JOINT COMMITTEE ON THE CONSTITUTION debate -
Friday, 22 Apr 2005

Family Issues: Presentations.

Chairman

Before we begin, I must remind visitors that members of this 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 members 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.

The committee has already received the group's presentation. We ask that in a period of perhaps six or eight minutes you give a synopsis of the submission highlighting the group's main purpose and observations on this constitutional matter, and then a question and answer session will follow.

Ms Maura Murray

I thank the committee for affording us this hearing. AIM has adopted the UN definition of the family, of which I am sure the committee will be aware, because the diversity of family forms and relationships should be recognised. As presently interpreted, the rights protected against external forces by the Constitution are those of the family unit, not of the individual members within that unit. This can leave individuals unprotected in certain circumstances, where their detriment comes from within the unit. We believe that the rights of individuals within the family should be recognised. By adopting the United Nations definition of the family, we feel that all families will acquire constitutional protection and that this would have important practical implications in the area of property, for example, maintenance, violence between cohabitees, etc.

The question of gay marriage, which forms part of the submission, is not within our particular area of expertise. However, it is time for a public debate on the issue and for Irish gay people to be consulted on what they want. From our knowledge of the matter, we would be in favour of a system of registration of domestic partnerships, which would confer the rights presently unavailable to same sex and heterosexual cohabiting couples and which could be devised in some way.

Turning to the Constitution's reference to women's life within the home, we would contend that this definition of a woman's role is patriarchal, sexist, outdated and of the time the Constitution was written. It is also at odds with legislation on equality. We feel it is important to give some practical recognition to the caring role in the family, whether it is the male or female parent.

AIM believes the natural father should have automatic rights to guardianship. The Keegan case is a precedent for this as well as various Acts. The right to guardianship should be rescinded where a father fails to live up to his duty to contribute to the material and other welfare of the child, or where the child has been the victim of rape by the father. The latter is a very difficult issue to legislate for but automatic guardianship in this circumstance would seem problematic. As a child has the right to the society of its parents, we believe the issue of custody is separate and could be determined by the circumstances of the case for what is in the child's best interest.

There is already a precedent for the alienation of parental rights of unmarried mothers, enumerated by Chief Justice O'Higgins and quoted in the submission. The granting of rights which can subsequently be taken away in certain circumstances would appear to be already a possibility. Whether the rights of the natural mother should have express constitutional protection, it is already contained in the O'Higgins judgment, inferred from Article 40.3.1°, providing that the mother's natural right for the custody of her child is protected. We also feel it could be made specific and subject to the same set of conditions as would apply for unmarried fathers. It might be appropriate in certain circumstances to withdraw that right, but always with the child's best interests as paramount.

Serious issues need to be addressed with regard to the UN Convention on the Rights of the Child. These include the right of the child to representation and to be heard in legal proceedings affecting the child, particularly in matrimonial disputes between parents. Another issue involves the words "inalienable" and "imprescriptible" which endorse the primacy of the unit, sometimes to the detriment of the individuals in the family. In its observations of Ireland's implementation of the UN Convention on the Rights of the Child, the UN committee on children recommended the child should be considered to be a full subject of rights. The committee on the Kilkenny incest case made the similar recommendation that a statement of the constitutional rights of children should be introduced, stating children will be fully protected and enumerated within the Constitution. AIM family services endorses these views. We propose these to the committee for inclusion in its considerations.

Chairman

I have some questions on this succinct submission. WITH, Women Within the Home, attended the committee yesterday and stated it represented over 500,000 women working in the home as carers, parents and so on. While fewer men are involved in the home full time, the group was of the view that the constitutional protection of the woman within the home must be retained. If it were to be changed, it should be skewed slightly to include men. What is AIM's view on this?

AIM believes that the inalienable and imprescriptible rights of the family under Article 41.1 should be amended. The Adoption Board suggested a similar amendment because there are approximately 2,000 children in foster care, many for five to ten years. Due to this constitutional provision, these children cannot be legally adopted which causes great problems.

AIM is putting great emphasis on the rights of the child. Some groups have suggested in their submissions that the Constitution should be framed in such a way to put the child as the central figure in whatever unit of family, be it a conventional one based on marriage, a one-parent family, a co-habiting couple or whatever other formation. All rights would revolve around the rights of the child as the central axis. What are AIM's views on this?

Ms Murray

Other people will have views on these matters. Our objection to the issue of women in the home is that a woman's role is solely defined as being in the home. It has not conferred any great economic rights on women and in the past they have suffered as a result, namely through marriage bans. We feel the caring role must be emphasised for whoever is caring, as increasingly men are carers in the home. The provision has had no practical application in the lives of women in all the time it has been in the Constitution. It might have been a provision that could have been challenged where women, who it states should not be forced by economic circumstances to work, had to enter the workforce. However, they have been forced to go out to work and no one has done anything about it.

Chairman

More so in the past 30 years.

Ms Murray

Absolutely.

Chairman

The interesting point made in that regard is that by right, if the Exchequer or the Minister for Finance of the day were more flaithiúl, there would be more support for it. One group made the point that it is eight times more costly to the State to care for an elderly person in a nursing home on a permanent basis than the equivalent amount being given to allow an individual to be cared for at home. The system does not make financial sense.

Ms Murray

The Chairman makes a good point.

On the other hand, the provision defines women as carers. Is there any reason, if the financial incentives were in place, men cannot fulfil that role? In many cases, men do care for their elderly parents although I accept they are not in the majority. However, will the poor man who is caring not receive anything while a woman, by virtue of being a woman, will? What if a couple's children have grown up, and a woman is at home minding her husband? Is that the same as if she is looking after children? Will a woman's role be defined as the minder or carer of another person who does not require care?

This is applied to all women because of its wording. Some modification of this wording is required to recognise that men are capable of caring. Women's sole role in the world is not as carers, which idea seems to emanate from the Constitution.

Ms Deirdre McDevitt

I want to emphasise that the woman's role is not confined to the home. With the increases in the cost of housing, women have no choice but to enter the workforce.

Deputy Andrews

I apologise for having missed the beginning of the presentation. AIM claims that the natural father should, in equity, have automatic rights to guardianship of his child, which is fine. What is AIM's experience of restrictions of fathers' rights to access?

That is one of the most important issues. Custody is a bigger mountain to climb but access is an easier issue to solve. Is there something in the Constitution which prevents the District Court judge from granting an access order to a father? My impression is that District Court judges simply are not disposed to do it, but they have the power. Perhaps it is something in our culture.

Ms McDevitt

I think it has changed slightly in that I understand the courts are giving greater access. Our experience in AIM would be that if a young man of 16 or 17 is the father, very often it is his mother who takes the child. More men are going to the courts seeking access, from the age of 16 upwards.

Deputy Andrews

Is there anything in the Constitution?

Ms McDevitt

There is not anything in the Constitution. It is based on whatever is presented to the judge. That is why we have slight reservations about giving automatic rights in that area to the father. Just as mothers are unable to look after children, fathers also are unable to do so. It should be decided totally in the best interests of the child.

Deputy Andrews

Are you happy with the status quo in relation to access and the rights of fathers? Would you think that District Court judges need to be more fully briefed?

Ms McDevitt

There should be more parenting programmes. Young fathers — not married fathers who separate — should be made more aware of their responsibilities in caring for a child.

The original question was about automatic guardianship. Guardianship is quite a different concept and a much more difficult one. Married parents are automatically guardians of their children. In fairness and equity, why does an unmarried father of whatever age not have an automatic right? I fully appreciate all the difficulties of conferring that right automatically because it has certain knock-on effects on his partner, who may no longer be his partner and want to leave the country or do various things. She would have to go to court to get permission to do that, should the father object. That is a separate issue from custody.

In my experience as a family mediator and having come across unmarried parents who come to mediation to try to sort out access but very often have another agenda as well, the fact that the father does not have automatic guardianship and will not perhaps at this point have applied for it creates a huge imbalance in bargaining power. I have personal experience of that. Families combine behind the parents of the child. We can all understand the situation where a daughter has a baby and her family do not want anything to do with the father of the child. They are perfectly willing to look after the child and so on.

I have experience of some very sad situations involving young men who could not see their children. These were people who would have had relationships with their children to a point. You cannot make law on the basis of one case, but one particularly tragic case involved a young man whose child was two years old. He had supported the child and so on. One day he came home and found that his partner had left the house and given the child up for adoption. She had put the child into care and he had not been consulted. He could not get any information. This happened perhaps ten years ago but it is an extreme example of what could happen. My experience would be relatively small and I do not know how often this would be repeated in society. The fact is that it can happen. The social services were not obliged to consult the father and accepted the girl's word that it was OK to do this.

We have to be careful in finding a balance and prevent people mischievously exercising the rights of guardianship because they want to get at somebody. A child in any circumstances has the right to know its parents unless there is some over-riding reason that it should not. If we centre it on the child rather than the parent, which is what the law currently purports to do, then the best interests of the child will determine how it should go.

Because of the in camera rule it is difficult to know what happens in the family courts. Everyone speaks from their own particular experience, which may not reflect the wider situation.

Senator Dardis

I thank AIM for attending and making a presentation. It has been a fairly regular feature of most of the groups coming before the committee that they want to put the child centrally into the Constitution. The Chairman has referred to that. There are two ways of doing it. One is to enunciate a general principle as to the rights of the child; the other is to enumerate the rights. I would be interested to know whether you would favour enumerating them. The issue here is the extent to which we put things in legislation, keeping the Constitution very simple. The alternative is to expand the Constitution. We have some unhappy experience of trying to legislate through the Constitution.

A recurring theme is extending the definition of the family, the question of single parent families and homosexual-lesbian relationships. There has been some difference between the groups that would represent those interests in terms of one group wanting marriage and the other group wanting civil partnership. I would be interested to know from your experience which you think would be the preferred route. You referred to Spain and the major decision yesterday. That can be done by legislation, provided the Constitution allows it to happen.

Ms McDevitt

We are not experts in what the gay community want and therefore we feel that they should be consulted about that. Some gay people whom I know — one cannot change the Constitution on the basis of that sort of sample — would be more interested in civil partnership, from which the rights they want to acquire would flow, rather than a marriage ceremony in the register office.

Senator Dardis

Are there powers to extend the right to adoption to single sex partnerships?

Ms McDevitt

If the rights of the child are at the centre, my personal view, which probably does not count, is that given the right circumstances I would not see an objection, but I would not be speaking for the AIM group on that score. It is a matter we really have not debated. Broadly speaking, we do not see why people should be discriminated against on the grounds of sexual orientation. They are not discriminated against in other areas of life where there is specific legislation protecting their rights to equality of treatment and so on. If you extend that, you have to have some kind of arrangement whereby a committed relationship would have to be registered in some way as a public act, from which rights and responsibilities would flow.

Senator Dardis

I asked a question on the enumeration of children's rights.

Ms McDevitt

I would concur that the less enumeration the better, but the child should in some way be guaranteed as an individual and would have rights under the Constitution. It would be for people with greater expertise than ours to draw out from that what exactly those rights might be. The wording would require expertise.

Deputy O’Sullivan

I welcome the group. Some of the issues I wished to raise have already been discussed. I refer to the matter raised by Deputy Barry Andrews on the interaction of the rights of fathers and the rights of the child. Yesterday, I put a question to the Irish Council for Civil Liberties regarding the rights of the biological father to some form of social involvement with the child and how these should be guaranteed. The ICCL's view was that one could protect the child by giving rights to the father provided one balanced these by giving rights to the child. In other words, one could protect children from mischief or other negative involvement by the natural father by concentrating on incorporating the UN convention on the child and giving general rights to children.

I am interested in pursuing this matter because it is one of the difficult issues the joint committee must address. We must try to find an appropriate form of words. Many genuine fathers who want to be involved with their children experience difficulty. At the same time, a small number of fathers would abuse their position because of difficulties they have with the mother of the child. Will AIM expand on how the joint committee could address this difficult balancing act?

Ms Murray

This could be done if the father showed a willingness to take responsibility for the child for more than just a day or a week. He must contribute significantly to the financial cost of rearing a child. In our experience — literature is available to support this contention — fathers either fail to do this, provide a minimum amount or are only willing to contribute a sum equivalent to what is given in the single parent's allowance for the support of a child. This is one way in which a father could show he is serious about parenting.

I am not sure abuse of children in such circumstances is a significant problem. It is probably more a problem for the mother than it is for the child. This is perhaps where the difficulty lies because it is difficult to have a life with another person, for example, if one marries another partner, if an outside person is coming in and out of the relationship. If the father has guardianship, a restriction is imposed on the right to remove the child from the society of the father, with a possibility of court proceedings. While there is no doubt this is a fraught area, ultimately, a child has a right to know its parents. It is probably for the legislators to devise——

Deputy O’Sullivan

Rather than inserting a detailed provision in the Constitution, would it be preferable to issue a general statement on rights?

Ms Murray

I do not know how one would legislate for a child's right to see each of its parents.

Ms McDevitt

I concur with the position taken in the UN Convention on the Rights of the Child which does not make a distinction between the family life of a marital and non-marital family.

Deputy Devins

I welcome the delegation. Before I address the thrust of its presentation, I ask AIM to explain the statement in its written submission: "As a child has the right to sobriety of both its parents, removal of guardianship rights should not preclude rights to access being granted by the courts where such a course is in the child's best interest."

Ms Murray

The word should be "society" rather than "sobriety."

Deputy Devins

AIM cited a sad case of a natural father who arrived home to find that a child had been given up for adoption. In my experience, this would not happen because most family courts would insist on consultation with a natural father, where available, before taking any such action.

Ms Murray

In the case in question, the mother of the child stated there was no natural father and the issue was not followed up.

Deputy Devins

From my recent experience, I am certain this would not happen. The social workers involved would be prepared to make a case on the father's behalf.

To come to the nub of the question, when asked whether the rights of the child should be given an expanded constitutional protection, the delegation quickly answered "Yes". Does AIM want a constitutional amendment to protect the rights of children or can this be done through legislation?

Ms Murray

The rights of the child need constitutional protection which would entail inserting a statement of some kind in the Constitution to give the child the right, as an individual, to the protection of the State and so forth. In terms of its legal interpretation, there must be recourse to the Supreme Court on constitutional grounds if the child is denied some right.

Deputy Devins

AIM is firmly indicating that we need a constitutional amendment rather than pursuing the matter through legislation.

Ms Murray

Yes, that is a fair description of our position.

Deputy C. Murphy

I welcome the delegation. This is the first time I have attended a meeting of an Oireachtas committee as an elected Deputy. As such, AIM is the first group I have an opportunity to question. I have some knowledge of the organisation, having been party to the Commission on the Family on which AIM was represented. The commission opted to take a strong position on the caring role in terms of the definition of the family as opposed to adopting the strict definition which featured in the Constitution until then. If the UN definition, for example, was to be included in the Constitution, what effect would it have in practical terms? What kind of change would it make? I am aware this is a broad question. Would AIM expect things to be done differently as a consequence of such a change?

I agree with views expressed in the section of the presentation concerning women. The current position is inappropriate and does not afford any protection. We need only consider the economic reality women, particularly those parenting at home, must face in terms of significant levels of poverty and so forth. Is it possible that a UN definition of the family would provide greater protection? Does AIM have expectations in this regard?

Ms Murray

To compare the position of a cohabiting couple and a married couple, we recognise only one family type, namely, the married couple and do not afford the same protections to cohabiting couples. This has serious implications in the area of poverty, for example, because a person who has contributed to the purchase of a house or other item remains the owner in the case of a cohabiting couple.

In the case of a married couple, however, a presumption of trust prevails. I am sure there are lawyers present who can correct me on the terminology I use but there is a notion of resulting trust, which means, for instance, that if a husband pays for something, it is assumed he is making a gift of it to his wife and, as a result, it belongs to her. On the other hand, no presumption of ownership applies when a person who is not a husband gives a gift. For this reason, special measures are required to protect interest in property.

We have had cases of women who cohabited in a relationship which produced children for a number of years and found that once the relationship ended they have no rights to anything. On a given day, a judge in court may award the person some compensation but they do not have a legal right to it. This is one of the differences between a family in which the parents are married and one in which they are unmarried. The United Nations definition would encompass all families and everyone would have equal rights. Situations also arise if there is violence in a relationship. The person who owns the house cannot have a barring order granted against them by the person who is the victim of the violence because they are not a married couple.

There are various pieces of legislation and then there is the whole tax question, social welfare and so forth. A woman who cohabits with a man is deemed ineligible for any kind of social welfare, yet a man who is supporting a woman who is not his wife cannot claim a tax allowance for that person, so they are penalised in various ways. By broadening the definition of family the entitlements would be there. I am sure there are lots of other cases as well, if we had time to discuss them.

Chairman

We are running out of time. I thank you very much for your submission which we will obviously take into consideration when making our deliberations and preparing our report. I will now suspend the sitting to allow the next group to come in.

Sitting suspended at 11.10 a.m. and resumed at 11.20 a.m.

Chairman

We will now hear from Parental Equality which represents families and fathers. The delegation comprises Mr. Paul Coleman, Mr. Liam Ó Gógáin, Mr. Jason Soracháin and Mr. Dominic McKevitt. Because of the fact that there are overlapping groups, we have agreed amicably with them that they will outline their aims in five or six minutes and that we will invite them back. If we cannot fit them in next week we will give them a slot in the second week of May. Instead of having seven groups today, which was on my schedule, eight turned up. I will give the group a few minutes to outline its case and we will certainly let its members attend again on a later occasion. The delegation has also provided tapes for members which will be circulated.

Mr. Liam Ó Gógáin

I am the chairperson of Parental Equality and would like to read the group's mission statement, originally written in 1996. It states:

Our mission is to seek, both through our own activities and our involvement with the education of our future generation of parents, to play a proactive role in creating a culture of shared family responsibilities, enabling women and men equally to realise their optimum potential in their family lives and careers. In recognition of the UN Convention on the Rights of the Child, Parental Equality aims to achieve parity of esteem for all members of the family. In furtherance of this goal, Parental Equality undertakes to support, promote and encourage, with due respect for the freedom of the individual, increased participation for men as carers in the family system, and opportunities for women to open up their traditional domain as child carers.

It is with that mission in mind that we responded to the public call for submissions by the All-Party Oireachtas Committee on the Constitution. We felt that the document which sought submissions and set out the general terms was quite limiting in a sense, and certain aspects of it did not attract our attention. We set aside time to prepare a submission which would effectively sell our outlook, which aligns with our mission statement. In doing so, mindful of the Celtic tiger era in which we live and the repeated statements by Ministers and Departments of an expressed intention to move towards e-government, we prepared our submission in an audio format which was e-mailed to the committee as a streaming audio download from the Internet.

My understanding is that committee members have not had the opportunity to consider the audio contents of our submission through the Internet. We have therefore provided a personalised audio CD for each committee member and we request members to listen to the information on any device which plays audio CDs, in-car or otherwise. We ask members to reflect on our submission. We could then, perhaps, meet again and have a more effective communication.

In the RTE Michael Littleton lecture given by Archbishop Diarmuid Martin before Christmas, and broadcast by the station, he was asked by a media person for a 30-second soundbite. In effect he said he did not do nuances in 30 seconds. That might be kept in mind. What happened to us this morning is perhaps a metaphor for the journey of fathers in our society. We came as a result of an official invitation, and a genuine mistake has been made involving a double booking.

I suppose that is always the journey of men, to have come to the door as fathers, whether it be to the doors of the courts, the social services or otherwise, and to physically find themselves not on the radar. The man who met us at the door began to ring around, and the question he kept asking was: "Have you ever heard of this group?" Although we do not feel vindictive because of the mistake made — I fall 70 times seven every day before I rise — we would like the committee to think about the broader issue from the point of view of fathers, and the reflection in the Constitution of the father's role.

Chairman

Thank you. We apologise for the situation, and the group will be given an appropriate slot next week or before we complete our oral hearings. A genuine mix-up occurred, but the group will get its "day in court". We allowed the group to make a brief presentation today because it travelled to get here. I do not want to begin a question and answer session because members have not yet listened to the presentation, but will have done so by the time the group attends again. We will make sure there is no mix-up next time, when there will be a question and answer session.

Sitting suspended at 11.24 a.m. and resumed at 11.27 a.m.

Chairman

The next item on the agenda is the presentation by The Workers' Party, represented by Mr. Padraic Mannion, research officer; Mary Diskin, education spokesperson; Andrew McGuinness, chairperson of the Dublin regional council; and Gerry Grainger, justice and legal affairs spokesperson. They are all very welcome.

I caution visitors that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. As we already have its written submission, we ask the group to outline, within six to eight minutes, its important features in order that we can then move to questions and answers.

Mr. Padraic Mannion

The Workers' Party welcomes this opportunity to address the All-Party Oireachtas Committee on the Constitution, and to expand on our formal written submission. The proposals we put forward derive from a number of sources. In the first instance we place the idea of family within its historical context, and demonstrate that the concept of family has evolved over time and is a product of economic conditions, dominant religious values, and the prevailing social conditions. We then look at the concept of family as enshrined in the Constitution and subsequently interpreted by the courts system, and locate it as a product of a combination of Victorian economics and early 20th century Catholic social teaching.

We state in our submission:

The family, under capitalism, is an economic unit based on the social relations of production. It does not stand apart from the relations of exploitation. On the contrary, the concept of the family, as envisaged and idealised by the Constitution, the family based on the monogamous heterosexual couple, developed and is based on private property relations.

The Workers' Party rejects this idealised version of the family and fundamentally disagrees with the position enshrined in the Constitution that the family has rights antecedent to, and superior to, natural law. It is our view that each member of the family has rights individually and collectively, but the family qua family does not have rights superior to the rights of the individuals who, for the time being, may constitute that family. Furthermore, we accept and welcome the reality that there are many thousands of validly subsisting families that do not conform to the constitutional prescription. In examining the family the Workers’ Party pays particular attention to the rights of the child within the family. It is a sad fact that the Constitution makes no mention of, and offers no protection to, the rights of the child. The entire focus is on the power of parents over children or, in exceptional cases, the powers of the State to take the place of the parent. Children have rights and these must be enunciated in the Constitution and given constitutional protection.

The Workers' Party points to international jurisprudence, in particular the UN Convention on the Rights of the Child. While Ireland signed up to it in 1991, without reservation, it has totally ignored its obligations under it. Where the Constitution cannot be interpreted in a manner which attempts to give effect to family and individual rights accorded, for example, under the European Convention, amendment is necessary. It is also our view that the Constitution, including the 1983 amendment, places women in a subservient position both within the family and before the law and we make proposals to remedy that situation.

The Workers' Party proposes the deletion and rewriting of Articles 41 and 42. The amended articles should be drafted in such a way that, while guaranteeing certain fundamental rights as outlined in the UN Convention on the Rights of the Child, detailed in our main submission, they do not prevent legislative development aimed at the protection of children and the promotion of the common good. Internationally, the adoption of the UN Convention on the Rights of the Child in 1979 represented a paradigm shift regarding the rights of children. However, that shift has not been reflected either in the Constitution or jurisprudence. The three guiding principles, Articles 2, 3 and 12, as set out in the convention, must be incorporated within the Constitution. Children with disabilities need special constitutional protection as outlined in Article 23 of the convention.

The Workers' Party believes that the rights and vision outlined in Articles 28, 29 and 42 of the convention must be the foundation stone of the Constitution in this area. The Legislature must take account of the decisions of the European Court of Human Rights, which has interpreted the guarantee of free primary education as being effective education.

With regard to the constitutional definition of family, we propose that it reflects social reality. There are now two-parent families, one-parent families, changing families, reconstituted families and same-sex couples living as a family unit. In many family units both partners work but there are also units where one or neither partner works, whether with or without children. These are entitled to constitutional protection and various rights. The Workers' Party does not believe people who do not, for whatever reason, wish to have a family based solely on marriage should be deprived of their constitutional rights.

The committee asks specifically our opinion on Article 41.2.1° of the Constitution. We believe the reference must be removed. However, we do recognise that the care of children imposes great responsibilities on parents. We therefore propose that constitutional provision be made whereby parents must be positively supported, and not discriminated against, in carrying out their responsibilities to their children. We believe that neither the natural mother nor the natural father should be given express constitutional protection but that their rights should derive from that as individuals as set down in the Universal Declaration of Human Rights, and in accordance with the UN Convention on the Rights of the Child.

With regard to Article 40.3, we believe the application of this article can physically and psychologically diminish the right to life of the mother. We propose it be removed.

As a general principle we believe that the Constitution must be a document that facilitates rather than restricts. It is within legislation that account can most easily be taken of changing circumstances or unexpected situations.

Chairman

The Workers' Party's succinct submission sets out where it believes there should be change and how it can be achieved.

Deputy Andrews

I welcome the delegation to the committee. The Workers' Party submission states that each member of the family has rights, individually and collectively but that the family does not have rights superior to the rights of the individuals. Am I correct in saying that if this was to apply to children, the family would not have rights superior to the children within the family. Each member of the family has rights individually and collectively. Does each member have a collective right?

Ms Mary Diskin

We are not saying that children or any individual member of the family has rights——

Deputy Andrews

Including a child?

Ms Diskin

——superior to any other member but they all have individual rights. The Constitution gives no express rights to children with which we are concerned. Children must be seen as individuals with their own rights. Ireland ratified, without reservation, the UN Convention on the Rights of the Child. It is obliged to recognise those rights and create legislation which will take cognisance of them.

Deputy Andrew

Constitutional change is not then necessary. Does The Workers' Party believe legislation would be sufficient?

Ms Diskin

No, I do not believe legislation will be sufficient. For example, the education Act is a wide encompassing one. However, when it comes to resources, it only talks about putting into effect those resources that are available. We are obliged under the convention to use the maximum resources. Ireland is the envy of western Europe with its healthy economy, but we could do much more for our children.

Speaking as a teacher, there are many children crying out for help from psychiatric and clinical psychological services. The media is highlighting the problems teachers have with disruptive children. When one is in the classroom, one realises that these children need psychiatric services which are non-existent. In cases of emotional and behavioural difficulties, if that child requires a special needs assessment, a report from a clinical psychologist or psychiatrist is required, many of whom are not available. So many different areas could be used to illustrate this point.

Mr. Gerry Grainger

The issue relates to our concerns that Articles 41 and 42 provide strong family rights. Those rights are attached to the family as opposed to individual members of the family. In our submission, we cited the 1985 Murray v. Ireland case. As late as 2001 the courts took the view that the family is endowed with an authority which the Constitution recognises as being superior even to the authority of the State. This emphasis leads to a conflict between the right of the family as a unit and the individual rights of a family member to the detriment of the individual. This is not only of questionable usefulness but it brings us into conflict with our obligations under the European Convention of Human Rights.

In the 1983 Hendricks case in the European Court, brought under Article 8.2 of the convention, the issue was what happens if there is a conflict between a parent and a child. In that case, the court took the view that where there is such a conflict, and it can only be resolved to the disadvantage of one or other, the interests of the child must prevail. The Constitution does not address this issue and it must do so in light of continuing developments in jurisprudence of human rights in Europe and the State. The Constitution must change because it provides a protection that is incompatible with other obligations of the State.

Deputy O’Sullivan

I welcome the delegation. In its submission, the Workers' Party states that Articles 41 and 42 should be completely deleted and rewritten. I am confused with regard to what it wants to replace these articles. I understand from the submission that the party believes the rights of the child should be protected in accordance with the UN Convention on the Rights of the Child. Is it suggesting, however, that no individual rights should be given to the mother or father?

The party also suggests that Article 41.2.1° be removed, particularly the specific reference to the woman's life in the home. However, the submission continues to state that the Workers' Party recognises that the care of children imposes great responsibilities on parents and it proposes that constitutional provision must be made whereby parents must be positively supported. As the committee must forward specific proposals on these constitutional provisions, will the delegation expand on this?

Mr. Grainger

I understand Deputy O'Sullivan's concern that the committee must specifically consider whether the Constitution needs to be redrafted. We have not submitted a redraft.

The Workers' Party's concern with Article 41.2.1° is that it is incongruous for a modern society to have a clause in the Constitution which is paternalistic and which looks back to a different era. It does not reflect the reality of family life or of work but instead contributes to an outdated view of the role of women in society. In those circumstances, the very removal of this would be a positive and progressive step.

We have not thought out the wording we would use in putting in its place, per se. Mr. Mannion has already described an ideal constitution as a flexible document, sufficiently important to provide a cornerstone for any democratic society. It should provide an indicator of the type of rights parents might expect from the State. This may involve examining several international conventions and treaties relating to the interests of the child and attempting to incorporate some of them, amended as appropriate, to fit our society. It should also take account of the positive obligation on the State to support the family and those who wish to bring up children within whatever definition of family is decided.

Mr. Andrew McGuinness

The Workers' Party is not saying that rights should not be given to a mother or father. We believe people are entitled to individual rights. On the question of whether a natural mother should be given express constitutional protection, we said no because of several factors including the nature of society and the making of medical advances. Where does one draw the line? What happens in a case 20 years from now where an individual claims he is the natural father of a child, when the child could have been brought up by another father, who was more natural?

Deputy O’Sullivan

Is Mr. McGuinness saying that natural parents should, as such, have rights as individuals rather than in their capacity as parents?

Mr. McGuinness

No.

Ms Diskin

It has to be examined in the interests of the child. When one looks at families today, one could have a child whose natural father or mother left the home and the child may have bonded over 12 years with his or her step-parents. In that case, one must examine, in the bests interests of the child, if the rights of the natural parents or those of the step-parents prevail.

Mr. Mannion

There is also the question of what is a natural father. If a child is born through a sperm donation, is the donor the natural father? Whose rights should be enshrined? What difficulties will then be stored up for the Legislature at a later date? The Workers' Party has no difficulty with parents having their rights, under which they are granted leave from employment, assistance and so forth, guaranteed. However, specifically inserting guarantees in this area creates a problem for the Legislature and the courts system. It will end up that every time there is an X case, the Constitution will have to be amended.

Article 42 provides for education and we have made specific points on this.

Chairman

In fairness, it is not the function of The Workers' Party to draft any amendment. It is more helpful if the committee drafts the amendments because it is a dangerous step. In the past, wordings to amendments have been divisive. There is no obligation on The Workers' Party to have it ready.

Mr. Mannion

We have made specific reference to specific articles. We did not have the expertise to draft a wording.

Chairman

That is not expected.

Ms Diskin

We have to recognise the diverse nature of families.

Senator Ormonde

I thank the delegation for its submission. I want to take up the point of amendments to the Constitution versus legislation. The Workers' Party's points on education are very different to those contained in other submissions. The Constitution has served us well. We all acknowledge that there are such diverse family units in society. Should we reflect on this first through education before we play around with the Constitution and dilute it? We must remember that changes can take place in ten years. What are the views of The Workers' Party on education and how best we can protect the welfare of the child through updating legislation? What are the views of The Workers' Party on the duties and responsibilities of parenting, before we attempt to amend the Constitution?

Mr. Grainger

We do not see any necessary conflict between the role of the Legislature and the Constitution. The very point we are making is that the Constitution should be sufficiently flexible and act as a building block. Many issues are built into the Constitution, requiring amendments to it from time to time. That should not be its function. It is a charter that exists as the fundamental building block of society, while people are elected with the role of introducing legislation. We want those stumbling blocks that prohibit and restrict the development of progressive legislation in areas such as education to be removed from the Constitution. We want to properly place, within the Legislature, the instrument to enable it to freely introduce what it regards as appropriate at any given time. Even if we amend the Constitution in the way we have suggested in our submission, I hope we will not have to hold another review of the Constitution in four, five or ten years. This will be not be necessary if the task is properly accomplished after the first round and the Legislature is able to introduce legislation on a variety of issues which clearly affect the family, including the question of education.

Ms Diskin

When Senator Ormonde mentioned the duties of parents perhaps she was referring to the question as to whether the State should interfere. While a degree of conflict may arise in this regard, again this is an area on which we would fall back on the UN Convention on the Rights of the Child, which obliges the State to take action when parents fail or are unable to protect the rights of the child. The area of education is one such example. The other area, which is of great shame to all of us, is child homelessness.

Chairman

I thank The Workers' Party for its submission. The joint committee will consider it when preparing its report.

Sitting suspended at 11.50 a.m. and resumed at noon.

Chairman

The next item on the agenda is a presentation by the Presbyterian Church in Ireland represented by the Very Rev. Dr. Alistair Dunlop, co-convenor of the church and society committee of the Presbyterian Church and Mr. Lindsay Conway, OBE, director of social services and secretary of the board of social witnesses of the Presbyterian Church in Ireland. I ask the third member of the delegation to introduce himself.

Before we begin, I remind our visitors that members of the joint committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. I thank the delegation for submitting its presentation in advance. I invite the delegation to confine its presentation to approximately six to eight minutes, after which we will have questions and answers.

Very Rev. Dr. Alistair Dunlop

The third member of the delegation is Reverend David Moore who is co-convenor of the church and society committee of the Presbyterian Church in Ireland. I am the northern convenor and the Reverend Moore, who will introduce the submission, is the southern convenor.

Rev. David Moore

I almost missed the meeting due to a clerical error. I am glad to be here.

Senator Dardis

Was it a clerical error in the religious sense?

Rev. Moore

It was most appropriate that it was clerical in nature. The joint committee has already heard from the Very Reverend Dr. Alistair Dunlop, a former Moderator of the Presbyterian Church in Ireland which is one of the largest Protestant denominations on the island. We represent approximately 300,000 families north and south of the Border and have a presence in practically every county. While members may not have encountered us, the church is present in every area.

We are joined by Mr. Lindsay Conway, OBE, director of our social services and board of social witnesses who has expertise in dealing with issues connected with social work. We have a submission today in addition to what we sent to the joint committee. We sent something brief in the hope that members will read one side of the sheet of paper. That is how I operate. I hope it was helpful.

We welcome the opportunity to make an oral presentation to the Joint Committee on the Constitution. We do so not as experts in constitutional law, but as those who deal pastorally with issues relating to the family on an everyday basis. In our written submission we stated our endorsement of Article 41.1.1° on the status of the family as being at the heart of the health of the nation — an affirmation we make as part of every wedding conducted in the Presbyterian Church in Ireland.

As we noted, the weakness of the Constitution is that it fails to define what is meant by "family", though this is qualified by Article 41.3.1°, which grounds the family in marriage. No doubt the framers of the Constitution assumed the terms "marriage" and "family" to be so self-evidently explicable that they needed no further explicit definition.

At the beginning of the 21st century, we discover that such definition is vital. In an article in the Irish Independent on 15 March 2005, David Quinn quotes a submission to this committee from the Family Support Agency that there are “no fewer than 21 different family types in Ireland”. Any definition of “family”, which tried to encompass them all, would have to be very broad, elastic and vague, but is this the way to proceed anyway, especially in the context of the Constitution? While we are well aware that there is a variety of family types currently existing in Ireland, it is our conviction that the family which should have constitutional status should be that based on marriage, as being that which, over the longest period, has proven its worth in terms of benefit both to individuals and society as a whole.

We hold this conviction based upon our religious belief, but others also support our position, though from a different angle. For instance, in a booklet entitled "Marriage-Lite: The rise of cohabitation and its consequences" — a study by Patricia Morgan, published in the UK in the year 2000 by Civitas, the Institute for the Study of Civil Society — a variety of research evidence is cited in support of a distinctive legal protection being afforded to family life based on marriage. Among other things, Ms Morgan argues that: "Marriage is intrinsically less fragile than any form of cohabiting arrangement"; "Marriage engenders a higher degree of investment in parental relationships"; "Cohabitation produces a higher level of domestic violence against women than marriage"; and "Family disruption linked to cohabitation has led to a marked rise in youth homelessness along with other adverse affects on the education, health and well-being of children".

We recognise that in a fallen world neither family life nor marriage itself will be perfectly worked out in every situation. In the Presbyterian Church in Ireland, for instance, we allow for the divorce and remarriage in church of divorced persons, after appropriate pastoral care. However, we agree with Ms Morgan when she says, "As the alternatives to marriage are strengthened, so the institution is progressively weakened". If that process is allowed to continue, we believe it will be to the long-term detriment of individuals — fathers, mothers, children and ultimately society as a whole.

If the Constitution needs to be changed in this area, it should be to make explicit that the family it speaks of is that based on marriage, understood as a freely entered into, public and legally binding commitment between a man and a woman. Regulation of other domestic relationships should be a matter for legislation in the Oireachtas. Consideration should also be given to amending Article 41.2 to take account of shared parental responsibilities that would be best expressed in more inclusive language. That concludes our oral presentation, Chairman.

Chairman

Thank you very much. I think you have made your case clearly and succinctly. I wish to raise one point. I note your strong and profound position on families based on marriage. We have heard from groups who say that children from other types of family — be they single mothers, single fathers or cohabiting couples — are at a disadvantage which has been shown by some court decisions here. They say that legislation in itself will not give the child, in particular, of whatever other relationship the appropriate status that is given to the child born within marriage. How can that be redressed, bearing in mind that the last census figures in 2002, rising alarmingly from the previous census of 1996, show that we now have almost 80,000 cohabiting couples? I think that figure has doubled in a six-year period.

There are almost 160,000 single parent families, 85% of which comprise mothers and their children, although the figure may be slightly higher than that. How do we allow for that huge developing area where society seems to be changing and in which there is more and more marriage breakdown? How would you account for, as we would say, the forgotten brethren? In other words, our children may have other relationships the number of which, whether we like it, is increasing year by year, as census results have shown in the past 20 years. Would you accept a two-tier system, keeping families based on marriage at the highly revered status that is in the Constitution, while, perhaps through legislation, having a second tier? Would that not create a sort of second class of citizens comprising children born in another type of relationship? Is there not a danger there?

Mr. Lindsay Conway

To use the Chairman's term, the two-tier system is one option. For a number of reasons, the issue of single or lone parents is a real one for all of us living in society, whether we are a faith community or in secular society. That can be because of divorce, as the Chairman said, employment, one parent being in prison, or simply lone parents who have the free choice of living on their own and raising their children. As a denomination we cater for that at different levels, both in the true sense of worship and then by way of services within the church, whether for parents and toddlers or through the issue of other supports that have to be there. Fundamentally, however, the church would say that the first tier has to be within the relationship of marriage, in the sense that that is the true and tangible proof of a loving, lasting relationship.

Senator Dardis

I welcome the members of the Presbyterian Church in Ireland to the committee. As usual, they have given us a succinct and easily understood presentation. I was a member of this committee when their presentation was made with regard to abortion. I have to say it was one of the more helpful interventions that the committee heard at that time. The delegation was consistent in wanting the Constitution to be quite a simple document and to have legal support outside the Constitution.

How does the Presbyterian Church view single sex, homosexual relationships? Several of the groups that have come to us have represented those groups. One of the difficulties is that some want civil parentship while others want marriage. Therefore there is a difference of opinion between the groups. I would be interested to hear how the Presbyterian Church approaches those situations, and what it would say to those types of people.

Very Rev. Dr. Dunlop

The church deals with these situations from a pastoral point of view. We believe that everyone matters to God, regardless of sexual orientation, and that the church has a responsibility to reach out to homosexuals and to welcome them within the fellowship of the church in whatever way we can. We make a distinction between the pastoral responsibility we have for all our members, whatever their situations, and what should be enshrined in constitutional matters. In the past, the record of all the churches, including ours, has not been very good in these areas. From our own perspective in recent years we have wanted to be more open and welcoming and inclusive from a pastoral point of view, recognising that people have to deal with real issues. As I say, we make a distinction between that approach and enshrining matters in the Constitution.

Senator Dardis

If we maintain the family unit under the Constitution as Reverend Dunlop presents it to us, could a constitutional issue arise regarding other types of unions, even if we regulate matters by law?

Very Rev. Dr. Dunlop

While we as a church would be pastorally welcoming and open, and would wish to help people in whatever way we can, we are also giving out the message that marriage between man and woman is the norm. We would want that continued as the norm. That raises many issues and causes much heart-searching, but we want to hold the line on it while at the same time recognising the issues involved for many people. That is difficult, not only for the church but for people who present with these issues, but it does not mean we would want to lessen our commitment to the family. We want to keep that strong and upfront.

Deputy O’Sullivan

I welcome the delegation. We had some dialogue yesterday with another church with regard to what the Constitution should be, whether an over-arching guarantor of human rights of people currently in society or an aspirational document.

The nature of the family has greatly changed since 1937, and despite the constitutional protection of the family, changes have taken place. As legislators we have responsibilities to all the people, whether or not they belong to churches. Clearly, Reverend Dunlop presents to us what he believes from his church's point of view, but we come from the different perspective of having responsibilities to all the people. Does Reverend Dunlop see the Constitution as a human rights document, there to protect everyone's rights, or as something which is aspirational?

Very Rev. Dr. Dunlop

I speak for myself in this regard but I think the Presbyterian Church in Ireland would not see the Constitution as a human rights document in that sense. A constitution should be a simple document which sets out certain principles, from which legislation could follow, within the terms of that constitution and using it as a framework. A constitution should not be something which tries to meet every situation and address every presenting issue in society. Taking that route would bring one to an impossible situation.

Mr. Conway

We recently addressed this through an article entitled "Families Out of Focus". This rehearsed the debate with regard to our families being more like either the Waltons or the Addams family. In between that lies the normal family, if there is such a thing. Although what we have in common is coming from a family, we must also recognise that all families are unique. If a constitution is so black and white and so prescriptive, that will force society into trying to live up to that benchmark, which will be almost impossible. If, on the other hand, we recognise that we could be the Waltons or the Addams family, we can leave something to be debated openly and see how that shapes up.

Deputy Devins

I welcome the delegation. Coming from County Sligo, I am well aware of the long and valued history the Presbyterian Church has in Sligo and across the nation. I understand that the church will hold a synod in Sligo this weekend.

I presume that when the witnesses speak in the presentation of marriage, they are talking solely of heterosexual marriage.

Rev. Moore

Yes.

Deputy Devins

The thrust of this committee's work is currently to consider if the rights of children need to be further protected in the Constitution, yet the witnesses have not made any substantial comments on those rights. Do they think children's rights can be enhanced through legislation or that we need a constitutional amendment to protect them?

Mr. Conway

We have started to feel more at ease about the rights of children in that a caring society clearly treats the welfare of the child as paramount. In the main, that goes unchallenged. In the vast majority of situations, a child's welfare is paramount to all of us who care for children, in whatever way. However, legislation must deal with the worst scenario in at least acknowledging that a child, somewhere along the line, will be neglected, abused and so on, and that the State must at some point intervene in some way.

From that point of view there is a value base involved. If we recognise the uniqueness of family life, then some of those things, from an outsider's point of view, may not be acceptable or tolerable. There must therefore be a fine line. The legislation must deal with every eventuality. In former times it was recognised that certain children were in need of care, protection or control. We were used to that, but children today are, quite rightly, more aware of their rights, and our role not just as parents but as adults, whether in education, recreation or whatever. It is recognised that children must be protected. Legislation must reflect that, rather than assuming that all parents are bad or neglectful in that regard.

Deputy Devins

Is the witness suggesting that the way forward is legislation to protect the rights of children rather than a constitutional amendment?

Mr. Conway

Yes.

Deputy Murphy

The delegation is very welcome. Mr. Conway talked of what the Constitution should be and said that it should not legislate for every different eventuality or be prescriptive. Is it therefore a contradiction to be prescriptive about the definition of a family?

Very Rev. Dr. Dunlop

That could be argued, but marriage is such a foundation and building block of society in general, and has always been, that most people would probably accept that marriage is the norm, and is therefore an exception. From our point of view as a faith community, this is a biblical principle. Therefore we would want to hold firmly to it. There are certain things that we would say should not be prescribed simply because they do not meet the Biblical principles, but from a pastoral point of view we would try to deal with them. Legislation can be drawn up to meet the majority of such needs. Is that clear?

Mr. Conway

The child's perspective is interesting. Recently I overheard a child in one of our congregations at a youth organisation explaining to the youth leader that he had given the note to the wrong daddy the week before. In that sense he was saying, in a very matter-of-fact manner that the Friday night in his house involved a step-father dropping him to the youth organisation and the biological father picking him up for the weekend. As the note never ended up in the right house, the programme for the next week was not known. This hits hard because while adults may take a sophisticated approach, from the child's perspective he or she will have to attend school or a youth organisation where there is still, rightly or wrongly, a stigma attached to being different. Despite the sophistication with which adults and parents enter this debate, we sometimes underestimate how the issue impacts on a child.

Deputy Andrews

In that case, should we not normalise other types of families? Given that we seek to cherish all children equally in light of Mr. Conway making the case that some children believe this position is not normal, is the logical conclusion not to normalise other types of families to reflect society?

Very Rev. Dr. Dunlop

The Presbyterian Church recognises a number of different family circumstances. For example, we count and gather statistics based on numbers of families, some of which consist of a single person. Although this is not the concept people generally mean when using the term "family", it is a significant part of family. A range of family types, including separated and divorced families and couples with no children, has been around in society for a considerable period, while other family types have emerged in more recent years. One cannot provide for all possibilities in a constitution; this is where legislation takes its proper course. One should follow principles within a constitution.

Mr. Conway

The first test tube babies are now of an age to articulate how they feel, as recent research has indicated. This is interesting in the sense that it has not been easy for them. They have not been made to feel freakish in any way but issues have arisen at times about their origin and so on. Although they were conceived for the best reasons, through infertility and so forth, it has still been difficult to deal with the issue. It will be interesting to see how another issue to emerge recently pans out, namely, the question of sperm donors. The matter is not as simple as we sometimes believe.

Very Rev. Dr. Dunlop

Mr. Conway's point emphasises the fact that we should stick to principles. One cannot project ten years down the line or foresee all circumstances which will arise. Will the Constitution be amended every time a new variation emerges?

Senator Ormonde

Does the Reverend Dunlop consider this discussion to be premature? Mr. Conway referred to research arising from test tube developments coming on stream. Is it premature to discuss whether the Constitution should be changed? Is it possible to tidy it up without changing it?

Mr. Conway

I repeat the Reverend Dunlop's question as to when is the optimal time because something will change next week or next year. It is a difficult to answer the Senator's question. Perhaps it is premature to discuss some of the issues but otherwise the debate is fine. I do not wish to be presumptuous.

Chairman

We thank the delegation for its clear submission. The joint committee will take into account the points it made during our deliberations. Our report will probably be presented in September.

Sitting suspended at 12.25 p.m. and resumed at 12.35 p.m.

Chairman

The next item on the agenda is a presentation by Muintir na hÉireann, represented by Mr. Richard Greene, Ms Anne Shields, Mr. Dónal O'Driscoll and Mr. Colm Callanan. I advise everybody, including visitors and guests, to make sure that mobile phones are switched off because otherwise they will interfere with the sound system. Unfortunately, as we are obliged to vacate this room by 1 p.m., we had better get the proceedings under way.

Before l begin, I must remind visitors that members of this committee have absolute privilege, but the same privilege does not apply to any witness appearing before the committee in anything they may say, or otherwise. I now invite the delegation to make its presentation. In order to allow the Deputies and Senators to ask questions, we normally invoke the rule of giving the delegation six or seven minutes in which to make a presentation. We have already received a written document so there is no point in rehashing all that, as we have seen it. Therefore, if the delegation could outline, in resumé format, the important aspects of what it has to tell the committee, we will then have a chance to pose questions.

Mr. Richard Greene

I thank you, Chairman, and members of the committee for having invited us to speak here today. I thank you also for reminding us about the privilege provisions, although it is unlikely that this will be a problem. Our endeavour will be to tell the truth at all times, in an unvarnished fashion.

We have endeavoured to answer the sample of questions put by the committee. These are contained in our submission. As we see it, the committee has to decide, first, whether to seek the ideal or to seek an answer to the exceptional and, second, whether the position of the child will be strengthened or weakened.

As regards the position of the child, the obligation on society is twofold — to defend the vulnerable and the interests of society itself. Both these objectives are related. On the whole, society's interests are best served by supporting the family. The Constitution, as it stands, is child-oriented, rather than adult-oriented. If the position of children is to be strengthened, then the provisions of the Constitution in their favour need to be strengthened, not weakened.

Children do not have any say in their creation. It is necessary for society, therefore. to place the welfare of children, however this is to be achieved, at the top of society's priorities. This should be the first consideration, not simply a consideration. As matters stand, the best arrangement is seen as the child being entitled to the support of both parents for as long as that is necessary, and to the security of a home provided by those parents. This is best done in the context of marriage. The family envisaged by the Constitution is the family based on marriage. Marriage is the contract and commitment of two persons, one male and one female, to mutually support one another and their children. This will mean some rolling back of some of the changes made, including divorce. Few of those advocating divorce, seriously suggested that the change would be of benefit to the child. If there is a better arrangement, this should of course be considered and implemented.

Over the millennia, however, the family based on marriage has been found to benefit children most. There are exceptions and these must be catered for, too. However, it is particularly incumbent on those seeking change to show the real benefit of change that will accrue, and that we are not merely engaged in an experiment.

The thrust of the proposed changes is to favour the adult at the expense of the child. At the same time, lip-service is paid to protecting the interests of the child. The preferment of the rights of adults over those of children is not acceptable in a civilised society. This would be a gross violation of the rights of the child.

Is it legitimate to discriminate in favour of the family based on marriage? Discrimination occurs in all walks of life. In fact, discrimination is the main business of the Dáil. Society considers that its duty to children is best served by the family, who also contribute to the well-being of society. It thus discriminates in favour of the family, which it is entitled to do.

Related to the foregoing is the question of whether there could be discrimination in favour of two or more situations. There could be, but what sort of Constitution would that create? Under Gresham's Law of economics, bad money drives out good. If gold and an alloy were both in circulation, both with the same value, the gold coins would soon disappear. This law is likely to apply to constitutions also.

The United Nations convention, originally adopted some 60 years ago, has changed from being family-oriented to being individual-oriented. While some provisions in the convention may be desirable, the convention as a whole is not only anti-family, it is anti-child as well. There is a deliberate move away from the family towards paid professionals of the State — mainly social workers, psychologists, judges and voluntary organisations, most of which are not voluntary at all. The theory is that such people are engaged to protect the child from his or her own vulnerability. The role of the parents, who should have the main responsibility, is diminished. While some voluntary work is done, paid professionals do the work of parents. These are the adults behind children's rights. When it comes to the crunch, as it must do, the rights of children supersede those of parents. This will apply even where the best interests of the child are concerned. A judge, rather than parents, will make the final decision. At best, the move towards the state and away from parents is a social experiment with children as the pawns. It is an experiment that has already been tried and found wanting in right-wing and left-wing dictatorships in Europe.

The convention is stated to have been ratified by Ireland. If "ratify" and "Ireland" have their ordinary meaning, common sense dictates that the Constitution has already been changed, but it has not. The people have not been asked whether they agree. What has taken place is ultra vires and illegal. The same probably applies to other “ratifications”, including that for CEDAW.

The implementation of the convention is overseen by a UN committee of "experts". In January 1998 the committee expressed the view to an apologetic Irish delegation that the Constitution should be changed. The committee said that the innovative idea of the convention was that of "moving from protection and caring to assertion of children's rights". It is doubtful if parents are aware of the fundamental nature of this proposed change.

In accordance with the Constitution, all persons are entitled to be treated as equal before the law and are entitled to all the same rights. The preamble to the Constitution begins: "In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred." Personal rights under the Constitution thus derive initially from God. Each person is a human person. No-one has a right to a child. Children must be treated as persons and not as objects or commodities to be owned or possessed. These are the real rights of the child but they are not to be found in the UN Convention on the Rights of the Child.

Men and women with homosexual tendencies must, however, be accepted with respect, compassion and sensitivity. They are entitled to all the same rights under the Constitution as other citizens, but we hardly mean that rights can be founded on sexual desires. Homosexual rights also tend to be progressive. They begin with the legalisation of sodomy and end with the jailing of opponents. Those who do not clamour for rights have rights too. In Ireland, homosexuality was never illegal. Sodomy, on the other hand, because of its detrimental effect on the family, and the dignity of women, was deemed illegal, but was legalised by the Fianna Fáil-Labour Party Government. Today, sodomy is very largely responsible for AIDS and HIV. In accordance with European standards, blood is not taken from males who have had oral or anal sex with another male. Such practices should be exposed rather than promoted.

Everyone has the right to life, from fertilisation to natural death. That right is not dependent on the will of others. As is being attempted in the US by Norma McCorvey, "Jane Roe" in the Roe v. Wade court case, public representatives should commence initiatives to ensure that the will of the people is properly represented, and that the ruling in the “X” case is set aside. The deliberate taking of human life, born or unborn, is wrong. I also suggest to public representatives that in Ireland and across Europe, populations are falling, in some cases alarmingly. A recent suggestion is that by 2050, the Irish will be a minority in Ireland. The UN also reports that immigration will still be insufficient to maintain populations in Europe. The promotion by government of the killing of the unborn is foolhardy as well as being immoral.

I remind elected representatives that they are handing the powers vested in them by the people to judges, who are not accountable. This is known as judicial activism. Surrender of power in this way is particularly noticeable in Canada and to a lesser extent in the USA. The Constitution is the law of the people, and it can be changed by referendum. It is meant to be complied with, not circumvented.

While all shades of opinion should be obtained, it is incredible that politicians elected for the purpose of serving the common good should bring forward proposals inimical to society as a whole. Politicians have a duty to act in the interests of society. Those who profess to be Christians should openly say so, and openly act as Christians. What we are witnessing today is a moral tsunami. Politicians, Christian and non-Christian, have deserted their posts.

The advertisement by the All-Party Oireachtas Committee on the Constitution implies that changes to Bunreacht na hÉireann, the Constitution, are being considered. This would be done by referendum. However, this is unlikely. The EU constitution, which is seriously at odds with our Constitution and is intended to supersede it, is favoured by the Government. The Government is likely to put the EU constitution rather than the amendments to the Irish Constitution to a referendum in October 2005. The present exercise seems to be aimed at getting awkward issues out of the way before a referendum on the EU constitution is held.

The chairman of the committee, Deputy O'Donovan, is reported to have said that the committee was "not out with any particular agenda". Given the commitment of the Government to the proposed EU constitution, to the report of the National Economic and Social Forum of which the Government is a member, and to other activities including that of this committee, it is hard to see how the reported statement of the APOCC Chairman can be correct. The impartiality of the Chairman is thus very much in doubt.

We are also puzzled by reports as to how many submissions have been received. According to The Irish Times, “hundreds” have been received, while according to the Chairman, Deputy O’Donovan, the figure is 6,000. RTE gives a figure of 8,000, while the Mother and Child campaign spokespersons state that they have personally delivered 10,000 submissions and are aware of another 10,000. We would like to know the true figure, and the numbers calling for changes to the Constitution.

Chairman

Thank you. This committee is engaged in an ongoing review of the Constitution. That has been going on for almost nine years and the review of the article we are now considering is no different from any of the other reviews. Accordingly, if Muintir na hÉireann or any other group say that the committee has any sort of hidden or premeditated agenda, they are not living in the real world. I will not accept that attitude.

Regarding the number of submissions made, as a result of certain incidents the matter is now in the hands of the Garda. There were issues referred to of a disturbing nature involving committee staff suffering extreme duress and harassment. As that matter has been reported to the Garda authorities in Dublin I will say no more about it.

Mr. Dónal Ó Driscoll

In 1995, a Government representative in Geneva said that Government representatives were apologetic about the EU constitution. She said that the All-Party Committee on the Constitution had recommended the change we are now talking about.

Chairman

I was not in the Dáil or Seanad at that time and will not go back in history. I am proud of my Constitution, which belongs to the people of Ireland. It does not belong to Munitir na hÉireann or to us as politicians. If the people wish to change it by means of a referendum, that is a matter for them. This committee is undertaking an ongoing review. Our function is to prepare a report which we hope to complete by September, or October at the latest. The report will then be given to Government.

Before my time as Chairman, this committee, as far back as it was initiated, has been regularly criticised for producing reports which have not been implemented. One the one hand we are criticised for that and now Munitir na hÉireann accuses us of having a premeditated agenda. The members of this committee are here in good faith. We are here on a Friday. I have a family in west Cork with whom I would occasionally like to be with. We are devoting our time and energy to putting the report together and are considering all aspects. We have invited submissions from the clergy and various pro-family groups. That is what transparency means. When we receive all the submissions we will consider the matter in broad daylight. All the political parties in the Dáil, big and small, are represented on this committee, and members have said they have no agenda whatsoever.

Mr. O’Driscoll

That cannot be true. It is incorrect. I appreciate all the work the committee does and how demanding the tasks are, but the APOCC's own report in 1995 — though I may have the year wrong — puts forward exactly what we have here before us. It is in the words of the Government representative. About 1995 it was saying just what we have here.

Chairman

This committee was not set up until 1996, some time before the election of 1997. There was very little work done then.

Mr. O’Driscoll

I am quoting this from the UN minutes.

Chairman

That is of little concern to us. We have a job to do and we are trying to carry it out. When groups like yours and your sister group, the Mother and Child group which was here yesterday and would not even debate with us and left——

Mr. Greene

I resent that. Obviously other groups have a different agenda.

Chairman

In the original submission you referred to the Mother and Child organisation. How many organisations are there?

Mr. Greene

I am pointing out a contradiction. You are representatives of the people. The executive arm of Government is subject to the people under the Constitution. You are doing very good work on the review. There is a contradiction when the aim of all political parties is to promote the new European constitution which will supersede the 1937 Constitution. We are not attacking you individually but we are pointing out a contradiction in the work of this committee. I am bringing this contradiction to the attention of the wider public. I presume there will be a referendum on the constitution and all the political parties will be supporting it.

Deputy O’Sullivan

On a technicality, there are two minor parties which I understand have not made a decision on that yet. What Mr. Greene has said is factually incorrect.

Mr. Greene

I accept that. I am not attacking the work of individuals on the committee. I am a former politician, although I never got into this House, and I know how demanding political life is on family and so on. I am aware of all that. I am pointing out that there is a contradiction in the work of this committee. The major political parties in the House are supportive of a European constitution which will supersede the 1937 Constitution.

Chairman

I do not accept that latter suggestion that the EU constitution, if adopted by the people by way of referendum, will supersede our Constitution. That is not the issue we are here to debate. We are here to deal with family issues. Having regard to the slant it is taking, it would be appropriate — unless members have any questions — to thank you for coming and making your presentation civilly to us.

Sitting suspended at 12.55 p.m. and resumed at 2 p.m.

Chairman

The next item on the agenda is a presentation by the Men's Council of Ireland represented by Mr. Sam Carroll, policy officer; Mr. Brendan Cleary, secretary; and Mr. Frank McGlynn.

Mr. Sam Carroll

Mr. Brendan Cleary will not be attending.

Chairman

Before we begin, I remind the visitors that members of this committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee. We have the visitors' submission, which we have studied, and rather than read it out verbatim I ask that they would make their case in six to eight minutes, following which we will have a question and answer session.

Mr. Sam Carroll

Thank you, Chairman. I am accompanied by Frank McGlynn. I thank the committee for the opportunity to make this oral submission on behalf of the Men's Council of Ireland, which is an umbrella body for men's groups throughout Ireland. The emphasis of our submission is on children's welfare, parents' rights and responsibilities, the family, marriage and the manner in which these are affected by the State, the Constitution and legislation.

The overall thrust of our submission is that the welfare of children is paramount and that children's interests are best served by the State respecting the primacy of parents and supporting all parents, irrespective of sex or marital status, in fulfilling their obligations to their children.

We are aware that the Constitution appears to impose obligations on the State to respect marriage and the family but it is failing to do so. That may be due to the fact that these provisions are either too weak or because the State is abdicating its responsibilities. It is our contention that the traditional family unit, based on marriage, is still the best structure in which to rear children. State policies and the Constitution should be designed to promote the family based on marriage in the best interests of children while at the same time ensuring that children being reared in other structures are treated equally.

The main threat to marriage and the family is our adversarial family law system, which promotes hostility between parents and promises victory to women who choose to end their marriages in the courts. Regrettably, that enticement is too strong for some women and discourages them from trying to resolve their marriage problems amicably. Over 80% of separations and divorces are initiated by women and that is partly due to the expectation that they will emerge triumphant.

Our written submission proposes a number of recommendations that would establish equality as the presumed outcome in divorce or separation cases. That would have the effect of encouraging parents to resolve their differences without resorting to damaging and costly litigation. In terms of the constitutional amendment, we believe these objectives could be achieved by inserting an article on the following lines, which is based on Article 16(c) of the United Nations Convention on Human Rights:

The State shall ensure, on a basis of equality between men and women, the same rights and responsibilities during marriage and at its dissolution.

With regard to the welfare of children, this provision should be complemented by the following provision based on Article 16(d) of the United Nations Convention on Human Rights:

The State shall ensure, on a basis of equality between men and women, the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children. In all cases the interests of children shall be paramount.

We also contend that Article 41.3.2° of the Constitution, which permits divorce, has the effect of encouraging spouses to use the courts as a first resort rather than a last resort. To rectify that problem, we suggest the inclusion of the following requirements in Article 41.3.2°. This will be in addition to requirements (i) to (iv) already in Article 41.3.2°:

(v) The spouses have completed a families-in-transition programme approved by the Government.

(vi) The spouses have attended mediation and an accredited mediator has confirmed there is no prospect of the parents reaching agreement.

On a general point regarding the Constitution, we are of the view that the current process whereby a citizen can vindicate his or her constitutional rights is too cumbersome and costly. As the Constitution is essentially a contract between the citizen and the State, which is intended to protect the citizen, the means to invoke constitutional protections should be freely and easily available to all citizens. To achieve that we recommend the establishment of an independent State-financed body to act as advocate for the citizen, similar to the role played by the Equality Authority. That concludes our oral submission.

Chairman

In essence, Mr. Carroll is saying there must be a constitutional amendment because legislation alone is not adequate to bring about the changes the council believes are necessary.

Mr. Carroll

This is a fundamental human right. It must be in the Constitution in order that all legislation stems from it. Putting fathers and mothers on a par and giving them equal respect in the Constitution is another way of protecting the interests of children.

Chairman

Do members wish to ask questions?

Deputy Devins

I note that much of the original Men's Council of Ireland submission sets out objections to secret, in camera proceedings in the family law courts. How does the council propose to address secrecy while respecting the rights of the people unfortunate enough to be before the court to maintain their anonymity?

Mr. Carroll

The outcomes and procedures of rape cases are reported while protecting the names of the people involved. The same provisions could be applied in family law cases where the public has a right to know what is happening to other citizens and the children of the State in what are currently secretive court hearings. Such hearings are very dangerous. In any arena of power, openness and accountability are required. We must have the ability to observe the people to whom we give such a level of power. It is a fundamental democratic principle.

Deputy Devins

Does Mr. Carroll propose that other members of the legal profession, the public and media should be allowed to attend hearings, but that there should be no reporting of proceedings?

Mr. Carroll

No. There would be reporting with some limitations to protect the individuals involved. It is paramount to protect the identities of the parties rather than, as is currently the case, court procedures which have failed many people, especially children. A lack of professionalism, which is fundamentally being protected by the in camera rule, needs to be exposed.

Deputy Devins

It is my understanding that children attend some family law courts. Does the council propose to expose them to the rigours of publicity?

Mr. Frank McGlynn

No. This has been dealt with to some extent by the Civil Liability and Courts Act 2004. We wish to see reporting of court cases which protects the identities of the parties. While children attend some court cases, they are generally older and aged from 14 years upwards. It is often the case that when a judge involves a child or children in a court case, he or she hears them in private chambers. We are certainly of the opinion that where children are concerned, proceedings should be private. We do not advocate opening the courts to the general public. We want limited reporting.

Deputy Devins

Our brief is to look at the rights of children vis-à-vis the Constitution. Does the council advocate a constitutional amendment to protect the rights of children or could protection be provided through legislation under the current provisions of the Constitution?

Mr. McGlynn

Children's rights should be paramount. As we stated in our submission, children's rights are best protected through support for parents and respect for their roles. While we accept that there are exceptional cases in which parents fail in their duty to their children and State intervention is required, adequate provision is made for such instances in Article 42.5 which gives the State the power to intervene.

Deputy Devins

Does that mean there should not be an amendment?

Mr. McGlynn

We are not saying there should not be, but that to protect the status and rights of parents is to act in the best interests of children. The United Nations Convention on the Rights of the Child contains a number of articles which it would be very useful to incorporate in the Constitution in some form. It would be an onerous task which would require people more skilled than we are to accomplish in the correct terms.

Deputy Devins

I am not asking about the wording, I just ask where the thrust is.

Senator Ormonde

The council in its response to Deputy Devins has touched on the area I wish to discuss. The witnesses spoke about family law and pre-marriage contracts and about State intrusion in family law. The core of the committee's work is discussion of whether an amendment is required to protect the welfare of the child or whether we can incorporate the council's proposals through legislation, especially updated family law legislation. I am confused as I do not know whether the council advocates constitutional amendment or whether we can, without diluting the Constitution, improve the status of parental and children's rights and family law. I am not clear exactly where the council is coming from. Everybody's rights have to be protected and I wonder if we can do it through proper legislation rather than by meddling with the Constitution. There is a great deal of confusion.

Mr. McGlynn

I understand that it is unclear whether many of our recommendations can be included in the Constitution as opposed to legislation. The recommendations we have put forward are simple and enunciate simple, common-sense rights and responsibilities which it would be appropriate to include in the Constitution. We recommend that the State should ensure on the basis of equality between men and women the same rights and responsibilities during marriage and upon its dissolution. The recommendation could form the basis of an appropriate article of the Constitution. Rather than dilute the Constitution, the article would add to it by strengthening the protection of parents.

Similarly, we recommend that the State should ensure on the basis of equality between men and women the same rights and responsibilities as parents, irrespective of marital status, in all matters relating to children with the qualification that children's interests should be paramount.

Senator Ormonde

It concerns me that no matter what wording we incorporate in the Constitution, we must reflect that education is important when anybody enters into a contract. There may be personalities who can never contain themselves in any contractual relationship by their nature, which is an issue it is impossible to address in the Constitution. How does the council recommend addressing such problems? Can we make special laws for special circumstances?

Mr. McGlynn

The Constitution should deal with the generality of people. The generality of people abide by contracts as far as possible. Legislation would be the appropriate method to deal with exceptions, though it might mean including qualifications in any constitutional protections which would allow the State to address them.

Senator Leyden

Does much evidence exist that fathers are given a poor deal in family courts? Is information coming forward which suggests that some decisions are grossly unseemly, unfair and biased against fathers? Most public representatives are aware of cases which, needless to say, cannot be discussed here. Are such cases the group's motivation for wishing to see court proceedings made more open?

Mr. Carroll

That is our experience. Since I became involved with men's groups nine years ago, I have been shocked. I had no idea what was going on. I have lived in the United States of America and the United Kingdom and have been shocked on choosing to return to Ireland that we could treat any citizen in the way I have seen purely on the basis of sex. What is happening in the family law courts is an absolute disgrace. The people who are telling us these things may be in breach of the law because they were told never to speak of this outside. How can legislators make laws to correct this imbalance and injustice if they are not even aware of what is going on? It is incredible that it is happening in the year 2005. It is absolutely shocking.

Chairman

We thank the group for its submission which we will take into account before making our report in the coming months.

Sitting suspended at 2.31 p.m. and resumed at 2.32 p.m.

Chairman

The next item on the agenda is a presentation from the Gay Catholic Caucus represented by Mr. David Donnellan, Mr. Thomas Giblin and Mr. Michael Hayes. They are all very welcome. Before we begin I remind visitors that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee.

We received a detailed submission from this group that obviously involved a great deal of work, which we appreciate. It is not necessary for Mr. Giblin to read through the submission but it would be useful to outline the important aspects of it in about six to eight minutes. We will then have a question and answer session.

Mr. Thomas Giblin

I thank the committee members for this opportunity to address it, especially on a Friday afternoon which is not the easiest option. It is much appreciated.

I will begin by talking of my own experience. I am a gay person who would like to get married in Ireland in 2005 but am unable to do so. This affects my life in various respects. It fits into a pattern of living in Ireland as a gay person which has been difficult in certain ways over the years. However, I am immensely grateful for what my country has given to me and the opportunities it has afforded me. In the 1960s I was a gay child who knew he was different from the age of four but I did not know what I was. The images I had of being gay were of extraordinarily talented artists or comic idiots. These were my role models. I could either be John Inman in "Are You Being Served" or Micheál Mac Liammóir but there was not much in between. I grew up with no real role models on which to focus and no images of successful loving relationships on which to model my life as an adult.

In the 1970s I was bullied and teased at school about being gay to the point of wondering if I wanted to continue with my life. In the 1980s I joined religious life thinking it was the only loving way for me to go forward in my life because all other routes seemed impossible. I used to have nightmares when I considered meeting another gay person that I would be arrested for a criminal offence and that there would be consequent shame and scandal. Much has happened to improve on all those things. There are programmes about bullying in schools and homosexuality has been decriminalised. Much has been achieved.

At this point in my life I am affected by the fact that I cannot get married. I will give two recent examples. My partner and I recently took out a mortgage and we needed life assurance. We were both required to do a HIV test which was embarrassing. We pay a much higher amount in life assurance than we would if we were a married couple. The reason we were required to do the HIV test was not because we are gay but because we are single males above a certain age having our lives jointly assured for a certain amount of money. We were not discriminated against on the grounds of being gay but because we were not married.

My partner is Brazilian. The immigration rights here make it likely that I will leave Ireland and work abroad rather than live here. If I go to Brazil with my gay partner I will be able to live and work there immediately on the basis of providing evidence of our partnership. I can also claim citizenship there after one year, in the same way as a married person. This does not apply in Ireland where my partner would be considered as a single person with no connection to any Irish citizen. He would have to apply for a visa in Ireland on one of the two different types of visa arrangements here, work permit or visa. He would only get naturalisation after living here for five years, as opposed to one year if we were married.

There are real differences in the rights we experience but it is much deeper than that. I wish to convey to the committee the importance we see in marriage as a symbolic reality for endorsing commitment in relationships. This is something that has come up in our group through our deliberations.

I recently attended a civil marriage of an ex-priest. He constructed a whole liturgy around a civil marriage. It was a wonderful occasion. I was there with my partner in the knowledge that such a day would never be for us. That means his family will never meet my family in the way families do through a marriage. It means that our promise is not recognised in public in the same way as a straight couple's promise. We are planning to emigrate to the United States at the end of the year. All my friends ask me if I am going with him, even though they know we have been in a relationship for five years. As we are not married, somehow the relationship is considered provisional and is not supported in the same kind of way.

My sister who is married and has decided to have no children says she and her husband have more in common with us than with our other siblings who have children. The relationship of a straight couple without children is similar to that of a gay couple without children. The only difference is that they could get married but we can not, with the consequent effects.

Our belief is that if the committee were to endorse the idea of gay marriage it would be a wonderful breaking down of a kind of closet for gay people. As a minority, gay people are unusual. We are not a very large group so we are unlike other large groups against whom there is discrimination, such as women, nor are we marked by any kind of origin or ethnic identity like Travellers. We are not visible in any sense. The issue of visibility and invisibility is absolutely crucial for gay people.

I could have come here today and spoken as a straight person, as I have done for most of my life, and the committee members would have believed me. That is the way I behaved for most of my life — completely invisible as to who I am in my sexual identity and my manner of loving. If the committee were to endorse gay marriage it would dismantle this macro-closet which is not just about me coming out of the closet to my parents and siblings. It would mean the ability to express even the tiniest forms of affection in public, to hold someone's hand, to guide another person across the road, all the things we expect of couples. They behave differently around each other in public. For gay couples that is not acceptable in the Ireland of today. I cannot walk down the street on Valentine's day with my partner and express any affection. I did so once and was met with smiles and some snide comments. Part of having gay marriage would be to honour in public what gay love is, and that would have a profound transformative effect in honouring committed gay loving relationships.

We believe the State should support gay marriage because it supports committed relationships. That is an interesting issue for the committee to consider. In so far as rights for cohabiting couples are equalised with marriage, whether they be gay, straight or caring partnerships, the relative incentives for other forms of relationship that have more or less commitment are changed.

As Catholics we believe it is right that the State should support committed relationships, and have a specific three-step proposal to this end. This proposal involves some rights presumptively granted to cohabiting couples. Additional rights would be granted if couples entered into easily renewable time-bound commitments. Each renewal would provide an opportunity to reflect on whether one wanted to be committed on an more long-term basis. The third step would be marriage. These three forms of commitment would be available to gay and straight people alike.

We do not accept the argument of other gay Catholic groups that this would undermine marriage. We cannot see how a small number, and we do admit there are only a small number of gay people, including myself, who want to get married, would have this destructive effect on other marriages. If I got married tomorrow would married committee members think of divorcing? Would it make them less committed to their partners or children just because I and a minority of other people got married? We do not believe there is any causal link.

This is a matter of our fundamental rights as citizens and I am a citizen. Unless one believes that being gay and married are incompatible concepts, and we argue that they are profoundly compatible, my rights as a citizen are being denied. Our presentation has many aspects and the ones to which we wish to point committee members are visibility and our specific proposal on gay marriage and how we see that working.

If the committee is interested we also have opinions on role models for gay children and the possible impact on children of gay parenting. We would be happy to explore those issues, and any others that may occur to committee members, through questions.

Chairman

Senator David Norris is a leading advocate of the gay rights movement in this country and the person primarily responsible for bringing in legislation to decriminalise homosexuality — although a previous group blamed a Fianna Fáil-Labour Government — as he took a case to the European Court of Human Rights and succeeded against the State after a seven year struggle.

Senator Norris has published a Bill the provisions of which fall short of allowing gay marriage. I have spoken to him on this issue and he has spoken to the Taoiseach. He has put his proposal on hold pending the outcome of our deliberations and report, which should be completed in three or four months. The delegation has stated that it wishes to go the final step and that the Constitution should be amended so that gay and lesbian marriage can be allowed. Senator Norris's Bill falls short of that. Is there a split in the gay and lesbian movement?

Mr. Giblin

We support Senator Norris's Bill but privately we raised the same objections that the Government parties raised in response thereto. Senator Norris was proposing equal rights for same sex relationships but when one examined the dissolution of those relationships, the conditions were different for marriage.

There are two ways of looking at the issue under the Constitution as it is currently. One could say it is treating same sex relationships more favourably than marriage because the same constraints are not applied around dissolution. One could also say it is less favourably treated than marriage because the same supports around dissolution are not ensured.

Raising cohabitation relationships to the same level as marriage but not making them equal provokes the constitutional question in Senator Norris's Bill which the Government recognised. We were in favour of his effort because it is a move in the right direction. We would be happy if there was a civil contract that was exactly the same as marriage with exactly the same dissolution or divorce procedures which would not create a constitutional difficulty.

This would be less preferable for us than calling it marriage for reasons of symbolism. The gay community could construct a symbolism, our own liturgies and celebrations around a State contract and we could make a marriage of it with family and social networks and what we do around the day. Calling it marriage is of benefit because those symbolic aspects are more important than we often give them credit for, as the moments of public support are what we remember and invoke. To go down the road Senator Norris proposes would mean vast progress as the specific difficulties around life assurance and migration could be addressed within the framework of co-habitation, but the symbolic aspects, which people find difficult, could be beneficial.

This issue does not affect the majority of the gay community as groups such as GLUE have recognised. Those of us in the gay community who want to get married and who are in committed relationships are not visible. We live our lives and are not so much involved in mainstream gay movements, perhaps because we are in relationships and have settled down.

We are certainly not in the majority and perhaps that is for good reason. It is difficult to find a relationship in the gay community. There are not many public places in which one can meet a partner. One must go to pubs and clubs and there are not many groups where one can meet. Many people still do not find it easy to be "out" at work.

One is looking for a partner among a minority of the population and not all of us found it easy to find one. One only has 5% of all people to choose from, which makes it more difficult, especially as one could only meet that 5% in restricted public places most of which are in a dance-club format. This scene is about meeting people but not about supporting a committed relationship.

Having gay relationships endorsed by the State would allow greater public visibility and public representation of gay relationships would increase the ability of gay people to find partners. We support Senator Norris but would add that important nuance.

Chairman

Senator Norris is a capable politician, and at the back of his mind is the stark reality of a referendum in Ireland on that issue. From our experience, this could be divisive.

Senator Dardis

I welcome the group. Mr. Giblin has already dealt with one of the aspects I wanted to raise. I spoke on Senator Norris's civil partnership Bill in the Seanad and one of the issues I raised was on dissolution, which seemed to be far too easy relative to marriage. I think the grounds were irreconcilable breakdown. I would have a difficulty with that aspect of the Bill. I supported the Bill in principle and I am glad we did not have to vote on the matter and are trying to find an agreed way forward on the issue. There has been a divergence of views on whether marriage or partnership is the preferred option, but let us assume that we legislate to allow gay marriage, as opposed to civil partnership. Does the delegation foresee any constitutional consequences of such action, for example, an absolute need to amend the Constitution to facilitate such a legislative measure?

Regarding HIV, I am married but I too had to undergo a HIV test for an insurance policy and I had to waive my right to refuse. The consequence of not waiving my right was that I would not be granted the insurance cover. I can identify with others in that regard. I do not want to become overly personal but I would be grateful if the delegation could tell us, if possible, whether it is difficult to be practising Catholics. Is being gay at odds with being a member of the Catholic Church? I stress that I do not want to intrude into anyone's personal life with that question.

Mr. Giblin

On the constitutional question, our understanding is that in making any cohabitation relationship equal to marriage it is fine to go to the degree of equality, but it is not acceptable to favour anything over marriage. In other words, a constitutional issue arises if marriage is seen as being disfavoured vis-à-vis a cohabiting relationship.

Senator Dardis

The group's view would be that we should leave the Constitution as it is, provided that could be done.

Mr. Giblin

The simplest thing would be to redefine marriage in the Constitution, but political problems arise in doing so. We are not approaching this from an ethical point of view, but from the point of view of justice. It is a pity these issues are put to a vote. For instance, Traveller rights were not put to a vote before they were enshrined in equality legislation. Obviously, when it comes to changing the Constitution, that has to be put to a vote. There is a political pragmatism about that, which is not of particular concern to us.

Marriage is not defined fully in the Constitution at present, but in secondary legislation interpreting the Constitution. Those interpretations are indirect inferences about the nature of marriage in relation to other legal matters rather than direct findings on the fact. The constitutional situation, therefore, is not crystal clear, but the traditional interpretation of marriage is evidenced in those indirect references to marriage where there were findings about other matters. If that counts, then it binds on the interpretation of the Constitution.

It is possible to introduce a contract that is equal to marriage through legislation, which would not require a constitutional amendment. The Bill drawn up by Senator Norris was aimed in that direction.

Senator Dardis

There is a question around section 6 of the Bill as to whether it would be in accordance with the Constitution. The Minister dealt with that in his speech on Second Stage.

Mr. Michael Hayes

Case law seems to assume that marriage is between a man and a woman. The only case that I was able to find was an English case, that does not apply here, involving a transsexual and the court decided that marriage had to be between a man and woman. In the Irish cases that I have found, the issue was not whether it had to be between a man and a woman, it was just assumed to be the case. Therefore, it is assumed to be the case in the Constitution.

Senator Dardis

What about the aspect of the church?

Mr. David Donnellan

This opportunity to address the committee as gay Catholics is an important one. We are aware that there are many different groups appearing before the committee. However, to be able to come into a public forum to present our case is important for us because such opportunities are very rare within the Catholic Church itself. It is difficult to get the space to represent one's case and one's experience and be listened to with respect and attention. Being members of the Catholic Church presents difficulties for gay people.

Mr. Giblin

As a gay person who is a member of the Catholic Church, I have experienced great care by Catholics, clergy and lay people, both in religious life and after religious life. That does not translate upwards, however, in terms of the theoretical teaching. What one receives from the top down is very different to what one receives from the bottom up.

As gay Catholics, we love our church and our faith and we do not feel that we should have to leave because of our dissent on this point and we do not want to leave. In our experience and in all conscience, we have to say what we are saying. It is the truth that we live, it is who we are. We live that tension quite acutely, of loyalty and disloyalty, of belonging and not belonging. One thing that makes it possible to continue is the genuine warmth, kindness and acceptance that we receive at the ground level, not everywhere, but in many places.

Senator Ormonde

I note from the replies given to Senator Dardis that incorporating some way of recognising alternative relationships in the Constitution is a non-runner at this point. This country is not ready yet. There is a huge hurdle and how we overcome that hurdle may be through legislation and education. Perhaps we are not psychologically ready and the delegation appears to acknowledge that on the basis of its Catholic beliefs and its desire for support and acknowledgement from the Catholic Church. If this issue was dealt with through legislation which acknowledges rights in terms of taxation, property and so on, that would represent the first stage. Is it possible to go any further than that at present? We need to talk about it and perhaps the more it is discussed, the more it can be progressed.

Mr. Giblin

The issue faced by the members is difficult, but it is not a difficult one for us. That does not mean we do not acknowledge the reality of the situation. We sympathise with the committee as it teases out the dilemmas facing it. We have teased out these dilemmas too. There is an interesting trade-off in the debate faced by the committee.

The committee can opt for a model of presumptive cohabitation and extend it to as broad a range of people as possible, as argued for by Senator Mansergh in The Irish Times and other fora. The arguments on this are quite persuasive but from a financial point of view, what will be accorded to that group, because it is a large group, will be less. The real politik of the situation is that the amount of resources the Government has to share out on this larger group will be less. The idea of a gradated commitment, of providing for something that is equivalent to marriage, but not called marriage, is another option.

In the Netherlands this only affects 2% of all marriages in the country, three or four years after gay marriage has been introduced. It is a very small group of people, somewhere in the order of 1,500 to 1,800 people per year in the Netherlands. The number in Ireland would be even smaller in terms of the number of gay people who actually want to get married. For those people, however, it is a crucial recognition of the value and rights of their relationships. If one had a provision for temporary committed relationships, one could accord more rights to those people. They could be relationships that centre on loving partnerships, not just on familial ties, as in the relationships between brothers and sisters who live together. The gradated approach would allow for more flexibility in attempting to solve the dilemma faced by the committee.

Senator Ormonde

Is Mr. Giblin advocating legislation at this time rather than a full amendment to the Constitution?

Mr. Giblin

We urge political parties to realise that full equality means just that. Anything less than full equality is an injustice of some type. To say that the country is not ready for something is also to say that it is willing to live with an injustice, particularly if one believes that full equality is somewhere on the horizon. One either believes that gay marriage is full equality or one does not. If one does not, then there is no denial of rights since there will not be an injustice.

Senator Ormonde

Perhaps it will have to be nursed along.

Mr. Giblin

It is the role of politicians to choose the best strategy.

Senator Ormonde

That is correct.

Mr. Giblin

We will encourage the politicians to take all positive steps in the right direction.

Senator Dardis

Are challenges possible under the equality legislation? Has that crossed the minds of gay activists?

Mr. Giblin

It has not crossed our minds because it is an enormous issue to take on. I have thought about it but one has to be ready, as an individual, to take it on — or to find someone to do so — run with it, accept the publicity, etc. It is somewhat like the couple going to the Supreme Court, which is quite a significant choice to make. In my relationship, I would not be in a position to do that. Neither would any other members of the group. Circumstances almost generate such an opportunity. I should be delighted if it did happen.

Chairman

There is time for two final questions. The 2002 census showed approximately 1,700 gay and lesbian couples who were prepared at the time to openly declare they were in some type of cohabiting relationship. In Mr. Giblin's view, are there many among that 1,700 who wish to marry? I accept that it may be difficult to put a figure on it. Mr. Giblin stated that homosexual couples may live together but that many might not want to take this ultimate step.

Mr. Giblin represents the Gay Catholic Caucus. From a religious perspective, is the election of the new pontiff, Pope Benedict XVI, a cause of hope or despair for his group?

Mr. Giblin

As regards the numbers, we do not have an empirical estimate similar to those arrived at by social scientists. However, the figure of 1,700 in the census is likely to have been vastly under reported. If I were to say how many of those people desire to get married, my estimate would be based only on anecdotal evidence. When I talk to other gay people about wanting to find committed relationships, it seems that many do. Many people of my age, in their forties, would like to be, but are not, in such relationships. I do not know whether they would want to get married if they found committed relationships. Some would, some would not.

On Cardinal Ratzinger, we could all have something to say in that regard. We were talking about it in Buswell's, in the time-honoured tradition, before we came into Leinster House.

Chairman

I caught the buzz. My ears were itching to hear what the group's views were in this regard.

Mr. Giblin

A substantive point to be realised is that the doctrines issued by the Congregation for the Doctrine of the Faith, if read carefully, not only ask for gay people's rights not to be extended in any way but also want gay people to remain in the closet. The logic of the Catholic Church's position is that one should not come out as a gay person. In coming out as a gay person, one is saying, in effect, to other homosexuals that it is all right to spread the gay lifestyle. The gay Catholic is strongly encouraged to remain in the closet. As a gay Catholic in a committed relationship, I am now living in a state of sin. I cannot, therefore, be forgiven in confession and I cannot receive the Eucharist. Before I was in a committed relationship, I could only have casual sex, which as a Catholic and from the psychological and ethical viewpoints, I would consider to be less mature behaviour. Such behaviour may not be evil but it is certainly less mature. In some ways I am not allowed to progress as a human being by this logic.

Cardinal Ratzinger had a role under the leadership of Pope John Paul II. One can always hope that matters will be different under his pontificate. Will this be the case? He shows a certain gentleness of spirit. If he is genuine, he will be willing to meet gay people, since he suggests he is willing to meet those who have differences with him, within the Catholic church. It might produce something good if the Pope were to meet people from a gay Catholic group and listen and talk to them. This could be enormously symbolic, demonstrating that at least some compassion was on offer and that would be great progress.

Senator Dardis

I would like to make one point to Mr. Donnellan. He welcomed the opportunity to be here. We welcome the fact that the group is here.

Chairman

I thank the group for its submission. It will be taken on board during the committee's deliberations during the coming months.

Sitting suspended at 3.05 p.m. and resumed at 3.07 p.m.

Chairman

The next item on the agenda is a presentation by Brethren, represented by Mr. David Joynt, Mr. Murray Robertson, Mr. Michael McMullan, Mr. Ben Watson and Mr. Dan Watson. Before we begin, I remind our guests that members of this committee have absolute privilege but that this does not apply to witnesses appearing before the committee. Brethren has already made a submission which the committee has studied. We would now like the delegation to synopsise the most important aspects of it in the next six to eight minutes. Afterwards, members of the committee may wish to ask questions

Mr. Dan Watson

Members of the committee will have read our submission. We are thankful for this further opportunity to express our deeply held convictions. It is not without significance that considerable public interest has been aroused and we have felt our responsibility from a non-political Christian standpoint to try to help.

We have very little idea of the magnitude of the task entrusted to the committee, having regard to the serious implications for the welfare of our nation. We appreciate the wisdom and foresight contained in our Constitution and strenuously urge the retention of the articles in the family section that are under review.

I wish to refer to Articles 41.1.1° and 41.1.2° of the Constitution. Article 41.1.1° states "The State recognises the Family as the natural, primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law", while Article 41.1.2° states "The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State". It is our respectful submission that the wording of these articles could not be improved upon.

As the family is the natural, primary and fundamental unit group of society, as a moral institution, is the necessary basis of social order and is indispensable to the welfare of the nation and the State, what need is there for change? In recognising the critical value of this, the State has guaranteed to protect it. This fact is no different today and never will be than it was in 1937, when the Constitution was first adopted. In referring to the family, the Constitution clearly has no unit in mind other than the family based on marriage. We believe these articles set a standard for the nation. Is there not a vast increase of crime, social disorder and drug abuse? Why are there such increasing pressures on the Garda, the courts, social workers and school teachers?

At the recent ASTI conference, the president of the union, Ms Susie Hall stated:

Teachers and schools are expected to cure all the societal problems and excesses of 21st century Ireland. Teenage pregnancies ... binge drinking and drug abuse, increasing violence among young people, depression and even obesity are all seen as the responsibility of schools. We cannot be expected to make up for the failings of society, which often seems to be abdicating all control, good example and responsibility.

Could the increase of suicides be attributed to the breakdown of family life? We have the sad proof of this from the tragedy that occurred earlier in the week in County Wexford. A Samaritan counsellor recently informed us that the increased rate of suicide in this country is a direct consequence of the departure from the stability of normal family life. These conditions of social decline can only accelerate if we fail to uphold the concept of the family as defined in the Constitution.

Should we not then put our energies into strengthening the family? It is a simple fact that affectionate family background conditions afford stability. In times of joy, sorrow, anxiety, where do we turn? Is it not to the comfort, support and understanding within the natural family? The sanctity of the marriage bond is of paramount importance and is the providential bond of all moral order in the world and the constant concern is for the maintenance, protection and care of the oncoming generation. We believe this truth is cherished deeply by the majority of people in Ireland. We also believe there is a threat to these great moral values. We appeal to this committee to stand by the right principles and reject every suggestion that would undermine the integrity of the nation.

Article 41.3.1° says that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack. It is an obvious statement of fact that all human beings are born of a mother and begotten of a father and there is no exception to this. It is a universal biological reality and the common experience of all people. The State must continue to support the institution of marriage because it promotes and protects the father-mother-child relationship as the only natural means of creating and continuing human life and society.

Marriage is child-centred; it is not an adult-centred institution. It is a solid social structure resting on four pillars concerning number, gender, age and incest. We are permitted to marry only one person at a time. That person must be of the opposite sex, must not be below a certain age and must not be a close blood relation. Those who satisfy each of these conditions, each of which safeguard the well-being of children, the family and society, qualify for marriage. To put unnatural relationships such as same sex unions on the same level as marriage is an affront to God and will destroy the whole moral foundation of society. In the words of scripture, "does not even nature itself teach you", which is from the first book of Corinthians, chapter 11, verse 14.

Amending the Constitution in order to recognise family units other than those based on marriage will have vast social and financial implications, both from within the country and from without. Immigration will become an endless burden on the State. Who could measure the cost? There should be a substantial financial benefit to encourage persons away from unsuitable relationships, such as cohabiting and homosexual affinities, to the normal and natural relationship of husband and wife.

It is our belief that the holding together of families is best served by the mother's life within the home. The neglect of duties within the home is the single main contributor to widespread marriage breakdown and moral disorder throughout the world. The common good given to the State by the woman's life within the home should not be overlooked or weakened and is certainly not a dated reference. We feel, rather, that it should be promoted by some attractive financial reward. We shall continue to pray for the Government that it may be upheld of God in this and other important issues, including the maintenance of right moral values and respect for Christian conscience. I thank the committee for its attention.

Chairman

I thank Mr. Dan Watson for his submission on behalf of Brethren. He has certainly made a clear and succinct case. As Chairman, I must sometimes play devil's advocate and I have a few questions to pose. The most recent census in 2002 recorded approximately 80,000 cohabiting couples. We had almost 160,000 single parent families, 85% of which were led by mothers. The previous group stated that the figure of 1,700 gay and lesbian couples included in the census was an underestimate. In 1937, 3% of births took place outside marriage as it would have been known traditionally. At present, 31.5% of all children born in the State in 2005 are born outside wedlock. How should society reflect or react to those changes?

Whether we like it, the number of cohabiting couples doubled from 1996 to 2000. This does not include divorced or separated couples. How can we get the balance right? Brethren' view is that marriage and the 1937 Constitution should be cast iron and firm on marriage. How should politicians address these issues? We represent people. I am from west Cork, a remote rural area where we face all these social problems in our constituency that must be addressed. What would Brethren say to these people if we decided things should not change from what they were in 1937? Whether we like it, society has changed and is changing rapidly — perhaps for the worse. I am not saying which, but these are the facts presented to us.

How can we address these problems and reconcile them with the Brethren position? I am not saying Brethren is wrong. Other groups have said that the 1937 Constitution has served us well and should not be touched, particularly with regard to these articles. How can this committee, comprising of elected Senators and Deputies, cater in a fair and equal manner for these people under the law of God or whatever? If a single mother has difficulties she must be supported with housing and so on. How can we accommodate the growing numbers in society who do not fit in within the rigid, cast-iron category of a family based on marriage? Are we losing the battle?

Mr. Watson

Are there not two issues to be explored? We are dealing with the Constitution, which we regard as a standard or a benchmark. We see the change in the Constitution that might be suggested as opening the door to more problems and more difficult situations. Should we not establish and stand by what is a standard as set out in the Constitution so that people have a standard to look to? If we give up the standards, we have none. I think we are correct in saying that our Constitution was God-given to this nation and that it has a place that ought not be weakened. We believe that making provision for the abnormal situation will be a retrograde step and will open the door to endless problems. It is not that we can speak from a statistical point of view. We approach it simply from the level of what is moral and right in God's sight, which we understand is set out in the principle of a family based on marriage.

Senator Dardis

Many people have said that the 1937 Constitution is a product of the social teaching of the time. We have had quite a debate about how social mores change and that the Constitution should be able to stand those changes in an absolute sense. The Constitution is the people's document. While we advocate what should be in it, ultimately the people make the decision. For example, divorce is included because the people, not the politicians, decided that, and it is important to say that. With regard to what the Catholic gay men had to say earlier regarding extending the meaning of family to single parent families and so on, is Brethren prepared to accept that if the Oireachtas was mindful, those issues could be dealt with by law thereby leaving the Constitution alone as the group has asked?

With regard to the rights of the child, Brethren has made proposals as to a revised Article 41. What the group suggests is not very different from what many others have suggested, perhaps just somewhat different in detail. Would Brethren prefer it was just a statement of general rights or would they enumerate the rights? In paragraph 5 of the proposed revised article Brethren suggests"the right of every child to register" and so on. There is enumeration in that. Would the group be satisfied if the rights of the child were installed with just a limited explanation or description of those rights?

Mr. Watson

On the issue of changes in legislation as distinct from maintaining the Constitution as it is, I agree this is the area where these matters should be settled. We need to hold to the stature and moral integrity in the Constitution. It must stand on its own because if it is watered down or changed, the basis of society will be affected. That is how I see it. We feel it is important that the benchmark is not moved.

Senator Dardis

Would Brethren go so far as to prevent legal unions of the types we heard about earlier?

Mr. Watson

Yes, because they are immoral. After all, does not every individual have to do with God in the final analysis, just as the preamble to our Constitution indicates? In that respect, we regard the Constitution as very fine in its respect for a creative God.

Senator Dardis

What about the children?

Mr David Joynt

Our feeling is that the situation as to children is extremely varied. It depends on age and background. We do not have the capacity to suggest how that could be incorporated in such an all-embracing document as the Constitution. However, we are very concerned that the background of the child is taken into consideration and that whatever is set up will take into account where there is a genuine instinct that relates to the background they came from and that as far as the rights of the parent are concerned, that it becomes apparent as to where the real instinct is to be a parent.

Senator Dardis

I am not clear on the Brethren. Is it a denominational organisation or a cross-Christian organisation?

Mr. Watson

We do not take any sectarian ground as such. We are known to Government as Brethren. We just take the place of being Christians here in the pathway of testimony to our Saviour, Lord Jesus, whose name is very precious to us.

Senator Dardis

Is brethren open to more than the members of one Christian church?

Mr. Watson

The ground we take is not sectarian. We are Christian and are thankful for a Christian anywhere.

Senator Ormonde

Brethren has touched on my question with their answers to Senator Dardis. They said the family based on marriage is fundamental and that any deviation from that dilutes the fabric of society. However, they are aware that there are many diverse units today. Society is crumbling here and there and some marriages have irretrievably broken down. We are here to discuss the protection of the child at all costs and how best we can do that, whether by adding some words to the Constitution that will give extra security to the child or through legislation.

Brethren also referred to problems in the schools, binge drinking, drug abuse and violence among young people. Are we also talking about education responsibilities and duties? How does Brethren believe we, as legislators, can improve society? How can we bring about change without amending the Constitution? I wonder if it is possible to amend the Constitution to embrace what the group is saying.

Mr. Joynt

We have not got all the answers.

Ms Ormonde

Neither have we.

Mr. Joynt

It is of the utmost importance to maintain a standard. Those of us who are present and those we represent have made it work. I am the father of six children and, mercifully, although we have struggled many a time, my wife has not had to go out to work and my children are still around and prepared to raise a family themselves. Others can speak for themselves. I assure the joint committee we do not take the high ground. Divorce is almost unknown among those of us who are committed to one another in the fellowship. I was trying to estimate and it is probably one in 1,000 marriages. It can be made to work.

Deputy C. Murphy

The Constitution is under ongoing review for many years. There is a feeling a review is needed because we are living in a changing society and a changing world. Part of the change is what is defined as "family". The courts have used various definitions. The European courts have also tried to define the term. It is difficult to acknowledge something described as a benchmark when it deviates significantly from the reality. Does Mr. Joynt suggest we should completely ignore the reality? One must legislate on the basis of reality.

An article in the Constitution which I do not like states the role of the woman is in the home. The fellowship referred to this in its written submission and wants to maintain it. However, much of the family breakdown described by Mr. Joynt has taken place, despite the inclusion of this article in the Constitution. Guarantees in the Constitution do not always reflect what people do and the two issues to which I refer are testament to this.

Brethren's submission seeks to protect the status quo rather than making a change that would have an impact on society. Perhaps the group’s concept of the Constitution is much different from mine. As the Chairman said, a range of statistics do not suggest the outcome of the constitutional review should be protection of the status quo because that would not reflect the reality in society. What is the point of a constitution if it does not have a bearing on society?

Mr. Watson

The question is not whether the Constitution will be the guide but whether the changes in society will be the guide. If I have not got a standard, what do I do? That is why we feel the position of marriage and the upholding of the integrity of the marriage bond are critical to affecting the decline evident on every hand. I assure the joint committee we feel for the Government regarding this dilemma. There is no doubt it is widespread. We understand this. We pray in that connection but at the same time unless there is a standard to work towards and the maintenance of a true and proper standard, there must be decline. I do not think one will arrest the decline by following it.

Chairman

I thank the representatives for attending. They have made their point clearly and succinctly to us. Our function is try to adjudicate. We do not have a premeditated position on reform of the Constitution. We are producing a report, as we have done on several other articles of the Constitution. Much of the work has been completed. It is an ongoing process, although a number of groups think we have a motive or agenda. I do not. Most of the members are sincere about their work. We will take Brethren's views into consideration.

We are preparing a report which will be forwarded to the Taoiseach, the Government and the Oireachtas. We pray that we will strike the right balance if there has to be change. We have a great deal of work ahead of us in the next few months. We have done much work and hope the result will be correct. After that, it will be a matter for the Government to act. The joint committee has produced reports on various issues in the past seven or eight years and they have gathered dust. However, once we produce a report, our job is complete.

Sitting suspended at 3.35 p.m.and resumed at 3.45 p.m.

Chairman

I welcome Mr. Patrick Buckley, director of the European Life Network, Ms Olivia Connolly and Ms Eleanor O'Neill McFadden. We have four names but only three people are present.

Mr. Patrick Buckley

A fourth member was, unfortunately, called away.

Chairman

I welcome the delegation. Before we begin, I must remind visitors that while members of the joint committee have absolute privilege in anything they say, the same privilege does not apply to witnesses appearing before the committee. We have received the delegation's submission which we have studied. We do not expect it to go over it again in its entirety. The standard procedure is that we give delegates between six and eight minutes to outline or synopsise the important aspects of their submission, after which we allow Senators and Deputies to ask questions.

Mr. Buckley

As the Chairman said, my organisation is the European Life Network. I am the father of seven children and a grandfather. I lobby on life and family issues at the United Nations in New York as well as in Geneva and at the European Parliament.

Ms Olivia Connolly

I am the mother of three children. I spent several years teaching, three of them in South America and 16 in inner-city Dublin. I was always working with the deprived. I am very conscious of the importance and value of family life, particularly where children are concerned. That is why I am here today.

Ms Eleanor O’Neill McFadden

I am the mother of four children and have six grandchildren. I have played a great deal of international tennis and taught children to play it in schools for 34 years, where I gained much experience from watching children who in many cases were not loved. One wondered why that was and why their behaviour was such. I also worked in Bosnia for 20 years for charities with people displaced during the war. I am here because I really hold dear the family unit. When I played on the tennis world circuit, I watched what was happening in Ireland years ago. I am now 65. I was 21 then. I have, therefore, spent 44 years watching the sliding scale of morality in this country. That is why I am steamed up about protecting my grandchildren. That is my main issue.

Mr. Buckley

That is a good point for me to lead in. I am not here for myself either. I am also approaching the twilight of my life and I am here out of concern for the future of this nation, in particular its children. As a sovereign state, we are very young. The State, in its present form, has been in existence for less than 100 years and I believe we must protect our hard won sovereignty. We must also protect that which is good in our society and build on those aspects for the greater good. We must stand firm against anything that is to the detriment of our society, regardless of whether it is considered to be politically correct. I have seen this nation come of age and become economically stable but I have also watched in despair as it entered moral decline. As a nation, we appear to be losing our sense of right and wrong and entering an era of moral relativism.

A significant change has taken place in the understanding and implementation of human rights, with a move away from those based on natural law towards positivism. There are many good aspects to this but it seems to place desire and choice on a par with critical life values. That must be reviewed as a matter of urgency and the primacy of the natural law reasserted. No Government can legislate for every human desire. However, Governments have a responsibility to govern for the common good of society.

The family is based on marriage, the union of one man and one woman. That is the fundamental social unit, inscribed in human nature in a life-long covenant of marriage. The Constitution further recognises the family as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. The various articles of the Constitution, for example, Articles 41.1, 41.2 and 41.3 and other clauses, lay down that it is incumbent on the State to recognise and uphold the family based on marriage. Put simply, the Constitution recognises that the family base of marriage is an institution that existed before it; it neither creates nor defines it. Therefore, the power to redefine marriage is not given to our legislators or the Judiciary. They are charged with enacting laws that uphold and vindicate the family.

I have a variety of issues regarding the family and marriage. Marriage is the cornerstone of the family. A strong marriage brings security, contentment, meaning, joy and spiritual maturity to men and women who enter and stick to that life-long covenant with unselfish commitment. The natural family, based on marriage, provides the optimal environment for the healthy development of children. There is sexuality for the expression of love between a husband and wife and the procreation of children within the covenant of marriage.

Every human person has intrinsic value throughout the continuum of life, from fertilisation to natural death. Any action that interferes with that continuum in any way is wrong. As procreation is the key to the survival of the human race, it must be protected. Parents possess the primary authority and responsibility to direct the upbringing and education of their children, other than in cases of abuse and neglect. Good government protects and supports the natural family, the fundamental unit for economic growth and development.

The European Life Network is initially seeking to exhort the joint committee and all other interested parties to adopt a family perspective and make it part of mainstream debate. The institution of the natural human family should be respected and upheld for the good of present and future generations. It is appropriate that the family should continue to be recognised as being founded on marriage. There should be no change in that regard. During the past 20 years the courts have upheld the rights of individuals in heterosexual non-marital relationships to the extent that such relationships are no longer at a disadvantage when compared to marriage-based families. There is no need for a formal definition that would inevitably weaken the family.

I would like to speak about last year's tenth anniversary of the UN Year of the Family. Every country adopted a resolution on the family on 6 December last in New York. The resolution included the contents of the Doha declaration, a copy of which I have attached to the documentation I have submitted to the joint committee. The Doha declaration emphasises the importance the international community attaches to the value of the family and the need to uphold the family and family life. Some countries dissociated themselves from the declaration after it was passed without a vote. The Government should take cognisance of the declaration which was accepted by the United Nations last December because it is an up-to-date international document that outlines the desires and requirements of the global community in respect of marriage and the family.

It has been suggested that the reference in the Constitution to a woman's life within the home is dated and should be changed. However, it is an important provision because it reflects the desire of many Irish women, as shown in many surveys, to stay at home to rear their children. The Constitution demands that the Government ensure women are not forced by economic necessity to work. While the choice of mothers who wish to work outside the home is routinely upheld, the choice of women who wish to stay at home is not upheld in the same way. The constitutional right of women to stay at home has never been adequately vindicated by the State, particularly in respect of economic necessity.

Rather than changing Article 41.2 of the Constitution, the State should take it seriously. It does not stereotype women in the manner suggested by the Convention on the Elimination of Discrimination against Women. Its real purpose is to elevate motherhood to its rightful place which demands absolute respect and a duty of care from legislators and the State. The Constitution protects the rights of men and women who work outside the home. Plenty of existing legislation, including Article 40 of the Constitution, protects the individual rights of women and men. It has been asked whether the rights of a natural mother should have expressed constitutional protection. I believe such rights are protected in current legislation. The rights of natural fathers should be protected in the same way as the rights of natural mothers.

In my submission I cited a US social scientific research document, Why Marriage Matters. The document's 21 findings demonstrate beyond serious argument that there is an urgent need to encourage and support stable marriage between men and women. Every one of the document's findings is based on the experience of men and women in committed marital relationships who were learning to live together. There is no evidence that one can obtain such positive outcomes from other forms of relationships.

It is obvious that we must take great care when considering the issue of sexual orientation. The European Life Network accepts the affirmation in the Universal Declaration of Human Rights:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

It is repugnant for a state to tolerate violence against individuals. Therefore, criminal laws have been enacted to prosecute the perpetrators of violence. The rights flowing from the human person are protected by various human rights committees, the committee on economic, cultural and social rights and the committee on the rights of the child. However, they do not protect rights flowing from a status. Existing human rights instruments have focused on the protection of the human person, not on a status.

The term "sexual orientation" has never been defined in a universally recognised and legally binding document. Its meaning is disputed among persons with psychological, psychiatric and medical training. If one assumes without making a decision that the word can be defined, it is doubtful that "sexual orientation" would be seen as "an immutable part of self" because the ordinary meaning of the word "orientation" does not imply immutability. People are not born that way.

The European Life Network attached to its original submission a report issued by United Families International which sets out guidelines to be followed by families when dealing with the issue of sexual orientation. The report outlines the current thinking in the United States on various aspects of the issue. It concludes that more research needs to be conducted before governments enact further legislation that would damage marriage. Homosexual and lesbian pairings do not constitute marriage.

Chairman

The joint committee needs to vacate this room by 4.15 p.m. I do not want Mr. Buckley to run out of time as the committee might not then have an opportunity to ask questions. I wonder if he can cut short his presentation.

Mr. Buckley

I will make a few points on the question of whether gay couples should be allowed to marry and on the rights of the child. Perhaps I will be able to make a few points on both issues.

Chairman

Yes.

Mr. Buckley

Homosexual and lesbian pairings do not constitute marriage and never will. It is futile to pretend such pairings can or should be given a special status equivalent to that of marriage. Marriage is not just the union of two people; it is also the union of the two sexes, the union of two families, the foundation for establishing kinship patterns and family names, the basis for the passing on of property and the means of providing the optimal environment for the raising of children. Marriage is of such importance that it should remain uniquely protected. Giving non-marital relationships the same status as marriage would destroy, rather than expand, the definition of marriage. As the term "marriage" refers specifically to the joining of two people of the opposite sex, it would become meaningless if one sex were not part of it. One cannot leave one sex out of marriage and call it marriage. It would become something else.

Requiring citizens to sanction or subsidise homosexual relationships violates the freedom of conscience of Christians, Jews, Muslims and all people who believe marriage is the union of two sexes. Civil marriage is a public act. Homosexuals, however much they may wish it, should not be placed in a position to impose counterfeit marriage on their fellow citizens via the law.

The drive for homosexual marriage leads to destruction of the appropriate standards for custody and adoption. In determining these standards, the best interests of children should be central. Where possible, children should be placed in a married, mother and father, household. Unlike race or ethnicity, homosexuality is not immutable or genetically determined. It is socially constructed behaviour. Science has produced no credible evidence of innate homosexuality.

There are some good aspects of the convention but the many deeply flawed articles outweigh these. The convention's preamble recognises the family as the fundamental group of society. The preamble also says "the child, for the full and harmonious development of his or her personality, should grow up in a family environment". The preamble asserts that the child "needs special safeguards and care, including appropriate legal protection, before as well as after birth". Article 6 recognises that "every child has the inherent right to life". The convention also protects the rights of parents to direct the lives of their children in a broad array of concerns.

The convention has many problems. Article 13 guarantees the child's "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers ... through any other media of the child's choice". That is going too far and I believe that children can be damaged by having access to unacceptable information. This article needs to be amended.

Article 15 guarantees nearly unhindered freedom of association when we have drug problems in our cities. This freedom of association is something our children should be protected from rather than guaranteed.

Article 16 guarantees that no child shall be subjected to arbitrary or unlawful interference with his or her privacy. In other countries, that has been used to bring young girls to abortion clinics without the consent of their parents. I see that as dangerous.

Article 19 calls for the protection of the child from "all forms of physical or mental violence, injury, or abuse, neglect or negligent treatment, maltreatment or exploitation ... while in the care of parent(s)". This paragraph appears quite sensible but rulings by UN committees show a marked tendency to consider traditional religious belief and practice as forms of abuse.

Article 24 urges states parties to "ensure that no child is deprived of his or her right of access to ... health care services". In UN parlance, this would include access to reproductive health care services including abortion.

One of the major aspects of the convention is the inclusion of autonomy rights. I am of the opinion that autonomy rights should depend on the age of the child. Having raised seven children, I believe there comes a time when one must accept their autonomy. Autonomy rights have been described by some commentators as a right to behave badly and have been used as a right to enter into sexual relationships at any age without the knowledge and consent of their parents. That causes me grave concern.

Chairman

I hate to pressurise Mr Buckley but there are time constraints. The submission was very thought-provoking. I see clearly the point Mr Buckley is making and, therefore, have no further questions. Mr. Buckley's groups believes that the Constitution should not be interfered with. The committee will take that view into account.

Senator Ormonde

We have heard many submissions based on the theme of protecting the Constitution and using it as the fundamental guideline for society. The question for us is whether we should amend the Constitution or update legislation on family law. How can the welfare of the child be protected when marriage breaks down? Is the Constitution broad enough to protect the rights of the child when marriages break down or can we overcome this problem by updating the law?

Ms Connolly

Mr. Buckley has already suggested that articles in the Constitution endorsing the family have not been supported. Families are breaking down because of financial stress on mothers and fathers. The survival of the family unit is very difficult. I have spoken to mothers who leave home at 6 a.m. to take their children to child minders. When they return from work, it is time to put the children to bed. There is no contact between the parent and the child. Instead of changing the Constitution, the Government should support the family. While children are young and families need support with their mortgages, the Government should support them financially in order that mothers can stay at home.

In Russia in the 1930s, women were regarded as economic tools and forced to work outside the home. The consequences for Russian society were so great that the policy was reversed. The conclusion reached was that the disintegration of the family led to the disintegration of the nation. Financial support was given to families in order that mothers could stay at home. If the Government could provide the same support, there would be no need to change the Constitution and neither would there be marriage breakdown as we experience it today.

Senator Ormonde

That is a precise point.

Ms McFadden

Members of my family live in Brussels, where it costs €100 per week to put a child into a creche from 9 a.m. until 6 p.m. where he or she is fed and looked after. Women are encouraged to leave their homes under the false pretext of developing themselves. I am not against the development of a woman's gifts. I worked part-time but did so on a sliding scale when my children were young. With God's help all of us may do this. We do not have to say goodbye to our respective gifts. The situation I see in Brussels is very damaging. I am aware of a case where a husband who possesses qualifications acts as house father. As the children receive care from 9 a.m. to 6 p.m. every day, he did not bother searching for a job but merely discusses the possibility of taking computer courses. The society has become lazy. As his wife commands a higher salary and has a good job, she works long hours and travels extensively. This situation exerts a demonic influence on societies, particularly in northern countries. I attended a meeting in Dublin Castle where speakers lauded the system in either Sweden or Norway, where 95% of women work. I was horrified that speakers would be invited to speak to Irish women on this subject. They were suggesting it was easy for women to work outside the home. This is the kernel of the problem.

How can the Government consider changes to the Constitution when no research has been carried out on the children of same sex marriages? Proper research results will not be available for 18 years. Will discussions be held based on a lack of information? Research has been conducted in some areas for five or six years, but this is an insufficient basis to change our wonderful Constitution.

Senator Dardis

Mr. Buckley is glowing in his twilight. As Senator Ormonde's inquiries were similar to mine, I have no further questions.

Chairman

We thank the European Life Network for its interesting submission. Its views are clear to the committee and will be taken into consideration. We are hearing submissions from 50 different groups. It appears some are under the impression that this committee has a directive to change the Constitution but that is not the case. This committee's work has continued over the past nine years and has examined the role of the Presidency and the role of the Senate. Our examination of the role of the family does not mean we adhere to any agenda. I replaced Deputy Brian Lenihan as chairman three years ago. When exploring the issue of abortion we were accused of being abortionists, which was far from the truth. We delivered recommendations on a referendum with regard to that issue.

Our role involves preparing reports on these issues. Our work did not begin and will not conclude with the articles currently under discussion. Three quarters of the review of the Constitution remain to be completed. Many nations, including Australia and the USA, periodically review their constitutions. Some look for changes in their constitutions while others wish to preserve them.

We will produce a report for Government in autumn. Our last report on property rights was praised but continues to await Government action one year after completion. We are not a catalyst for change. Our work may be visited by the Government over the next ten years. As I am from west Cork, it is difficult for me to be here on Friday evening. We are merely reviewing these areas and exploring socio-economic aspects, certain of which are complex and difficult. This cannot be completed without discussions with a variety of social groups, religious and otherwise. We hold open and transparent meetings with people from different walks of life. While we may not agree with everyone, we hope to produce a fair and balanced report. If in the aftermath it remains on the shelf for five years we might be disappointed but we cannot compel action. This ongoing review was established by Mr. Garret FitzGerald in 1996. I do not know if the work will be concluded in the lifetime of this Government.

Senator Dardis

Or in our lifetime.

Chairman

A small minority accused this committee of making secret plans. If this was true I would not bother remaining here today.

Mr. Buckley

We appreciate the invitation to make oral presentations.

Ms Connolly

We would like to see a Cork man go home early this evening.

Chairman

Having seven sisters has allowed me to learn a lot about women.

Ms Connolly

As someone with eight brothers, I concur.

The joint committee adjourned at 4.15 p.m. until 10.30 a.m. on Tuesday, 26 April 2005.