Special Committee on Gender Equality debate -
Thursday, 10 Mar 2022

Recommendations of Citizens' Assembly on Gender Equality: Discussion

Chairman

We have a number of apologies from colleagues, which are noted. Before we begin, it should be noted that members have the option of being physically present in the committee room, as we all are, or they may join the meeting via Microsoft Teams from Leinster House offices but they may not participate in the meeting from outside the parliamentary precincts. If joining on Microsoft Teams, those attending should mute their microphones when not making a contribution. We encourage everyone to take measures to limit the risk of spreading Covid-19.

Today's meeting will be in two sessions. For the first session, we have an engagement in public with representatives from the National Women's Council of Ireland, the Irish Human Rights and Equality Commission, the Children's Rights Alliance and One Family to discuss the recommendations of the Citizens' Assembly on Gender Equality regarding the Constitution. When the public session has concluded, we will go into private session to deal with committee business. I extend a really warm welcome to the stakeholders today. This is very exciting for us because it is only our second public hearing as a new committee. It is the first public hearing at which we have a number of different individuals because last week we just had Dr. Catherine Day to address our preliminary or first public hearing. She came in as the chairperson of the Citizens' Assembly on Gender Equality.

Before I invite the witnesses to give opening statements, I should say this committee is a special time-limited Oireachtas committee set up to progress the implementation of the recommendations of the Citizens' Assembly on Gender Equality, our manual or blueprint of 45 recommendations setting out a clear pathway to gender equality in Ireland. Our committee has taken a very practical approach. We do not want to reopen the substantive policy matters because the citizens' assembly has done so much work and engaged with the stakeholders present and other experts. We are looking at how to implement the recommendations. We have done a great deal of work already in private hearings before commencing public hearings last Thursday. We have nine months from last Thursday, which is 3 December, to produce a report or, essentially, an action plan for the Government on what must be done to progress the recommendations.

Today's engagement is about the first three recommendations because we are dealing with recommendations in a modular fashion. The first three relate to constitutional change. We are all very keen to see a referendum arising as a result of our work and that of the citizens' assembly. We want to see the referendum taking place in 2023 because so much deliberation has gone on relating to the proposed referendum on the sexist language in the Constitution. That is what we have invited the witnesses to address us on. We are very grateful to them for providing the very focused opening statements and submissions that have been made in response to our request. We are very grateful to them for coming into us in person. I invite the witnesses to give a short opening statement in the order in which we received the submissions. We will start with Ms Orla O'Connor, director of the National Women's Council. We are also joined by Ms Jennifer McCarthy Flynn, head of policy at the National Women's Council. They are both very welcome.

We will then go to the Irish Human Rights and Equality Commission and I welcome Ms Sinéad Gibney, the chief commissioner, Dr. Salome Mbugua, member of the commission, and Professor Caroline Fennell, member of the commission. We will then go to the third non-governmental organisation before us today, the Children's Rights Alliance, and invite Ms Saoirse Brady, head of legal policy and public affairs, and Ms Julie Ahern, legal and policy manager, to speak to us. Finally, we will go to One Family and we welcome Ms Karen Kiernan, its chief executive officer.

Before we begin, I draw our guests' attention to an important notice on parliamentary privilege. Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I will call on each group to make an opening statement before opening the floor to members for questions and answers. I welcome our members, Deputies Niamh Smyth and Réada Cronin and Senator Alice-Mary Higgins. Other members may join us as the session progresses. I thank our guests again for coming in. I call Ms Orla O'Connor to make her opening statement on behalf of the National Women's Council.

Ms Orla O'Connor

I thank the Chairman, Deputies and Senators. We welcome the establishment of this Oireachtas joint committee and its members' commitment to implement the recommendation of the Citizens' Assembly. The National Women's Council was founded in 1973 and we are the leading women's membership organisation. We represent more than 190 groups and organisations from a diversity of backgrounds, sectors and locations across Ireland. We look forward to engaging and supporting the work of the committee as it progresses its work.

Our presentation is focused on the recommendations for constitutional reform the citizens have made and how the National Women's Council believes they can be advanced. Given the breadth of the membership of the National Women’s Council, we would also welcome the opportunity to discuss our views on the full set of recommendations, as the committee progresses it work.

To address the constitutional issues, the National Women’s Council commends the citizens on their recommendation that Article 40.1 of the Constitution - "All citizens shall, as human persons, be held equal before the law" - be amended to refer explicitly to gender equality and non-discrimination. Including principles of gender equality and non-discrimination in constitutions carries both symbolic and practical weight. The Constitution is a foundational document which sets out our priorities, values and goals as a society. The citizens are clear that Ireland today is not a gender equal society and they have given a clear recommendation that they wish for Ireland’s Constitution to be explicit in recognising gender equality and non-discrimination. Explicitly referring to gender equality and non-discrimination in the Constitution can be more than a statement of aspiration and can provide a legal foundation for citizens to advance gender equality and combat discriminatory laws. It could provide the legislative underpinning for policies that result in transformative change such as gender budgeting. For example, Article 7 of the Austrian Constitution includes a commitment to gender equality and to eliminating existing inequalities, which supported the implementation of gender budgeting as a tool for delivering gender equality.

Recognising both gender equality and non-discrimination is crucial. We know that women are not a homogenous group. Rather, gender intersects with disability, race, ethnic minority status, family status, age, sexual orientation and gender identity to shape women’s experiences. The Citizens’ Assembly heard from Traveller women, migrant women, disabled women, lone parents and young and older women about the reality of intersectional inequalities for women and it is important our Constitution reflects this reality. Ireland has obligations to recognise the reality of intersectional discrimination and equalities, including in Article 2 of the UN Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, which requires State parties to "legally recognise and prohibit intersecting forms of discrimination and their compounded negative impact on the women concerned".

Around 80% of the constitutions around the world contain provisions relating to equality and non-discrimination. As such, Ireland is currently an outlier in this regard. The Irish Human Rights and Equality Commission, IHREC, has recommended that it is necessary to include an explicit provision on gender equality in the Constitution in order to advance gender equality. As set out in the National Women's Council recent submission on the review of equality legislation, we state that CEDAW requires states to "embody the principle of the equality of men and women in their national constitutions or other appropriate legislation". Although provision may be made for gender equality in legislation and policy, this is significantly strengthened through constitutional law which can provide an important level of protection when political administrations change. That is why we really support the recommendation to refer explicitly to gender equality and non-discrimination.

Turning to Article 41 of the Constitution and recognising the diversity of families, as recognised by the Citizens' Assembly, the definition of family in the Constitution is based on a narrow and outdated understanding of the family that prioritises heterosexual, married families and fails to recognise and protect the diverse range of family forms that exist in modern Ireland. It denies protection to and has been used to discriminate against lone parents, unmarried parents and their children, LGBTQ+ parents and non-biological parents. Limiting constitutional protection to the married family discriminates against lone and unmarried parents and other non-traditional family forms and is not in line with current international best practice or Ireland’s policy and legislation. Through their discussions, the citizens confirmed they wanted the Constitution to continue to protect private and family life and that this should include forms of family life beyond the marital family.

We recommend that constitutional recognition and protection be afforded to all families that involve a relationship of caring and interdependence. Transposition of Article 8 of the European Convention on Human Rights could afford recognition of family rights and privacy to everyone. The European Court of Human Rights has established that is not confined solely to families based on marriage and may encompass other relationships. Hence, we support the recommendation and recommend that we amend the Constitution to ensure a broad and inclusive understanding of the family based on relationships of care and interdependence.

On Article 41.2, which is commonly known as referring to women in the home, we welcome the recommendation of the Citizens' Assembly that Article 41.2 "be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community". This recommendation speaks to many of the issues the National Women's Council and our members have sought to have addressed over many years. In our presentation we outlined that the article is problematic in many ways. I will not go through them, as I understand from the Chairman that we do not need to rehash those arguments that the citizens fully accepted. It is very clear from the discussion that the citizens agreed that Article 41.2, which refers to a woman's life in the home, is sexist and discriminatory. It is also clear the Citizens' Assembly wanted the article to be amended rather than deleted. This is extremely important because it shows the citizens recognise the value and importance of care. Amending Article 41.2 provides a real opportunity to recognise care in a more gender neutral and much more inclusive way. The recommendation to replace Article 41.2 rather than a straightforward deletion recapitulates the decisions of previous debates on this article. We saw it in the 2013 Constitutional Convention and also in the reports from CEDAW in 2017.

The second important element of the Citizens' Assembly recommendation is that the citizens gave a very clear direction that the State should "take reasonable measures to support care within the home and the wider community". Our understanding of care is broad and acknowledges that across the life cycle, we all both give and receive care and that this is a deeply fulfilling and necessary human experience. As the pandemic has clearly highlighted, care is the very foundation of a functioning economy and our society. Our feminist analysis of care includes not only the perspectives of the women who provide care but also the women who need supports, including older people and disabled people. For disabled people, care must be understood as an independent right to support, autonomy and a fully realised life. It is important this committee consults disabled people and disabled persons organisations as a key stakeholder in this discussion.

Our understanding of care encompasses quality, public early education and school-aged childcare services, quality, public social care services, including personal assistance supports to enable disabled people to live lives of their choosing, and home care and other supports for older people. Increasingly, we understand care also includes care for the world we live in and the need for investment in care jobs as part of a transition to a greener economy. Valuing care means having decent pay and working conditions for workers in the sector, including many migrant women workers on whom the sector is dependent.

It means having a social welfare system that ensures an adequate standard of living and supports people in and out of work and unpaid care. It includes supporting women and men to combine unpaid care with paid employment, including when they are parenting alone, through provision of better, paid parental leave and family-friendly and flexible work practices. Valuing care means addressing the huge unmet need for support experienced by disabled and older people as well as children with additional support needs.

Some of those issues will be dealt with in later sessions by the committee but the point I really want to make is in respect of the wording of a new article. It needs to be inclusive in its recognition of care. In the view of the National Women's Council, the wording should assert that caring for each other and care work are essential for the good of everyone in our society. It must be gender-neutral in order to recognise the care roles of both women and men. It must recognise the right to receive support and-or care and to live with autonomy and dignity. It must recognise care work done inside the home, in families as well as within the broader community.

We propose the following inclusive statement about the importance of care and care work done by both women and men in Irish society for the committee's consideration: "The State recognises that care provided by the home, family and community gives society a support without which the common good cannot be achieved." Recognising care in this way gives recognition to the valuable work done by thousands of women and men every day in Ireland.

We strongly recommend that a referendum is held to replace Article 41.2 to with the language that I have laid out. We thank the committee for the opportunity to present our recommendations today. We look forward to a referendum in the near future.

Chairman

I thank Ms O'Connor, particularly for being so focused in her statement and for giving us a suggested wording. That is the sort of practical help we are really seeking. I invite Ms Sinéad Gibney to make her opening statement on behalf of the Irish Human Rights and Equality Commission, IHREC. We will take all the opening statements and then go to questions and answers with members.

Ms Sinéad Gibney

Thank you, Chair. I am joined today by my commission colleagues Dr. Salome Mbugua and Commissioner Caroline Fennell. We are delighted to have the opportunity to address this important committee, particularly in the same week as International Women’s Day, to discuss the constitutional recommendations of the Citizens’ Assembly on Gender Equality.

IHREC is Ireland’s independent national human rights institution and national equality body. Issues of gender equality are core to our work and just this week we published two new statutory codes of practice which speak directly to this mandate. The code of practice on equal pay provides employers, trade unions and employees with practical guidance on the right to equal pay, how to eliminate pay inequality and how to resolve pay disputes. The code of practice on sexual harassment and harassment at work sets out what is meant by employment-related sexual harassment and harassment, how it can be prevented and the necessary steps to ensure organisations are ready to deal with it and prevent it from happening again. Both of these codes are legally grounded in a statutory instrument brought forward by the Minister, Deputy O'Gorman, and will be legally admissible as evidence in proceedings before the courts, the Workplace Relations Commission, WRC, and the Labour Court.

Before getting into the detail of today’s discussion, I would first like to pay credit to the work of the Citizens' Assembly, its chair Catherine Day and its 99 participants. We contributed to their deliberations both in writing and in person, and we welcome the Citizens' Assembly’s priority recommendations, including the three recommendations for constitutional reform. I pay credit also to the assembly’s recognition of intersectionality and the layers of discrimination experienced for example by Traveller and Roma women, migrant women and disabled women.

We stand clear that Ireland’s constitutional and legislative framework must be responsive to cultural and societal changes in order to fully protect gender equality and women’s rights. I will address in this opening statement, at a high level initially, the three recommendations on our constitutional framework in respect of gender. We will of course then be happy to go into more detail in the discussion.

The constitutional guarantee of equality in Article 40.1 ranks first among the fundamental rights protected under the Constitution. Yet, as we stated in our recent amicus intervention in the case of Donnelly v. Minister for Social Protection and Ireland, where judgment is pending, there remains significant uncertainty about the principles governing its application. This uncertainty affects the extent to which Article 40.1 is effective in practice in ensuring equality before the law and in combating discrimination under the law.

In respect of recommendation 1, we agree that Article 40.1 of the Constitution should be amended to refer explicitly to gender equality and non-discrimination. As Catherine Day pointed out to this committee last week, approximately 80% of the world’s constitutions already have such provisions. It is long past time for Ireland to join that list.

On Article 41, there is clear support for a broader, more progressive understanding of what constitutes a family in Irish law, and this Citizen's Assembly recommendation captures that support. Article 41 of Bunreacht na hÉireann protects the rights of the family, and contains a number of provisions imposing duties on the State. Article 41.1 recognises the family as the "natural primary and fundamental unit group of Society". Noting that Article 41.3.1° obliges the State to "guard with special care the institution of Marriage, on which the Family is founded", the Supreme Court has interpreted references to the family in Article 41 as the family founded on marriage. I note that in more recent judgments, we have seen a different tone from the Supreme Court regarding this legal point. We recommend that Article 41, including Article 41.3.1°, be amended to recognise the broader conception of family life recognised in international human rights law. In updating the Constitution to promote a more inclusive concept of family life, there must be consideration of the wide range of family relationships that have been recognised in the context of international human rights law, as well as in Irish law, policy and society in recent times.

Family rights are recognised by a number of international human rights treaties, in particular Article 8 of the European Convention on Human Rights. In its jurisprudence, the European Court of Human Rights has broadly conceived "family life" beyond the nuclear family to recognise familial relationships where there is evidence of the existence of close personal ties, referred to as de facto family ties. In one of our first policy statements as a commission, issued in February 2015, we set out in respect of access to civil marriage how problematic it is to frame the family as being based on marriage. While Ireland voted with a massive majority in May 2015 for equal access to marriage, becoming the first country in the world to do so by popular vote, the fundamental issue of this constitutional focus on the marital family remains a problem.

We also stress the importance of alignment between the constitutional reform work now being undertaken by this committee and the review of equality legislation currently being undertaken by the Minister for Children, Equality, Disability, Integration and Youth, and these Houses, which will of course include the family status ground.

On Article 41.2, where the public debate has been strongest to date, we hold the view that Article 41.2 is not compatible with Ireland’s international human rights obligations. We have been clear and consistent on this before these Houses, with the Government and in our recommendations to international human rights treaty bodies. The language used in Article 41.2 of Bunreacht na hÉireann continues to perpetuate stereotypical attitudes towards the role of women in Irish society and should be amended to make it gender-neutral.

Further questions then arise as to how care work should be recognised and supported. This question of valuing care runs not only through our Constitution but also through our equality laws. We have previously made recommendations to overhaul State policy to ensure that care work is adequately supported, politically valued and equally shared. This features heavily in our new strategic priorities. The current definition of the "family status" ground of our equality Acts does not go far enough to capture and protect the full range of caring responsibilities present in modern Irish society. For example, the reality is that many of us may now care for older relatives or individuals who do not live under the same roof as us. Care remains a highly gendered aspect of Irish society and this has been exacerbated further by the Covid-19 pandemic. Our 2019 research with the ESRI, Caring and Unpaid Work in Ireland, has shown that women are far more likely than men to be engaged in care work, and those who do provide care work provide substantially more than their male counterparts. Care work is often juggled with employment responsibilities, and women are over-represented among employees availing of reduced hours. Ireland has the third highest rate of unpaid work for both men and women, and the gap between the genders is among the greatest in the EU.

Debate on Article 41.2 has already highlighted widespread acknowledgement that this area has evolved significantly over recent decades. The recognition by the Supreme Court of married couples without children as constituting a family for the purposes of Article 41.2 shows that the care work envisaged by the Constitution goes beyond childcare and can therefore take place outside the context of the home. Furthermore, recommendations stemming from the Convention on the Constitution made explicit reference to the importance of care in the wider community.

We also note that the State has obligations under the International Covenant on Economic, Social and Cultural Rights to "reduce the constraints faced by men and women in reconciling professional and family responsibilities".

The State must remain focused on the reform of Article 41.2, not only as an exercise in removing an archaic reference, but as a means of introducing a long overdue recognition of the public good realised within Ireland’s families and in caring roles. Given that this is now the recommendation of not one but two citizens’ assemblies, having also been recommended in 2013, it is beyond time for a referendum to have our Constitution reflect our lived realities.

However, constitutional reform is just one piece of ensuring progress. It is also important to be clear that constitutional reform is not enough and needs to be aligned with other measures. In current research we have under way with Professor David Kenny of Trinity College Dublin, TCD, on constitutional change more broadly, we have identified that there is a need for cultural, not just textual, change.

Political and judicial culture must support the vindication of these rights in order that they can be made real in practice. There is need to win support and buy-in not only from the public in the form of a referendum, but also from the political and judicial sectors for longer term and lasting change to happen.

It is crucial, also, that campaigning for constitutional protection of rights does not ignore other, non-constitutional changes that could buttress or supplement our gender equality protections. Constitutional change is just one part of the story and we must consider complementary measures that might in parallel and often in the more immediate term champion and allow gender equality to prosper as our societal norm.

I am here today as chief commissioner, but this is also a moment of great personal importance for me. I have long considered these articles to be blind to the situation of my own family. I raised my daughter as a lone parent. I worked outside the home to support her and inside the home to care for her; a reality that is anomalous to Article 41.2.

There was no marriage inside our little family and we are not a family as defined by Article 41.3. I am very proud of my daughter as a wonderful young woman making her way in the world. I am proud of my parents for supporting us and I am proud of myself for going it alone. However, I am not proud of the Constitution that is supposed to represent me because, in this very important regard, it does not. I look forward to a rich discussion this morning and thank the committee once again for the opportunity to be here today.

Chairman

I thank Ms Gibney, in particular, for giving us her personal experience and how the impact of the Constitution has been felt in her family. We very much appreciate her doing so. I also thank her for reminding us it is International Women's Week. It is very appropriate we are having this hearing during the week in which International Women's Day falls. I call on Ms Brady to make her opening statement, on behalf of the Children's Rights Alliance.

Ms Saoirse Brady

We thank the committee for this invitation to present to it today and we welcome the recommendations of the Citizens' Assembly on Gender Equality. The alliance, for those of the committee who might not know, unites more than 140 members working together to make Ireland one of the best places in the world to be a child. We change the lives of all children by making sure their rights are respected and protected in our laws, policies and services.

We also provide legal information and advice to children, young people and their families through our legal information line and nationwide legal advice outreach clinics. We understand the focus of today’s hearing is to concentrate on the recommendations related to potential constitutional amendments.

We welcome the proposed inclusion of a reference to gender equality and non-discrimination in Article 40.1 of the Constitution, given these are human rights recognised in international law. Non-discrimination, in particular, including on the basis of gender, is a fundamental principle of the UN Convention on the Rights of the Child, UNCRC.

The Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW, also obliges the State to take "all appropriate measures" to address and modify societal attitudes and behaviour that lead to gender stereotyping in terms of the roles experienced by women and the girl child. We also recognise and welcome the proposal and discussions on replacing Article 41.2 with gender neutral language that will fully reflect the diverse nature of care giving, especially in light of the fact that the 2016 census identified 3,800 young carers in Ireland.

We intend to focus our presentation on the second recommendation of the assembly, namely amending Article 41 of the Constitution, "so that it would protect private and family life, with the protection afforded to the family not limited to the marital family". We will echo much of what our colleagues have said already but it is important to do so from a children's rights perspective.

The structure of Irish family life has changed significantly in recent decades and the Citizen’s Assembly proposal has the potential to ensure that the reality of diverse family types is recognised and granted constitutional protection. This change has the potential to impact positively on the lives of nearly half a million children who are growing up within non-marital families.

In 2020, 38.4% of births were registered as being outside of marriage. In 2016, the latest census data we have recorded 215,817 one-parent households and 75,587 unmarried cohabiting couples with children. The Constitution places great importance on the family and defines it as "the natural, primary and fundamental unit group of Society".

However, in the past, the Irish courts have narrowly interpreted the constitutional family as only including marital families and this provision has been relied upon to uphold unequal treatment. The benefits of updating the definition of the family in the Constitution, to extend it beyond the marital family, include legal clarity, promoting legal stability, greater relational stability and security and reduced stigma.

It is clear that under international human rights standards, the State has an obligation to afford children living in all family types the same rights and protections. Parents and families are central to a child’s life and the rights of parents and children are inextricably linked. The UN Convention on the Rights of the Child, UNCRC, clearly highlights the important relationship between children’s rights and those of their family and focuses on the substance of family relationships, rather than the form.

The UNCRC recognises the family as "the fundamental group of society and the natural environment for the growth and well-being of ... children". Article 18 of the convention acknowledges that parents have the "primary responsibility" for their child’s upbringing and development and affirms that the family requires protection and assistance to fulfil its responsibilities and places a duty on states to support parents in rearing their children.

Under the UNCRC, the term "parent" is interpreted to mean genetic, birth and psychological parent, the latter referring to a person who is not biologically related to the child but cares for the child for significant periods of their childhood.

Children have a right to be protected from discrimination irrespective of the child’s parents' or guardians’ marital status or sexual orientation under Article 2 of the convention. The Committee on the Rights of the Child has recognised that: "Young children may also suffer the consequences of discrimination against their parents, for example if children have been born out of wedlock or in other circumstances that deviate from traditional values." The committee has set out that states "have a responsibility to monitor and combat discrimination in whatever forms it takes and wherever it occurs - within families, communities, schools or other institutions." In addition to the principles outlined in the UNCRC, Article 8 of the European Convention on Human Rights, ECHR, provides that "everyone has the right to respect for his private and family life, his home and his correspondence".

The European Court of Human Rights has recognised the right to family life in cases where there are close personal ties between the parties, rather than looking at the format of the non-married family unit or whether the parents of the child live together. The court has also determined that Article 8 further extends its protection of family life to relationships between children and grandparents, siblings and aunts and uncles. Interestingly, our domestic legislation, the Children and Family Relationships Act 2015, reflects the importance of these relationships and allows for all of those named categories to apply for custody of the child.

Article 14 of the ECHR also prohibits discrimination, for example, on grounds of birth, when ECHR rights are engaged. Article 26 of the International Covenant on Civil and Political Rights also prohibits discrimination on any ground including birth or other status. It is clear that under international human rights obligations all family types should be afforded the same rights and protections. The Constitution should be updated to reflect this.

What would the change mean for children and young people living in Ireland? Historically, children from non-traditional families have often been treated differently from those in the married family. Consider the recent reports on mother and baby homes and the lack of respect afforded to unmarried mothers and their children.

The Constitution, as interpreted by the courts, only affords married families constitutional recognition. According to relevant case law, the elevated status of this family form does not simply mean that the State cannot discriminate against marital families. It also sanctions unequal treatment of other family groups. On numerous occasions, Irish courts have interpreted the constitutional priority afforded to marriage in a manner that has adverse concrete effects for other families and individuals.

Article 41 has been used to uphold discrimination against children born outside marriage in areas such as succession rights and non-recognition of an unmarried mother and her child as being a family entitled to constitutional protections, as we have heard from some of our other colleagues this morning.

Under the UNCRC, the best interest of children should be a primary consideration in all actions concerning a child. The convention states that the principle should be determined on a case-by-case basis and "should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs".

The best interests principle has a threefold meaning. It is a substantive right, a fundamental, interpretative legal principle and a rule of procedure.

One of the most infamous Irish legal cases where the rights of the marital family overruled the best interests principle, which at the time was not incorporated into the Constitution, was the so-called "Baby Ann" case. In that case, unmarried parents who put their child up for adoption and who then subsequently married were found to have, upon their marriage, became a constitutional family protected under Article 41. This resulted in the child, who had spent two years with her prospective adoptive parents and formed a bond with them, being removed from their care at an important formative time for that child. In her dissenting judgment, Ms Justice Catherine McGuinness, a children's rights champion we all know, noted that the best interests of the child were not represented in the case.

While there has subsequently been reform and constitutional amendments regarding the best interests of children, it remains that the marital family is the only family type recognised in the Irish Constitution. To date, no significant jurisprudence has emerged, to our knowledge, where these two articles interact. In the absence of any constitutional amendment to Article 41.2, it is open to courts and legislators into the future to decide cases and introduce legislation that favours the marital family over other family types. To ensure that this cannot happen, constitutional reform is needed. Article 41 of the Constitution should be amended so that it would protect private and family life with the protection afforded to the family not limited to the marital family. The symbolism that this change could bring about cannot be underestimated for those families and children who fall outside the current constitutional definition of family. It will send a clear message to them and to society as a whole that their families matter and are considered equal. We thank the committee for the opportunity and my colleague, Ms Julie Ahern, and I will be happy to take any questions.

Chairman

I thank Ms Brady for her presentation and her focus on the family definition issues and for reminding us about the interaction with the children's rights article. This is something we may come back to in our discussion. I now invite Ms Kiernan to make her opening statement.

Ms Karen Kiernan

One Family welcomes the opportunity to address the Joint Committee on Gender Equality and the establishment of the committee. One Family is Ireland's organisation for people parenting alone, sharing parenting and separating. We are primarily a service provider but we do seek to raise to a policy level issues that affect the families with which we work and all our work is child-centred.

We support the recommendations of the Citizen's Assembly on gender equality in their totality. If implemented, they would represent the most significant advancements in gender equality since the foundation of the Irish State. We will focus on the recommendations that would most urgently, directly and significantly impact one-parent families - both constitutional and some of the legislative and policy ones.

We support the recommendation that Article 40.1 of the Constitution be amended to refer explicitly to gender equality and non-discrimination. I will focus on Article 41.3. The proposal there is to protect private and family life with protection afforded to the family not limited to the marital family. We have been calling for this since our foundation 50 years ago as Cherish. Our founders experienced first-hand the State-sanctioned discrimination and authoritarian behaviours towards them and their children as unmarried mothers. Today, they are still calling - literally ringing me asking "what's the story?" - for the Constitution to be changed as a partial reparation for the damage wreaked upon generations of children, mothers and fathers whose only crime was to be unmarried.

Echoing what Ms Gibney said about her own family, our founder Maura O'Dea Richards, who founded Cherish in 1972, recently wrote a piece for us. She said:

As a so-called unmarried mother in 1970s Ireland, I felt the full weight of the Constitution on my shoulders as I struggled to raise my child alone against a system that sought to constrain us. I repeatedly saw women with no choice, who were forced to put their children up for adoption, go into Mother & Baby Homes or become homeless and outcast. This is why I founded Ireland’s first organisation for single parents, to change how Ireland treats it most vulnerable citizens. Now, while Article 41.3 of the Constitution has little practical impact on the lives of families - I believe it is a symbol. A symbol of discrimination and isolation. It tells families they are 'other' they are outside our community and society. This must end, all families are entitled to respect and protection. Discrimination against families who are not married must end. Never again will they be isolated and incarcerated. Never again will they be stigmatised and shamed. We need to tell the thousands of women and their children who were imprisoned in homes and adopted against their will, that we see and acknowledge their pain and this will never happen again. We need to change Article 41.3 now.

Our founders are in their 80s and 90s. One has passed away while another will pass away imminently. We would like to have a referendum while they are still alive. The need for recognition and protection of all families is not a marginal issue. One Family still sees today the discrimination and stigma experienced by many thousands of children and parents living in one-parent families because of their disproportionate levels of poverty, the negative judgment they experience from society and the lack of appropriate policies and supports for their family type. The Irish Government and citizens now have an opportunity to right this historical wrong and extend recognition of rights and protections to all families and not just the marital family. We believe that current constitutional wording could be enhanced by the addition of or replacement with European Convention on Human Rights, ECHR, wording to afford recognition of family rights and privacy to everyone without undermining the current recognition of marriage. Our exact wording proposed is in our written submission. It is similar to that of colleagues in terms of the use of Article 8 of the ECHR and why it can be useful. It confers a significant symbolic message but does not substantially or automatically change anyone's legal rights. That is up to case law and legislation. Family law is framed very positively under Article 8 of the ECHR. The ECHR is well established in case law, is already incorporated into Irish legislation, is compatible with modern human rights norms and is well proven. It is inherently child-centred and removes the harm currently done to children in non-marital families by the Constitution. This wording would support the children's referendum and the Children and Family Relationships Act. As well as non-marital families, we believe Article 8 wording is potentially beneficial to other households or families with caring arrangements including sibling-headed families, other non-nuclear family members, foster families, etc.

We support the recommendation regarding Article 41.2 of the Constitution with regard to caring. We support the assembly's recommendation that it be amended to take account of the diversity of family caring, including those who are male or non-binary family carers. There also needs to be a recognition of those who are being cared for.

I will also mention other areas of relevance to one-parent families. Regarding early years and out-of-school care, One Family supports recommendations 8(a) and (b) of the assembly relating to providing a publicly funded model of childcare and increasing investment in childcare in line with the 1% target set by UNICEF. The purpose of the national childcare scheme is to provide quality education and care for young children. However, in practice it primarily operates to provide childcare to parents who participate in education and employment. It is therefore, imperative that early childhood education and care, ECEC, is not linked to a parent's participation in education or employment but instead is linked to children's needs and best interests. One Family believes three reforms could be implemented in the short term and would make a significant difference in families that need additional care. We should prioritise immediate free access to ECEC for low-income and one-parent families in line with the European Child Guarantee. We should target families that need additional support more by the expansion of access to the national childcare scheme for all families in receipt of the medical card. This is an easy way of doing this administratively because this is where some of the difficulty in targeting families lies. We should prioritise addressing the lack of availability of childcare for low-income families participating in further training and employment such as lone parents.

We very much welcome the recommendation of the assembly regarding paid leave. The Parent's Leave and Benefit Act was introduced in November 2019 by the Department of Social Protection and the Department of Justice to improve gender equality. However, the leave entitlement follows the parent rather than the child so if there are four legal parents or guardians in a family, they would get four times the amount of leave than a single parent, which does not make any sense.

We believe there are ways to fix this. While there are constraints because of EU directives, the Government can go beyond those. Due to the high rates of poverty and the additional caring responsibilities of lone parents, it does not make sense to promulgate this inequality on going into the scheme. It should be viewed as support for the child and not just as a gender equality measure. Unfortunately, this is an example of where gender equality undermines the best interest of the child.

In terms of social protection, we strongly support recommendation 13(a) to support social protection payments that lift people above the poverty line. Research in 2021 showed that the gap between the social welfare income of a one-parent household with two children, one in primary school and one in secondary school, is €80 per week. Every week that family has a gap of €80. That is ongoing, persistent, deep poverty. There are ways of fixing this. There could be an additional target under the roadmap for social inclusion and we could bridge that gap by 2025. We believe priority should be given to the groups most at risk of poverty. In the coming months, the Government, led by the Department of Children, Equality, Disability, Integration and Youth, will be developing the EU child guarantee plan, but we are of the view that it must go much further and there has to be a whole-of-government national action plan on child poverty.

We also welcome recommendations in respect of training staff. This is something on which we have been working to engage with the Department of Social Protection for many years. There must be specific modules on helping staff to understand the specific challenges for people who are parenting alone and the complexities of shared parenting because that is not understood by the current system. In addition, training on domestic, sexual and gender-based violence should be put in place. A great deal more could be done in this space and operationally.

In terms of addressing specific needs of lone parents to support them into work or education, we have already said they need additional childcare. Cuts to the one-parent family payment in 2012 have resulted in intense and very prolonged hardship over the last ten years for one-parent families in Ireland. There are cliff-edge cut-offs which are arbitrary, based on the child's age and not on the needs of children. Lone parents provide double the parental care and their employment options should reflect this. Part-time and flexible employment is needed to help work pay and to help people lift themselves out of poverty. There are innovative approaches which need to be mainstreamed. Our new futures employability programme has incredibly high success rates and is one of the evaluated programmes that should be mainstreamed.

On child maintenance, we are aware that there is a review group which is due to report shortly to the Minister for Social Protection, Deputy Humphreys. This is an area of major concern. It is immediately directly related to child poverty. It causes massive difficulties for families who are forced to go to court and families who have social welfare payments cut as a result of child maintenance not being paid. We look forward to reviewing the content of that report because change in that area is urgently needed in terms of gender equality and child poverty.

We support the recommendation to increase the minimum wage to align it with the living wage, and we support the recommendations relating to domestic, sexual and gender-based violence.

Briefly, we also support the additional recommendations relating to investment in quality public services and policies which promote gender equality. Recommendations are only as useful as the resources and structures in place to implement them so we need robust implementation strategies. We repeatedly see plans that fail because there is not the required funding, political will or necessary structures. Many of our recommendations are in the 2017 Oireachtas Joint Committee on Social Protection report on lone parents, which is part of the programme for Government. We hope that many of these are being put in place and that there is an opportunity for this committee to oversee them. However, like our colleagues, we urgently await a referendum on the constitutional issues and we welcome that society is at this point where we are having a conversation about it at this level of government.

Chairman

Thank you, Ms Kiernan. Thank you also for the practical approach and for submitting suggested wording. Your focus on Article 8 of the convention is very useful, and we are looking at the rewording of the family guarantee. Before inviting members to put questions or invite comments from the witnesses, I again thank our guests for their engagement, written submissions and opening statements.

Senator Alice-Mary Higgins

I wish to gather my thoughts. I will contribute in the second round.

Chairman

That is fine. I call Deputy Niamh Smyth.

Deputy Niamh Smyth

I thank our guests for presenting today. Ms Brady has done terrific work with us in the other committee with regard to online safety and media regulation, representing the needs and voice of children. I thank her for that and appreciate it. Ms Gibney gave a powerful and moving statement this morning. I felt like standing up and applauding her.

Chairman

Hear, hear.

Deputy Niamh Smyth

She gave a very personal statement and we very much appreciate that. In her statement she says: "Constitutional change is just one part of the story, and we must consider complementary measures that might in parallel, and often in the more immediate terms, champion and allow gender equality to prosper as our societal norm". Will Ms Gibney expand on that?

Ms Sinéad Gibney

I will open and invite my colleagues to join me. In our submission and, most recently, in the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, are outlined the key issues that we need to see happen. It is to acknowledge, more than anything, that while constitutional change is important, and Ms Kiernan spoke very well on this, it is in many ways symbolic and what we need to see happen is the legislative framework, the policies and the practices that will bring about actual change for people. In particular, the equality budgeting measures that we are working on and will continue to work on is one of the important areas.

The upcoming equality legislation review will have key implications for people in terms of combating discrimination more effectively. When our equality legislation was introduced over 20 years ago it was very progressive and went beyond the requirements at the time. It has now lapsed, as it were, because society changes and, unfortunately, the laws have not kept up with it. That is a piece of work we will be very focused on this year. In fact, we are about to kick off an advisory committee which my colleague, Professor Fennell, will chair to bring in expertise to ensure that it is an effective process. It goes beyond just looking at the grounds. It is about changing our equality law to be more proactive in its outlook. People should not have to fight discrimination; it should not happen in the first place. Our legislative and policy framework must be amended to make that happen.

I will invite Professor Fennell to comment.

Professor Caroline Fennell

I will expand on what Ms Gibney said in terms of the symbolic value of the Constitution. It is very powerful. It is important that it reflects the reality of our lives and the complexity involved in issues. We see how with Article 41.2, for example, things can become fossilised, are completely anachronistic and stay there. They then have a latent power, as it were, to be used incorrectly or to frame an argument in a certain way that is at odds with current life. One of the big difficulties or challenges in the reforms of Article 41 is exactly that issue of specifying gender equality and specifying anti-discrimination but being very careful and certain not to approach discrimination in a very linear, almost old-fashioned way, where certain categories are hermetically sealed.

We know that discrimination is intersectional and it is tremendously important to future-proof the Constitution whereby the wording we choose makes that explicitly clear. Discrimination is different for women who are members of ethnic minorities or who are disabled, for example. It is different for people depending on the number of groups that they could be seen to be involved in or the number of challenges that apply to their particular circumstance. Discrimination law generally, and this is an international issue, has suffered from a categorical approach that is linear and hermetically sealed. Ireland needs to not adopt that, but embrace intersectionality and recognise the complexity of people's lives and the different ways in which they can be discriminated against. That is tremendously important. The legislation that is currently being reviewed will make that a reality, but the Constitution must set the appropriate frame so the wording will be very important here.

Deputy Niamh Smyth

We all watched the documentary last night, "Ireland's Dirty Laundry". This hearing comes on the back of that and it is so appropriate. I feel excited that we are at this point and are acknowledging our history, but endeavouring to make the changes that are required.

Ms Kiernan made a powerful statement with many practical ideas and suggestions. Will she talk to us a little more about the maintenance piece? I am very mindful that our constituency offices are regularly contacted by women facing those challenges in the courts. They are usually going without because of the way our system is set up. Will Ms Kiernan expand on that a little?

Ms Karen Kiernan

We made a written submission on child maintenance to the Murphy review group on child maintenance, as did many other groups. We need an impartial independent system to assess what maintenance should be paid and to enforce its payment. That is where people are suffering.

Deputy Niamh Smyth

Yes.

Ms Karen Kiernan

The courts are not fit for purpose to determine this for many reasons. There are also complexities within the social welfare system which mean that sometimes people are made to go to court. That is also inappropriate. It can also be the case that child maintenance is counted more than once, depending on what payments are being made to a person. For this reason, some people end up worse off with child maintenance. Some say they get child maintenance just to enable them to get their payment and they will take a smaller payment just to get on with it.

These issues are strongly linked to relationships between the parents and within the family. Some years ago, we sponsored a meeting between Department of Social Protection officials and officials of the Courts Service who work in Dolphin House. The registrar in Dolphin House said that a summons is viewed as a declaration of war. If someone is made to apply for a maintenance summons, which may seem very straightforward to some people, it is not done within the family and that can cause significant difficulty because it states on the summons that the penalty, potentially, is a jail term. That causes all kinds of difficulties for people who are trying to share parenting of their children. We need an agency which will be able to assess what is fair and appropriate for the child based on what the parents’ incomes are and have that enforced. There are not many good models internationally that really work with children so this is a difficult issue.

We know Senator Ruane has been doing extensive work on this issue on behalf of the Irish Women's Parliamentary Caucus. It has been looking at the revenue model in New Zealand. We will also have to see what the Murphy review group proposes because it will also look at international best practice. We know there are significant difficulties in the UK in the second iteration of its child support system and we do not necessarily want to look to our nearest neighbours for solutions. This is a very difficult issue to solve.

Deputy Niamh Smyth

I thank Ms Kiernan very much.

Chairman

We may have a second round if we keep to the agreed time limits on the contributions of members. I call Senator Doherty who will be followed by Deputy Cronin, Senator Higgins and Deputy Carol MacNeill.

Senator Regina Doherty

I apologise to the guests for missing the beginning of the meeting. I was in the waiting room and could not get in. I believe I am well versed in the opinions of all the ladies present. That is worth noting, in the first instance. I will ask the same questions I asked our guests last week, with one small exception. The number of recommendations we have tells us that there is much left for us to do and that we still have far to go to provide some semblance of equality between men and women in this country. I was privileged to sit around a table as one of the persons who was supposed to be responsible for change. We have always had a hostile environment or there has been a level of indifference to all of the inequalities in society we see daily and weekly. Notwithstanding the groundswell of support I believe we have behind us on this, what obstacles do our guests see?

The context to this is that I was the Minister who employed Ms Justice Murphy to do a body of work that she and I agreed in our first meeting would take a number of months. This is no reflection on Ms Justice Murphy or her team but here we are three years later and we still do not even have a report. We have a Department which is indifferent and puts obstacles in women’s way. As Ms Kiernan just said, these create a situation in which we have parental alienation and the other people who suffer in that situation are the children. What are the obstacles and how do the witnesses feel the environment sits at the moment?

Chairman

Was that question directed specifically to Ms Kiernan or was it for all of the witnesses?

Senator Regina Doherty

Perhaps all of the witnesses have a view but Ms Kiernan may wish to answer first and the National Women’s Council of Ireland and IHREC may then follow, if that is okay. I am being brief, even though I know we could probably talk about this for hours.

Ms Karen Kiernan

It is very interesting to hear a former Minister for Social Protection say that the Department of Social Protection is indifferent to the needs of women. It is very telling and I appreciate the Senator’s candour. If that is true and is something that we may experience, then that is a very significant obstacle. I am still processing what the Senator has said.

I do not believe I mentioned parental alienation so I will not comment on it. This is linked to a lack of understanding of contemporary families and what family means. The social welfare system is one which promulgates out-of-date forms. When the Senator was a Minister she took steps to try to deal with the difficulties of domestic violence survivors who were trying to access social welfare payments. All social welfare staff were supposed to be trained but they have not been trained, however many years later it is now. I do not know how we overcome that, quite frankly. There is a deep-rooted ambivalence towards the needs of the vulnerable. The lack of evidence and the way in which our policymakers and government can ignore evidence is one of the problems. We often see people making political decisions which are not based on evidence. Targeting poor children is the way to prevent poverty. People who already have enough are being given payments, such as electricity or gas payments. I do not need that money as I am lucky to earn enough but there are children who need it. That is the kind of poor decision-making by government that is not based on evidence.

Ms Orla O'Connor

The Senator asked an important and perhaps accurate question on identifying obstacles. In the context of what we are discussing and the Constitution, we still face an enormous obstacle in terms of how we view care in Irish society. We have always known that there is an inequality in the relationship of men and women to care. There is a lack of balanced distribution around care between men and women. Coming out of the pandemic, it became much more obvious to people how embedded we are in an unequal relationship in respect of care and that it is still very much women’s role to provide it.

That was a major part of the consultation with our members over that period. While a great deal has changed, the issue of care has not. That is why the referendum will be a real opportunity to have a completely new conversation with regard to care between women and men and in respect of the State’s role in care. It is an enormous opportunity and one we should grasp.

As well as bringing about constitutional change, it could also bring about the sort of cultural and societal change that is needed. That is a big part of the obstacle. It is about the cultural and societal side. That is also the case for many of the other areas the Citizens’ Assembly considered. We have had a whole conversation about violence against women and the societal piece that needs to change, as well as the State piece with regard to policy and legislation. I apologise if that is taking just one aspect of Senator Doherty’s question but it is probably the one that is most pertinent today.

Chairman

I thank Ms O’Connor for bringing us back to the constitutional change and the opportunity it offers. Does IHREC or the Children’s Rights Alliance wish to briefly respond to Senator Doherty’s question?

Dr. Salome Mbugua

I thank the Senator for her question. I believe we already have everything in the policies we have. IHREC produces a great deal of quite good recommendations. My view is that we have policies that we do not translate into actions. That impacts on the way we should combat some of the issues we are talking about.

I also want to talk about the intersectionality that was mentioned.

We must recognise the diversity that exists in Ireland today and enhance that diversity whether we are talking about people who are disabled, have mental health issues, come from migrant communities or Travellers. We must be able to ensure they are not discriminated against when we provide support and services. IHREC has produced recommendations from its policy work and research done in previous years and even now.

I want to mention Article 41 because we have spoken about the discriminatory aspect whenever we try to provide people with supports and services. The best way to assist every family is to protect them from poverty. There is a wide range of families and we must also talk about people who experience challenges in trying to set up as a family. We know, for example, that family reunification has been difficult, especially for people who come into this country. IHREC has produced submissions on the matter and related it to Article 41. It would be good to look into all of these aspects that stop us and yet we have the solutions that have been provided by many bodies, including IHREC, to solve some of these problems.

Chairman

I will come back to the Children's Rights Alliance in the next round, if that is okay with Senator Doherty.

Deputy Réada Cronin

I thank everyone for their interesting submissions. There was nothing in them with which I could disagree. Sinn Féin wholeheartedly supports the three recommendations we are discussing.

Recommendation 1 is that the reference in the Constitution to all citizens being held equal should be amended to refer explicitly to gender equality and non-discrimination. A concern was raised at an earlier meeting of the committee about the creation of a provision in the Constitution referring to gender equality and non-discrimination, and it was asked why not include race, age or sexual orientation. It was also stated the new provision might need to be accompanied by a text addressing matters pertaining to direct as distinct from indirect discrimination. What are the witnesses' views on that advice. We have recommendation from the Citizens' Assembly.

The Irish Human Rights and Equality Commission in its presentation stressed the importance of alignment between the constitutional reform and the review of equality legislation. Last week Dr. Day discussed the fact the members of the Citizens' Assembly wanted to see their recommendations acted on quickly by the Oireachtas. Ms Gibney said "...we hold the view that Article 41.2 is not compatible with Ireland's international human rights obligations". That is very significant. Is it the view of IHREC that the amendment to Article 41 needs to wait until the equality legislation review is complete and the heads of the Bill are ready or do the representatives think we could progress with this at the same time as the work of this committee?

Ms Sinéad Gibney

Professor Fennell might comment on some of the questions Deputy Cronin has put forward. I thank the Deputy for her questions.

I do not necessarily think one must wait for the other. It is that they have to speak to each other, which is the point I was trying to make. It is not entirely clear yet exactly what the review of the equality legislation is going to look like. It has fallen a little bit behind the original timescale proposed for it. On a positive note, the view of the Minister seems to be it should be a comprehensive look at equality legislation. I believe, therefore, the objective will run through this year and I imagine what we will see then is a legislative programme fall out of that that will be addressed during the remaining term of this Government. That is my understanding and I am sure the Minister, Deputy O'Gorman, will be able to provide more detail.

The Deputy is right. Since the establishment of our organisation and, indeed, our legacy bodies before that, we have been quite clear that Article 41.2 is not compatible with international human rights standards. It is not just about the very sexist language that is included in it. It is about what it represents as well. I invite Professor Fennell to talk about the specifics the Deputy asked about concerning the previous witness.

Professor Caroline Fennell

I do not know if I have the complete answer but I believe it is not necessary to put the term "direct or indirect discrimination" in the Constitution. I completely accept the point there are different types of discrimination and it can be asked whether all those other grounds should be included. We know from our own legislation that some grounds are currently not included that should be. The danger in terms of the Constitution is that if a certain number of things are listed, then something will be forgotten that ultimately may become very significant. That argument could also be made that it should just be non-discrimination that is included and it could be queried why gender equality should be specified. My feeling is that for long enough we have had gender specificity of a type that we do not like in Article 41.2, so why not for once elevate gender equality in Article 41, and other grounds of discrimination can be defined and set out elsewhere?

In terms of the point that was made earlier, and the obstacle point, in a sense, that Senator Doherty mentioned, the fact we do not make progress very often is rooted in a mindset. If that mindset finds any kind of solace in the Constitution, it is all the more difficult to root it out, if you like. That is how constitutions help people's minds to change. They are important in a cultural and influential way. To that extent, specifically calling out gender equality in the equality provision makes a lot of sense and would be very positive for Ireland. The other aspects of non-discrimination are perhaps best dealt with elsewhere. One could argue with me on that, and it is possibly a position not everybody would agree with, but as long as we are sure intersectionality is also covered in the constitutional change, then we are dealing with the complexity of discrimination but also dealing with the fact that for too long gender has been the basis of major difficulties for women in Irish society. That is something that needs to be addressed, but that is somewhat of a personal view.

Chairman

That is very helpful because it is a central issue for our deliberations.

Ms Jennifer McCarthy Flynn

The Deputy raised a challenging and interesting question. Obviously the National Women's Council of Ireland takes the position that gender inequality is one of the most profound, persistent and confounding inequalities experienced in our society and, therefore, requires special attention. That is reflected in the 80% of constitutional bodies across the world that recognise that very specific core inequality that is experienced by 50% of the population. We see gender inequality as a horizontal principle that requires specific focused attention.

On Senator Doherty's question why this is still with us and why we still have to tackle it, we would answer that we need requirements for the positive promotion of gender equality. It is not just that non-discriminatory principle. We need to encourage the actors of the State, whether it is Departments or other State actors, to promote gender equality positively, which is recognised in a couple of places in European countries in constitutions and so on. That does not take away from the fact that, as my colleague in IHREC has said, we also need to recognise the real intersectional compounding inequalities that are experienced so that they are named in our equality legislation and citizens have the right to name it, and not just in terms of experiencing gender inequality and taking a case on the grounds of race, being a member of the Traveller community or being a disabled woman. We need to be able to recognise the compounding nature of inequality in law. It also needs to be recognised by State actors to have a broad, encompassing and holistic approach to inequality. It may be one person standing in front of you but they are carrying the weight of multiple discriminations and we need to be able to account for that. The horizontal principle of gender inequality is so profound in Irish society that it deserves the weight in the Constitution of calling for a specific positive promotion and action against it.

Senator Alice-Mary Higgins

I thank the witnesses. I took advantage of coming afterwards so I could build on the questions because there are so many points to pick up.

Regarding Articles 41.2 and 41.3, a lot of the impact that comes across in the witnesses’ testimony is that it is not necessarily always visible in court cases and in case law, but it is there in the decisions made, and there is that kind of mindset question in the decisions made on social welfare policy. This is particularly the case when looking at how those two things intersect, for example, the issues around the single breadwinner model in the social welfare system and the fact of lone parents falling outside that space where there is that requirement for full-time availability for work, which is put on lone parents when their children are 14 but not, for example, on other family units. On that, I want to get a sense that this has an impact, especially as those two pieces intersect with each other.

Then, flipping that, with regard to how we change it, I was glad the witnesses mentioned the Oireachtas joint committee report from 2017, of which I was one of the co-authors. The fact is we know there are lots of ideas on the table that could address this but it is around that need for a constitutional signal so there is something at a very high level and we are not reliant on an individual Department or its culture changing, because they already have the ideas and these have been given to them for many years, but it is almost a matter of that imperative being created in the debate on the constitutional change. I would like the witnesses’ thoughts on that.

On Article 40, and this can go a bit wider as we come to the detail, we want a referendum next year, or referenda as it might be plural if issues are taken together. As well as looking at what we want to put in with regard to Article 40, we have to look at what we want to take out or what gets replaced. On the language around the State having “in its enactments have due regard to differences of capacity, physical and moral, and of social function”, we know that was put in with regard to women, and women were explicitly named at one point and then removed from it when it was being drafted. Is that language that we replace if we put in recognition and equality? Otherwise, it was about citizens being equal before the law but there was that caveat. There was also the question of the move for gender equality also being a reaction against a space given for gender inequality in Article 40 originally.

Similarly, on Article 41, we need to think about what a referendum looks like. On the language, my view is that we should combine the two changes on the family and in terms of that gender-neutral recognition of care but, again, it is almost a matter of thought about where that gets inserted. We do not want to risk the right to divorce that was inserted or the right to marriage equality, so it is a matter of which articles get amended. Do we amend Article 41.1 or do we just do Article 41.2 and 41.3? Again, I am sure there will be answers later on that, but it would be useful to tease it out.

I am very interested in what was said about the family, in particular that at the moment we are out of line with international human rights law. Certainly, on the definition of "the family", it seems that it is also an area where we are not in tune with the European Court of Human Rights and others or on family reunification. Again, there is a bit of an anomaly whereby it is not just that unmarried families are treated differently, even though they comprise more than one third of families in Ireland now, but also that for families seeking family reunification, with family members based here, their right to have their families come and be with them is different from the rights we give to family elsewhere. The witnesses might comment on that aspect as well.

Chairman

I will go first to the Children's Rights Alliance.

Ms Saoirse Brady

I will pass to Ms Ahern on the definition of "the family" but I will deal with the first point around the barriers from different Departments. We see that the children of lone parents and certain other categories such as Travellers are over-represented in the poverty statistics, which Ms Kiernan spoke about. It is really about stigma. We are not hearing from those families or from the children and young people themselves because they do not have a voice in this very often. Ms Ahern heads up our legal information line so she does hear from children and young people directly, as well as their families, on how some of those family situations play out in reality.

One of the other things that is key to this goes back to Senator Doherty's point about what needs to be done. We see in the draft third strategy on domestic, sexual and gender-based violence a real focus on the education of children. If we are talking about that learning about gender equality and if we really want to have societal and cultural change, we need to start very young. I have a two-year-old boy myself and we talk about consent and about respect - he hugs too much. I am trying to talk to him in an age-appropriate way but that is certainly something that comes up. We need to look at the different practical applications of this. Trying to remove the stigma and trying to ensure that policies that are put in place are poverty-proofed and looked at in terms of children's rights would really help with that, not only for girl children but also for their mothers and other female carers, and also the boys and single fathers, for example, and non-binary people.

I will hand over to Ms Ahern on the definition of "the family", which is what we could speak to in this regard.

Ms Julie Ahern

When it comes to the definition of "the family", the Constitution and our laws are completely out of step with the European Convention on Human Rights, ECHR. We have talked about single-parent families but children are also being parented by grandparents, aunts and uncles, and that is all recognised within the ECHR but it is not recognised in our Constitution. What we are concerned about in the Children's Rights Alliance is that while we have had the children's referendum, we have not seen the interplay between those two provisions yet, that is, between the family and the children's rights provisions within the Constitution. Those provisions are quite limited and we have given effect to them in the Children and Family Relationships Act, which goes beyond the Constitution. Therefore, our national laws are even out of step with the Constitution and there is nothing that would currently prohibit someone from challenging our national laws and saying they are not aligned with the constitutional protection of marriage and the family. There is actually a bit of a danger that if we do not change it, some of the forward progression we made in our legislation in 2015 might be challenged.

There are other issues coming up when it comes to the importance of that definition. It is very important, when we look at the definition, not just to think about it in the most tight way, for example, who cares for a child. If we look at it from a child's perspective, it is also aunts, uncles and siblings. We mentioned earlier there are more than 3,000 young carers and, therefore, they need to be reflected in all of this as well. If we look at it from the perspective of the child, we can see how many people can be encompassed in this. It is very important when looking at the wording that the ECHR has it and, as other colleagues have mentioned, we have to be in compliance with the ECHR. It would be remiss of us not to take guidance from that when looking specifically at the wording.

The Senator mentioned the provisions around the traditional woman in the home, or the care clause, and whether that should be integrated with the family. We could run a risk of that then limiting it and limiting the care clause to family caring, and we have to think about the wider societal caring if they merge together.

Senator Alice-Mary Higgins

I was not suggesting merging them together. It was more that when we put the question, do we put the two changes as a single question?

Chairman

I am conscious we are out of time on this round but I might ask Ms Kiernan to come in briefly on the questions from Senator Higgins, and we will then move on to Deputy Carroll MacNeill. We can then come back to the other witnesses.

Senator Alice-Mary Higgins

It would be good to come back on the legal questions as well later.

Ms Karen Kiernan

When the cuts to lone parents were introduced in 2012, we looked to see whether the Constitution could protect the woman's role in the home and we were told “No”. Therefore, I could not answer the Senator in terms of what effect this will have on social welfare provision or the male breadwinner model, and there may be other people who are more expert. The wording we proposed around Article 41.3 came from Judy Walsh in UCD, who is an equality and human rights expert. She would be far more au fait with potential wording but we will also come back to the Senator outside of the committee in response to her question.

Ms Sinéad Gibney

We will similarly follow up on some of the more specific questions on wording that the Senator has put to us. In terms of the case law, we are seeing some cases. We have been amicus curiae in a number of cases in recent years that have referenced the constitutional definition of "marriage", and I noted in my opening comments that we are seeing a change there. They are related to issues such as housing assistance payment, where a single father was refused payment and it was simply not recognised that, as a secondary carer, he had a need for substantial space for his children. There was another wardship case more recently - the case of JJ - and there was also an immigration case. Family reunification is the other area where we have done a lot of work.

There is a different wording there, a different recognition or specification, and I know that that was updated for the more recent Afghanistan programme, although there were other issues with that programme. It goes back to the point that family does not exist because people are married; family exists because of the ties people have and the activities they do. As everybody else has said, the ECHR definition is what we should look at.

Chairman

That is very clear. I will come back to the National Women's Council in the next round.

Deputy Jennifer Carroll MacNeill

It is such a pleasure to get to talk to the witnesses about this in this way and such a pleasure to be at this stage of the conversation about the question of marriage in the Constitution, which in so many respects is settled in that there is no debate about it. When we spoke about this committee meeting in private session, my first concern was about the wording, what will work vis-à-vis the rest of the Constitution and what will work as a question put to the people. It is a very practical approach. I agree with all the motivations behind everything, so my questions are driven by a need to try to reach a practical solution as quickly as possible.

I am reminded about what Ms Ahern said about the Children and Family Relationships Act and the swathe of constitutional change in this area, with one element building on the other. Ms Ahern is quite right that there has been no real assessment that I am aware of or intersection between Article 42A and the question of the family. In some respects maybe that was the trick missed back in 2012 with Article 42A. Looking at how it came about, the motivation was to give children rights in and of themselves, to separate those rights from those of their family and their parents, from where they had been derived in the first instance, and to provide for concepts we wanted such as the best interest of the child and the voice of the child. At the time it was about overcoming the barrier of Article 41, on the family, rather than anything else. Ms Ahern talked about the Children and Family Relationships Act, which preceded the marriage equality referendum and which I believe in many respects paved the way for the success of that referendum because the question of children had to all intents and purposes been taken out of the debate. I was involved in the negotiations on that. Privately, the question was how the Children and Family Relationships Bill 2014, as it was then, was constitutionally compatible when the civil partnerships Act 2009 had not been. That Act had simply left children out in every respect. The argument which was made at the Attorney General's office and which won out was that the thing that was different then was the existence of Article 42A in that children themselves were constitutional rights holders, so the 2008 position no longer persisted and we were in a different situation, ergo the Bill got through the Attorney General's office, passed and made a big difference to the referendum. That is the sequence of how things have been built. It is important to go through that because how it now interacts with the topic at hand is crucial as well.

I have listened to the different wordings and motivations behind them. What we are agreed on is the provision for family equality generally, removing the question of marriage as being relevant, as Ms Gibney says, and basing this on relationships, which of course is what it is. I refer to the question of positivist statements or otherwise on gender and care, how they are framed and their relative importance. I completely agree with Ms McCarthy Flynn and other speakers about the absence of gender equality and the need for a normative, positive statement in itself. Of course, we do not want to have to have that. I wonder when we talk about the practicalities of winning the referendum - and this is the tension - how much we will get from the inclusion of such a statement in practical constitutional terms in a way that reflects an obligation in respect of legislation and the courts in real terms versus making a more neutral statement, within and under which we can legislate, that is compatible with the rest of the Constitution. I just do not know the answer to that. I can see Professor Fennell saying "maybe" and "I do not know".

Professor Caroline Fennell

It is a really good question and it is a really big issue. I am reminded that the Citizens' Assembly came down in favour of this, so I suppose that is influencing me to a certain extent, but the Deputy is exactly right that this is the conundrum. I will not answer the question as I do not have a definitive answer other than the views I expressed earlier. There is one thing we should not miss or one possible danger, it seems to me, and that relates to the provision of care and the statement in that regard. That cannot become another Article 41.2. It cannot be linked. There is a small danger that in a sense the highlighting of care and the care responsibility cannot feed a narrative that is stereotypical. That is very important.

Deputy Jennifer Carroll MacNeill

I totally agree with that. I just wonder how the various iterations of wording may get to that. As Ms O'Connor said, so much of this debate and this effort is about a major cultural change as to how we perceive care, the care obligation and the joy of care, particularly for women, how that relates to children and how that impacts them over time. When we come to the wording, including vis-à-vis the rest of the Constitution and how that sits together, it should not be in conflict. It is a matter of trying to identify how this will work best. I am very practical and just want to get something that will be effective and will win. It is a matter of trying to achieve that. I was listening to Ms Kiernan when she spoke about the wording proposed. Did she say "Walsh"? I heard "Walsh".

Ms Karen Kiernan

Judy Walsh.

Deputy Jennifer Carroll MacNeill

I would be very interested to hear from Judy Walsh and to hear about her background. There is so much in this and it is so desirable but, as a stand-alone constitutional provision, it has in it so many new words that are not constitutionally tested and do not have a read-across with the rest of the words in the Constitution. That would cause problems when it came to getting it through the Attorney General's office and how all of that sits together. I know it is compatible with Article 42A, but there is a slight contradiction because Article 42A provides that in fact the family can be interfered with. What the witnesses are saying, however, is that there is an awful lot that is desirable in this. It is about taking something of this nature and distilling it repeatedly into something that is compatible with the other words in the Constitution, not untested words that would throw up other issues. I am not against that entirely; it is just that we need to be sure of what we are doing when we table amendments. Maybe we can speak more to other drafters about finessing that.

I am sorry. That was more of a contribution than a series of questions, but would anybody like to respond?

Chairman

I ask Ms O'Connor from the National Women's Council to come back in on this issue.

Ms Orla O'Connor

Ms McCarthy Flynn might also have something to say. Deputy Carroll MacNeill is going to the heart of some of the issues that will come out in a referendum and that we need to be really clear on going into that referendum. As for the non-discrimination clause, or however we want to term it, and the explicit reference to gender equality and non-discrimination, from our look at what has happened in other constitutions, our view is that there is a strong enough argument that that can have a really positive, practical implication. The Austrian example led to a very strong case for gender budgeting. There are high-level pieces that can come from that principled inclusion in a constitution. That is important and has to be communicated very clearly, but there is enough evidence, in our view, that this has the potential to make a difference. It is a matter of trying to challenge society and bringing us forward on where we are with regard to women. I think that was very much the essence of the Citizens' Assembly. Deputy Niamh Smyth mentioned the Magdalen laundries earlier. We have come to a point of wanting to make a really positive statement as to where we are regarding women. I think that that is part of the impetus for putting something like that into the wording.

Ms Jennifer McCarthy Flynn

When we talk about a constitution, we must be careful about how constitutional sections interact with one another. Quite simple statements can be made. Many European constitutions or basic laws, or whatever they term them in their own languages, make relatively simple statements. Even in respect of the Charter of Fundamental Rights of the European Union, there are good models that can be looked at, that we can consider for incorporation and that would have knock-on effects on what we are seeking to achieve but would not necessarily have too many negative impacts. As for the language, regarding Article 41.2, our position is that there have been a number of examinations of that language and consistently the Irish citizens do not want it deleted but kept and amended. They want the sexism deleted but they want care kept in the Constitution. That has come through a number of times.

The wording we are proposing, which is in our submission, is wording we have worked on over a number of iterations since 2013. On each occasion it has been put to a group of people - not policy wonks - who have agreed that it is what they would like to see. I suppose we feel the language is fairly robustly tested in a couple of places. Language around non-discrimination and gender policy has been fairly robustly tested across European constitutions. I suppose we defer to the expertise of our colleagues around the family and examining that. There are certainly emergent norms in Irish society supporting conceptualisations of family that are not marital but are about interdependent care, love and support.

Deputy Jennifer Carroll MacNeill

I have no doubt about that. It could be the more straightforward piece, to be honest.

Ms Jennifer McCarthy Flynn

Sure.

Chairman

I thank Ms McCarthy Flynn for that really detailed engagement. I have a number of questions that I might put if it is okay. I invite each of the witnesses to comment on them, as well as any earlier points made by colleagues. If anybody has some questions to wrap up, we can do a second round if that is okay. I know Senator Higgins and Deputy Cronin have already indicated in that respect.

As the delegations have heard, we are engaging very closely on precisely how to implement these three recommendations on change and what form of referendum to put. A number of the questions have been directed to that. We have been engaging with legal experts and we heard from Dr. Tom Hickey and Dr. Laura Cahillane in private session. We will be pulling together a group of legal experts and will invite Ms Judy Walsh to engage with us when we have taken our own view a little more clearly on how to implement those three recommendations and the wording in particular. As the witnesses have heard, there are some very specific matters with which we are grappling.

The National Women's Council of Ireland has given a definition of care, recognising care and giving "society a support without which the common good cannot be achieved". The Citizens' Assembly recommended that the wording should include an obligation on the State to take reasonable measures to support care within the home and wider community. Is that an essential component of any amendment to Article 41.2? I ask the same question of IHREC.

Coming back to the point made by Senator Higgins, what should come out of Article 41 if we are deleting the language that is sexist and currently gender-specific and using a formula involving care? What else should come out? In particular, should we delete all reference to marriage and the special position of marriage, given that, as we have heard from the Children's Rights Alliance in particular, it is at odds with what is said in Article 42A? Should we delete the reference to marriage? Should we dilute the protection for the family or simply expand the definition of "family"? Those are questions for all four groups.

We have grappled with the following question with legal experts. Are we looking at a full rewrite? Is it preferable to do a full rewrite of Article 41 or is it more politically and legally robust to make the more minimalist three-pronged changes to Article 41 and Article 40.1, as suggested by the Citizens' Assembly? Those are quite detailed questions.

Ms Orla O'Connor

The wording we are proposing is very much that arising from the Citizens' Assembly but it puts this language on it. This was wording we developed in the time of the previous Convention on the Constitution, when we had legal advice at the time from Dr. Alan Brady. We went around the country and consulted our members. There was a major consultation process to get to that wording. That is why it refers to "home", "family" and "community". It is that broader piece. We are very confident about this wording because of the consultation and different processes that it has gone through. It is really critical to us that this is about care in its broadest sense. That is really important in terms of the consultation with disabled women's organisations. It is critical in this conversation and it is why we mentioned it in particular in our submission. This is not wording solely about carers but care and the whole value of care to the common good of society.

Ms Jennifer McCarthy Flynn

I am not sure I can come to all the complexities raised by the Chairman but this is about using language already modelled for us. We look to things like the EU Charter of Fundamental Rights, where there are general non-discrimination guarantees and specific gender equality guarantees and promotion of positive efforts towards a recognition of the specificity of gender inequality and so on. Like our colleagues, we look to the transposition of that Article 8 around the family as well. These are useful models that are non-controversial in other jurisdictions as well.

I do not know if it should amount to a complete review of the article. The policy person in me thinks it might be the easiest way to go but there is the political piece about how the citizens of Ireland would feel about it. A complete review would probably feel like a very new step to take. On the other hand, we have been working towards modifying Article 41.2 over a number of decades, almost, at this point. Even in exploring the concept of family, I feel the citizens of Ireland are open and have been engaging in that topic and exploring it for a number of years. Perhaps it would be a winnable referendum to focus on Article 41.2 and expand the definition of the family. We could then explore our commitment to equality, removing that older piece that Senator Higgins mentioned. It implies we are all equal, except when we look at certain special social functions. Perhaps we could look to delete some of those and put in smaller and more targeted elements around gender equality. I am not sure if I have managed to answer the Chairman's question.

Chairman

That is fine. It can be a process with these questions.

Ms Sinéad Gibney

I cannot remember the specific points raised by the Chairman but I can make some more general points. We can see how the time goes.

Chairman

I might go to Professor Fennell and the two other colleagues before we go to a final round of submissions, including from Ms Gibney.

Professor Caroline Fennell

I am not sure I got the granularity of all the questions but I have some thoughts. Simple is good, particularly in constitutions. The equality guarantee in Article 40.1 should be simple and clear, and all the additional language that is there should come out. There is an attraction when making a constitution very different and modern to move away from the concept of family, in a sense, and to try to frame things in a different way. If we are talking about a winnable constitutional referendum, however, that would pose challenges. The easier route is go along the likes of the European Convention on Human Rights, ECHR, and international definitions, and in a sense that is an easy sell.

There is a small point of which we must be conscious. The ECHR in itself is a document of another time. It is not perfect in many ways and it is not terribly modern. I know sometimes perfection is the enemy of the good and I completely appreciate the complexities of what the committee is working towards. This should be an opportunity to have a kind of fresher and cleaner take on a modern Ireland so I would err more on the side of modern language and shorter, clearer concepts. Less is more in terms of reimagining, if you like, what might be involved in the change here. We almost have to do this a little bit because of the care provision. That will make us think a little outside the box. I do not know how helpful that is.

Chairman

It is very helpful. I know all three colleagues want to come in, so is it okay if all three put their questions and comments together before we go back for a full round from each of the witnesses? They can respond to all three contributions and it might flow better as a result.

Deputy Réada Cronin

I will ask about the women's place in the home in the Constitution. There may be many women who would say that a woman having a home would be a nice start. There was mention of using this against an austerity cut but it was useless in this way.

It is ten years since the Convention on the Constitution.

Since then Oireachtas all-party groups have been looking at this. We have been looking at this for at least ten years. Do members share my frustration and that of my party around how long this is taking? We have heard the expression, "another committee away from making a decision", and here we are another committee away from making a decision. How important is it to get going on this?

Senator Alice-Mary Higgins

One of the ways it could not be used was that there was one version of the family and that was only the marital family. The question of being allowed or supported on care did not apply. One of the pieces of language we have looked at is the idea of recognition. It is close to the Citizens' Assembly's suggestion, which is the right to private and family life, including but not limited to the marital family. We are not attempting to tie it to an external thing but at the same time the ECHR could apply. I am struck by the fact that the children's rights piece has been intentional. The child and family relations piece was mentioned but I also see the Equal Status Act, which is why it is interesting, as an attempt to repair. The fact is that family status was included in that. Many other countries do not include family status in their equality legislation. It seems we constantly have measures, such as the rights of the child, almost as though we are trying to keep stacking things against the discrimination that was in the Constitution with laws that cover that gap. At one level the positive is that many good things have come about already so the change may not be seismic because there have been many efforts to chip away at the inherent discrimination but also that tension that comes in small ways. When I tried to get the right to open adoption to post-adoption contact plans for children I was told that constitutionally that cannot happen. It can happen, but we cannot say it happens. There is a weird situation because there was "the family" and then the new adopted family was "the family" and former families did not count, so it comes in really odd ways and has these impacts not often always in laws, but almost in things that do not happen.

We talked about the evolving piece of care. It used to be a case of removing reference to care, then it was about recognising care as important and that the State has a responsibility for care, and that active decision the Citizens' Assembly made for a responsibility of the State to support care in the wider sense and, indeed, now with the UNCRPD with which we want to be compatible, that wider sense of care including not just carers.

I have a final point for Ms Gibney, who mentioned the work she did on the employment piece. The right to collective bargaining is one of the interesting and strong recommendations the Citizens' Assembly made, as being one of the ways to practically give support and power to women.

Deputy Jennifer Carroll MacNeill

To return to the Article 40 provision, there has always been that question about the role of citizens and the role of persons versus citizens. If we are going to tackle that, is there a question as to the exact wording there? I agree with Professor Fennell about simplicity in constitutional drafting. In the various iterations of the marriage equality referendum that were circulated, particularly among the academic community, there were some very long texts put about. One line does the job. That disciplined approach to constitutional drafting is much more likely to succeed. To the extent that this approach could be adopted, it is important. We have to remember that Article 41 is titled "the family" so we have to keep it to that. My question around care in the community is that the word "community", apart from references to the European Community, only appears in the Constitution twice, both in respect of Article 45. Conceptually, it is not there as a justiciable thing. It is not necessarily belong as a word if we are talking about non-family care in Article 41 which is something to think through. I do not know the answer to that yet.

Chairman

I will invite each group to make a closing submission responding to those points.

Ms Orla O'Connor

In response to Deputy Cronin, the fact that there is now this Oireachtas joint committee and that we are here, and the importance placed on holding a referendum next year, it has been a long road, yes, but this is an important juncture. We want to work closely with members to make this the referendum that is easily understood by people. We want to reach this position in our Constitution.

Senator Higgins asked about the responsibility of the State in regard to care. It is so clear and very welcome in the Citizens' Assembly report where they started with the Constitution but then followed through in so many other areas with regard to pensions for carers and public childcare. They really addressed the care issue in terms of what is needed with regard to policies and actions that need to be taken. We see that as part of the discussion on the referendum.

In one of her first questions she mentioned the impact of the male or single breadwinner model. In addition, there is the status of qualified adults or dependent adults within our social welfare system who have been ignored in the system and do not have clear rights. This can be routed back to what is in our Constitution in terms of, not necessarily the piece around the family, but the piece around women in the home and consigning their role to that. That is why that category of thousands of women has been ignored in the system. There are important implications for the article that is there.

The question Deputy Carroll MacNeill raised about community is important in terms of the wording we are recommending, and whether these words have been tested in the Constitution. That is about the balance between how far-reaching we want to go, and the wish for a Constitution for modern Ireland. She is correct that some of this wording has not been tested in the way that other language has been. That ultimately is going to be a judgment in terms of how well we can communicate this to people in terms of what works, and the legal perspective on how that would be defined. Our view is that we should aim for a forward-reaching modern Constitution.

Ms Sinéad Gibney

I thank the members for their questions. Deputy Cronin spoke about the 2015 challenge in looking at wording. To elaborate further on my personal experience it seemed odd to me that the Constitution said that my role was in the home, but there was only one of me, so how am I also the breadwinner unless I am actually supported by the State? My daughter is 21 now and I think it has only been a downward trajectory in the supports for lone parents from the State. In terms of the overall picture it has regressed since then, which has been hugely problematic.

To pick up on some of the points raised by Senator Higgins, she is correct that equality legislation has responded to flaws and difficulties within the Constitution. This is a significant opportunity this year to look at that properly. In terms of care, she has spoken about unpaid care work and some of the solutions we could look at to fix that such as a domestic care wage. If we go back to Senator Doherty's question about obstacles, unpaid care work in society is one of the biggest obstacles to gender equality and we know that. Finding ways in which care is valued is a step we have to take as a society. On the collective bargaining point she mentioned, she was referencing the codes of practice that I mentioned earlier.

Senator Alice-Mary Higgins

Yes.

Ms Sinéad Gibney

It is such a big week for us to launch these two codes of practice, one on sexual harassment and harassment and one on equal pay. They have been years in the making. We are launching them this week. They are admissible as evidence in court so they are a great way for people to use these tools proactively to address these issues. They are there for employers, for trade unions and employees to address these issues. We hope they are well received and well used.

My colleagues might like to pick up on some additional comments. Going back to the question on obstacles, I would call out the economic, attitudinal and representational challenges. Constitutional changes can address all of those but the attitudinal piece, in particular, is so important. When I saw children representing same-sex families speaking during the marriage equality debate, I had a yearning for my own daughter and for daughters of lone parents to speak about their experience, which is not a lesser experience. It is, unfortunately, deemed to be so by many of the norms we have in society. Hearing the voices of those children and families, of people who are in non-traditional - although we have gone way beyond that now - and diverse families speak about their experience and how they are not represented by the Constitution would be a powerful force for dialogue and change in this country. That is important.

Related to that, this committee should be prioritising participation and intersectionality in the voices it calls for. Ms O'Connor has done an excellent job today of talking about the issue of disability and the voice of people with disabilities in her engagements. It goes beyond that. It is about looking at the different grounds and ways in which all of the groups affected by this are going to be involved in this dialogue. I accept the legal wording is the important bit because it makes it effective and something you can win. However, it is also important the voices of those who are most affected by this are front and centre.

I mentioned the different cases, and in particular I would direct the committee towards JJ. The key judgment that is out on that, I believe it is the Baker judgment, references a secondary judgment which was put forward by Mr. Justice McKechnie, who has since retired. His judgment was not published. We had access to it as amicus but it would be helpful if this committee sought the courts to produce that judgment because he goes into huge detail about the definition of family and the court's view on that. I would encourage members to have a look at that.

Professor Caroline Fennell

I will make a small point. Going back to the issue of citizens, the term "citizens" should come out and the term "all persons" should go in. That is a very important point and something I forgot earlier. I believe all references to marriage should also come out, and that might solve some issues.

Dr. Salome Mbugua

I wish to re-emphasise the importance of reorganising the socioeconomic right in the Constitution. Article 41.2 should be amended to support care.

Ms Saoirse Brady

On Deputy Cronin's point about the urgency of this, we have waited long enough. We would be in favour of this committee making its recommendations as soon as possible having considered everything and then moving forward as quickly as possible with the referendum if that is what is recommended.

In regard to the points made by Senator Higgins, the point about the family status piece and the Equal Status Acts trying to compensate for the lack in the Constitution is very important. We have talked a lot about intersectionality. One of the proposed grounds that is being talked about for inclusion in the equality legislation is the socioeconomic ground. That is a very important point, particularly for some of the groups of people we have talked about. I was delighted to hear Ms Gibney talk about hearing the voice of young people and the children of lone parents. That is important. It was so powerful, not only during the marriage equality referendum but also when we were debating the Children and Family Relationships Bill, when we would have had an audiovisual room briefing and we would have had young people come in and talk about their experience, a step-parent talk about their experience, and a same-sex parent talk about not having the biological link with their child. You could hear a pin drop, it was so powerful. I recommend that those people are brought in. It would be important as well to bring in young carers.

We did not propose a wording, but we might come back to the committee if a wording is proposed. Our experience with the children's rights referendum was that the wording changed quite a number of times before it was finally published and it was different from what had been discussed. I urge caution in the language used because what we in the Children's Rights Alliance hear is people saying there are children's rights in the Constitution, but it is not understood that those are in specific instances and only apply in certain circumstances. There is the best interests principle and we talk about the voice of the child, but we talk about them in certain legal proceedings such as adoption, custody etc. It is important that, when this referendum is announced, which we hope it will be, that body of work will have been done to educate the public on that. I urge that piece as well. Those are my key points.

Ms Julie Ahern

Building on what Ms Brady was saying about the learnings from the children's rights amendment, Deputy Carroll MacNeill is right that simplicity is key in this. What we tried to do in the children's rights amendment was to put in everything, and actually what we got is not really as effective as people think it is. The Deputy is right; caution and simplicity are needed. We need to be mindful of what affect this could have in future. Future-proofing is very important. We do not want to be looking at this again in ten years' time saying we should have included more or included less. We need to keep it open for more things to be considered as society changes. That has been the difficulty with the provisions to date. They have been very rooted in what was in contemporary society at the time. We need to future-proof it in the wording. It is important we leave it open to that.

Ms Karen Kiernan

I feel nicely challenged. There are searching questions from the committee, which is good. I hope civil society will not be found wanting. We have more work to do as civil society to respond to some of the questions raised today and doing more work outside of this structure. A number of us are in a loose coalition and have been meeting for a number of months to try to work towards this committee, which we are delighted is up and running. There is an absolute sense of urgency. One of the difficulties being highlighted today is the complexity of the wording in the Constitution versus what might be accepted by the public. We do not know enough yet. There may be polling done on some of the areas while there may not be on others. There is a body of work that needs to be undertaken to answer some of the members' questions because it is a two-track process, as I see it.

I will respond specifically to some of the things that have come up. Building on what Ms Brady has said, there are rights for the voice of the child in the Constitution at present that are not vindicated by the State. The child is not heard in family law proceedings. That may be for another day or another committee on family law reform, but that is the fact of the matter.

It is interesting to hear Senator Higgins mention some of the unexpected places in which the Constitution pops up in terms of the post-adoption contact. We have been trying to figure out what is meant by unmarried couples buying a family home having to sign a waiver. Is that from the Constitution? We have not been able to find out. While I have been saying this is largely symbolic, and it is, at the same time we do not understand all the limitations, whether they be the social welfare code or other applications of legislation. I have not been able to find the right people to give all those answers. Maybe the committee will do better on that.

Our own wording is quite extensive and I understand it is drawn from Article 8 of the European Convention on Human Rights, ECHR, so it has been tested in legislation but perhaps not in the Constitution. Until now, we have certainly been advised not to remove or undermine marriage, but it is still one family form and there are all the others. Our thinking was to equivalise families but that is not set in stone. This is also about getting the right outcome for future generations. That may be a tactical issue - I do not know because I hear what Professor Fennell is saying about that - but it would be good if we considered the questions about specific wording, the interplay of the three articles and come back on that.

Finally, picking up on what Ms Gibney said about consultation, voices and attitudes, is that our organisation has three pillars to our strategy. One is about our services, the second is about policy work and the third is attitude. The attitude towards one-parent families in Ireland is so poor. We try to work on it in every instance. I know from colleagues in the Children's Rights Alliance and work they did on child poverty that the views of the public on lone parents versus other parents are appalling. Whether that comes from mother and baby homes, female sexuality and judgment or whatever other stereotyping or negative attitudes, they are still alive and well. Many people do not even know what they are saying, but I sometimes get questions on the radio that I find absolutely shocking. That tends to be where I hear those views. Parents hear them too and are worried for their children. The piece about attitudinal change may be an opportunity to have another painful - painful for the people involved anyway - national conversation about family and who gets to be a family and who does not. That will help to heal, perhaps. As I said earlier, our organisation is 50 years old this year. One of the pieces of work we are doing is collecting stories from people who have grown up in one-parent families over the past 50 years, looking for those moments of celebration and seeing what their families were like. If that can help feed into some kind of public information campaign, we would be very happy to do that. We are doing that in partnership with the Ark.

I will leave it at that. I thank the committee. We really appreciate its work.

Chairman

Thank you, Ms Kiernan. That is very useful to know. I acknowledge the publication of the two IHREC codes of practice this week, which are groundbreaking. I commend the commission on that great work. I thank all the representatives from IHREC, the National Women's Council, One Family and the Children's Rights Alliance for their very generous giving of their time, expertise and experience today. We really appreciate it. They will have from their engagement with us a sense of just how focused we are on the recommendations of the citizens' assembly and their implementation. We would welcome further engagement with them. I think I speak for all of us and our colleagues who cannot be here when I say that, particularly in the context of those issues of the interplay of the three recommendations, how to approach specific wording, possible impacts and so on. We are delighted there is this coalition of civil society groups. It will be really helpful to us in our work. We have been engaging with a wide range of stakeholders, not all of whom we will be able to hear from in public session. We are conscious that the citizens' assembly also did that and heard from many people with lived experience of the specific issues they were addressing. We are building on the citizens' assembly's work and do not want to duplicate it. We are also working within a tight timeframe, so that will guide our deliberations.

Our next meeting will be with the Minister, Deputy O'Gorman, on 24 March. Thereafter we will move on to consider the recommendations on gender-based violence. We will formulate our deliberations on the Constitution as we go through, so we would welcome further interaction on that. I thank all the witnesses again. Finally, we reflect on how fortunate we are to be here, in a peaceful parliamentary complex, at a time bombs are raining down on Ukraine. We are all very conscious of that. I propose to suspend the meeting for two minutes so we can then go into private session.

The joint committee suspended at 11.44 a.m., resumed in private session at 11.52 a.m. and adjourned at 12.02 p.m. until 1.30 p.m. on Thursday, 24 March 2022.