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For Better or for Worse De facto family rights...

For Better or for Worse De facto family rights...

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The essay outlines the rights afforded to traditional families under the Constitution and contrasts such rights with those afforded to non-traditional families.
I discuss the case law in this area and the need for reform.
The essay outlines the rights afforded to traditional families under the Constitution and contrasts such rights with those afforded to non-traditional families.
I discuss the case law in this area and the need for reform.

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Published by: Undergraduate Awards on Sep 01, 2012
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10/16/2014

 
For Better or for Worse
 De facto
family rights: A job for the Legislature or the Constitution?An examination of case law, the decisions, and the need for changeIntroduction
Sometimes instead of looking at rights that are not habitually afforded to certaingroups in society, it is interesting to look at rights that are considered deeplyentrenched in our system and are recognised and accepted as a matter of norm.If we look at the privileges and status given to the constitutional family, by statusalone under the constitution it is fair to say that the legally, the de facto family isconsidered secondary when it comes to rights.Article 41 of the Constitution recognises the family as the “fundamental unit group of society.” This family or moral institution, which is based on marriage
1
,is deemed to possess “inalienable and imprescriptible rights, antecedent and superior to all positivelaw.”
2
In other words, the rights and obligations afforded by Article 41 are by andlarge immune from State intervention, thus providing the constitutional family with anarray of rights and obligations, superior to other non-traditional family groups whogenerally fall short of constitutional protection.
3
In this essay we shall look at the caselaw and constitutional rights surrounding traditional families and from this premisewe shall distinguish those rights with the rights afforded to non-traditional families.Throughout the judgments it will be shown that the rights and obligations afforded bythe Constitution can, on occasion be restricted and are not always absolute. Anattempt shall also be made to examine the outcomes of judicial decisions effectingnon-traditional family units as well as suggested reform in this area
Family v. State
It has been considered that both Articles 41 and 42 of the Constitution remains staticin 1937 beliefs and values.
4
These values endorse strict rules which are exclusive andinflexible and at the same time pay little regard to the diverse array of relationships
1
This was considered in
State (Nicolaou) v. An Bord Uchtala
[1966] I.R 567. Also in
G. v. An Bord Uchtala
[1980] IR 32. Costello J. looked at the judicial view of marriage in
 Murray v. Ireland 
[1985]I.L.R.M..542
2
Bunreacht na Heireann 1937 Article 41
3
Interestingly though, the Supreme Court in
Jordan v. O’ Brien
[1960] IR 363 held that the word“family” in a statute did not necessarily denote the same meaning of “family” in Article 41.
4
 
Church and State in Modern Ireland 
2
nd
ed, Dublin 1980, page 52
1
 
that form part of Irish modern society today- after all, society changes and so dofamilies or put in another way, changes in family structures will also change society.Hence, if one looks at society today it is easy to denote many significant changes thathave taken place since 1937, and so in that sense, a re-examination of the definition of family may positively modify out of date thought patterns, and take into account theevolving complex character and the diverse and transient nature of families 70 yearson. At present, the Constitution offers protection to the traditional-family based onmarriage. It does not offer adequate protection to the
de facto
family whose rights arelimited, even in such an age of diversity. “Family” is not explicitly defined in theconstitution but it is widely accepted that the marital family is traditionally recognisedas the constitutional family. Non-traditional families do not fall within this ambit andit appears that rights that are sometimes afforded to them are often challenged as posing a threat or an “unjust attack” on the institution of marriage.In
 Northwestern Health Board v. HW,
5
Keane C.J.’s considered the constitutionalfamily:…as being superior even to the authority of the State itself…The Constitutionfirmly outlaws any attempt by the State in its laws or its executive actions tousurp the exclusive and privileged role of the family in the social order.In this passage Keane C.J. appears to suggest that family authority as recognised bythe Constitution, is a powerful entity, which is superior to the authority of the State or State intervention. This privileged role then, is indeed painted as impervious andexclusive but exactly how powerful are these traditional family rights? What of thenon-traditional family rights?In examining the case law that surrounds this contentious area, whilst Keane C.J.’sconsiderations, might be considered accurate to general judicial consensus, the privileges afforded to the constitutional family are not entirely impenetrable. Thereare instances where the courts may override sacrosanct traditional family rights, because to afford them would not be practical or would go against public policy. In
 Murray v. Ireland 
 
for example,
 
Costello J. noted that despite the language in Article41, the rights of the family are not absolute and that certain constitutional rights may be suspended during (in this case) a period of imprisonment. Costello J. also gave an
5
 
 Northwestern Health Board v. HW 
[2001] 3 IR 622, at 686-7
6
 
 Murray v. Ireland 
[1985] I.L.R.M. 542.
2
 
example of where father’s rights might be suspended when removed from a familyhome as a result of abuse. The State may also restrict family rights he said, when theState has found it necessary to imprison parents of young children.
7
In
 People (D.P.P)v. T 
8
 ,
the Court of Criminal Appeal, per Walsh J. overturned the common law rule thatone spouse cannot be a competent witness against the other spouse. It was contendedthat allowing a spouse to give evidence against the other would amount to a violationof Article 41. According to Walsh J. the common law rule was not applicable in caseswhere one family member is alleged to have committed a crime against the other. Inthe case before the court, the defendant had been accused of sexual offences againsthis daughter. Thus, it has been shown that there have been occasions where the ever- powerful rights as considered by Keane C.J. have needed to be watered down in lightof other considerations and that such rights are not entirely unchallengeable. Attemptshave been made to distinguish rights that are absolute and those that are not. For example, in
G v. An Bord Uchtala,
Walsh J. drew a distinction between inalienablerights that were ‘absolutely inalienable’ while others were ‘relatively inalienable.’
9
According to Hogan however, Walsh J’s dicta does not appear to have been followedin any subsequent case.
Protection of the traditional family
Article 41.3.1 was successfully pleaded in
 Murphy v. Attorney General 
where it wascontended that provision of the Income Tax Act 1967 violated the States “pledge toguard with special care the institution of marriage and to protect it against attack.”
 In
 Murphy
, a married couple were paying more tax than a single couple cohabiting andearning similar incomes. The Chief Justices depiction of family authority over Stateauthority maybe resonant in this case,
but Kenny J’s reasoning as to how the provision actually breached Article 41 was somewhat unclear.
It appears however,that subsequent decisions have clarified the fact that the ratio in the
 Murphy
case is
7
[1985] I.L.R.M. 542, 548
8
 
 People (D.P.P) v. T 
(July 27, 1988)
9
 
G v. An Bord Uchtala
[1980] I.R. 32.
10
J M Kelly. The Irish Constitution( 4
th
ed.Butterworths)
11
 
 Murphy v. Attorney General 
[1982] I.R. 241
12
Constitution, Article 41.3.1
13
See Keane C.J.’s comments in
 Northwestern Health Board v. HW 
[2001] 3 IR 622, at 686-7
14
Doyle
Constitutional Law (Text & Materials)
 
3

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