Article 41 The Family Notes

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...

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