The Definition of Family in the Constitution

Article 41 of the composition recognises the Family as the inborn primary and fundamental unit group of Society, and as a moral validation possessing certain inalienable and imprescriptible rights which be antecedent and captain to all positive law. The distinguish guarantees to protect the Family in its penning and authority as the necessary basis of loving place and as indispensable to the welf atomic number 18 of the Nation and the State1. Article 41 of Bunreacht na hEireann contains the main provisions relating to the family. It is oecumenicly considered that Articles 41 and 42 were heavily influenced by Ro gentleman Catholic teaching.They were clearly drafted with one family in mind, that is to say the family found on mating. 2. Since 1937 when the physical composition was drafted in that location has been major social miscellanys such as, changing attitudes to informal behaviour, contraceptive use, social acceptance of pre matrimonial relations, cohabitation and single pargonnthood, social acceptance of divorce, just to name a few. These social changes which would non nourish readily existed in 1937 have not been adapted to in the organic law in Article 41/42 concerning the family.Simply put the comment of family in the constitution is old fashioned. I am of the feeling 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 denotative rights of a sister integrate into Article 41 and the rights of a child not just glitter on a lower floor that of the family 3) The wording of the rights of the family to change to allow for more res unexclusivea veilvention.though the family is not defined in the constitution the despotic administration held that the family is found on marriage State(Nicolaou) v An Bord Uchtala3 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 sentence being in force in the state. Article 41. 3. 4 states The State pledges itself to guard with limited c are 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 debateing this provision should be amended to conform to the social change that I have previously mentioned as a family in current multiplication 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 to a fault rigid and inflexible, then in that location is eer the danger that it will participation 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 placement to adjust itself to the novel conditions of social life5 As a general rule most rights and obligations flowing from family law legislation are confine to families based on marriage.There are few contexts where non marital relationships are recognised such as house servant violence6 and wrongful death7. The European chat up 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 embed a breach of Art.8 of the European Convention of Human rights, which requires that the State esteem 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 breach8 The European Court of Human Rights(ECHR) broader approach to the definition of a family sack be seen in Mouta v Portugal9. In this case the ECHR recognised a homosexual man and his child as a family which wouldnt be recognised under the Irish Constitution. Da Silva was previously married and had a daughter in this relationship and divorced 3 years later. .The appli kindlet (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 Courts judgment to the Lisbon Court of Appeal, which reversed the lower courts 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 stripe aside the judgment of the lower court, constituted an interference with the fathers right to respect for family life and attract ed 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 protect against state interference against matters concerning the family and also 2) wherefore I believe the child should be assumption expressed rights in the constitution contained in the definition of family. In my opinion I mobilize that Article 41 acts as a shield against state intervention.I think a shield is an effective counseling of describing the Article as a shield protects against attack barely 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 self-coloured while not exploring individual rights such as the rights of the child. I think the words inalienable and impr escriptible/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 take hold of on this interrogative sentence where conduct of parents are such to constitute a virtual stepping down of their responsibility or alternatively, the disastrous consequences of a particular parental end 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 T10 where a father had been convicted of sexual rudenesss against his daughter. Casey made the flush that while Article 41 established that the family as a unit had its own special rights, other provisions disembowel it clear t hat each member of that unit had his/her own constitutionally-guaranteed personal rights.. It follows from this that the commons law rule can have no application in cases where one member of a family is alleged to have committed an offense against another11.I have already disposed 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 Executives12 aka the featherbed Ann case. At the time of As birth in July 2004 the applicants were unmarried and they inflexible to place A for adoption. The applicants married in Northern Ireland in January 2006, change 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 foster parents) and that, accordingly, a conditional order for the inquiry under art 40 had to be discharged. The determ ination of the High Court was based on his culture 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 major power to award custody of the child to the adopted parents, as the maternal parents and deflower Ann has formed a family under the constitution. If the State had more powers to intervene and supervene upon 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 ado ptive parents13. 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 bear out 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 doubtfulness 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. 14. 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 childrens rights are thought as petty(a) to the parents and this can be see in Crowley. 15 I think that there should be a change from the paternalistic approach, whereby th e 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 case16. The court acknowledged the right of the parents to fend a both standard and important test for a tender 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 childrens rights should be explicitly incorporated into constitutional text. 17To 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 numerousness of differing units which may be capable of being considered family. 18 I think there should be an e xhaustive list including the instances above where a member of the public would regard the situation as being a family.Alternatively you could quit 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 resolution in a large amount of uncertainty. I would favor the rootage option even though it would arise its 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 profit 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 fami ly I think should be recognised) and formed a table, this furthermore indicates the need to incorporate the change in society into the constitution.