Article 41 The Family - Irish Constitutional Law

Article 41 – The Family

The Nature of Article 41

The Family in Article 41

• McGee v Attorney General (SC) – Walsh J spoke of natural rights whose existence is confirmed by the Constitution and thus protects them. Families have rights which the State cannot control.

• NW Health Board v HW (SC)

  • Keane CJ: in philosophical terms the family predated other social units, including the unit of the State itself. The philosophical origins are found in the writings of Locke and Rousseau – family predates the social contract and thus enjoys a superior status to the state. This amounts to an express recognition by the framers of the Constitution of the reality of natural rights, which must be accepted even by those who don't subscribe to a natural law philosophy.

  • Denham J: described the principle of the fundamental rights of the family as a constitutional principle.

  • Doyle: points to the conflict between those two approaches.

• DT v CT (SC)

  • Murray J: spoke of Article 41 as being part of a Constitution which is to be interpreted as a contemporary document, as well as a reflection of its historical, cultural and social role underpinned by values common to all religious traditions.

• Whyte, St. Louis University Public Law Review

  • Problems with the failure to distinguish between civil and religious aspects of marriage (inefficacy of canonical annulment)

Inalienable and imprescriptible rights

• Ryan v Attorney General (HC, SC) – Kenny J held that they cannot be given away (inalienable) and cannot be lost through the passage of time (imprescriptible)

• Re Article 26 and the Adoption (No. 2) Bill (SC) – The court rejected the submission that the inalienable and imprescriptible rights of the family made it impermissible to disturb or alter the constitution of a family in order to restore constitutional rights to a member of that family, where such methods were necessary to that end.

• H v Murphy

  • The father of a family suffered severe personal injury during the course of his employment.

  • The family sued the employer claiming that this was an unconstitutional attack on the family.

  • Costello J stated that Article 41 protected the family from State interference and legislation, but not attack such as this from a private individual – this is because the guarantee must be read in light of the function of the Constitution's fundamental rights guarantees, i.e. to protect citizens from unjust laws and arbitrary state actions.

• Intra-family rights

• L v L (HC, SC)

  • Wife sought share in the home based on the contribution she had made as a stay at home mother.

  • SC: Article 41.1 recognises the existing rights of the family and undertakes to protect those rights. It does not create any particular right within the family or grant to any individual member of the family against other members of the family, but rather deals with the protection of the family against outside forces.

Article 41 and the potential for change

• Keane, Irish Constitution: Governance and Values, Doyle ed

  • N v HSE adverts to another presumption, that children are best off with natural parents.

Implications of Article 41 protection of the Family in the context of development of the common law

• H v J Murphy & Sons (HC)

  • The Constitutional guarantee creates an obligation on the part of the state to protect the family in its constitution and authority from unjust attack.

  • In the context of Constitution whose purpose is to protect citizens from unjust laws or arbitrary acts, it cannot be said that this creates an obligation to prevent or compensate injury to families arising from the negligent acts of State officials or, a fortiori, private individuals.

• McKinley v Minister for Defence (SC)

  • Plaintiff took an action for loss of consortium, despite its traditionally only granting an action to a husband.

  • Hederman J: The rights guaranteed to families by virtue of marriage (in particular the women of marriage) should inform the development of the common law – the dignity and freedom of the individual plaintiff in this case can only be guaranteed by extension of the consortium rule.

• Byrne v Ryan (HC)

  • Claim for wrongful conception arising out of the failure of a sterilisation procedure.

  • Held that, it would not be fair or reasonable to hold a doctor who negligently performs a sterilisation operation liable for the cost of bringing up the child.

  • Alternatively, it is the case that the benefits of a healthy child outweigh any loss incurred in rearing the child.

  • These approaches also sit more harmoniously with a constitutional order which emphasises the value of the family.

Standing of non-nationals to invoke Article 41

• Northampton County v ABF (HC)

  • A child born in England to married parents was taken into care.

  • He was kidnapped by his father who fled to Ireland.

  • Held that, non-citizenship cannot have a bearing on the application of Article 41 by reason of its natural law nature – if the father would lose the opportunity to assert those rights through the child being moved to another jurisdiction then the courts must refuse to allow such removal.

  • However, a full hearing should be held into the circumstances in order to balance the rights of the child and the father.

• Saunders v Midwestern Health Board

  • Immigrants to the country cannot, simpy by their entry, be granted the benefits of Article 41.

• Eastern Health Board v An Bord Uchtála (HC, SC)

  • O'Flaherty J tried a case where two Irish adults removed a child from India to adopt it.

  • Question as to whether the adoption framework applied to non-citizen children.

  • Held that, the constitutional guarantees in Article 41 and 42 require that the legislation be interpreted so as to protect non-citizen children.

Marital families and recognition of other types of family unit

Definition of 'marriage' and 'family'

• Nicolau v An Bord Uchtála (SC)

  • Challenge to the Adoption Act 1952 on the grounds that it violated the rights guaranteed to the family by Article 41 of the Constitution.

  • Henchy J: to give equal protection to non-marital unions would be an attack on the institution of marriage.

  • Walsh J: The family protected by Article 41 is the family based on marriage and marriage means valid marriage under the laws for the time being in force in the State.

• O'B v S (SC)

  • Challenge to the provisions of a statute that disinherited the illegitimate children of an intestate.

  • Walsh J: Family means family based on a marriage which is valid having regard to the laws in force in the state

• Murray v Ireland

  • Plaintiffs were serving life sentences and claimed that, as a married couple, they had a right to procreate under Article 41 and the failure of the prison authorities to provide them with conjugal facilities was a breach of this right.

  • (HC) The words in the Constitution used to describe a family ('unit group of society' 'moral institution') are as applicable to a married couple without children as to one with children. The fact that there are separate references to the institution of marriage and the institution of family does not militate against this interpretation.

  • (SC) Downplayed the importance of the determination of which Article protected the right to procreate.

• G v An Bord Uchtála (SC)

  • A woman had placed her child up for adoption, but later withdrew her consent from the married couple who had applied for an adoption order.

  • O'Higgins CJ: This case does not involve the mother of family as per Article 41, which applies exclusively to the family based on marriage.

  • Henchy J: A child born out of wedlock is not a member of a family in a constitutional sense.

  • Parke J: The family in the constitution is that based on matrimony.

• Murphy v Attorney General (SC)

  • Challenge to taxation provisions which levied higher taxes on married than unmarried couples.

  • (HC) The Constitition guarantees to the family founded on marriage a role and social function as the natural, primary and fundamental unit group of society.

  • (SC) Didn't deal with definition.

• N v K (SC)

  • The applicant claimed that she was forced to marry under duress and sought to have the marriage declared a nullity.

  • Griffin J: the permanence and indissolubility of a marriage means that it is of utmost importance that it be entered with the full and free consent of the contracting parties.

  • McCarthy J: The durability of a marriage requires that each party enter into it in full appreciation of what it entails and out of a free decision – this requirement has its roots in the Christian notion of a partnership based on an irrevocable personal consent between two spouses.

  • Henchy J: Duress in the context of a marriage contract is given a wide interpretation, due to the strictness of the Constitutional provisions concerning a validly contracted marriage.

The State's obligation to guard with special care the institution of marriage

• Murphy v Attorney General (SC)

  • Held that, the imposition in certain circumstances of a higher tax on married couples than would be levied on single persons in the same circumstances was a breach of the State's duty to guard with special care the institution of marriage and protect it against attack – this is not compensated for by the fact that married couples enjoy special advantages and privileges.

• Hyland v Minister for Social Welfare (SC)

  • The applicant challenged social welfare provisions which meant that he and his wife received less benefit payments than they would if they were two single people.

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