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11 August 2005 Edition

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Time to change outdated notions of family

The Oireachtas All-Party Committee on the Constitution is currently in the process of reviewing those articles in the 1937 Constitution which address the position of the family and children. It is due to complete its considerations in the coming months. The outcome has the potential to have a significant impact on the lives of people in the 26 Counties, particularly in respect of children's rights and fathers' rights.

In a comprehensive submission Sinn Féin set out its position. This is that the Constitution must represent secular values; that provisions which discriminate on the basis of gender, marriage or sexual orientation must be removed; that equality provisions must be augmented and that the rights of the child and socio-economic rights must be included

The Sinn Féin submission included a critique of the deficiencies and flaws of the current articles as well as proposals to amend them. The introduction to the submission set the context in which the articles were drafted stating: "The 1937 Constitution, and in particular the articles in relation to the Family (and the position of women in particular), reflect the dominant religious ethos and political philosophy of 1930s Ireland. These articles were controversial even in the 1930s and were widely opposed by women's groups. They marked a definitive break with the promise of equality for all citizens contained in the 1916 Proclamation."

Equality rights absent

Particular flaws in the articles include the fact that equality rights are almost wholly absent, save for a minimalist protection of the right to equality before the law (Article 40.1). And socio-economic rights are confined to the right to education and private property enshrined in subsequent articles. Also the only group rights set out are those rights accorded to families based on heterosexual marriage in Article 41. Children do not have a subset of specific rights within this group.

Article 41 addresses the family; it's rights and protections, along with the role of women, the institution of marriage and dissolution of marriage. In article 41 the balance between the rights of the family as a unit and the rights of individual members favours the family disproportionately, in a manner potentially in conflict with the International Convention on the Rights of the Child.

Because children's rights are not specifically recognised in the Constitution this creates a situation which favours maintaining the family unit rather than giving precedence to the health and well being of the child. Sinn Féin's submission makes clear that the Constitution should both reflect and guarantee the fullest protection of children's rights as decreed in international law.

Discrimination against unmarried fathers

Another major problem with Article 41 is that constitutional protection for families is only extended to heterosexual families, based on marriage, and this permits discrimination against other family formation. This has resulted in the courts finding that that the rights of the natural father receive no constitutional protection. The removal of the restriction of family to 'family based on marriage' would remove this discrimination against unmarried fathers. Unmarried long-term heterosexual partnerships are also excluded from protections, as are lesbian and gay partnerships.

Same sex partnerships

The refusal to recognise same sex partnerships, regardless of equivalent permanency, denies lesbians and gays the access to a broad section of rights available to heterosexual married couples. Given the diversity of family formations which exist in the state today, this definition of family is clearly inadequate and discriminatory.

Articles insulting women

Article 41 which defines women's place as primarily in the domestic sphere was formulated at a time when the Catholic Church and the establishment were seeking to prevent women from taking so-called 'breadwinner' jobs. These articles are archaic and have been widely ridiculed and opposed by women's rights campaigners and others. The Sinn Féin submission made clear the party's opposition to the retention of these articles stating: "The references to 'woman's life within the home' and 'women's 'neglect of their duties in the home' are discriminatory and insulting to women and should be removed. These references promote views with regard to the position of women which are both discriminatory and obsolete. The case for the removal of Article 41.2.1 and 41.2.2 is clear."

Equality before the law

The Sinn Féin submission proposed the replacement of article 40.1 to deal more comprehensively with the issue of equality before the law and the replacement of article 41 dealing with the family with the following article which states:

"Everyone has the right to respect for their private and family life, their home and their correspondence.

Everyone of marriageable age has the right to marry and to found a family. All such persons are entitled to equal rights as to marriage, during marriage and at its dissolution."

Rights of the child

The submission also proposed the insertion of the following new article on the rights of the child:

1. The State guarantees to cherish all the children of the nation equally. All children, in addition to the individual rights guaranteed to all persons in this Constitution, are entitled to the special care and assistance essential to childhood. Each child has the right to reach his or her potential as an individual and as a member of the community.

2. The State shall ensure, as far as is possible, that every child, for the full and harmonious development of his or her personality, shall grow up in a family environment, in an atmosphere of happiness, love and understanding.

3. The State shall ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

4. Children have the right to be heard, to be consulted in all matters affecting them and to access information about their person.

5. In all actions concerning children undertaken by or on behalf of the State the best interests of the child shall be the primary consideration.

Sinn Féin Ard Fheis position

The proposed insertion of this article and the changes in respect of the definition of the family would give effect to the position adopted at the Ard Fheis which stated that:

"Sinn Féin is opposed to any form of sex discrimination in relation to the treatment of parents by the courts. We believe that the best interests of the child should determine the proportion of care and access apportioned to each parent. Along with equal rights come equal responsibilities. Sinn Féin believes that the law should fully recognise that the best interests of the child is served by both parents taking emotional and financial responsibility for children's' well-being and act accordingly."

Sinn Féin is represented on the All-Party Committee on the Constitution by Arthur Morgan TD. Morgan has said he is "not confident" the Committee's proposals will reflect the arguments put forward by Sinn Féin. He also pointed to the fact that the Government has failed to take any action to implement the recommendation contained in the majority of the reports previously produced by the Committee.

An Phoblacht Magazine

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