JOINT COMMITTEE ON THE CONSTITUTION díospóireacht -
Tuesday, 26 Apr 2005

Family Issues: Presentations.

Chairman

Before the joint committee first this morning is the Ombudsman for Children. I welcome Ms Emily Logan who will make the presentation, Ms Marianne Azema and Mr. Paul Bailey. Before we begin, I remind visitors that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

The joint committee has studied the written submission from the Ombudsman for Children. I now invite Ms Logan to give us a synopsis in approximately six to eight minutes following which we will have a question and answer session.

Ms Emily Logan

I thank the joint committee for affording me and my team the opportunity to present a brief synopsis of our view of the constitutional change required to protect the rights of children. I make this submission as Ireland's Ombudsman for Children with a statutory mandate to promote children's rights. The committee will be aware we launched our submission on 31 January 2005.

I would like to emphasise and acknowledge that most children in Ireland live in warm, loving and caring environments. Our submission is specifically directed at children living in vulnerable circumstances. We acknowledge the existence of three previous reports recommending constitutional change specifically recognising the rights of children: those on the Kilkenny incest investigation, 1993; the Constitution review group, 1996 and, the United Nations Committee on the Rights of the Child, 1998.

As Ombudsman for Children, I spend a great deal of time in direct contact with children. I meet them in many situations, including those in care and foster care. It is important to stress that what is most common among young children is their desire to be part of a family. However, this cannot happen due to the conflict between the constitutional parental right and the child's desire to have a family. These children remain invisible and their voices are not heard. They are excluded from enjoying the stability and loving environment afforded to most children in Ireland. This is not only difficult for them but also cruel considering there are 2,000 children in long-term foster care.

I will now turn to what happened more than a decade ago in the case dealt with by the Kilkenny incest committee. That case involved a child and family who were left in a vulnerable and difficult position that continued for a long and protracted period of time which was totally unacceptable.

In terms of looking for guidance on rights, I ask where do we look. As Ombudsman for Children, in terms of my statutory mandate, I am pointed in the direction of the United Nations Convention on the Rights of the Child. However, that convention is not part of our domestic law. Essentially, the duality of our law means that international instruments are introduced in Ireland at a sub-constitutional level. While legislation can be introduced, the bottom line is that constitutionally parents have imprescriptible and inalienable rights which render the rights of children subordinate.

Some 12 years have passed since the Kilkenny incest committee recommended constitutional change. It is time that Ireland, as a society, acknowledged that children, too, are independent holders of rights. I urge the joint committee to consider the needs of vulnerable children for whom constitutional protection is an imperative.

Chairman

I thank Ms Logan for her succinct presentation. The Office of the Ombudsman for Children which has only been in existence for approximately one year is to be complimented on its very detailed written submission which deals with a great deal of case law and so on. It is obvious the Ombudsman supports the call for constitutional change to enhance the rights of children. However, she has not proposed any wording in that regard. How in her opinion should such an amendment be framed?

Ms Logan

I do not intend to propose the wording of an amendment for the joint committee. I have sought advice from my counterparts across Europe, of which there are 21, who look to the modern South African constitution which is based on common law. It is probably the most modern constitution, given that it embraces the spirit and ethos of children's rights under the UN Convention on the Rights of the Child. I suggest that the committee look beyond the boundaries of Europe to places such as South Africa. I understand from my colleagues in Europe that Article 28 of the South African constitution is worthy of consideration.

Senator Dardis

I thank Ms Logan and her colleagues for attending this morning. Her views are important, given her statutory position and experience. From the cases with which she has dealt, have there been instances where she has not been in a position to adjudicate as she might wish as a result of constitutional constraints or due to a lack of specified protection for children under the Constitution?

Ms Logan

There have been cases outside the jurisdiction of the Office of Ombudsman for Children about which other agencies have expressed concern such as a family in a vulnerable position in which there has been a protracted response to a child's vulnerability. We have not been able to investigate such a case because the issue of child protection per se comes within the jurisdiction of the health board rather than the Ombudsman for Children. However, other agencies representing children have brought similar cases to our attention to highlight such concerns.

Senator Dardis

Another issue which has arisen is that of the rights of natural parents, on which there is a spectrum of views, including the suggestion that the rights of natural parents should be paramount. Concern has also been expressed about the rights of a parent who becomes involved in a second stable relationship but who showed no interest in the upbringing of a child and the rights of a supportive stepfather or stepmother. Perhaps Ms Logan will give the joint committee her views on those issues.

Ms Logan

Six to eight cases brought to our attention highlighted children's involvement in such decisions. However, such cases are dealt with by the courts and we cannot get involved. The bottom line is that children's views have not been given paramountcy. As Article 41 gives an alienable right to parents, by and large, it is their views that are sought.

Deputy O’Sullivan

I welcome the delegation. I would like to tease out the issue of enumeration of rights under the UN Convention on the Rights of the Child dealt with by the Ombudsman for Children in her earlier submission to the joint committee. Other delegations which have appeared before it have suggested it would be better to provide general rights for children rather than to enumerate rights as is done in the UN Convention on the Rights of the Child. Perhaps Ms Logan will counter that argument, given her suggestion that rights should be enumerated. The details of what is contained in the UN convention are set out in the submission.

A child born within marriage cannot be adopted. Is there a specific provision that could be inserted in the Constitution, of which we need to advise the public, that would address the issue or could it be addressed by placing emphasis on the rights of children as individuals as opposed to members of a family?

Ms Logan

The issue of adoption could be addressed if we accepted and acknowledged that children were individual rights holders. Such an expression in the Constitution would address the issue.

On the first question of general enumerated rights, we are not suggesting the insertion of a list of 12 enumerated. There are 54 provisions included in the UN convention. We hope an expression and acknowledgement of children's rights in the Constitution would deal with the issue. What we are looking for is an expression that acknowledges children are individual rights holders rather than just being members of a family where their rights are subordinate to those of their parents.

Deputy Andrews

Following on Deputy O'Sullivan's last point, in many cases the Supreme Court has stated there are unenumerated rights for children in the Constitution and that it is up to the Legislature to enumerate them, implying that no constitutional change is necessary. Effectively, it is a matter for the Legislature to transpose the UN convention into Irish law.

As Senator Dardis stated, there is a spectrum of views on the issue of the special position of the family based on marriage. Does the existence of two legal forms of family — one based on marriage and one not — have implications for children, given that some cases might pick up on the nuances between a constitutional family based on marriage and a constitutional family not based on marriage? In other words, does Ms Logan have a view on the special position of the family based on marriage?

Ms Logan

I will deal with the Deputy's first question on enumerated rights. The Constitution presents us with a hierarchy of rights. Article 40 speaks of unenumerated rights while Article 41 speaks of parental rights as being inalienable. In the courts Article 41 has always been taken ahead of Article 40. This has probably presented the biggest problem, although I am not a legal expert. I am aware of Deputy Andrews' background and do not present myself as a technical expert.

Deputy Andrews

I can assure Ms Logan I am not a legal expert either.

Ms Logan

In the more recent PKU case in the north west with which the joint committee will be familiar in which the State did not intervene and the parents chose to object in court to an invasive test on their child, the court upheld the decision of the parents. What we are saying is that if we do not see constitutional protection for children, that situation will continue.

Deputy Andrews

In that case the Supreme Court stated there were unenumerated rights for children to which it would have given expression in its judgment had there been legislation in place. The case might have been decided differently.

Ms Logan

I understand legislative change would still not address the imprescriptible right of parents to make such a decision. One may introduce whatever legislation one likes but if the constitutional right of parents supersedes that of the child, they can object to something like this.

On the Deputy's second question, we have not made a submission on the definition of "family" but I ask the joint committee to consider and acknowledge that one third of children in Ireland are born outside of what is described as the constitutional family. It is normal for the children I meet to have one parent, two parents or grand parents acting as parents. Their perception of family is very different from our adult and old patriarchal view of the constitutional family. We probably need to respond to this and acknowledge that this is the reality in Irish society.

Deputy P. Power

I thank Ms Logan for her presentation and wish her well in her new position. We are teasing out the necessity for an express provision in the Constitution respecting and guaranteeing the rights of children. Ms Logan and a number of other groups have requested the insertion of a specific article on the rights of children in the Constitution. Ms Logan has made the case for this in her written and oral presentations. In her written presentation she states legislation can be introduced but that the bottom line is that under Article 41 of the Constitution parents have imprescriptible and inalienable rights which render the rights of children subordinate. We are trying to tease this matter out but I do not see how that assertion can be made from any reading of Article 41 which states: "The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". Where is stated in Article 41 that there is "a hierarchy of rights" or that parents have imprescriptible and inalienable rights? The wording of the article states otherwise. This case has been made to us on a number of occasions and I am wondering why we should recommend the insertion of a provision in the Constitution. Leaving aside the Kilkenny and PKU cases which we have examined, can Ms Logan, in her capacity as Ombudsman for Children, give specific examples with which her office has dealt which have created a constitutional difficulty for the way in which she carries out her functions or deals with cases before her?

Ms Logan

First, I will deal with the question on constitutional barriers. I cite the example that health boards are governed by statute and, more specifically, in terms of child protection, by the Constitution. The threshold for State intervention in respect of vulnerable children is high relative to that in other countries. The cases I am describing are ones which have been brought to us but because the issue of child protection is outside our jurisdiction we have not been able to pursue their investigation. However, I am aware of a number of cases involving children in foster care where in one case the child concerned wants something to happen in his or her life but because the parents of origin have inalienable rights and an opinion on what should happen, the child's view is not taken into account because the view of parents is given paramountcy under the Constitution.

The second case concerns child protection, a vulnerable child in a protracted situation where the health board felt it could not intervene because it involved a family not unlike the one involved in the Kilkenny case. Even though the Deputy asked me not to refer to that case, it is a case that mirrors some of the circumstances in which the girl in question in that case found herself where health board officials find themselves unable to intervene at a time when they feel it would be appropriate to do so because of the parents' wishes. The Deputy is looking quizzically at me. Obviously, I have not clarified the matter for him.

Deputy P. Power

Where is it stated in Article 41 that parents have rights which are superior to those of children? That is what we are trying to tease out.

Ms Logan

I refer the Deputy to the statement of Mrs. Justice McGuinness at the Kilkenny incest investigation committee in which she suggested the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to those of children. To this day we still see examples in the courts where parents' rights are given a higher value than those of children. Children are seen as part of a family rather than as individuals.

Deputy P. Power

Is there an example Ms Logan can cite in support?

Ms Logan

If the details relating to the PKU and Kilkenny incest cases are not adequate, I can inform the Deputy that there are cases coming to the attention of our office but, due to the restriction regarding child protection, I cannot provide specific information in respect of them. The issues surrounding child protection are probably the most important but, constitutionally, these fall outside my jurisdiction. I cannot provide the committee with a specific example.

Deputy Cuffe

I congratulate Ms Logan on her appointment as Ombudsman for Children. She stated that recommendations were made 12 years ago in respect of constitutional recognition. It is time these were progressed. She also insinuated that the former health boards appeared to be frustrated with regard to the handling of particular cases involving foster care. Has the new Health Service Executive, formally or informally, put it to the Ombudsman that there needs to be change in this area? Is it possible for the executive to seek changes through the Ombudsman's office? Is there a forum for communication between the Ombudsman and the management of the executive to allow them to voice the concerns that have obtained for 12 years?

Ms Logan

My office celebrated the first anniversary of its establishment yesterday. We have just reached the point of developing relationships with those involved in the Health Service Executive and sharing with them an understanding of our brief and remit. In terms of my office's long-term strategy, I would like to develop relationships with the executive in order that it will understand that we provide an independent voice for children. The health executive is an advocate for children in vulnerable situations. Individual social workers have contacted us about particular children. I hope those working for the executive will view us as collaborators in respect of the long-term progression of children's rights. We will be running workshops for these people in June in order to explain our role and indicate how they can utilise our service.

Deputy Cuffe

That clarifies the position. I am sure much of the office's work will be explaining to other agencies its remit.

Ms Logan

While the complaints and redress functions are well understood, the position is not the same in respect of the advocacy function. As the latter is new, we do not expect people to understand it. We have much work to do in terms of communicating this to professionals. We receive many telephone calls from professionals working in the health services and in education. Many teachers and principals bring to our attention cases involving children in vulnerable situations.

I want to emphasise the issue of family. One concern expressed to me about our submission is that by somehow giving children rights, one is implying a diminution in the parents' rights to rear children or decide what happens in the family. NUI Galway recently carried out significant research wherein children determined the indicators of well-being for themselves. Number one on the list was the family. The family, therefore, is of paramount importance to children. I cannot overestimate the importance of the work of our office in being pro-family and pro-family values. Our attendance at the committee is not intended to undermine parental authority or autonomy. We are here to support children who want to be part of the family.

Deputy Cuffe

That will give great reassurance to the many individuals who voiced concern about this. The Ombudsman's submission states that children want nothing more than to be part of a family. Giving voice to this is very important in terms of reassuring those individuals who made submissions on this issue.

Chairman

The Ombudsman advocates improvement and clarity in the Constitution in respect of the rights of the child. Some members have asked if this can be dealt with simply by legislation. Most submissions to the committee, approximately 75%, advocate no change to the Constitution. Difficulties can emerge regarding referenda, with some groups wanting to retain the imprescriptible rights of parents. The reality is that the people most in need of this protection in rights do not have the vote. This issue arose when we examined constitutional property rights. It was claimed that if a law was introduced, it would not diminish a person's right to own property. That was successfully tested in the courts in respect of the Planning Act 2001. Is the fear on the part of those working in the Health Service Executive justified? Would more forward-thinking legislation, which could be challenged in the courts, to protect and enhance the rights of children be a better alternative?

Ms Logan

I am here in my capacity to be an independent voice for children. My views do not represent those of any members of the executive. We see ourselves as monitors who are charged with ensuring that people who provide services for children are accountable and responsible.

Legislative change would be a much easier option. I would not be sitting here if I thought legislative change could change matters for children. Ireland unreservedly signed up to the UN Convention on the Rights of the Child in 1992. This has made little or no difference in the absence of any constitutional change or recognition for children. My office is most concerned with those children in the minority groups, namely, the vulnerable children about whom people never hear. I would not have attended the committee unless I believed that constitutional, not legislative, change is required.

Chairman

The Ombudsman has made that clear. I thank her for her contribution. She is the honest broker as far as children are concerned. The committee will take her views on board when it is compiling its report in the coming months.

Ms Logan

I thank the committee and wish it well in its deliberations.

Sitting suspended at 11.10 a.m. and resumed at 11.15 a.m.

Chairman

The next item on the agenda is the presentation by the Human Rights Commission represented by Dr. Maurice Manning, president, Ms Suzanne Egan, commissioner, and Dr. Alpha Connelly, chief executive officer. I welcome the delegation, particularly our former colleague, Dr. Manning. It is nice to have him back.

I remind visitors that while members of the joint committee have absolute privilege, this same privilege does not apply to witnesses appearing before the committee. We have already received the commission's submission. I invite the delegation to make a synopsis, lasting approximately six to eight minutes, to highlight its main points. After that, we will have questions and answers.

Dr. Maurice Manning

I thank the Chairman and members for the invitation to appear before the committee. The bulk of our presentation will be conveyed by my colleagues, Dr. Connelly and Ms Egan. I will say a few words about the Human Rights Commission to give a context to our submission.

The remit of the commission is to promote and protect human rights and the Human Rights Commission Act lays down 11 or 12 ways in which we are expected to do this. Human rights, as defined in the legislation, are those enshrined in the Constitution and various international agreements to which Ireland is party.

The Human Rights Commission is a small body which has not been long in existence. In practice, this means that much of our work is concentrated on examining proposals for legislation to determine whether they are human rights compliant. Representatives of the commission appeared before various committees of the Houses for this purpose on a number of occasions. The commission also comments on proposals for legislation and examines individual grievances. These are just some of the activities in which we have been engaged.

The Human Rights Commission works actively with other human rights institutions worldwide. The key areas on which we concentrate are disability, racism, immigration, economic and social rights and gender, although the list is not exhaustive.

The Human Rights Commission, as part of its ongoing work, has not examined the Constitution specifically to determine if it breaches human rights because this would be difficult and it does not form part of our remit. However, in the course of its other work, the commission has made certain key points about issues relevant to the joint committee's examination and we intend to discuss these today. I ask my colleague, Ms Suzanne Egan, to briefly discuss the international aspect of human rights in the Constitution.

Ms Suzanne Egan

The Human Rights Commission considers it important to draw the attention of the joint committee to the fact that under its enabling legislation, the commission is specifically mandated to promote and protect not only the rights and freedoms conferred on or guaranteed to persons by the Constitution but also the rights, liberties and freedoms conferred on or guaranteed to persons by any international agreements, treaties or conventions to which the State is party. Among the range of international agreements to which the State is party, which are of relevance to the joint committee's deliberations, are the European Convention on Human Rights, which was incorporated into the domestic law of the State by the European Convention on Human Rights Act 2003, the European Social Charter, the UN International Covenant on Civil and Political Rights, the UN International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Elimination of All Forms of Discrimination against Women — about which my colleague, Dr. Connelly, will speak specifically — and the UN Convention on the Rights of the Child.

While certain of these instruments have not yet been incorporated into the domestic law of the State, they are nonetheless binding on the State as a matter of international law. The Human Rights Commission, therefore, urges the joint committee to take account of these standards in formulating its proposals as regards the family. These standards, and the jurisprudence which has been developed under them, provide a rich source of human rights protection which could well illuminate the joint committee's deliberations on the family.

Dr. Alpha Connelly

I am most pleased to have the opportunity to address the joint committee on the subject of family rights in the Constitution. Members may be aware that I was a member of the constitution review group which reported to Government in 1996 on areas of the Constitution in respect of which it believed change was desirable or necessary. That is where I first met Mr. Jim O'Donnell whose prose was excellent until the lawyers on the group, including me, got their hands on it. The review group made a number of recommendations for constitutional change in respect of the family. The report provides a baseline for the All-Party Oireachtas Committee on the Constitution in its consideration of this matter.

I am addressing the committee today on behalf of the Irish Human Rights Commission. The commission's perspective on this subject is human rights-based and, as such, it accords with that adopted in the Constitution. I will speak to members about Article 41, headed "The Family", and other issues under consideration by the committee which are included in the section of the Constitution that deals with fundamental rights. The perspective brought to bear on this subject by the Constitution is human rights-based.

It is instructive to consider how other countries view the family in human rights terms, particularly in the context of those international groupings of states, such as the United Nations and the Council of Europe, of which Ireland is a member. It is worth remembering that the Constitution was enacted in 1937 and that although it has been amended on a number of occasions, some of its provisions still bear a strong imprint of that time. Article 41 bears such an imprint.

Intergovernmental organisations such as the United Nations and the Council of Europe, a large part of the work of which is concerned with human rights matters, did not exist in 1937. Ireland joined these organisations in the mid-1940s or early 1950s and has participated in the drafting and evolution of internationally recognised human rights standards for more than half a century. It is worth remembering that international concern for human rights is, in historical terms, fairly recent.

Ireland is party to all core United Nations human rights treaties with one exception, namely, the International Convention on the Protection of All Migrant Workers and Members of Their Families. The commission has urged the Government to become party to that treaty. Ireland is also party to several Council of Europe human rights treaties, most notably the European Convention on Human Rights, many of the provisions of which were given effect in Irish law at the end of 2003.

Involvement in international fora which deal with human rights matters has inevitably meant that Ireland has been exposed to and influenced by thinking in other states on these matters, including human rights as they relate to the family. Thinking on these matters has evolved and has been refined. There can be little doubt that, in this process, a gap has emerged between the constitutional provisions on the family and the international human rights standards to which Ireland subscribes.

Commissioner Suzanne Egan has identified some of the international human rights standards which are relevant to any discussion on the family. I will speak about an international agreement which is of relevance to this discussion and in particular about Article 41.2 of the Constitution which recognises the life of woman in the home and the contribution this makes to the common good and places on the State an obligation to endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The International agreement on which I will focus is the Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW, to which Ireland became party in 1985. Some 180 states are party to that convention. It is not a small esoteric convention, rather it is one subscribed to by the overwhelming majority of states. In so far as there are internationally recognised standards, these have been universally accepted.

The convention provides for the establishment of an international committee to which states are expected to report every few years on the progress made in implementing the convention's provisions. Ireland's next report will be examined by the international committee in New York in July 2005.

In January 2005 the Irish Human Rights Commission made a written submission to the CEDAW committee highlighting a number of issues in terms of Ireland's obligations under the convention. It also made a number of recommendations for consideration by the international committee, when examining Ireland's report, and by the Government, which will be sending a delegation to New York for the examination by the committee of Ireland's report. The Irish delegation will present the report formally to the international committee and will be questioned by it.

Taking as its benchmark the promotion of gender equality, given the context of CEDAW, the commission has made three recommendations on Article 41.2. These are: that the all-party Oireachtas committee should fully consider Ireland's legal obligations under CEDAW in examining the appropriate amendments to the Constitution — in particular, amendment of Article 41.2 — in respect of the family; that immediate consideration should be given to the holding of a referendum within a specific timeframe to amend Article 41.2 which, in the commission's view, is contrary to Articles 2 and 5 of CEDAW; and that the proposal to amend Article 41.2 of the Constitution should recognise the equal role and responsibility of men and women in the carrying out of the caring function in society. In addition, the constitutional amendment should recognise the significant contribution made to society by those who engage in caring work and should contain a State guarantee to actively support such persons.

The commission has not suggested any particular wording for the proposed amendment to Article 41.2 but it has stated what, in its view, should be the general thrust of the amendment. When Ireland's previous report was examined by the CEDAW international committee in 1999, the latter expressed concern about the continuing existence, in Article 41.2, of concepts that reflect a stereotypical view of the role of women in the home and as mothers. It emphasised that Article 5 of CEDAW stipulates that all appropriate measures shall be taken to modify the social and cultural patterns of conduct of men and women with a view to the elimination of prejudices and customary and all other practices that are based on stereotyped roles for men and women. It called on the Government to ensure that the All-Party Oireachtas Committee on the Constitution is fully aware of Ireland's obligations under CEDAW, including under Article 5.

Article 5 of CEDAW provides that all appropriate measures shall be taken to ensure that family education includes a proper understanding of maternity as a social function. It also provides for the recognition of the common responsibility of men and women in the upbringing and development of their children, with the understanding that the interest of the children is the primordial consideration in all cases.

Our commission also cited Article 2 of CEDAW in its submission. The latter is another important provision of the convention and contains a list of undertakings by states parties on the elimination of discrimination against women. One of these undertakings is to embody the principle of the equality of men and women in national constitutions or other appropriate legislation and to ensure, through law and other appropriate means, the practical realisation of that principle.

The equality legislation is often cited as fulfilling such an obligation. The equality legislation, namely, the Employment Equality Act 1998 and the Equal Status Act 2000, does not cover everything. It is by no means a full realisation or embodiment of the principle of equality of men and women.

An earlier composition of this committee, in its first progress report of April 1997, recognised that Article 41.2 is a dated provision. The article has been widely criticised because it presumes that women, by reason of their gender, are predetermined to play a particular role in life and thus seems to deny them the same freedom of choice as that enjoyed by men. Moreover, the previous incarnation of the committee stated that, notwithstanding its terms, Article 41.2 has not been of any particular assistance, even to women working exclusively within the home. When women sought to rely on it in the courts, they did not get very far.

It is, therefore, no longer a question of whether Article 41.2 should be retained — it should not — but rather one of what, if anything, should replace it. To recap, the view of the Irish Human Rights Commission is that it should be replaced by an amendment which: recognises the equal role and responsibility of men and women in caring; recognises the significant contribution made to society by those who engage in caring work; and places an obligation on the State to actively support such persons. The Irish Human Rights Commission furthermore recommends that a specific timeframe be set for the holding of a referendum to amend Article 41.2.

I draw members' attention to the first progress report to which I refer. That report identified a number of areas where the committee wanted change, which it thought either desirable or necessary, to occur. The committee stated in 1997 that it would like to see this happen within a five-year timeframe.

Chairman

A number of groups — one in particular — which came before the committee spoke cogently and firmly on behalf of women's rights to stay in the home and to act as carers of their children or possibly of elderly people. The view they expressed was that if it was made gender-neutral, the man would have, as Dr. Connelly stated, rights and responsibilities. Coming to the thorny issue, they stated that they represent the 500,000 women who, for one reason or another, have decided to stay in the home, work with their families, etc.

Let us consider the position that would obtain if this was put to the people of Ireland by way of referendum. The Irish Human Rights Commission states that we seem to be in breach of international law to which we have already signed up in this regard. I am sure Dr. Manning will remember some difficult referenda on issues that touched a chord with Irish people. What if the people rejected such a proposal? Where does Dr. Connelly feel we would then stand vis-à-vis international law or CEDAW? Which would be the paramount framework? If the people rejected it and the constitutional provision in Article 41.2 remained intact, where would we stand vis-à-vis the international laws to which Dr. Connelly referred?

Dr. Connelly

CEDAW, in how it works in terms of enforcement, is not like a court. If Ireland was thought to have policies or constitutional provisions contrary to the convention, it would not be a case of it being hauled before an international tribunal and adjudicated upon. However, there is no doubt that the CEDAW committee, which has been making statements on this matter for many years and to which we report, would exert pressure on the Government. That pressure would come at the political level. It would not go away and might, in fact, accelerate.

The question then would be what could the Government do about it because the people would have spoken, stating what they wanted. In the past, the State has had to consider the question of what it would do if it was in conflict with its international obligations. It had to do so in the context of a judgment of the European Court of Human Rights, which operates in a much more formal judicial setting than the CEDAW committee. To date, no constitutional amendment has been required in respect of any judgment of the court. However, changes to legislation have been required and have been introduced over time. There has been no judgment which explicitly required a constitutional amendment but there was a possibility that such a circumstance could arise in at least one case that went to the European Court of Human Rights. The State then would have been faced with stating that its hands were tied and that it could not comply with the convention. Would the State withdraw from such a generally well regarded human rights forum which would involve significant disadvantages for the State or what could it do? I have no doubt that this would give rise to difficulties.

This issue has existed for a some time. It is not that Ireland's constitutional provisions suddenly do not match entirely the provisions of CEDAW. The matter has not arisen today, although perhaps it has come to the surface today. The international committee has stated that Ireland really needs to consider this matter and has urged it to do so and to produce more gender-neutral or, as the Irish Human Rights Commission puts it, genderequal provisions in the Constitution. I would not see it as being dramatic in the context of CEDAW but an international body would not be happy about it. Ireland would have to justify its position and I do not believe it could do so.

Deputy Andrews

On Dr. Connelly's final point, in the previous presentation the Ombudsman for Children stated that the UN Convention on the Rights of the Child was not transposed into Irish law. That makes one wonder about the value of such agreements. If the Supreme Court has a choice between the Constitution and one of the range of conventions and agreements, including the International Charter on Economic, Social and Cultural Rights, listed by Dr.Connelly, it seems it does not pay much attention to them. One would say they are binding in Irish law but everyone seems to be complaining about the fact that this is not the case. It seems that they are not recognised. I noted that Dr. Connelly stated that the UN convention or some other agreement was binding under Irish law. However, I may have misunderstood what she said.

According to Dr. Connelly, the European Court of Human Rights has not referred to a disparity between conventions and the Constitution. Is it not the case, however, that the court has also not referred, with the exception of those of a political nature, to any type of human rights? It seems to confine itself to these and does not address economic and social rights. For example, the rights of those with disabilities are not adjudicated by the court. Does that create a difficulty for the Irish Human Rights Commission, which is committed to the broader idea of human rights? I came across that before with another human rights group.

A female child looking at Article 41.2 would be horrified because it even sounds wrong. The group is correct in that it has not given women in the home a great deal of help. Are there any examples of how it has hindered the exercise of women's rights?

Ms Egan

On the Supreme Court not taking notice of international standards, we stress that both bodies of law operate on different planes. The Constitution is supreme in the domestic law of the State and we also have international obligations under various international conventions. Unless those conventions are incorporated into the domestic law of the State, they cannot be enforced as a matter of domestic law.

The Supreme Court will not normally take account of international standards except in situations where it is considering the existence of an unenumerated right in the Constitution. The courts have been willing to look to international standards to explain what may be hidden rights in the Constitution. It is correct that the Supreme Court does not normally take notice of international conventions when interpreting the domestic law of the State but it is important to stress that, at the level of international law, the State is bound by its obligations under such conventions and must take account of them when operating at international level. We have a domestic and an international framework and that is why we stress the importance of taking into account our international obligations in the consideration of any element of the work of the committee.

It is true that the European Convention on Human Rights focuses almost exclusively on civil and political rights but the European Court of Human Rights has occasionally tried to bring social and cultural rights within that framework. There have been a couple of cases dealing with the rights of disabled people in the context of the right to private life.

Deputy Andrews

It was only discussed, the court has not made a positive judgment.

Ms Egan

There is a shortfall but the willingness of the court to consider some of these issues is significant. The right to education creeps into the list of civil and political rights in one of the protocols to the convention. It is not necessarily, however, a major weakness for our organisation because we can look to other international conventions dealing with economic, social and cultural rights when articulating policy on human rights protection for the State.

Dr. Connelly

There is a traditional divide between civil and political rights and economic and social rights but the two sectors overlap to an extent. The clearest overlap in Ireland was the Josie Airey case on legal aid that came before the European Court of Human Rights. If a country introduces legal aid, there are financial implications. To afford Ms Airey due respect for her family and private life, legal aid was required in terms of her access to the courts. There has been further development in that area, with a case against the United Kingdom that could have knock-on effects on the legal aid system here. The two types of rights are not as distinct as people might believe.

It does not create any particular difficulty for the commission. As the provisions of the European Convention on Human Rights have been given direct effect in Irish law, the courts must take cognisance of this. They must consider how the convention was interpreted by the European Court of Human Rights and take that and the Constitution into account. The courts must also take cognisance of it when interpreting the Constitution. That is a new experience for the courts and they must become accustomed to it.

The Irish Human Rights Commission has advocated that these conventions should be made part of domestic law and we are glad to see that the first step has been taken with the European Convention on Human Rights. We urge that it be taken in other cases as well. If we are fully compliant with our international obligations, why not make the Convention on the Elimination of all forms of Racial Discrimination enforceable in the courts?

Has Article 41.2 hindered women's rights? We would not approach the issue from that perspective. It is not that it has hindered women's rights, it has not promoted them. The woman in the home has not gained any benefit from this article. We would not undervalue the role women have traditionally played and continue to play in the home, we are saying that we need recognition in the context of a modern society that this is a dual function. Children have mothers and fathers. Many fathers are caring and fulfilling that role so we should amend the Constitution to take due account of that.

Deputy O’Sullivan

I take the point that Article 41.2 has not protected women in the home and we might do something to change it. Clearly the responsibility of both parents should be included in any proposal we make.

Article 41.2.2° states "The State shall, therefore, endeavour to ensure mothers are not obliged by economic necessity", whereas the submission seeks a guarantee from the State that it will support any person who engages in caring work. Would that strengthen the support for people who have caring roles, be they part-time or shared caring roles? We must produce wording that will be more effective in guaranteeing rights.

Dr. Connelly

We are seeking clarity. The article, as it stands, is a half obligation to endeavour to ensure women in the home do not neglect their duties and have to go outside to work. That is tenuous. We are seeking a more direct obligation on the part of the State to do something actively to show the value of the caring role that is so important in society. We do not expect to see detail in the Constitution about how the State should go about that. The Government must be allowed discretion over the measures it implements but it would be a constitutional directive to the Government to keep this in mind and support those people engaging in this work who might have no other source of income. Due weight should be given to that in Government policy.

Senator Finucane

Has the State not already eroded support for women in the home through individualisation in the 2003 budget, which was hotly debated at the time and which resulted in a disincentive in terms of their remaining at home? The Government portrayed individualisation as a way to encourage women to go out to work. The tenor of the article has been eroded by the State.

Dr. Manning

The Senator is asking the commission to go down a road it does not want to travel. May we pass on this?

Senator Finucane

Without saying I am right or wrong, is what I say valid?

Chairman

Since 1937 successive Governments have been slow to copperfasten many of the social and economic rights referred to in the Constitution. The word used is that the State "endeavours". Some Cabinets and Ministers for Finance would be slow to let a Government offer a wording that would introduce financial obligations in areas such as disability or women in the home.

Women In The Home made a submission to us that an elderly person in a private nursing home cost the State eight times more than the carer's allowance. It is seeking greater economic support from the State but it is a thorny issue for the Minister. The group made the point Senator Finucane is making when it sought greater financial support and better facilities for carers.

I presume women would like the choice of working or staying at home. That is their right. Is there any way to achieve this through legislation in order that a constitutional referendum could be avoided?

Some have said they are anxious because the Constitution gives protection to women by mentioning them and removing that reference would create problems where women would think something was being taken from them. The public is very protective of the Constitution and slow to change it. Could we tackle this through legislation or would that article of the Constitution require rewording?

Dr. Connelly

The Irish Human Rights Commission would like to see the Constitution amended. We would not see it as taking away from women in the home, rather it would strengthen their position by placing a more direct obligation on the State to consider if there was a need for support and what it would be. It would open this up to all persons engaged in caring, irrespective of gender. There is no doubt that if such a provision was included in the Constitution, it would be cognisable in the courts. A person might not like the measures a Government had taken or say they were inadequate and seek to take an action to achieve his or her view of what the situation should be.

The separation of powers ensures the courts are aware of not encroaching on what is more properly a Government function. Such a provision would act as a steering mechanism; it would express in the Constitution the values of society and steer it to a particular value — that the caring function was to be valued and that the Government in its policies should consider actively supporting those who engaged in that function. It would not give a more specific direction to the Government as to how it should go about this.

Chairman

I thank the delegates who made a cogent and interesting submission. We will take their views into account in our deliberations. It is difficult for us to look at children's and family rights and the social and economic implications in their entirety but we hope to get the balance right in our report and that its recommendations will not be left on a shelf for ten years.

Sitting suspended at 11.55 a.m. and resumed at noon.

Chairman

The next item on the agenda is a presentation by the Church of Ireland, represented by the Rt. Rev. Michael Jackson, Bishop of Clogher; Mr. Sam Harper, Mrs. Claire Burrows and the Venerable Robin Bantry White. I welcome them to the meeting. Before we begin, I remind our visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. As the group has made a submission to us that we have studied, we would like a synopsis of the important points, following which members will respond.

Senator Finucane took the Chair.

Rt. Rev. Michael Jackson

We thank the joint committee for welcoming us here this morning. Our presentation is in two parts, the first of which sets out the context of and background to the Church of Ireland while the second deals with some specific issues raised in the written submission.

By way of setting out the context, we begin with some background information on the Church of Ireland which forms a province of the Anglican communion. As it was disestablished in 1870, it is autonomous. It is a member of the Anglican communion with the Church of Kenya, the Church of Sri Lanka and the Episcopal Church of the United States of America. Like them and other such churches, it maintains communion with the Church of England. The current difficulties within ECUSA and the Church of Canada which overlap with some of the questions asked by the joint committee are not germane to the Church of Ireland and its polity, although they are of concern in the communion of which we are part. The Church of Ireland, in common with other churches in Ireland, has no special position constitutionally.

The language of "natural law" is applied in diverse ways. Strictly speaking, the level of agreement on its content extends no further than the general idea that good is to be done and evil avoided. This means natural law may underwrite morality but may not properly be used to underwrite a particular moral code over or against another such code as if in competition with it. In some quarters it has through time and application acquired a highly confessional perspective. This is not correctly part of its origins.

Legally, the Church of Ireland is described in the preamble and declaration adopted by the General Convention of 1870 as follows:

The Church of Ireland, deriving its authority from Christ, Who is the Head over all things to the Church, doth declare that a General Synod of the Church of Ireland, consisting of the archbishops and bishops, and of representatives of the clergy and laity, shall have chief legislative power therein, and such administrative power as may be necessary for the Church, and consistent with its episcopal constitution.

The doctrine of the Church of Ireland has, by tradition, been expressed in its liturgy and worship. In our current context much of its understanding of marriage will be found in the two forms of the marriage service in the Book of Common Prayer, in particular, the introduction to both services. Expressing "the causes for which matrimony was ordained", the older form of service gives three: for the increase of mankind, according to the will of God; for the hallowing of the union betwixt man and woman; and for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity. The newer form offers a different emphasis simply by virtue of the order in which the purposes of marriage are set out in sequence: that husband and wife may comfort and help one and another; that with delight and tenderness, they may know one another in love; that they may be blessed in the children they may have; and begin a new life together in the community. In this way the language of the liturgy gives voice to the teaching and understanding of the church. Within a system of belief which forms the weave of the Church of Ireland marriage expresses to society something of the union between Christ and the church. This is the contribution which those who participate in marriage in this tradition make, with many others in different circumstances, to the life of the nation.

We are not here with the intention of being prescriptive. In representing the Church of Ireland we do so in a very specific way. The submission made in January 2005 was debated and approved by the Standing Committee of the General Synod. Such a body perforce has within it a wide range of views. The Church of Ireland operates in this regard as a parliamentary democracy with the expressed element of consensus in doing its business. What is communicated today is a continuation of that response.

From the above, it will be clear that marriage is seen as an optimal state of two people being together for a specific purpose, both human and theological. However, we feel the confident assertion of the optimum does not preclude our espousing within the Church of Ireland the cause of those for whom the optimum is not a lived reality. Furthermore, there are de facto families which do not accord with what we might call the procreative nuclear family model, for example, two brothers, two sisters or a sister and a brother living in the same house. There are domestic situations which perforce function as families which do not accord with the liturgical definition of marriage, for example, a man and a woman living together each with children from an earlier relationship and also a child from their relationship with one another. These are real human situations often full of difficulties for those who are part of them.

We feel we are not precluded from highlighting the situation of family groupings as herein outlined and seeking assurance that in the Constitution their needs and insecurities are addressed. In our opinion, this ought to be in such a way that appropriate provision be made for their well-being and pertinent to the circumstances, although not necessarily equal to that made for those who are married. Our feeling is the State ought to make marriage a specifically attractive way of life, thereby enabling it to make a contribution to the stability and welfare of society in general and the whole being of society as all participate and engage in it.

Mr. Sam Harper

We are aware of how many family law cases often express and expose situations of human delicacy, even tragedy. We emphasise the need for transparency with the safeguarding of privacy out of respect for the persons engaged in the legal process. We, therefore, welcome the Minister for Justice, Equality and Law Reform's announcement of widening the range of appropriate persons who may attend family law cases and urge a speedy implementation of this provision. We also ask for a comprehensive system of gathering and publishing statistics to assist policy-making and clear debate on sensitive issues.

The definition of what constitutes a family has changed. There is in society today a major difference between the family and marriage. We, therefore, encourage the joint committee to consider seriously the UN definition of the family in its deliberations. We believe this definition of the family as "Any combination of two or more persons who are bound together by ties of mutual consent, birth and or adoption, or placement, and who together assume responsibility for, inter alia, the care and maintenance and group members, the children of new members through procreation or adoption and the socialisation of children and the social control of members” accurately encapsulates most family situations. We feel strongly about the need for the State to protect all those in mutually caring relationships, for example, siblings living together, long-term carers and others who have found themselves disadvantaged vis-à-vis the traditional family, particularly on the death of one of the parties.

We believe balancing the rights of the unit and the rights of individual needs must be kept under review. We want to see the natural mother continue to have constitutional protection, albeit under Article 40.3 rather than Article 41 as at present. To highlight the rights of the most vulnerable members of the family unit — children — we recommend the express guarantee in the Constitution of the rights of the child to ensure that in all actions concerning children paramount consideration will be given to the best interests of the child. We endorse the UN Convention on the Rights of the Child and strongly urge the joint committee to look seriously at the recommendations contained therein. In the case of practicalities for which legal provision can be made, we ask that no one should be disadvantaged by being married.

The outline of the understanding of marriage within the Church of Ireland as expressed in the two marriage services means that the concept of so-called gay marriage is not one which is part of current definitions. At the same time we have pointed out in the submission that constitutional protection would be given to same sex couples if the broad definition of the family offered by the United Nations were used. For the Church of Ireland, however, this would not be a marriage. We maintain that in any distinctive civil ceremony for which legal provision is made the language of marriage should be avoided.

We have proposed changes in Article 41.2.1° and 41.2.2° to ensure any family member caring for others within the home would enjoy the support of the State. Too much inequality between mother and father should be avoided. In the specific case of rights of the natural father, these need to be established specifically on the basis of his demonstrating that he has endeavoured to establish and maintain a proper and loving relationship with his children. In all of this, the best interests of the child must be paramount; hence, our drawing attention as examples to the inappropriateness of automatic rights to the natural father in the case of rape or incest.

While we accept that society is broader than our definitions and the provisions for our members, we feel the inclusive spirit of the Church of Ireland can and does contribute to the good of our society. We thank the joint committee for allowing us this opportunity to address it. We will be happy to answer questions.

Deputy O’Sullivan

I welcome the group. What protection should be given to the different family groups? It was strongly argued that marriage should be given more protection but that the Constitution could protect the rights of others in other types of family. How could this be put into words?

Mrs. Claire Burrows

We would like the Constitution to be inclusive. Without being too specific, the Constitution should reflect society as it is. The family based on marriage is not what it was in 1937.

Deputy O’Sullivan

Is it preferable that there be over-arching protection for the family with enumerated protection for other situations?

Mrs. Burrows

There is a link between the family and marriage, as we pointed out in our submission. The Constitution bases the family on marriage, which for those in the Church of Ireland is the optimal state in which to raise a family but we feel that is not the only context in which there can be a family, as we have outlined in our submission.

Senator Dardis

I thank the Bishop and his colleagues for coming here today and setting out their views. Representatives of the Presbyterian Church in Ireland appeared before the joint committee yesterday and they were of the traditional view in terms of protecting the family based on marriage within the Constitution. We put to the group the de facto situation as opposed to what is theologically desirable.

In accepting the de facto situation the Church of Ireland is prepared to accommodate it within the Constitution. The proposition could be put that we leave the Constitution as it is, with the family based on marriage being the central plank of the various arrangements; that all other arrangements, other than the optimum one described, could be dealt with purely by legislation and that there would be no particular need to amend the article.

Senator Norris has a Bill on civil partnerships before the Seanad. The group feels the civil ceremony should avoid the language of marriage. I accept the de facto situation is hugely different from that in 1937 but we do not have to go so far as to recognise this in a constitutional amendment; it could be done through legislation. To what extent has the General Synod of the Church of Ireland debated these issues?

Ven. Robin Bantry White

It has been debated by the standing committee which represents the General Synod between full meetings. The issues would be covered in reports that come before the standing committee for discussion.

Senator Dardis

Were matters of this nature discussed during the years?

Ven. Bantry White

There have been general discussions of this nature over the years.

Rt. Rev. Jackson

There has been general discussion but our submission is in response to a particular request for information and a contribution from us on a specific area raised.

As regards the distinction between legislation and a constitutional amendment, it could happen. It goes back to what we stated in our submission that we do not feel we are entitled to be prescriptive within society. We want to make a contribution to the definition of society from a perspective of the assertion of marriage as it is understood within the Church of Ireland and of fairness and decency towards those who de facto constitute society.

Mrs. Burrows

It comes back to the purpose of the Constitution. One purpose is to set out the form of government. Others are to grant rights to individuals and the expression of our national identity. Is it in tune with that national identity? Can we say the family and marriage are interlinked or is the family wider than this?

Senator Dardis

That could be countered by saying that while the 1937 Constitution reflected the mores of the time, we could make an error by reflecting the mores of this time; that the Constitution should be a template that withstands changes in social mores.

Mrs. Burrows

I would look upon the Constitution as a living document. It does not belong to any individual; it is the document of the people. If we give the people the opportunity to express their views on how they feel the family should be defined in the Constitution, they will either accept or reject the definition. If they feel society has moved on since 1937, they would be in a position to vote in that way. The Constitution does not belong to us; it belongs to the people.

Senator Dardis

When I say that, I do not want to be condescending.

The difficulty of balancing the rights of the unit and individuals was identified. What was said about the concept of parenting was novel. I raised with several groups the case where the dissolution of a marriage is followed by a loving second relationship, where the stepfather or stepmother is far more of a parent to the child than the first spouse. How does one overcome this problem within a constitutional framework? In other words, balancing rights is difficult. We can try to do this in legislation and if we get it wrong, we can try again.

Mrs. Burrows

We come back to the point that in anything to do with children, the interests of the child should be the paramount consideration. If this was included in the Constitution and our guiding light, everything else would fall into place. As we have pointed out, there are many tragic human situations but the Constitution is not the document in which to deal with them. It is the document in which to set out broad principles. There are the legislators and the courts which interpret legislation. It is hard to provide in the Constitution for specific hard cases but the document should set out a compassionate framework.

Mr. Harper

We make the point in our submission that the balancing of the rights of the unit must be kept under constant review. However, we accept the point the Senator made, that nothing will remain the same. This balancing of rights is not appropriate for the Constitution because one does not want a referendum every few months as matters change. One provides in a constitution for a framework within which one develops legislation which must be kept under constant review. In speaking about protecting marriage we make the point that we do not want such a review to move beyond the point where being married becomes a disadvantage.

Deputy P. Power

I welcome the members of the delegation and thank them for their clear contribution. Did the joint committee receive Mr. Harper's contribution in written form?

Mr. Harper

Yes, it consisted of two pages.

Deputy P. Power

Perhaps I could be given a copy. I ask Mr. Harper to forgive me if I misquote him because I am relying on my written notes.

I wish to explore two main points made in the presentation. The first which was made in a number of presentations is that there should be an express guarantee of the rights of the child in the Constitution, that, to use Mr. Burrows' words, the interests of the child ought to be "paramount" over the parents' rights. Has the Church of Ireland considered the possible implications? Would the imbalance the wording suggests, that one citizen's rights under the Constitution are superior or paramount to those of others, create a situation, unintentionally, where a child would be in a position to assert them in the courts in unimaginable ways, for example, in maintaining family discipline? If a child had rights superior or antecedent to those of a parent, is it possible that he or she would assert them in a way that a parent would not be able to impose discipline on him or her? Would a child aged ten years be able to go the High Court to express a wish to leave his or her family in a case where the parents were stating, "No, Johnny, you are staying inside our house"? Is the Church of Ireland suggesting a higher constitutional guarantee? Perhaps these are slightly unusual examples but would such an approach potentially create such difficult problems?

Mr. Harper

I fully understand from where the Deputy is coming and I am sorry he does not have a copy of the script in front of him. What we stated was that in all actions concerning children paramount consideration should be given to the best interests of the child, which is more vague than what the Deputy is suggesting. Giving paramount consideration to the best interests of the child would not necessarily mean the child would control the parents. It could well be in the best interests of the child that the parents hold an element of control. It is a form of words at this stage but with the Constitution we need to be careful that in trying to mend one situation we do not create something much worse.

Rt. Rev. Jackson

I am sorry if, by not having the script in front of the Deputy, we have led him astray. This was part of the third point articulated by Mr. Harper. The paragraph holds with its own internal logic. It begins: "We believe that balancing of the rights of the unit and the rights of individual needs be kept under review." That is the context in which we are speaking. At no point was the word "superior" used in our presentation. As Mr. Harper quoted, in all actions concerning children, paramount consideration should be given to the best interests of the child. It is more than possible to argue that the best interests of the child are represented by the positive side of the scenario rather than by the negative implications, both of which the Deputy identified. His is a fair point. I am sorry if we have led him astray but the word "superior" does not appear in our submission.

Deputy P. Power

I also may have misunderstood the articulation of the distinction between family and marriage. The submission defines family as any combination of two or three individuals coming together by mutual consent. Is it being stated the wider definition of the family should take its place side by side with the conventional definition or should the conventional definition in Article 41 be dropped in favour of the wider definition of family as distinct from marriage?

Mr. Harper

Yes, we made that point. However, we would see the wider definition superseding the other. The drafters of the constitutional amendment would decide on whether it would be necessary to retain the original definition to give it added importance within the Constitution. We would see the wider definition as more enabling than contradictory. It would be to broaden the definition of family rather than cancel the original. We still want to see the original definition held as an ideal.

Deputy J. Breen

I thank the delegation for its presentation. It states there should be constitutional protection for gay marriage but that it should not be considered a marriage. What constitutional protection is it suggesting for gay couples?

Mrs. Burrows

We believe the definition of the family we have provided would be broad enough to include same sex unions.

Deputy J. Breen

In terms of succession rights, tax breaks, etc., how would the delegation see it fitting into the Constitution? It states gay marriage should be recognised under the Constitution but not be considered a marriage.

Mrs. Burrows

That would be a matter for the Legislature acting within the framework of the Constitution. It would be a matter of the extent to which the Legislature could go that would be consistent with the Constitution and the protection of various units. It would be a matter for legislators to decide if it should include a same sex or cohabiting unit.

Deputy J. Breen

If the joint committee comes to the conclusion that same sex couples should be allowed to marry, would the church recognise them?

Rt. Rev. Jackson

We set out the Church of Ireland understanding, doctrine and liturgy of marriage in the first part of our submission. We said clearly that the language of marriage should not be used were such a context to be constitutionally owned or legally possible.

Deputy J. Breen

Where there is a separation and the father is given visiting rights, the mother can prevent him from seeing the children. He must then go to court and it might take two or three years for the case to be heard. Is the Constitution strong enough to prevent this?

Ven. Bantry White

The first essential ingredient in this relationship is not constitutional but legislative. We welcome the steps that have been taken to open the family courts to some scrutiny in order that it becomes clear how they operate. This will assist fathers because they will know the framework within which they are working.

There is a wide spectrum of one parent's position in comparison with the other — we mentioned rape and incest at one end of the scale. Statute law does not work well in protecting the genuine loving interests of those caught up in this situation.

Mr. Harper

We deliberated long on this issue because we did not want to create the impression that fatherhood was an inferior form of parenthood. We wanted to emphasise the importance of fatherhood but could not go so far as to give automatic constitutional rights to the father because there were specific instances where it would not be correct to give such automatic rights. There is the difficulty that the best meaning of fathers who want to look after their children are prohibited from doing so because of the mother or the family of the mother objecting to his participation in the lives of the children. We have said that when a father demonstrates his interest in the child, this should be sufficient grounds for participation, not that he must be allowed to participate. We have suggested that if a father demonstrates his willingness to act as a carer, provision could be made. We wanted to put parenthood on an equal footing but had a difficulty in going all the way to constitutional rights.

Mrs. Burrows

This is another area where giving paramount consideration to the best interests of the child may feed in because it may be in the best interests of the child to have access to both parents.

Mr. Harper

We have also made the point that the child has a right to expect nurture and support from his or her father, irrespective of the rights of the father.

Acting Chairman (Senator Finucane)

I thank the delegation for its presentation.

Rt. Rev. Jackson

We thank the joint committee and appreciate its interest in what we have said. We appreciate the opportunity to address it.

Sitting suspended at 12.35 p.m and resumed at 2 p.m.

Acting Chairman

The next item is a presentation by the IPPA, the Early Childhood Organisation, represented by Ms Irene Gunning and Ms Marlene McCormack. I remind visitors that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I invite the delegation to make its presentation that will be followed by a question and answer session.

Ms Irene Gunning

I am accompanied by Ms Marlene McCormack. The IPPA, the Early Childhood Organisation, welcomes the opportunity to present its views to the Joint Committee on the Constitution regarding constitutional provisions relating to the family.

The IPPA has pioneered the provision of early childhood care and education and has been a leader in raising standards in the area. It promotes play as a powerful experience for children and is committed to developing quality in all its services. The IPPA is a voluntary organisation, founded in 1969, with its origins in the playgroup movement. Its 2,000 members deliver a range of services, including playgroups, parent and toddler groups, full day care groups, out-of-school groups and summer camps. It is a nationwide organisation and its members provide services in respect of 47,000 children.

The IPPA works at three levels: directly with providers, improving the quality of the service through training and provision and quality improvement programmes; at infrastructure level with the 33 city and county committees, supporting them in their co-ordination function; and at policy level by sitting on all national and some international fora dealing with early childhood care and education.

The IPPA made a submission to the Joint Committee on Education and Science on the education for persons with disabilities legislation, which resulted in it being invited to present its views on early childhood care and education. It also made a presentation to the UN Committee on the Rights of Child at the Palais Wilson in Geneva when it discussed implementing rights in early childhood. The UN Committee on the Rights of the Child made several recommendations, copies of which are included in our submission to the committee. I draw the committee's attention to recommendation No. 10 which states that the Convention on the Rights of the Child principally enshrines children's participation in all matters affecting children and that, therefore, States parties must take all appropriate measures to ensure that the concept of the child as a rights holder is anchored in the child's daily life, from the earliest stages at home — including, when applicable, the extended family — in school, in day care facilities and in his or her community.

Today we present our views on how the family should be defined and on the rights of the child. We work with many children on a day-to-day basis. Every child is unique and does not come to us as an isolated being. Children have families of all shapes and sizes. In order to respect children and their origins, we work closely with families. We have seen extraordinary changes in recent decades in the make-up and structures of the family. We employ a useful model drawn from Bronfenbrenner's bio-ecological systems theory, which sees the child at the centre — within the family and community — and emerging into the wider community. Children do not just appear in isolation. They influence the community and are influenced by it.

It is important to note that we have a view or image of the child. For all of us, over time, that image has changed from one of a passive to an active child who constructs knowledge, and proceeding further, to the cultural child who develops knowledge and culture together with other adults and children. We see the child very much as a cultural child, socially and politically constructed. That makes it possible for us to recognise, or not, as the case may be, certain qualities and potentials in children. The IPPA views the child as rich in resources, strong and competent. Our view, along with that of leading educationalists in Europe, is that the child is a producer of culture, values and rights and is competent in living and learning. Marlene McCormack will further develop our views.

Ms Marlene McCormack

We want to raise a few points regarding the family and children's rights.

In considering changes to the Constitution, there is a fundamental question to be posed, namely, should the Constitution propose an ideal or structure which is no longer the reality or desired state for many children and families? The concept of family defined in Article 41 of the Constitution affords the family a great deal of protection. The nuclear family is greatly at odds with the reality of many Irish families. It has been suggested that the nuclear family is a romantic myth and that it was never quite a reality but more a desired state or something to which we aspired.

We understand that there is a general fear about changing the notion of family and that such change will be the death knell of the nuclear family and will harken family breakdown. However, so much has changed in Irish society during the past 20 years. Change is part of children's and families' lives. We must recognise that diversity is to be welcomed.

David Elkind, an American writer, suggests that the family can be viewed as a social organism which must adapt to the social habitat and change when society changes. There is reciprocal relationship between family and society. The concept of family should be open and inclusive and should embrace and validate the rich diversity of family lives and structures in place. Families are about relationships and the latter transcend households. When we think of family and its definition, we are looking across households and at relationships. Listening to children speaking is fundamental to this vision.

As a result of our work, we say that families are good places for children. We are not negating marriage but looking at the family in a broader sense. There has been much debate about the nature of family and whether we should be defining it in a closed way. Families are good places for children and we need to think not only about redefining families but also about considering how we support them. The families we encounter require support at certain times, particularly those which have children with special needs or which are in bad circumstances. This is our experience on a day-to-day basis.

One important voice conspicuously absent from this discourse is that of children. How children perceive and make sense of family life would also constitute a valid contribution to this debate. I recently sat down in a playgroup and watched what was happening. Two little girls began playing picnic. They gathered their blankets, cups and saucers and got everything ready for play. Then it came to deciding roles. One wanted to be the mammy and, of course, the other one had to be the big sister. They argued the toss. A little boy nearby was watching carefully and asked if he could play. The girls thought about this and asked him who he would be. The little boy decided he would be the daddy. Another little boy nearby thought this a good negotiating tactic and asked if he could also play. One of the girls quickly informed him that he could not because there could not be two daddies. The other little girl said, quickly and adamantly, that this was not the case because she had two daddies.

Within those few moments, in the reality of their lives, I had a sense of how those children constructed their notion of family and what it meant for them. I also gained an insight into the diversity of family life which is part of those children's lives. Children often flourish in such circumstances.

There are many studies on the family. One published in the UK in 1996 remains relevant. It shows that when discussing the notion of family with young children, they felt that family was about blood relationships, co-residence, consistent care, size, the presence of married parents — which I thought interesting — and other children. Children saw family very much in the context of other children — people being there in numbers. That is a perspective which gives the children's voice. The IPPA would welcome a broader definition of family, something that validates the existence of young children.

The promotion of children's rights is closely linked with family. We have always professed to cherish our children equally, as asserted by the 1916 Easter Proclamation, but the reality may be somewhat different. For many reasons we would welcome express rights for young children being enshrined in the Constitution. When children have rights, it puts them on a par and allows them participate. Children have much to say. When they have opportunities to participate and to voice their beliefs and opinions, it becomes a worthwhile process for them. They become self-confident and also practised at expressing their opinions. That augurs well for them as they grow, in terms of citizenship and democracy. Children must be granted rights and must be given the support, infrastructure, policy and resources to enable them to participate.

In Roald Dahl's book, Matilda, the father is involved in a humdinger of a row with his small child, and says: “I’m big, you’re little. I’m right, you’re wrong. I’m old, you’re young. There is nothing you can do about it”. In some ways that summarises many of the opinions people might have about children. These are opinions which promote the viewpoint that children should be seen and not heard. That is not acceptable as we move forward. In the light of the UN Convention on the Rights of the Child and the national children’s strategy, we need to put in place express rights for children.

We acknowledge that fear of change exists in society and that there are concerns that granting rights to children will lead to social chaos and breakdown. That viewpoint needs to be reconsidered because granting rights to children is not about weakening parental rights. It does not diminish the position of parents but enhances children's capacity to engage. Those are the key issues for the IPPA in terms of family and children's rights.

Deputy O’Sullivan

I welcome the delegation from the IPPA, probably the only group thus far to specifically enunciate rights as opposed to highlighting the need to protect them. Until now I regarded the enunciation and protection of rights as essentially the same thing but I now accept the importance of accentuating the difference between them. In enunciating rights, should the Constitution include a general statement referring to the UN Convention on the Rights of the Child or should it delineate specific rights for children?

Ms McCormack

Others have more knowledge than me in respect of constitutional law and would, therefore, have a different opinion on the issue. We would like children's rights to be threaded through the Constitution, where appropriate, because express rights for children are necessary in certain parts of it. This is specifically the case with regard to separation and divorce and early education, two areas with which we are familiar. There are, however, other aspects of children's rights which we do not encounter on a daily basis. We need to child-proof the Constitution and thread the issue of children's rights through it, rather than include in it a broad statement or treat children's rights as distinct and separate. I agree with the notion that the protection of rights is a matter to be addressed through the policy framework and resources.

Deputy P. Power

I found the presentation interesting and thought provoking. As members will be aware, my questions so far in the proceedings have been indicative of my concern about the dilution of parental rights in the event that an express provision is incorporated in the Constitution. I was delighted the IPPA tackled this issue head on. Will Ms McCormack expand on her statement that the inclusion of children's rights in the Constitution would not weaken parental rights?

With regard to Ms McCormack's final comment that the protection of children's rights is directly related to early intervention and child-proofing, rather than the enumeration of particular rights, is the real protection sought by the IPPA and articulated exceptionally well by Ms McCormack to be found in the policy framework? In other words, must we assess policy, legislation and the role of administrative bodies rather than interfering with the checks and balances set out in the Constitution?

Ms McCormack

I hope I can answer the Deputy's questions properly. His first point concerns parents' rights. In this period of change, there should be no dichotomy between children's and parents' rights because in distinguishing between adulthood and childhood, we create an "us or them" scenario. Families are the best place for children — they are natural and good. For this reason, we should not have an either/or scenario or place parents and children in opposition to one another. On the contrary, their interests should be dovetailed.

Deputy P. Power

Should there be an equality of rights between parents and children? I ask this because some submissions have been based on giving paramount or express rights to the child, while not expressing the rights of parents as individuals. The IPPA prefers equal rights.

Ms McCormack

Yes. The longer I am involved in child care and education, the more I realise there is fundamentally little difference, apart from size, between children and adults. We are all human beings and if we take, as does the IPPA, a rights-based approach, it is incumbent on us to introduce children's rights. This does not mean giving them autonomy, because young children still need our support and protection, but rather making provision for express named rights.

In preparing for this meeting I found, particularly while referring to Geoffrey Shannon's work, that much of the work in the courts appears to be held up because the child is now invisible within the entity of the family. That is my understanding of the position. Having rights enshrined in law is one aspect of the issue but having them felt in daily reality is a different issue. I am not sure my response has been adequate. This is not an either/or scenario and we need to acknowledge children in their own right in the Constitution.

Child-proofing, another aspect of the same issue, involves examining the Constitution and ensuring that it provides for equity and fairness for all sectors, particularly young children.

Deputy Cuffe

Earlier, the Ombudsman for Children informed the joint committee that children want nothing more than to be part of a family and stressed the importance of family support. Would giving rights to children reinforce the family unit? While I suspect it would, I am interested in the IPPA's view on this question.

Ms McCormack

Yes, it would reinforce it. There are two levels, the granting of rights and the implementation, exercise or enjoyment of those rights. It would be good for families if children had rights as they would not diminish parental rights. I have used the word "fear" once or twice because concerns and fears arise when society changes and something as fundamental as the insertion in the Constitution of family or children's rights takes place. There is a natural fear that the inclusion of something in the Constitution diminishes or dilutes something else. Marriage is good where it works and children and families are good and must be supported.

Deputy J. Breen

I thank the delegation for its presentation. Should cohabiting couples be recognised as a family under the Constitution?

Ms Gunning

The day-to-day reality for children is that many of them live in such circumstances and they also have a mammy and daddy. Respect for the child and his or her family is vital. Children come from families in which couples are married and unmarried. The IPPA views this issue from the perspective of the child and, as such, believes the child's family and culture must be respected at all times.

Deputy J. Breen

Should the sanctity of marriage not be recognised?

Ms Gunning

I am not saying it should not be recognised. As we stated several times, families are good places for children and married couples tend to have a great deal stability in their relationships which is supportive of young children. The reality is, however, that children live in families which do not conform to patterns that evident some years ago.

Acting Chairman

I thank Ms Gunning and Ms McCormack for their contributions which were very worthwhile as they will have noted from the response of members.

Ms Gunning

An important conference scheduled to take place in late August and early September will address the issue of young children as citizens. Although we forgot to include the brochure for the conference in the documents we submitted to the committee, I wanted to mention the conference. The consideration of children as citizens is an important topical issue in the area of early childhood care and education.

The IPPA, the Early Childhood Organisation, has been grappling with the issue of the participation of children in services over a number of years. The power of adults does not diminish when they share control with babies and toddlers. The responsibility of adults to children is sharpened in such circumstances. We need to examine how adults can support children in their vulnerable moments and enable them to manage situations.

The conference I mentioned, which takes places in various parts of Europe each year, will be held in Ireland for the first time this autumn. I will send the committee some details of the conference, which is organised by the European Early Childhood Education Research Association, EECERA, in the event that some members are interested in it.

Acting Chairman

I wish the organisation success with the conference.

Sitting suspended at 2.31 p.m. and resumed at 2.37 p.m.

Acting Chairman

I welcome the members of the Mothers at Home delegation — Mrs. Nora Bennis, Ms Marie Burke, Ms Theresa Heaney and Ms Rose Ryan.

Before we begin, I remind visitors that members of the committee have absolute privilege but that the same privilege does not apply to witnesses appearing before the committee. I invite Mothers at Home to make a presentation of approximately six to eight minutes, to be followed by a question and answer session.

Mrs. Nora Bennis

Mothers at Home intends to show that Articles 41.2.1° and 41.2.2° of the Constitution are in the interests of the rights of woman and are anything but outdated. They do not stereotype woman but respect her role as mother and homemaker. They are liberating, rather than oppressing. They do not present an obstacle to the fulfilment of woman. Mothers At Home considers that the assertions to which I have referred are offensive and discriminatory. It intends to show that the only thing that is outdated in this regard is the flawed feminist ideology that has underpinned political thinking in Ireland and elsewhere for far too long.

Articles 41.2.1° and 41.2.2° of the Constitution are for all seasons and will never be outdated. They support a fundamental life principle that is universal, timeless, self-evident and unchanging. As instruments for social order, they are as valuable today as they were in 1937 when the Constitution was introduced. Those who claim that the articles are outdated are primarily influenced by a strain of feminism that, while condemning authoritarian and patriarchal practices, is guilty of authoritarianism and the worst forms of patriarchy. It purports to know what is in the best interests of every woman and forces this knowledge down the throats of every woman. It is marked by a negative and hostile attitude towards men, marriage and motherhood.

Mothers at Home has studied some reports of the debates which took place in 1937 when the Constitution was introduced. It is extraordinary how little has changed since then. We have two opposing forces now, as was the case then. Hardline feminists, who engage in a form of tunnel vision, are on one side and ordinary and decent family men and women, as well as some politicians, are on the other. While the language of the feminist argument may have changed since 1937, the substance of the argument remains the same.

Although it is obviously unconstitutional, the UN Convention on the Elimination of all Forms of Discrimination Against Women, CEDAW, is the bible of hardline feminists. Sincere democrats are angry that the terms of such a blatantly unconstitutional treaty have been illegally introduced into Irish law without prior consultation with the people. Mothers at Home members have directed us to ask why this happened. Why have successive Governments failed to seek the will of the people for the ratification of this deeply disturbing convention? No Government has authority to cede power over the family to anybody, least of all to the unelected, unrepresentative CEDAW committee. That committee has shown itself to be exclusive, divisive, narrowly focused and, sadly, sectarian. Mothers at Home respects its freedom to hold its opinions but we strongly object to it forcing its doctrines down the throats of every man, woman and child in the State. We have informed the CEDAW committee about this on a number of occasions.

The CEDAW committee rapped Ireland on the knuckles because of Article 41. The committee said Article 41 stereotypes women by implying that the proper sphere of women's activity is in the home and only there. Mothers at Home wishes to state that this is feminist spin-doctoring of the most offensive kind. Article 41 does not imply this and was never intended to do so. CEDAW et al are either misinformed or deliberately choosing to misinterpret Article 41. A similar minority of vocal middle class feminist groups attempted to put the same spin on Article 41 during the debate in 1937 on the Constitution. I have given a number of references to this for those who wish to access them. Time and again the framers of the Constitution repeated that when they spoke of woman’s life within the home, they were dealing only with one aspect of that life. The Dáil debates of the time support that.

The feminist argument is belied by Article 45.4.2° of the Constitution which protects the rights of men and women who work outside the home. Article 40 also protects the individual rights of women as well as men.

Article 41 does not stereotype women, far from it. Its real purpose is to elevate motherhood to its rightful place — one that demands absolute respect and a duty of care from legislators and the State. The Constitution review committee, obviously influenced by CEDAW dogma, got it dreadfully wrong. Mothers at Home calls on them to review their review. Article 41 is not outdated. It is respectful of women as wives and mothers and of a woman's right not to be denied the right, "de dheasca uireasa" to choose the profession of full-time wife and mother.

Common sense tells us that marriage, as defined by the courts, is the only state that could give the majority of women this freedom to choose. In marriage, wives become co-carers with their husbands of their families. I put it to the committee that successive Governments have abdicated their constitutional responsibilities to properly defend marriage and the marriage-based family, particularly the rights of the stay-at-home mother. Ordinary decent family men and women are asking why this is the case.

Why, for example, was the recommendation of the first Commission on the Status of Women disregarded by the Government of the day? The commission to which I refer acknowledged that equality legislation would create major problems for the stay-at-home mother and the family where the husband was the lone breadwinner. The commission, chaired by Dr. Thekla Beere, daughter of a Church of Ireland rector, made a number of positive recommendations to protect the stay-at-home mum and the traditional family, including the recommendation that a State allowance be paid to these women. This was the one major recommendation of the commission that was never implemented. Obviously, the work of the stay-at-home mum and the importance of the single income family did not count with the legislators of the day.

However, some decent-minded sincere political thinkers in Ireland were growing concerned. The second Commission on the Status of Women, which reported in 1993, and which many have since described as the "commission for women of status", was set up with a clear directive from the Taoiseach to pay special attention to the needs of women in the home. It is interesting to note that a significant percentage of submissions, 603 in all, to that commission sought more favourable recognition in law and policy for the full-time wife and mother. The sleeping giant was stirring.

Only one submission sought the removal of Article 41.2.1° and 41.2.2° from the Constitution. This lone submission for the removal of the mother's rights article became an official recommendation, while submissions on behalf of the stay-at-home mum were completely dismissed. They were, in fact, ignored.

It was now becoming clear to right-thinking family men and women that the second Commission on the Status of Women was what many had described it, a commission for women of status, controlled by old-line feminists hostile to mothers at home. The stay-at-home mum did not rate highly on their agenda. In fact, she did not rate at all. She was, according to them, "a private benefit to the earning partner, and as such [didn't] warrant a State payment". Article 41.2.1° and 41.2.2° of the Constitution clearly contradicts this feminist thinking. This contradiction was obviously behind the commission's call, based on just one submission, for it to be removed. To their eternal shame, successive Governments have supported this feminist agenda and in so doing have aided and abetted the downgrading and the devaluing of the work of stay-at-home mothers.

This All Party Oireachtas Committee on the Constitution is being given an opportunity to redress the wrong done to the stay-at-home mothers of Ireland, many of whom — our own mothers — refused to abandon their chosen roles as co-carers with their husbands of their families and who remained at home against all the odds. It has the opportunity to redress the wrong done to those mothers who were and are still being forced — not by choice but by economic necessity — to seek paid employment outside the home. As the great Pope John Paul II said when he visited Limerick in 1979 "Ireland must choose". He was speaking on the value of the family and the need not to devalue or undermine in any way the stay-at-home mother. I have copies of the homily he delivered at Limerick if anybody would like to read it. He also spoke on other occasions of the need to value the work of the stay-at-home mother.

Successive surveys are exposing the damage being done to women when governments buy into the flawed feminist thinking such as that which underpins CEDAW. Many surveys show that mothers are stressed out and that their health is suffering. High profile men, such as the Governor of Mountjoy Prison, have recognised the value of the stay-at-home mum to society and have called for more respect from legislators for their work. John Lonergan said "Without them we are lost". Patricia Casey and many other experts in the field have also pointed out the consequences of disregarding the value of the work of the stay-at-home mum. We should also consider the rights of the child.

There is another compelling reason for a change of attitude to the value of the work of the stay-at-home mums of Ireland. The greying of Europe is a stark reality and the future is bleak for the sick, the elderly and people in need of social security. For reference, committee members should see Hubert Krieger's and others' reports to the Irish EU Presidency conference on the family in May 2004. In the 1930s, the fall in the number of births in many European countries, including Ireland and Britain, was seen by some as the reason for encouraging women to remain in the home. Fertility was a real concern. We have recently seen this concern coming to the fore again.

As already stated, falling fertility rates, the greying of Europe and the pension dilemma are real concerns. Political leaders can no longer close their eyes and ears to such concerns in the hope that if they ignore them, they will somehow go away. Mothers at Home has listened to the many EU and UN organisations that have been sounding the demographic alarm bells for decades. On behalf of Mothers at Home, I have attended numerous conferences both at home and abroad, including last year's EU Irish Presidency conference on the family held in Dublin Castle, where I was the official delegate of MMM International, the world movement of mothers. The genuine concern of ordinary decent family men and women was palpable there and those in authority were left in no doubt as to what people want.

The articles on the family in the Constitution, including that under discussion, are not outdated. What is outdated is the strain of feminism that has coloured the thinking of the Government, and world governments, for the past three or four decades. This type of negative, discriminatory, exclusive, divisive, sectarian feminism is no longer accepted and attitudes to women are already beginning to change in many countries, as witnessed by the growing number of national and international conferences supporting the natural law understanding of the family. Mothers have found their true voice and it will be heard louder and clearer on the world stage in the future because they now know their true worth. They know that the hand that rocks the cradle rocks the system.

Deputy O'Donovan took the Chair.

Deputy P. Power

I thank Ms Bennis and the other representatives of Mothers at Home for attending and for the effort they made to be here. That is very much appreciated by the committee, particularly as it tries to balance divergent opinions.

I wish to refer to other submissions which do not necessarily reflect my views. Ms Bennis concentrated on mothers working in the home in her contribution, which is understandable. However, does she think there should be acknowledgement of cases where fathers, of their own volition, do not work in the community in the traditional manner and want to stay at home to rear their children? I know a number of fathers who have made that choice. Do they deserve an acknowledgment? Should they be supported through taxation legislation, given that the group has a view on individualisation? Should stable, long-term relationships in which the two partners decide, for one reason or another, not to get married but who have children be recognised in the Constitution? These men and women provide a comfortable loving and caring environment in which to raise one or a number of children.

Senator Finucane

A representative of the group, Women in the Home, pointed out that when she worked at home, she was involved in many voluntary activities such as the meals on wheels scheme. When she took a job, she was lost to the voluntary sector. She has since returned to the home but she pointed out that the State does not recognise the contribution of mothers in the home to the voluntary sector. When they take up a job and leave the voluntary sector, the State must fill the void. However, she believes the State could make a contribution to mothers in the home who undertake voluntary work on behalf of the State. What is Mrs. Bennis's view on this?

Various groups have stated that the family role played by cohabiting couples, of which there are approximately 80,000 in the State, should be recognised. Mothers in the Home comes down strongly in favour of the traditional family unit in its submission. However, perhaps Ms Bennis will address this issue.

Mrs. Bennis

The reason we focused on this article in our oral submission is that when we made our written submission, it contained a statement that the article was outdated. However, our submission is that it is an article for all time and that it will never be outdated. The article concerns mothers at home and, while we have no problem whatsoever with anybody else who wants to remain full-time in the home, we are solely concerned with this article, which recognises both the value of the voluntary work and work in the home of the full-time mother to society. It has never been recognised and it is time to recognise the value of the work of full-time mothers. The work of fathers is an issue for another day.

From the point of view of the family and the children, it is vitally important that a parent should be in the home full-time. By and large, we all agree that mothers choose to do so in the vast majority of cases. We only refer to members who choose to work full-time in the home. We also believe mothers who choose to work outside the home should also be facilitated in a way that will not undermine their equilibrium or family harmony. They should be facilitated to make that choice. I grew up at a time when I had to leave work when I got married. We now have a new marriage bar to the effect that if a mother wants to stay at home, she cannot do so because it is financially impossible.

We have fathers, mothers working in the home and mothers working outside the home in our group. Our submission is that this article is not outdated. We are angry that the only submission made to the Commission on the Status of Women calling for its removal became a recommendation. We do not understand that, particularly as 200 submissions to the commission sought more recognition of the value of the mother.

I accept the contributions made by mothers in the home to society is absolutely essential to the common good. The article states that but the Government has never recognised this. Mothers who work full-time in the home are not recognised in terms of pension rights. They get half a contributory pension and do not have individual pension rights. We are growing in number and we will be a force. We intend to remain a force until a Government authority states "Yes, you are worth your weight in gold".

Deputy P. Power

Do I take it that the group has no difficulty with Article 41 and the reference therein to the special place of mothers in the home, that it does not want the article to be deleted or watered down and that it would prefer it to be given real expression in the context of supports for mothers?

Mrs. Bennis

We want it to be given expression in terms of financial rights and recognition on the part of policy-makers. We have a number of demands. We want a place at the decision-making table. That is our right. We want to be represented. We have applied on a number of occasions for a place at the table but we were told we had to become members of the Council on the Status of Women or the National Women's Council, as it is now known. The council does not respect our point of view. We have to conform to its views, with which we disagree. We agree with many but not all of all their views. We cannot become members of the National Women's Council without supporting and promoting its views and, therefore, we are not in a position to take a place at the decision-making table. We want it and that is our number one demand.

Deputy O’Sullivan

I welcome Mrs. Bennis and her colleagues. We debated feminism previously and I will not attempt to do so now.

Mrs. Bennis

We agreed to differ.

Deputy O’Sullivan

I wish to refer to the experience of children. Representatives of the IPPA came before the committee earlier and pointed out that it was important that the experiences of all children should be validated. This matter arose in the context of children who are not raised in nuclear families that are based on marriage and who might be raised by lone parents, by a man who is not their father and so on. In other words, the interests of the child should be paramount and certain children should not be valued less than others. Does Ms Bennis feel there is a way in which we can constitutionally protect the rights of children in situations other than marriage as defined in the Constitution? I respect the viewpoint that the definition should remain as it is and that the article regarding women being in the home should be retained. My colleagues have asked questions on that issue. However, does Ms Bennis feel the Constitution should provide protection for children living in units other than a family based on marriage?

Mrs. Bennis

The Deputy is asking me whether there should be protection for other forms of family. I certainly agree that the Constitution protects all children. Article 40 protects individual rights. There is not much sense in putting a roof on a building if the foundation is collapsing. If one does not secure the foundation first, one has no business putting on the roof, since it will be down around one's ears in no time. We all accept that there are many problems. There are huge problems, with which we must deal. It is a big challenge for all governments. I have heard it across the board, at the United Nations and European conferences.

Deputy Power asked about stability. We must secure stability as children deserve a secure and stable background. As we live in a world that is not perfect, we cannot expect perfection from everyone. All we can expect is a degree of imperfection. However, we must say what is in the best interests of the child, men, women and society. We have a Constitution with an article on the family which is the envy of the world. It must be held, restored and empowered but that has not been done for years. Far too many rules and regulations and anti-family legislation have been brought forward. I understand why that was done and that most of the people involved were deeply concerned and sincere. However, they were wrong. We have ended up with a society that is collapsing and falling apart.

In 1993 I said — people laughed at me at the time — that we were heading for a situation that would eventually lead to the anti-social behaviour Bill now before the Dáil for discussion. Why are we in this position? Crime is rampant and children are out of control. We hear everywhere we go what has gone wrong. I grew up in a society in which nobody committed suicide. If a person did commit suicide, it was talked about for the rest of one's life.

Deputy O’Sullivan

We had the 1937 Constitution throughout that period and it did not stop those things happening.

Mrs. Bennis

Absolutely but there are now far more children and marriages in trouble than ever before. I am not saying things were perfect then — I am not that daft — but we have an opportunity today not to continue down the present path which is old-line feminist ideology and cannot work. We must take control.

Deputy O'Sullivan asked me about children. They deserve to grow up in stable and secure surroundings and it is our duty to ensure this. Do not tell me that living together and what we call the new "unions" give children stability. Divorce is a colossal blight on society. Our children are suffering, as all the surveys confirm. We should not be going down that road.

Deputy O’Sullivan

Previous discussions centred on whether the Constitution should be a document about ideals, whether it should deal with the family forms in today's society and protect people's rights.

Mrs. Bennis

The Constitution does that already. Article 40 deals with individual rights. Article 45.4.2° deals with the rights of mothers and fathers working outside the home. Article 41.2 deals with the rights of mothers in the home. The only one not reflected in law is Article 41.2. The mother is the heart of the home. If members want to secure the family, what we must first do is ask what we really want and what kind of society we desire henceforth. Do we want one based on instability or stability? Unless we decide for ourselves the type of society we want, we are wasting our time today. We must say we want a society based on the only unit that has stood the test of time, bad and weak as it can be at times. The family based on life-long marriage does not always work perfectly but it is the best we have. We are talking about dumping Article 41, the only one that recognises the rights of the mother, the father and the child. Any sane, common-sensical Government in Ireland should be leading the way in Europe on this issue. It must state the article must stay. Under Article 40, we can deal with individual rights and different "unions", as the members like to call them. All I am saying is Article 41.2 must stay. We are not giving way on this.

Deputy P. Power

I wish to clarify an important point at which we are all trying to get. Leaving aside Article 41, is Ms Bennis saying her organisation would not have a great problem if a separate article gave some recognition, although not in the same way, to a relationship, the parties to which had children outside of marriage but was stable, secure and long term? Would it have a difficulty with giving the people concerned some form of constitutional protection?

Mrs. Bennis

They have it under Article 40. We are talking about the basis of marriage. If one moves to any other understanding of family, one will lose the sense of this article. One cannot have two articles where one contradicts the other. Article 41 is the only one that will give stability to society. For me, it is the most important article in the Constitution. The family is not bound to obey the Government. Under that article, the Government is bound to recognise the authority of the family. We want this to be held, bad as some families are. However, the vast majority are decent, ordinary and hard-working people struggling to make live worth living for themselves and their children. This article underpins their rights and the duty of the State towards them. We do not want to see it changed in any way.

Chairman

The organisation has made its position very clear. I thank it very much for its submission. I apologise that another commitment delayed me for a while. I read the original submission. It is good to hear from such people since sometimes the media state something else is happening. They are giving a particular perspective that we will take into account during our deliberations. It is a complex issue. I hope that in the next three or four months when we prepare our report, we will get the balance right. As I have said to several groups, as Chairman, I and, I think, most of the members have no premeditated agenda of any description.

The review of the Constitution has been ongoing for almost ten years. We have examined the role of the President and various other issues. For example, last year we prepared a report on property rights. In our conclusions we said the Constitution of 1937 should not be amended. In other words, the problems regarding the lack of housing and the zoning of land could be dealt with by legislation. The joint committee stated we did not need to amend the Constitution.

We will look at this issue seriously and greatly appreciate the group's submission. We thank it for attending for a discussion with members.

Mrs. Bennis

I shall leave the joint committee a copy of our aims. We are greatly encouraged by the knowledge that Pope Benedict XVI fully supports them, as witnessed by his letter before he became Pope to the Bishop on the collaboration of men and women in the church and the world. We are very happy that he supports us.

Chairman

I thank Mrs. Bennis.

Sitting suspended at 3.10 p.m. and resumed at 3.12 p.m.

Chairman

The next item on the agenda is the presentation from the Irish Senior Citizens Parliament, represented by Mr. Michael O'Halloran and Ms Sylvia Meehan. I welcome our visitors and remind them that members of the committee have absolute privilege but that the same privilege does not apply to witnesses appearing before the committee. I ask Mr. O'Halloran to outline the important aspects of his presentation in a period of six to eight minutes.

Mr. Michael O’Halloran

I thank the committee for the invitation to make a presentation. My presentation will take less than eight minutes.

Chairman

This group previously came before the committee and engaged in interesting discussions with members. I am aware that much time has been spent preparing this submission. We welcome and respect groups such as this coming before the committee because we are involved in a learning process. Unfortunately, there are time constraints.

Mr. O’Halloran

I know the way the system works. The Irish Senior Citizens Parliament does not have expert knowledge on the Constitution. Such as it is, our expertise is in understanding human life and human beings. We particularly understand families because we have been parents and grandparents. These are the people we represent.

We want to deal with a number of issues in which we have a direct interest. The document issued was interesting and complex. I am sure it has given committee members anxiety in grappling with these issues. We are not going to comment on all of the issues that have been raised.

Today there are more one parent families than was previously the case. They are now recognised and understood to a greater extent than before. In some instances, a one parent family may comprise a mother and children while, in others, it may comprise a father and children. We believe that emphasis and recognition must be given to these families. We also know that one parent families can undergo more difficulties than other families. Mothers in one parent families often cannot take advantage of opportunities in employment and education because they do not have support to assist them in their child-rearing responsibilities. For example, crèche facilities and supports are not available for these people.

True recognition has never been given to Article 41, which states "mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home". Today that is not possible. Without leaving their homes to work mothers cannot look after their families. This article recognises that where a mother has responsibilities to her child, the State needs to give serious recognition to those responsibilities. There should be intervention policies to assist the mother and her children. This issue is neglected in law. We doubt that there is something one can put into a Constitution that will give the support people need. A Constitution can only be a supporting framework for other legislation. Constitutional change might paralyse the Dáil. Action by that body to assist people may be found unconstitutional in areas where rights are defined in the Constitution. Changes to the Constitution must support progress.

The traditional definition of the family is mother, father and children. This was the accepted definition almost from the beginning of time but it must be recognised that one parent families now exist. The Irish Senior Citizens Parliament believes that grandparents should also be recognised by society. Grandparents play an important role in many families by assisting with child minding. Grandparents and children are often close. In situations of marital difficulties or breakdown, grandparents have few or no rights in terms of their relationships with grandchildren. This issue needs to be addressed. While we do not advocate a constitutional provision in this area, legislation is necessary to ensure the right of grandparents' access to grandchildren.

While they may not always involve cohabitation, both traditional and new forms of family involve two parents. It is often the case that the child does not have access to both parents and vice versa. This matter should also be addressed. While a child may receive a good upbringing from one parent, access to both parents presents him or her a better opportunity to develop as a complete person.

On the individual rights of parents, as opposed to the rights of the family as a unit, we believe it important to give protection to the rights of father, mother and child. This should be defined in law, although not necessarily through the Constitution. Mr. John Kelly referred in his book, The Irish Constitution, to the case of Ryan v. the Attorney General, which I attended as a young man. As a baker, I worked at night and this allowed me to listen to cases in the courts. In that case, Judge Kenny remarked critically that not one of the counsel could specifically identify the rights of the family. Rights should be spelt out. There appears to be an omission in the Constitution on this matter. The Constitution should be amended to allow the introduction into law of the United Nations Convention on the Rights of the Child. While this convention was ratified in September 1992, it has not yet been transposed into the Constitution. Until that is done, it cannot become part of domestic legislation.

I wish the committee luck in its work, the outcome of which is important for the development of our society and for families, whether traditional or one parent. We hope that the work of this committee will contribute to the development of the rights of these families.

Ms Sylvia Meehan

I will make some general comments. The relationship between grandparents and children can be extraordinarily valuable to the lives of both parties. While in the normal course of events the involvement of grandparents is acceptable to everybody, problems can arise. Rows between parents may result in a desire to inflict punishment.

In terms of the Convention on the Rights of the Child, it would be useful if children were entitled to have access to their extended families, which include grandparents. When problems arise, people who seek legal redress may find it difficult that the United Nations Convention on the Rights of the Child is not part of domestic law. Marital problems can involve disputes over the allocation of money and funds and may have the consequence of denying a child the interest and love of his or her grandparents. We are all aware of situations where grandparents are distressed because the break-up of an offspring's marriage threatens the loss of their access to grandchildren. It is a pathetic situation. I do not have the legal skills to advise whether grandparents have greater rights to look after a child than its parents. Without a legal basis for the relationship between grandparents and children, difficult cases will be impossible to solve. These situations should not arise but they do. We have no suggestions on wording but we wish the committee would attend to this matter.

Families different from the traditional version now exist. Children who are born outside of traditional marriages may have a connection to various members of the extended family, including great-aunts, great-uncles and grandfathers. People are not possessive of these labels but heartbreak can be caused. A child is entitled to the love and care of blood relatives. As problems only arise in difficult cases, it is impossible for me to envisage a situation which might fit neatly within a legal framework. I dare say that this committee has access to the legal experts capable of formulating the appropriate provisions. My opinion is not merely based on my feelings but also on knowledge common to many people in Ireland.

Deputy Andrews

I welcome the representatives of the Irish Senior Citizens Parliament. I am familiar with its work, including its submission on this year's budget. I am particularly interested in the proposal that a guarantee of rights of access for grandparents should exist. If rights are to be guaranteed to grandparents, it could be argued that obligations should also exist. There should not be a one way street in this respect.

While fathers are currently trying desperately to assert their rights of access, they have obligations of maintenance or otherwise. If a father was not available and a grandparent asserted a right of access under the proposal, could a court not equally place a maintenance order on a grandparent? Does the parliament wish simply to ensure that judgments are made on the basis of the welfare of the child to allow the court to consider it preferable for a grandparent to have access?

In the third paragraph of the submission, an interesting idea is raised on crèche facilities. While I do not suppose the parliament has considered the matter very deeply, the committee wonders if provisions in this area should be included in the Constitution.

Mr. O’Halloran

No.

Deputy Andrews

That is fair enough.

Mr. O’Halloran

I will let Ms Meehan answer.

Ms Meehan

It seems reasonable to first consider the benefit to a child of access by grandparents. Denial of such access can be of harm to a child, particularly in light of the modern knowledge that while people may not seek their roots, they need to know what they are as they grow up. In concentrating on the rights of the child, we do not contend that there should be a requirement on grandparents to maintain a child.

Deputy Andrews posed a difficult question. My heart may say one thing but my head would not help to put it in a legal framework. Having reared their children to adulthood, people do not expect to have demands made on them in terms of continuing to provide for those children by way of maintenance. It could happen that it would be just to make such a provision in certain cases. It would be easier to achieve if the concentration were on the entitlement of a child. If a child has grandparents possessed of great property, wealth and means and has parents who have abandoned him or her or who do not have adequate means, it should be possible to make a demand for maintenance where those grandparents wished to be seen in loco parentis.

There is no legislation which says such provisions would be good, bad, indifferent or go far enough. It could be the case, but I cannot visualise. I can understand that such circumstances could arise. The duties of parents towards older parents are often contravened. Many parents who are old and in need of attention do not receive it from their children. Just as it does not seem possible to demand that grown up children should pay to maintain their parents, I cannot visualise a provision whereby grandparents would be made responsible for the maintenance of grandchildren unless they had accepted some form of legal guardianship. If grandparents seek legal guardianship, the question of maintenance should arise, particularly if the suit is being resisted by an absent or otherwise unsatisfactory parent. We will leave the matter to the wisdom of the committee.

Mr. O’Halloran

I acknowledge that Deputy Andrews has a legal as well as political background, which I do not hold against him.

Deputy Andrews

That is very kind of Mr. O'Halloran.

Chairman

Mr. O'Halloran should hold it against the Deputy.

Mr. O’Halloran

I wish to explain what we mean. I do not contend that grandparents should have an absolute right of access to their grandchildren but rather that such access must be considered in the context of what is best for children and grandparents in harmony. I am a grandparent and speak with some authority. I love my grandchild dearly and want access to her because I love her and she loves me, for the moment. We also have a very positive relationship in the Irish language as she attends an all-Irish school. I would lose a great deal if I did not continue to have access to my grandchild. While that might not be important to her, there may be aspects of the relationship which are important to her development. While I cannot make a definitive statement on that, I would like to have certain legal rights in circumstances in which I was denied access to her.

I would like to have the right to put a case to a family court, which is a legal court and which can take into account the human circumstances involved. I would like the court to be able to assess what is best for the grandparent and the grandchild. There should be some means to make a case and to have that case taken into account. While there are extreme circumstances in which access to their children for parents is not advisable, we must create circumstances in which grandparents are not denied the possibility of putting their cases.

Deputy Andrews

Is the parliament of the view that grandparents are denied this opportunity?

Mr. O’Halloran

We are denied it at present. There is a significant movement in England, which is not affiliated to us and which is focused on the rights of grandparents. In marital breakdown and even rows, grandparents can be ignored. We do not call for an absolute right of access in all circumstances but rather for access where it is deemed in the best interests of the grandparents and, most importantly, the child. We seek to have circumstances created in which that balance can be found.

Senator Tuffy

A proposal was put to the committee that instead of recognising the role of the woman in the home, the Constitution should recognise the roles of the carers of dependent relatives in the home. It would provide for grandparents, extended family and the carers of elderly relatives, rather than just for mothers. Does the parliament feel that the basis of the family, as defined by the Constitution, should be broader than just marriage? Should the Constitution contain a specific reference to the rights of grandparents?

Mr. O’Halloran

That is a good question. The Constitution is the fundamental law of the State. While it cannot include everything, we must avoid making constitutional provisions which prevent the creation of primary legislation. If the Oireachtas is of the view that there are provisions it would be worth introducing in order to advance human values in our society, we must have a Constitution which cannot strike down its proposals. If there was general agreement in the Oireachtas — elements of the Opposition, which have their own way of assessing what is good and bad, might demur — that a particular initiative might be worthwhile, it would be a great pity if an individual could mount a successful challenge to that initiative and have it struck down. In some instances, the Constitution will uphold individual rights even where we might think otherwise. One cannot write everything into the Constitution but one can have a general recognition that the good of the child may require certain measures that must then be defined in law. That is the way we see it.

Our view of marriage is that it is a good thing. That is what we believe. It may be undervalued in some ways. I read a negative comment on young people recently. It was absolutely terrible. It was written 2,000 years ago by Socrates, which shows that nothing changes.

Senator Dardis

We know what happened to him.

Mr. O’Halloran

He was poisoned.

Marriage is good. Whether it is a conventional marriage or a sacramental marriage, it is a lasting relationship between two people with a commitment to each other. Our view is that if it lasts, that is good. However, we know that this no longer happens for many people. We also know that some people live in single parent families. As far as I am concerned, they are families too and their needs and rights have to be considered, protected and advanced. That is our position.

The Constitution cannot deal with the position of carers and so on. That can only be dealt with through legislation. Bills can be introduced, either by the Government or the Opposition. There is a role for the Constitution and a role for primary law. Getting that balance right is the challenge for legislators.

Ms Meehan

I agree. One member asked a question about situations where grandparents are the carers in the home. Certain aspects of social welfare entitlements go to parents. If grandparents are caring for a child in the home they should be entitled to that social welfare benefit. These are dependent children. Does that go far enough or does Senator Tuffy want me to address anything else?

Senator Tuffy

No, Ms Meehan has answered the question.

Senator Dardis

Many of the groups that have come before us, particularly those representing the Christian churches, made the point that the Constitution should be a statement of general principles and that legislation should accord with those principles. I do not agree with the notion that the law should be above the Constitution or that something, just because we all agree it is good, should be accepted. The Constitution must be the supreme document and we must ensure that the law is in accordance with it.

I have just become a member of the grandparents' club.

Mr. O’Halloran

I congratulate the Senator.

Senator Dardis

I am still trying to get over intimations of my own mortality before I deal with the deeper issues involved. Given the pressures of modern society, have we reached the point where the relationship between grandchildren and grandparents may be an even closer bond than that between children and parents?

My next point relates to the definition of the family and its position within the Constitution, which currently refers to a family based on marriage. There is general agreement among the people who have spoken to us that the definition should be broader than it is at present in order to reflect modern society and the existence of single parent families, etc.

How far would the Irish Senior Citizens Parliament go in defining the family? Should it include aunts and uncles or people beyond that or should it just include parents, children and grandparents? How wide should the net be cast?

Mr. O’Halloran

We must be careful. I did not say that primary law is superior to constitutional law. The opposite, namely, that constitutional law is superior to primary law, is the case. However, we must not have constitutional law that puts legislators in a straitjacket. I will not go through the history of the constitutional amendments that were introduced but that were not thought out. A decision was taken on what should be in the Constitution but then we found the courts did the opposite to what had been intended.

Senator Dardis

Particularly in one case.

Mr. O’Halloran

The X case is the one to which I refer. That was obviously badly advised. The definition of the family may have to be stated in a new way. It may have to be broader than it is now and must hinge on who in the family has rights. Obviously the mother, father and children will have rights. In order for children to have rights, it may be the case that rights must also be granted to others such as grandparents. As for uncles and aunts, that would depend on relationships. This is difficult to frame in constitutional law.

Where a mother is unable to look after her child due to ill health, that child may have to spend time in the custody of an aunt or uncle. The father may have to go to work and the only person who can look after the child is an aunt or uncle. The child will return to the family home when the mother's health improves. I am not sure how one could deal with the issue in law if the parents denied the aunt or uncle access to the child. It would be quite cruel if that were to happen. Situations like that exist but, as the saying goes, hard cases make bad law.

One cannot include everything but one has to broaden it a bit more than is the case at present to take into account the way the world has developed, in some ways for the best. It is wrong the way people are condemned for certain things today. Young people and couples probably share more than I or the rest of my generation did because they can only survive if they share. Men are obliged to accept responsibilities — loading dishwashers and carrying out other domestic duties — now that would never have been heard of in the past. It must be recognised that this is the way society has developed.

Senator Dardis is correct in that children can be much closer to their grandparents today, for a certain period anyway, than they are to their parents because parents may be working and do not have as much time to spend with their children. Before I came before the committee, I had to collect my granddaughter from school. I love doing that for all kinds of reasons. I have a great deal of contact with her but so do her parents. Our society has changed and it is our humble view that the Oireachtas must reflect that as best it can in primary legislation and in the fundamental law of our Constitution. It is not an easy task. It is a challenge.

Senator Dardis

I hope we are up to the task. Does Ms Meehan wish to add to that?

Ms Meehan

I agree with what was said. In practical terms, one should start with the entitlements of the child rather than those of the grandparents. There is no doubt about that. On the other hand, however, we must consider the pain and grief for grandparents who, for one reason or another, are prevented from having contact with their grandchildren. I am not sure how that problem can be tackled. Grandparents are part of a primary family link. Perhaps it should be enshrined in law, if not the Constitution, that, unless there is grave reason or they are in some way damaging to the child's interests, they should be allowed remain in touch with them. We frequently come across cases of family break-up where access is denied to grandparents as a result of animosity between parents. That is what happens. It is difficult to say how grandparents can assert their entitlement except by saying it is bad for the child.

Chairman

I thank the delegates. The issue of grandparents' rights is an interesting subject. I have often speculated as to how one can cater for them. They are not mentioned in the Constitution and I do not think any legislation provides for their rights. I understand their dilemma from the experience in my large family. I am the youngest of 11 children. The husband of my sister, who lives in America, was killed and her children stayed with my mother, their grandmother, every summer. She has a close relationship with them.

It is difficult to say how the committee can address these issues but we will give the delegation's concerns due consideration. Perhaps Senator Tuffy might assist me in understanding the legal position. There is a legal rule that where someone dies intestate, without having surviving children or grandchildren, parents and then grandparents are considered next of kin before brothers and sisters. I once saw a situation where a young man who had inherited a farm died a bachelor without issue and his next of kin was traced back to his grandmother. Instead of tracing lineally to siblings, one goes upwards to parents.

Senator Dardis

The capital taxes exemption does not apply going upwards, only downwards.

Chairman

That is correct. The per stirpes rule was used in ancient common law where an unmarried person died without issue and intestate. This rule means that one searches down a person's bloodline first and if that does not yield results, the search is made back along the person's bloodline. Where a will was made this problem would not arise.

I am familiar with situations in my constituency where grandparents suffered enormous emotional strain when their sons' or daughters' relationships broke down in bitterness. In such sad circumstances, there are winners and losers. I recently met a grandmother whose daughter went to Australia or New Zealand for two years with her own daughter. The grandmother was approximately my age and she told me she was devastated and had not realised the attachment she had to her grandchild. If anyone present was in her position, they would also be upset.

I am not certain how we can deal with the links between grandparents and grandchildren through the Constitution or legislation. The Irish word for family in the Constitution is "teaghlach", which means the extended family or household. The word "clann" has a more narrow meaning comprising mother, father and children. Until recently, it was typical in rural Ireland to have an unmarried brother or sister stay in the house. My aunt, who had Down's syndrome, lived all her life with the 11 of us and my parents, which shows the interesting meaning that teaghlach has. Perhaps we should examine this issue closely.

A member of the delegation mentioned that where a mother must work, the bond between the grandparent and the child is often strong due to their close relationship. When one is young and married, as I was myself, one is so busy making a living and buying a house, that one does not have time for one's children. As one gets older, however, one has time for one's grandchildren. I have not yet reached that stage but I have four children so it might happen. I have often considered how to address this issue, either within the Constitution or by legislation.

Mr. O’Halloran

May I make a further point? I thank the Chairman for his interest. We asked for reflection on this point and he is doing that. Addressing an issue in law is not easy. Many years ago I acquired the Acts of the Oireachtas on CD-ROM.

Chairman

They say the law is an ass.

Mr. O’Halloran

That is another story. I often refer to the CD-ROM and am amazed at the way life has changed. I once came across local government statutory instruments being put through the Dáil. One of these from County Clare stated that a woman who had a second child out of marriage would not be allowed to get free milk from the local authority. I thought that was outrageous and at least we know we have made progress since then.

Chairman

She should get extra milk.

Mr. O’Halloran

That would be in my manifesto. We need to reflect on this issue as it is part of today's society. How can we address it in law? I wish I could give the committee an answer to that question. I will say, however, that when a legal situation develops in the context of family break-up, there should be a way in which the court's taking into account the needs of the children can include access to grandparents. It need not be set out definitively that they must have access but where it is deemed to be good for the child the court should have discretion to rule on it.

Chairman

Unfortunately, we have no more time to consider this submission. Mr. O'Halloran stated that he worked in a bakery. I imagine there was a law library in that bakery as he is extremely knowledgeable and must have had access to books. He also made an interesting submission to the previous committee on the Constitution. I am aware of his political background and I wish him luck and thank him for his interesting submission. I have considered this issue from early on in this process and a group of forgotten grandparents wrote to the committee to see if we could address it. We will take Mr. O'Halloran's views on board. I am not sure everyone will be happy with our report as it is a complex area.

Mr. O’Halloran

We realise that.

Chairman

At least Mr. O'Halloran does not accuse us of having premeditated ideas. We are still wading in difficult waters and will do the best we can to come to a sensible conclusion.

Ms Meehan

I do not want to cap what the Chairman says as I appreciate it. The Chairman referred to the fact that the law can be wrong. We are aware that hard cases make bad law but where there is no law, life is particularly hard for those who want redress. In the case of grandparents seeking access which is denied to them, there is no law and it is frustrating. Perhaps the committee might find a pathway down this tangled route.

Sitting suspended at 3.57 p.m. and resumed at 4 p.m.

Chairman

The next item on the agenda is a presentation by the Reformed Presbyterian Church of Ireland, represented by the Reverend Mark Loughridge and the Reverend Raymond Blair. Before we begin, I remind visitors that members of this committee have absolute privilege but that the same privilege does not apply to witnesses appearing before the committee. The Reformed Presbyterian Church of Ireland has already made a submission, which the committee has examined. Rather than repeat the contents of the submission, I ask the representatives to provide us with a synopsis and then we will have a question and answer session.

Rev. Mark Loughridge

I thank the Chairman and the committee for giving us an opportunity to air our views. We are not here to be stuffy spoilsports or to bring a Taliban mentality to Ireland. We are not seeking to take Ireland back into the Dark Ages.

As a denomination, our aim is to see Irish society governed according to the best possible guidelines. We aim to see a stable society where children can grow up in the best possible environment and we believe that the Constitution, as it stands, is far in advance of the constitutions of many other nations. We would be happy to keep things as they stand. We wish to build a case for maintaining the status quo by examining the biblical view of marriage and the family.

One basic principle is that God has entrusted the Government with the authority to rule and govern this country, as the preamble to the Constitution indicates. God is kind and has given instructions on what to do so that the Government is not left fumbling about in the dark. It is important to examine those instructions and to allow them to shape the Constitution, rather than allowing society to dictate matters.

There are biblical principles underlying the family and God has kindly given us guidelines for marriage — a lifelong union between man and wife, male and female. The family is designed by God, comprised of a male and female who have entered into the lifelong covenant of marriage and incorporating their offspring. It is the basic unit of society and has been recognised as such through the centuries. On parenting, God has instituted the family for the good of the husband and wife and for the protection and balanced upbringing of children. In scripture, parents are expected and instructed to be primary carers for their children.

On homosexuality, God has directed that marriages are between male and female for good reasons. First, there are complementary strengths between males and females — we are built differently, we think and react differently and together we form a much stronger unit. Reproduction is another obvious reason. A third reason is to provide balance in child raising, with the strength and example of each sex coming through.

Anyone can give his or her opinion on these matters but the committee requires hard evidence that God's guidelines work. If such guidelines are for the best, one would expect to see positive benefits in a society that follows them. Empirical evidence to that effect is available. I have a background in science and design and I like to see facts and evidence. The benefits of marriage to society are clear. If one considers history and examines different empires and civilisations, one can see that they started to crumble whenever they moved away from marriage as a basis of society and moved towards equating temporary cohabiting arrangements with marriage. This is particularly evident during the French and Russian revolutions, when revolutionaries tried to equate marriage with cohabiting arrangements but quickly changed direction and reintroduced a solemnisation and structure to the family. Many secular historians and sociologists have examined different societies and Unwin, for example, found that after studying 80 primitive and 16 advanced societies, cultural achievement and sexual license were incompatible for more than one generation. Societies flourished where absolute monogamy was practised.

Marriage is beneficial to society and to children. The latter are often the weakest members of society. I have an 18 month old daughter and I want to see her grow up in a stable environment. When I began researching this submission, I was surprised when I came upon the facts that are outlined in it regarding marriage and children. These facts do not emanate from religious writers but rather from a wide range of secular analysts.

Statistics show that the family unit, comprising a husband and wife, is a much more stable environment for a child to grow up in. Infant mortality is greater outside of marriage. The statistics also show that achievement at school is higher for children in marital families, as is their likelihood of obtaining employment. Children in stable, married families tend to behave better. These facts are not unsupported statements by clerics who have a bone to pick but are well-documented research findings, which is why we included footnotes in our submission.

One report shows that almost 75% of children who committed criminal offences had cohabiting parents, while only 25% had married parents. Professor A. H. Halsey from Oxford University has asserted that, on the evidence available, such children, namely, those of cohabiting parents "tend to die earlier, to have more illness, to do less well at school, to exist at a lower level of nutrition, comfort and conviviality, to suffer more unemployment, to be more prone to deviance and crime, and finally to repeat the cycle of unstable parenting from which they themselves have suffered". I would not like the Constitution to be changed to encourage such a cycle. I would like the Constitution to remain as it is in order to encourage stability in Irish society.

The next section provides quotes which show the instability of cohabiting and homosexual marriage. Cohabiting couples are 6.5 times more likely to split up after the birth of a child. The section on homosexual lifestyle shows that there is not great stability, either, among homosexual partners. It was found that the percentage of homosexual relationships that last beyond five years is so small as to be almost negligible. It is less than 1%. This is backed up by surveys often carried out by researchers who are sympathetic to the homosexual community.

That brings us to our conclusions. Marriage, as defined biblically, is the foundation for society. It is the best environment for the nurture and raising of children. We seek to encourage the committee to recommend that the Constitution remains that way. To encourage people to enter into marriage, rather than rewarding them for not entering into it, is a key principle.

The remainder of the points are self-explanatory. To deviate from God's design is counter-productive. There is a comment there on the role of the mother. It is important that parents should be at home to have a key part in the upbringing of their children. A Government that wishes to build a strong community will take that seriously. We believe that the Constitution is right to give status to this role and to protect it.

Chairman

I thank the delegation for its submission. It has made its case clearly and succinctly. Senator Dardis wants to contribute but I should point out that the difficulty facing the committee is that within the Constitution and society at large, changes during the past 20 years are causing much concern for Government and politicians. Reverend Loughridge is examining scientific studies, etc., and I do not disagree with that. However, the 1996 census showed that there were approximately 40,000 cohabiting couples and when the next census was carried out in 2002 the figure had doubled to 80,000. One could, in a sense, describe that as alarming but it is a matter of fact. The 2002 census also revealed that the number of single parent families — 85% single mothers — was close to 160,000, which again was an enormous increase.

The Constitution has not changed since 1937 in that regard. I know we introduced divorce, ten or 12 years ago. Leaving divorce out of the equation, however, there is an issue that Government and politicians are charged with attempting to address. The issue put to the committee by some groups is that children born outside the normative marriage family unit are somehow being treated as lesser citizens than those born within marriage. The delegation can understand the task the committee faces. We have no preconceived notions. This is an ongoing review of the Constitution and we are just undertaking the study. However, the statistics presented to the committee are quite frightening.

Reverend Loughridge is looking at society and also at change. He referred to the French and Russian revolutions. One can go back to Greek history to look at Stoic and Sophos societies. Perhaps it is a case of the Irish economy performing so well that people are simply ready to embrace the Sophist philosophy of "eat, drink and be merry, for tomorrow you die". The Stoics were a much tougher regime, as regards their line of thought. History and society change and to assert that the Constitution must stand still is a difficult view to take. I am not saying that the delegation is right or wrong but these are the issues confronting the committee. Perhaps Reverend Loughridge might reflect on that and reply in a moment. Senators Dardis and Tuffy, meanwhile, have indicated that they want to ask questions.

Senator Dardis

My view is similar to that which the Chairman expressed. I do not contest the empirical evidence the delegation has laid before the committee regarding the negative effects of not having families based on marriage. We accept the evidence. However, we are also confronted with the reality of the numbers in extra-marital relationships. The Church of Ireland, in its presentation, spoke to the committee about the optimum. It said that marriage is clearly seen as the optimal state for two people being together for specific purposes, human and theological. However, it believes that the confident assertion of the optimum does not preclude the espousal within the Church of Ireland of the cause of those for whom the optimum is not a lived reality. That summarises succinctly what the Church of Ireland and many others have said — accepting that there is a reality in place.

Should any accommodation be made with regard to accepting the reality within the Constitution and then affording certain constitutional rights in respect of that reality? The delegation's conclusion in that regard is reasonably straightforward. I may be misrepresenting the delegation's position in stating that it seems to be somewhat silent as regards the children. Quite a number of groups have indicated that if the Constitution needs reform, the one area that warrants this is either in enumerated protection for the child or a declaration of rights for the child. I am interested to hear the extent to which this delegation believes the child should be included within the scope of an amended Constitution.

Senator Tuffy

My question is along the lines of those posed by the Chairman and Senator Dardis. The fact that there has been no constitutional amendment has not stopped the growth in the number of cohabiting couples. Why does the delegation believe it is so important to leave the Constitution unchanged, despite this trend?

On the statistics submitted, one study showed that young men were 1.5 times more likely to be out of school and not working if the parents were not married. I would argue that this is not necessarily because the parents are not married. There may be, and probably are, other factors involved, such as, for example, the fact that non-married parents are not sufficiently supported. Should we not do more to support such families? Will the delegation comment on this?

It is obvious that, as one witness stated, marriage is good. Should society not, however, support families that are not based on marriage? If such families, particularly the children, are given support, it will make for a better society. If we do not recognise families other than those prescribed in the Constitution, are we not saying, in effect, that they are not as good as conventional family units? We are actually stigmatising people. The delegation is saying marriage is good but surely it is not asserting that members of families not based on marriage are less valued.

Rev. Raymond Blair

I will make a general response, if I may. The aim of the Constitution should be to promote the ideal. One recognises the growing reality of what is less than the ideal. God's ideal is the family and the preamble to the Constitution recognises that ultimately our accountability, both as individuals and as a State, is to God. We should seek to promote the ideal and give it as much support as possible. Perhaps if more of that was done, and the Government and other authorities were to do more to promote a positive ideal of marriage, the trends might be reversed. The fact that other arrangements might not be recognised in the Constitution does not mean that where there is a real need of support for children, there cannot be appropriate legislation. There already has been much legislation to provide support for children. I do not see any need for modification in respect of the view of the family contained in the Constitution just because there is a need to support people who are having difficulties outside the ideal of the family.

Some would argue that due to the way the family is defined in the Constitution, and in the light of some court rulings, there is recognition of the needs of children. I am not certain about that because it is a complicated legal question. I would not be opposed to some additional insertion in the Constitution highlighting that children should be nurtured and cared for. The question of whether the Constitution already covers that in an implicit manner is complex.

Rev. Loughridge

I initially limited part of our response to three or four of the ten topics advertised. The more protection for children, the better. Many other groups will come at that from other angles and will provide specific legislation for children. That is fine but the foundation is the family.

Chairman

Is the delegation claiming that the foundation is the traditional family based on marriage, as opposed to families of a different mix?

Rev. Loughridge

Yes. We recognise that other situations arise and it is the Government's responsibility to provide care and support for single parents and cohabiting parents. However, such support must be offered in ways that do not undermine the foundation of marriage.

Chairman

Would the delegation object if the Minister for Finance was to amend the tax legislation — particularly that relating to inheritance tax, income tax and stamp duty — which currently discriminates heavily against single parents and cohabiting couples? If a couple is cohabiting for 25 years and the breadwinner suddenly drops dead, the partner would be treated as a stranger from a tax point of view. Senator Norris, in his Bill on civil partnership, stopped short of seeking marriage rights for gays. However, he felt that there should certainly be a recognition of gay couples. There is a belief that if this issue was tested in the European Court of Human Rights, the Government might be compelled to act. From the delegation's biblical perspective, does it feel that it is encouraging other relationships if it does not object to tax equity for cohabiting and same sex couples?

Rev. Loughridge

It is a fine line. There is an issue of fairness here. If people have lived together for 25 years, there is definitely an element of commitment that is not there for people who have married but walked away after five years. In a civil partnerships Bill in England, the British Government was so keen to provide for one group of people living together, namely, cohabiting and same sex couples, that it largely discriminated against much more common relationships, such as two sisters or a father and son living together. There is a real need to be careful that we do not discriminate against other groups. At the same time, we must not provide disincentives to marriage.

Chairman

It is a difficult area. Originally, that was not the case as there was a threshold between a husband and wife for inheritance tax and gift tax. That was amended some time ago and there is no threshold between a husband and wife. If a husband dies, the wife does not have to pay inheritance tax on his estate. A couple together for 20 years that has three children but that is not, for whatever reason, married does not have the same legal standing as the husband and wife. If one partner dies, the surviving partner is immediately hit with a €25,000 tax bill.

This is a matter of great concern to some of the groups that have appeared before the committee. The gay and lesbian community is rowing in behind the Bill proposed by Senator Norris. If we were to propose legalising gay and lesbian marriages, that would have to go to the people in a referendum. As a politician, Senator Norris may feel that this is a difficult road to travel. We also have 80,000 couples seeking some sort of tax equity.

Senator Dardis

It goes beyond that. Let us assume that there are children in a family where one or both of the parents are in a second union. Are the sins of the father visited on the child? The child is the innocent party to all of this. Is it correct that, under the succession rules, one group gets all of the property while the other is excluded? Anomalies can be there which are not the fault of the innocent victims.

Chairman

We have run out of time. I thank the delegation from the Reformed Presbyterian Church of Ireland for its submission. It was clear, with no equivocation. That is helpful to the committee and we will consider the submission. We will, I hope, get the balance right when we produce our report on this issue.

Rev. Loughridge

I thank the committee and we shall remember the members in our prayers.

Chairman

We could do with them because this is a challenging time.

The joint committee adjourned at 4.30 p.m. until 10.30 a.m. on Wednesday, 27 April 2005.