation and the Constitution should have inbuilt protection of the rights and responsibilities of both parents that should apply in a meaningful way.

We made reference to Article 42.1 and noted that we recognised a slight difference between the English and Irish versions of that provision. The English version refers to respecting the rights and duties of parents whereas the Irish version, if translated literally, uses the phrase, "The State shall not interfere with . . .". While we believe the Irish version has a slightly stronger emphasis than the English version, we are not legal experts or constitutional lawyers. The English version should be amended to provide a correct translation of the Irish wording. As far as we are aware, Irish is the first official language and English the second. Therefore, the wording in Irish should take precedence over the wording in English.

We have expressed our views on all nine specific questions. Of most concern to us is the position of unmarried fathers. We have stated simply that there should be a provision to ensure all parents are treated equally. The Constitution should provide that the rights of all parents have express constitutional protection, regardless of the sex or marital status of the parents. In this regard, we disagree with the Constitution review group which appears to be suggesting that the rights of natural fathers should be dependent on the relations between them and the mother of their children. The parent-child relationship should stand independent of relationships between the parents which can go through various phases. The father's right to be a father to his children should not depend in any way on his relationship with his children's mother.

Chairman

The representatives of AMEN made an interesting point on the discrepancy between the Irish and English versions of the provision in Article 42.1. We have come across one or two others. Where there is a dispute over two versions, the version as Gaeilge takes precedence over the English version.

What is AMEN's position on the rights of children? Some of the groups which have addressed the joint committee have stated children should be accorded a central position under the Constitution.

On the question of whether the role of the mother is dated, perhaps it is not necessary to remove from the Constitution the provision which enshrines the position of the mother; rather we should enshrine the position of both parents as having a place in the home. We should enshrine the value of both parents as the natural care givers of children. This may not be the time to remove the role of the mother as we would then be suggesting the role of parents was no longer valued in society.

The Constitution should be changed to take account of the role of the natural parents of a child. There would always be the option, if the father or mother was not playing his or her role or not paying proper attention to the care and upbringing of his or her children, of removing guardianship from him or her. As I understand it, although I may be wrong, the Constitution is a set of rights and responsibilities, whereas legislation creates legal allowances or outlawing provisions. Both parents should be given legal guardianship under the Constitution. Currently fathers must obtain legal permission in that regard. A father must apply to the court for permission to be guardian of his child. We could provide in the Constitution that both parents have legal guardianship and then provide in legislation that, should the need arise, guardianship may be removed from either or both parents for a period of time to allow for foster care and so on.

Senator Tuffy

Are changes to the Constitution necessary to allow AMEN to achieve its aims? Could the issues involved be dealt with by way of legislation or through other measures? Does the delegation agree that one method by which the rights of both parents could be addressed is focusing on the rights of children rather than on their rights? Is there a need for research in this regard?

While it may be true that men are discriminated against in the legal system, so too are women. Do we need more research to establish what exactly is happening? We could then make policy decisions based on the findings of that research.

Mr. McGlynn

I will deal with the last question first. We have asked the Courts Service to provide statistics which should be available within the system. Much of what I have to say may be anecdotal which I cannot support but we are relaying the experiences of men who have contacted us. We have requested statistics on how often men are granted the right to live in the family home, how often women are granted this right and how often the courts award joint custody. There is a need for more research in this regard.

That is why legislation, rather than amending the Constitution, would be more appropriate in the circumstances.

Chairman

I thank Mr. McGlynn for the submission. We will take it on board and conduct a serious analysis of it in coming to our conclusions. We appreciate the angle from which AMEN is coming.

Sitting suspended at 4.02 p.m. and resumed at 4.06 p.m.

I will begin with Article 41.2.2°. The key to understanding this article is to see that it is not about mothers — or at least not primarily about them — but about children and their in-built developmental need for mothering.

The committee may recall a famous primate maternity study. The baby monkeys — males and females — were divided into three groups. Researchers observed them from birth through early adulthood. The first group were kept in bare cages and fed with a bottle of monkey milk. The second group had a bottle protruding from a round monkey-sized pillar surrounded with a soft fabric in the middle of the cage. The last group were raised with their mothers in the cage. Throughout the study, the difference between the mothered monkeys and the other two groups was striking. The two unmothered groups of monkeys were developmentally immature and dysfunctional, physically underdeveloped and sickly, though the presence of the fabric coloured structure, which the monkeys in the middle group used to hug and embrace and sleep snuggled up to, seemed to protect them from the worst of the damage. When these monkeys grew old enough and were bred, only the mothered monkeys parented appropriately. The others had severe parenting problems — some were even a danger to their young. Autopsies on the monkeys showed normal brain development in the mother-raised monkeys, a significant under-development in the middle group and brain damage in the monkeys in the bare cages.

Human studies can never be carried out in such a clear way. I do not even know if an animal study like that would be allowed today. However, it tells us something that is reflected in an enormous body of child development research literature. Maternity is necessary for the development of the child. What is a necessity of the human person is by definition an inalienable right. It is the protection of the child's right to receive necessary maternal input that this article seeks to offer. I put down a few of the international instruments. One of them points out that you have to be very careful of gender discrimination but it is not discrimination to talk about maternity. Maternity is a fact of life — men do not have babies. I will skip over the international instruments, which apply to both articles, not just the one I am talking about.

The primary right protected in the article is the child's, not the gender equality issue. To state the obvious, children come in two varieties — boys and girls. Both need mothers to develop. If we accept the child's need to be mothered, then we need to answer two questions. What is mothering and who mothers? If I could tell you exactly what mothering is I would be doing better than poets, philosophers, psychologists, etc. for many thousands of years. What I can tell you is that mothering has everything to do with nurturing, the foundations of identity, acceptance and presence.

Before birth the child is totally dependent on the mother. From her the child gets warmth, nourishment, sound and movement, even the space he or she occupies. At birth the baby needs the mother's colostrum to prime the immune system, her breasts to regulate antigens, her breathing rhythm to learn to remember to breath and the touch of her skin and her firm embrace to calm the baby's raw neurological system. The baby needs the familiar sound of her voice and heart to know that he or she is safe and her love to know the world is a welcoming place. For the weeks after birth the baby needs close maternal contact. For most of the history of the world in most cultures, young babies have even been carried on the mother's body and slept at her breast. In this early attachment stage they begin to study their mother from whom they have no concept of separate identity. The babies gradually begin to realise as they find a foot or hand which is not the mother's that they have an identity of their own. This process is made understandable and even bearable by the safe, constant, familiar and accepting presence of the mother. They need to know what and who the mother is to begin to find themselves in the difference between them. Even after the baby leaves the constant and frequent physical contact with the mother, the quality of the child's exploration is affected by the presence of his or her mother. In as far as the toddler feels he or she is in the mother's sphere, the child will be free to explore.

It took me several children to learn to put this to good use. My older children were terrors in church. They would run up and down the aisles and even on to the altar. I like a fool used to watch them and follow. It took me longer than it should have to learn that by watching them I was making them feel safe to leave the pew. When I followed them, they could run even further. It was as if I was letting out the invisible line which ties the mother and child. I changed my tack and focused on the Mass and the child stayed by me, usually touching me or even up in my arms. On the rare occasions when they did venture into the aisle they would try to get my attention, even making noise to make me look. As long as I did not, they came quietly back. Maternity provides a zone in which the child thrives and can explore.

As the child gets older he or she becomes less dependent on the mother for nutrition. All going well, much of the critical acceptance and basic identity work is complete. The child is moved on to the stage of identity formation and confirmation provided by paternity, by father and by those around them. Despite this, maternal presence remains the critical requirement for the child. As the child develops, he or she detaches from the need for the total physical contact of the newborn and pre-born and branches out in stages to a reliance on touching the mother, then later on seeing and hearing her, then on knowing she is close by and finally that they are just in her domain. This extension of the sense of maternal presence allows the child to expand his or her exploration. They begin a process of internalising maternity. In so far as he or she does this successfully, the child can sustain longer and longer periods away from the mother, which enables the child to go to places like school.

Though a child's requirement for what I call "on the spot" mothering typically diminishes, any child at any time can revert and need it again. How many of us have had children crawling into our beds at night? A six-year-old can suddenly look for his mother's lap, to be wrapped and to be rocked. A teenager can be scared and need to run to her mother, not unlike a three-year-old. This article guarantees the child that if he or she needs mothering and if the mother can and wants to be there to give it, money will not stand in the way.

Normally the nurturing aspect of maternity is for a limited time. Laying the basis of identity and communicating acceptance and a sense of the child's goodness are important maternal tasks which are done best when they are done early, but presence is lifelong. As the child grows the presence is less on the spot and more internalised, yet as a child there is no substitute for a mother just being there in whatever degree the child requires. Once in a while I am back from the parliament when my two youngest get home from school. They get a hug and they run off to play. They just disappear. I wind up sweeping floors and putting on a dinner and I wonder why I skipped lunch to get home early. Other days I arrive home at dinner time and they will ask, "How come you are so late?" even though when I am early they are just happy that I am there. Even when not actively speaking or interacting with them, the mother provides a presence, the maternity they must need after being in school all day. Anyone can give food. It is the child's early need for identity and acceptance and ongoing need for presence which is maternity. That is more than anything else protected by this article.

The second question relates to mothers. Ideally for the child his or her own mother mothers. If the child is to be adopted, we should make every effort to get the adoptive mother and baby together as early as possible. Many unavoidable factors can delay adoption but let us not allow red tape or funding to contribute to the delay. I know grandmothers and in one case an aunt who are the mothers, while the biological mother has taken the role of a big sister. There are many homes in which necessity or choice find a parent providing for the child alone, presumably a father cum mother, though this has not been my personal experience. I have found being a lone parent myself that I have had to do many of the things my husband did for and with the children. Although I think I am being mother and father to them, they consistently relate to me as mother. Most important in maternity is that there is one person with whom the child identifies as mother and that this person is committed to the role and to the child. This does not mean that there cannot be additional motherly figures in the child's life and mother substitutes — it is important for the child that there are — but the child needs for his or her development to live in the presence of someone who is mother for him or her.

To meet this need successfully, society must protect maternity. This is truer now than ever before as pressures, especially financial pressures, mount and as more women find themselves by choice or necessity in the workplace. This article is not about mothers being locked into domestic duty. The language of the article — "mother", "home" — expresses the concept of presence and foundational identity and acceptance and refers to the reality that most of this happens to the child within the family at home.

I have a friend who is a dedicated teacher in a disadvantaged area. During her years of teaching there have been a few children who wanted her to be mother. Invariably they had absent mothers through drug addiction. Although their need was great, she, being a very wise person, kept the relationship to a very warm teacher relationship. At the same time she went to great trouble to source them a mother from among their extended family. She knew that for her to mother, to create that relationship and then disappear in June, would be cruel. A mother needs to be somebody for the long haul, somebody attached to home. In a very real sense, the mother is home.

Of course, this article focused on the right of the child does involve and seek to protect the mother or the person doing the mothering. As such it guarantees that the motherer will be supported in the work of mothering the child and will be free from financial inhibition in responding to the child's needs, and in particular that the child's family can afford to respond and still pay for the necessities — rent, mortgage, food, heating. This article has implications for maternity leave, tax, children's, lone parent's and mothers' allowances, rates of social welfare benefits, etc., especially in the area of special needs where immediate mothering can be much more extended. It has implications for creating swinging doors on careers that make it easy for mothers to leave the workplace but easy to return. It is about having the freedom to take time from work when the child needs. It is about housing, etc.

What about the child's need for a father, to be fathered? This need is very real and very important. If it needs protection — I think it does — it needs to be added to this article or, better still, to be given an article of its own. Maybe we should have Article 42.2.3 protecting the right of the child to receive fathering. However, the emphasis in the article would be very different. Whereas for the child maternity is about presence and we talk about home because of that — not that we are trying to tie women to home — research consistently shows that the child's need for paternity is much more the developmentally important work of confirmation, connectedness, challenge, social identity. There is a different emphasis in fathering. In a sense the fatherer invites the child to take on the world, whereas the mother helps the child to be at home in it. An article guaranteeing the father's right to paternity, well worded, would have implications for access to children, social welfare, tax, work leave, house ownership, employment schedules, share of domestic work, opportunity, participation, decision-making, etc. and as such would have my welcome and support. Let us watch and listen to the children and their fathers, study the research and accumulated wisdom on paternity and see what we can put in place to support the child's need to be fathered.

I now turn to the other article dealing with women in the home and the common good. In the High Court I had a case in conjunction with Jamie's. I relied on this article not as a woman but as a carer. Mr. Justice Barr found that my constitutional right under this and other articles of the Constitution had not been vindicated. The State appealed this decision to the Supreme Court. Disappointingly, the six male judges did not really even examine the issues in the case and just dismissed them. The only judge who actually considered my case, reviewing the constitutional provisions invoked, was Mrs. Justice Susan Denham. In her judgment she clearly showed that the concept "woman within the home . . . gives the State the support without which the common good could not be achieved" in the context of the article clearly describes and values the person who cares for dependent persons, elderly, sick, disabled and children, within the home. She clearly implies that it is not gender specific, that this can equally apply to the carer who is a man. This has been further confirmed by the Chief Justice, Mr. Justice Murray, who has made it clear that the carer, though termed in the article a woman, can be a male carer. He stated, "It seems to me that the Constitution implicitly recognises similarly the value of a man's contribution in the home as a parent." This is already gender inclusive. Considering the incredibly unacceptable treatment of carers in our country, I would not recommend tampering with this clear, if ignored, affirmation of carers. I would not risk losing or weakening a constitutional acknowledgment of the fact that the common good cannot be achieved without the men and women who care for the weakest and most vulnerable in our society.

It should be noted that the Irish Constitution identifies the common good, i.e. the ensuring of the welfare and dignity of the person, establishment of true social order and peace between nations as the reason for its existence. The question we must ask is whether Article 42.2.1° is accurate. Is caring, particularly caring within the home, conducive to the welfare and dignity of the person? For me this is obvious. To have a home is a basic human need and to be able to choose to remain in it and receive focused personal care, specifically in our vulnerability, promotes the person. Caring is also conducive to the dignity of the person who is doing the caring. Supporting the carer and the recipient of care is conducive to the development of all of us as persons. Being a caring community is not just desirable, it is essential also to true social order. To be a caring community we must actively care, not just in words. Not everyone has the opportunity to care for someone in need of care but we can learn and be inspired by carers to bring caring into every sphere of our life — social, economic and personal.

Economically carers provide a service that is also immensely valuable. For the State to provide institutionalised care for all those who need care would be prohibitively expensive. The home carer provides good quality care at a fraction of the cost of State-funded institutional care services. Carers save the State enormous costs. In justice we need to recognise carers as the essential and valuable workforce they are. We urgently need to remunerate carers for our economic and social survival.

The European Commission has just released the Green Paper on the demography of Europe. Read it and then think about how we support and encourage the carers of our nation's children. In Europe we have a demographic pattern that is unique in the history of the world. This report states that we are in a downward demographic spiral that is already causing major social displacement and economic stagnation. It carries a clear warning: "Never in history has there been economic growth without population growth." We in Ireland are as yet buffered from this because of our larger families of the past and our protection of the unborn. We uniquely in western Europe have a dynamic, young and relatively large workforce for our size.

An older official in the Department of Finance commented to me recently that in the 1960s, 1970s and 1980s they wondered how they were possibly going to feed, clothe and educate all those children. Little did they know, he said, that they would become the engine of Ireland's economic success. However, we must not be complacent. Our birth rate has steadily dropped. Though this drop is delayed, it is following the European trend in that it is now below replacement. It is quite simple. Many women will not have children or not have more than one or two just to drop them off from 7 a.m. and 7 p.m. in daycare. We need to make work family friendly so that parents can harmonise work and family life. We need to support those who choose to stay at home or to take a few years off to establish a family. If we become a society where people exist to serve employment rather than employment to serve people, then we are not going to have children to continue being employees. As this report warns, if we do not have children, we do not have a future. We do have the motivation even to work hard and sacrifice.

Article 42.2.1° demands that we also treasure not just the carers of children but also of other vulnerable groups. The Green Paper shows that we now have more elderly people to be cared for than ever before, with fewer people to do the caring. Add this to the fact that the number of people with a disability is increasing. Wisdom is that about 10% of the members of society will have a disability. We are at 17% in Europe and rising. There are increases in many debilitating chronic diseases like multiple sclerosis and disabling conditions like autism, schizophrenia and Alzheimer's disease. More to be cared for, fewer to care — this does not work.

Recently I spoke about carers to a senior member of the European Commission at the Employment and Social Committee. I said that in Ireland carers are an endangered species. He said we should do what we can to care for carers, that in some European countries like Germany they are now extinct and this has led to enormous problems. I do not think the loss of carers stems from a lack of caring people but rather a lack of people who are available to care and who can afford to care. How do we deal with the crisis of care? As in the 12 Alcoholics Anonymous steps, we have first to admit that there is a problem.

Let us think of the cost of nursing home care. I know you are all very conscious of it at present because it is a topical issue. Multiply that by the number of carers we are losing every year and the number who are still soldiering on and we will get some idea of the potential cost of extinguishing home care by neglect. Before I became a member of the European Parliament I was a full-time carer of Jamie, who is profoundly disabled, and five other of the children who are still at home. Now that I am working it takes me more than my pay cheque to replace myself in terms of substitutes for the bare essentials of caring. What do we see in countries where family carers have dwindled or disappeared? We see institutionalisation of euthanasia, legal or not. I am not willing to stand by and watch this happen.

The joint committee adjourned at 4.50 p.m until 10.30 a.m. on Wednesday, 20 April 2005.

JOINT COMMITTEE ON THE CONSTITUTION debate - Tuesday, 19 Apr 2005

Family Issues: Presentations.

Mr. Geoffrey Shannon

Ms Rosemary Horgan

Ms Horgan

Ms Horgan

Mr. Shannon

Ms Joan O’Mahony

Ms O’Mahony

Mr. Shannon

Mr. Shannon

Mr. Shannon

Ms Horgan

Mr. Shannon

Ms Horgan

Mr. Shannon

Ms O’Mahony

Ms O’Mahony

Mr. Paul Gilligan

Mr. Gilligan

Mr. Gilligan

Mr. Gilligan

Mr. Gilligan

Mr. Gilligan

Mr. Gilligan

Mr. Michael O’Kennedy, SC

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Ms Muriel Walls

Mr. O’Kennedy, SC

Ms Walls

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

A Member

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Ms Walls

Ms Walls

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Mr. Pat Bennett

Ms Walls

Ms Walls

Ms Walls

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Mr. Bennett

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Ms Walls

Ms Walls

Ms Walls

Mr. O’Kennedy, SC

Mr. O’Kennedy, SC

Ms Karen Kiernan

Dr. Fergus Ryan

Dr. Ryan

Dr. Ryan

Ms Ann Bowen

Dr. Ryan

Dr. Ryan

Dr. Ryan

Dr. Ryan

Ms Bowen

Dr. Ryan

Mr. Owen Keenan

JOINT COMMITTEE ON THE CONSTITUTION debate -
Tuesday, 19 Apr 2005