Irish Constitution: Family Law - Assignment Example

LAW Part A There will be no change in the definition of the family as written in Constitution - in the light of the current Constitutional definitionof family. Article 41 of the Irish Constitution contains the main provisions relating to family. This Article is based on the precepts of the sacrosanct Roman Catholic Church and only envisages families based on the sanctity of marital unions. Families outside the sanctity of marriages do not come within the purview of this Article In Ireland, the state recognises the family as an intrinsic and fundamental part of the society and a sanctimonious relationship evolving around man and woman through a union of marriage, based on inseparable and unconditional rights, above and beyond legal bindings. Under such circumstances, the state is bound to uphold and protect family interests in its constitution, as a pre-condition for ensuring social order and preserving the sanctity of marriage bonds. The preservation and development of the institution of marriage is also intrinsic to the growth and development of the Irish State and nation. Specifically, the law acknowledges the fact that the role women play at her home is important without which common progress cannot be realised. Therefore, the common contention is that family economic burden should not perforce a woman to seek income avenues and neglect in the carrying out of household duties and child-rearing activities, particularly because this forms the nucleus of the family establishment in Ireland. The sanctity of marriage and its continuance is also a state promise in Ireland. It is now sought to consider the family under the following Articles: Article 119: Marriage is the formation of family for expansion and growth of national population and the constitution is bound to protect marriage. In it both the male and female members enjoy equal status in the eyes of law. Article 120: It is of paramount importance that the parents raise their children in the right manner, in physical, mental spiritual and social fitness and this is to a very large extent, assisted by the government policies and programmes which are conducive to family rearing. Article 121: This article gives equal status to illegal children (children born out of wedlock) as to legitimate children Article 122: The lives of young people must be protected against exploitation of any kind and they must be prevented from indulging in moral and spiritual debauchery, and not tending to their minds and bodies properly. It is also the duty of the state to take proper steps for ensuring this. The concept of a nucleus family is based on the lives of a married couple wherein the man is the head and provider of the family and the woman is the sustainer and mother figure, who takes care of the family duties and the development of the physical, intellectual, spiritual and moral aspects of the children. Lifelong values to be cherished and implemented are passed on from the parents to their children from generations to generations and this evolutionary process is continued. The traditional stronghold of marriage gives it a social context based on natural law, and this is further sanctified by the discouragement of divorce, and also, the social disapproval of cohabitation. The campaign against the use of contraceptive devices promotes the birth of off-springs and the continuance of the proliferation of the humans in the state. Homosexuality is also strongly disregarded in the Irish Constitution. Article 41 & 42 of the constitution has been enacted with the sole purpose of the protection of the sanctity of marriages and the family. The Irish Constitution under Section 41.3.1 validates the family as a natural unit of social life, and the state is under commitment to carefully preserve this aspect of family life. The stronghold of marriage systems of which the family is a natural outcome, needs to be protected against outside incursions. In delineating this position, the law distinctly recognises the valuable contribution made to the welfare state. It is not the constitution which creates, or defines a family; rather, it recognises the social order under which the family existed even prior to the enactment of the constitution. In North Western Health Board v. HW and CW (2001) Keane CJ observed that "there is the area of moral authority recognised by Articles 41 and 42 of the Constitution as being vested in the Family and parents and identified as rights which are inalienable and imprescriptibly." (Murphy 2001). The Constitution also acknowledges the fact that, while addressing the relationship between family and society there is an important aspect and that is its implications and adjuncts form the very living matter for existence and progress of society and this, in turn, provides the binding strength and success of society. This truth is recognised by the constitution when it describes the family as the precondition to the welfare of the state. Although several Churches in Ireland and other religious Institutions have held differing opinions regarding the concept of marriage and family, most of them concurred on the fact that it was based on a sacred alliance between a man and a woman. However, there may be instances when the conventional meaning and attributes of marriage may not be present, and certain deviations from accepted norms may need to be treated as the circumstances requires. The Council of Social Responsibilities of Methodist Church of Ireland has held the view that the Constitution need not be the venue for sorting out social issues and policies. The main used of the Constitution is to delineate the broad frameworks of public and social precepts and the detailed and relevant legislations could be constructed, accordingly to contemporaneous legal settings around. "The Preamble should set the moral standard which then informs the whole of society, rather than presenting an outline of legal structures and mechanisms." (Methodist Church in Ireland). Further, it is not necessary that the Constitution need to mirror the viewpoints of any particular Church, since the viewpoints may differ from individual to individual and it is thus not the role of the Constitution to take a stand on these aspects. The religious precepts and its implementations are two different aspects and need to be seen accordingly. This has assumed special significance in the present social context, when Ireland now boasts of a multiplicity of discrete cultures. Moreover, it is now been seen that the interrelation between the religious needs and the needs of the Church has been increasing combined so it has become necessary to create a separation between the two in the time to come. The Church in Ireland continues to be the bulwark of moral values and the institution which could inculcate morality, uprightness and rectitude in family behaviour. It is generally believed that the traditional family evolving over generation contribute to the common good and needs to be specially protected by the Constitution whereas other forms of 'unions' need to be generally protected. (Tenth Progress Report 2006, P.52). Thus, it may be concluded that an overwhelmingly large part of the individuals do not wish to introduce any changes with regard to the definition of 'family' in the Irish Constitution and wish to keep it intact, in the traditional sense. Part B: A new section should be inserted in Article 41 to protect the best interests of the child A major issue of children's rights have not been specifically dealt in the constitution of Ireland which has necessitated the need for various forums to publicly clamour for granting of separate rights for children. This has developed momentum over the years when issues regarding the safety and welfare of children have become major public issues. The silence of Article 41 of the Irish Constitution regarding express rights of the children has led to widespread assertion by activists, civil rights campaigners and the public regarding the rights of children to be categorically and specifically included in the constitution, either through an amendment of the said Article or an insertion of a separate section in Article 41 dealing with the rights of children. As of now, the rights of the child are exerted through parents and children do not have any express rights of their own. There are differing schools of thoughts that have varied opinions on the granting of specific rights to children. It is believed that Article 40.3 guarantees the personal rights of the citizens and any further reinforcing of rights would interfere with the suzerainty of the parents and the privileges of the family status. It is also believed that strengthening the rights of the child would, effectively, undermine the authority of the parents and a progressive loss of control over the activities of the child. The United Nations Convention of the Rights of the Child (CRC) has been ratified by the Irish Parliament but the Convention has not been incorporated into Irish Law. "In September 1992, Ireland ratified the CRC. It constitutes a comprehensive compilation of child-specific rights, many of which have already been identified by the superior courts as un-enumerated rights under the Constitution. They include, inter alia, the right to gain education, to have freedom of religion, expression, assembly and association. There have been recommendations that the Committee should consider incorporating the rights of the child emanating from the CRC in Irish law. The child has a fundamental right to be registered at birth and also to be given from the time of birth, a name. Further, the child also has to prerogative of knowing his/her father/mother and the right to be cared for by the parents. The child has to be brought up keeping in view its best interests and all actions whether legislative, judicial or legislative, have to keep the paramount interests of the child in view at all times. If at any time, there is a deficiency, or want, on the part of the parents to take care of the child, the State shall take the place of the parents, in taking care of the child. The aspect of child care is very important and a crucial one, since if children are not well protected, it could lead to ill-treatment of children and the best interests may not be served both at home and outside. Since it is often the situation that the rights of the child may overlap with that of the parents, it is necessary to strike the right balance between the rights of the child, and the authority and control vested on the parents. In the event of such overlapping, the Constitution has to expressly provide which right would take precedence over the other. "The problem seems to be essentially that of achieving a legal balance which will offer security and a measure of equality to individual family members in a manner which does not devalue or endanger the family as an institution." (The balance between the rights of the family unit and those of the individual members). The Church of Ireland has expressed the view that the rights of child are inadequate and need to be reinforced. It has often been said that while the best interests of the child has been observed, it is not clear and cogent as to what would constitute the best interests and which constituent would be in the best position to protect and promote these interests. Is it to emanate from the parents of the child or from the State, or from both The other factor that emerges is that because of the dependency of children, they are not able to exert their rights during childhood. During this time, the rights of the family take precedence over the rights of child, and their rights are subservient to the rights of the family or parents. However, keeping in view the best interests of the children, it is necessary to respect their rights as individuals of a free State and also to overcome the barriers faced by people who wish to become foster-parents to abandoned or orphaned children. It is believed that specific legislation is necessary in order to constitutionally guarantee children's rights since they are prone to various kinds of mistreatment. The Irish law has granted rights to children who are born outside the sanctity of marriage at par with legally born children. In the decided case law, The State (Nicolaou) v An Bord Uchtla), the plaintiff's child had a natural right to have her welfare safeguarded, which right was a personal right within the meaning of Art 40, s3, of the Constitution. (Plaintiff 1980). There are opinions that the scope of provisions of Article 42.5 which govern children whose parents are not in a position to take adequate care of the children, as a result of which the care is transferred to the State, should be extended to all children, irrespective of status of parenthood. As envisaged under Article 42.5 the Constitution of Ireland, "In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imperceptible rights of the child." (Constitution of Ireland). The Irish Society for the Prevention of Cruelty to Children has been unequivocal in its commitment for the betterment of the plight of children, and issues connected with their safety and security. According to the society, there needs to be suitable amendments in the Articles 41 & 42 of the Constitution in order to grant equal status to all children despite their marital status of their parents. (Tenth Progress Report 2006, P.93). If enacted into law, this would afford justice in the present social context of marriages and would also ensure that the decisions of parents to enter into wedlock or not, would not act as a detriment to the status of their children, while also ensuring that their constitutional rights also stay fully protected. However, this may be easier said than done, since the law may not recognise relationships outside the sanctity of marriages and the rights envisaged in Article 41 benefit only to families instituted on marriage and do not extend to families outside wedlock. Since children would be forming the future citizens of Ireland, it is necessary that suitable constitutional amendments may be made in order to ensure that they are in a position to undertake future responsibilities to the best of their abilities. For this, it is necessary to enact the recommendatory measures of the United Nations Commission on Rights of Children (CRC) into law, in order to provide the needed rights to children to lead useful lives in their future. Bibliography Constitution of Ireland. Bunreachtg Na hEireann. Methodist Church in Ireland. Council on social responsibility (Northern Executive). Follow-up to submission to the Northern Ireland human Rights Commission. [online]. Last accessed 26 October 2007 at: http://billofrights.nihrc.org/submissions/submission_30.pdf. MURPHY. J (2001). The Supreme Court. Judgment. [online]. Courts Service. Last accessed 26 October 2007 at: http://www.courts.ie/judgments.nsf/597645521f07ac9a80256ef30048ca52/f3e33b3f5f312a4480256ccd0002dafdOpenDocument PLAINTIFF. G (1980). See (1980) IR 32 for the Judgment of High court. Supreme Court. [online]. Last accessed 26 October 2007 at: http://www.womenslinkworldwide.org/pdf/co_eur_ire_gvbord.pdf Tenth Progress Report. (2006). The Family. The All Party Oireachtas on the Constitution. P.52. [online]. Last accessed 26 October 2007 at: http://www.constitution.ie/reports/10th-Report-Family.pdf Tenth Progress Report. (2006). The Family. The All Party Oireachtas on the Constitution. P.93. [online]. Last accessed 26 October 2007 at: http://www.constitution.ie/reports/10th-Report-Family.pdf The balance between the rights of the family unit and those of the individual members. Preamble. 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