As Ms Feeley said, committee members have a copy of our main submission. The document we have circulated outlines the main points for their consideration.
An examination of the family and marriage provisions in the constitutions of many European states and in the European Convention on Human Rights, ECHR, and the International Covenant on Civil and Political Rights, CCPR, indicates that, with the exception of Luxembourg and Ireland, no state guarantees expressly the rights of the family unit. Many recognise the family as a primary or fundamental unit in society while some state it is entitled to the special protection of the state or society but the rights or duties which derive from marriage, the family, parenthood or one's status as a child are guaranteed to or imposed on individuals. This would be the better approach in any revised form of Article 41.
We recommend the express inclusion of the non-enumerated rights of the child as a child is a person in his or her own right. The general constitutional rights shared by adults such as the right to bodily integrity are protected elsewhere in the Constitution. Article 41 should contain an express guarantee of those rights of a child which are not guaranteed elsewhere and are peculiar to children such as the right to be reared with due regard for his or her welfare. A revised Article 41 should also include a guarantee to all individuals of respect for their family life, irrespective of whether it is based on marriage.
We have considered the social provisions that arise from the constitutional articles relating to the family. The welfare system is strongly based on the male breadwinner model. In 2003 the National Women's Council of Ireland, NWCI, stated this model of social welfare "suggests that states built their wages policy, tax and welfare systems around a prototype family of a fully employed male earning a family wage and supporting a dependent spouse and children in a lifelong stable marriage". This definition of our social welfare system is similar to the provisions made in the Constitution.
The piecemeal way in which the social welfare system was developed is reflected in the Constitution's definition of the family based on marriage and notions of women belonging exclusively within the home. Welfare provisions were predicated on the notion that a mother should work full time in the home raising children and should not be obliged to engage in paid employment. Historically, the relevant welfare payments were largely restricted to women and until 1989, there was no deserted husband or widower's payment. The welfare system also reflected a societal distinction between the "deservedness" of different categories of mothers. Those who were parenting alone "through no fault of their own" as a result of widowhood or desertion were covered for this contingency in the social insurance system. Unmarried mothers, however, had to rely solely on a means-tested payment.
In the late 1990s the one parent family payment was introduced as a more unified payment for all parents raising children on their own. Nonetheless, this type of family remains outside the mainstream — an exception to the rule — and social policy continues to reflect society's ambivalence in this regard. On the one hand, society depicts such families as different and, on the other, insists they abide by the same rules "as everybody else" by fitting in with the same employment and housing policies which are formulated around the Constitution's definition of the family.
The constitutional definition of the family based on marriage has had a strong influence on other legislative and institutional arrangements. This, in turn, has had knock-on effects for other diverse family structures. For example, in terms of accessing public housing, the National Economic and Social Forum, NESF, report on lone parents in 2001 noted that 43% of those on local authority waiting lists were one parent households and of these 67% were lone parents with one child. As members will see from the fact sheet we have circulated, this does not reflect the reality of the numbers of lone parents who are over-represented on housing lists because local authority housing needs assessment tends to favour larger families, particularly those with more than one adult, over smaller family units.
There is a major data deficiency in regard to lone parents in that we do not know the numbers. This difficulty stems from the constitutional definition of the family which focuses on one family unit. The 2002 census showed there were 150,634 lone parent households, the majority of which, 85%, are headed by lone mothers.
The census counts the entire population via self-recorded information. People are counted where they happen to be on census night rather than at their usual residence. The absence of a parent on census night can artificially reduce a two parent household to a one parent one which may overstate the number of one parent households relative to two parent ones. However, a more fundamental problem is that the census fails to identify lone parents living with their parents. The nature of lone parenthood means many lone parents live with their parents. For instance, younger lone parents may not have the resources, financial and otherwise, to set up an independent home.
Article 41.2 should be revised to read as follows:
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.
This would have implications for legislative change for all parents and carers. The recommendations of the NWCI, which I understand the joint committee has heard, are relevant. They include the extension of maternity benefit to 26 weeks, the introduction of paid parental leave benefit for parents of young children and part-time parental benefit for parents of children up to the age of 11 years, a means-tested parental allowance and part-time allowance, and the development of a mechanism to value the care of older people as paid work by turning the carer's benefit and allowance into a caring wage.
In regard to Article 41.3.1°, we recommend the retention of a pledge by the State to protect the family based on marriage but also to guarantee to all individuals a right to respect for their family life, irrespective of whether that family is based on marriage. The express pledge by the State in Article 41.3.1° to protect the family based on marriage should be amended to delete the words "upon which the family is founded" which have led to an exclusively marriage-based definition of the family which no longer accords with the social structure.
OPEN recommends that Article 8(1) of the European Convention on Human Rights be taken into consideration when revising the provisions in the Constitution in regard to families. This article provides that, "Everyone has the right to respect for his private and family life, his home and his correspondence".