JOINT COMMITTEE ON THE CONSTITUTION debate

Family Issues: Presentations.

Chairman

The first group to come before the joint committee today is the National Women's Council of Ireland. I thank Deputies and Senators for their good attendance. While the hearings have been long, there has been good engagement by committee members. Another full day and we will be well on our way.

Deputy Morgan

Any word from the political parties yet?

Chairman

We have been so busy with the hearings in the past two weeks I have not given the question of hearing from political parties much consideration but I have not forgotten about it.

The National Women's Council of Ireland is represented by Ms Joanna McMinn, Ms Marie Hainsworth and Ms Orla O'Connor. They are all very welcome. Before we begin, I remind visitors that while members of the joint committee have absolute privilege, this same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

The delegation has given us a copy of its submission which we have studied. Rather than rehash it I ask delegates to synopsise the important aspects in about six to eight minutes, following which Deputies and Senators may wish to ask questions.

Ms Joanna McMinn

We welcome this opportunity to make a presentation to the joint committee. We have provided it with additional material this morning which we understand will form part of the record. Is that correct?

Chairman

If the council wishes this material to be its official——

Ms McMinn

We would like it to be seen as our official submission.

Chairman

All of the submissions received will be included. Rather than read out eight or ten pages, perhaps Ms McMinn will outline the areas she would like to emphasise and give your views to the joint committee.

Ms McMinn

I will start by giving a definition of "family" which, as we all know, has been defined traditionally through judicial interpretation to mean the family based on marriage. We believe the constitutional definition of the family based on marriage has had a strong influence on legislative and institutional arrangements in Ireland. As a result, other family forms are not valued equally in legislation and Government policy. We would like to draw attention to the impact of this. We believe it has had specific negative implications for lone parents who are consistently most at risk of poverty in comparison to other groups in society. We wish to emphasise that there has been a rise of almost 50% in the number of lone parents with children under 15 years living in poverty. Some 24% of lone parents are at risk of poverty.

We advocate the use of a much broader definition of the family such as that frequently cited as the definition of the United Nations which I am sure the joint committee has heard many times. We would like to emphasise that this is in line with the position adopted by the Commission on the Family which reported in May 1998 and concluded that Article 41 should be revised to give constitutional recognition to all family units, including families not based on marriage. The matter had been raised also by the Constitution review group in 1996.

In terms of family diversity, Ireland has been found to be in breach of its international obligations through the existing interpretation of the family based on marriage. The case of Keegan v. Ireland 1994, is often cited in that regard.

According to the Combat Poverty Agency's review of the 2002 census, the range of family structures now includes 154,000 lone parent families, 77,600 cohabiting couples and 1,300 same sex cohabiting couples, an increase from a figure of 150 in 1996. The agency also identified that the fastest growing categories were families without children. The NWCI recommends that in order to comply with international human rights requirements and reflect the reality of family diversity in the Constitution, the State must have due regard to these rights and concerns and provide protection through the Constitution for all types of family structures.

On the question of whether gay couples should be allowed to marry, the State promises in Article 41.3.1° of the Constitution "to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." Marriage is recognised in the Constitution article as a partnership between a man and a woman. However, as families only acquire constitutional protection in Ireland by virtue of being married and as the definition of marriage used by the State expressly denies access to this institution to same sex couples, it follows that same sex and unmarried couples and their children are not protected under the Constitution. The position of the NWCI is that as long as marriage remains the determinant for State protection through the Constitution, this must be made available to all people, including same sex couples, residing in the State.

Under existing Irish law, same sex couples and non-married heterosexual couples do not have the same rights as married couples. This has the potential for discrimination in respect of, for example, property rights, inheritance rights and the rights of partners in emergency situations. The NWCI feels that same sex couples, rather than being obliged to rely on legislative protection, need protection under the Constitution. This argument is made because although the Government has introduced legislation in recent years which has offered recognition to non-marital families — for example, the Domestic Violence Act 1996, the Parental Leave Act 1998, the Residential Tenancies Act 2004 and the Social Welfare (Miscellaneous Provisions) Act 2004 — much of it does not extend to same sex couples. The Residential Tenancies Act 2004 and the Social Welfare (Miscellaneous Provisions) Act 2004 expressly exclude such couples.

If the Constitution is amended to protect families that are not based on marriage and this includes same sex couples and their children, the NWCI would be open to supporting a civil union structure for same sex couples. Such civil unions would contain the equivalent rights associated with marriage, including that to adopt children. The NWCI bases its decision to support civil unions on recent developments in Northern Ireland where the Civil Partnership Act 2004 grants equal rights, including adoption, to same sex couples. Under the Belfast Agreement, the Government has already made a commitment to guarantee equivalence of rights protection on both parts of the island and would presumably implement legislation to respond accordingly to the UK Civil Partnership Act.

As a body representative of women, the NWCI wishes to add that the issue of adoption has a high priority because many of its members affected by these proposed changes have children. The NWCI also supports the inclusion of the Convention on the Rights of the Child in order to provide specific protection for children in vulnerable groups — particularly those of same sex couples and unmarried parents — since many children currently do not receive constitutional protection due to the marital status of their parents.

On the Constitution's reference to a woman's life within the home, the NWCI believes that this is discriminatory and that the Constitution should not ascribe gendered roles to either women or men. The patriarchal assignment of women to perform certain roles within family and society has not been to the advantage of women and has undermined the progression of equality for women. The Government has signed up to relevant commitments under the Convention on the Elimination of Discrimination against Women and under the ten critical areas of the Beijing Platform for Action. It is, therefore, the view of the NWCI that this reference should be removed.

The NWCI believes that care work should not be gender prescribed. By assuming that women can be valued only through their contributions in the home, the Constitution has effectively discriminated against those who wish to work outside the home. This has reinforced discrimination against women. For example, due to the marriage bar, many women who are now reaching pension age are not entitled to State contributory pensions. The Constitution review group has already offered an alternative wording for article 41.2 which the NWCI would support, namely:

The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

The NWCI supports the concept that the Constitution should name and provide protection to all types of family unit within the State. While it is acknowledged that the Constitution is an evolving document, it is also clear that existing prescribed definitions of the family mean that many groups receive little or no protection. The impact of this lack of protection can be seen in the development and wording of recent legislation where there has been explicit discrimination against certain groups. The NWCI believes this is contrary to the ethos of the Constitution, if not the actual wording.

Although this submission has not specifically addressed the inclusion of the Convention of the Rights of the Child into the Constitution, we would support any moves in that direction. The NWCI believes the Constitution should offer protection to all children regardless of their own home family structure. The reference to "an teaghlach" in its Irish text implies a wider definition of household than a nuclear family unit based solely on marriage.

Deputy McCormack

I thank the council for its submission. In it, the council poses the question of whether gay couples should be allowed to marry but does not provide an answer. I do not know whether the question is posed for the council or for the committee. The council does not give its views on the matter. The submission goes on to state that the Constitution should recognise gay and lesbian partnerships as family units but says nothing about marriage. What is the council's answer to the question it poses in the submission?

Chairman

The Deputy is asking if the council is proposing that gay and lesbian marriages should be permitted.

Deputy Morgan

I thank the National Women's Council of Ireland for making a submission and a succinct presentation. A significant number of the people and groups that have made presentations to the committee have said that the Constitution should recognise relationships but that the family based on the institution of marriage should remain the cornerstone of the Constitution. What is the council's view on that, in the context of broader equality issues? Does it support that view?

Let us imagine the situation if the Taoiseach decided to dispense with the All-Party Oireachtas Committee on the Constitution and handed the matter over to the National Women's Council of Ireland. How would it deal with Articles 40.3, 41 and 42? Would it be inclined to replace them completely with something more in line with the UN and ECHR positions on this issue or would it — I am not clear about the meaning of Ms Hainsworth's comments — seek to amend or tweak them in some way? Can they be tweaked to bring them into line with what is required of a modern constitution as opposed to what we have, namely, a constitution drawn up at another time for virtually another people?

Ms Hainsworth

Chairman

That was the one in which the Deputy imagined the committee might be disbanded.

Deputy Morgan

I was not advocating that it should be disbanded.

Deputy P. Power

Is it being disbanded on-line at present?

Deputy Morgan

Let us say that it is being debated within the committee. Deputy Peter Power is teasing me.

Chairman

Did Ms McMinn want to clarify something?

Ms McMinn

Is the Deputy referring to amending the Constitution in light of international human rights standards?

Deputy Morgan

Which would be the best option? Would amending the current articles be the best option or would it be better to delete these and replace them with something more in keeping? Which would be council's preference? Perhaps Ms McMinn has not considered that option and, if not, it is an unfair question. Therefore, I will not push it.

Ms McMinn

Ms O’Connor

It is important for us that there is a framework within the Constitution to which legislation can then be linked. It is not just about care work in the home, it is about care work generally throughout society. The latter, as we know, is not being supported.

Deputy P. Power

My questions have been answered by the previous exchange. However, I would like to tease the matter out to a conclusion. We are trying to ascertain, through representative groups, what the broad feeling throughout the country would be and what the reaction would be if we introduced certain constitutional change.

If we were to propose that the Constitution be amended to allow for same sex marriages, would the council agree with the view of many people who have come before us that such an amendment — whatever view the Women's Council might hold on such relationships — would significantly damage the institution of marriage in the eyes of married people? Would the Women's Council accept that hundreds of thousands of husbands and wives who derive enormous comfort, protection and stability from the institution of marriage, would feel the proposed change would be a terrible undermining of their view of their marital status? Would Ms Hainsworth accept that?

Ms Hainsworth

No. If one follows that argument logically, it would be like saying that if one had a Catholic marriage, that anybody who married within a different religion, for example, the Church of Ireland marriage or Islam, would be undermining the institution of marriage. Marriage is broader than just the religious institution one chooses. Therefore, how can gay marriage — which operates on the same principle of two people committing to each other and declaring a relationship that would, in theory, last for life — undermine the principles of what marriage is about? Many of our members would support that view.

It would be possible to alter the definition of the family under the Constitution. Recommendations could then be proposed for a civil union structure, which would enable equal rights, including rights of adoption. As many groups have highlighted, there is considerable feeling that a constitutional amendment around a definition of the family would be supported by the vast majority of people.

Senator Cox

In response to Deputy Peter Power's question about reflecting the views of the council's members, has the NWCI carried out research among its membership into their views on the definition of marriage? I am not talking about the religious definition, but about the way in which most married people whom I know would define their marriage as a relationship between two heterosexual people. They would feel that the extension of marriage to same-sex couples would take away from their definition of marriage and therefore undermine its stability. That is what I have picked up from constituents. Has the NWCI's research gone beyond its executive committee to its membership? What level of consultation has been undertaken on that question?

Ms Hainsworth

The process of consultation is continuing. We have an annual general meeting coming up. Some of our affiliates are representatives of lesbian and same-sex organisations, and the issue has come up in their discussions. Other groups will have made their own positions clear. Our submission describes the logical position working from our own equality framework, to which all members have signed up. Although individuals might have their own personal feelings about marriage, when they sign up to the National Women's Council it is difficult for them to support our actively encouraging discrimination against some of our affiliates. I do not think any of our affiliates would want that to be the position.

In putting together the arguments in our submission, we are confident that our position is the position supported by all our affiliates. We are continuing our work in this area, and we will be continuing the discussion. It is an evolving issue, like all issues, and its discussion is becoming prevalent in society. Various representative organisations are now discussing the subject with their affiliates or membership.

Chairman

I thank the delegates. Unfortunately, we are running out of time. We appreciate the representatives of the NWCI coming before us and giving us their submission, which we will be taking into consideration. If any change is to be made, it is up to the citizens of Ireland to vote on it. Irrespective of what we recommend or what the NWCI says, we do not have the final say; the people do. Some of these matters could be dealt with by way of civil legislation, as Senator Norris indicated. Perhaps that is why the wise Senator Norris decided not to seek recognition of gay marriage, but rather decided to seek recognition of same sex or cohabiting couples, primarily for the purposes of taxation, equity, stamp duty, inheritance tax and so on.

Sitting suspended at 11.15 a.m. and resumed at 11.17 a.m.

Chairman

I welcome the Council for the Status of the Family. Its representatives are Mr. Louis Power, Mrs. Lelia O'Flaherty, Mrs. Eilis Bennett and Mr. David Bennett. I remind our visitors that members of this committee have absolute privilege, but this same privilege does not apply to witnesses appearing before a committee.

The committee has received and looked at the council's submission. Rather than get witnesses to rehash the whole thing, our normal protocol is for them to outline to us, in six to eight minutes, the important aspects of their submission. We then allow the Senators and Deputies to pose questions. I now invite the delegation to proceed and give us the bones or synopsis of the submission.

Mr. Louis Power

We made a detailed submission. I have sent to the committee a copy of the summarised submission which I will read.

We base our definition of "family" on Supreme Court and other judgments. I did not mention in the submission one I came across in the constitutional report by Mr. Justice Walsh in the Supreme Court in the case of the State v. An Bord Uchtála. He said it was quite clear that the family referred to in Article 41 is the family which is founded on the institution of marriage. That is the definition we follow. I also supplied definitions from other sources, including the Cambridge Encyclopaedia. It is simply one line which states that the family is the group formed by a core resident husband, wife and children, which sociologists term the “nuclear family”. We have also supplied definitions from the charter of the rights of the family and from our charter, the charter of the Council for the Status of the Family.

We went on to develop the theme of forms of family. Despite negative comments from other sources, we believe the nuclear family is alive and well. It must be based on marriage between a man and a woman to have validity and all the historical evidence supports this from secular as well as religious cultures. It is based on nature as well. It is the natural way in which society operates.

Much research has been done on children and how they fare under various parenting forms. There seems to be no question but that children do best with married, biological parents. Other forms of family groupings exist and we believe they also need support by the State, especially where children are concerned. However, the model of the family based on marriage deserves the fullest encouragement and backing of the State and other forms of family, while they deserve all the support which can be given to them, should not be put on a par with the family based on marriage between a man and a woman. We regard gay marriage as a devaluation of the institution of marriage and there is much anecdotal evidence to show instability of same sex relationships, especially between men. We summarised this section by stating that families based on marriage are, and always have been, the bedrock of every civilised society.

On the topic of children, we believe the primary rights of families are those of the parents, that is, the father and the mother. I did not include in the original submission something on which I have done some research and which I have circulated, that is, the written constitutions of some modern democracies, including Australia and Norway. I showed my research to a German and he asked me why I did not include Germany. I told him I did not know it had a written constitution but he told me there had been one since 1949, so it is 12 years younger than our Constitution. There have been 46 amendments to the German constitution. The number of amendments to our Constitution is relatively small compared with other countries. In the United States, over 7,000 amendments have been proposed but only 33 have been passed and 27 have been ratified. Switzerland is renowned for its referenda but fewer than half have been passed. The normal way to deal with a constitution whenever changes are proposed is to put each article to the people.

No constitutional recognition should be accorded to forms of family other than families based on marriage between a man and a woman. The Council for the Status of the Family considers that the Constitution should, at the very least, be aspirational in this regard as, indeed, is Article 41. We are very much against any change to Article 41 and we would vigorously resist any attempt to prepare and present a new constitutional document or selected parts thereof. If at some stage a new or revised Constitution was written or prepared, we would strongly resist it being presented as an entity to the people in a referendum. We believe every article should be agreed separately. That has been the position until now and it is the way we would want it to continue. We do not want any package prepared and presented to be accepted or rejected by the people. Is it all right if some of my members comment further?

Chairman

Mr. Power has made the council's position clear. Unfortunately, our time is limited. I will call members who wish to ask questions and other members of the council may comment then.

Deputy McCormack

I welcome the submission and thank the council for coming in. Mr. Power stated clearly the council's definition of the family, that is, that approved by the Supreme Court. He said he would accept legal rights for other types of units or partnerships, but that is not relevant to our committee or to constitutional change. Does the council believe that people should aspire to live according to the Constitution rather than change the Constitution to cater for changes in attitudes and the way people live?

Mrs. Eilis Bennett

Deputy O’Sullivan

My question was not particularly about adoption. I was referring to the general civil rights but I thank Mrs. O'Flaherty for her answer.

Chairman

Deputy Morgan

It is my fault for not being clear enough. One of the reasons Mrs. Bennett states for being less than supportive of equal recognition of all relationships under the Constitution is same sex couples cannot procreate. Will she square that with the position of heterosexual couples who, for whatever reason, cannot or do not wish to procreate? Should their rights under the Constitution be diminished for that reason?

Mrs. Bennett

Procreation occurs between a man and a woman. That is the natural outcome of the union of a man and a woman. Whether their wish is to have children or whether for a medical or biological reason they cannot have children, they are still open to the procreation of children and that is the important thing to remember. They are open to the transmission of life.

Mrs. O’Flaherty

The Chairman mentioned on RTE radio last week that the committee had received approximately 8,000 submissions, 70% of which were in favour of no change to the definition of marriage and the family and of the place of the mother-wife-woman working in the home. In the light of a European constitution, if adopted, superseding Ireland's Constitution, what then is the purpose of inviting submissions that may not be recognised?

I am aware the committee has met other groups. However, if the majority of people do not favour changing the Constitution, to what extent will the committee take on board their views?

Chairman

The simple answer is that the committee has no agenda. It is involved in a review of the Constitution which has been ongoing for approximately ten years. Whatever change is required to the current Constitution, Bunreacht na hÉireann, will be decided by the people of Ireland and not the committee. The committee is considering all angles.

One of the submissions was a single page written on both sides and signed by 8,000 people. The committee has received the council's submission and has not asked how many members are involved. It is hearing oral submissions from groups from all walks of life and has been open and transparent in that regard. One must listen to the voice of the minority and of the majority. We will take on board the views expressed by all groups.

Mrs. O’Flaherty

Does the figure of 8,000 incorporate submissions such as the one from the Council for the Status of the Family and from——

Chairman

Yes.

Mrs. O’Flaherty

The sum total of the submissions received is 8,000?

Chairman

Yes.

Senator Finucane

I wish to make an important point. The Chairman may have referred to 70% of the 8,000 submissions but he also quite correctly stated that it is the people who will decide if there is to be a change to the Constitution. The figure of 70% of relates to the 8,000 submissions received and not to 70% of the people of Ireland.

Senator Dardis

There is another important point. Mrs. O'Flaherty's point about the Irish Constitution being subordinate is correct but that will only happen in areas of competence and this is not such an area.

Chairman

There are a number of misconceptions about the EU constitution, if adopted, overriding the Irish Constitution. That is not correct. The committee is not addressing the issue of an EU constitution, rather it is undertaking a review of family rights. Approximately 98% of the submissions received by the committee established to consider the issue of abortion were pro-life, yet the people were divided when the issue was put to them. Regardless of the number of submissions received, it is the people who will decide whether there should be a change to the Constitution.

There have been 23 amendments to the Irish Constitution since 1937. As can be seen from the referendum on the Nice treaty, the people are slow to make changes. It is the Government, not the committee, that will decide if there is to be a referendum on the issue. It will then put the wording to the people to reject or accept. The committee is trying to obtain a balanced view on the matter and may well come to the conclusion that no change is necessary. The decision in that regard will not be taken for some time as there are many other groups waiting to discuss the issue with the committee.

Mr. Power

We believe the Constitution should be aspirational and not subject to whims that may come and go. We believe the document is aspirational and that is the reason we support it.

Sitting suspended at noon and resumed at 12.05 p.m.

Chairman

The next group is the council on social responsibility of the Methodist Church of Ireland, represented by Mr. Robert Cochran and Reverend Rosemary Lindsay. They are both very welcome. I advise our visitors that members of this committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. We have already received a written submission. Perhaps the visitors will outline briefly the highlights of the submission and we will follow this with questions from committee members.

Mr. Robert Cochran

I thank the Chairman. I will make these opening remarks on behalf of both of us and when we get to the discussion, we will deal with the questions according to whichever of us is more appropriate.

I will begin by outlining briefly the context in which we operate within the Methodist Church. As the smallest of the four main churches, it is possibly not as well known as the larger churches. We are a committee appointed by our conference which is the sole authority for our church and which meets annually in June. Only formal statements of that conference are the official policy of the Methodist Church. There are in practice many unofficial working papers, discussions etc., many of which emanate from our committee.

We are a body charged by our conference to analyse social, economic, political and constitutional matters, to advise and suggest issues to our church and to represent it to the outside world on such matters in fora such as this. We have a broad remit. Many of the larger churches have several committees which cover the same ground as us. We cover a lot in one committee. We are all volunteers and are involved in other activities, whether clerical or lay. We have no dedicated staff on our committee.

We as a church seek to be democratic in what we do. Our conference has equal numbers of ministerial and lay members and we try to ensure that balance and also maintain a gender, age and ethnicity balance on all our committees as far as possible. The council deals with the whole of Ireland, but because of the difference in the two jurisdictions, we work in two groups for North and South. The groups have co-chairmen and co-secretaries. My colleague, Reverend Lindsay, is co-chair of the Council as a whole, and the Chair of the southern part and I am co-secretary for the Council as a whole and secretary of the southern part. This may help explain where we are coming from in this. As a church we have always been concerned about and active in social issues, which is one of the distinguishing marks of the Methodist Church. We believe this is important and it influences our thinking on these matters.

In our submission we make a number of general points which underpin everything we say in it. We believe strongly that the Constitution should not address detailed points of social issues. It should deal with social issues at a general level and with broad parameters of social policy. We believe many of the difficulties which have arisen in recent years have been because that distinction has not been made and the detailed points of social policy have been embedded in the text of the Constitution. That is not good. For that reason we argue that certain matters contained in the Constitution in the area of family law should be removed. Irrespective of the merits or demerits of those points, the Constitution is not the right place for them.

We also believe that the Constitution should aim to address the common good of all citizens. It should not aim to reflect either officially or de facto a particular viewpoint of any church, ours or any other. When particular groups are dominant numerically and perhaps culturally in society, there is a risk that might creep in, perhaps unintentionally. When the Constitution was enacted originally in 1937, it was generally accepted, unashamedly, that it intended to reflect the current dominant strand of Catholic social thinking at the time. Catholic social thinking has moved on considerably since 1937, as has the thinking of the other churches. There is always the risk in dealing with a particular point in time that the ethos of one particular group is reflected over that of society as a whole. This is particularly important at present given that Ireland has become so much more multicultural in nature, both in social and religious terms, with a wide variety of faiths and beliefs represented.

There is a particular difficulty in the Constitution regarding marriage and the family. The legal requirements of the State in respect of marriage and the religious beliefs and views regarding marriage, which are quite different things in theory, become mixed up, to put it bluntly, and this is the cause of much of the confusion. There is a strong argument for trying to untangle those to allow the churches deal with the religious dimensions and the State deal with the secular and civil dimensions of marriage.

Given this backdrop, the Methodist Church suggests in its submission that the way to proceed is to take out of the Constitution the definition of "family" as a unit based on marriage but to leave in a general support for the family as an important social unit in society. This is an important role both in itself and in the care of dependants, whether children or elderly people or whoever. It should be left to legislation to deal with the regulation of marriage, the situations which are deemed to be marriage and those which are not. This will solve many of the difficulties which existed in this area.

The Methodist Church suggests the reference to the family as having rights antecedent and superior to positive law should not be included in the Constitution because this leads to some of the difficulties to which I have referred. The reference to the family as being exclusively based on marriage should be removed. The reference to the life of women within the home should be removed because it is an out-of-date concept. It is not appropriate in today's world and would not be appropriate in a situation where we believe in the equitable and equal treatment of men and women. This change will indirectly allow the other problems such as the rights of the child and the rights of natural fathers and mothers to be dealt with in a simple way and would allow for the resolution as a constitutional issue of the associated difficulties. Obviously issues will require to be decided by the Oireachtas through appropriate legislation.

Deputy Andrews

I welcome the delegation. The church's definition of the family was outlined in the submission which states:

A definition, if so required, might thus include something to the effect that "the circumstances which are deemed to constitute a family may be determined in accordance with law but shall include married couples, long-term relationships between two adults for mutual care and support, and-or one or more adults in a long-term relationship to provide care and support to dependants, especially children".

I tend to be in agreement with that point of view. Many delegations have suggested a need to define and enumerate explicitly children's rights in the Constitution. I invite the delegation to expand on children and their rights and the Methodist Church's views on this issue. I was going to ask for its opinion on gay marriage but the Chairman has already asked that question. Is the church happy that such a definition of marriage should be in the Constitution to provide the basis for legislative change?

Mr. Cochran

Not quite. In our view it is better if there is no need for a definition of the family in the Constitution. If it is thought necessary for other reasons to have a constitutional definition, I would wish a very broad definition with these parameters. I would prefer not to have a definition. It would be better to define in legislation the terms of what is defined as "the family", as long as the social concept of the family is supported by the Constitution. The definition in legislation would relate to the terms of the constitutional provisions. I acknowledge that, in practice, it may be deemed necessary to include some definition in the Constitution. Such issues need to be addressed.

As I am not a constitutional lawyer, I am unaware of many legal nuances in this regard. The family is an entity that provides primary care for children and other dependants. It is a unit for mutual support between adults. Regardless of legal considerations, it is important to consider such issues when defining the family. Deputy Andrews raised a specific point about the protection of children. If the family were defined in the Constitution in the manner I have suggested, there would be a recognition that the family is the primary caring unit for children in normal circumstances. Issues relating to the protection of children would flow from that. Some of the difficulties which have arisen have related to the manner in which the family has been defined as a unit that is based on marriage. It could be argued that the current provisions, by assigning a particular role to the mother, distinguish between the roles of the mother and the father. Such a distinction is not in line with modern thinking. The Council on Social Responsibility of the Methodist Church in Ireland does not consider it necessary to make a specific provision for children in the Constitution. I do not wish to detract from the need to ensure that children are protected fully.

Deputy O’Sullivan

I welcome the delegation. It is helpful that the council has identified the roles of the churches, the State and the Constitution with such clarity. I invite the council to comment on the issue, which has been raised by many delegations, of whether the Constitution should be an aspirational document or a working human rights document. The council has proposed the deletion of Article 41.2 of the Constitution, which relates to a woman's life within the home. Many other delegations have argued that Article 41.2 should be amended rather than deleted. It has been suggested that the Constitution should not refer to either sex specifically and that it should protect those who have a caring role. It is claimed that such amendments would ensure that a person who is looking after a young child, an elderly person or a disabled person at home has some constitutional protection. I presume, based on what its representatives have said, the council would prefer such protections to be provided in law rather than in the Constitution. I would be interested to hear the views of the delegation.

Mr. Cochran

Chairman

That is more a legal matter. I advise the Deputy to consult a solicitor. As there is a division in the Dáil and we are running out of time, I thank the council's representatives for a clear and succinct submission. Mr. Cochran and Reverend Lindsay have been very frank with us. After the suspension, we will resume in committee room No. 1.

Sitting suspended at 12.33 p.m. and resumed at 2 p.m.

Chairman

The next item on the agenda is the presentation by Parental Equality which is represented by Mr. Liam Ó Gogáin, Mr. Paul Coleman, Mr. Dominic McKevitt who returns for a second time, and Mr. Jason Soraghan. I welcome the delegation. Before we begin, I remind our visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Further, members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

We have received a copy of Parental Equality's detailed and interesting submission. Due to time constraints, I ask the delegation to present a synopsis of its submission in five to six minutes. We do not want the submission to be read out as we already have it on record. There is no point in reading the same thing again as it will only delay matters. The group is fortunate in that it is getting a second bite of the cherry because of the mix-up earlier in the week. I invite Mr. Ó Gogáin to synopsise the important aspects of his presentation in five or six minutes and then we will allow members to ask questions.

Mr. Liam Ó Gogáin

We presented our submission in an audio format last week and since then we have transcribed it. Copies have been circulated to members. As I pointed out last week, in responding to the committee's invitation we focused on the broader scope of what we consider to be the purpose of the Constitution. In our view, the value of the Constitution is to create what we call a sustainable society. Transgeneration is necessary for a sustainable society. Effectively, that means the parenting of children for future generations. It is timely that the committee should focus on the issue of parenting and future generations of children.

We looked at the committee's briefing material in regard to proposed changes to the Constitution. I will identify four areas where we would like to either challenge or strengthen the views of the committee. The first relates to the second paragraph which is in bold text on page 6 of our presentation. Parental Equality submits that Article 40.1, which refers to all citizens being treated as equal, should be further modified to ensure the State has no right to discriminate between men and women in terms of their role as parents and that this should be quite explicit in the wording of the document.

Parental Equality believes that where a male and a female have consensual sex which results in a pregnancy, both the male and female concerned should be held equally accountable. Some aspects of society may adjudicate on the behaviour that led to the pregnancy or question whether pregnancies outside marriage are to be supported and promoted or if there should be an attempt to minimise the number of such births and to ensure that pregnancies occur within a legally committed framework. This rationale therefore leads us to call for the provision of automatic guardianship to be granted to fathers and mothers whether they are unmarried or married. We are mindful of the thinking of the committee which appears to suggest that it is the intention to provide specific constitutional rights to unmarried mothers and children and to expect that the father's relationship with his children will be protected through the child's right. Effectively, the only element of a family system then without rights would be the father. The only people who have responsibilities and no rights are slaves. Such a scenario does not lend itself to a democracy.

Regarding Article 42.1, we seek that the wording of the article should be inclusive and explicitly require the State to invoke policies and legislation which would incentivise the sharing of parental care between mothers and fathers and to invoke legislation on policies which are geared to achieving the aspiration of a shared parenting culture within the richness of an extended family. We consider that in practice, the interpretation of the Constitution — which to a large degree is quite balanced — in our courts over the years has developed a discriminatory element whereby fathers are seen as disposable and of secondary importance in the rearing of their children.

All of these changes to the Constitution are meaningless unless a separate change is brought about to Article 34 to which we referred in page 8 of our submission. While there has been a recent relaxation in regard to the in camera rule, which was supposed to have been implemented by SI 544 at the end of March, I had a report from someone yesterday who told of a judge who claimed he was unaware of such modifications to the law. If the law has been changed then judges are not being informed of it.

A good starting position in regard to Article 34 is that it should be an absolute requirement to write into the Constitution that the contents, evidence and decisions of all court hearings are accurately and properly recorded, that all judgments are made public, and that the rationale for making such judgments must be recorded and stated on the public record and that all such judgments are traceable back to original evidence given in courts.

I extracted the first couple of points I made from a longer document. We are an organisation that has supported and promoted the concept of shared parenting in all relationships, whether the relationships are happily married or separated ones. Fundamentally, in terms of implementing these through the courts, this can only be done in a transparent and accountable court system. I invite questions from committee members.

Chairman

I thank the organisation for its detailed submission. Does Mr. Ó Gogáin consider that as it currently stands, the Constitution militates against men, especially single fathers? We have heard complaints that women are given an elevated position in the Constitution and that men are in some way neglected. What are Mr. Ó Gogáin's feelings in that regard? Is the Constitution unfriendly to the male of the species?

Mr. Ó Gogáin

The most important thing is that there is a differentiation between the roles of men and women. It is not my position to say that the role of women is elevated because in certain areas women feel they are discriminated against while they experience positive discrimination in other areas. Families are systems which are part of communities and communities create civilisations. This has been tried and tested for millennia. Our challenge is that in terms of identifying new family units, what we need to do from a transgenerational point of view is to ensure that all members of that system are in balance. Our point is that if any element of that system is dysfunctional, all elements of it are dysfunctional.

Some 40% of births in County Louth and 54.5% in Limerick city in 2003 were outside of marriage. We are quickly approaching a situation where one out of every two children born in the State will have no protected relationship with its father. We will have the possibility that fathers will have imposed responsibilities without rights. As I said, people who have responsibilities without rights are slaves. It is not safe for society to have many slaves because inevitably they will revolt.

Our experience in Parental Equality is that where a culture of shared parenting has been proactively set in place, fathers, mothers, children, extended families and the Exchequer fundamentally benefit as a result of it. It is not that the Constitution itself is discriminatory, in practice, the interpretation of the courts has left us with a situation where fathers are discriminated against in court. Change is absolutely necessary in Article 42.1 where the sub-clause in relation to social function suggest that if the State so decides, it is perfectly legal for any group of people to be discriminated against under the ethos of "social function". We have predicted that in a cyborg generation in the not too distant future, if we find ourselves with cyborg products who are more socially efficient than we are, then our Constitution would allow such people to have positive discrimination over human beings. If it is inserted in the Constitution that the State is not allowed to discriminate between mothers and fathers in terms of social function, certainly in terms of parenting, the issue of rebalancing the injustice that has arisen would integrate itself into our society in time. However, that can only be done where we have transparent justice which is not the case at present in the in camera process.

Deputy P. Power

That answered many of my questions on the equality provisions. Parental Equality is calling specifically for an amendment to Article 40.1 to ensure the State will have no right to discriminate between men and women regarding their roles as parents of their children. I was going to state there really is an equality provision in Article 40. However, Mr. Ó Gogáin has made the case that the courts have the right to discriminate or have regard to differences in terms of social capacity and that the article requires amendment as a consequence. His point is very well made.

Mr. Ó Gógáin

The courts are an organ of the State. The State, through its legislation, should not have the right to discriminate in any way between men and women in terms of their roles as parents of their children. The Constitution must be considered according to the paradigm within which it was framed in 1937, at which time we had an expectation of a breadwinning father and a home-making mother. Fundamentally, this model of society no longer exists. We have experienced such rapid change that it is likely the present environment, with which we are trying to deal, will itself evolve very quickly.

Recently the retired Chief Justice, Mr. Justice Keane, and Professor Ed. Walsh of Limerick have highlighted research that demonstrates the statistical reality that children raised in single-parent homes fare worse on a range of parameters than those raised by both natural parents. If we want to change, we must include a positive bent in our culture. It is not enough to state we will treat everybody equally. Owing to the two or three generations of discrimination against fathers and because of the number of unmarried fathers, we must proactively include a suitable provision in our Constitution. The rebalancing of legislation will have to be taken into account.

Deputy P. Power

Will Mr. Ó Gógáin cite an example of a specific case, not necessarily a legal case, in which the qualifying provision regarding the social function in Article 40 has been used to discriminate against fathers, thus implying that it requires amendment?

Mr. Ó Gógáin

Let us consider the concept of children's allowance. Everybody knows that children's allowance represents a no-go area if a Government wants to remove it or modify it. Children's allowance in this State is paid primarily to the mother of the children. Where the parents live together, the legal right in this regard is vested with the mother. She can sign it over to the father if she so wishes.

Where parents separate and their children reside half the time with each parent, our State, in its wisdom, has decided that those children can only be considered as living in one house for the purpose of paying social welfare benefits. I have lived in such circumstances with my children for the past 14 years. They have lived totally with me for seven of those years, yet children's allowance is only paid to the mother. For seven years, social welfare benefits were not paid to these children. The system does not work in their interest.

A hierarchy has been established by the Department of Social and Family Affairs for the purpose of making payments. If there are two residences, the State will only make a payment to one based on the hierarchy of mother, stepmother, father and stepfather, respectively. In the case of a widower who remarries, the non-biological stepmother of the children takes precedence over the father in terms of social welfare payments.

This represents a crystallisation of the injustice that exists. We are not talking about a sum of money that will make or break one but about a tenet in law that states the father is a secondary and unimportant parent. More importantly, the money was never intended as child benefit. If it was, my children would have been given it.

The Deputy asked for an example. The Dennehy case has been cited in this regard. For the past 15 years, parliamentary questions have been asked on this subject and nobody has ever dealt with it. The only way to do so is to make a clear statement in the Constitution that this type of behaviour is unconstitutional. It is giving the wrong message to young men who are having children.

Deputy P. Power

The point is very well made.

Chairman

I thank the delegation for its submission. Over the course of two days, it has made its point very succinctly and clearly. It has presented the committee with a lot of material, which it will obviously take on board in its deliberations.

Mr. Ó Gógáin

A 25 year old single father, Mr. Jason Soraghan, is part of our delegation. When we came here last week he asked me to whom this House belongs? I replied, "Young man, as a taxpayer, this is your House. If men of your age do not take over this society, we will all be lost." I ask this young single father to make a comment.

Mr. Jason Soraghan

I am an unmarried father with a two year old son. Three years ago, I had consensual sex with a woman who became pregnant. Soon after the pregnancy I was cast aside and told I had no rights. I am no more at fault for the unplanned pregnancy than she is. I received no help during this crisis pregnancy simply because I am a man.

Mr. Dominic McKevitt

I am in the process of securing a judicial separation and I am scared of my life. I have been married for 20 years and have three children. Everyone knows that the deck is stacked against me, as a man, and that she will get all the privileges because she is a woman. That is why there must be change. We are human beings as well but the courts do not recognise us as human. The deck is stacked against men and that is totally wrong.

Chairman

Other groups have made similar points. The committee is charged with discovering if it can make recommendations that will improve the situation. It is a complex area. The witnesses have told one side of the story but there are other issues such as the rights of the child and family relationships outside of marriage. It will take much deliberation. I thank the group for its submission. We will reflect on it and, when we report, we will try to encapsulate the problems that have been encountered.

Sitting suspended at 2.35 p.m. and resumed at 2.40 p.m.

Chairman

The next item on the agenda is the presentation by the National Youth Federation represented by Mr. Diarmuid Carney and Mr. Michael McLaughlin, both of whom are welcome. I remind the visitors that members of this committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee.

We have received the National Youth Federation's submission which is quite interesting and well put. Will the visitors please outline their main points on the position of the family in the Constitution in five or six minutes, after which the committee members may wish to ask questions?

Mr. Diarmuid Carney

I am chief executive of the National Youth Federation. The federation is the largest youth work organisation in the country. It is the federal body for 21 member youth services across the country, managing in excess of 500 youth groups, 40 youth information centres, and almost 100 youth projects. We believe we have a mandate to speak about the position of young people in our society.

Our organisation works to empower young people, encourage their active participation in society, and to value and support volunteerism to build a sustainable structure for youth work provision and innovative practice in collaboration with a range of agencies. We particularly value the opportunity to contribute to this discussion given that the legislative basis for any social policy covering families and children needs serious review to bring it into line with modern circumstances.

More than 30% of all births are to unmarried parents. This morning I met youth workers at a community in Blanchardstown who said that more than 44.4% of births in that community were to single parents. Increasingly both parents work outside the home. Through divorce and remarriage people often have two families. There is, thankfully, an increased tolerance for same-sex partners and their role in supporting families and children.

The constitutional review group reported in 1996, therefore, someone who was 12 years of age at that time would now be 22 years of age. In many respects the essence of the recommendations in that report is valid and in general we support them. We are keen to see a move towards progressing those into real and sustainable action.

Mr. Michael McLaughlin

I will highlight some of the points raised in our written submission. Many of our clients do not come from "traditional" families which gives rise to all sorts of practical, legal and constitutional issues.

We have set out some of the values we bring to this debate, particularly in regard to issues such as the rights of the child which doubtless has been raised many times before this committee. While it is popular in modern thinking and is widely canvassed there can be serious implications in taking that approach. We favour the approach but caution people about its fundamental implications. For example, in the United Kingdom, there has recently been much debate about issues such as medical treatment. What are the limits to the rights of a 14, 15 or 16 year old child in respect of the parents' rights?

The family unit predominates in the Constitution. What happens if, for example, a 14 year old member of that unit wants a certain type of medical procedure which the parent does not want? We meet and deal with many young people in crisis where the health board steps in and may have to take that person out of the family situation in extreme circumstances. While the law provides for that situation it creates difficulties.

The fundamental question posed by the Constitution review group was how to define the family. We are happy with the approach of the Constitution review group which conducted research and carried out wide consultation on this question. The work of this committee provides a welcome opportunity to involve the public and organisations in debating this question. While most lay people and religious groups believe the family based on marriage needs protection, there is a need for more than simple protection.

The Constitution review group did not want to abandon the marriage-based family but to enhance and add to it. The group argued the point well by referring to the work of the European Convention on Human Rights and the European Court of Human Rights which said that families need protection but that the definition of family is open to debate.

The review group identifies the courts as having a role in that definition which is fine but it is not necessarily an advantage to exclude the democratic process from that definition. It may be a role for legislators. In many areas the Constitution provides for principles and fundamental values but leaves it open to the Oireachtas to elaborate on them. For example, in many areas the wording "as shall be regulated by law" is used. Thus the definition of the family could be debated in the Oireachtas whose Members might decide on the hard case.

The courts have played a role in changing legislation since the 1960s but they are not necessarily the best place for a change such as this, given the evolving nature of society and the need in a democracy to allow people have a say in making these changes. These issues can be teased out but we support the constitutional review group's approach in enhancing the definition of the family based on marriage to include other groups. We would like to see that guiding principle included in this committee's final report.

On other questions raised by the Constitution review group, most people find the reference to a woman's life within the home outdated. As the review group reports, however, we must consider the motivation behind that reference. The role of a carer, of either gender, in the home is important and it is necessary to give that constitutional recognition, rather than assume that a woman remains at home to mind children. Our experience shows that it is important to recognise that fact.

The review group raised the issue of the rights of the natural mother. The roles of parents and children are in some ways separate and distinct. An express provision which has developed in the Constitution for the rights of natural mothers may be enhanced by a gender-neutral approach. As the committee has already heard from the Parental Equality group we do not need to add a great deal about the natural rights of fathers. That group has done good work and gave good examples to support its points today. We broadly favour that. There is a huge amount of work for us in a variety of social policy areas in dealing with the issue of absent fathers. As much as possible in terms of the law, the door should always be left open to the possibility that an absent father may not remain absent for the entirety of a child's life. While the review group does not want protection to be given to people who deliberately neglect children for part of their lives, there must be a balance, and recognition that at some time in the future fathers may come back into a child's life. That is not necessarily entirely unacceptable in certain situations.

The final question relates to the rights of the child under the UN convention. We are very much in favour of that approach in terms of bringing in express mention of the UN convention and Ireland's obligations under it. That is another issue that has received widespread support from people who work in our sector. I again draw attention to the fact that there is currently a debate on issues such anti-social behaviour and anti-social behaviour orders. We should incorporate the principles of the UN Convention on the Rights of the Child into the Constitution in order that decision makers will be aware that it is inviting challenge and inviting the use of those principles in such situations, and that this is not something that should be taken lightly, even thought it is something we very much favour.

Chairman

I thank the delegation. It has made its points clearly and succinctly.

On the rights of the woman in the home, is it correct that the federation would like gender neutral terms to be used that would apply to both sexes and be less offensive than the notion of the woman rearing a family and staying at home with no other purpose?

Mr. Michael McLaughlin

We are not legal experts. We do not necessarily have all the answers. We are responding very much to the views expressed by the Constitution review group and the questions asked by the committee following that. Another consideration is that on a practical level we do not necessarily want reams of extra paragraphs and qualifications in the Constitution. Simple wording that makes matters clearer is more effective in terms of law. The Constitution is a very succinct document but the case law and the interpretation runs to thousands of pages. The more succinct and clear the wording is the better. A term such as "carer" can cover both options in terms of the person in the home and the role of rearing children. It could be extended to include people with disabilities, elderly people and other vulnerable groups. If a succinct wording can be developed it would be very welcome. It may be, as was suggested earlier, that it would be a matter for law-makers, the courts and politicians, to elaborate. The Constitution should set out the basic principles.

Deputy J. Breen

I thank the delegation for its presentation. How strong is the federation's view that a person of 16 years of age should be entitled to vote under the Constitution? Does the federation also believe that one leg of the State operates against youth? For instance, the parent of a handicapped child who must take that child, say, from Ennis to Dublin for treatment travels free but the child who is under 16 years of age must pay the train fare. Is that not real discrimination against young people? How could that be rectified?

Mr. Carney

What we are talking about here is a mind shift in the entire society. If we look at the history of struggles for equality of particular groups, for example, the emancipation of women, it is not so very long ago that people would have said women should not have the vote for reasons that were articulated at the time. We feel very strongly, and it is our experience on a daily basis, that when young people are asked to actively engage in decision making that impacts on their lives, they behave very responsibly. I have seen situations where young people of 16 years of age have been involved in hiring and firing staff. At the early stages people were aghast and threw their hands up and said they were not responsible enough to take on this level of duty. Our experience was to the contrary. Because they valued the opportunities they were given they behaved perhaps more responsibly than many adults would have done.

We strongly believe that as a society we must change. We must stop undervaluing the contribution that young people can make to society. Very often as a society we use terms such as "young offenders", "disadvantaged" and so on. We categorise young people as problematic rather than as the enormous resource they are to society. We strongly believe that we need to develop suitable mechanisms. The development of Comhairle na nÓg and Dáil na nÓg are important examples of that. Unfortunately they are quite showy examples of young people engaging in decision making and influencing Government policy. That must permeate down to the lowest level, to the Friday night in the youth club, to the classroom.

We are examining research Trinity published recently on school councils and the need to enhance young people's engagement with society. The issues of anti-social behaviour in the classroom would probably best be addressed by giving young people increased responsibility in the classroom. Our experience is that where young people are given responsibility they meet it with vigour. We, therefore, believe quite strongly that people aged 16 years should be allowed to vote.

There are other mechanisms we could explore for younger children to engage in making decisions that impact on their lives. We work with teenagers. However, I have come across organisations working with much younger age groups and they have developed very innovative mechanisms for ensuring that younger children can influence decisions. For example, children in a nursery school can influence the type of programmes going on. What we are effectively about is developing responsible citizenship. The only way we can do that is to give young people the opportunity to exercise those skills. If we leave it until they are 18 years of age and treat them as some sort of sub-species until that stage, how can we possibly expect them to behave responsibly when they are eventually given responsibility?

In terms of the example of young people and parents travelling to the hospital, there are serious issues of discrimination in all aspects of society and we want to see them addressed where possible.

Senator Finucane

Mr. McLaughlin mentioned that he supported Parental Equality's views regarding the rights of fathers because at some stage the father may want to come into the child's life. Should the child not be considered in that situation? Quite often fathers take an à la carte approach and it is not recognised that the child is being brought up by the mother. I did not want to get into serious argument with Parental Equality on this because it was talking about different cohorts of people, people who had been in a married relationship and separated where the child is used to both parents or lone parents where the mother has entered into another relationship and has married. It is very hard to provide globally for the rights of fathers because in many cases there is biological responsibility with little subsequent involvement. I would like to hear the federation’s views on that.

Mr. McLaughlin

I accept the complexities of the situation. That is why we suggest it may not be desirable to have the most explicit wording in the Constitution. What we are doing in terms of our submissions here is reacting to what the Constitution review group said. In some of the deliberations they hinted at the idea of the irresponsible and negligent parent. That view must be balanced. In projects we have around the country, we are dealing with people who have become parents at the age of 14 and 15. With the best will in the world, many people of that age are not ready for that responsibility, but at a later stage they may be. Someone must mediate and make that decision.

Our previous experience of the Constitution in many social policy areas is that we should not write such matters explicitly into the Constitution. The review suggests that we broaden the definition of the family to give some recognition to the different types of situations. After that somebody else must make the hard judgments. It could be the courts in certain instances. However, as society changes, it is the people we elect that we expect to fill in the gaps. It may be on Committee Stage of some detailed legislation on the family or children that these matters will be teased out. There may be a role for family courts. We do not want too many courts, but some intermediary body to decide such things. We would like to establish the principle. All that we do is reflect the principles of the review group. The definition must be broadened, and we must recognise the different situations that obtain. The precise decision about who is an errant father and who may come back into someone's life would be better made on the ground, and we would at least facilitate that. At the moment, there is no proper provision for it.

Sitting suspended at 3.03 p.m. and resumed at 3.10 p.m.

Chairman

I welcome the Irish Foster Care Association. I understand that the association is represented by Mrs. Pat Whelan and Mrs. Anne Rennison. Before we begin, I remind our visitors that members of this committee have absolute privilege, but the same privilege does not apply to witnesses appearing before the Committee. The association has made a submission to us, which we have considered. Without further ado, perhaps the witnesses, without reading the entire document, will outline the important aspects of their submission and what they feel the committee might take from the issues they highlight.

Mrs. Anne Rennison

I am the national chairperson of the Irish Foster Care Association and I am accompanied by Mrs. Pat Whelan, our national spokesperson and co-ordinator. In addition to those roles, we are both foster carers. The information the committee hears today is from the ground as well as through our association.

The biggest difficulty we have is with children in long-term care, who live in legal limbo. For the want of better words, they belong to their birth family, but in many cases, although not always, there is no hope of their being rehabilitated back into it. It is the children's wish that they be adopted since, while they belong by birth and legally to one family, they have effectively lived with another for their entire lives. They want to belong because they do not have a sense of belonging. In many cases, adoption would appear to be the answer. They do not have a voice and are not really heard. Should we, a nation that places so much emphasis on the family, ignore an integral part of any family — its children — regardless of whether they are fostered? We ask that foster families be given status in the Constitution as ones to which those children desire to belong or where it is in their best interests to do so for all practical purposes.

Mrs. Pat Whelan

There are several practical difficulties for foster carers. It is very difficult to get a passport. One needs to know in January that one will go on holiday the following August, and one can never avail oneself of last-minute or cheap deals since one cannot get a passport. One is not entitled to sign on behalf of a child for a passport. It is very important that for school children — most foster children are under 18 — who come home with a little form to sign, it always states "parent or guardian". It never includes the words "foster carer". Children hate to be told that a social worker must be found to sign it since this immediately makes them out to be different. A significant number are being made to feel different simply because their families could not care for them, not through any fault of their own.

Another significant factor is that we are not empowered to sign any form permitting intrusive medical treatment. Only in an emergency can a doctor go ahead. However, if a child falls, for example, and needs a tetanus injection, we cannot sign the necessary form. If the treatment involves piercing of the skin, we do not have any status, apart from being the day-to-day carers of children.

Chairman

Are we talking about children in long-term foster care for two years or more?

Mrs. Whelan

Mrs. Rennison

The answer to the Deputy's second question is yes. He mentions a child fostered from the age of two years. It could easily be a five day old child from the maternity hospital through to adulthood. Many children will remain in their foster home but the State dispenses with its responsibility at the age of 18 years unless a child has special educational needs.

To answer the Deputy's first question, my view is that the Constitution needs to be changed. Birth parents may have no input other than giving birth, access rights may never be exercised and the child might not be welcomed in the home of the natural family. If the birth parents refuse consent, there will be a long and expensive battle. Their rights are still paramount. This should not be the case; rather, it should be the welfare and needs of the child which are paramount. As they come into direct conflict with the rights of the birth parents, a constitutional change is needed as matters stand.

Deputy P. Power

The association has been advised that is the case. If legislation was introduced tomorrow purporting to give foster parents the right to adopt where a child has been placed with them for a certain number of years, is the delegation stating such legislation would be unconstitutional?

Mrs. Rennison

It would be in conflict with the Constitution which gives inalienable rights to marital parents. There is a conflict that needs constitutional change. It is not necessarily in the interests of every child in long-term care to be adopted. Some have wonderful relationships with their birth parents and they have frequent access to them. Adoption by foster parents should occur only where there is no relationship between the natural parents and the child, where the child has remained in long-term care for several years and in the legal limbo to which I referred, where it is recognised by the professionals and where the child so wishes.

Deputy Devins

Chairman

I thank delegates for bringing their perspective to the committee. They made an interesting case for long-term foster children. The notion that the foster family should be recognised is one we have not heard before.

Sitting suspended at 3.40 p.m. and resumed at 3.45 p.m.

Chairman

I welcome Mr. David Manly, Ms Anna Maguire and Mrs. Angela Keavney who will make a presentation on behalf of Family and Life. Before we begin, I remind visitors that members of the committee have absolute privilege but that same privilege does not apply to witnesses appearing before the committee. The delegation has already made a submission which we have read. I invite delegates to outline the important aspects of their submission after which committee members will ask questions.

Mr. David Manly

I express our appreciation for the committee's invitation and for the work that it does. It is a difficult but very important job, particularly with regard to this issue, and we wish Deputies and Senators well.

Family and Life was founded in 1996 as a pro-family and pro-life group, and its activities are mainly educational. We depend entirely on the donations of individuals and do not receive any grants from private foundations, the European Union or the Government.

We are concerned with the larger picture of the family and the issues of today. We try to offer a point of view and conclusions based on empirical data and the findings of social and physical sciences, history and law and to express our views in terms of a human rights discourse. We would like our conclusions to be based on reality rather than any particular theory and we do not presume that everybody shares religious values, whether Christian or otherwise.

The family, based on the marriage of a man and a woman, should remain the Irish Constitution's definition of the family. It should be the "normative" family. There has been a huge amount of social change over the past 40 or 50 years. Fifty years ago the understanding of marriage and family life was very much to do with having and rearing children. Today in many western countries people understand marriage in terms of the personal fulfilment of adults and children are an optional extra. The State's interest in marriage ceases if it is defined as adult fulfilment because it becomes one of many purely private choices.

Such thinking is behind many of the demands to redefine the family, recognise a whole series of family forms and call for their equality. In our view, this change is a monumental error of social engineering and has led, not only to a crisis within the family, but also for children and nations. Populations are shrinking in Italy, Spain and throughout the European Union. A report was recently issued highlighting these issues and calling for all EU governments to try to stimulate more births and population growth.

The main reason for the retention of the "normative" definition of the family is that it is in the best interests of children. Studies produced by so-called liberals in Britain and the United States have found, sometimes to their embarrassment, that children are most likely to thrive in a family of two parents, namely, a man and a woman, committed to each other and their children. On the contrary, when a family breaks up, one parent leaves, partners change or there is no commitment, children are left deeply insecure and liable to fare badly in school, work and relationships in later life.

Children should have special rights, one of which is the need for a secure and loving environment, which we call home, in order to become healthy adults. This is clearly stated in the United Nations Convention on the Rights of the Child 1989. The Universal Declaration of Human Rights of 1947 is the bedrock of all human rights. However, we find a clear statement in it about the family as the basic unit of a healthy society. We cannot ignore this important point. The common good of our society requires healthy families. What institution other than the family gives such quality child care to so many children? Do we even need to comment on what institution provides such support for teenagers? What institution gives such personal and individual care to the sick and elderly? Our conclusion is that the family as it is currently defined should stay and be the normative family. Support for children in other family groupings can coexist with the normative family. It is not necessary to deconstruct the current definition of the family in the Irish Constitution. I have spoken for long enough.

Chairman

Mr. Manly may complete his presentation as it will only take a few minutes.

Mr. Manly

I have a note concerning the infamous Article 41.2.2°, where the State is required not to force mothers to work outside the home. I agree with the suggestion that this article has more to do with the needs of children than it does with mothers. However, it also says much about mothers. For example, it implies they have a particular charisma. This is the experience of many mothers. I know I am treading on controversial ground, but mothers have a special charisma to help the child during the first crucial two or three years. This is the time when psychologists and people working in genetics tell us that if there is neglect — not necessarily abuse — it can have long-term effects.

Cohabitation comes in many forms. For example, there is the couple who have been together for ten or 20 years and who have children. There is also the couple who are only staying together until the college term ends and for their own desires and convenience. However, the essence of cohabitation is there is no exclusive commitment for life. This commitment is part of marriage.

I believe it is the thin edge of the wedge. About seven to ten years ago, when the Norris case came before the Supreme Court and then went to Europe, it was said by the various leaders of the lobby groups that gay people merely wished to be left alone. Now, the argument appears to have evolved and there is pressure to introduce some kind of civil union, which is a big step.

I thank the Chairman and the members of the committee.

Sitting suspended at 4.13 p.m. and resumed at 4.15 p.m.

Chairman

I welcome Right Nation and the members of its delegation, Mr. Justin Barrett, Ms Sinéad Dennehy and Mr. Denis O'Connor. I remind visitors that members of this committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee.

The committee has received and examined the delegation's submission and asks for an eight or ten minute synopsis of the important aspects. Reading all of it again would not make sense but there are points the delegation will obviously wish to emphasise. Afterwards, the Senators and Deputies will ask questions if they so wish because we must vacate this room by a certain time but we will allow 30 minutes or more if it can be afforded.

Mr. Justin Barrett

I wish to make a brief introduction and move straight to the questions.

Chairman

That is fine.

Mr. Barrett

We hope this meeting will be conducted in a cordial manner but there will be a certain extent of disagreement between the members and the delegation on various points. We are in amiable good humour given that the conservative philosophy, in its political and social manifestations, is triumphant in the United States. There is a tendency for such manifestations to make their way across the Atlantic but it takes a while sometimes. The worst of developments comes from the US. However, perhaps the best of developments will also come from the US in the long term.

The French are set to bid adieu to the wretched document the Taoiseach unfortunately pulled out from under a rotten fruit in the bin of European politics but, above all else, we are in amiable good humour because, habemus papum, we have a Pope. He is a man with a strength of mind, faith, heart and will forged in the 20th century for the challenges of the 21st century. Oddly enough, he is a Catholic, which means the liberals should have spent a little more time in persuading the “bear” of the need for radical change.

In this context, we were surprised that some of the previous submissions to the committee have been framed in terms of their modernity. A number of these ideas are only "modern" if someone hit the pause button on their lives in the summer of 1968. We are not training our positions in terms of a timeframe. In the long history of the world, the year 2005 is just as arbitrary a date as 1937, 1968 or, for that matter, 1753. If the constitutionally embodied definition of the family as it currently stands was a part of Mr. de Valera's musings on a wet weekend in 1936 or 1937, it would be of no consequence. Obviously, any changes to this definition would make little difference.

Neither the Constitution nor the law creates the family. The family is a natural institution that predates all constitutions, all laws and all governmental forms. To be in a family situation is inherent in the nature of man himself. In this sense, the Constitution merely recognises the existence of this institution in a way that conforms with common sense and people's understanding of the family. There is the option of changing the law. The Oireachtas could do this but as a result, the law would no longer conform to common sense. Changing the definition of the family in the Constitution would require a constitutional amendment. That is why many liberal groups have refrained from calling for a new definition of marriage or the family. They would not get the support necessary to pass such an amendment.

The Constitution and the legislation that follows should not only recognise the existence of the family but that constitutional provisions need to be imposed. There has never been an effort to enact the constitutional provision on the special role of the mother in the home, apart from the prohibitive effort made in the Civil Service code in the 1970s. The joint committee should suggest this to the Government. There are other constitutional provisions about the protection of marriage. The committee needs to consider how these should be enacted in practice.

There is no family other than that of a man, a woman and his children. People live and order their lives in different arrangements but that does not change the fundamental nature of the family. As a guardian of the common good, the Government has an obligation to guard this institution above all else. It is the institution of marriage that provides the next generation and provides the best environment in which it can grow. It undermines and damages the family if we apply the term to anything other than the above definition. We hope the joint committee understands the influence of the family on the nation. In this regard, it has great responsibilities.

Chairman

When people do not have many questions to ask, it indicates a submission is unequivocal. We have met many groups, including the Ombudsman for Children, the National Youth Federation and the churches, many of which have said the role of the child is not clear. Reference has also been made to the Kilkenny incest case. We heard a submission from the Irish Foster Care Association earlier today. It believes a foster child in long-term care has to overcome many hurdles in obtaining a passport or undergoing medical procedures. If the rights of the child were strengthened without changing references to the family, it would be an important step. Some contributors mentioned the UN Convention on the Rights of the Child, to which this country signed up about ten years ago. Although Right Nation's submission is clear, does it see a need to enhance the rights of the child in the Constitution?

Yes.

Deputy Cuffe

What is the delegation's view on cohabiting couples with children? Do they constitute a family?

Mr. Barrett

No, they do not constitute a family because there are two elements to a family, namely, marriage and the presence of children. The failure of the cohabiting couple to make a permanent commitment is the issue. The question is what is best for children and society and what should the State, by its laws, try to promote. It is no insult to anybody to say that the superior form of the family is the traditionally understood form. Various provisions can be made for people who order their lives differently but the State and society have a special interest in promoting the traditional family above all else.

Mr. Denis O’Connor

I cannot understand why common sense cannot prevail. If an individual is offered a job, he or she is asked to sign a contract to signify commitment. Without that contract, a person could walk in and out of a job on a whim and cause all sorts of problems.

The child is the most important individual in this State and he or she needs protection. The best way to protect the child is to ensure that he or she has a father and a mother who are married and living together. That is not always possible but as a civilised society we must ensure that it can happen as much as possible. We must ensure that we have ground rules in place and our Constitution does that.

If the Constitution states that something must be done, then it is the duty of the people that we elect to ensure this happens. Under the Constitution, each citizen has as much power to legislate as those who are elected to the Dáil. The Constitution was given to the citizens and it gives them rights. Éamon de Valera said that the Constitution was given to the citizens to protect them from the institutions of the State. That is why the Constitution is such an important document and it cannot be changed unless it contains a serious impediment.

Mr. Barrett referred to a debate on radio where a lawyer stated that children should be given rights to protect them from their parents. That is the same as giving a child a loaded gun because children are supposed to be protected; they should not have to protect themselves. The idea that children would have to protect themselves from their parents and that adults would ask them to do so is appalling and disturbing for children.

Chairman

Unfortunately, if one takes the example of Kilkenny incest case, two young girls were severely abused, physically, emotionally and sexually, by their father for many years. That may be an extreme example but there are instances where children may need protection from their parents. Thankfully, such cases are not common but they do exist.

Mr. O’Connor

I agree. However, to legislate on the lines of a hard case is a bad rule. The Constitution already contains a provision whereby the State can intervene in a family if a child is being neglected. The Constitution covers everything but people do not seem to have read it and our elected representatives have failed to ensure that the relevant Ministers implement those sections that deal with the family. We do not want the Constitution changed and we want the document, as it stands, to be implemented. It is a wonderful document and if we are serious about protecting children, we should not be seeking to change it. When a problem arises, our first instinct seems to be to create a new law. If I, for example, had an assembly line making hoovers and discovered one day that all of the hoovers coming off the assembly line had a loose connection, what should I do? The modern solution would be to employ someone to sit in a separate room and repair all of the defective hoovers. The alternative constitutional solution is to employ someone to go back up the assembly line and tighten a nut or a bolt to solve the problem.

Deputy Andrews

Mr. O'Connor has stated that the Constitution is a great document. The people who are the repositories of common sense voted for divorce some years ago and that is now in the Constitution. I presume that Mr. O'Connor is excluding such sections of the document when he refers to the Government implementing the Constitution and when he asserts the brilliance of the document. I suggest to Mr. O'Connor that he is taking an à la carte approach to the Constitution.

Chairman

I ask Mr. O'Connor to be as brief as possible because the meeting is now running over time.

Mr. O’Connor

If the Deputy reads our submission, we state that the introduction of divorce was a detrimental move.

Deputy Andrews

It is, however, in the Constitution.

Mr. O’Connor

Yes, it is in the Constitution. We have also said that there should be as little interference as possible in the Constitution. We do not have time to revisit the debates that took place at the time of the divorce referendum but it weakened the Constitution. The Constitution would be strengthened if——

Mr. Barrett

Our position is that the Constitution, as a man-made document, is not perfect. We are not suggesting it is perfect but that its very existence is of great benefit to the Irish people. In general, the provisions in the Constitution relating to the family would have very positive benefits if they were enacted in people's daily lives. No document is perfect and the Irish Constitution is no exception. We do not claim that it is perfect.

We believe that the prohibition on divorce will have to be reintroduced in the long term because the effects of the divorce culture are only beginning to be felt here. There are already more than 3,000 divorces per annum. The consequences of that, in terms of broken families and the impact on children, will become more obvious as time passes. We are not arguing that the Constitution should never be changed because this is one change that is absolutely necessary. In addition, of course, we need a right to life amendment.

One can discuss the rights of the child but we also need a right to life amendment for the unborn child. The X case decision, although it is impossible to legislate for, still stands before the world as an eyesore. Simply because the situation is the same in other countries does not make it acceptable. It is an eyesore before the world and a source of shame for the Irish people that the Constitution does not completely protect the unborn child from the moment of conception.

Chairman

I thank the delegation for coming before the committee. Its case has been made very clearly and we will take the viewpoints into account when we undertake our deliberations and produce our final report. We would need the wisdom of Solomon to get everything right. However, we are simply preparing a report. It is up to the Government to act on that. We have been informed that the Constitution review group made recommendations to Government ten or 12 years ago and that nothing was done. The committee is in a no-win situation.

The joint committee adjourned at 4.49 p.m. until 10.30 a.m.on Thursday, 28 April 2005.

JOINT COMMITTEE ON THE CONSTITUTION debate - Wednesday, 27 Apr 2005

Family Issues: Presentations.

Ms Joanna McMinn

Ms McMinn

Ms McMinn

Ms McMinn

Ms Marie Hainsworth

Ms Hainsworth

Ms Hainsworth

Ms Hainsworth

Ms Hainsworth

Ms McMinn

Ms McMinn

Ms McMinn

Ms Hainsworth

Ms McMinn

Ms McMinn

Ms McMinn

Ms McMinn

Ms McMinn

Ms McMinn

Ms McMinn

Ms McMinn

Ms Orla O’Connor

Ms O’Connor

Ms O’Connor

Ms Hainsworth

Ms Hainsworth

Ms Hainsworth

Ms Hainsworth

Ms Hainsworth

Ms Hainsworth

Mr. Louis Power

Mrs. Eilis Bennett

Mrs. Lelia O’Flaherty

Mrs. O’Flaherty

Mrs. O’Flaherty

Mrs. O’Flaherty

Mrs. O’Flaherty

Mr. David Bennett

Mr. Bennett

Mr. Bennett

Mr. Bennett

Mr. Power

Mrs. Bennett

Mrs. Bennett

Mrs. Bennett

Mrs. Bennett

Mr. Bennett

Mrs. Bennett

Mrs. Bennett

Mr. Power

Mr. Bennett

Mr. Bennett

Mr. Bennett

Mrs. O’Flaherty

Mrs. O’Flaherty

Mrs. O’Flaherty

Mr. Power

Mr. Robert Cochran

Mr. Cochran

Reverend Rosemary Lindsay

Mr. Cochran

Mr. Cochran

Mr. Cochran

JOINT COMMITTEE ON THE CONSTITUTION debate -
Wednesday, 27 Apr 2005