JOINT COMMITTEE ON THE CONSTITUTION díospóireacht -
Thursday, 28 Apr 2005

Family Issues: Presentations.

Chairman

I welcome the delegation from the organisation Unmarried and Separated Fathers of Ireland which is represented by Mr. Ray Kelly, Mr. Donnacha Murphy, Mr. Dave Carroll and Mr. Eamonn Quinn. Before we begin, I remind visitors that while members of the joint 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.

Committee members have received a copy of the delegation's presentation. In view of the time constraints under which the joint committee operates, I ask the delegation to synopsise the important features of its submission in respect of issues relating to the Constitution and relevant legislation, following which members may put questions to it.

Mr. Ray Kelly

I thank the joint committee for the great honour and pleasure of representing the organisation Unmarried and Separated Fathers of Ireland at this meeting. I am a proud unmarried father of three children. My beautiful children were taken from me ten years ago because of a failing of the Constitution in regard to guardianship. The four members of the delegation are the fathers of ten children and our rights have been violated as a consequence of constitutional issues relating to guardianship and the right of access to our children. Throughout this session we will outline various legal, moral and emotional issues.

There was no help and support available to us when we founded this group ten years ago. For the past decade our members have struggled, fought and done everything in their power to obtain access to and guardianship of their children. I have gone to court 42 times in an attempt to secure this basic right because I love my children deeply. I have been subjected to humiliation to the point where I have been suicidal. I ended up in an extremely poor state as I found that the State had denied me a fundamental and God-given right.

My children went to bed at night without a "good night" from their father. Not once in the past decade have I had the opportunity to wish them a "Happy Christmas" on Christmas Eve or Christmas Day. As a proud Irishman, I came to realise that the State was failing my children by allowing them to suffer such pain and emptiness. The tears my children cry are a consequence of the imprisonment in which I have been placed by society. Unmarried and separated fathers have no constitutional rights to their beloved children.

Unmarried and Separated Fathers of Ireland was established in Tallaght as a support group. Although the law does not support us, we have protested and demonstrated peacefully and have remained at all times within the parameters of the law. On Christmas Day for the past six years we have stood, cold, weary and tired, on O'Connell Bridge to protest our situation. We have buried members of the group who died because they had been denied access to their children.

On behalf of the ten children for whom our delegation speaks, I beg the joint committee and all citizens of the State to heed our requests. We are obliged to take responsibility for our children in regard to maintenance but with responsibilities come rights. On behalf of my three children, I ask that I be given my rights. Let us love and care for our children as is our God-given right.

Mr. Eamonn Quinn

I am secretary of Unmarried and Separated Fathers of Ireland. The Government has failed to protect the human rights of unmarried and separated fathers, rights which should be embodied in the Constitution. Article 8 of the European Convention on Human Rights upholds our right to our family and to know, love and care for our children. The Constitution should be amended to ensure the area of family law is included in the proviso that all are equal before the law. Our system of family law operates behind closed doors and there are problems with a system where judges can override fathers' rights without accountability.

Many men are denied the right to life embodied in the Constitution, as is evident from the national incidence of male suicide. This represents a fundamental breach of our rights under the Constitution. All relevant provisions should include the words "mother-father", "husband-wife" and "he-she". It must adhere strictly to the UN Convention on the Rights of the Child. It is the right of the child to know, to love and to be cared for by his or her father. This is the responsibility of both parents. Both parents, for too long, have been denied an equal opportunity to share parenting.

We want joint responsibility. We want fathers to have equal guardianship to that of the mother. We want to stop the hurt in the family law courts, where the burden of proof is on a man to come along and prove that he is a good father without proper State intervention, State surroundings and family environment. There is a need to take family law out of the courts and give people their constitutional rights. People do not have the strength, determination, know how or money to challenge the authorities on the breaches of their constitutional rights. Open forums should be set up for people to address these issues without a monetary value being imposed.

Chairman

I take it from the submission that the group has two issues. One is that the Constitution should be changed to become gender neutral, that in other words it would not give emphasis to the female over the male. This point has been made to the committee by a number of other groups. The other issue, as I understand from the submission, is that the group would like to see the rights of the child enhanced. Some of the groups have stated to the committee in their submissions that if the child were elevated as the central axis of the family, that might help to resolve the problems of all other types of family — the family based on marriage, separated fathers as in the case of this group, single mothers or cohabiting couples. Would that be a fair assessment?

Mr. R. Kelly

The position is that there is automatic guardianship. If we look at the Hague Convention on Child Abduction, the Keegan case in Europe and various other cases that have been challenged, we find a clear indication that a father does not have that right. When speaking to the Minister for Justice, Equality and Law Reform, he clearly indicated to us that an unmarried father does not have any constitutional rights to his child. In a case I dealt with, for example, where a gentleman and a lady had a child and the mother died after the pregnancy, the child had to be taken into care, which means the State looked after it, because the father did not have any constitutional rights or, crucially, guardianship rights.

If a mother has an illness of some kind or a problem with drugs or drink, the father cannot intervene immediately and therefore the child is left in the care of the State. This is causing a serious burden on the State, and also of course on the child.

The paternal grandparents do not have guardianship rights either. The difficulty extends to the grandparents and the extended family. Grandparents who have voiced their opinion state that they need the right to love and care for these children too.

In 2005 the position is that we are lacking in the area of recognition of family, whether a couple is married or unmarried. There are many more fundamental issues that need to be addressed.

Mr. Quinn

The family should be defined in the Constitution as a couple with a child or children. We should be guaranteed constitutional rights as to marriage, during marriage and on its dissolution. If the family is defined as parents of a child, under the protection of marriage couples who cannot have children will still seek the protection of the Constitution as a family even though they do not have children. The concept of the family being defined as adults and 2.4 children must be eliminated. The protection of one and all, as to marriage, during marriage and on its dissolution, should be enshrined in the Constitution.

Deputy Andrews

I welcome the delegation to the committee. It is a valuable submission. The conventional wisdom is that the Keegan case, dating back 20 years, would be decided differently today. The delegation members might give their views on that.

I noted that in the submission the group touches on some fathers' rights issues which arose at the committee over the past couple of weeks. For example, the submission states that judges' discretion is causing many of the problems and that some constitutional protections are there for fathers. I have heard this anecdotally, that much of the problem is that District Court judges perhaps are not properly trained. Although it is controversial to say this, they have the power to grant access and guardianship under the Constitution but they tend not to do so; in other words, there is no constitutional bar and, in fact, this matter could be dealt with by legislation rather than putting a provision into the Constitution. Anecdotally, can the delegation bear that out?

The name of the group is Unmarried and Separated Fathers of Ireland. Is it the group's experience that unmarried fathers are discriminated against to a greater degree than separated fathers?

Mr. Dave Carroll

I am the office manager in our head office in Tallaght. I am an unmarried father. I consider myself a home parent, where my ex-partner was out working, getting a career together, etc., and I minded and raised three kids. I did everything for them that my mother did for me. From their first breath in the morning until their last smile at night, I did absolutely everything for them. After the separation, I had to go to court to be recognised in law as the father of my own children. I think that is a disgrace.

Mr. Donncha Murphy

The Deputy referred to the Keegan case. In the Keegan case, it was held that a child born out of a loving relationship had a right to family life. The State, due to current legislation, is in great danger of being taken to the European Court of Human Rights again. This is not being put across in the courts.

One of the issues with the courts is that the family law courts are held in camera and there are no reports on what happens inside the courts. Although the Minister for Justice, Equality and Law Reform implemented the Civil Liability and Courts Act 2004, it did not state how reporting would be carried out. We have no information on what happens inside the courts.

On the point about judges being specifically trained in family law, at present a judge who deals with a criminal case one day will be in a family law court the next. Obviously this bears weight in the proceedings in the court.

As to the unmarried father, the only right the unmarried father has is the right to apply to the court for an application for guardianship or access, a right that is not guaranteed. The Guardianship of Infants Act 1964, if challenged in the Supreme Court, would be deemed unconstitutional under the current law and the European Convention on Human Rights. The Constitution provides equality but the legislation is not equitable.

Deputy Andrews

Would legislation cure it?

Mr. Murphy

Legislation would definitely cure it.

Mr. R. Kelly

The CEDAW report from the Department of Justice, Equality and Law Reform gave a clear indication to Europe that an unmarried father would not have any guardianship or custody rights to his child. This is fundamentally wrong. We asked a question about the difficulties of an unmarried and a separated father. Both are treated like second class citizens because they are born as males. According to the statistics in our possession, 87% of custody cases are found in favour of the mother. Why do we live in a State that feels, and cannot prove, that mothers are better than fathers? There is no statistical evidence on the fact that fathers can be the nurturers. We must get away from the old view, where the mother stayed at home and the father went to work. We live in a state of equality where we should encourage mothers to go out to work and encourage fathers to play an active role in the family. The social attitude also needs to change. That can be enshrined under Article 41.2.2° of the Constitution. The clear indications are that giving women all of these rights is putting the burden on women and lessening the areas of equality.

Senator Finucane

I was struck by Mr. Kelly's emotive contribution. Obviously, he lived with his children for a period before the separation. The same may be said of the other contributors. What would they say to a biological father whose contribution to rearing the child has been minimal and who almost adopts an à la carte approach in the belief he can come whenever he wants to assert his rights in that regard? One could not equate such a man with the members of the delegation in terms of how they feel about their position.

Mr. R. Kelly

This issue arose when I gave a talk to a group from a drug rehabilitation programme in Dublin. It has arisen many times. If we help and support men, encourage and train them and stop discriminating against and dehumanising them, we will receive a clear indication but I have yet to see a project which helps and supports. When we go to the maternity hospital where our partner gives birth, it is all about the woman. No help and support are given to the man.

When my first child was born, I had to take a great deal of responsibility. I had to try to provide a home. I had to try to provide a lot of stuff which, with no help, was exceptionally difficult. Since the foundation of the State there has been no support for unmarried fathers, other than from Unmarried and Separated Fathers of Ireland which has worked on a small budget, as the joint committee can see from our reports. I ask the Oireachtas and the Government to look at this and put an educational programme in place to encourage fathers to become involved in the upbringing of children. In 1992 there were 47 men with sole custody. In 2002 there were 2,002. Therefore, one can see a clear indication that fathers want to play an active role. Ten years ago no father would have asked for custody because it would not have been granted. Today one sees an organisation like ours trying to help and support. That is where we need the backing of the Government. If we can secure constitutional recognition to enable fathers to take up that role and stop the discrimination in the family law courts, we can encourage, help and support the next generation.

Mr. Murphy

In the Law Reform Commission's 1982 report on legitimacy Professor William Binchy suggested that when the child was born, the father had an automatic right as the natural father and that the burden of proof that the father was unfit should lie with the mother. This was rejected by the Government at the time. If the burden of proof lay with the mother, would it reverse the position? The delay in family law court proceedings is running at between three and four months. Applications are made mostly by fathers for guardianship because the mother has an automatic right. This delay implies that fathers who do care are making court applications. If the burden of proof was shifted to the mother, the father would have the right to provide for and protect the child.

Deputy P. Power

I thank Mr. Kelly for his powerful contribution. Any father would have a natural empathy with the position in which he finds himself but the joint committee is charged with the responsibility of determining if the Constitution ought to be changed and if it is the cause of the obvious difficulties being experienced.

I will direct my question to the delegation's legal adviser, Mr. Murphy. This follows directly from the line of questioning followed by Deputy Andrews. The point has been made that there is no constitutional protection for fathers in the areas of guardianship and access to children. I put it to Mr. Murphy that there is no constitutional presumption that mothers ought to be given guardianship. There is no constitutional protection for mothers in the areas of guardianship and access. There is equality. The Constitution is silent on the issue.

If Mr. Murphy were to introduce an amendment to the Constitution giving rise to a presumption in favour of the father, would it be a case of two wrongs not making a right? What I am getting at is this. Is the Constitution really at issue? The matters the group has correctly raised such as the burden of proof, the delays in the courts and the in camera rule are causing enormous difficulties. I put it to Mr. Murphy, however, that the position could be changed tomorrow morning by way of legislation if the Oireachtas was minded to do so and that a change in the Constitution is not necessary to alleviate the difficulties about which the group is complaining.

Mr. Murphy

Under the Constitution and current legislation, the mother has an automatic right. That is enshrined.

Deputy P. Power

On what basis does Mr. Murphy make that assertion?

Mr. Murphy

It is based on the protection of marriage within the Constitution combined with the Guardianship of Infants Act 1964. The married father has a right but the unmarried father has none under the Constitution.

Deputy P. Power

We shall stick with married fathers for the moment. There is nothing in the Constitution which causes this discrimination.

Mr. Quinn

Article 41.2 of the Constitution clearly states there is special protection for the mother within the home. This should be changed to protect the parents in the home. As fathers are equally involved in parenting, the gender bias must be removed. Terms such as "father-mother", "he-she" and "husband-wife" should be used. These are the amendments we need to Articles 40 to 44 of the Constitution.

Deputy McCormack

One must be careful in the form of words used in the Constitution as has been found in several attempts to improve it. If one inserts the wording suggested by Mr. Quinn on the protection of the father in the home, how does one protect the natural father who is not in the home? One could do more harm than good in the changing the wording used in the Constitution.

The submission is a good one and worthwhile. Many groups specified the way they would like the Constitution to be amended to accord with their line of thinking. I note that the group represented ths morning did not do this.

Mr. R. Kelly

We are all volunteers and involved part time. I apologise. We have a lot of material and there was confusion. We spoke to the Chairman this morning about various other reports we had submitted. There is other documentation to be submitted which offers solutions. We are not experienced in family law, although Mr. Murphy is a trainee barrister.

Our knowledge has been gained from what we have seen and from those who have come to us to state, for example, that Article 41.2.2° gives this clear indication on the protection of the mother. If we want to provide protection, why not specify the protection of parents? From the point of view of grandparents, protection of the extended family should also be considered. We use the word "paramount" in the Constitution which is self-explanatory. There are, however, clear indications that there is discrimination against non-marital fathers who are not in any way acknowledged as parents. If we want gender balance, we need to examine the wording we use and ask why, in some cases, we include women. I do not disparage women who have a very important role. However, fathers also have an important role. If we had gender balance, we would be more successful and not exclude anybody. The issue of those who are not in the family home can be examined not through the Constitution but perhaps through legislation.

Mr. Quinn

It will be noted that our submission suggests the Constitution should state the State pledges to guard with special care the family, including cohabitants with children, on which the State is founded, and to protect it against attack. Some of the sections should be amended to state men and women, by their life within the home, give to the State a support without which the common good cannot be achieved. Article 12 refers to the President as "he". We still have not got around to amending it to take account of the fact that today we have women Presidents.

Deputy McCormack

When the Constitution was written the word "he" was meant to include "he or she".

Mr. Quinn

Why is the word "he" not interpreted as meaning "he or she" in the context of a mother and father?

Chairman

We acknowledge that the submission is sincere and genuine and based on the first-hand experience of each member of the delegation. We also acknowledge that they are not experts on the Constitution. We are here to listen about the problems in society. This is the first time a committee comprising politicians from every party has sat down to analyse this aspect of the Constitution. The Constitution review group examined the issue in 1996 and made recommendations but its job was different from ours.

I thank the delegation for its submission. The joint committee will take on board the points made when drawing its conclusions and hopes to produce a report, probably in September, which it will present to the Government. We cannot guarantee that any recommendations we make will be acted upon. However, we were asked by the Taoiseach to embark on this study which we began last November. We are glad groups such as Unmarried and Separated Fathers of Ireland have come here to enlighten us. We learn something new every day. I was also touched by the emotive stories of the members of the delegation. The committee will discuss the issues at length. We are aware that Unmarried and Separated Fathers of Ireland is a voluntary organisation. We thank the delegation for taking the trouble to prepare two submissions and coming here today to make an oral presentation.

Sitting suspended at 11.05 a.m. and resumed at 11.20 a.m.

Chairman

I welcome the representatives of Age Action Ireland, Mr. Robin Webster and Mr. David Stratton. Before we begin, I must remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. We have received the submission which we welcome and would like one of the delegates for six to eight minutes to outline the important aspects the delegation would like to stress before the committee in its submission, after which we will have some questions and answers.

Mr. David Stratton

I am sorry that my colleague, Mr. Robin Webster, cannot be here but Ms Mary Colclough has come in his place to provide moral support.

The joint committee has received the submission, copies of which I have made available. There is just one amendment. In the submission I mentioned the European convention but for the sake of clarity I have added the words "on Human Rights" in the second paragraph.

Age Action Ireland recognises family diversity and has worked with the Equality Authority to combat discrimination across the nine grounds covered in equality legislation. In making our submission to the Joint Committee on the Constitution we are conscious that other groups will make suggestions regarding family diversity. As a national organisation dealing with older people, we have confined our submission to highlighting certain issues of concern to grandparents that may not be addressed in other submissions to the committee.

The issues that we highlight could be addressed through legislation but we felt it was important to highlight to those drafting amendments to the Constitution that the rights of grandparents should not be overlooked. Although the Constitution affords a special place to grandparents regarding citizenship, it is a concern that legislation does not adequately deal with the issue of grandparents' access to their grandchildren, thereby raising the issue of whether legislation would need the impetus of a constitutional amendment in order that grandparents' rights might be more fully protected in law.

The issues that we highlight in our submission on the rights of grandparents to have access to their grandchildren were referred to in an address by Ms Ita Mangan at a seminar organised by Age Action Ireland last year as part of Positive Ageing Week. In research undertaken on behalf of Age Action Ireland by Dr. Francesca Lundstrom in 2001 on grandparenthood in modern Ireland the issue of access was also raised. The reports are available on our website at www.ageaction.ie if anyone wishes to refer to them again.

More research is necessary to inform future policy. Age Action Ireland has made a submission to the Department of Social and Family Affairs for a follow-up to Dr. Lundstrom's work in the shape of a national survey of grandparenthood which would further inform our position. Among the concerns raised in the research on grandparents was the lack of knowledge about their rights, the lack of mediation services for grandparents in cases of family breakdown, and fears on the part of some grandparents who had non-legal custody of their grandchildren that they would be taken from them. Those who had been denied access to their grandchildren wished for a less adversarial and more equitable and affordable legal system for them and their children.

The best interests of the child should be paramount in all legal and familial disputes, above those of parents or grandparents. It should also be recognised that children have a right to know their extended family. I will give an example of how grandparents still hold an important place in society. My wife recently gave birth and I saw a notice outside a special care baby unit denying access to all visitors except parents and grandparents. I thought it was interesting that in our society we still had special recognition of their place.

Age Action Ireland would like to see grandparents' rights of access to their grandchildren being upheld. We believe it has become more urgent, given the changing composition of families in Ireland today.

Deputy P. Power

I thank the delegation for attending and providing us with a written submission which is very helpful to our deliberations.

I share the sentiments expressed in the penultimate paragraph. The same policy applies in the crèche that my children currently attend. It is a clear recognition of our changing country and society. More often than not, it is the grandparents rather than the parents who bring and collect children from crèches and child care facilities. That is a concrete example of how practical and real the issue being raised today is; it is not merely of academic concern.

My question concerns the protection the delegates seek. Are they looking for automatic rights of access? What situation do they have in mind specifically? Should grandparents be given a specific right to go to court for access, custody or guardianship? We would like a better idea of exactly what rights Age Action Ireland seeks. Second, have they taken any advice on whether that would require legislative or constitutional change?

Mr. Stratton

It is difficult to obtain information on family law cases from the courts. We are merely highlighting the issue in the event of changes that might lessen the recognition accorded to grandparents. The practice is that the rights of the child are the primary concern in decision-making but who decides what is in the child's best interests? That is where the issue becomes more complicated. Is it the parents or the grandparents who decide? In cases where the best interests of the child are disputed by grandparents, it is unclear where the latter stand in terms of the legislation. I have no particular recommendation in this regard but I wish to highlight the difficulties involved.

Another area in which there is legislative uncertainty is that of visas in regard to access for grandparents of non-national Irish-born children. This type of access is not supported in legislation and one can look at it from the perspective either of the rights of the grandparents or the rights of the child. It does not necessarily require an amendment to the Constitution to provide for the rights of grandparents and children in such instances but it is the case that legislation has not given credence to this relationship. This issue should perhaps take precedence over a consideration of the difficulties with the court system.

Chairman

Does Mr. Stratton believe that the changes he has suggested can be implemented through legislation rather than by means of amendments to the Constitution? Past referenda have been divisive and there have been major difficulties in obtaining the correct wording and so on. It is better if one can avoid interfering with the Constitution and instead operate by way of legislation. Is it possible to overcome the difficulties Mr. Stratton has identified through legislation?

Mr. Stratton

The difficulties could be overcome by legislation. If, however, the Legislature lets down those affected by these issues, what is the next course for such persons to pursue? Irish people receive citizenship automatically through their parents. In some countries, however, citizenship may be bestowed on a person through his or her grandparents. The Constitution makes some provision in this regard in that a person can apply for citizenship on the basis of a grandparent but this is not an automatic entitlement as provided for in the constitutions of some states. However, the particular issues arising from family breakdown disputes could be dealt with more effectively through legislation.

Chairman

Has Mr. Stratton examined the Irish language wording in the Constitution which describes the "clann" and uses the alternative definition of "an teaghlach", which translates as "household"? Some wise persons have suggested to the committee that an interpretation of an teaghlach before a court might well include grandparents. This is particularly interesting given that the Irish version of the Constitution takes precedence in any cases of disparity with the English version. Perhaps Mr. Stratton's organisation might consider this issue further.

Regrettably, I never knew any of my grandparents. My maternal grandmother died when my mother was only five years of age but she enjoyed a happy childhood and adolescence under the care of her grandmother. I would have liked got have known at least one of my grandparent but as the youngest of 11 children, they had all passed on before I was born. I am not yet a grandfather but I am often told there can be a great bond between grandparents and grandchildren. Parents in modern society are frequently obliged to spend considerable time outside the home working to pay the mortgage and other expenses. In this context, grandparents often have more time to care for children. One witness described to the committee his excellent relationship with his granddaughter whom he collected from school every evening.

I welcome Mr. Stratton's contribution and members will take his views into account. He may like to do some research on the constitutional definition of "an teaghlach". It is unlikely the committee's report will be ready for publication until September because the issues involved are so complex, involving representations from a wide spectrum of concerned parties and organisations, and will take some time to consider.

Senator Lydon

I support the concept of the extended family and Mr. Stratton has made a good point in this regard. In a situation where parents do not want grandparents to see a child, however, does Mr. Stratton envisage that the grandparents should nevertheless have access rights to that child?

Mr. Stratton

It is a difficult issue to resolve. The starting point in all such situations should be a consideration of the best interests of the child. A consideration of the respective rights of parents and grandparents should not take the form of an either/or scenario. However, grandparents should have some right of access on which basis determinations as to the level and circumstances of that access can be made according to individual situations. In some cases, contact might take the form of e-mail correspondence rather then direct contact. We should at least ensure that grandparents' claims for access entitlement are heard. How such an entitlement should be balanced with the rights of parents is a legal issue but the rights of grandparents and grandchildren in this regard should be clarified.

Chairman

Some experts would contend that the definition of "an teaghlach" in the Irish version of Article 42 may include the extended family. Perhaps this is an avenue worth exploring for concerned grandparents. The committee will give the matter consideration.

Mr. Stratton

I am pleased the Chairman has pointed out this definition in the Irish version. We have been working on the basis of the traditional understanding of the so-called nuclear family. In reality, however, families in the past were often based upon the care provided by grandparents. Such circumstances were much more a fact of life in previous generations. Even if there is no change to the Constitution, our modern attempts to redefine the family should include some recognition of the traditional role of grandparents in the family unit. Any constitutional changes should not facilitate a further erosion of that role.

Deputy McCormack

Does Age Action Ireland envisage that the same rights should apply to great-grandparents?

Mr. Stratton

In so far as people are living longer now than ever before, great-grandparents may be entitled to such a claim. In normal circumstances, parents have the primary right in terms of the upbringing of their children. Problems only arise in cases of dispute and family breakdown. In such circumstances, there may be conflict as to who should decide the best interests of the child. Many families involved in child access disputes prefer not to take the legal route in the first instances. They would rather avail of mediation facilities which would support them in their attempts to resolve their differences. A great-grandparent could well have an interest in such a situation depending on the contact enjoyed with his or her grandchild.

Deputy McCormack

My experience indicates that grandparents have access to their grandchildren in perhaps 98% of families. Does Mr. Stratton believe it desirable that the Constitution should be amended to cater for the small minority of cases where such access is denied?

Mr. Stratton

The Constitution upholds family life and that is how it should be interpreted. We are not advocating that the Constitution address the needs of a particular group of people. The laws should reflect the general aspirations of the Constitution. We are merely highlighting that grandparents are recognised as being part of the family and any changes might weaken their position in that regard. It is a matter of interpretation rather than of adding specific provisions regarding the rights of grandparents. The concern arises in terms of how such rights would be interpreted in the future.

Chairman

I thank Age Action Ireland for its interesting submission. The difficulty for the committee is one of where to draw the line. Two other groups representing single or separated fathers stated their belief that the current system, under the Constitution or the courts, denies them appropriate and proper access to their children. Age Action Ireland has raised the issue of the rights of grandparents. The committee has received correspondence from many grandparents on issues such as a separation. It is often grandparents who lose out in a bitter separation. How to deal with that issue, either in the Constitution or by way of legislation, is not as simple as people might believe. However, the committee will give due consideration to the matter. I thank Age Action Ireland for its oral presentation.

Sitting suspended at 11.42 a.m. and resumed at 11.47 a.m.

Chairman

The committee will now hear an oral presentation from Focus on the Family, represented by Mr. Stephen Cardy, chairman, Mr. Mervyn Nutley and Mr. Cormac Ó Ceallaigh.

Before I begin, I remind visitors that members of the committee have absolute privilege but that the same privilege does not apply to witnesses appearing before it. I also take this opportunity to ask members and visitors to ensure their mobile telephones are switched off to ensure there is no interference with the digital recording system.

The committee has read the written submission from Focus on the Family. I now invite Mr. Stephen Cardy to synopsise that submission in six to eight minutes. Following that, we will have a question and answer session.

Mr. Stephen Cardy

I am chairman of Focus on the Family. I thank the committee for the opportunity to address it. We have considered the submissions made and — I speak also as a parent of five children in this regard — are reflecting seriously on the impact of the decisions this committee will make on future generations.

Our founding fathers, in their preamble to the Constitution, recognised the legacy of former generations and expressed our obligations to honour Our Lord Jesus Christ. We accept that obligation to Our Lord and to future generations. It is for those reasons we make the points in our original submission. We make our case to the committee on behalf of the 95% of the population who define themselves as Christian.

We have an obligation to make decisions which will strengthen, not weaken, the family and which will enhance the lives of children. The best options for children are stable homes in which they are parented by both biological parents. In addition, children should live in a community in which they are nurtured and can grow up to be responsible participants in society. In all other circumstances the situation for children is weakened and, as we state in our submission, produces poorer outcomes for them.

Some facts and research conducted over a number of years, which are summarised in the additional information circulated to the committee show the unfortunate and detrimental effects on families and children where there is family breakdown and where efforts are made to construct families which do not accord with the traditional understanding of what constitutes family. We also stress the considerable contribution made by the 620,000 household units where parents are parenting their own children. These parents, mainly the mothers, make a significant contribution to the well-being of the State and society.

We must encourage the committee to demonstrate its leadership in protecting the family, as required by the Constitution and from the Supreme Court definition of the family as being based on a marriage of a man and a woman. We appeal to the committee to validate this existing definition of the family and thereby help us, as a society, in developing a safer environment for our children and for the generations to come.

Mr. Mervyn Nutley

I thank the committee for the opportunity to address it. I will elaborate on a few issues. As a charity with regular contact with real families facing real situations in a society in which family life is under ever increasing pressure, we can assure the committee that its work is vital to the future health and strength of society. We strongly hold that family is the glue which holds society together and that marriage is the glue that holds families together.

The committee has been asked to consider the option of extending the constitutional protection of the family based on marriage to other family types, namely, cohabiting couples with children, etc. We do not see that as a valid option. The available research clearly shows that marriage and cohabitation are not the equivalent relationships some would purport them to be; they have a different impact on individuals, on their respective families and on society as a whole. Focus on the Family believes that the health of our culture, its citizens and their children is intimately linked to the health and well-being of marriage within society.

In recent decades, a considerable amount of research on how family breakdown affects people has been published. Scholars are finding that marriage has a far more important effect on society than was ever previously thought. The evidence from four decades of research is surprisingly clear: a good marriage is the best bet — for both men and women — for a long and healthy life. A leading social scientist, Professor James Q. Wilson, stated:

Married people are happier than unmarried ones of the same age, not only in the United States, but in at least seventeen other countries where similar studies have been made. And there seems to be good reason for that happiness. People who are married not only have higher incomes and enjoy greater emotional support, they tend to be healthier ... and live longer than unmarried ones ...

When we talk about families we must especially consider children. They are the most vulnerable and suffer most when family life breaks down. They are often the innocent victims of poverty, neglect and social exclusion as a result of family breakdown. The data on this is also clear. Children with married parents consistently do better in every measure of well-being than their peers in any other type of family arrangement.

The United States based Centre for Law and Social Policy recently reported "Most researchers now agree that ..., on average, children do best when raised by their two married biological parents." In a supplementary submission we circulated to the committee today, we outline the evidence that children in cohabiting relationships are statistically more likely to be abused — sexually and physically — suffer poverty, experience family breakdown and exhibit problem behaviour in cohabiting relationships than in married relationships. This data shows that 75% of children in cohabiting relationships will see their parents split up before they reach the age of 16, as against 33% of those who are the offspring of married couples. Clearly, marriage is better for children.

Last week the committee asked another group advocating same sex marriage about the impact of same sex parenting on children. The committee was told that there was no evidence to show that same sex parenting has a negative impact on children and that what matters is good quality parenting. We were astounded to hear this assertion. There is a wealth of data on the impact of parenting on children, much of which concerns the impact of the different roles played by mothers and fathers in the parenting of their children.

In our supplementary submission we clearly outline the evidence showing that children benefit significantly from having both a mother and a father to help them develop into healthy adults. Psychologist Erik Erikson explains that father love and mother love are qualitatively different kinds of love and that children need both.

This difference provides an important diversity of experience for children. Dr. Kyle Pruett of Yale Medical School explains that fathers have a distinct style of communication and interaction with children. For example, infants, by eight weeks of age, can tell the difference between a male or female interacting with them. This diversity provides children with a broader, richer experience of contrasting relational interactions — more so than for children who are raised by only one gender. Regardless of whether they realise it, children are learning at the earliest age, by sheer experience, that men and women are different and have different ways of dealing with life, other adults and their children.

The following differences in parenting roles of mothers and fathers — I urge the committee to consider the evidence carefully in this regard — are expanded upon in our supplementary submission: mothers and fathers parent differently; mothers and fathers play differently with their children; mothers encourage security where fathers push limits; mothers and fathers communicate differently; mothers and fathers discipline differently; mothers and fathers prepare children for life differently; and mothers provide a look at the world of women and fathers at the world of men.

To be concerned with proper child development is to be concerned about ensuring that children have daily access to the different and complementary ways mothers and fathers parent. The same sex marriage and parenting proposition states that this does not really matter. This view is fundamentally flawed and its lack of understanding will hurt children. It will rob them of the necessary and different experiences to which mothers and fathers expose them.

There is a strong movement to equate marriage with cohabitation, to claim that those who do not marry are discriminated against while married families benefit over unmarried families. This thinking demonstrates a failure to understand that because marriage is good for individuals, children and society, it should be supported and protected. Society has a duty to enact laws to encourage and protect marriage, and discourage cohabitation, not because it wants to discriminate against a group of individuals in society but for the good of all society.

Marriage has rights, duties, obligations and benefits. Those who want to access the rights and benefits of marriage must also take on the duties and obligations. Marriage is open to all. Those couples who do not marry cannot raise an argument of being discriminated against when they are clearly free to marry within the law and enjoy the benefits of marriage. If they choose not to marry, this is their choice and it is clearly not a case of discrimination.

We urge the committee, in the strongest possible terms, to safeguard the constitutional protection afforded to families based on marriage and to do all in its power to strengthen family life for the good of children, parents and society.

Chairman

In essence, Focus on the Family wants the Constitution to remain as it stands. The group is happy with it. These are the difficulties the committee faces. We also have been hit with statistics from the most recent census. There are, according to the 2002 census, nearly 80,000 cohabiting couples. That is approximately double the number in the 1996 census. It is a significant escalation in cohabitation and other unions or families outside the family based upon marriage enshrined the Constitution. In addition, according to those statistics, there are about 165,000 single parents. The latter figure is growing. A little more than 85% of them would be single women with a child or children. The 2002 census recorded approximately 1,500 or 1,600 gay or lesbian couples. These people, when they were filling in the census forms, openly admitted they were in either a gay or lesbian relationship. The statistics for the period when the Constitution was framed in 1937 show that 3% of births took place outside marriage, whereas some members of the committee were stunned by the fact that the corresponding figure now is 31.5%. Society has changed.

Not taking from the merit of Focus on the Family's argument, how should the Oireachtas try to cater for those other existing groups? Senator Norris presented a Bill to the Seanad which did not seek same sex marriages but rather sought equity in areas of taxation like inheritance tax. In the case of a cohabiting couple or a gay couple who live together sharing a house for 30 or 35 years and where one party dies suddenly, for example, the inheritance tax threshold is €25,000 because the taxation codes of the current law describe them as strangers in blood. There is no threshold for a married couple. If I dropped dead in the morning, even if there were €1 million or €10 million of property, my wife would not have to pay inheritance tax. The same is true for stamp duty and income tax. Does the group see any merit in the argument that Senator Norris put forward? In fairness to him, he is seeking, for whatever reason, what he calls "civil partnership" or some sort of civil union, which is something less than marriage. He is not taking the final step.

Leaving the Constitution aside, do the witnesses see us, as legislators, if we protect the family in the manner that the witnesses want, being able to legislate and cater for all those other groups? It has been put to us by at least ten or 12 of the groups that have come before the committee that the rights of the child are not sufficiently specified or enshrined in the Constitution. Some groups went so far as to say that, if the rights of the child are paramount, all other families, whether normal families — I must be careful in my use of terminology — single parent families or cohabiting couples, could revolve around the central axis of the child, which is protected.

In addition, a group of grandparents informed us that they should have rights. We heard a presentation by at least two groups of men whose members were either separated or, in some instances, single. They told extremely emotive stories about their not being able to obtain access to their children because of the court system. That is because the Constitution has pulled down the shutters and they are being treated as less than equal. How do we get the balance right so that we do not create inequality in society, particularly in light of the fact that we signed up to the UN Convention on the Rights of the Child ten years ago? There are also European laws and regulations in this area, so it is difficult to come to a conclusion.

Can the witnesses shed some light on the matter? Is there a way in which we might accommodate the other groupings? Is it possible to retain the family status that is solidly enshrined in the Constitution without discriminating against others? Can it be done by legislation?

Mr. Nutley

The Chairman has raised several issues. Regarding gay partnerships and related issues, I fully understand and sympathise with those in long-standing cohabiting relationships who feel they are being discriminated against in the area of inheritance law in particular. We can find a way of dealing with those issues outside the Constitution, via legislation and so on.

Let us examine the issue of gay partnership. It is interesting that in countries where there is currently gay marriage or some form of homosexual partnership — I do not have my data from Sweden and Norway with me but I can supply them to members — the uptake of such partnerships is extremely low, even among the gay community. A study conducted some years ago among gay men in Holland showed that the average stable gay relationship lasted 18 months and involved eight sexual partners. It seems that the number of people with whom we are dealing is an extremely small percentage of the population. We have a number of concerns in this area. For example, should we redefine marriage and make massive changes to accommodate an extremely small number of people when there may be other ways? We can change tax or other legislation.

I knew an old lady who died recently and who had been estranged from her brother for 40 years. She had a smallholding but no children, having never married. One of her neighbours had been extremely good to her over the years, particularly latterly, having more or less run the farm for her. She died and left it to the neighbour. That person was very heavily penalised, since they were blood strangers, although her brother would have received everything, despite the fact that they had no relationship. We could look at developing some form of partnership but not necessarily one based on a sexual relationship.

There could also be an instance involving two old spinsters who never married and one might move in with the other to provide companionship in her dying years. One spinster could die and leave the house to the other. They would never have been involved in a sexual relationship, since the arrangement would have been one of companionship. The survivor would also be discriminated against in that case.

I wonder whether we might find a way to produce some form of legislation or partnership arrangement going beyond a strict homosexual relationship that might incorporate and include some of those other relationships.

Deputy McCormack

Mr. Nutley clearly outlines the conflict between his presentation and some earlier ones regarding the benefits or otherwise to children depending on family make-up. He states on page 2 that a US-based law centre has said that, on average, children do best when raised by two married biological parents. On the next page, he gives several examples of people stating that children do better where they have a father and mother. However, it does not specify that they do better depending on whether their father and mother are married or cohabiting. There are three or four examples on page 3. How does he square the difference in what he is saying about married and cohabiting parents and how might that be relevant to any alteration that might be made to the Constitution?

Mr. Cardy

As a general principle, we are for the family and marriage; that is our starting point. There is additional information that we did not read to the committee adducing research evidence to show that children parented by cohabiting couples rather than their natural parents do worse than when they are parented by their biological parents.

Deputy McCormack

The cohabiting couple could also be the children's natural parents.

Mr. Cardy

Yes, that is true. However, the research is very clear in respect of children parented by their own. According to the 2002 census, only 5% of couples in the State who are cohabiting are not married. This means that the vast majority are in family relationships where children are being parented by their own married parents; 95% of them are married. The evidence is that children being parented in that situation are far safer and grow up to be less abusive, feel better about themselves and perform better. The economic situation for them as they grow into adulthood is far better. There is less violence and so on where they are being parented in their own homes by their own married parents.

Mr. Nutley

Perhaps I might give one or two additional examples from the supplementary document that we have circulated today. According to US figures, the poverty rate for children with married parents is about 6%, while it is approximately 31% for children living with cohabiting parents. For children living with a single parent, the rate is 45%. Several studies have found that children living with a mother and her unmarried partner show significantly higher levels of problem behaviour at home and school, as well as lower academic performance, than children living in "intact" families, as we might term them. Other studies indicate that children living with cohabiting unmarried parents have important well-being outcome measures more similar to children living with single and remarried parents than to those living with married parents. Professor Linda Waite observes that children of cohabiting parents suffer significantly poorer mental health than those of married parents.

A significant amount of data, therefore, indicates the best environment for rearing children is one in which the parents are married. At the same time, however, while cohabiting couples are doing well, they do not do as well statistically as married parents. There are a number of reasons for this. In some cases, for example, the cohabitees may not both be the biological parents of all the children in the relationship. It is a complicated area but even the statistics relating to sexual and physical abuse indicate a much higher prevalence in cohabiting families than in married families.

Deputy McCormack

For most of a child's formative years, he or she may well be unaware of the marital status of his or her parents, whether biological or otherwise. I do not comprehend, therefore, how there can be such a disparity.

Mr. Cardy

If one believes there is no difference between the commitment made by people to one another when they are married——

Deputy McCormack

I have not given my opinion on that issue. I am merely asking a question.

Mr. Cardy

I am trying to develop my point. The commitments people make to each other when they marry help to consolidate their relationship. This relationship provides a solid basis upon which to build family life. Cohabiting couples have not made that commitment and this feeds into the relationship they have with each other. When my wife and I function well together, for example, it is clear our five children feel safer and there is greater harmony in the home.

Marriage is a long-term process which the partners generally expect to last a lifetime. My wife and I made commitments to each other 18 years ago to live together in harmony, as best we can, and to raise our family. Our children feel safer and more secure when Margaret and I function well together. When this is not the case, as happens in every marriage, it causes tensions and problems in the home. That we are married helps to consolidate our commitment to each other and to provide a safer environment for our children.

It is no surprise that the extensive evidential research from Europe and the United States proves that children raised in a married couple's home are safer, feel better about themselves and do better when they grow up than those raised in any other environment. This is partly because the primary relationship between the husband and wife is fundamental to the well-being of those children. It is also fundamental to demonstrating to children how men and women relate to each other and resolve conflicts.

The Constitution recognises the family as the primary unit in society and it has been a fantastic building block for Irish society. We should be proud of our unique success in keeping the family together. The statistics in regard to the strength of family life are far less favourable in every other European country. We undoubtedly have problems but they are not of the scale that exists elsewhere.

At a conference yesterday, members of the delegation spoke to an executive from Manchester who observed that a problem child costs the British Exchequer approximately £250,000 in service provision over the course of his or her lifetime. We would be foolish to introduce legislation that facilitates the creation of an unstable environment which produces more unhappy children and dysfunctional families. Such an outcome would bring about a breakdown in the social fabric and infrastructure of Irish family life and would also have significant economic implications.

Deputy McCormack

Does Mr. Cardy contend that a child reared by married parents is less likely to become a problem child whose behaviour may incur significant costs on the State than a child whose parents are not married?

Mr. Cardy

Yes, the evidence proves this without any doubt.

Senator Finucane

I met Mr. Cardy on a previous occasion and I welcome the delegation to this meeting. I understand Focus on the Family was founded in 1977 in the United States and this is relevant in the context of Mr. Nutley's response to a question on the poverty aspect. It seems much of the delegation's data is based on the situation in the United States and one must question the validity of extrapolating those statistics to Irish society. I would be surprised, for example, if Ireland's poverty statistics for children of cohabiting parents are as high as 31% and as low as 6% for those of married parents. I query those percentages.

I understand from where the delegation is coming and its objectives appearing before the committee. As far as Focus on the Family is concerned, we must safeguard the constitutional provisions that protect the family. During the past two weeks, however, we have heard many competing opinions in this matter. Delegates from the Unmarried and Separated Fathers of Ireland gave emotional accounts of their experiences this morning and I have no doubt of the bona fides of their representations.

How does Focus on the Family respond to the argument that the Constitution of 1937 was drafted at a time when Irish society, for good or ill, was much different? Farming was the main area of employment at that time and jobs in industry and services were scant. In contrast, farming now accounts for only 5% of employment while 28% of jobs are in industry and some 66% in services. Moreover, the Catholic ethos was prevalent in Ireland in the 1930s. In the past three decades, however, there have been major changes to family structures through the increasing incidence of cohabiting couples, lone parents and marriage breakdown. In 2003, Limerick city had the highest divorce rate — at 11% — in the country.

Should the Constitution, as drafted in 1937, remain untouched or should it function as a framework which reflects the changes in Irish society? Other delegates have contended that leaving the Constitution unchanged is unfair and unjust to those many who find themselves, through separation or otherwise, in family situations other than that defined in the Constitution. The question is whether we should legislate for those cases rather than change the Constitution.

Mr. Cardy

The Constitution does a brilliant job of setting out the correct standard in this area. It is only in the past two or three decades that we have had to deal with alternative versions of the family. A colleague pointed out to me yesterday that it took 80 years for democracy to be changed in western society so that it became the norm for all. It is wrong to consider changing the fundamental definition of a family.

The family is correctly framed in the Constitution and in the manner in which it was defined in a Supreme Court case on this issue. It is a matter, and rightly so, for legislators to deal with exceptions to that model in order to be fair to those who find themselves in such situations. The Constitution sets out the correct principle. Rather then dilute this in some way, more must be done to strengthen family life.

As an organisation, we have sought to strengthen our ability to respond to the growing needs of Irish families. The 2002 census indicates that lone parents make up 22% of all households. That is a staggering statistic. The number of children being raised in households in which there is only one parent is at crisis level. We must ensure we do not precipitate a further acceleration in the breakdown of marriage, with resultant consequences for children. Rather, we should seek to strengthen family life. Changing the Constitution would signal that society has given up on its challenge to provide a safe environment for the next generation.

Senator Finucane

The Focus on the Family document states that taxation, as an instrument of public policy, should be used to encourage marriage and discourage cohabitation. I contend that, in terms of public policy, there has been a dramatic change in that direction. Individualisation was introduced in 2003. The family unit as we knew it was the wife as home-maker and the husband as main earner. Public policy at that time encouraged more women into the workplace and disincentivised, from a taxation viewpoint, the position of the mother in the home. That position has been reflected in public policy since 2003. Am I correct in stating that Focus on the Family would not be in agreement with such policy if it reflects on taxation as an instrument of public policy?

Mr. Cardy

The Senator is correct. We disagree with that instrument of public policy because at present there are approximately 685,000 households in which parents — be they married, cohabiting or single — are parenting children. Article 42 of the Constitution recognised, in a society different from that which now obtains, the mother as the person who remained in the home. The position has changed to some extent, with many fathers now remaining in the home. However, it is predominantly the mother who remains at home to care for her children or elderly relatives. The figure of 685,000 represents more than half of the total number of households in the country in which a person remains at home to care for a relative.

Those who wrote the Constitution had a fundamental understanding of the central value of the family as the basic unit in society and recognised it in Article 42. We believe that reflects well on society and ought to be retained. Those who remain in the home are of enormous benefit to society. To change the tax code to encourage people into the economy and not to recognise the substantial contribution made by them in the home is not giving value to them.

I invited my wife to accompany me today but she was unable to do so as she must care for our five children. However, were she here she would indicate to the committee how she would feel about the prospect of a decision to withdraw the constitutional benefit bestowed upon her and the other 620,000 who remain in the home.

Chairman

Mr. Cardy stated that we should look at ways of promoting the family based on marriage by possibly disincentivising support for other types of families. I am troubled by that suggestion. Many people in my constituency are in receipt of allowances — such as the lone parent allowance — and many single mothers are given priority on the housing list in light of the rights of children under legislation dealing with housing. Would such allowances be affected?

Mr. Cardy also stated that 22% of children are of families outside the family unit. I contend that this figure is probably higher and, regardless of whether we like it, is increasing every year. If the trend continues to 2010, close on one third of our children will be living in households outside the family unit. How does Mr. Cardy suggest non-marital families might be disincentivised, if that is the correct word to use?

Mr. Nutley

We need to be careful about what we say on this issue. I would not want to suggest we should take away the safety net which social welfare payments provide for lone parents. Rather than disincentivising people, we should incentivise people to get married. Our submission is based on the idea that marriage is the best option for parents and children. If we take the view that marriage and cohabiting relationships are equal and treat them equally in the context of tax law and other matters, we will remove people's incentive, economic or otherwise, to commit to marriage.

I am not suggesting that social welfare payments should be taken away from lone parents. However, lone parent rates are increasing and many lone parents are struggling financially to survive on social welfare benefits. There is an economic cost involved as matters stand. We must find ways of encouraging lone parents into stable marriage relationships. I do not suggest that this will be easy or that all lone parents will get involved. The data and statistics available clearly illustrate the direction in which the family is going and the problems lone parenting is causing. We should try to stem that tide and encourage people into traditional marriage relationships in which they will live longer and be healthier and in which their children will grow up happier. As stated earlier, children must be our primary focus. We must try to ensure they are living in a way which allows them to grow into developed adults.

Chairman

We understand, on foot of its clear and succinct submission, from where Focus on the Family is coming. The difficulty for the committee is that a substantial and growing proportion of children are living in non-marital families. If we are to seriously consider the rights of children, we must do something to protect them. Many groups, including Focus on the Family, have suggested that children of non-marital relationships appear to be lesser citizens than those of marital relationships. We, as Oireachtas Members, must endeavour to protect and enhance children's rights.

I thank the delegation for its submission, which the committee will take on board in reaching a conclusion on this complex issue.

Sitting suspended at 12.30 p.m. and resumed at 2 p.m.

Senator Finucane took the Chair.

Acting Chairman (Senator Finucane)

The next item on the agenda is the presentation by the Knights of St. Columbanus, represented by Mr. Charles McDonald, supreme knight, and Mr. Charles Kelly, past supreme knight. They are very welcome. 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 it. I invite our visitors to make their presentation of approximately six to eight minutes, which will be followed by a question and answer session.

Mr. Charles McDonald

My name is Charlie McDonald. I am the supreme knight of the Knights of St. Columbanus. Accompanying me this afternoon is a colleague, Mr. Charles Kelly, who is a former supreme knight and who is our current supreme advocate. I ask him to outline our presentation to the committee.

Mr. Charles Kelly

Articles 41 and 42 of Bunreacht na hÉireann recognise the family as the most important social unit within the State. As such, the State guarantees its protection and pledges itself to guard, with special care, the institution of marriage on which it states the family to be founded. Since 1937 the family has been placed on a constitutional pedestal. The earlier Constitution of the Irish Free State, in force from 1922 to 1937, contained no corresponding provisions concerning the family.

In discussing the relationship between the family and society, there is much at stake. Not only are marriage and family grounded in the will of God and revealed by the order of nature, they are also the primary source of stability, life and love in any society. They form that primary cell from which the rest of society derives so much of its cohesion and potential success. This fact is recognised in the Constitution which describes the family as the necessary basis of social order and indispensable to the well-being of the nation. The Greek Constitution expresses the same conviction when it describes the family as the foundation of the conservation and the progress of the nation. Such values are consistent, in turn, with Article 16 of the Universal Declaration of the Human Rights which states that the family is a fundamental nucleus or cell of society and of the State and, as such, should be recognised and protected. Article 16 of the Social Charter of Europe 1961, Article 23 of the International Treaty on Civil Rights, Article 10 of the International Charter on Economic, Social and Cultural Rights and many other national and international instruments both affirm and develop this basic insight that the family is the nucleus of society and is, for that reason, deserving of special status, development and care.

The family referred to in Articles 41 and 42, although not defined within the Constitution, has been held by the courts to be confined to the family that is based on marriage, that is, a marriage which is a valid subsisting marriage under the law of the State. A couple whose marriage is not valid according to the civil law of the State cannot form a family unit in the constitutional sense but may do so if they subsequently enter into a valid and recognisable marriage or if an initially invalid marriage is retrospectively validated. A married couple, either with or without children, may comprise a family within the meaning of the Constitution. The rights and duties recognised and acknowledged by the State as being invested in the family, and the State's guarantee in that regard, do not extend to the natural family or the non-marital family.

The Knights of St. Columbanus submits that the meaning of marriage, as found by Costello J. in Murray v. Ireland [1985] IR 532 — in which he derived it from the Christian notion of “a partnership based on an irrevocable personal consent given by both spouses which establishes an unique and very special life-long relationship” — should be enshrined in legislation.

The so-called de facto unions have taken on special importance in recent years. The common element of such unions is that of being forms of cohabitation of a sexual kind which are not marriage. Some recent initiatives proposed the institutional recognition of de facto unions and even their equivalence to families which have their origin in a marriage commitment. It is important to draw attention to the damage that such recognition and equivalence would represent for the identity of marriage as traditionally understood.

The question of recognition of same sex unions has also been raised. The Knights of St. Columbanus remains committed to advocating and promoting the common good of everyone in our society and to giving practical expression to our pastoral concern for homosexual people. The Knights of St. Columbanus accepts that homosexual people are to be accepted with respect, compassion and sensitivity. The Knights of St. Columbanus condemns all forms of violence, harassment or abuse directly against people who are homosexual. In recent years there have been significant changes to the law to remove discrimination against people on the grounds of their sexuality. These changes have removed injustices, without of themselves creating any parallel legal institution to marriage.

When considering future legislation concerning marriage and the family, however, it is essential to acknowledge the vital distinction between private homosexual behaviour between consenting adults and formalising that behaviour as a relationship in society, foreseen and approved by the law, to the point where it becomes an institution in the legal structure. Legal developments must be considered, not only for their impact on individuals but also for their impact on the common good and the fundamental institutions of society such as marriage and the family. The Knights of St. Columbanus submits that the recognition of same sex unions on the same terms as marriage would suggest to future generations and society as a whole that marriage as husband and wife and same sex relationships were equally valid options and an equally valid context in which to bring up children. At stake is the natural right of children to the normal presence of a mother and father in their lives.

Given the legal changes made and the fact that two people can make private legal provision concerning many aspects of their lives together, including joint ownership of homes, living wills and powers of attorney, the argument that same sex marriage is necessary to protect human rights becomes redundant. When balanced against the manner in which it would undermine such a fundamental institution as marriage and the family, it is difficult to see how such a development might be justified in the context of the Government's duty to defend marriage and the common good. If it is accepted that Article 41.2 can include men and, furthermore, that it does not assign a domestic role to women, it becomes clear that it is not necessary to update it.

The Knights of St. Columbanus would, however, welcome an opportunity to strengthen constitutional protection for the role and work of parents and carers. Any proposed change should be gender-inclusive and retain specific provision for parental care. Changes to other articles should not adversely affect the recognition afforded to parents and carers in a reformulated Article 41.2. The Knights of St. Columbanus suggests the following reformulation for Article 41.2.1°:

The State recognises that those who care for dependants within the family give to the State a support without which the common good cannot be achieved. The State shall therefore ensure that those who care for dependants within the family shall not be obliged by economic necessity to engage in labour to the neglect of these duties.

That concludes the formal submission that I would like to make to the joint committee.

Deputy P. Power

If I understood Mr. Kelly's presentation correctly, it is important to explore the damage to the institution of marriage that would occur because of same sex unions or relationships and same sex marriages. Perhaps he might elaborate on how exactly this would damage the institution of marriage. Let us take one individual family unit consisting of a husband and wife with children. How would the fact that another same sex couple might be married and given recognition under the Constitution damage that other family unit and marriage?

Mr. C. Kelly

Taken as an individual case, it might not necessarily damage that couple but let us take the institution of marriage as a whole. There was marriage as we understand it long before the Constitution or law. It has a natural existence and must be given high precedence. If one waters it down in any way by allowing same sex couples to go through a marriage ceremony and have it recognised as a marriage with the same validity under the Constitution as marriage as we understand it, one undermines the status of the institution. One may not damage any particular couple. One could pick out different couples to whom one might not do any damage but it would damage the status of marriage as we understand it.

Deputy P. Power

I have been married for ten years. If someone down the road from me got married in a same sex union, how would that damage my marriage? Mr. Kelly has said one cannot take individual circumstances. If it would not damage any individual marriage, how could it damage the institution of marriage?

Mr. C. Kelly

I do not think one can view the question in terms of how it might damage the specific marriage of Deputy Power or his neighbour. Every marriage is different. However, marriage as we understand it and as we want it to remain is between a man and a woman. That must be accorded status and constitutional recognition. It is not the family as we understand it. That family will continue and, if the couple have children, they will be the next generation to whom everything for which a family stands will be passed on. However, if one has same sex couples going through a marriage ceremony, one raises their relationship to the status of a husband and wife — a man and a woman. I might then wonder why people should get married at all. Perhaps I am not explaining myself clearly but I believe it would undermine the status and concept of marriage, although I could not say how it would damage an individual marriage.

Mr. McDonald

The common good must surely be served by a stable community. The Constitution was enacted to serve that common good and the welfare of citizens.

Deputy McCormack

I welcome the presentation by the Knights of St. Columbanus. In Articles 41 and 42 the Constitution recognises the family as the most important social unit in the State and, as such, guarantees its protection and "pledges itself to guard with special care the institution of Marriage, on which the Family is founded". I take it from the delegates submission — they will correct me if I am wrong — that we should not recommend anything that would change the Constitution. Other groups have made submissions recommending changes to it.

Mr. C. Kelly

We are happy with the Constitution and the safeguards it gives to marriage and the family but we also recognise the real world and that there are people who, as Deputy Power said, are cohabiting. Let us deal with their situation through legislation, not through the Constitution.

Deputy McCormack

We are charged with dealing with recommendations only. In any case the joint committee was set up by the Taoiseach to report back on the Constitution only. Ultimately, all that it will do is present a report to him. Regardless of whether it is ever implemented, any change to the Constitution, as Mr. Kelly will be aware as a lawyer, would have to be put to the people in a referendum. I take it from the submission that the delegates are saying that, if something is not broken, it need not be fixed.

Mr. C. Kelly

We are saying it is not broken. On that aspect, we produce a new formulation for Article 41.

Deputy McCormack

I saw that.

Deputy Devins

I welcome the delegates. What is their opinion on the Constitution as it stands and the rights of children? One of the tasks with which we have been charged is looking at whether the Constitution should be changed to enhance or protect the rights of children. Do the delegates have any views on this?

Mr. C. Kelly

Children must have the protection of the Constitution. Speaking as a lawyer who deals with family law and family courts, people have rights and obligations towards children, and it is the State's responsibility to look after them. No legislation or anything else can be introduced to undermine children's right to be protected by the State. We have not studied constitutional issues and whether the Constitution should be amended to strengthen the position but I would have thought not.

Deputy Devins

Since the delegates have not studied the Constitution, perhaps they might reconsider their opinion on it at some stage. Some groups have argued strongly that the constitutional rights afforded to children are insufficient while others have made the opposite argument.

Mr. McDonald

Horrific stories have come to light in recent years, particularly in the media, regarding the maltreatment and abuse of children. I am unsure whether a constitutional amendment would be particularly useful in counteracting such abuse. Perhaps legislation should be sharpened to render it more efficient in dealing with the abuses to which children may be exposed in modern society.

Senator Lydon

I welcome the delegation. It is to be lauded that the Knights of St. Columbanus, as outlined in the delegation's submission, condemn all forms of violence, harassment and abuse directed against those who are homosexual. Does the organisation have any objections to homosexual couples being granted certain legal entitlements such as inheritance rights and so on? Where would the delegates draw the line in this regard? Do they consider it unacceptable that such couples be allowed to marry or adopt children, for example?

Mr. McDonald

We would like to see greater protection being guaranteed through legislation. It is important that human rights are respected across the board. If our legislation is inadequate, there must be an ongoing review to ensure individual rights are guaranteed and supported. Such legislative provisions do not require a constitutional endorsement.

Acting Chairman

I thank the delegates for their contribution.

Sitting suspended at 2.23 p.m. and resumed at 2.25 p.m.

Acting Chairman

I welcome the delegation from the National Consultative Committee on Racism and Interculturalism, represented by Mr. Philip Watt and Ms Nobhule Nduka. Before we begin, I remind visitors that while members of the joint 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 for six to eight minutes, following which there will be a question and answer session. Mr. Watt might begin by introducing the third member of his party.

Mr. Philip Watt

The third member of the delegation is Ms Anna Visser, research officer with the NCCRI.

We are pleased to have this opportunity to make a presentation to the joint committee. Members have received a copy of our detailed submission and I propose to highlight some of the issues we have raised. We have invited MsNobhule Nduka, chairperson of Akina Dada wa Africa, AKiDwA, an African women's community organisation, to contribute on aspects of policy which impact on refugees and asylum seekers in Ireland. Our comments are based on a major conference we organised in December 2003 to celebrate the tenth anniversary of the International Year of the Family which involved a wide range of participants from new communities in Ireland and existing ones such as Travellers.

I wish to make five key points. The constitutional provisions relating to the family must take into account the fact that Ireland is now a multicultural society. The 2002 census of population provided the most comprehensive breakdown to date of national diversity and identified five main regions of origin for non-nationals living in Ireland. Persons from the United Kingdom and other EU member states account for 3.4% of the population. The Asian region accounts for 0.5% as do persons of African nationality. Non-EU Europeans make up 0.5% while persons from the United States constitute 0.3%. Travellers comprise 0.5%.

One of the key dimensions of family diversity in Ireland is cultural and ethnic diversity. Professor Mary Daly of Queen's University, Belfast observes in her book, Families and Family Life in Ireland, that family diversity tends to be seen in terms of structure and the emergence of different types of family rather than in terms of culture which determines different values and practices around child-rearing and other aspects of family life. The main underlying point is that in the context of increasing diversity in Irish society, we need a definition of “family” that encompasses all types, including those from minority ethnic groups.

A classic example of family diversity which is often overlooked is that members of the Traveller community mostly live in extended family groups involving grandparents, siblings and cousins. The acknowledgement of such family patterns has direct policy implications in terms of, for example, the design of Traveller accommodation. It means local authorities should be building small halting sites or housing schemes to accommodate one extended family rather than dumping several families into one site. On one site in Tallaght, for instance, significant problems arose when 20 or 30 families were grouped together.

The second key point is that racism is an issue that impacts on families from ethnic minorities. It is important neither to exaggerate nor gloss over the problem of racism. According to the reports the NCCRI receives through its racist incident reporting system, women and children have been targeted in racists incidents which have included verbal or even physical assaults. They are often more vulnerable to the racist bully if they are walking along the street without their partners. There are numerous examples of harassment of ethnic minority families living on local authority housing estates. It is important, therefore, to acknowledge that racism is an issue, without exaggerating the problem.

The third point we raise is that one's legal status in Ireland can have a major impact on one's access to family life. Most migrant workers from outside the European Union have work permits and little opportunity to bring their spouses and children to Ireland. Opportunities for family life are generally limited to those with work visas or authorisations — the visas given to nurses, engineers and information technology specialists. Those at the lower end of the labour market cannot bring family members. This often has a major detrimental impact on their experiences in Ireland. This issue needs to be more closely examined.

The fourth point is that one's legal status and citizenship have an increasing impact on the services and supports one can receive. A recent example is the habitual residence condition. This is a test applied to anyone seeking access to social welfare entitlements. Without going into detail, it means that if one has not been habitually resident in Ireland for two years and cannot show a strong connection with Ireland, one cannot claim social welfare entitlements. This has a strong impact on migrant workers from other EU countries and from outside the European Union if they fall out of employment. Workers in the hotel sector where work is often seasonal cannot access social services or social welfare benefits if they fall out of employment. As a result, workers from other EU countries have no choice but to go back home. This may have a detrimental effect on sons and daughters who must then leave school in Ireland and return to the country from which they came. It would be very helpful if social welfare benefits could be provided, even for a short period, to help workers over one or two months of unemployment. However, that is not available.

There is emerging evidence that women who have experienced domestic violence cannot access services provided by the State, including homes for battered wives and so on, because they do not have an entitlement to receive social welfare benefits. While we have anecdotal evidence, we are examining the issue in more detail to see how widespread the problem is.

A further example is the right of asylum seekers to work. They cannot work, even if they are here for a number of years. Staying too long in direct provision in hostels puts a severe strain on family life.

The fifth point is that service providers must be more responsive to family diversity in Ireland. Some service providers are still of the view that equality means treating everybody the same. We need to move away from the one-cap-fits-all approach to service provision and develop policies that reasonably accommodate diversity. The Government's national action plan against racism is particularly important in that respect. If service providers are providing documentation in English or Irish, they should perhaps consider making it available in other languages in order that people from minority ethnic groups can access services.

If the Constitution fails to specifically mention family diversity in terms of ethnic and national origin, it may have the effect of sending a message that we still view Ireland as a mono-cultural society and the needs of minority ethnic groups will remain invisible. We need to avoid the emergence of a two-tier policy for family rights, one for citizens and the other for everyone else. This can be done without compromising our immigration laws in a way that seeks to view people not just as economic units but with family rights also.

Ms Nobuhle Nduka

I thank the joint committee for the opportunity to make a presentation on ethnic minority families. I emphasise that Ireland's definition of the family has many implications for ethnic minority communities. Our definition of "family" is the extended family, like the Traveller community in Ireland. Speaking from a woman's perspective, most of the women who came here were asylum seekers, some of whom are now refugees. They are single parents, mothers with children. Some have been granted leave to remain because of their Irish-born child. However, they face many problems.

While the decision to give families the right to remain is very welcome, if a mother and her child are allowed to remain but her partner is not allowed to come here, what implications does this have for the child? For children to develop well and fully, they need both parents — their mother and father. If the father is not there, how does the family function? Women need such support if the family is to function.

Some children face racism when they go to school and there is pressure on mothers to help them with the issues they face there. If a woman wants to work or even study, how does she do this when she has children? She does not have the support of the extended family and there is nothing in place to facilitate the process of development.

I have seen and spoken to women who have been sick and hospitalised. They have, perhaps, three children. If they need to go into hospital, what do they do with their children? Perhaps they have friends who will welcome the children but that is not best for them. They are stressed also. Their mother is sick and going into hospital and they do not know what is going to happen. They are being divided and the partner is not there to support them or their mother. It may be suggested that they should go into care but is this the best option for children when their mother is sick?

Another issue is that of asylum seekers receiving direct provision services. Between four and six women stay in one big room and all have children. The place is congested. The children fight and there is a lot of tension. The women also do not get along because of being put in one place with nothing to do all day except sit and look after their children. The conditions of direct provision do not facilitate family life.

AKiDwA, the organisation I represent, saw the problems being faced by families and tried to come up with ideas to help families to function properly. It has been in existence for four years. We know what to do to help the women but there is no funding available to facilitate them in integrating in Ireland. They want to move on. If we received funding to set up a child care facility subsidised by the Government, they could work and contribute to Irish society instead of sitting at home.

African women are not used to sitting down and waiting to be given lunch, breakfast and dinner. It is very destructive of a person's mind. We are not used to this. We are used to working and contributing to society. The system puts us in a difficult position with Irish people who believe ethnic minorities are being sponsored by the Government. There is even a perception that we are given welfare funds when we are not. If people were allowed to work, they could contribute to society. The policies should be revised. If people come here, look at their needs and help the mothers and children. If you are serving the interests of the child, why would you rob a child of the opportunity of growing up with the mother? From my point of view, it does not make any sense to say that the mother can stay but the father cannot come. For those who have been granted residency status, the process of reunification may take about two or three years and sometimes the application is turned down. Whose interests are being served? Not the interests of the child.

The mother is staying here at her own expense. She is taking the children to school and sitting at home. She is not developing. Some people have been asylum seekers for about five years. They are not allowed to do anything which might open doors for them and create opportunities. They can only do courses which give them a certificate of attendance. Some stay in that condition for five years. What does that do to the brain? These people are being given food every day and are not actively involved in anything. Their brain goes dead. If you go to school you do something which, according to your standards, is not worth it.

It would advantageous for Irish society and for ethnic minorities if this policy on families were to be revised, especially since the definition of family has many implications. You cannot give a mother and child the right to stay and rob the father of the right to stay with the family. That is dividing the family in two and it is not helpful. From what I have seen in Ireland, most children who have had a brush with the law come from a dysfunctional family background. The mother and father may have been divorced three or four years earlier. Putting it plainly and simply, this policy is creating dysfunctional families. If the mother is present and the father is not, what influence does that have on the child? The child is likely to get into local problems. The mother has many issues to worry about. There is the worry about papers and about going to school. At the same time the kids suffer from racism and discrimination. How does a single woman deal with all those things? The child is not being helped in any way. I wonder if it makes any sense to let the mother and child stay while the partner cannot come.

Chairman

This committee is looking at the role of the family under the Constitution. Do you feel that the Constitution should be changed to accommodate your difficulties or could it be dealt with by legislation? Our experience of constitutional change is that it has created division and misunderstanding. The people are protective of the Constitution and it is difficult to get the right mix.

Ms Nduka

Societies change and at some point you need to change the Constitution. It is not going to be like this for the next ten to 15 years. If you feel it may cause some difficulties because Irish people are protective of the Constitution, perhaps facilities should be put in place to help one parent families to function. Society is not static; it is evolving.

Mr. Watt

That is a very good point. We should not see all the problems outlined in our submission as being solved by a change in the Constitution. It is a very symbolic point to ensure the definition of family is as wide and inclusive as possible. Certainly the 1937 Constitution was very much reflective of how Irish people viewed themselves and the country at that stage. Ireland has changed quite significantly since then. A very narrow definition of the family could be perceived as exclusive. It is difficult to get the precise wording. There are some very interesting developments in the United States in respect of those issues. A definition of family which is as inclusive as possible would send out a very symbolic message about the new Ireland.

Chairman

Many groups have said to us that the right of the child as enunciated by the UN Convention on Human Rights should lead us to enhance the right of the child within the Constitution so that it would become the axis, irrespective of the family arrangement. Is that something you would advocate?

Mr. Watt

In terms of a specific acknowledgment in the Constitution of the rights of the child?

Chairman

Yes. The Constitution recognises the rights of the family and gives a special role to marriage, but there is not in the Constitution a specific acknowledgment of the rights of the child as set out in the UN Convention. If we were to adopt such a provision in our Constitution, the rights of the child might be used to ensure that the father would have access to the child. There might be an opportunity to bring the father to the child, so to speak.

Mr. Watt

We would certainly support that but there are specific issues to do with minority ethnic families, including the extended family. This is important in Irish society as well, having the grannies and grandads around. It is particularly important in terms of migrant communities. We are not lawyers and cannot suggest specific definitions but we should acknowledge that this is important for family life. Without it, problems inevitably fall back on the State in terms of social services and so on.

Deputy McCormack

I welcome the very detailed and relevant submission by the NCCRI. While the aspirations in the document are laudable, I do not see anything in the submission which is specifically related to our task to report to the Government on the Constitution.

Mr. Watt

It relates to the definition of the family. If we have a very narrow definition of what constitutes a family, it sends out an implicit signal that we do not recognise diversity in Ireland. That would be very negative. The Constitution should reflect the society we are living in. We should have a Constitution which recognises diversity, not just in family types but also in cultural terms. It might mean two or three words in the Constitution to acknowledge cultural and ethnic diversity. It could be that simple. It is an important symbolic point to recognise that diversity.

Senator Tuffy

Is there a very high proportion of immigrant families where the father is not here? Can you give any percentage? Mr. Watt mentioned a change taking place in America. What exactly is involved there? I would be interested in hearing more. How will the document recently announced by the Minister on immigration policy address issues of concerns to the NCCRI? Is there a very high proportion of immigrant families without the father in Ireland?

Chairman

Is it hundreds or thousands?

Senator Tuffy

Is it half or more? I would like to get an idea of how extensive is the problem of absent fathers. Obviously, it would be of concern if the fathers were not here.

Ms Nduka

Approximately three quarters of families are headed by a single parent. That is an estimate.

Senator Tuffy

Does that mean the fathers are not in Ireland?

Ms Nduka

They are not in Ireland — only the women and children.

Senator Tuffy

That is very worrying.

Mr. Watt

We welcome the new immigration and residence Bill being introduced by the Minister which provides a framework for the development of policy rather than specifics. We welcome the extensive consultation process for the Bill which will provide avenues for people to become citizens. That is very important. However, we will reserve our final judgment until we see the legislation.

What was the Senator's second point?

Senator Tuffy

I asked about the position in the United States.

Mr. Watt

We have not considered that matter in too much detail but are conscious of ongoing discussions in Canada and the United States regarding the definition of the family. The working definitions are certainly based on this. I do not think the Constitution reflects it specifically but what policymakers and social services define as a family has evolved a great deal. It would be useful to examine the American model and, in particular, the Canadian model since a great deal of the most progressive thinking is done in Canada. If a specific wording is necessary, perhaps that is the place to seek it. We may conduct further research and send it to the joint committee for its information.

Deputy Andrews

Is a non-citizen applicant for refugee status protected by the Constitution?

Mr. Watt

While I am not a lawyer, I believe the underlying principle of Irish law is that everyone is equal before the law. This is very important. Recently we have seen a certain opening up of different entitlements depending on legal status. We have referred to the habitual residence condition. One cannot receive social welfare benefits unless one has been here for two years.

Deputy Andrews

Is that unconstitutional?

Mr. Watt

It has not been tested in that context. However, in Northern Ireland a Ukrainian woman who was unemployed ended up homeless because she could not access social welfare benefits. She was out in the cold and her legs had to be amputated as a consequence of frostbite.

Deputy Andrews

I remember that case.

Mr. Watt

That is an extreme example of what could happen.

Deputy Andrews

I note that the NCCRI welcomes the immigration consultation paper but does Mr. Watt think the current law on immigrants could be unconstitutional?

Mr. Watt

It has certainly not been tested.

Chairman

I thank the delegation for its submission which we will take on board. We will reflect on the points it has made to us when we produce our report in the next two or three months.

Sitting suspended at 2.55 p.m and resumed at 2.57 p.m.

Chairman

I welcome the delegation from OPEN, represented by Ms Frances Byrne and Ms Naomi Feeley. I remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. We have received the group's well thought out submission which we have studied in depth. Rather than rehash the text in its entirety, perhaps the delegation will over five or six minutes outline its salient features, after which we may have some questions to put to the delegates.

Ms Naomi Feeley

I am information and research officer at OPEN. My colleague, Ms Frances Byrne, is the director. I will begin with a quick overview of the organisation, after which Ms Byrne will outline some of our recommendations and the rationale behind them.

OPEN is the national anti-poverty network which represents lone parent self-help groups which have joined together to represent the interests of lone parents living in poverty and social exclusion. Member groups are supported to strengthen their capacity to provide services for lone parents living in poverty in their communities. We campaign for policy change that recognises family diversity, supports economic independence and improves the quality of life for lone parents and their children.

OPEN, One Parent Exchange and Network, was founded in 1994. The need for a national network of lone parent self-help groups was identified in the early 1990s when lone parents in many parts of the country began forming groups to provide mutual support, advice and information on issues relevant to their families.

The common bond of all the groups in the network is self-help — lone parents themselves recognising their own ability to deliver information and advice services and to pool their experiences to campaign for more inclusive social and economic policies and structures. OPEN's groups are made up of all types of lone parents, men and women, never married, previously married and those with partners who are institutionalised or otherwise unavailable to fulfil their parenting role. From a core of eight groups, OPEN now has almost 80 member groups.

In the past ten years OPEN has emerged as a national voice of lone parents and has been involved in policy development at the highest level. It is the Irish member of the European Network of One Parent Families. We welcome the opportunity to make a submission to the all-party Oireachtas committee on the Constitution as it undertakes a review of the main provisions relating to the family. As the national representative of lone parent groups, we are particularly concerned at the impact current provisions may be having on lone parent families.

Lone parents are not a homogeneous group. While the majority are lone mothers, 15% of those identified in the census are lone fathers. The routes into lone parenthood are varied and include separation, divorce, desertion, death, imprisonment of a partner and unplanned pregnancy. Statistics from the Department of Social and Family Affairs show that lone parenthood is experienced across the age spectrum. For example, while 57% of lone parents are aged between 25 and 35 years, 19% are over 40 and 23% are under 24. Lone parents are also present among other groups such as those with disabilities, the Traveller community and the gay, lesbian, bisexual and transgender community.

While each family has its own unique experiences, one parent families have one thing in common, a high risk of living in poverty. This has been illustrated in several surveys such as the 1994 living in Ireland survey, LIS, which documented that one in 20 households living in consistent poverty were headed by a lone parent. The most recent data from the 2001 survey indicate this proportion has increased to one in five households.

The EU survey of income and living conditions, EU-SILC, published this year, found that lone parents were three and a half times more likely to be living in poverty than any other group in society. In addition, lone parent families were most likely to experience deprivation. The survey also found that 14.6% of children were living in consistent poverty. We are particularly concerned that 126,040 children living in one parent families are dependent on social welfare payments as a primary source of income.

The situation of one parent families is testament to the fact that when it comes to social policy, one size does not fit all. We have supplied the joint committee with a copy of our report, One Size Fits All, which deals with this issue. One parent families are expected to adhere to policy measures based on the constitutional definition of the family based on marriage. The result is an unacceptably high level of poverty for those parenting alone and their children.

My colleague, Ms Byrne, will outline our recommendations in respect of the constitutional provisions relating to the family.

Ms Frances Byrne

As Ms Feeley said, committee members have a copy of our main submission. The document we have circulated outlines the main points for their consideration.

An examination of the family and marriage provisions in the constitutions of many European states and in the European Convention on Human Rights, ECHR, and the International Covenant on Civil and Political Rights, CCPR, indicates that, with the exception of Luxembourg and Ireland, no state guarantees expressly the rights of the family unit. Many recognise the family as a primary or fundamental unit in society while some state it is entitled to the special protection of the state or society but the rights or duties which derive from marriage, the family, parenthood or one's status as a child are guaranteed to or imposed on individuals. This would be the better approach in any revised form of Article 41.

We recommend the express inclusion of the non-enumerated rights of the child as a child is a person in his or her own right. The general constitutional rights shared by adults such as the right to bodily integrity are protected elsewhere in the Constitution. Article 41 should contain an express guarantee of those rights of a child which are not guaranteed elsewhere and are peculiar to children such as the right to be reared with due regard for his or her welfare. A revised Article 41 should also include a guarantee to all individuals of respect for their family life, irrespective of whether it is based on marriage.

We have considered the social provisions that arise from the constitutional articles relating to the family. The welfare system is strongly based on the male breadwinner model. In 2003 the National Women's Council of Ireland, NWCI, stated this model of social welfare "suggests that states built their wages policy, tax and welfare systems around a prototype family of a fully employed male earning a family wage and supporting a dependent spouse and children in a lifelong stable marriage". This definition of our social welfare system is similar to the provisions made in the Constitution.

The piecemeal way in which the social welfare system was developed is reflected in the Constitution's definition of the family based on marriage and notions of women belonging exclusively within the home. Welfare provisions were predicated on the notion that a mother should work full time in the home raising children and should not be obliged to engage in paid employment. Historically, the relevant welfare payments were largely restricted to women and until 1989, there was no deserted husband or widower's payment. The welfare system also reflected a societal distinction between the "deservedness" of different categories of mothers. Those who were parenting alone "through no fault of their own" as a result of widowhood or desertion were covered for this contingency in the social insurance system. Unmarried mothers, however, had to rely solely on a means-tested payment.

In the late 1990s the one parent family payment was introduced as a more unified payment for all parents raising children on their own. Nonetheless, this type of family remains outside the mainstream — an exception to the rule — and social policy continues to reflect society's ambivalence in this regard. On the one hand, society depicts such families as different and, on the other, insists they abide by the same rules "as everybody else" by fitting in with the same employment and housing policies which are formulated around the Constitution's definition of the family.

The constitutional definition of the family based on marriage has had a strong influence on other legislative and institutional arrangements. This, in turn, has had knock-on effects for other diverse family structures. For example, in terms of accessing public housing, the National Economic and Social Forum, NESF, report on lone parents in 2001 noted that 43% of those on local authority waiting lists were one parent households and of these 67% were lone parents with one child. As members will see from the fact sheet we have circulated, this does not reflect the reality of the numbers of lone parents who are over-represented on housing lists because local authority housing needs assessment tends to favour larger families, particularly those with more than one adult, over smaller family units.

There is a major data deficiency in regard to lone parents in that we do not know the numbers. This difficulty stems from the constitutional definition of the family which focuses on one family unit. The 2002 census showed there were 150,634 lone parent households, the majority of which, 85%, are headed by lone mothers.

The census counts the entire population via self-recorded information. People are counted where they happen to be on census night rather than at their usual residence. The absence of a parent on census night can artificially reduce a two parent household to a one parent one which may overstate the number of one parent households relative to two parent ones. However, a more fundamental problem is that the census fails to identify lone parents living with their parents. The nature of lone parenthood means many lone parents live with their parents. For instance, younger lone parents may not have the resources, financial and otherwise, to set up an independent home.

Article 41.2 should be revised to read as follows:

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

This would have implications for legislative change for all parents and carers. The recommendations of the NWCI, which I understand the joint committee has heard, are relevant. They include the extension of maternity benefit to 26 weeks, the introduction of paid parental leave benefit for parents of young children and part-time parental benefit for parents of children up to the age of 11 years, a means-tested parental allowance and part-time allowance, and the development of a mechanism to value the care of older people as paid work by turning the carer's benefit and allowance into a caring wage.

In regard to Article 41.3.1°, we recommend the retention of a pledge by the State to protect the family based on marriage but also to guarantee to all individuals a right to respect for their family life, irrespective of whether that family is based on marriage. The express pledge by the State in Article 41.3.1° to protect the family based on marriage should be amended to delete the words "upon which the family is founded" which have led to an exclusively marriage-based definition of the family which no longer accords with the social structure.

OPEN recommends that Article 8(1) of the European Convention on Human Rights be taken into consideration when revising the provisions in the Constitution in regard to families. This article provides that, "Everyone has the right to respect for his private and family life, his home and his correspondence".

Chairman

The delegates have made their case in a clear and succinct manner. As I understand it, OPEN recommends a change in the Constitution to give an expanded definition to the meaning of the family. Does the delegation believe the family based on marriage, as defined in the Constitution, actively discriminates against categories such as lone parents and cohabiting couples?

Ms Byrne

The narrow definition of the family based on marriage and the special protection given to women in the home have been compounded to produce, as we have described, a social welfare system based on these notions. Men and women who find themselves parenting alone do not fit that model. This has had subsequent negative impacts in respect of the social welfare system and housing provision, for example. That is why we have come down on the side of what we argue as a definition based on reality. One of the points we make strongly is that there is inadequate support, even for two parent families. There cannot be enough support for families but even with all the support in the world there will still be lone parenthood. It is time social provision and the Constitution recognised this.

Senator Tuffy

It is good when a group puts together a suggested constitutional amendment. I thank the group for doing so as not every group does this. It fits in with the suggestions from other groups to ensure there would be broader recognition of the person in the home caring for an elderly person.

On housing policy, the delegation stated a person with a large family tended to do better. I was a member of South Dublin County Council. In my experience a small family unit might lose out in one way but gain in others in terms of points for overcrowding. However, two adults and a child are more likely to be living in rented accommodation than in a family home. It has always struck me that couples' relationships break down because they have to wait so long for a house. Certainly, it is a contributory factor. Cases I have come across recently show that the parent without the children comes out badly. In my local council the father is allowed to apply for one bedroom accommodation only, even if he has four children. This means he cannot have the children and is not categorised as a lone parent.

I do not have any other questions because the group has set out the position clearly in its submission.

Chairman

On housing, the position varies from place to place. I represent Cork South-West, a rural constituency, where most lone parents usually end up being housed. By and large, they have fared well. Obviously, if one has two children, one has a better chance of being housed. Unlike others, my local authority, of which I was a member for 20 years, does not operate the same points system. Single persons, separated men and women account for the largest proportion of those on the housing list. There is a provision in the Housing Act which clearly specifies that families with children get priority.

I thank the group for its clear submission. As Senator Tuffy said, it has set out the position succinctly. I thank it for coming and making its presentation. We will take its point of view on board.

Sitting suspended at 3.13 p.m. and resumed at 3.16 p.m.

Chairman

I welcome representatives of a group known as johnny, Mr. Padraic Whyte and Mr. Conor Coughlan. Before we begin, I remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. As we have received the group's detailed submission at which we have looked, we would like the delegates to synopsise the important aspects in six to eights minutes. Perhaps they will outline to us how the Constitution does not reflect the group's views, the changes it wishes to see and how one could address the problems set out in its well presented documentation. I invite them to make their presentation, following which Deputies and Senators may wish to ask questions.

Mr. Conor Coughlan

I am the chairperson of johnny. Our submission is based on one simple principle, namely, that of equality. Our membership base is 100% in favour of equality and the right to civil marriage, if they so wish. As outlined on page 5 of our submission, we inherently believe the interpretation of the Constitution, as executed in legislation, does not reflect the multiculturalism of modern Ireland, the diversity of family structures, the gender rules in Irish life and the right of an individual to determine his or her own destiny within any given community, as sanctioned by the UN Universal Declaration of Human Rights, the European Convention on Human Rights and the UN Convention on the Rights of the Child.

As a nation, we have taken significant steps towards creating an inclusive, tolerant, mature and equitable society, particularly in recent years with the introduction of the Equal Status Act and the establishment of the Equality Authority. However, many key steps have yet to be taken before we can reach that end goal. We are calling on the Joint Committee on the Constitution to review our submission to ascertain that there is no justifiable reason the State should not support same sex civil marriages and offer loving, committed and stable same sex couples the recognition they truly deserve.

Same sex couples are denied the right to civil marriage. Such discrimination disregards the stability that same sex families provide to their partners, children, relatives and the wider community. It is important to note, as outlined on page 9 of the submission, that we are seeking civil and not religious marriage. While we welcome the introduction of civil unions as proposed by Senator David Norris, we are also seeking greater equality. Essentially, we are seeking no more and no less than the rights afforded to our heterosexual counterparts.

There is no such thing as gay marriage or straight marriage, there is only marriage. Article 40 of the Constitution provides that every citizen has a right to equal treatment. We call upon members to ensure that this mandate is upheld. Gay people suffer from legal, economic and societal inequality and prejudice on a daily basis. The Equal Status Act provides that there can be no levels to equality and that some cannot be treated more equal than others.

History has shown we are a nation with a collective will to remove oppressors, to fight for our right to self-determination, to engage in domestic and international humanitarian aid, to assist in the promotion of key values of democracy and to create a better world for all people. We do not believe the Irish people desire to live in a society that is unfair and unjust, where minorities are oppressed and not afforded the rights of their mainstream counterparts. We do not believe that citizens of this great nation desire that other Irish people should be considered second-class citizens in their own country. We ask committee members to ensure this does not continue to happen.

Article 7 of the UN Universal Declaration of Human Rights states that all are equal before the law and are entitled, without discrimination, to the equal protection of the law. Article 41 of the Constitution states that marriage is a key building block in the creation of the family. We also believe this is true and call upon the committee to support and facilitate countless same sex families to take their rightful place in society.

The Taoiseach recently stated that same sex relationships are not illegal, immoral or improper. I have always strived to achieve a happy, fulfilled and valued life. From an early age, I hoped I could emulate the lives of my parents and that one day, like many others, I would be able to create a stable and worthwhile family. However, this opportunity is currently denied me. If one denies same sex couples the right to civil marriage, one is sending to society the message that such relationships and commitments are inferior to those of heterosexual couples solely on the basis of sexual orientation. Such a decision would be a step backwards.

Gay people are taxpaying, democratic, valued members of society who are seeking the right to lead equitable and fulfilled lives. We urge the committee to recommend that civil marriage be open to same sex couples, that constitutional legislation be amended so that the interpretation of the term "marriage" includes same sex couples and that the term "family" be broadened to incorporate the diversity of family structures currently in existence in Ireland.

Change should not be feared but embraced, recognising that it will benefit society as a whole. We should be able to once again raise our heads high among our brethren in the global community knowing we have looked at our equality weaknesses so as to create positive changes that will lead to a stronger, more diverse and developed nation. We do not need to look too far to find nations that have done so. Nations such as South Africa, which we once frowned on for their civil abuses, have looked within and seen what is not good and have taken the necessary steps to create a better nation for all its people. As Cameron J. A. stated to the Supreme Court of South Africa in respect of same sex marriages, "The capacity to choose to get married enhances liberty, the autonomy and dignity of a couple". We hope the committee will also acknowledge this to be true.

My colleague, Mr. Padraic Whyte will now address the committee.

Mr. Padraic Whyte

I thank the committee for the opportunity to voice our perspective on this issue. A central theme of our submission is that marriage for same sex couples must be equal in status to that of heterosexual couples. This includes eligibility to adopt children. Given that same sex couples are permitted to foster children and single gay people can adopt children, there is no reason a gay couple cannot be considered for adoption. The well-being of a child is more important than the sexual orientation of its parents.

The submission also details many of the concerns relating to this issue. Studies indicate that a child is not disadvantaged as a result of its having same sex parents. Male and female role models come from a variety of sources in a child's life, namely, grandparents, neighbours, teachers and pop stars. As detailed in the submission, research has shown that "not a single study has found children of gay and lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents".

Gay parent families exist and will continue to do so. It is not the case that legalising gay marriage will suddenly create gay parent families. The Government must protect the rights of individual members of the family, partners, parents and children by providing them with the opportunity to avail of the benefits that accompany heterosexual parent families. Many other states in the EU, including the UK, allow gay couples to adopt children. The Irish State must follow suit in order to protect the well-being of the child. When gay couples and their families move to Ireland, they do not get the same recognition under Irish law and a child is subsequently stripped of a parent.

The submission urges that a system of education be introduced in conjunction with the legalisation of gay marriage. Prohibiting same sex marriage attaches a stigma to homosexuality and implies that gay couples are inferior to heterosexuals. One cannot choose to be gay or heterosexual. I understand the fears and concerns of those opposed to legalising gay marriage. I grew up in a traditional rural community which experienced that fear. Telling my parents I was gay was the most difficult thing I had to do in my life because I was aware of their fears and their perspective on the issue. When I told them, my dad, a devout Catholic in his sixties, went and read books on the subject. He has read about five books in his whole life. He was amazed to discover that the picture he had in his head was wrong. Change is possible and Ireland is ready for it. My father told me I needed to educate people about homosexuality and to help them understand it. That is the reason I am here today.

I appeal to members to take the time to read our submission and to open their minds and hearts to it. Prohibiting same sex marriage affects the lives of so many people, not only those who are gay but also their families, friends and children. This is not an issue of tax and inheritance rights, it is about people's lives.

The State discriminates against children who are gay because marriage is not an option in their future. This can affect their emotional and psychological well-being. As documented on page 11 of the submission, research indicates that, when growing up, a child needs to imagine supporting systems of mutuality and trust, while experiencing social acceptance among his or her peers and community. Being denied the same dignity and sense of value as everyone else can become too much for some teenagers and, as studies have shown, can lead to attempted suicide. What would members do if their children could not cope? Would they leave things as they are or would they implement change?

Irish legislation must correspond to progress made internationally. The Netherlands, Belgium and South Africa, a country plagued by discrimination, recognise civil marriage for same sex couples. The Spanish and Swedish Governments have recently passed legislation that permits same sex marriage. Spanish equality legislation confirms that a predominantly Catholic country can adapt to respect diversity for the common good. Ireland can look towards Spain as a model in terms of ending discrimination. All gay people are seeking is dignity and equality.

Marriage is not defined in the Constitution but it is interpreted by the Supreme Court as the unification of a man and woman. We are asking that this committee follow the lead of South Africa and Spain by recommending a broader interpretation of the term "marriage" to incorporate same sex couples. While not seeking change to the wording of the Constitution, we are asking that the committee recommend the introduction of legislation that will recognise civil marriage for same sex couples and bring equality to all. This will save current and future generations of adults and children from unfounded bias and prejudice. The submission substantiates in detail that doing so will protect a marginalised group, reinforce the importance of marriage and benefit Irish society as a whole. It is useful to conclude our argument with a statement from Judge Marshall, C. J. in the Massachusetts Supreme Court:

If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

We will be happy to answer any questions from members of the committee.

Chairman

Does the delegation believe Senator David Norris's Bill, which it says it supports, does not go far enough in allowing for civil partnership only, and that marriage should be allowed for gay and lesbian couples?

Mr. Coughlan

Yes. The issue is that Senator Norris's Bill is not designed for that. We are looking for no more and no less than heterosexual counterparts have, the ability to have a civil partnership, a civil union and get married.

Mr. Whyte

We would only ever see the Civil Partnership Bill as a stepping stone towards equality. Heterosexuals will still have the choice to opt for civil partnership or marriage whereas we would not have that option. We therefore believe it still discriminates.

Chairman

There are two other points I would like to put. The majority of the submissions to us, whether right or wrong, advocated strongly, and in some instances more than strongly, that the definition of the family in the Constitution, interpreted by the courts as based on marriage between a man and a woman, should not be changed. That is one of the problems we face. Second, irrespective of what conclusions we reach in our deliberations, which will happen in the next three to four months, it appears that if gay or lesbian marriage were to be allowed the Constitution would need to be amended. I have spoken to Senator Norris who has spoken to the Taoiseach, and Senator Norris has kindly agreed to suspend his Bill until the committee has concluded its deliberations. I understand he had hoped we would have concluded by now, but this is a complex area and we are doing the best we can with the limited resources at our disposal.

Irish people are very protective of the Constitution. A referendum could be divisive. If such a referendum were defeated, it might set back the issue for the next 20 years rather than moving it forward. Might not Senator Norris's stepping stone approach be a practical way of moving the issue forward? What are the delegation's views on that?

Mr. Whyte

There are a couple of issues. Marriage is not defined in the Constitution. We are trying to guess at the perspectives of other groups who have made submissions to the committee. We also argue that there should not be a definition in the Constitution that marriage should be between a man and a woman. There is no definition in the Spanish constitution that marriage must be between a man and a woman, but the government there urged the supreme court to change its interpretation of the term "marriage" as used within the constitution. That is what we are asking for. We do not ask for a referendum. We are a minority group and the Government needs to protect minority groups through legislation, not through referenda.

Chairman

Does Mr. Whyte believe this could be dealt with by legislation?

Mr. Whyte

Yes, it could. The legislation can come into effect only if there is encouragement for a wider interpretation of marriage as used in the Constitution. It is still related to the Constitution.

Chairman

All legislation introduced is subject to challenge. Not very long ago a Bill passed by both Houses of the Oireachtas was referred by the President to the Supreme Court and struck down. That is always a possibility. Although the courts can change their views, headline decisions in our courts at the highest level in recent times have construed the Constitution in a conservative fashion. I am not sure whether legislators, if they so wished, could force a change on the judges. That is only a view.

Mr. Whyte

Let me respond to that. In terms of how legislation is going, the EU Charter of Fundamental Human Rights will eventually influence the interpretation of laws in Europe and, as the Brussels II Convention has proven, there is a call for similar frameworks regarding adoption issues across Europe and across the EU. If Ireland does not change its legislation there is a risk that it will be changed from Europe. What we are asking is that Ireland make the change rather than be forced to make it by Europe.

Deputy Cuffe

In the past few days I have been quite taken aback by the spectrum of views represented to us, in particular by the number of groups and individuals who have called for no change, and the realisation that there is a certain fear out there. There is a process of education that we as politicians must bring to this debate. I hope that as a committee we can add to it.

I have spoken out in support of gay marriage and I welcome and support this submission. From the group's knowledge of the gay community, does it believe that of those who would take an interest in the subject, the majority favour gay marriage? I note Senator Norris's Bill. I note there are those in the gay community who would not touch marriage with a barge pole and who would not wish to partake in that ceremony. However, in general terms, is there among the gay community significant support for marriage as opposed to recognition of civil unions?

Mr. Coughlan

As we have outlined already, we are speaking on the basis of our mandate, which is our membership base, and they are 100% in favour, quite unlike other organisations that have spoken speculatively about what the community may want. Our membership base is very broad in age and range, between those who are in relationships and those who are not. Our group, which generally finds it difficult to agree on anything, agrees 100% on this issue. It is the choice and equality we want. If the committee were to ask any gay people, they are entirely for equality. The inherent issue here is that equality does not happen overnight. Equality is something that mainstream society always finds it difficult to deal with. However, that is the issue, the fundamental principle of equality, that we urge be addressed.

Referenda in Ireland are always hotly debated. Equality legislation is always difficult to pass. Working previously with the National Consultative Committee on Racism in Ireland on a diversity at work programme, I am aware that the Irish people's attitude towards non-nationals and immigrants is also staunchly rooted in misconception. It is something they would also hotly debate if we were to have a referendum on it. The issue of equality needs to be fostered, developed and nurtured by Government. It should not be left to public opinion.

Senator Tuffy

I understood from the submission that it was being suggested the Constitution should be amended to broaden the definition of marriage. However, I now understand that is not necessarily what is suggested, but that there should be a broader understanding of marriage. It seems the Constitution discriminates in favour of the family based on marriage. Is it correct that the group is suggesting not that the Constitution discriminates in favour of the family based on marriage but that the definition of marriage should be broader.

Mr. Coughlan

It is twofold. In the Senator's use of the word "family", it is also what she assumes or interprets a family to be. I would hope that subsequent interpretations of the Constitution would see marriage and family in their broadest forms, particularly as we live in an era when 30% of couples are cohabiting and when a vast number of single parents, both male and female, are not represented but are families.

Senator Tuffy

I wonder how cohabiting couples would come into it. If one discriminates in the Constitution in favour of a marriage, whether same sex or heterosexual, then one is possibly discriminating against people who are outside of that, perhaps same sex or heterosexual cohabiting couples.

Mr. Whyte

I agree entirely with the Senator. We mention in our submission that there is a need for a broader interpretation of the term "marriage" and of the family in the Constitution. We are of the view that marriage should not have such a privileged status and should respect the individuals within it. Due to the particular angle we take in our submission, however, we have narrowed it down. Marriage will never cease. There will always be marriage. We are fighting, therefore, for the right to be able to marry. That is one aspect but it is merely a small part of a much larger process to recognise the diversity of family structures in Ireland at present.

We would welcome constitutional change, in terms of giving the family that sort of enshrined status in the Constitution. However, it is important that it should be more about the members of the family. The individual members — whether they are children of heterosexual parents, same sex parents or whatever — of the families in question should enjoy the same respect and the Constitution should acknowledge that.

Marriage, for us, is one of the building blocks to which I refer. It is not necessarily the only such building block but it exists and we would like to be part of it. We are not engaging in an attack on marriage, a point which has been raised in some of the other submissions the committee has heard. By advocating same sex marriage, we are in no way attacking the institution of marriage. As we have stated and as has been discovered in Massachusetts and South Africa, it is a means of reinforcing the importance of marriage because people are willing to become committed to these relationships.

Chairman

Another group, Focus on the Family, which came before the committee today stated that there was a group here last week called GLUE. The debate focussed on the area adoption. Focus on the Family stated:

Last week the committee asked another group advocating same sex marriage about the impact of same sex parenting on children. The committee was told that there was no evidence to show that same sex parenting has a negative impact on children and that what matters is good quality parenting. We were astounded to hear this assertion. There is a wealth of data on the impact of parenting on children, much of which concerns the impact of the different roles played by mothers and fathers in the parenting of their children.

We were rebuked when we raised the issue of adoption. I wonder if our guests would concur with that view.

Mr. Coughlan

No.

Deputy Cuffe

Did the group in question instance those studies?

Chairman

It supplied a great deal of data. As there is so much material in front of us, I cannot honestly say what is factual and what is not.

Deputy Cuffe

I would be curious as to whether the group supplied us with any specifics.

Chairman

This was one of the groups which has made strong representations. Before this debate even started, I was accused in some quarters of being out to dismantle the Constitution and of moving with the gay movement, etc. We are here as a group of politicians analysing another part of the Constitution. At this stage, we are looking at the role of the family, the rights of children, etc. We have no hidden agenda. We are trying to see if we can produce a report, which the Taoiseach has asked us to do. The issues involved, not only in respect of this area, are quite complex. There are numerous areas involved. In any event, those are some of the difficulties with which we must deal.

The group before us has made its case succinctly and clearly. It made a detailed submission and we will take that on board. I thank the group for coming in and engaging the committee in a meaningful debate.

Sitting suspended at 3.45 p.m. and resumed at 3.48 p.m.

Chairman

This is the last group to appear before the committee this afternoon. Family and Media Association is represented by Mr. Ivo O'Sullivan, Mrs. Gobnait Ó Grádaigh and Mrs. Jacqueline Asgough, who are welcome. Before we begin, I remind visitors that while members of the joint committee have absolute privilege, the same privilege does not apply to witnesses appearing before it.

As we received the group's submission already, we do not want the group to read out a ten-page submission. We would prefer it to synopsise the submission in a period of five or six minutes. We will try to confine ourselves to aspects of the Constitution where the group feels we should do something. This will be followed by a question and answer session. If the delegates will excuse the pun, in speaking to Senator Tuffy a moment ago I said I am trying to get home to west Cork this evening to my family. It may not be possible but I will try anyway.

Mrs. Gobnait Ó Grádaigh

My name is Gobnait Ó Grádaigh. On my left is Mrs. Jacqueline Asgough and on my right is Mr. Ivo O'Sullivan, chairman of the Family and Media Association. I thank the committee for inviting us to appear before it. I would like to tell the committee a little about the Family and Media Association, which has been in existence for more than ten years. It was founded as a non-governmental organisation to monitor the media with the welfare of family in mind. Our aims are to promote respect by the media for Christian values especially those relating to the family; to seek high standards of honesty, decency, fairness and truthfulness in the media; to promote effective dialogue between the media and the public; to promote public understanding of the functioning and power of the media; and to assess and enhance the value of the media to the individual, the family and the community. The connection with us being here today is that we believe the media has a profound effect on the family. We also believe that through a strong family people get the courage and confidence to withstand the negative effects of the media.

We are informed by Article 40.6.1°.i of the Constitution, referring to freedom of expression, which states, "The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State." Section 3(1)(b) of the Broadcasting Authority (Amendment) Act 1976 states that it shall be the duty of the broadcasting authority to ensure that, “the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner”. The Censorship of Film Act 1923 requires the film censor to refuse certificate to any film, which is “indecent, obscene or... would tend to inculcate principles contrary to public morality”.

The Family and Media Association is very concerned about the corrupting influence of such material on most people, particularly children and youths. We are all sadly aware of the binge drinking and the illicit sex and kind of aimless lives many young people lead. Our research and expertise have led us to see that such material definitely forms part of the ingredients bringing about much of this delinquent behaviour. As we monitor the media, we have noticed that RTE is unbalanced and not fair especially on issues that we are discussing here today.

Our experience and research has also shown us that there is a profound effect on the welfare of the family and the common good through the media. As I have said before and as my colleague will say after me, we believe the secure family best prepares our young people to withstand this onslaught. I now invite my colleague, Mrs. Jacqueline Asgough, to speak about the salient points of our submission.

Mrs. Jacqueline Asgough

Given the time constraints of the committee, I will pick out the salient points from our submission. Having a Bachelor of Arts degree in radio, television and film I am aware of the external influences of the media on the family. Through the work of the FMA, we are well aware that this influence can be of both a negative and positive nature. Daily we hear of anti-social behaviour in our cities and towns as young people act out and imitate the attitudes and behaviours they have seen and heard over the airwaves. As my colleague has already said, research has taught us that those best equipped to cope with these negative influences from the media are those young people who have grown up in committed, loving, stable heterosexual families where they experience very strong male and female role models. We therefore conclude that the best way to help stabilise our society and work for the common good is to uphold the current definition of the family in the Constitution.

The census report from the Department of Social and Family Affairs in 2004 found that more than 60% of families in Ireland are based on a married husband and wife unit. A further 20% of families were based on cohabiting heterosexual couples, which means that more than 80% of families are based on heterosexual relationships. The natural and normal evolution of society is the heterosexual relationship. Those who framed the Constitution, which was passed in a referendum by the people, understood that the family comprised one man and one woman, who officially married, and the children of their union. Experience has shown this is the best arrangement for rearing children. The family does not need to be, nor should it be, redefined. The balance between the rights of the family and the rights of the individual members is found in every functional family. Children have the natural right to grow up in a stable and protected environment.

Regarding homosexual union, one of the main purposes of marriage is to have and rear children. Homosexual coupling is a sterile arrangement. Experience based on research shows that only marriage provides the stable environment children need for healthy psychological and emotional development. It is important to realise this for the sake of the welfare of the State and the common good. Homosexual marriage would be unfavourable to this.

As a woman in the home, I believe the contribution I make to the rearing of my children is immeasurable to Irish society. Most of my women friends who work outside the home wish they could stay at home to raise their children. However, because of financial constraints they must work outside the home. The State could do more to support mothers in the home.

The purpose of our submission is to put forward what we have found through observation, experience and research to be what is best for the child and the common good. The Constitution should promote what is best for society. It embodies the ethos of the people and what they see as best. We should therefore promote what is best for the child as well as the common good, which is a heterosexual long-term committed covenant relationship. We should be reluctant to change the Constitution regarding the family.

Deputy Devins

I thank the witnesses for their submission, the last line of which states,"Therefore we believe it should not be changed in relation to the family." I wish to press the witnesses further. This committee is tasked with ascertaining whether the Constitution should be changed to increase and protect the rights of children. Does the Family and Media Association also hold that the Constitution is sufficiently strong regarding the rights of children?

Mrs. Ó Grádaigh

Yes. We believe children's rights are covered and that in a functional family they have rights. Dysfunctional cases can be addressed by legislation rather than tampering with the Constitution. Giving responsibility to Government or other bodies to look after children takes away from the natural right of parents to be the primary educators, nourishers and carers of their children.

Deputy Devins

I thank Mrs. Ó Grádaigh for her brief and good answer. I wish to raise an issue previously raised with us. I am not sure if the witnesses are aware of the PKU case regarding a family in Donegal in which the parents did not allow the State to carry out the phenylketonuria test on the child. They took a case to the Supreme Court, which upheld their right. Most commentators would believe that the child should have had the PKU test. While I know this is an exceptional case, do the witnesses not believe in having enshrined in the Constitution specific protection of the rights of the child in such a case?

Chairman

Following on from the valid point made by Deputy Devins, the appalling Kilkenny incest case was also raised with the committee. My understanding is that at least two girl members of the family were subjected to appalling treatment by their father for years. An inquiry by an eminent judge subsequently held that the child in question had not been adequately protected by the Constitution. These may be extreme cases.

The joint committee has heard presentations from more than 50 groups. The Ombudsman for Children and others have submitted that the rights of the child need to be enhanced within the Constitution because less than adequate provision is made for them. Cases such as the PKU case, the Donegal case and the Kilkenny incest case give the impression that the courts have interpreted the Constitution as not giving appropriate recognition to the rights of the child. In this context, is there a need to strengthen these rights in the Constitution as legislation may not be strong enough? In another case the court decided to be guided by the Constitution which deals with the family unit.

This is a worry for many groups which have submitted to the joint committee that the rights of the child should be regarded as central to and the axis of the family, whether based on marriage, a cohabiting couple or a single mother or father. If the rights of the child were properly protected under the Constitution, family units could revolve around them. What is the delegation's opinion on this proposal?

Mrs. Asgough

We are very concerned about the protection of children. I am the mother of four young children and the protection of children is a very high priority for me. I wish to see my children and others given protection. The Constitution is about the ethos and aspirations of the people. The protection of the individual rights of certain groups such as children is achieved best by means of legislation.

While I am not familiar with the PKU case referred to by the Chairman, I know what a PKU test is. Most parents would agree to such a test being carried out on their children in hospital. However, certain parents believe the test is an infringement of their rights as parents and because the child is under their care, it should be their decision. While I do not agree with that view, we must respect such parents who may have good reasons for refusing the test.

Deputy Devins

That is precisely the point. The stance taken by the courts in the case in question was that the parents had such a right but a very strong case could be made that, in fact, the rights of the child were violated in the case. The PKU test is just a screening test. The consequences could have been disastrous if, God forbid, the child had PKU.

Listening to many groups my impression is that they are fearful the constitutional protection of the family would be in some way diluted in changing the Constitution. It may well be those articles do not need to be changed, that instead something could be added to protect the rights of children. What is the delegation's opinion?

Mrs. Asgough

This is speculation. The rights of the family are protected in the Constitution. A case involving a PKU test, for example, would be better handled in legislation——

Deputy Devins

Would that not fail the child?

Chairman

Deputy Devins is a medical doctor and speaking from experience. It could have severe implications for the health of the child. The Kilkenny incest case may be an extreme example but it highlighted serious issues. Court decisions in the past ten to 15 years seem to imply the rights of the child are playing second fiddle to the rights of parents. I accept, however, that in most instances parents make the best decisions for their children.

The joint committee is examining how the Constitution may be improved. Many groups, including the Ombudsman for Children and some of the churches, stated very clearly that the rights of the child should be properly enumerated. The United Nations Convention on Human Rights has an enumerated code of rights for children. The committee is teasing out the subject. Does the delegation think there should be no change in that regard? Many groups have submitted that the family unit solely based on marriage actually denigrates children in other relationships, including children in foster care. Many disagree with the view that the rights of the child within the family are fully protected.

Mr. W. Ivo O’Sullivan

I take the Chairman's suggestion that something could be added to the Constitution to take care of exceptional cases without changing the substance of the Constitution. We have not considered such cases. It may be a possibility.

Mrs. Asgough

The State has a duty to protect children. We also have to be very cautious in that we do not want to flip the balance and give children more rights than their parents. The parents are the carers of children. In an ideal world they would have the best interests of their children in mind but as we do not live in such a world, the State will definitely need to take some responsibility and step in where there is that deficiency.

Chairman

Unfortunately, from our experiences in the Kilkenny incest case and other sad cases, the State is often slow to act and when it does step in, a lot of damage is done.

Senator Tuffy

The Constitution was amended to include rights for unborn children. It was decided not to leave it to the parents to make a decision in certain cases. If we can protect unborn children in the Constitution, surely we should also protect the rights of children?

Chairman

It may be that the courts have adopted a restrictive view of the interpretation of the Constitution with regard to the family. The joint committee has heard some strong submissions on the rights of the child in which it is submitted they should not supersede those of the parents. If the rights of the child were paramount, in an extreme case a judge could decide that the best interests of the child were not being protected. I refer to the PKU case in which the judge decided, according to the Constitution and legislation, that the rights of the child were secondary to those of the parents. Most commentators regarded this as a bad decision.

Mr. O’Sullivan

The United Nations Convention on the Rights of the Child is loosely written and there are some matters of concern. We had a quick look at it and found that it covered many areas. Children would have rights independently of their parents. We are not talking about the previous case. We wondered whether that was constitutional since when the State signed the convention, it would have meant the Constitution was changed. We have not yet consulted a legal expert but it appears the State should not have done so since it would first require a change to the Constitution. That is another worry. The convention is loosely written and covers many areas, making it problematic. It gives rights to a child to have an abortion.

Chairman

A number of groups, including the last one, have advocated our examining the issue of same sex unions. Senator Norris's Bill seeks recognition for civil registration rather than marriage per se. Other groups have simply stated that, if gays or lesbians are living together, they have a right to a stable relationship and the same dispensations in inheritance tax, stamp duty and income tax. May I take it from the Family and Media Association’s submission that it would not condone such relationships or marriages?

Mrs. Ó Grádaigh

We believe it is not appropriate to have it in the Constitution, that it would be more fitting to have legislation to protect same sex unions, cohabitees or those dependent on each other in order to offer them some protection.

Chairman

In principle, that is what Senator Norris's Bill is trying to achieve. When he published it, some groups stated he had not gone far enough, that he should have sought marriage rights for gay and lesbian couples. Does the association believe legislative changes to incorporate the thinking of some of the gay and lesbian groups to give them recognition would be acceptable? Regardless of whether we like it, in the last census there were approximately 1,500 gay or lesbian couples living together. Some believe this figure is conservative since some people may understandably not wish to declare this fact. Would the association have any difficulty with legislation stopping short of changes to the Constitution to cater for minority groups such as gays and lesbians and perhaps also cohabiting heterosexual couples?

Mr. O’Sullivan

They can go to the courts. They are also free to make legal contracts between themselves. If one is going to grant tax breaks and so on, it should not discriminate against others who are dependents such as two sisters or brothers living together.

Chairman

Somebody else made the point that it should be broadened. There was a court case which I cannot now recall but believe it was heard by Mr. Justice Peter Kelly in 1997. A contract between a cohabiting couple who had had a child was tested. The upshot was that Mr. Justice Kelly held that it was unenforceable. Consequently, it appears that, even if there is a contract between cohabiting couples, it might not benefit them.

There was a situation in west Cork to which Senator Norris referred. Two men lived together for nearly 40 years. I knew them and they were good and kind to each other. One of them developed Alzheimer's disease and the other retired from their pub to care for him in his difficulty. Regrettably, the partner in better health dropped dead and the families came in. They did not recognise their relationship and the tax man had a big take. If this had been a "normal" husband and wife couple and the husband had dropped dead, the wife would not have had to pay inheritance tax. There is a difficulty. There is also a view that, if this were tested in the European Court of Human Rights, the Government might well be compelled to make changes. There is a diversity of opinion. I understand Mr. O'Sullivan does not want the Constitution changed. However, would he accommodate enhanced rights for other groups in society through legislation?

Mr. O’Sullivan

Regarding inheritance rights, surely the couple could make contracts stating that, if one died, he would leave his estate to his partner.

Chairman

Unfortunately, in my previous life I was a solicitor for 25 years. I am not trying to be clever but in that situation of a relationship between two men, women, sisters or brothers, the tax threshold for strangers in blood is approximately €25,000, after which one is hit with the full tax bill. If I drop dead in the morning and have not made a will, my wife will be entitled to the family home and my assets without being hit with a massive inheritance tax bill. The same applies to stamp duty and, in some instances, income tax. Therefore, there are problems. I wonder whether the association would be willing for the Oireachtas, by way of legislation, to secure parity for them — not special rights but the same as others enjoy. I am playing Devil's advocate here.

Mrs. Ó Grádaigh

As long as the privilege would not be granted only to homosexual couples and any two people could benefit.

Chairman

Yes. Some other groups mentioned two sisters or two bachelor brothers living together in a remote area of west Cork for 40 years. Does one broaden matters to bring that in? I am sure the Minister for Finance, Deputy Cowen, might also have ideas on the matter and that he might not want to loosen the purse strings. The previous group, johnny which represents gay men, felt strongly about several issues. Apparently, there is discrimination against them on such issues.

Mrs. Asgough

We are aware that there are strong political pressures to decide on such issues. However, our bottom line is that no one family type is regarded as better than another. A heterosexual family——

Chairman

They are saying they are at a different level. One could imagine a gay couple with a house in Dublin worth €1 million, which is no longer a big deal, and the survivor being hit with a tax bill of €300,000, whereas with a heterosexual couple there would be no tax bill. That is the problem which could also apply to a cohabiting couple. I knew of a couple who, for whatever reason, lived very happily together for 24 or 25 years. They had three children. The "wife" died suddenly and there were complications that they had never envisaged. She was in her early 50s. The "husband" suffered a substantial financial penalty because they were not formally married.

Mrs. Asgough

Is the Chairman talking about inheritance taxes?

Chairman

I have raised other issues too. In the case of a lesbian couple who got married in Canada and are living here, the State is going to the courts. The High Court or the Supreme Court may give us some indication of how it might interpret the matter.

Mrs. Ó Grádaigh

What about common law? Does it kick in for a heterosexual couple who are cohabiting such as the couple whom the Chairman mentioned? Would they not become man and wife by common law?

Chairman

I do not think so. The problem is that under the tax code there are different thresholds. Regarding a husband and wife, there is no inheritance or gift tax. Originally there was but now, even if one is worth €20 billion, there is none. There is another category between a father and child; I believe the limit one may give to one's child without having to pay tax stands at €170,000. The last category is the one about which I am talking. If there are two gay men or a cohabiting couple, they are seen by the Revenue Commissioners as strangers in blood with no entitlements except at the very bottom rung of the ladder. This seems inequitable to some. Would the association have a problem if the legislation was changed to put such people on level terms, not to give them better rights?

Mrs. Ó Grádaigh

I would prefer if any such changes were applicable only to heterosexual couples. The Chairman used the word "normal"——

Chairman

As Chairman, it is not desirable that I should seem to be prescribing any categories. I have a difficult job to do and wish to listen to the views of all groups who appear before the committee. We have heard an immense amount of information and the committee must endeavour to deal with it in a fair and balanced way. I apologise if it appeared I was categorising any group or activity as "normal" or "abnormal". This was not my intention.

I have a simple question for the delegation. Apart from the issue of homosexual couples, would the association support legislation to remove taxation discrepancies such as those I outlined?

Mrs. Ó Grádaigh

We would support legislation if it were fair and applied not only to homosexual couples but to other partnerships such as those between two siblings, for instances. Non-sexual relationships should be afforded equal protection.

Mr. O’Sullivan

It would be necessary to examine any such legislation before stating our position. We are dealing with complex issues.

Chairman

I doubt such legislation will be introduced during the remaining two years of the Government's term. However, the Taoiseach recently articulated his desire to see more equitable legislation in this area.

Senator Lydon

I understand from the delegation's presentation that the Family and Media Association is principally concerned with the effect of the media-driven agenda.

Mr. O’Sullivan

Yes.

Senator Lydon

The delegation made reference to "9 Songs", a film I have not seen but about which I have spoken with the censor, Mr. John Kelleher. He considers his role as one no longer concerned with censorship but with classification. The only content he is likely to censor is gratuitous violence. This film goes beyond the boundaries of good tastes in its depictions of full penetration, fellatio, cunnilingus and ejaculation. I am not sure if this could be considered art which those over 18 years of age should be permitted to view. That is another question.

The principal point of the delegation's submission is that this film will be available for video or DVD rental and thus accessible to children.

Mr. O’Sullivan

Yes.

Senator Lydon

Moreover, the delegation has suggested the censor has broken the law in this regard.

Mr. O’Sullivan

That is correct.

Senator Lydon

The association may have a good case.

Mr. O’Sullivan

The censor claims the film is a form of art, a claim we strongly dispute. A psychologist made the point on radio——

Senator Lydon

I heard that interview.

Chairman

I am not sure I understand the point Senator Lydon has raised. This issue may be beyond the remit of the committee.

Mr. O’Sullivan

We are concerned with monitoring the effect on the family of the values promoted in society and the media.

Senator Lydon

I was pointing out the need for a change in legislation in this area.

Chairman

I understand the delegates' point. They have contended that the media, including newspapers, television and radio, are skewing towards a liberal agenda and, in some cases, effectively driving that agenda.

Mrs. Ó Grádaigh

Those most affected by this agenda are those without the support of a solid family, including both a strong male and strong female role model who are in a committed relationship. It has been proven that such young people are most likely to get into trouble and begin acting out the behaviours they observe in these types of films. In this context, the constitutional provisions on marriage should not be amended.

Mr. O’Sullivan

The FMA and parents are worried that our lovely innocent children are being raised in a society in which there is much to corrupt them as they grow. Unless they have strong spiritual values, they will require courage to resist peer group pressure. Social values are deteriorating and children must be very strong to resist this corruptive influence.

Chairman

I thank the delegates for their contribution.

The joint committee adjourned at 4.25 p.m. sine die.