Article 41 of the Constitution recognises the Family “as the natural primary and fundamental unit group of Society”, and as a “moral institution possessing certain inalienable and imprescriptible rights” which are “antecedent and superior to all positive law”. The State guarantees to protect the Family in its constitution and authority “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State”. Article 41 of Bunreacht na hEireann contains the main provisions relating to the family. It is generally considered that Articles 41 and 42 were heavily influenced by Roman Catholic teaching.
They were clearly drafted with one family in mind, namely the family based on marriage. ”. Since 1937 when the constitution was drafted there has been major social changes such as, changing attitudes to sexual behaviour, contraceptive use, social acceptance of pre marital relations, cohabitation and single parenthood, social acceptance of divorce, just to name a few. These social changes which would not have readily existed in 1937 have not been adapted to in the Constitution in Article 41/42 concerning the ”family”.
Simply put the definition of family in the constitution is old fashioned. I am of the opinion that an amendment to “The Family”- namely Article 41 is required. I base my argument on 3 main reasons 1) More types of family should be recognised, not just that of a marital family. 2) The definition of family should be changed to include expressed rights of a child incorporated into Article 41 and the rights of a child not just fall under that of ”the family” 3) The wording of the rights of the family to change to allow for more state intervention.
Though the “family” is not defined in the constitution the Supreme Court held that the family is based on marriage – State(Nicolaou) v An Bord Uchtala : Walsh J – “the family referred to on [Article 41. 3. 1] is the family which founded on the institution of marriage, on which the family is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the laws for the time being in force in the state”. Article 41. 3.  states “The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect against attack” . From this definition it appears that a non-marital family would not be protected by the State against attack. In my opinion this provision should be amended to conform to the social change that I have previously mentioned as a family in current times is no longer just a marital family. “ The law must, as far possible mirror contemporary civilization and as that changes so must the law.
If the law becomes too rigid and inflexible, then there is always the danger that it will conflict with the needs of the people, with all the unfortunate consequences to which conflict may arise……….. during the dynamic periods of History …….. for it becomes essential for the legal system to adjust itself to the novel conditions of social life” As a general rule most rights and obligations flowing from family law legislation are confined to families based on marriage.
There are few contexts where non marital relationships are recognised such as domestic violence and wrongful death. The European Court of Human Rights have taken broader approach then Ireland and has been deemed to protect inter alia the family life of non-marital parents and their children. “It is likely that the failure to recognise the rights, and indeed the duties, of the members of non-marital families may constitute a breach of Art.
8 of the European Convention of Human rights, which requires that the State respect the family life of all persons……. iven that the convention is now part of domestic law it is only a matter of time before Irish Law is found to be in breach” The European Court of Human Rights(ECHR) broader approach to the definition of a ”family” can be seen in Mouta v Portugal. In this case the ECHR recognised a homosexual man and his child as a family which wouldn’t be recognised under the Irish Constitution. Da Silva was previously married and had a daughter in this relationship and divorced 3 years later. .The applicant (Da Silva) sought an order giving him parental responsibility for the child.
The Lisbon Family Affairs Court awarded Da Silva parental responsibility. His ex-wife appealed against the Family Affairs Court’s judgment to the Lisbon Court of Appeal, which reversed the lower court’s judgment and awarding parental responsibility to the ex-wife, with contact to the applicant. It was held by the ECHR that the judgment of the Court of Appeal, in so far as it set aside the judgment of the lower court, constituted an interference with the father’s right to respect for family life and attracted the application of Art 8 of the Convention.
Were this case to appear in an Irish Court De Souza would not have been awarded custody due to the the rigidness of the courts to move from strictly interpreting ”family” in the constitution . Secondly I will explore how 1)Article 41 acts as a shield against state intervention against matters concerning ”the family” and also 2)why I think ”the child” should be given expressed rights in the constitution contained in the definition of family. In my opinion I think that Article 41 acts as a shield against state intervention.
I think “a shield” is an effective way of describing the Article as a shield protects against attack but does not block all danger/damage, just like Article 41protects the ”family” but does not provide complete immunity. This article emphasises the rights of the family as a whole while not exploring individual rights such as the rights of the child. I think the words ”inalienable and imprescriptible”/rights superior to positive law” are too strong as it gives the State limited opportunity to intervene with matters concerning ”the family”.
When can the state intervene?. Murphy J gave his view on this question “where conduct of parents are such to constitute a virtual abdication of their responsibility or alternatively, the disastrous consequences of a particular parental decision are so immediate and inevitable as to demand intervention and perhaps call into question either the basic competence or devotion of the parents” A State intervention must be proportionate -breach of Article 41 must have justifiable circumstances. As I previously mentioned Article 41 does not provide complete protection.
This can be seen in People v T where a father had been convicted of sexual offenses against his daughter. Casey made the point that while Article 41 “established that the family as a unit had it’s own special rights, other provisions make it clear that each member of that unit had his/her own constitutionally-guaranteed personal rights….. It follows from this that the common law rule can have no application in cases where one member of a family is alleged to have committed an offense against another”.
I have already given my opinion that i think the words ‘inalienable and imprescriptible” and ”above positive law” are too strong and limit the courts powers in intervening. One case where I think this is prevalent is is N v Health Service Executives aka ”the baby Ann case”. At the time of A’s birth in July 2004 the applicants were unmarried and they decided to place A for adoption. The applicants married in Northern Ireland in January 2006, strengthening their legal position as they now formed a family under the constitution.
The High Court held that the child was in the lawful custody of Mr and Mrs D(the Adoptive parents) and that, accordingly, a conditional order for the inquiry under art 40 had to be discharged. The decision of the High Court was based on his conclusion that the applicants had failed in their duty towards their daughter and abandoned her and that there were compelling reasons why the child should not be returned to their custody. The decision was overturned by the Supreme Court.
I feel that the decision by the Supreme Court was inappropriate, it did not take into account the welfare of the child, Article 41 restricted the courts ability to award custody of the child to the adoptive parents, as the maternal parents and Baby Ann has formed a ”family” under the constitution. If the State had more powers to intervene and supersede Article 41 then the custody would probably have been given to the adoptive parents (which would have been the right decision from my point of view).
John Walters gave his view on the Supreme Courts decision “its hands tied by outmoded provisions of the Constitution, was prevented from doing the “decent” thing: leaving baby Ann with her prospective adoptive parents”. Judge Catherine McGuiness, closing remarks in the case were interesting. She voiced criticism regarding the rights of the child in the constitution and also how she was reluctant to come to the decision to support the maternal parents claims. “ It would be disingenuous not to admit that I am one of the ‘quarters’ who have voiced criticism of the position of the child in the Constitution.
I did so publicly in the report on the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands. With the reluctance and some regret I would allow this appeal. ”. I think that the argument to give the child expressed rights under the constitution is intertwined with giving the State more scope on intervening in family cases. As it stands children’s rights are thought as secondary to the parents and this can be see in Crowley.  I think that there should be a change from the paternalistic approach, whereby the adults know best.
Were there to be an express provision outlining the right of the child there would gave been an alternative decision in the PKU test case. The court acknowledged the right of the parents to refuse a both standard and important test for a new born child while ignoring the best interests of the child. The Council of Europe Recommendation 1289 (1996) point 8(i) on a European Strategy for children advised that there should be guarantees that children’s rights should be explicitly incorporated into constitutional text. 
To summarise I think Article 41 concerning the definition of family should be changed. It is outdated basing a family on marriage as in current times there are more then just marriage based families, there are a variety of situations which the normal person would regard as a ‘family’. The Constitutional Review Group stated that there is a “multiplicity of differing units which may be capable of being considered family”.  I think there should be an exhaustive list including the instances above where a member of the public would regard the situation as being a family.
Alternatively you could leave the definition of family open and state that “family” is not confined to that of just a family based on marriage. This would leave the judiciary to determine a family on a case by case basis which is similar to the ECHR approach. This would result in a large amount of uncertainty. I would favor the first option even though it would arise it’s own problems such as would being forced to become a legal family under the constitution infringe on personal rights?
And also how would you determine the length of time a family is together to qualify as co-habitant?. Either way I think the implied definition of family needs to be changed. To highlight the constant increase of different types of families and the need for reform, I have taken statistics from the last 3 census’ of the number of units formed by cohabiting couples (which are one ”family I think should be recognised) and formed a table, this furthermore indicates the need to incorporate the change in society into the constitution.