CONSTITUTIONAL protection should be extended to non marital families, and the rights of children within the family should be strengthened, according to the Constitution Review Group.
The review group comments that Article 41, relating to marriage and the family, was a novel provision in 1937, and had not been in the 1922 Constitution. "It is generally considered that Articles 41 and 42 were heavily influenced by Roman Catholic teaching and Papal encyclicals. They were clearly drafted with only one family in mind, the family based on marriage," it says.
However, the mores of Irish society have profoundly changed since 1937, leading to a rise in cohabitation and single parent hood, increased readiness to accept separation and divorce and greater economic independence for women. These changes call for amendments in the Constitution.
The group identifies 11 issues to be addressed. These included the constitutional definition of "family" and the description of family rights; the balance between the rights of the family as a unit and those of individuals within it, including natural fathers, natural mothers and children, and the balance between the rights of parents and children; whether there should be an express right to marry; the specific protection of marriage; the reference to the role of women in the home; and whether the Constitution should continue to regulate the position of foreign divorces.
The Constitution should continue to recognise the family as the primary and fundamental unit of society and should expressly bestow the right to marry and found a family, according to the report.
It avoids attempting to define the family to include cohabiting couples and various possible combinations of individuals, couples and children. Instead it recommends retaining the protection given by the Constitution to the family based on marriage, while introducing a guarantee for all individuals to respect for their family life, whether based on marriage or not.
The review group considers that the present Articles 41 and 42 emphasised the rights of the family to the possible detriment of individual members, notably children. It points out that there is no express reference to the rights of the child, although the courts have defined certain "unenumerated rights" to which the child is entitled. Further, the Government has signed the UN Convention on the Rights of the Child.
The group favours inserting a number of rights of children into the Constitution, including the right to be registered immediately after birth, and the right to a name; the right, as far as practicable, to know his or her parents and to be cared for by them; and a requirement that all decisions concerning children should put their interests first.
The existing Constitution gives no rights to natural fathers, although the courts have ruled that a child can seek support from his or her natural father. The report recommends giving parental rights to a natural father, provided he is or has been in a family relationship with the mother. It also recommends that parental rights be specifically extended to natural mothers.
To resolve conflict between the rights of parents and children, it suggests amending Article 42 to allow State intervention either where parents have failed in their duty, or where the child's interests require it.
Turning to the existing constitutional protection of the role of women in the home, it says this has been of little practical benefit to women working in the home to date, and recommends amending it. It suggests a "gender neutral" Article 41.2 which would recognise the support given to society by family life, and add "the State shall endeavour to support persons caring for others within the home".
Despite the passage of the divorce referendum, "limping marriages", legal in foreign jurisdictions but not here, may remain unless provided for. Accordingly, the review group recommends retention of the existing provisions on foreign divorces.